amendments approach to the independence criteria assumed that the RMP
rule would establish a market for parties meeting the more stringent
independence criteria, but the Agency's approach now is to be more
flexible and take the market as it is and to better recognize within
the rule structure the voluntary measures of industry. EPA solicits
comment on this proposed independence criterion modified from the 2017
rule. EPA also seeks comment on whether the selected auditor should be
mutually approved by the owner or operator and employees and their
representatives, and if direct participation from employees and their
representative should be required when the third party conducts the
audit.
    EPA contends that the remaining third-party compliance audit
provisions, when restored, will help ensure that owners and operators
of RMP facilities without strong prevention programs objectively and
adequately explore all opportunities to prevent or minimize accidental
releases of regulated substances to protect human health and the
environment.
    Third-Party-Issued Compliance Audit Findings Information
Availability. As discussed in section IV.A.1.e of this preamble,
ensuring that communities, local planners, local first responders, and
the public have appropriate chemical facility hazard-related
information is critical to the health and safety of responders and the
local community. EPA is proposing ways to enhance information sharing
and collaboration between chemical facility owners and operators,
LEPCs/TEPCs, first responders, and the public in a manner that EPA
believes balances security and proprietary considerations with the need
for public and local responder information availability. In addition to
the information availability provisions in section IV.C of this
preamble, EPA is proposing to require facilities conducting third-party
compliance audits for the proposed provisions under 40 CFR 68.58,
68.79, 68.59 and 68.80 to list in section 7 (Program 3) and section 8
(Program 2) of their risk management plans, for each process, findings
resulting from the audit that the owner or operator chooses to decline.
EPA realizes that the number of third-party-issued findings may vary
widely, depending on the complexity of the process or facility.
Therefore, as in section IV.A.1.e of this preamble, EPA seeks comments
on the format of listing the findings--whether EPA should require
findings to be included in narrative form, or whether the Agency should
provide specific categories of findings for facilities to choose from
when reporting. Another option would be to allow the owner or operator
to post this information online and provide a link to the information
within their risk management plan.
    EPA is also proposing to adopt the same categories outlined in
section IV.A.1.e of this preamble for owners and operators to justify
declined third-party-issued compliance audit findings. EPA seeks public
comment on this approach and on alternative categories or methods for
providing justification for declining relevant findings. EPA wants to
ensure a balanced approach to providing beneficial data to the public
as well as a straightforward method of reporting for facility owners
and operators.
d. Employee Participation
i. Introduction
    Employees directly involved in operating and maintaining a process
are most exposed to its hazards. These same employees are typically the
most knowledgeable about the daily requirements for safely operating
the process and maintaining process equipment; they may sometimes be
the only source of process-specific knowledge--knowledge that has been
gained through their unique experiences. Their direct participation and
involvement in ensuring and enhancing the safety of process operations
are often essential to protecting their own welfare.198 199
Such actions help keep communities safe as well. A long-standing
premise of the RMP rule is that actions that promote worker safety as
part of a well-designed process safety system generally help protect
the public and the environment.\200\
---------------------------------------------------------------------------

    \198\ CCPS, ``Introduction to Workforce Involvement,'' accessed
February 3, 2022, https://www.aiche.org/ccps/introduction-workforce-involvement.
    \199\ CCPS, Guidelines for Risk Based Process Safety (March
2007), https://www.aiche.org/resources/publications/books/guidelines-risk-based-process-safety, p. 47.
    \200\ See EPA, Accidental Release Prevention Requirements: Risk
Management Programs Under Clean Air Act Section 112(r)(7), 61 FR
31687 (June 20, 1996).
---------------------------------------------------------------------------

    Employee participation is a key element of a company's commitment
to process safety. The CCPS's ``Guidelines for Risk Based Process
Safety'' \201\ outlines how to design and implement--or further correct
and improve--effective PSM practices to prevent accidents based on
process risks. It identifies essential characteristics of strong
commitment to employee participation such as:
---------------------------------------------------------------------------

    \201\ CCPS, Guidelines for Risk Based Process Safety (March
2007), https://www.aiche.org/resources/publications/books/guidelines-risk-based-process-safety.
---------------------------------------------------------------------------

     Empowering individuals to successfully fulfill their
safety responsibilities.
     Deferring to expertise.
     Ensuring open and effective communication.
     Fostering mutual trust.
     Providing timely responses to process safety issues and
concerns.
    Employee participation and a company's commitment to process safety
can be critical to preventing accidents. CSB recently identified
ineffective worker participation as a contributing factor to certain
catastrophic accidents because workers and their representatives were
not properly engaged in process operations to help identify and
mitigate hazards and reduce risks. To highlight this issue, in
September 2019, CSB published ``Safety Digest: The Importance of Worker
Participation.'' \202\ The digest discusses four catastrophic incidents
that led to 13 employee deaths, 179 employee injuries, and, in one
case, 15,000 residents living near the facility having to seek medical
evaluation. The incidents took place at an explosives manufacturing
site in Nevada, a chemical production facility in Louisiana, and oil
refineries in Washington and California. The digest concludes that
workers and their representatives play a critical role in hazard
identification, risk reduction, and incident prevention. Each of these
CSB investigations found that employee participation programs were
inadequate, despite the existence of current Federal regulations and
industry standards.\203\ Recommendations from CSB to create an
effective worker participation program include:
---------------------------------------------------------------------------

    \202\ CSB, Safety Digest: The Importance of Worker Participation
(n.d.), https://www.csb.gov/assets/1/6/worker_safety_digest.pdf.
    \203\ The CSB Safety Digest identifies applicable regulations
and industry standards including OSHA PSM, EPA RMP, Bureau of Safety
and Environmental Enforcement's Safety and Environmental Management
Systems rule, and the American National Standard-Occupational Safety
and Health management Systems, ANSI/AIHA Z10.
---------------------------------------------------------------------------

     Creating or improving opportunities for workers to
participate directly in matters involving PSM and major incident
prevention.
     Empowering workers to provide input on how work is
performed, whether through safety-related committees, special projects,
inspections and audits, hazard analyses, and/or other specific
measures.
     Sharing safety information or communicating safety
improvements as a part of strengthening a company's or

facility's overall safety management system.
     Enabling workers to bring safety issues to the attention
of management without fear of retaliation or reprisal.
     Collecting data to help ensure critical information is
retained and used to continuously improve safety.
     Worker training opportunities and information sharing
regarding the nature of hazards present in the workplace, lessons
learned from other sites, the outcomes of incident investigations, and
exposure to both established industry best practices and the results of
safety-related research relevant to a company's or facility's
operations.
     Strengthened worker participation requirements in industry
standards and State and Federal regulations.
    Although process industries are aware of the value of worker
participation programs, opportunities exist to strengthen these
programs and requirements for RMP-regulated facilities in a way that
will protect human health and the environment. A 2017 study by Dupont
Sustainable Solutions of 80 executives in high-hazard industries, such
oil and gas, chemical and petrochemical, utilities, metals and mining,
and manufacturing, found that employee participation to reduce
catastrophic accidents that threaten their businesses could be
improved. The study found that ``executives acknowledge there is an
organizational disconnect and misalignment among leadership and
employees with respect to risk management, which greatly contributes to
the likelihood of a catastrophic event.'' One of the most notable
discoveries of the study was that 88 percent of company executives felt
workforce engagement was important to risk management, but only 35
percent believed it to be a strong part of their organization.\204\
---------------------------------------------------------------------------

    \204\ DuPont Sustainable Solutions, ``Lack of Internal Alignment
and Commitment of Resources to Manage Risk Threaten Corporate
Business Performance,'' last modified 2017, https://
www.consultdss.com/global-operational-risk-management-survey-report/
#:~:text=Lack%20of%20Internal%20Alignment%20and,Risk%20Threaten%20Cor
porate%20Business%20Performance&text=Instead%2C%20better%20understand
ing%20operational%20risks,new%20value%20from%20emerging%20opportuniti
es.
---------------------------------------------------------------------------

    Many commenters, including labor unions, advocacy groups, and
individual commenters from the 2021 listening sessions, stated that EPA
must strengthen the RMP rules to support and facilitate effective
participation by workers and their representatives, arguing that worker
participation is an essential component of incident prevention and
safety management systems.\205\ One advocacy group remarked that doing
so would be essential to protecting public health and safety.\206\ A
labor union asserted that genuine worker involvement in RMP
development, program enforcement, and corrective actions would
translate to better communication and engagement with local communities
and more effective response plans.\207\ In discussing the need for
updated regulations relating to worker participation, an individual
commenter pointed out that the current RMP rule provides opportunities
for employee participation, but these elements have not been updated
since the regulations were first issued.\208\
---------------------------------------------------------------------------

    \205\ EPA-HQ-OLEM-2021-0312-0079; 0170, 0151, 0058, 0032, 0057.
    \206\ EPA-HQ-OLEM-2021-0312-0094.
    \207\ EPA-HQ-OLEM-2021-0312-0044.
    \208\ EPA-HQ-OLEM-2021-0312-0076.
---------------------------------------------------------------------------

    The existing RMP rule already requires owners or operators of
regulated facilities to include employees in RMP-regulated process
operations. At 40 CFR 68.83, owners or operators with Program 3
processes are required to: (1) Develop a written plan of action
regarding the implementation of employee participation requirements;
(2) consult with employees and their representatives about the conduct
and development of process hazards analyses and the development of the
other elements of PSM; and (3) provide employees and their
representatives with access to PHAs and all other information required
to be developed under the rule.
    In development of the initial 1996 RMP rule, the Agency recognized
that many workplace hazards also threaten public receptors and that
most accident prevention steps taken to protect workers also protect
the public and the environment. Therefore, EPA adopted and built on
much of the existing accident prevention language from OSHA's PSM
standard, including the employee participation language in 29 CFR
1910.119(c). EPA considers these employee participation requirements to
be a good basis for promoting a commitment to process safety because
workers who are intimately familiar with the process, equipment
operation, and possible failure modes and consequences of deviations
serve as a mechanism for greater communication and understanding of
specific process hazards (as opposed to general chemical hazards).\209\
---------------------------------------------------------------------------

    \209\ EPA, Accidental Release Prevention Requirements: Risk
Management Programs Under Clean Air Act Section 112(r)(7), (June 20,
1996), 61 FR 31697.
---------------------------------------------------------------------------

    Taking into account lessons learned from accidents, current
guidance, and recent discussions within regulated industry sectors
indicating there is room for improvement in this area, EPA believes
that further worker involvement in process safety could help prevent
and mitigate accidents. Therefore, EPA is proposing to add additional
regulatory provisions to the employee participation requirements for
owners and operators of regulated facilities with Program 2 and Program
3 processes. EPA is specifically proposing to require employers to
consult with employees when making decisions on implementing
recommendations from PHAs, compliance audits, and incident
investigations; provide employees the opportunity to stop work under
certain circumstances; and provide opportunities for employees to
report late or unreported accidents and other areas of RMP non-
compliance to EPA and other relevant authorities. EPA is proposing
these provisions so that owners and operators without strong employee
participation programs will have further measures in place to ensure
process safety and to prevent or minimize accidental releases of
hazardous substances. EPA does not expect these new provisions to be a
burden to owners and operators that already have made this commitment.
ii. Recommendation Decisions
    Although employees may be involved in the development of plans and
procedures (through 40 CFR 68.83 or otherwise), they may not be
guaranteed ``a seat at the table'' when final decisions are made about
process operations they are directly involved in that could threaten
their health and safety. EPA realizes that practicable recommendations
from hazard evaluations, incident investigations, and compliance audits
that may reduce hazards at RMP facilities are not always implemented,
for various reasons. The Agency believes that involving directly
affected employees in these discussions and decisions will help ensure
that the most effective recommendations for reducing hazards and
mitigating risks to employees and the public are given the proper
consideration.
    In 2019, CCPS published its ``Guide for Making Acute Risk Decisions
(GMARD)'' \210\ to complement its Risk Based Process Safety (RBPS)
guidelines. The GMARD is a source for recognized

good industry practices on how to conduct risk decision-making in the
chemical industry. This publication aims to guide the decision process
of common and practical risk evaluation and risk analysis tools to
analyze decisions. The guidance outlines specific considerations when
making decisions in chemical process safety regarding implementation of
hazard assessments, audits, and incident investigation recommendations.
The GMARD indicates that selection of members to analyze decisions--
like a PHA team--should be based on the skills needed to analyze the
problem and define solutions and the level of responsibility required
to authorize the decision team's recommendations. Stakeholders who may
be affected by the risk decision should also be represented. These
groups may include production and plant stakeholders such as those in
engineering, operations, maintenance, safety, and health; and
environmental managers. Ultimately, the team composition should be
appropriate to the level of risk and the complexity of the potential
resolution actions.
---------------------------------------------------------------------------

