Homeland Security Appropriations Act of 2007 prohibited the Department
from disapproving a site security plan ``based on the presence or
absence of a particular security measure,'' including ISTs.\92\ DHS
noted that, even so, covered chemical facilities are certainly free to
consider IST options, and their use may reduce risk and regulatory
burdens. Therefore, because DHS does not require IST or the assessment
of IST, EPA does not believe there is an ``overlap'' in requirements.
Furthermore, DHS requirements address site security measures, and not
measures designed to reduce accidental releases.
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    \91\ See 72 FR 17718, April 9, 2007, https://www.gpo.gov/fdsys/pkg/FR-2007-04-09/pdf/E7-6363.pdf.
    \92\ Section 550 has since been replaced by the Protecting and
Securing Chemical Facilities from Terrorist Attacks Act of 2014,
Public Law 113-254. However, the prohibition on DHS disapproving a
security plan based on the presence or absence of a particular
security measure remains. See 6 U.S.C. 622(c)(1)(B).
---------------------------------------------------------------------------

    Potential for risk tradeoff or risk transfer. Some commenters,
including an association of government agencies and an industry trade
association, encouraged a holistic review of IST to avoid or minimize
risk transfers. A few commenters stated that, for example, a facility
adopting a safer technology may increase transportation requirements of
hazardous materials and increase risks of incidents outside of the
facility, including necessitating more exotic emergency response
equipment or preparation. One commenter noted that minimization
frequently involves the decrease of on-site storage and could result in
the potential for additional shutdowns and startups due to insufficient
raw materials. The same commenter further indicated that substitution
of a purportedly safer alternative may introduce environmental or
safety risks that are not realized until much later.
    In contrast, an advocacy group urged EPA to consider that the
commenters citing risk transfer are often industry funded and, in the
opinion of the commenter, overlook risk transfer that is caused by
actions of the facilities themselves. A process safety organization
stated that EPA should not require an STAA as part of a new prevention
program, as part of the existing PHA/hazard review, or as a requirement
under CAA section 112(r) because the definition of ``inherently safer
alternatives'' has always been very debatable and use of these
alternatives may not result in the overall reduction of the total
quantitative risk of the facility. The organization expressed concerns
that a verbatim statement of consideration and/or implementation of
inherent safer options has the potential for unintended outcomes, such
as risk transfer, risk accumulation, increased opportunities for
terrorism, and other undesirable tradeoffs. This commenter recommended
that EPA should not require the IST analysis because few technologies
would be inherently safer with respect to all hazards, there may not be
a clear implementation path for all situations, and facilities would
have to address multiple tradeoffs in the decision making process. The
commenter warned that improper implementation of a ``safer''
alternative may have negative consequences. Some commenters note that
an absolute safer alternative is highly dependent on the hazard, the
process, the technology and the facility. For every process there could
be different type of alternative chemical use.
    EPA recognizes the risk transfer concerns raised by the commenters.
However, EPA believes that the final rule allows the owner or operator
to consider the potential for quantitative risk reduction, risk
transfers and tradeoffs when determining whether it is practicable to
implement ISTs or ISDs considered. EPA agrees that some technologies
may not be inherently safer with respect to all hazards, may not be
implementable for all situations and may involve multiple tradeoffs in
the decision making process. IST is a relative concept dependent on the
hazard, the technology, and the facility. Therefore, EPA is requiring
facilities to only consider IST as a possibility for addressing hazards
rather than requiring ISTs be implemented. The final rule gives the
facility owner or operator the flexibility to assess IST as well as
passive, active, and procedural measures to reduce risk associated with
a process and to determine the practicability of any IST considered
based on various factors (including those involving risk transference).
    Current PHA requirements and other risk reduction measures already
adequate address risks. Several facilities and industry trade
associations urged that existing requirements and principles, such as
PHA and Layer of Protection Analysis (LOPA), are sufficient for
determining if proper safeguards are in place in existing process
units. Industry trade associations said that LOPA or similar risk-based
analyses are more easily implemented and cost effective than IST, and
stated that risk-based analyses also minimize risk shifting. A state
agency urged EPA to require a LOPA but to ensure that it is clearly
separated from the STAA.
    Some facilities and an industry trade association remarked that
industry has proven capable of reducing hazards from current operations
by using active, passive, or procedural measures. A facility and an
industry trade association asked why the proposed rulemaking is not
specifically focused on STAAs for new or potential processes when,
according to the commenters, nothing indicates that IST evaluations
have become more beneficial or less expensive for existing process
units since the 1996 RMP rule.
    A facility asserted that current regulations that require
compliance with RAGAGEP already ensure that appropriate controls are
implemented in equipment and processes. One commenter expressed
concerns that the STAA evaluation will become a paperwork exercise that
will not result in any increase to safety. This commenter suggests that
EPA require a review of safer technology or IST only when the PHA
results show that a technology or design scenario does not meet the
company's appropriate risk tolerance/reduction requirements.
    EPA believes that where feasible, reducing or eliminating hazards
through change in materials, chemistry, or process variables is
preferable to adding layers of safety to a process. While layers of
passive, active or procedural controls will reduce the risk, they will
do nothing to reduce the nature of the hazard itself. Failure of
control devices or human error can result in an accidental release.
However, an inherent safer strategy seeks to preferentially remove the
hazard at the source, as opposed to accepting the hazard and attempting
to mitigate the effects.\93\ In addition to eliminating or reducing a
hazard, IST can also minimize the impact of a release or terminate the
accident sequence before there are major impacts on people, property or
the environment.
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    \93\ CCPS. 2009, Inherently Safer Chemical Processes: A Life
Cycle Approach. 2nd ed. American Institute of Chemical Engineers,
Center for Chemical Process Safety. pp. 10-11.
---------------------------------------------------------------------------