    \210\ CCPS, Guide for Making Acute Risk Decisions (October
2019), https://www.aiche.org/ccps/resources/publications/books/guide-making-acute-risk-decisions.
---------------------------------------------------------------------------

    The American National Standards Institute (ANSI)/American Society
of Safety Professionals (ASSP) Z10.0-2019 standard \211\ offers
additional guidance on health and safety management systems for
different types of organizations and risks. It explains that
organizations must establish a process to ensure effective worker
participation by those most threatened by hazards. Worker involvement
helps determine and validate acceptable levels of risks and provides
transparency when alternate decisions are made. This standard reflects
industry consensus and was in part developed by the ACC and API--both
major stakeholders representing RMP-regulated facilities.
---------------------------------------------------------------------------

    \211\ ANSI and ASSP, ANSI/ASSP Z10.0--2019 Occupational Health
and Safety Management Systems (2019), https://store.assp.org/PersonifyEbusiness/Store/Product-Details/productId/197785872.
---------------------------------------------------------------------------

    In 2017, the California Department of Industrial Relations (DIR)
formalized including employees in all phases of PSM by making additions
and modifications to its regulations on ``Process Safety Management for
Petroleum Refineries.'' \212\ Specifically, in the employee
participation section of the rule, it added that employee participation
shall occur ``throughout all phases'' and required involvement of
affected operating and maintenance employees and employee
representatives in developing, training, implementing, maintaining, and
performing various process safety elements. DIR indicated that this
modification would ensure meaningful participation and decision-making
for employees and employee representatives from all program teams for
all analyses required by their PSM regulations.\213\
---------------------------------------------------------------------------

    \212\ DIR, Process Safety Management for Petroleum Refineries,
CCR Title 8: section 5189.1 (July 27, 2017), https://www.dir.ca.gov/title8/5189_1.html.
    \213\ DIR, Final Statement of Reasons, CCR Title 8: new section
5189.1 (September 15, 2016), https://www.dir.ca.gov/oshsb/documents/Process-Safety-Management-for-Petroleum-Refineries-FSOR.pdf.
---------------------------------------------------------------------------

    Additionally, the United Kingdom has had regulations in place since
1996 that address consulting employees on matters that affect their
health and safety. The Health and Safety (Consultation with Employees)
Regulations of 1996,\214\ specifically Regulation 4A, require employers
to consult their health and safety representatives before making
decisions involving work equipment, processes, or the organization that
could have health and safety consequences for employees.\215\
---------------------------------------------------------------------------

    \214\ John Selwyn Gummer, The Health and Safety (Consultation
with Employees) Regulations 1996, 1996 No. 1513 (June 10, 1996),
https://www.legislation.gov.uk/uksi/1996/1513/made.
    \215\ Health and Safety Executive, Consulting Workers on Health
and Safety, L146 (Second edition with amendments) (2014), https://www.hse.gov.uk/pubns/priced/l146.pdf.
---------------------------------------------------------------------------

    One of the accident investigations from the CSB safety digest
highlights the severe consequences of a lack of an effective employee
participation program. On April 2, 2010, the Tesoro Refining and
Marketing Company LLC (Tesoro) petroleum refinery in Anacortes,
Washington, experienced a catastrophic rupture of a heat exchanger.
Hydrocarbons released from the ruptured heat exchanger ignited, causing
an explosion and an intense fire that burned for more than 3 hours. The
rupture fatally injured seven Tesoro employees who were working in the
immediate vicinity of the heat exchanger at the time of the incident.
Prior to the incident, workers had repeatedly provided input on how to
improve the safety of the process. During a 2006 PHA revalidation on
the unit involved in the accident, workers noted 31 near misses in the
unit during the previous 5 years. The PHA team requested a review of
experience and training for relevant operators to address their safety
concerns. \216\ The action item was closed without resolution of the
concerns expressed by the Tesoro workers on the PHA team. The Tesoro
accident highlights what can happen when employees' views are not
considered when making comprehensive decisions about process hazards
and risks.
---------------------------------------------------------------------------

    \216\ CSB, ``Tesoro Refinery Fatal Explosion and Fire,'' last
modified May 1, 2014, https://www.csb.gov/tesoro-refinery-fatal-explosion-and-fire/.
---------------------------------------------------------------------------

    EPA analyzed OSHA PSM violations from 2018 to 2020 to better
understand the breadth of unresolved or improper closure of
recommendations from PHAs, compliance audits, and incident
investigations.\217\ In these 3 years, there were 70 violations of non-
compliance where PHA, incident investigation, or compliance audit
recommendations were not addressed, resolved, completed, documented, or
communicated to employees. Of these violations, the majority (56
percent) were violations associated with PHA recommendations, 38
percent were from compliance audits, and 6 percent were from incident
investigations. Some of these violations were associated with RMP-
reportable accidents, which suggests that worker involvement may have
been useful in making sure options were appropriately considered.\218\
---------------------------------------------------------------------------

    \217\ EPA did not use EPA RMP enforcement information because
statistical data on enforcement under the 1996 RMP rule is not
available at this level of detail.
    \218\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
---------------------------------------------------------------------------

    During the 2021 listening sessions, some commenters recommended
allowing workers to be involved in making decisions about process
safety. One idea was for EPA to issue specific provisions that enable
workers and their unions to participate in the prevention of chemical
releases by requiring the facility owner and operator to provide for
meaningful employee participation when developing, implementing,
maintaining, and evaluating all RMP activities--including hazard
assessments, the prevention program, and emergency response
activities--and to keep current a written plan that describes such
opportunities.\219\ A commenter stated that effective worker
participation includes having an employee representative with veto
power. This representative--chosen by employees--would participate in
all stages of developing and implementing a risk management program and
have access to all documents or information pertaining to the
facility's RMP.220 221 A

few commenters stated that increased worker participation would reduce
the occurrence of catastrophic incidents at RMP facilities because
workers are an excellent source of knowledge for reducing hazards in
collaboration with plant engineers.\222\
---------------------------------------------------------------------------

    \219\ EPA-HQ-OLEM-2021-0312-0079; 0149, 0058, 0148, 0076.
    \220\ EPA-HQ-OLEM-2021-0312-0079.
    \221\ Note that the current 1996 RMP rule requires the owner or
the operator of a Program 3 process to ``provide to employees or
their representatives access to [PHAs] and to all other information
required to be developed under this rule''--that is, the current
1996 RMP rule (40 CFR 68.83(c)).
    \222\ EPA-HQ-OLEM-2021-0312-0032.
---------------------------------------------------------------------------

    As a result of this concern and need for employees to be involved
in decision-making, EPA is proposing to require in 40 CFR 68.83(c) that
the written plan of action include consultation of employees and their
representatives on addressing, correcting, resolving, documenting, and
implementing recommendations of PHAs, incident investigations, and
compliance audits, at a minimum. EPA expects this would be similar to
involving employees in the hazard evaluations under 40 CFR 68.83(b) but
would go a step further to offer suggestions and concerns about why a
recommendation should be adopted or declined or whether other
alternatives should be taken. EPA expects this would address safety
concerns that threaten the lives of workers and potentially others if a
major chemical accident were to occur, as well as involving workers in
ensuring items are completed in a timely manner. EPA seeks comment on
whether there should be a representative number or percentage of
employees and their representatives involved in these recommendations
decision teams as well as the development of other process safety
elements as outlined in 40 CFR 68.83(b). EPA also expects regulated
facilities to use some of the guidance materials referenced in this
section (e.g., CCPS' RBPS and GMARD guidelines and ANSI/ASSP Z.10) to
comply with the requirement to effectively involve employees in
decision-making processes. EPA seeks comment on other relevant sources
that have provided useful guidance in making risk decisions.
iii. Stop Work Authority
    Allowing process operation employees to stop work when witnessing a
dangerous activity could help better protect human health and the
environment.
    In the 2014 RMP RFI, EPA requested comments on whether it should
add provisions to the RMP rule giving workers the ability to stop work
if they believe a situation is dangerous--an authority similar to the
one that BSEE had recently provided for workers in the offshore oil
industry. BSEE promulgated revisions to their SEMS II requirements to
help ensure the safe operation of their regulated facilities.\223\ The
revisions included several management system elements not addressed in
the RMP regulation. In its SEMS II fact sheet, BSEE describes the stop
work authority as an authority that creates procedures and authorizes
offshore industry personnel who witness an imminent risk or dangerous
activity to stop work.\224\ While the requirements of SEMS II focus on
offshore facilities under the jurisdiction of BSEE, the same concept
could be applied to facilities subject to RMP regulation. EPA chose not
to pursue proposing stop work regulations in the 2017 amendments rule,
but it is revisiting this idea to address an area that may help reduce
accidents, particularly for those facilities that have not fully
developed a strong prevention program.
---------------------------------------------------------------------------

    \223\ Bureau of Safety and Environmental Enforcement (BSEE), Oil
and Gas and Sulphur Operations in the Outer Continental Shelf-
Revisions to Safety and Environmental Management Systems, 78 FR
20423-20443 (April 5, 2013).
    \224\ BSEE, Safety and Environmental Management Systems (SEMS)
Fact Sheet (n.d.), https://www.bsee.gov/fact-sheet/safety/sems-ii-fact-sheet.
---------------------------------------------------------------------------

    Various commenters from the 2014 RFI, including a consultant, the
Mary Kay O'Connor Process Safety Center, and CCPS, supported adding
this provision.\225\ The Mary Kay O'Connor Process Safety Center
suggested adding a stop work authority to the RMP employee
participation provision (40 CFR 68.83). While CSB supported EPA's
consideration of a stop work authority, it asserted that a stop work
authority is a less effective measure for incident prevention than good
planning and noted that its success is contingent upon the existence of
a ``culture of safety'' wherein workers are encouraged and empowered to
advocate for their safety on the job. CSB argued that any program that
does not appropriately enable stop work authority permits risks to
occur and accumulate.\226\
---------------------------------------------------------------------------

    \225\ EPA-HQ-OEM-2014-0328-0121; 0543, 0546.
    \226\ EPA-HQ-OEM-2014-0328-0689.
---------------------------------------------------------------------------

    Industry commenters generally opposed adding this authority to the
RMP rule.\227\ API and other associations noted that employees already
have the right to refuse work in light of a hazardous condition that
could cause serious bodily injury or death.\228\ API stated that stop
work authority is an inherent part of the oil and gas industry and
pointed to training programs and API standards that outline this
authority.\229\ API indicated that their standards inform employees
that:
---------------------------------------------------------------------------

    \227\ EPA-HQ-OEM-2014-0328-0560; 0605, 0619, 0624, 0643, 0645,
0665, 0676.
    \228\ EPA-HQ-OEM-2014-0328-0624; 0626, 0640, 0643, 0665.
    \229\ API, ``Stop Work Authority,'' accessed February 3, 2022,
https://www.api.org/oil-and-natural-gas/health-and-safety/worker-and-worksite-safety-resources/worker-safety-rules-to-live-by/stop-work-authority.
---------------------------------------------------------------------------