    EPA agrees with other commenters who have indicated that the PHA
can and should consider IST as hazard reduction or risk management
measures where feasible and appropriate. Opportunities for the
application of the

inherently safer strategy of simplification can be evaluated for each
safety device or procedure during a PHA as well as in review of
mechanical integrity program practices and procedures. CCPS provides
examples for this.\94\ Although we agree that the general principles of
PHA combined with LOPA may at times be appropriate to address the risk
of an accidental release, EPA believes that facility owners or
operators should consider IST first in the hierarchy of risk reduction
measures to reduce and/or control the hazards of a process.
---------------------------------------------------------------------------

    \94\ CCPS. 2009, Inherently Safer Chemical Processes: A Life
Cycle Approach. 2nd ed. American Institute of Chemical Engineers,
Center for Chemical Process Safety. pp. 112-113.
---------------------------------------------------------------------------

    Consideration of untested and unproven technologies. One commenter
was concerned that any potential IST considered should not have to
include untested and unproven technologies. An industry trade
association urged that technology takes time to mature and become
acceptable and safe for widespread use. Concerns were that facilities
might be encouraged to substitute novel and untested controls for
existing controls and layers of protection that are in place at
existing processes to control and manage risks, detracting from actual
safety performance. One commenter was concerned that operators should
not be required to update or replace technology on a year-in, year-out
basis simply because new technologies are introduced into the
marketplace. One commenter stated that any alternative considered
should be easy to be applied and should have been properly tested.
    EPA agrees that a facility owner or operator may conclude that IST
measures that have not been tested or used commercially should not be
considered. It may be difficult to evaluate the practicability of
hypothetical technologies or those that are still undergoing research
and testing.
f. General Opposition to STAA
    Benefits and cost of STAA not adequately explained or justified.
Commenters warned that analysis of existing facilities and processes is
unlikely to provide significant insights or opportunities for safety
improvement, but may be very costly. A facility and a number of trade
associations asserted that IST analysis would not meaningfully increase
safety. Stating that safer technology would have been adopted if it
made business sense to do so, a facility remarked that the STAA
requirement is unnecessary.
    An industry trade association and a facility expressed concern that
the process of retrofitting existing facilities would be expensive and
could result in facilities shutting down. Several commenters agreed
with EPA conclusions made in the 1996 RMP rule regarding an IST
analysis mandate where the agency stated, ``EPA does not believe that a
requirement that sources conduct searches or analyses of alternative
processing technologies for new or existing processes will produce
additional benefits beyond those accruing to the rule already.'' The
commenters, including a facility and industry trade associations,
warned that EPA changed its position on whether or not a mandatory IST
analysis leads to any incremental benefits, without any clear rebuttal,
analysis, explanation, or substantiation of benefits from the STAA and
urged EPA to withdraw the STAA mandate from the proposed rulemaking. An
industry trade association, agreeing with EPA's 1996 assessment,
remarked that the new conclusion was made without regard for the nature
of the reported accidents or any scientific support. Many commenters
stated that requiring STAAs would create a burden for industries that