     Safety is and will always be the industry's primary focus.
     As part of the oil and gas industry, workers have a duty
to work in a safe manner.
     Workers have a personal responsibility to assure the
safety of themselves and those around them.
     Safety and safe practices should always be at the
forefront when carrying out job functions.
     All workers have stop work authority.
     Workers should stop and ask questions when in doubt about
the safety of any operations.
     Workers should stop work at the jobsite if the working
conditions or behaviors are considered unsafe.
     If a worker is discouraged from exercising their stop work
authority or is penalized for doing so, they should report this action
to management immediately.
    After the 2012 Chevron Refinery fire in Richmond, California,\230\
CSB recommended that the California State Legislature/Governor of
California, in its PSM regulations, should provide workers and their
representatives with the authority to stop work that is perceived to be
unsafe until the employer resolves the matter or the regulator
intervenes. As a result, in DIR's modifications to their Process Safety
Management for Petroleum Refineries rule,\231\ they included stop work
procedures. In the employee participation section, the rule indicates
that the employer, in consultation with employees, must develop and
implement stop work procedures that ensure there is authority for
employees to refuse to perform a task or recommend an operation or
process be partially or completely shut down. It also provides
authority for a qualified operator in charge of a unit to partially or
completely shut down an operation or process based on process safety
hazards.\232\ In addition, the regulation

requires that employers document and respond in writing to employee
reports of hazards or requests to shut down a process. CSB also made a
similar recommendation to the State of Washington to address related
issues after the fatal explosion and fire at Tesoro Refinery.\233\ The
State of Washington is currently considering changes to its PSM rule
for refineries.\234\
---------------------------------------------------------------------------

    \230\ CSB, ``Chevron Refinery Fire,'' last modified January 28,
2015, https://www.csb.gov/chevron-refinery-fire/.
    \231\ DIR, Process Safety Management for Petroleum Refineries,
CCR Title 8: section 5189.1 (September 26, 2017), https://www.dir.ca.gov/title8/5189_1.html.
    \232\ DIR, Process Safety Management of Acutely Hazardous
Materials, CCR Title 8: section 5189, https://www.dir.ca.gov/title8/
5189.html#:~:text=%C2%A75189.,Management%20of%20Acutely%20Hazardous%2
0Materials.&text=The%20establishment%20of%20process%20safety,(b)%20Ap
plication.
    \233\ CSB, ``Tesoro Refinery Fatal Explosion and Fire,'' last
modified May 1, 2014, https://www.csb.gov/tesoro-refinery-fatal-explosion-and-fire/.
    \234\ Washington State Department of Labor & Industries, ``Semi-
Annual Rules Development Agenda: January 1, 2022-June 30, 2022''
(January 31, 2022), https://lni.wa.gov/dA/ad667425ad/RulesAgenda.pdf.
---------------------------------------------------------------------------

    Recent articles and studies have attempted to examine stop work
authority, how it is applied, and the perception of its usefulness. A
2018 article in Safety+Health magazine indicated that while specific
stop work authorities are not mandatory, safety professionals insist on
their use. According to the article, key elements of a successful stop
work authority policy include employee recognition, empowering
employees in the stop work authority process, ensuring leadership
supports the program, identifying expectations, promoting positive
outcomes and correct application, and publishing effective stop work
authority efforts as examples for employees.\235\
---------------------------------------------------------------------------

    \235\ Bush, J., ``Stop-Work Authority,'' last modified July 26,
2018, https://www.safetyandhealthmagazine.com/articles/17242-stop-
work-
authority#:~:text=Stop%2Dwork%20authority%20permits%20any,Health%20in
sist%20on%20its%20use.
---------------------------------------------------------------------------

    In a 2018 study, Weber et al. examined the factors that support or
hinder stopping work for safety.\236\ Thirty-four workers from
different roles in the LPG industry in Australia were interviewed in
focus groups. The study found that having a stop work policy supports
stopping work for safety and that support from management positively
affects its use. It also found that the training, experience, and
seniority of employees were factors in employees choosing whether to
use the stop work authority. The study concluded that a stop work
authority is a starting point. To encourage, promote, and alleviate
drawbacks to stopping work, a stop work authority has to be embedded in
and supported by a work environment that provides the necessary
conditions for people to discontinue work. The authors believe this can
only be achieved when company leadership collaborates with its
workforce to identify hazards and help resolve the challenges of
everyday work.
---------------------------------------------------------------------------

    \236\ David E. Weber et al., ``We Can Stop Work, but then
Nothing Gets Done.' Factors that Support and Hinder a Workforce to
Discontinue Work for Safety,'' Safety Science 108 (2018): 149-160,
doi: 10.1016/j.ssci.2018.04.032.
---------------------------------------------------------------------------

    In a 2021 study, Havinga et al. continued the conversation about
factors that influence stopping work.\237\ Taking an ethnographic
approach, the researchers followed 10 employees of a municipal water
provider over 3 months. The aim of the study was to understand how
decisions to stop work were made and when work was expected to be
stopped based on procedures. The study concluded that these employees
did not generally find stop work decisions to be important or
difficult, as they often found an alternative method for completing
work, rather than stopping work completely. Procedures were linked to
considerations of stopping work, but they were unlikely to lead to a
decision to stop work. These findings challenge the idea that stop work
decisions are best supported through procedures, training, and
policies, as these interventions suggest that workers consider stop
work decisions difficult and significant. An alternative strategy to
encourage workers to stop work in dangerous situations would be for
organizations to provide alternative methods for workers to complete a
job.
---------------------------------------------------------------------------

    \237\ Jop Havinga, Kym Bancroft, and Andrew Rae, ``Deciding to
Stop Work or Deciding How Work Is Done?'' Safety Science 141 (2021):
105334, doi: 10.1016/j.ssci.2021.105334.
---------------------------------------------------------------------------

    EPA recognizes, and other industry commenters in the past have
concluded,\238\ that the current RMP rule, although not containing
explicit requirements for stop work, already addresses many aspects of
a stop work authority that provides means to identify and resolve
imminent operational risks before they occur. For example, operating
procedures developed under the RMP rule (40 CFR 68.69) address how and
under what circumstances a facility should conduct normal and temporary
operations, emergency shutdown (including the assignment of a
responsible qualified operator to do so), emergency operations, and
normal shutdown. Operating procedures should also address when process
operations deviate from operating limits, steps to correct and avoid
deviation, safety and health conditions to consider, and safety systems
and their functions. Mechanical integrity requirements (40 CFR
68.73(e)) ensure equipment deficiencies that are outside acceptable
limits are corrected in a safe and timely manner or before further use
to assure safe operation. The associated trainings for operating
procedures (40 CFR 68.71) and maintenance (40 CFR 68.73(c)) are key to
ensuring that those processes are well understood. EPA believes all
these components create a stop work authority as they address the
circumstances and procedures to identify unsafe operations.
Furthermore, EPA believes each facility's individual operating
procedures and approach to correcting equipment deficiencies give
owners and operators the flexibility to design a stop work authority
for their process operations that remains adaptable to the procedures
already in place.
---------------------------------------------------------------------------

    \238\ EPA-HQ-OEM-2014-0328-0605.
---------------------------------------------------------------------------

    With the current provisions in the RMP rule, EPA believes many
facilities with RMP processes already have the appropriate measures to
identify, reduce, and mitigate the threat of an accidental release
before it happens. The fact that only a small number of facilities have
RMP accidents further supports this. However, RMP accidents do still
occur. According to the Agency's RMP accident data, among the most
commonly instituted changes after RMP-reportable accidents were
improved or upgraded equipment, revised training, and revised operating
procedures.\239\ Rather than make significant changes to these specific
prevention program areas, EPA believes a better approach would be to
ensure facilities' employees are aware of authorities to manage unsafe
work, one of the last lines of defense to protect human health and the
environment from a catastrophic release.
---------------------------------------------------------------------------

    \239\ EPA Office of Land and Emergency Management, Risk
Management Plan RMP*eSubmit User's Manual (August 2019), https://www.epa.gov/sites/default/files/2019-03/documents/rmpesubmit_user_guide_-_march_2019_final_0.pdf.
---------------------------------------------------------------------------

    Therefore, EPA is proposing to require at 40 CFR 68.83(d) that the
written plan of action regarding the implementation of the employee
participation for Program 3 processes include and ensure effective
methods are in place so that employees and their representatives have
authority to:
     Refuse to perform a task when doing so could reasonably
result in a catastrophic release.
     Recommend to the operator in charge of a unit that an
operation or process be partially or completely shut down, in
accordance with procedures established in 40 CFR 68.69(a), based on the
potential for a catastrophic release.
     Allow a qualified operator in charge of a unit to
partially or completely shut down an operation or process, in
accordance with procedures established in 40 CFR 68.69(a), based on the
potential for a catastrophic release.

    Additionally, EPA is proposing to require that stop work authority
processes within employee participation plans outline how employers
should document and respond, in writing and within 30 days, to employee
reports of hazards or employee recommendations to shut down or
partially shut down a process.
iv. Accident and Non-Compliance Reporting
    Accident history reporting provides an avenue for disseminating
valuable information about potential hazards and steps needed to
prevent future accidents. Accident information submitted within a risk
management plan, as required by the 5-year accident history provisions,
includes information that could help states and EPA learn which types
of sources are having problems, understand more about accident causes,
track trends in chemical accidents and prevention activities, monitor
the progress of risk management programs, focus future prevention
activities, and avoid overregulation of industry sectors or substances.
These important activities depend on accurate and timely information
provided by accident reports.
    Current accident reporting provisions in the RMP rule (40 CFR
68.42(a)) require that 5-year accident histories include all accidental
releases from covered processes that resulted in deaths, injuries, and
significant property damage onsite, and known offsite deaths, injuries,
evacuations, sheltering in place, property damage, and environmental
damage.
    When the RMP rule was first promulgated, it required that when a
risk management plan was updated per 40 CFR 68.190, it had to contain
an updated 5-year accident history, including all the accidents that
met the 40 CFR 68.42 reporting criteria and those that occurred within
5 years of the date on which the updated risk management plan was
submitted. On April 9, 2004, EPA published a final rule that amended
the accident history reporting requirement and certain other provisions
of the Risk Management Program.\240\ From that date, if an accident
occurs that meets the reporting criteria, it must be reported in the
RMP 5-year accident history within 6 months of the accident (as
required by 40 CFR 68.195) unless it is included in a risk management
plan update prior to that time. EPA took this action so that
government, industry, and the public would be more quickly alerted to
the possibility of similar accidents occurring elsewhere.\241\
---------------------------------------------------------------------------

    \240\ EPA, Accidental Release Prevention Requirements: Risk
Management Program Requirements Under Clean Air Act Section
112(r)(7); Amendments to the Submission Schedule and Data
Requirements, 40 CFR part 68 (69 FR 18819; April 9, 2004), https://www.govinfo.gov/content/pkg/FR-2004-04-09/pdf/04-7777.pdf.
    \241\ EPA Office of Solid Waste and Emergency Response,
``Chapter 3: Five-Year Accident History,'' General Guidance on Risk
Management Programs for Chemical Accident Prevention (March 2009),
https://www.epa.gov/sites/default/files/2013-10/documents/chap-03-final.pdf.
---------------------------------------------------------------------------

    Commenters from the 2021 listening sessions drew attention to the
issue of RMP-reportable accidents that have not been reported or have
been reported late. One commentor specifically provided a data analysis
showing the lag in reporting.\242\ In recognition of these comments,
EPA further examined RMP accident history reporting from 2004 to 2020,
analyzing accidents where either the risk management plan correction
date or the full risk management plan submission date was more than 6
months from the date of the accident. This analysis found 163 RMP
accidents reported late out of a total of 2,436 total accidents
reported over this period (i.e., a 6.7 percent late accident reporting
rate). One commentor indicated that there seems to be little or no
consequence for failures and delays in accident reporting. This may
prevent EPA from performing relevant inspections and requiring
corrective action to prevent serious harm.\243\
---------------------------------------------------------------------------

    \242\ EPA-HQ-OLEM-2021-0312-0058.
    \243\ EPA-HQ-OLEM-2021-0312-0149.
---------------------------------------------------------------------------

    Other commenters from the 2021 listening sessions, including
advocacy groups and individual commenters, recommended specific changes
to the RMP rule addressing worker involvement in reporting areas of RMP
non-compliance. For example, an individual commenter stated that EPA
must strengthen worker participation, encourage workers to take action
to protect safety and avoid incidents, ensure fast compliance deadlines
for all requirements, and require more reporting to EPA on compliance.
Some commenters, including advocacy groups and an individual commenter,
emphasized that an updated RMP rule must address near-miss reporting by
workers at RMP facilities.\244\ A few of these commenters added that
near-miss reporting must be anonymous.\245\ One of these advocacy
groups and an individual commenter suggested that EPA provide a hotline
that allows workers, contractors, and anyone else with relevant
information to report anonymous near-miss and safety information
directly to the Agency, remarking that this would be a valuable service
that would help ensure that EPA gets important information
quickly.\246\
---------------------------------------------------------------------------