would not produce any significant benefits if the existing process has
already had risks addressed by a PHA. A few commenters asserted that,
for most facilities, an IST analysis would likely produce limited
options that would not justify the cost and effort of the exercise
itself.
    Two industry trade associations contend that there is no data to
suggest that requiring an STAA analysis provides any measurable benefit
or reduces the frequency or severity of incidents or any empirical
studies showing that STAA effectively improves process safety. They
believe that the analysis of the New Jersey data for facilities
conducting IST analysis since 2008, shows no decrease in reportable
accidents and that revising the RMP rule will likely have a negligible
effect at great cost to covered facilities. Commenters asked whether or
not EPA's analysis of the IST programs implemented by New Jersey and
Contra Costa County has yielded any concrete data demonstrating that
the programs have successfully reduced hazardous safety risks over
voluntary adoption. One commenter urged EPA to withdraw the proposed
IST requirement until EPA has conducted such an analysis.
    Several trade associations commented that the regulatory burden of
requiring costly IST reviews tends to stifle innovation. The commenters
asserted that for those companies already looking to improve safety by
implementing IST options, a formal IST review would add costs to a
process by forcing them to document the activities they are already
performing. They further indicated that small operations might not have
the manpower or expertise to do this and lack the resources to hire it
out cost effectively. The same commenters further stated that for
companies that do not implement IST options, the IST review becomes a
``paper exercise'' where they document why it is ``infeasible'' to
implement these options. Another commenter argued that if EPA only
intends for an analysis to be conducted and not for the technologies to
be implemented, then the proposal should be withdrawn on the basis that
it provides no benefit to the public.
    One trade association commented that there is no value in having a
facility perform an IST assessment if one was already performed earlier
in the lifecycle of the process or to repeat the same STAA every five
years on the same process. The association asserts that nothing new
will be learned from doing so.
    According to a facility and some industry trade associations, the
claim in the proposed rulemaking preamble that voluntary adoption of
IST is becoming more prevalent indicates that the incremental benefits
of mandatory adoption are decreasing, which the commenters remarked
would be in line with the 1996 decision not to require IST analysis.
    EPA believes that the STAA should identify potential process
changes including IST that, if implemented, would result in owners or
operators using less hazardous substances, minimizing the amount of
regulated substances present in a process, moderating process
conditions, reducing process complexity, or implementing passive,
active, or procedural changes to make processes safer. Such changes
help prevent accidents by either eliminating the possibility of an
accidental release entirely, by making a process more fault-tolerant,
such that a minor process upset or equipment malfunction does not
result in a serious accidental release, and by reducing the severity of
releases that do occur. The STAA provision does not actually require
the owner or operator to implement any changes, so facilities will only
incur additional costs beyond the analysis when the benefits of the
change make adoption of the change reasonable for the facility.
    IST is widely recognized as a concept or principle that can be used
in process safety management along with other types of hazard reduction
measures to eliminate or reduce the frequency and/or impact of
accidents. As recognized in