    \244\ EPA-HQ-OLEM-2021-0312-0035; 0032, 0020, 0170.
    \245\ EPA-HQ-OLEM-2021-0312-0035; 0035, 0170, 0032.
    \246\ EPA-HQ-OLEM-2021-0312-0076.
---------------------------------------------------------------------------

    EPA is also concerned about other areas of RMP non-compliance, as
compliance with the regulations helps facilities operate and maintain a
safe facility and consistently implement recognized good engineering
practices that prevent accidents from occurring. EPA inspections have
revealed significant non-compliance and an ongoing need for additional
compliance assistance to decrease the likelihood of chemical accidents
and reduce the risk to human health and the environment. Over the last
5 fiscal years (October 2017 to September 2021), RMP and General Duty
Clause (GDC) inspections resulted in a 71 percent rate of action taken
by facilities to address issues of non-compliance with the RMP rule and
GDC.247 248
---------------------------------------------------------------------------

    \247\ EPA, ``General Duty Clause Under the Clean Air Act Section
112(r)(1),'' last modified December 21, 2021, https://www.epa.gov/rmp/general-duty-clause-under-clean-air-act-section-112r1.
    \248\ EPA, ``National Compliance Initiative: Reducing Accidental
Releases at Industrial and Chemical Facilities,'' last modified May
18, 2021, https://www.epa.gov/enforcement/national-compliance-initiative-reducing-accidental-releases-industrial-and-chemical.
---------------------------------------------------------------------------

    Further, EPA recognizes the right workers have to participate in
implementing agency inspections. On February 11, 2011, EPA issued a
memo that outlined EPA's policy on involvement of facility employees
and employee representatives in onsite compliance inspections as
provided by CAA section 112(r)(6)(L). \249\ This section states that
when EPA or another authorized agency conducts an inspection of a
facility, employees and their representatives shall have the same
rights to participate in the inspection, as provided in the
Occupational Safety and Health Act [29 U.S.C. 651 et seq.] \250\ CSB
also recently highlighted this authority of employees in a board
addendum on October 24, 2018.\251\ The policy sets out to ensure
opportunities for the participation of workers in the agency's
investigative process.
---------------------------------------------------------------------------

    \249\ EPA, Involvement of Employees and Employee Representatives
in Clean Air Act (CAA) Section 112(r) On-Site Compliance
Inspections--Final Guidance (February 11, 2021), https://www.epa.gov/sites/default/files/2013-10/documents/clean_air_memo.pdf.
    \250\ OSHA, Representatives of Employers and Employees, 1903.8
(n.d.), https://www.osha.gov/laws-regs/regulations/standardnumber/1903/1903.8.
    \251\ CSB, Worker Participation in Investigations--Board Order
Addendum 40a (October 24, 2018), https://www.csb.gov/assets/record/bo40a.pdf.

---------------------------------------------------------------------------

    After considering the issues of late reporting of accidents, non-
reporting of other compliance issues, and the role workers could plan
in promoting compliance, EPA is proposing to require that facilities
with Program 3 processes include in their employee participation plans
explicit language addressing worker participation and reporting, along
with information for how to report RMP-reportable accidents or related
RMP non-compliance issues. Specifically, EPA is proposing to add
additional language at 40 CFR 68.83 to indicate that written plans
should include information for anonymously reporting unaddressed
hazards that could lead to a catastrophic release, unreported RMP-
reportable accidents, or any other issue of non-compliance with 40 CFR
part 68. EPA is also proposing to add an additional section under
subpart C for owners and operators of Program 2 processes to implement
an employee participation plan that addresses these issues. Although
facilities with Program 2 processes account for only approximately 15
percent (n = 357 out of 2,436) of all RMP-reportable accidents (83
percent (n = 2,011 out of 2,436) are Program 3; 3 percent (n = 68 out
of 2,436) are Program 1)), their accidents still have the potential to
affect public receptors.\252\ In 2017, for example, a chlorine release
from a Program 2 process in Texas caused 20 people to require medical
treatment and 125 people to evacuate.\253\ In 2018, a facility with a
Program 2 process in Iowa had an ammonia release that caused 500
members of the public to evacuate and 45 people to shelter in
place.\254\
---------------------------------------------------------------------------

    \252\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
    \253\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
    \254\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
---------------------------------------------------------------------------

    EPA expects facilities to use available resources for their
specific process operations and other appropriate RMP rule guidance to
include the new anonymous reporting provisions in employee
participation plans. EPA resources to help owners and operators
understand what is required and how to enforce provisions include:
     EPA's Report Environmental Violations--an online portal
for reporting possible violations of environmental laws and
regulations.\255\
---------------------------------------------------------------------------

    \255\ EPA, ``Report Environmental Violations,'' last modified
January 26, 2022, https://echo.epa.gov/report-environmental-violations.
---------------------------------------------------------------------------

     Guidance for Facilities on Risk Management Programs--an
online resource hub for helping the regulated community understand the
RMP rule.\256\
---------------------------------------------------------------------------

    \256\ EPA, ``Guidance for Facilities on Risk Management Programs
(RMP),'' last modified December 20, 2021, https://www.epa.gov/rmp/guidance-facilities-risk-management-programs-rmp.
---------------------------------------------------------------------------

     Region 7 Risk Management Program Webinars--webinar slides
that discuss the requirements of CAA 112(r)(7), common compliance
pitfalls, preparing for inspections, and case studies. \257\
---------------------------------------------------------------------------

    \257\ EPA, ``Region 7 Risk Management Program Webinars,'' last
modified February 24, 2021, https://www.epa.gov/rmp/region-7-risk-management-program-webinars.
---------------------------------------------------------------------------

     ``Guidance for Conducting Risk Management Program
Inspections under Clean Air Act Section 112(r)''--guidance for
implementing agencies explaining how to conduct inspections of
facilities subject to RMP.\258\
---------------------------------------------------------------------------

    \258\ EPA Office of Solid Waste and Emergency Response and EPA
Office of Enforcement and Compliance Assurance, Guidance for
Conducting Risk Management Program Inspections under Clean Air Act
Section 112(r) (January 2011), https://www.epa.gov/sites/default/files/2013-10/documents/clean_air_guidance.pdf.
---------------------------------------------------------------------------

     ``Final Combined Enforcement Policy for Clean Air Action
Sections 112(r)(1), 112(r)(7) and 40 CFR part 68, 2012''--guidance for
determining the appropriate enforcement response and penalty amount for
violations in failing to comply with RMP and GDC.\259\
---------------------------------------------------------------------------

    \259\ EPA, Transmittal of the Final Combined Enforcement Policy
for Clean Air Act Sections 112(2)(1), 112(r)(7) and 40 C.F. R. Part
68 (June 20, 2012), https://www.epa.gov/sites/default/files/documents/112rcep062012.pdf.
---------------------------------------------------------------------------

     EPA chemical accident prevention publications--
publications that address the specific need for safety and chemical
emergency and preparedness measures based on enforcement and lessons
learned from accidents.\260\
---------------------------------------------------------------------------

    \260\ EPA, ``Chemical Accident Prevention Publications,'' last
modified November 16, 2021, https://www.epa.gov/rmp/chemical-accident-prevention-publications#advisories.
---------------------------------------------------------------------------

    EPA recognizes that workers may often overlook hazards or areas
that they know are non-compliant with standards for fear that it will
affect their employment. This may particularly be the case for the stop
work and accident reporting provisions. The Agency reminds owners and
operators that OSHA enforces whistleblower protections provided under
the CAA, the Occupational Safety and Health Act, and other Federal
laws. Further information about those rights can be found at https://www.whistleblowers.gov.
    In addition to employee participation, CCPS' RBPS guidance
identifies compliance with standards as a key element in committing to
process safety. It indicates that this element helps identify, develop,
acquire, evaluate, disseminate, and provide access to applicable
standards, codes, regulations, and laws that affect a facility and the
process safety requirements applicable to a facility.\261\ As with the
other new provisions proposed in this employee participation section,
EPA is proposing these RMP accident and non-compliance employee
participation provisions because it wants to ensure that owners and
operators who have not fully developed strong employee participation
programs have further measures in place to ensure their commitment to
process safety in order to prevent and minimize accidental releases of
hazardous substances. EPA seeks comment on these proposed RMP accident
and non-compliance employee participation provisions. EPA also seeks
comments on whether owners and operators should distribute an annual
written or electronic notice to employees that employee participation
plans and other RMP information is readily accessible upon request and
provide training for those plans and how to access the information.
---------------------------------------------------------------------------

    \261\ CCPS, Guidelines for Risk Based Process Safety (March
2007), https://www.aiche.org/resources/publications/books/guidelines-risk-based-process-safety.
---------------------------------------------------------------------------

B. Emergency Response

1. Review of Emergency Response Notification, Detection, and Response
    Subpart E of the RMP rule, the emergency response provisions,
applies to facilities with Program 2 or 3 processes. These provisions
require owners or operators of regulated facilities with Program 2 or 3
processes to coordinate with local response authorities and, in some
cases, develop an emergency response program in accordance with 40 CFR
68.95 to address how the owner or operator of the facility will respond
to accidental releases. The rule requires the owner or operator to
prepare and implement an emergency response program to protect public
health and the environment, unless the stationary source is a ``non-
responding'' facility included in the community emergency response plan
developed under section 303 of the Emergency Planning and Community
Right-to-Know Act (EPCRA) (for sources with regulated toxic substances)
and has coordinated response actions with the local fire department
(for sources with only regulated flammable substances).

An owner or operator who needs to develop an emergency response program
(i.e., be a ``responding'' facility) will need to include the following
elements in that program:
     An emergency response plan that includes procedures for
informing the public and the appropriate Federal, State, and local
emergency response agencies about accidental releases; documentation of
proper first aid and emergency medical treatment necessary to treat
accidental human exposures; and procedures and measures for emergency
response after an accidental release of a regulated substance.
     Procedures for the use of emergency response equipment and
for its inspection, testing, and maintenance.
     Training for employees.
     Procedures to review and update the emergency response
plan to reflect changes at the stationary source and ensure that
employees are informed of changes.
    The owner or operator must also coordinate with local response
authorities on the emergency response plan.
    Facility owners or operators who rely on local responders to
respond to an accidental release (i.e., a ``non-responding'' facility)
when the stationary source has been included in the community emergency
response plan developed under section 303 of EPCRA (for sources with
regulated toxic substances) or who have coordinated response actions
with the local fire department (for sources with only regulated
flammable substances and without regulated toxic substances) are not
required to develop an emergency response program. However, owners or
operators must also ensure that appropriate notification mechanisms are
in place to notify emergency responders when there is a need for a
response and must perform annual emergency response coordination and
notification activities.
    An RMP-regulated facility must indicate in its risk management plan
whether it is a non-responding facility (i.e., by indicating compliance
with mandatory elements of emergency response plans required in 40 CFR
68.95(a)(1)) and identify the plans and procedures in place should an
accidental release occur. EPA's review of the RMP database has shown
that approximately 47 percent of RMP facilities claim to be non-
responding facilities. However, during facility inspections, EPA has
often found that facilities either are not included in the community
emergency plan or have not properly coordinated response actions with
local authorities. State and local response officials echoed this
concern during the 2013 to 2014 listening sessions conducted under E.O.
13650, in responses to the 2014 RMP RFI,\262\ and again in the 2021
listening sessions.\263\
---------------------------------------------------------------------------

    \262\ EPA-HQ-OEM-2014-0328-0679; 0641.
    \263\ EPA-HQ-OLEM-2021-0312-0072.
---------------------------------------------------------------------------

    New emergency response requirements added in the 2017 amendments
rule and the 2019 reconsideration rule offer opportunities to address
some of these concerns, such as coordination meetings with local
responders and notification, tabletop, and field exercises.\264\ In
particular, EPA believes the annual coordination meeting and
notification exercises will provide a wide range of useful outcomes,
including information sharing and evaluation of the effectiveness of
notification, evacuation, and sheltering systems and procedures. The
annual coordination requirement is expected to help make continual
improvements to emergency response systems and procedures, as
appropriate.
---------------------------------------------------------------------------

    \264\ EPA, Accidental Release Prevention Requirements: Risk
Management Programs Under the Clean Air Act, 84 FR 69893-69906
(December 19, 2019).
---------------------------------------------------------------------------

    Nevertheless, in reviewing opportunities to continually improve the
effectiveness of emergency responses for RMP accidents, EPA reviewed
additional data points from the RMP database and carefully considered
comments from the 2021 listening sessions. After reviewing the data,
EPA believes that more can be done to improve emergency responses,
particularly in the field of timely notification of releases to the
public and detection of those releases. The following three sections
provide an overview of the RMP regulations and includes background
information on accidental release notifications to both the surrounding
community and local emergency response agencies. These sections serve
to support EPA's proposed amendments to the emergency response
requirements.
a. Concerns About Notification of Accidents
    Communities surrounding RMP facilities need information to
appropriately prepare for and respond to potential emergencies related
to the facilities. Yet commentors from the 2021 listening sessions
pointed out that they were first notified of chemical releases
impacting their homes and families hours after the release via
television news or social media; this delay in notification has created
fear among the public.\265\
---------------------------------------------------------------------------

    \265\ EPA-HQ-OLEM-2021-0312-0072; 0020.
---------------------------------------------------------------------------

    During the 2021 listening sessions, the National Association of
SARA (Superfund Amendments and Reauthorization Act) Title III Program
Officials (NASTTPO) provided comments containing recommendations to
remedy this, urging EPA to require facilities to provide community
notification for releases that have the potential to cross a facility's
fenceline. NASTTPO argued that communities must receive more timely
notification of chemical releases and accidents if they are to act in
the ways LEPCs, emergency planners, and responders emphasize through
public outreach and education. While only local response authorities
can officially call for evacuations or shelter-in-place responses, the
fundamental obligation to inform the public about whether a release has
occurred--and about the magnitude of the release--falls upon the
facility owner or operator, as they will have the best information
available. NASTTPO also stated that education and awareness programs by
LEPCs and others on protective actions for chemical release events
cannot be successful unless the people who are expected to act receive
timely and adequate warning information; the facility owner or operator
must be the source of this information.\266\
---------------------------------------------------------------------------

    \266\ EPA-HQ-OLEM-2021-0312-0072.
---------------------------------------------------------------------------

    While EPA acknowledges that the accident rate from RMP facilities
has declined, EPA also recognizes that approximately 39 percent (n =
962) of reported accidents from 2004 to 2020 had offsite impacts.
Further analysis shows that no offsite responders were notified in 192
of the 962 accidents with offsite impacts (19 percent). Furthermore,
approximately 19 percent (n = 36) of the facilities with the 192
accidents self-identified as non-responders and relied on local
responders to handle the release and public communication efforts. To
be clear, that means that in these 36 incidents, there was no
notification by the facilities to the entities they had designated
would respond to incidents per the submitted risk management plans.
Moreover, only 10 of these 192 accident investigations indicated that
there was a revised emergency response plan because of the accident.
These data points suggest that there is still a disconnect between the
roles of regulated facilities and local responders, particularly when
there are offsite impacts or the threat of such impacts.\267\
---------------------------------------------------------------------------

    \267\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).

---------------------------------------------------------------------------

    Responding facilities also had problems notifying the public of
releases, even though they are required to develop procedures for
informing the public and the appropriate Federal, State, and local
emergency response agencies. Eighty-one percent (n = 156) of responding
facilities still did not notify local responders when there were
offsite impacts.\268\ Per 40 CFR 68.95(c), responding facilities are
required to promptly provide local emergency response officials with
information necessary for developing and implementing the community
emergency response plan.\269\
---------------------------------------------------------------------------

    \268\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
    \269\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
---------------------------------------------------------------------------

    When local responders are not notified, they cannot implement the
community response plan that communities rely on for their safety. For
example, on June 10, 2014, in St. David, Cochise County, Arizona,
Apache Nitrogen Products Inc. (ANPI) released 52,000 pounds of
anhydrous ammonia from a rail car when a sight glass in the ammonia
piping broke. The community alarm process identified in the facility's
emergency response program required the deployment of an employee to
drive to the facility's fenceline and use a handheld ammonia monitor to
determine if the alarm should be activated. However, the facility did
not carry out the employee deployment and fenceline ammonia monitoring
needed for action, so appropriate notification did not occur. This
facility's emergency response program exemplifies that current
compliance to the RMP rule's existing public notification provision can
be ineffective and that notifications can improve. In a subsequent
enforcement action, in addition to requiring upgraded ammonia detection
devices, EPA had the facility owner develop response procedures and
training. The procedures require relevant ANPI employees and
contractors to request that Cochise County send an alert to mobile
phones in areas where a release of anhydrous ammonia may reach public
receptors. This community notification system must also provide
appropriate instructions to the public, such as shelter-in-place or
evacuation warnings.\270\
---------------------------------------------------------------------------

    \270\ Plaintiff v. Apache Nitrogen Products, Inc., an Arizona
Corporation, No. 4:20-cv-00463-BGM, Document 3-1 (October 28, 2020),
https://www.justice.gov/enrd/consent-decree/file/1332206/download.
---------------------------------------------------------------------------

    CSB also highlighted these emergency response concerns in a 2018
safety digest: ``Emergency Planning and Response--The Importance of
Preparation, Training and Communication.'' \271\ The digest gives
examples from four major catastrophic accidents: the Bayer Crop Science
pesticide waste tank explosion in Institute, West Virginia in 2008;
\272\ the West Fertilizer explosion and fire in West, Texas, in 2013;
\273\ the MGPI Processing, Inc., toxic chemical release in Atchison,
Kansas, in 2016; \274\ and the Arkema Inc. chemical plant fire in
Crosby, Texas, in 2017.\275\ These examples highlight the importance of
an effective emergency response to prevent injuries and fatalities from
chemical accidents. The digest further highlights lessons learned from
at least 16 CSB accident investigations from 2010 to 2018 wherein there
was ineffective emergency response training, planning, and
communication between companies, emergency responders, and the
community. Among others, some of the key lessons were:
---------------------------------------------------------------------------

    \271\ CSB, Safety Digest: Emergency Planning and Response
(2018), https://www.csb.gov/assets/1/17/csb_emerg_resp_safety_digest.pdf?16429.
    \272\ CSB, ``Bayer CropScience Pesticide Waste Tank Explosion,''
last modified January 20, 2011, https://www.csb.gov/bayer-cropscience-pesticide-waste-tank-explosion/.
    \273\ CSB, ``West Fertilizer Explosion and Fire,'' last modified
January 28, 2016, https://www.csb.gov/west-fertilizer-explosion-and-fire-/.
    \274\ CSB, ``MGPI Processing, Inc. Toxic Chemical Release,''
last modified January 3, 2018, https://www.csb.gov/mgpi-processing-inc-toxic-chemical-release-/.
    \275\ CSB, ``Arkema Inc. Chemical Plant Fire,'' last modified
May 24, 2018, https://www.csb.gov/arkema-inc-chemical-plant-fire-/.
---------------------------------------------------------------------------

     There must be effective communications and information
sharing between facilities with hazardous chemicals, emergency
responders, and community members before, during, and after
emergencies.
     Communities should have redundant communication systems in
place to notify residents of a chemical emergency.
b. Release Detection
    CAA section 112(r)(7)(B)(ii) clearly anticipated a potential
regulatory requirement for facilities to detect accidental releases of
their substances to protect human health and the environment.
Conforming to the performance-based nature of the RMP rule, the
existing regulations allow facility owners or operators to develop
mechanisms to detect releases and notify local authorities and the
public--either directly or through local authorities--of releases at
their facility.
    Currently, RMP facilities are required to collect information and
evaluate how they will detect releases at their facility. For example,
facilities with Program 2 processes are required in their hazard review
to identify any steps used or needed to detect or monitor releases (40
CFR 68.50(a)(4)). Facilities with Program 3 processes are required to
identify detection systems when compiling their process safety
information (40 CFR 68.65(d)(1)(viii)) and address appropriate
application of detection methodologies to provide early warning of
releases in their PHA (40 CFR 68.67(c)(3)).
    RMP facilities with Program 2 and 3 processes are also required to
report in their risk management plans, the monitoring and detection
systems in use for their regulated processes (40 CFR 68.170(e)(5) and
68.175(e)(5)). When reporting in their risk management plans, owners
and operators can select up to four categories that apply to how
releases are detected from their processes: ``process area detectors'',
``perimeter monitors'', ``none'', or ``other monitoring/detection
system in use''. When process area detectors or perimeter monitors are
selected, no further information is collected. To better understand
electronic detection methodologies available and in use among RMP
facilities, EPA is proposing to require owners and operators to input,
in an open text field in the risk management plan, specific information
on their process area detectors and perimeter monitor technologies and
models in use to detect RMP-regulated substances.
    Due to the numerous RMP-regulated substances--and different
technologies and methods available of accurately detecting those
substances--EPA expects facilities to identify the most effective
method of detecting releases of their specific substances, from their
specific process operations, based on RAGAGEP. For example, EPA would
expect facilities with anhydrous ammonia in ammonia refrigeration
systems to adopt IIAR 9-2020, ``Minimum System Safety Requirements for
Existing Closed-Circuit Ammonia Refrigeration Systems'' \276\
(specifically, section 7.3.12), to address the specific requirements
for ammonia detection and alarms in machinery rooms. For water and
wastewater treatment facilities using gaseous chlorine, EPA would
expect adoption of the Chlorine Institute's ``Pamphlet 73, Atmospheric
Monitoring Equipment for Chlorine

(2021)'' \277\ to ensure best practices for detecting chorine. For
petroleum refineries using HF in alkylation units, an appropriate
guideline is API's ``Safe Operation of Hydrofluoric Acid Alkylation
Units (2021)'' \278\ (section K.3.2), which covers how to provide early
and reliable HF detection.
---------------------------------------------------------------------------

    \276\ IIAR, ANSI/IIAR Standard 9-2020 (2020).
    \277\ The Chlorine Institute, Pamphlet 73) Atmospheric
Monitoring Equipment for Chlorine (2021), https://bookstore.chlorineinstitute.org/pamphlet-73-atmospheric-monitoring-equipment-for-chlorine.html?Session_ID=66da3abed669d2ecb4448e5c1c17ba5e.
    \278\ API, Recommended Practice 751 (2021), https://www.api.org/oil-and-natural-gas/health-and-safety/refinery-and-plant-safety/process-safety/process-safety-standards/rp-751.
---------------------------------------------------------------------------

c. Emergency Response Guidance
    Current widely accepted industry guidance indicates that timely
notification is necessary during hazardous chemical release events and
that relying only on emergency responders, particularly those with
inadequate resources, may not be enough to protect the public.
    The NFPA 1600[supreg], ``Standard on Continuity, Emergency, and
Crisis Management (2019),'' \279\ indicates that entities shall develop
a plan and procedures to disseminate information to--and respond to
requests for information from--both internal and external audiences. It
states that the entity should determine its warning, notification, and
communication needs; in addition, the systems must be reliable, undergo
testing, and include issuing warnings through authorized agencies. It
also states that facilities should establish and implement a process
whereby all appropriate stakeholders have a common reference for the
types of incidents that could adversely affect people, property,
operations, or the environment and are able to warn, notify, and report
on the circumstances.
---------------------------------------------------------------------------

    \279\ NFPA, NFPA 1600: Standard on Continuity, Emergency, and
Crisis Management (2019), https://www.nfpa.org/codes-and-standards/all-codes-and-standards/list-of-codes-and-standards/detail?code=1600.
---------------------------------------------------------------------------

    The American Society for Testing and Materials (ASTM)
International's 2020 ``Standard Guide for Coordination and Cooperation
between Facilities, Local Emergency Planning Committees, and Emergency
Responders'' (ASTM E3241-20) \280\ aims to provide increased
coordination and cooperation among stakeholders to develop better
community preparedness for accidents involving hazardous chemicals. The
standard indicates that facilities must be part of the preparedness
effort because of their greater expertise on the properties of the
hazardous chemicals present, as well as their knowledge of operating
systems and procedures, hazard assessments, and their emergency
response capabilities. ASTM E3241-20 specifically indicates that
facilities must participate in the development of public warning and
evacuation procedures and that they must collaborate with local
emergency responders to mutually develop protocols for public warning
and orders to shelter or evacuate.
---------------------------------------------------------------------------