process safety technical literature, the benefit of using practicable
IST as the first choice for accident prevention is more likely
permanent risk reduction. Some trade associations agree that individual
companies often consider inherently safer approaches or safer
alternatives as a matter of course. In fact, one of the key elements
under ACC's Responsible Care, Process Safety Code \95\ requires ACC
member companies to consider inherently safer approaches as one of many
risk reduction measures when conducting a process safety risk
assessment.
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    \95\ ACC. 2016. Responsible Care Process Safety Code https://responsiblecare.americanchemistry.com/Responsible-Care-Program-Elements/Process-Safety-Code/Responsible-Care-Process-Safety-Code-PDF.pdf.
---------------------------------------------------------------------------

    Since 1996, EPA has seen that advances in ISTs and safer
alternatives are becoming more widely available and are being adopted
by some companies. Voluntary implementation of some ISTs has been
identified through surveys and studies and potential opportunities have
been identified through EPA enforcement cases and CSB incident
investigations.\96\ The Contra Costa County Health Services (CCHS) and
New Jersey Department of Environmental Protection (NJDEP) IST
regulations requirements to consider IST have resulted in some
facilities adopting IST measures.\97\ The concept of IST is more widely
understood and accepted within the chemical process industry than it
was 20 years ago. Innovations and research in chemical process safety
have evolved and continue to evolve. Industries change and update their
processes over time for a variety of reasons and when possible, EPA
believes that opportunities to improve chemical process safety using
all available means--not only passive, active, and procedural
measures--should also be considered.
---------------------------------------------------------------------------

    \96\ For more information, see the preamble of the proposed
rulemaking at 81 FR 13663-13665, March 14, 2016.
    \97\ For more information, see the preamble of the proposed
rulemaking at 81 FR 13665-13666, March 14, 2016.
---------------------------------------------------------------------------

    EPA disagrees that increasing voluntary adoption of IST means that
incremental benefits of mandatory adoption are decreasing. Benefits
derived by those implementing IST do not negate any potential benefits
from those who have not. As stated in the 1996 rule, ``EPA encourages
sources to continue to examine and adopt viable alternative processing
technologies, system safeguards, or process modifications to make new
and existing processes and operations inherently safer.'' \98\ For
those facilities who have not considered adopting any IST or have only
done so in limited fashion, EPA believes that there is value in
requiring facilities with extremely hazardous substances to evaluate
whether they can improve risk management of current hazards through
potential implementation of ISTs or risk management measures that are
more robust and reliable than ones currently in use at the facility.
For those facilities who have already considered IST, EPA believe
facilities should re-evaluate whether any improvements in hazard or
risk reduction can be made and we believe the five-year re-validation
timeframe of the PHA is an appropriate time period for such re-
evaluation.
---------------------------------------------------------------------------

    \98\ See 61 FR 31700, June 20, 1996.
---------------------------------------------------------------------------

    EPA did not perform any further analysis of the NJDEP or Contra
Costa County IST data. The main purpose of providing these reports was
to demonstrate that regulations involving IST in these two
jurisdictions resulted in implementation of IST at some of their
facilities and to explain what types of IST were implemented. NJDEP's
2010 IST Implementation Summary report \99\ on IST reports submitted by
NJ facilities since August 2008 is available in the docket and
discusses 143 additional IST measures reported to have been implemented
or scheduled to be implemented by 41 of the 85 facilities submitting
reports. CCHS and Richmond CA annual performance review and evaluation
reports on the Industrial Safety Ordinance include a summary of
Inherently Safer Systems (ISS) results from their nine total
facilities, as well as the actual ISS data reported by each facility.
Three of these reports are in the docket for this rulemaking.\100\
---------------------------------------------------------------------------