    \280\ ASTM International, ``Standard Guide for Coordination and
Cooperation Between Facilities, Local Emergency Planning Committees,
and Emergency Responders,'' last modified May 25, 2020, https://www.astm.org/e3241-20.html.
---------------------------------------------------------------------------

    The United Nations Environment Programme's 2015 ``Awareness and
Preparedness for Emergencies at the Local Level'' handbook \281\ offers
processes to improve community awareness and preparedness for
technological hazards and environmental emergencies. The handbook
indicates that facility owners and operators are fully responsible for
accident prevention and emergency response procedures for their
operations. The handbook also states that the facility will best
understand the hazards and risks, protective measures, and response
procedures--and that these must be shared both during preparedness
planning and during the response to any accident.
---------------------------------------------------------------------------

    \281\ United Nations Environment Programme, Awareness and
Preparedness for Emergencies at Local Level (2015), https://www.preventionweb.net/files/45469_unepawarenesspreparednessemergencie.pdf.
---------------------------------------------------------------------------

    These guidance documents outline the importance of having a
coordinated effort to ensure public notification of accidental
releases. They also encourage facility owners and operators to be
accountable in their role for providing accurate information to the
necessary authorities to ensure appropriate data are shared with the
people who are affected by the release.
2. Proposed Modification and Amplifications of Emergency Response
Requirements
a. Proposed Regulations To Address Community Notification of RMP
Accidents
    EPA is proposing to amend 40 CFR 68.90(b) by adding a requirement
necessary for RMP facility owners and operators to designate their
facility as a non-responding facility. The proposed provision would
require facilities to develop and implement, as necessary, procedures
for informing the public and the appropriate Federal, State, and local
emergency response agencies about accidental releases of RMP-regulated
substances and ensure that a community notification system is in place
to warn the public within the area threatened by a release. Expanding
the recordkeeping and implementation aspect of this provision to non-
responding facilities would help ensure that all facilities subject to
subpart E, have documented knowledge of the public notification process
that would occur when there is an accidental release at the facility.
Consistent with the overall performance-based nature of the RMP rule,
the owner or operator of a facility has some flexibilities in the
development of its procedures so long as the procedures meet the
performance-based requirement to inform and notify the public and
response agencies. This provides facilities with flexibility in the
design of the procedures so long as the procedures are implemented in
the event of an accidental release.
    The proposed amendment would also help clarify the facility's role
in the implementation of that notification process by requiring the
owner or operator to provide the information needed to initiate a
public release notification. EPA anticipates that in most cases, these
notification procedures may be identical to those coordinated with and
relied upon by local public responders. EPA expects that this proposed
provision, in combination with the required annual emergency
coordination meetings and notification exercises, would enhance
coordinated notification to the public and improve documented
accountability for the notification process. EPA is also proposing that
these notification procedures be available by the facility upon request
to the public living in close proximity (approximately within 6 miles)
to RMP facilities, to help ensure that members of the public are aware
of the steps the facility has taken to notify them when a release
occurs. Further details pertaining to information available to the
public is discussed in section IV.C of this preamble.
    EPA is also proposing to amend 40 CFR 68.95(a)(1)(i), which
currently requires responding facilities to have procedures for
informing the public and the appropriate Federal, State, and local
emergency response agencies about accidental releases. This proposed
amendment would ensure that a community notification system is in place
in order to quickly and efficiently warn the public within the area
that could be threatened by a release.
    EPA can expect facilities to ensure that a community notification
system is available because the Federal Emergency Management Agency
(FEMA) has established the Integrated

Public Alert & Warning System (IPAWS) for community notification.\282\
This system provides authenticated emergency and life-saving
information to the public through mobile phones using wireless
emergency alerts. It also provides alerts to radio and television via
the Emergency Alert System and on the National Oceanic and Atmospheric
Administration's Weather Radio. The Emergency Alert System devices
found at radio, TV and cable stations can support multiple languages
and wireless Emergency Alerts can support both English and
Spanish.\283\ EPA believes that the presence of State and/or local
IPAWS alerting authorities--with the designated authority to alert and
warn the public when there is an impending natural or human-made
disaster, threat, or dangerous or missing person \284\--in all 50
states provides the necessary infrastructure for facilities to ensure
that a community notification system is operational within any impact
zones of releases that occur from their facility. The most applicable
alerts through this system would be the imminent threat and public
safety alerts. Imminent threat alerts include natural or human-made
disasters, extreme weather, active shooters, and other threatening
emergencies that are current or emerging. Public safety alerts contain
information about a threat that may not be imminent, or about an
imminent threat that has occurred.\285\
---------------------------------------------------------------------------

    \282\ FEMA, ``Integrated Public Alert & Warning System,'' last
modified January 27, 2022, https://www.fema.gov/emergency-managers/practitioners/integrated-public-alert-warning-system.
    \283\ FEMA, ``Alerting People with Disabilities and Access and
Functional Needs,'' accessed March 17, 2022, https://www.fema.gov/es/emergency-managers/practitioners/integrated-public-alert-warning-system/public/alerting-people-disabilities.
    \284\ FEMA, ``Alerting Authorities,'' last modified January 6,
2022, https://www.fema.gov/emergency-managers/practitioners/integrated-public-alert-warning-system/public-safety-officials/alerting-authorities.
    \285\ FEMA, TIP 38: Imminent Threat vs. Public Safety (2021),
https://www.fema.gov/sites/default/files/documents/fema_ipaws-tip-38-it-vs-ps.pdf.
---------------------------------------------------------------------------

    EPA expects local responding authorities to notify the community as
authorized through IPAWS. In the RMP General Guidance, EPA states that
although a non-responding facility is not responsible for developing
emergency response capabilities, it is responsible for ensuring
effective emergency response to any releases at the facility. If local
public responders are not capable of providing such response, EPA
guidance urges facilities to take steps to ensure that effective
response is available.\286\ Therefore, EPA expects facilities to work
with the local responders to ensure that, during a release, all
necessary resources are in place for a community notification system to
function and operate as expected.
---------------------------------------------------------------------------

    \286\ EPA, General Guidance on Risk Management Programs Chapter
8: Emergency Response (2021), p. 8-6, https://www.epa.gov/sites/default/files/2013-11/documents/chap-08-final.pdf?VersionId=vLaBwe1S2zXXrwsxM3HfR0Ko4ZvYXvWD.
---------------------------------------------------------------------------

    EPA is also proposing to amend 40 CFR 68.90(b)(3) and 68.95(c) to
require facilities to provide necessary entities with initial RMP
accidental release information during releases of regulated substances
in order to ensure that information is available to the public and the
appropriate Federal, State, and local emergency response agencies.
Specifically, EPA is proposing that whichever method is used to detect
accidental releases,\287\ the facility--regardless of responding
status--must ensure that the public is promptly notified by the method
outlined in the facility's emergency response plan in coordination with
local responders. Facilities should do this by providing appropriate,
timely data and information to local responders, and detailing the
current understanding and best estimates of the nature of the release.
This should include the regulated substance released, estimated time
the release began, estimated quantity already released and potential
quantity to be released, and potential consequences of the release to
human health and the environment. EPA realizes that when facility
owners and operators first detect a release, they may not have all the
details of the situation. However, EPA expects RMP facility owners and
operators to be familiar enough with their regulated substances,
processes, and potential release scenarios to promptly notify the
public to support timely protective actions. EPA would also expect
owners and operators to provide follow-up information about the release
to local responders as soon as possible, to either provide more
accurate data or to correct erroneous data that had been previously
relayed. EPA expects that the annual emergency response coordination
meetings (40 CFR 68.93) and notification exercises (40 CFR 68.96(a))
will help to ensure that these plans and procedures are discussed and
practiced.
---------------------------------------------------------------------------

    \287\ EPA acknowledges the multiple comments received regarding
fence-line monitoring of RMP releases and seeks additional comment
to gather further information on the consideration of fenceline
monitoring for the RMP rule. Information sought per this issue is
outlined in the Technical Background Document.
---------------------------------------------------------------------------

    The Agency recognizes the possible tradeoff between early
notification and accuracy. In some cases, a potential or actual release
may be averted or mitigated within the facility well before any
exposure to toxic fumes, intense heat, or blast overpressure occurs to
the community. Early notification, or even ``false positives'' have the
potential to disrupt communities and divert public response resources.
Nevertheless, given the gravity of potential accidental releases of
regulated substances from processes subject to the RMP rule--and in
light of repeated expressions of concern heard at the 2021 listening
sessions--EPA believes its proposed amendments will provide a greater
level of comfort and overall safety to communities surrounding RMP
facilities. EPA requests public comment on the Agency's proposed
approach.
    While responding and non-responding facilities should have
mechanisms and procedures in place to notify the public through
emergency response plans at 40 CFR 68.90(b)(3) and 68.95(a)(1)(i),
amending the current requirements to explicitly include the current
understanding and best estimates of data and information pertaining to
the release would help ensure timely decisions about notification of
those releases, particularly those with offsite impacts. EPA expects
that the requirement to provide this information will help ensure that
local responders have sufficient information to make the best decision
on whether community notification is appropriate. Through this proposed
provision, along with the recently promulgated requirements for annual
coordination meetings and notification exercises, EPA expects that
emergency response efforts and communications will be practiced and
refined. EPA also seeks comment on what additional information would be
useful to share in these scenarios.
b. Community Emergency Response Plan Amplifications
    According to 40 CFR 68.90(b)(1) and 40 CFR 68.95(c), respective
non-responding and responding facilities are currently required to be
coordinated with the community emergency response plan developed under
EPCRA Section 303, 42 U.S.C. 11003, ``Comprehensive Emergency Response
Plans.'' \288\ The plan is prepared by LEPCs/TEPCs to evaluate the need
for resources necessary to develop, implement, and exercise the
emergency plan. The plan must include at least the following:
---------------------------------------------------------------------------

    \288\ Comprehensive Emergency Response Plans, 42 U.S.C. 11003,
(October 17, 1986), https://www.govinfo.gov/content/pkg/USCODE-2020-title42/pdf/USCODE-2020-title42-chap116-subchapI-sec11003.pdf.

---------------------------------------------------------------------------

     Identification of facilities within the emergency planning
district, identification of routes likely to be used for the
transportation of substances on the list of extremely hazardous
substances, and identification of additional facilities contributing or
subjected to additional risk due to their proximity to facilities
subject to the requirements of EPCRA subchapter I under Title 42,
Chapter 116, such as hospitals or natural gas facilities.
     Methods and procedures to be followed by facility owners
and operators and local emergency and medical personnel to respond to
any release of such substances.
     Designation of a community emergency coordinator and
facility emergency coordinators, who shall make determinations
necessary to implement the plan.
     Procedures providing reliable, effective, and timely
notification by the facility emergency coordinators and the community
emergency coordinator to persons designated in the emergency plan, and
to the public, that a release has occurred.
     Methods for determining the occurrence of a release, and
the area or population likely to be affected by such release.
     Description of emergency equipment and facilities in the
community and at each facility in the community subject to the
requirements of EPCRA subchapter I under Title 42, Chapter 116, and an
identification of the persons responsible for such equipment and
facilities.
     Evacuation plans, including provisions for a precautionary
evacuation and alternative traffic routes.
     Training programs, including schedules for training of
local emergency response and medical personnel.
     Methods and schedules for exercising the emergency plan.
    EPA wants to ensure RMP-regulated facilities understand how their
facility's processes could impact the larger community emergency
response plan, and the facility's role in coordination on the required
plan provisions. Therefore, EPA is proposing to explicitly state the
required provisions of the community response plan in the RMP
regulatory text. EPA would expect the facility to discuss the community
plan with appropriate LEPC officials as part of the facility's
coordination activities. Only if the LEPC plan was clearly deficient
would EPA consider any action against the facility for relying on it
for response.
    Additionally, the Agency realizes community emergency response
plans contain useful information for the public to learn how RMP
facility processes are accounted and planned for if there is an RMP-
regulated accidental release. EPA seeks comment about impediments to
accessing community emergency response plans and potential solutions to
having the plans more accessible within the scope of the RMP
regulations.
3. Emergency Response Exercises
a. Proposed Amendments to the Emergency Response Requirements
    EPA is proposing to revise 40 CFR 68.96(b)(1)(i) to require all
facilities with Program 2 and Program 3 processes and subject to the
emergency response program requirements of subpart E (i.e., the
responding stationary source), at a minimum, conduct field exercises
involving a simulated accidental release of a regulated substance once
every 10 years, unless local responders indicate that frequency is
infeasible. EPA is also proposing to amend 40 CFR 68.96(b)(3) to
require that the current recommended field and tabletop exercise
evaluation report components be mandatory.
b. Field Exercise Frequency
    The 2017 amendments rule added the field exercise provision to
support reducing accident impacts by ensuring that emergency response
personnel understood their roles in the event of an incident, that
local responders were familiar with the hazards at a facility, and that
the emergency response plans were up to date. The Agency believed that
even the smallest sources would be able to hold field exercises at
least once each decade and, in many cases, it expected sources would
hold field exercises more often.\289\
---------------------------------------------------------------------------