    \99\ https://www.regulations.gov/document?D=EPA-HQ-OEM-2015-0725-0143.
    \100\ https://www.regulations.gov/document?D=VEPA-HQ-OEM-2015-0725-0147, https://www.regulations.gov/document?D=EPA-HQ-OEM-2015-0725-0148, and https://www.regulations.gov/document?D=EPA-HQ-OEM-2015-0725-0149.
---------------------------------------------------------------------------

    Because the requirements involve prevention of accidents before
they occur, it is difficult to provide a quantitative assessment that
the requirement would reduce a certain number of accidents. The
assertion of increase in the number of NJ accidents reported cannot be
explained as a result of implementation or non-implementation of IST
because there are other factors involved. For example, the number of NJ
facilities reporting over the years varies, which can affect the number
of reportable accidents and not all NJ facilities may have implemented
IST. In principle, because of the ``inherentness'' of any actual IST
changes, there should be a hazard and risk reduction for a particular
RMP chemical, because IST eliminates or minimizes the opportunities for
a chemical release in a more rigorous fashion than relying on a device
or human intervention. EPA recognizes that IST will not eliminate all
hazard or risk and that reliance of other risk reduction measures will
probably still be needed for other points in a process.
    Contra Costa County commented that it has seen improvements at
existing facilities with existing processes subject to its ISS
requirements.\101\ The county indicated that facilities have eliminated
unnecessary vessels, shortened piping and replaced chemicals with less
toxic chemicals. CCHS has seen that by considering ISS, facilities have
looked at the highest level of risk reduction such as using passive
means (such as a change in metallurgy) instead of relying on
administrative means (such as increased piping inspections).
---------------------------------------------------------------------------

    \101\ https://www.regulations.gov/document?D=EPA-HQ-OEM-2015-0725-0450.
---------------------------------------------------------------------------

    As some commenters indicated, some facilities have been evaluating
IST as a best practice for decades and, in most cases, have already
taken steps to implement beneficial technologies where it is
practicable and cost-effective to do so. In those situations, where IST
was previously evaluated but not implemented, facilities should review
the analysis to determine if new information is available that would
affect the analysis. The facility should document the STAA and
practicability of IST and ISD considered.
    Inconsistent STAA implementation. A facility remarked that the lack
of clarity and consensus about the methodology, definitions or
standards for STAA would contribute to burden and could lead to
inconsistent implementation of STAA across companies.
    EPA does not expect to see ``one-size-fits-all'' implementation of
STAA by sources. The STAA requirements are not prescriptive in nature,
but more similar to a performance-based standard (like other provisions
of the RMP regulations) that give facilities the flexibility and allow
facility owners and operators to exercise reasonable judgement to
determine what technology or risk reduction measures work best for
their particular chemical use, process or facility. However, in an
effort to ensure a consistent understanding of EPA's expectations for
conducting an STAA and determining practicability of IST and IST
considered, the rule defines several terms related to the STAA, such as
practicability, inherently safer technology or design, passives
measures, active measures and

procedural measures. EPA has also cited various references and
technical sources of information that explain the concepts and
principles of STAA and provided examples.\102\
---------------------------------------------------------------------------

    \102\ CCPS. 2009, Inherently Safer Chemical Processes: A Life
Cycle Approach. 2nd ed., https://www.regulations.gov/document?D=EPA-HQ-OEM-2015-0725-0253; CCPS. July 2010. Final Report: Definition for
Inherently Safer Technology in Production, Transportation, Storage,
and Use, https://www.regulations.gov/document?D=EPA-HQ-OEM-2015-0725-0274; Contra Costa Hazardous Materials Program. June 15, 2011.
Industrial Safety Ordinance Guidance Document, Attachment C--
Inherently Safer Systems Checklist. Contra Costa County Health
Services, Martinez, CA, https://www.regulations.gov/document?D=EPA-HQ-OEM-2015-0725-0146; NJDEP. January 15, 2015. Guidance for Toxic
Catastrophe Prevention Act (TCPA), Inherently Safer Technology
(IST), https://www.regulations.gov/document?D=EPA-HQ-OEM-2015-0725-0142.
---------------------------------------------------------------------------

    Impact to agribusinesses. One commenter stated that the proposed
mandate for regulated facilities to consider STAA as a part of the PHA,
and to evaluate the feasibility of IST, will fail to generate tangible
RMP outcomes in the fertilizer industry or with other ag-industry RMP
regulated chemicals, beyond what the current PHA requirements and
procedural measures can accomplish in controlling hazards. The
commenter further asserted that the administrative and recordkeeping
burden associated with this portion of the proposed rulemaking will
undoubtedly increase costs on the agribusiness industry at a time when
margins across the industry are thin to non-existent. The same
commenter indicated that these requirements will cause many small
agricultural fertilizer retail facilities to close.
    EPA is not requiring agricultural fertilizer retail facilities to
perform STAA and thus there should be no burden to this particular
industry as a result of the STAA provision. The STAA requirement in the
PHA will only apply to Program 3 facilities in chemical manufacturing
(NAICS code 324), petroleum and coal products manufacturing (NAICS code
325) and paper manufacturing (NAICS code 322).
    Feasibility costs. One trade association stated that the cost of
determining feasibility was wholly underestimated by EPA because
feasibility study costs can be quite large depending upon the type of
project, but still be only a fraction of the cost of what it would take
to implement any projects determined to be feasible. The commenter
noted that a typical project consists of conceptual level design,
feasibility level design, and then engineering and implementation. The
association member's experience with hundreds of projects is that the
cost of a conceptual level design is about 1% of the total project cost
and the cost of a feasibility level design is 1% to 2% of the total
project cost.
    EPA acknowledges that for some industries, evaluation of chemical
substitution and process redesign will involve a greater level of
effort and resources to consider the practicability of such changes.
EPA has revised the cost estimates in the RIA to reflect the greater
effort involved in conducting such practicability studies.
g. Model STAA Provisions After Other Regulatory Programs
    Several commenters suggested that the STAA requirement align with
similar requirements by CCHS and NJDEP. Some of these comments are
addressed under other STAA topic headings, as appropriate. Other
specific comments are discussed further in this preamble.
    Establish qualifications for IST review team. One commenter
recommended expanding on the NJDEP requirement which specifies that an
IST review team should be ``a team of qualified experts, convened by
the owner or operator, whose members shall have expertise in
environmental health and safety, chemistry, design and engineering,
process controls and instrumentation, maintenance, production and
operations, and chemical process safety.'' This commenter also wanted
EPA to require the names, qualification, and experience of team members
to be stated in the review report and to explicitly specify that
workers and union representatives can fully participate in the STAA.
Another commenter noted that the proposed STAA requirement does not
require employee participation and stated that employees have deep
experience and knowledge of the processes and are best equipped to
determine inherently safer technology or design, but cautioned that
workers must have adequate education and training to participate in
STAAs.
    EPA notes that Sec.  68.67 requires the PHA to be performed by a
team with expertise in engineering and process operations, and the team
shall include at least one employee who has experience and knowledge
specific to the process being evaluated. Also, one member of the team
must be knowledgeable in the specific process hazard analysis
methodology being used. These same qualifications apply to team members
involved in conducting the STAA. EPA believes most PHA reports already
include the names and qualifications of team members in the report, and
we do not believe it is necessary to prescribe a regulatory requirement
to address this issue. EPA already requires Program 3 facilities to
consult with their employees and their representatives on the conduct
and development of process hazard analysis and on the development of
other elements of process safety management, and EPA believes it would
be inappropriate to incorporate additional provisions related to worker
participation in the PHA requirements of Sec.  68.67.
    Establishing goals. A Federal agency recommended incorporating a
goal setting requirement similar to that of CCC's ISO, expressing
concern that a lack of goal setting requirements could allow regulatory
requirements to be satisfied even if analyses fail to identify or
control major hazards. The commenter explains that there is no RMP
requirement to reduce risks to ``as low as reasonably practicable,'' or
``ALARP'', while CCHS ISO requires facilities to select and implement
ISS to the greatest extent feasible and as soon as administratively
practicable.
    EPA disagrees with commenters. EPA did base some components of the
STAA requirement on NJDEP and CCHS regulations (see discussion in
section in IV.C.3.c Definitions of this preamble). Also see further
discussion in section in IV.C.3.k of this preamble regarding
documentation of feasibility. NJDEP and CCHS require a separate
Inherently Safer Technology review or Inherently Safer Systems Analysis
(ISSA), but NJ requires IST updates (covering both new and existing
processes) on the same schedule as the PHA. CCHS requires an ISSA for
existing and new processes every five years, but the analysis can be
done as part of a PHA. CCHS also requires that an ISSA for any major
changes (which could be result of accident investigation). EPA is
requiring that the five-year PHA revalidation address the findings from
all incident investigations required under section 68.81, as well as
any other potential failure scenarios.
    EPA did not propose to require any implementation of any IST. EPA
proposed to require facilities to determine the feasibility of IST
options, but the final rule allows flexibility for facility owners or
operators to decide whether to implement an IST in order to allow them
to balance the appropriateness of the technology for their process,
costs, risk transfer and other requirements that would have to be met
along with possible integration with the use of existing risk reduction
measures in place. In the final rule, EPA also replaced the term
``feasibility'' with ``practicability.''