    \289\ EPA, 2017 Accidental Release Prevention Requirements: Risk
Management Programs Under the Clean Air Act 82 FR 4594 (January 13,
2017).
---------------------------------------------------------------------------

    In the 2019 reconsideration rule, EPA modified the frequency of
field exercises by removing the minimum frequency requirement of at
least every 10 years. The Agency removed the 10-year field exercise
frequency to reduce burden on local emergency responders with multiple
RMP-covered facilities and on small counties with limited resources--
many of which are rural and rely on volunteers.\290\ The final rule was
therefore modified to require the owner or operator to consult with
local emergency response officials to establish an appropriate
frequency.
---------------------------------------------------------------------------

    \290\ EPA, 2019 Accidental Release Prevention Requirements: Risk
Management Programs Under the Clean Air Act, 84 FR 69834 (December
19, 2019).
---------------------------------------------------------------------------

    Emergency response field exercise frequency was the theme of
multiple comments submitted during the 2021 listening sessions. Labor
unions, multiple advocacy groups, and an individual commenter all
submitted comments requesting EPA to not only require emergency
response exercises, but to also set deadlines for their
completion.\291\ Further, a State regulatory agency suggested that EPA
require RMP facilities to complete an annual full-scale emergency
response exercise that would include testing containment, mitigation,
and monitoring equipment. The commenter indicated that regular, hands-
on practice is important due to the frequent turnover of RMP facility
personnel.\292\ In contrast, an industry trade association argued that
the emergency response exercises under the current regulations work
well and that flexibility regarding the timing of the exercises
benefits both RMP facilities and emergency response organizations.\293\
---------------------------------------------------------------------------

    \291\ EPA-HQ-OLEM-2021-0312-0057; 0058, 0079, 0149, 0032, 0170.
    \292\ EPA-HQ-OLEM-2021-0312-0039.
    \293\ EPA-HQ-OLEM-2021-0312-0071.
---------------------------------------------------------------------------

    EPA is cognizant of the resources (e.g., staff, experts, funds)
that field exercises demand, particularly in small rural communities
and those with multiple RMP facilities. However, EPA maintains that
exercising emergency response plans within a reasonable, frequent time
frame is vital to ensuring that emergency response programs will work
well in the event of an accidental release. The NFPA 1600[supreg]
Standard on Continuity, Emergency, and Crisis Management takes a
similar position, indicating that exercises and tests should be
conducted at the frequency needed to establish and maintain required
capabilities.\294\
---------------------------------------------------------------------------

    \294\ NFPA, ``NFPA 1600[supreg] Standard on Continuity,
Emergency, and Crisis Management,'' accessed March 1, 2022, https://www.nfpa.org/codes-and-standards/all-codes-and-standards/list-of-codes-and-standards/detail?code=1600.
---------------------------------------------------------------------------

    A 2016 NASTTPO survey, which aimed to gather information about
levels of activity of LEPCs and identify areas for improvement, found
that the number of LEPCs had decreased nationwide due to complacency,
time, interest, and funding.295 296 While 87 percent of
LEPCs indicated that they had participated in emergency response

exercises, over 50 percent reported that conducting drills/exercises
was an area where they felt additional assistance could be provided.
EPA wants to ensure that facilities are accountable to the communities
in which they are located. One way to do this is to make sure that
communities have mechanisms to evaluate the resources and capabilities
needed to assist in a response to an accidental release and that they
can perform field exercises involving actual emergency response
functions to simulated release events.
---------------------------------------------------------------------------

    \295\ NASTTPO, 2016 Local Emergency Planning Committee (LEPC)
Survey: Final Report (2016), https://webcms.pima.gov/UserFiles/Servers/Server_6/File/Government/Local%20Emergency%20Planning%20Committee/Meetings%20Agendas%20and%20Minutes/2016/2016%20LEPC%20Survey%20Final%20Report%20-%20FInal.pdf.
    \296\ EPA, 2008 Nationwide Survey of Local Emergency Planning
Committees (LEPCs): Final Report (2008), https://www.epa.gov/sites/default/files/2013-08/documents/2008_lepcsurv.pdf.
---------------------------------------------------------------------------

    EPA believes many responding facilities with RMP processes are
making plans and intending to conduct field exercises on a timeline
that is appropriate for establishing and maintaining required emergency
response capabilities. However, EPA is concerned that some responding
sources may use the flexibility in the current regulation to never hold
field exercises with local responders or to hold them so infrequently
that the owner or operator's response to an accidental release would be
ineffective. One listening session commentor in support of setting
deadlines for field exercises indicated that without a compliance
frequency, the provision to conduct emergency field exercises is purely
symbolic and is an empty requirement.\297\ EPA wants to ensure all
facilities conduct regular field exercises if they have the resources
and capabilities to do so. The Agency hopes to avoid a scenario where
responding sources impose a schedule that practically exempts them from
the exercise program requirements, particularly if the local responders
know that conducting exercises would be beneficial for response
efforts.
---------------------------------------------------------------------------

    \297\ EPA-HQ-OLEM-2021-0312-0170.
---------------------------------------------------------------------------

    Therefore, EPA is proposing to amend 40 CFR 68.96(b)(1)(i) to
require all facilities with Program 2 and Program 3 processes and
subject to the emergency response program requirements of subpart E
(i.e., the responding stationary source) to, at a minimum, conduct
field exercises involving a simulated accidental release of a regulated
substance once every 10 years unless local responders indicate that
frequency is impractical. EPA expects assigning this frequency to the
provision, but providing for relief in specific circumstances, will
work for all organizations and communities to prepare for or further
assess the ability to respond to accidental releases. Because
facilities have always had a requirement to do a field exercise, an
added provision with a 10-year phase in should have minimal impact on
sources who may have relied upon the 2019 provision, which has been in
place for only three years. Moreover, local responders continue to have
the option not to participate, which also diminishes any possible
reliance interests. EPA expects that the frequency of field exercises
and any justification for not being able to conduct them on a 10-year
schedule will be discussed through annual coordination meetings.
Although written justification from local responders will allow
facilities with relief from this proposed provision, EPA expects this
dialogue will address supposed barriers to carrying out field exercises
with some frequency and result in creative solutions such as focusing
the scope of exercises or conducting joint exercises with neighboring
facilities. This proposed amendment will help ensure the safety of
communities by more frequently confirming that local responders are
prepared for an accidental release.
c. Exercise Evaluation Reports
    The 2017 amendments rule added the field and tabletop exercise
evaluation report provision. This provision required either the
preparation of a report within 90 days of each field and tabletop
exercise (40 CFR 68.96(b)(3)) or, an after-action report comparable to
the exercise evaluation report required when owners or operators use a
response to an accidental release to meet their field exercise
requirement (40 CFR 68.96(c)(2)). The report in either situation would
be required within 90 days of the exercise or accident and must include
a description of the scenario, names and organizations of each
participant, an evaluation of the exercise results including lessons
learned, recommendations for improvement or revisions to the emergency
response exercise program and emergency response program, and a
schedule to promptly address and resolve recommendations. EPA believed
that maintaining a written record including, among other things, the
identification and affiliation of exercise participants, would be
useful in planning future exercises.
    The 2019 reconsideration rule scaled back the exercise reporting
requirements, making the exercise report elements recommended rather
than mandatory. The Agency indicated that making the reporting
requirements non-mandatory would reduce the regulatory burden and allow
emergency response personnel the flexibility to decide which exercise
documentation would be most appropriate for the facility and community.
    EPA now recognizes there may be an inconsistency between the
recommended exercise evaluation and mandatory incident investigation
documentation requirements, as one provision can be used to satisfy the
other. Current incident investigation regulations under 40 CFR 68.60
and 68.81 require incident investigation reports to include specific
elements: the date of incident, the date the investigation began, a
description of the incident, the factors that contributed to the
incident, and any recommendations resulting from the investigation.
Under the current field and tabletop documentation provisions,
facilities would be allowed to satisfy the documentation requirement
for field and tabletop exercises through an after-action report
following an accidental release. EPA believes that, in most cases,
these accidental releases would be those that need to be investigated
per 40 CFR 68.60 and 68.81. Many of the incident investigation and
exercise evaluation reporting requirements are similar. EPA believes it
should be consistent in its requirements to ensure there is no
confusion related to reports that can be used interchangeably.
    Therefore, EPA is proposing to amend 40 CFR 68.96(b)(3) to require
that the current recommended exercise evaluation report elements be
mandatory rather than recommended. EPA contends that making these
exercise report components mandatory will help not only to eliminate
confusion about what is required when evaluating an actual or simulated
response, but also provide consistency on elements that are crucial to
the exercise improvement planning process.

C. Information Availability

    EPA is proposing to amend 40 CFR 68.210 to allow the public to
request specific chemical hazard information if they reside within 6
miles of a facility. As discussed below, the 6-mile restriction would
allow access to information for the vast majority of the public that
are within worst case scenario impact zones. Having received such a
request, the facility would be required to provide certain chemical
hazard information and access to community emergency preparedness
information. This proposal is similar to the 2017 amendments rule, with
the added modification that information be restricted to those persons
within 6 miles of the facility.
1. Recent Public Input on Information Availability
    During EPA's 2021 listening sessions, approximately 210 commenters

provided feedback on information availability requirements. Multiple
commenters, including advocacy groups, individual commenters, and labor
unions, expressed support for expanding information availability to
improve the safety of first responders and community members.\298\ An
association of government agencies said that LEPCs' access to
information is vital and suggested that EPA grant LEPCs the ability to
request relevant information from RMP facilities, similar to the level
of access under EPCRA for facilities with extremely hazardous
substances.\299\ Multiple advocacy groups, via a joint submission, and
an individual wrote that EPA's Chemical Emergency Preparedness and
Prevention Office and CSB agreed that ``transparency between industry
and the public improves community safety.'' \300\ An advocacy group
said that many residents near RMP facilities are not aware that they
are located near these facilities, as EPA has not shared a list of
where the communities most at risk are located.\301\ Multiple advocacy
groups and an individual commenter said that risk management plans
should be available online--for example, through EPA's website, the RMP
facility's corporate website, and public libraries.\302\ A State
elected official suggested that EPA create an online database through
which the public can read summaries of risk management plans; this
would avoid releasing sensitive security information about RMP
facilities while also informing the public of relevant community safety
concerns.\303\
---------------------------------------------------------------------------

    \298\ EPA-HQ-OLEM-2021-0312-0016; 0020, 0025, 0026, 0035, 0036,
0040, 0042, 0051, 0057, 0058, 0060, 0072, 0358, 0387.
    \299\ EPA-HQ-OLEM-2021-0312-0072.
    \300\ EPA-HQ-OLEM-2021-0312-0151; 0149.
    \301\ EPA-HQ-OLEM-2021-0312-0170.
    \302\ EPA-HQ-OLEM-2021-0312-0035; 0042, 0036, 0060, 0149.
    \303\ EPA-HQ-OLEM-2021-0312-0043.
---------------------------------------------------------------------------

2. Information Availability in the 2017 Amendments and the 2019
Reconsideration Rule
    The 2017 amendments rule added new information availability
requirements, including the requirement for the owner or operator to
provide--within 45 days of receiving a request by any member of the
public--specified chemical hazard information for all RMP-regulated
processes. The provision required the owner or operator to provide
ongoing notification on a company website, on social media platforms,
or through other publicly accessible means such that the information is
available to the public upon request, along with the information
elements that may be requested and instructions for how to request the
information. In the 2019 reconsideration rule, EPA removed these
elements because of a benefit versus risk calculation, observing that
much RMP information was available through other means while widespread
anonymous access to the consolidated information posed potential
security risks.
    EPA stated in its 2019 reconsideration rule that part of its
rationale for rescinding information availability provisions was that
the 2017 amendments rule ``underweighted security concerns in balancing
the positive effects of information availability on accident prevention
and the negative effects on public safety from the utility to
terrorists and criminals of the newly available information and
dissemination methods.'' In its rationale for the 2019 reconsideration,
EPA cited the Department of Justice (DOJ) report ``Assessment of the
Increased Risk of Terrorist or Other Criminal Activity Associated with
Posting Off-Site Consequence Analysis Information on the internet,''
\304\ which found that assembling the otherwise-public data is valuable
in identifying and focusing on sources that have conducted criminal
acts. The goal of DOJ's assessment was to determine which variables and
forms of dissemination would create vulnerabilities enabling a
terrorist attack. In the 2019 reconsideration rule, EPA stated the 2017
provisions would make otherwise-public information newly anonymously
accessible via the web and other means in a more consolidated fashion.
EPA observed that this consolidated information ``may present a more
comprehensive picture of the vulnerabilities of a facility than would
be apparent'' otherwise, and thus potentially increasing terrorist risk
(84 FR 69887, December 19, 2019).
---------------------------------------------------------------------------

    \304\ DOJ, Assessment of the Increased Risk of Terrorist or
Other Criminal Activity Associated with Posting Off-Site Consequence
Analysis Information on the internet (2000), https://www.regulations.gov/document/EPA-HQ-OEM-2015-0725-2003, EPA-HQ-OEM-
2015-0725-2003.
---------------------------------------------------------------------------

    EPA is proposing a provision to increase information availability
to communities that balances information availability to communities
with the previously identified security concerns. EPA believes the
proposed amendment to add a 6-mile radius ensures that even if
community members obtain information related to offsite consequences
analysis (OCA) data, it would require a difficult nationwide-
coordinated effort among people within 6 miles of each facility to
create the type of online database described in DOJ's report. The
proposed provisions simply require RMP facilities to provide their
chemical hazard information to communities within a 6-mile radius of
the facility, when previously they were not required to. Because RMP
facilities were, and will continue to be, in possession of this
information, it is unlikely that such a change would result in any
possible prejudice to the facilities based on their reliance on the
2019 reconsideration rule provisions, which have only been in place for
3 years.
    In its 2019 reconsideration rule, EPA mentioned that members of the
public can view risk management plans at Federal Government reading
rooms, obtain risk management plan information from State or local
government officials with risk management plan data access, or submit a
request to EPA under the FOIA (for non-OCA risk management plan
information). EPA also mentioned that owners and operators of regulated
facilities may disclose risk management plan information for their own
facilities if they so choose. While current OCA provisions allow for a
person visiting a reading room to request information of up to 10
facilities per year regardless of location as well as the OCA
information for all facilities with a vulnerable zone that extends into
the jurisdiction of the LEPC/TEPC where the person lives or works,
there are a limited number of reading rooms even in large states, and
these reading rooms generally are not located close to the communities
potentially impacted by process safety at particular facilities. While
the reading room restrictions are necessary for OCA information, the
restrictions in locations and access make them an inefficient way to
access information in the risk management plans that Congress chose not
to restrict when it enacted the Chemical Safety Information, Site
Security and Fuels Regulatory Relief Act 42 U.S.C. 7412(r)(7)(H)(ii).
By creating a 6-mile radius, EPA allows communities with more than one
facility to request information on all the sources to which they may be
potentially exposed in the event of a release.
    The 2019 reconsideration rule mentioned that community members may
request information from their LEPCs; however, subsequent analysis of
active facility risk management plan submissions demonstrates that 10
percent of active facilities have not provided information on the names
of their LEPCs.\305\ Without further

information as to why facilities left this portion of the risk
management plan submission blank, it is possible that LEPCs may not
exist for those facilities, that the LEPC may have existed but is
inactive, or that the facility is not in communication with its LEPC.
EPA routinely receives FOIA requests for OCA and non-OCA versions of
the risk management plan database from local and State emergency
response entities, which may indicate that local emergency response
entities also have difficulty in obtaining this information from
facilities.
---------------------------------------------------------------------------

    \305\ 40 CFR 68.160(b)(18).
---------------------------------------------------------------------------

    EPA also conducted a parallel benefits assessment in 2000,
describing the benefits of providing community access to risk
management plan information.\306\ EPA found that public disclosure of
risk management plan information would likely lead to a reduction in
the number and severity of accidents. It also found that comparisons
between facilities, processes and industries would likely lead industry
to make changes and would stimulate dialogue among facilities, the
public, and local officials to reduce chemical accident risks. EPA also
concluded that given the opportunity, the public would use hazard
information to take action, thus lead to risk reduction, citing the
reduction in emissions following publicly available TRI information.
---------------------------------------------------------------------------

    \306\ EPA. April 18, 2000. Assessment of the incentives created
by public disclosure of off-site consequence analysis information
for reduction in risk of accidental releases.
---------------------------------------------------------------------------

    EPA is proposing individuals within a 6-mile radius of RMP
facilities be able to obtain specific chemical hazard information. EPA
believes this distance to be reasonable as 90 percent of all toxic
worst-case distances to endpoints are 6 miles or less, and almost all
flammable worst-case distances are less than 1 mile. The 6-mile radius
for being able to request information from facilities allows people in
most areas potentially impacted by a WCS to have access to information
while also providing a limit on widespread access to nationwide
assembly of data. The proposed approach uses aggregate worst case
scenario data and does not rely on individual worst cases for each
facility because EPA cannot by rule force disclosure of OCA information
to the public. EPA notes that 5 percent of worst-case distances for
toxics are more than10 miles, while 67 percent of scenarios are under 3
miles. EPA seeks comment on whether the 6-mile radius is appropriate
and provides the information on 10 miles and 3 miles as potential
alternatives. For alternative distances supported by commenters, EPA
requests information on the justification for these alternative
distances.
3. Proposed Regulatory Revisions
    In the 2017 amendments rule, EPA added several new provisions to 40
CFR 68.210, ``Availability of Information to the Public.'' These
included:
     A requirement for the owner or operator to provide, upon
request by any member of the public, specified chemical hazard
information for all regulated processes, as applicable, including names
of regulated substances held in a process; Safety Data Sheets (SDSs)
for all regulated substances located at the facility; accident history
information required to be reported under 40 CFR 68.42; and emergency
response program information, including whether or not the source
responds to releases of regulated substances, name and phone number of
local emergency response organizations, and procedures for informing
the public and local emergency response agencies about accidental
releases.
     A requirement for the owner or operator to provide ongoing
notification on a company website, on social media platforms, or
through other publicly accessible means that the above information is
available to the public upon request, along with the information
elements that may be requested and instructions for how to request the
information, as well as information on where members of the public may
access information on community preparedness, including shelter-in-
place and evacuation procedures.
     A requirement for the owner or operator to provide the
requested chemical hazard information within 45 days of receiving a
request from any member of the public.
    EPA is proposing to restore these provisions for community members
living within 6 miles of a facility. EPA contends this will allow
affected communities to obtain information from RMP facilities.
Allowing all community members demonstrating residence within 6 miles
of the facility to request this information would ensure information
availability in areas without LEPCs/TEPCs. The proposed 6-mile
limitation seeks to limit the potential security risk of allowing
anonymous confidential access of this information to the entire public
that was of concern to EPA in the 2019 reconsideration rule. The
proposed approach strikes a better balance between those security
concerns and the interests of people living near facilities who could
benefit from the information: personal preparedness in the event of an
accident, knowledge of safety conditions where one lives, and more
informed participation in community safety planning. EPA seeks comment
on the 6-mile limitation and whether it balances security concerns and
community access to information. While much, if not all, of the
information to be disclosed upon request to facilities under this
proposed provision is otherwise publicly available with little
geographic limitation, the additional method of access EPA is proposing
make access simpler for people who are near facilities.
a. Request for Comment on Potential Non-Rule RMP Access Policy Changes
    While these proposed regulatory changes will improve information
sharing within communities, they do not resolve concern that fenceline
communities are often unaware of RMP facilities near them. To request
facility information, a member of the public would need to know how to
access it, have the means to access it, and know that the facility
exists in their community in order to determine how to access and
request the information. These barriers do not appropriately facilitate
community right-to-know or equitable distribution of knowledge on
fenceline community risks to those most affected by potential releases.
In the 2019 proposed rule comment period, commenters pointed out that
reading rooms are not a realistic avenue for public access to
information.\307\ EPA also recognizes the additional impracticalities
that the COVID-19 pandemic has imposed on reading room options. Many
commenters mentioned delays in accessing information and limitations on
data requests from reading rooms. Further, most states only have one
reading room, which complicates public access to information from that
source. Commenters also mentioned equity issues given the expertise and
language issues required to access information. In its 2000 benefits
assessment,\308\ EPA also noted that obtaining information from LEPCs
is difficult and a central repository would improve ease of information
access. EPA's past experience in implementing EPCRA had shown that many
State and local officials needed assistance in managing the chemical
information submitted to them on paper by industry under that

law, and that the public often did not take advantage of this
information since it was not conveniently available. Additionally,
information on multiple RMP facilities is needed as it allows
communities to compare risks between facilities, as well as potential
cumulative risks owing to multiple facilities within a community. For
communities with more than one facility, e.g., communities like Harris
County, Texas with large numbers of facilities, residents should not be
expected to request information from each of these facilities, but
rather, EPA should aggregate this information in a central location.
---------------------------------------------------------------------------

    \307\ EPA-HQ-OEM-2015-0725-1598; 1869, 1925, 1969.
    \308\ EPA. April 18, 2000. Assessment of the incentives created
by public disclosure of off-site consequence analysis information
for reduction in risk of accidental releases.
---------------------------------------------------------------------------

    By policy, EPA has restricted access to the RMP database even
though only a portion of the database is restricted by CAA 112(r)(7)(H)
and its implementing regulations in 40 CFR part 1400. Other programs
within EPA have demonstrated that facility and chemical information can
be made publicly available, in a readily accessible format. EPA intends
to, at a prospective date, begin publishing non-OCA risk management
plan data annually, less any CAA 112(r)(7)(H) protected sensitive
information. EPA has received comments in the past with concerns
regarding confidential business information and directs these
commenters to the requirements in 40 CFR 68.152 for substantive
criteria set forth in 40 CFR 2.301. EPA notes that 40 CFR 1400.5 allows
for the Administrator to include only the following OCA data elements
in a database on the internet: (a) the concentration of the chemical;
(b) the physical state of the chemical; (c) the statistical model used;
(d) the endpoint used for the flammables in the worst-case scenario;
(e) the duration of the chemical release for the worst-case scenario;
(f) the wind speed during the chemical release; (g) the atmospheric
stability; (h) the topography of the surrounding area; (i) the passive
mitigation systems considered; and (j) the active mitigation systems
considered. This initiative is in line with other hazardous substance
reporting programs that have been long established at EPA. Further, EPA
believes it can no longer not make this information available, as 5
U.S.C. 552(a)(2)(D)(ii)(II) requires that information that has been
requested via FOIA three or more times be made ``available for public
inspection in an electronic format'' when the information is likely to
be requested again in the same format and is not otherwise privileged
from disclosure. EPA is requesting comment on the variables provided in
the Technical Background Document (Section 10), most of which are for
public availability, and which (or combination of which) pose potential
significant security risks.
b. Current Data Availability of Risk Management Plan Information
    Currently, with few exceptions as indicated below, EPA does not
make any of its OCA or non-OCA data available to the public online. The
public can access or request risk management plan information through
the methods described below. Based on these methods, EPA contends that