    Requiring risk reduction to be ``as low as reasonably practicable
(ALARP)'' is a standard that can be seen as stricter than the ``to the
greatest extent feasible'' requirement set by CCHS and could require
implementation of risk reduction measures ``except where they are ruled
out because they involve grossly disproportionate sacrifices.'' \103\
EPA does not believe that adopting a requirement that facilities reduce
risks to ``ALARP'' is advisable for the RMP program because there are
no set standards to define what level of risk is reasonably practicable
for the variety of chemicals, processes, and hazards involved.
---------------------------------------------------------------------------

    \103\ http://www.hse.gov.uk/risk/theory/alarpglance.htm.
---------------------------------------------------------------------------

h. Feasibility
    Insufficient guidance and clarity for methodology for comparing
risks. A facility, a local agency, and industry trade associations,
among others, remarked that IST cannot be meaningfully and consistently
implemented because there is no consensus in science or among the
industry on its definition, how to implement it, or how to measure its
effect. Stating that the concept of IST is vague, an industry trade
association said that multiple factors are taken into account when
making a determination of feasibility, including materials used for
equipment.
    One commenter stated that the feasibility factors in the proposed
STAA provision also provide no guidance on how to measure or balance
risks or hazards. This commenter notes that there is no simple way to
measure whether one process is safer than another or when a process is
``safe enough'' as discussed in the July 2010 DHS report by CCPS. The
commenter indicated that the proposed rulemaking does not address a
multitude of critical questions: What does the PHA team measure? Does
the team evaluate reduction in particular hazards or in overall risk?
Is that reduction measured quantitatively or qualitatively? Who or what
is the required beneficiary of that reduction--the employees, the
adjacent community, the environment? What level of risk is tolerable?
If EPA requires STAA analysis under the final RMP rule, it will
necessarily need to become involved in measuring, evaluating, and
determining the tolerable level of risk. It is unlikely that EPA has
the expertise or bandwidth to take this on.
    EPA based its definition of IST upon CCPS' descriptions of
inherently safer strategies and its definition of ``practicability''
upon CCHS' definition of ``feasible'' in their Industrial Safety
Ordinance. EPA has existing requirements under Sec.  68.67 for
facilities to evaluate and control hazards in the process and to
establish a system to address the PHA's team findings and
recommendations. Management response to hazard evaluation studies and
recommended options involve risk management considerations that are
developed based on a facility's risk tolerance criteria. EPA has not
prescribed how facilities define or manage risk, whether it involves
conforming to minimum standards such as codes or tries to reduce risk
to as low as reasonably practical or whether it uses risk matrices or
assesses qualitative or quantitative risk. EPA expects only that
facilities consider IST as one of the types of risk management measures
employed. Much of the structure of the RMP rule requires owners and
operators to collect information and relies on them to make reasonable
judgments in light of that information. The requirement here is no
different. EPA only requires the analysis. There is no mandate to
implement IST under this rule. For further information, EPA recommends
consulting Chapter 9--Hazard Identification and Risk Analysis in the
2007 CCPS Guidelines for Risk Based Process Safety.\104\
---------------------------------------------------------------------------

    \104\ CCPS. 2007. Guidelines for Risk Based Process Safety.
American Institute of Chemical Engineers, CCPS, NY, Wiley. Chapter
9--Hazard Identification and Risk Analysis.
---------------------------------------------------------------------------

    Efforts involved for determining feasibility. One commenter
asserted that EPA has failed to consider the substantial complexity of
the activities it is proposing to require, and the significant burden
that will be placed on facilities with multiple or complex RMP
regulated processes. The commenter cited issues involved with many
chemical manufacturing processes that involve multiple optimizations of
complicated reactions and integration of many processes with each
other. The commenter cited as an example, the efforts involved by the
National Academy of Sciences (NAS) to identify and evaluate the many
individual alternative paths to methyl isocyanate (MIC) production for
potential safer operations.\105\ The commenter stated that each
alternative then had implications for the facility, the customer, the
surrounding community and numerous other factors that needed to be
identified, considered and weighed carefully. The commenter further
explained that these factors included the costs of the chemicals, labor
and energy requirements, new capital expenditures, quality of the
product and revenues expected from its production, environmental
impacts anticipated from the process, regulatory constraints,
environmental policy and regulations and influence of local community
on company decision making. The commenter indicated that many of these
characteristics involve a substantial degree of uncertainty. The
commenter also stated that the framework for decision-making discussed
by NAS is akin to the proposed EPA requirement to perform a feasibility
analysis for all ISTs considered. The commenter concluded that under
the EPA proposal, complex chemical manufacturing RMP facilities would
be required to go through this analysis multiple times for each and
every regulated process.
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    \105\ National Research Council of the National Academy of
Sciences, The Use and Storage of Methyl Isocyanate (MIC) at Bayer
CropScience, 2012. https://www.nap.edu/catalog/13385/the-use-and-storage-of-methyl-isocyanate-mic-at-bayer-cropscience.
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    EPA believes a practicability determination for any considered IST
or ISD is necessary to ensure the facility owner or operator seriously
considers whether IST or ISD modifications could further reduce risks
and prevent accidents at the facility. EPA expects that facilities will
only evaluate chemical substitutes that have already been shown to be
commercially viable and does not expect facility owners or operators to
expend a major effort on hypothetical or untested chemical substitutes
or uses.
    Insufficient time to complete a feasibility analysis. One commenter
stated that when evaluating IST, a facility owner may at times be able
to reject an alternative based on determining a single basis of
infeasibility. The commenter asserted that if there is no known
rationale for infeasibility, a facility may need to conduct lengthy and
costly engineering studies, which would require a unit revamp on an
existing process unit. The commenter further stated that under such
circumstances, feasibility or practicality must consider unit
congestion and constructability in addition to all of the issues
associated with a new process. The commenter indicated that this need
to perform detailed engineering study/design, in many cases, is
indicative of impracticability. The commenter concluded that the
proposed rulemaking allows four years after the rule become final for
each PHA to consider IST/ISD alternatives for covered processes and, in
the event the EPA decides to include this requirement in the final
rule, facility owners should be allowed a second PHA cycle, following
the four-

year applicability, where the determination of feasibility or
practicality requires engineering studies and design. Another commenter
stated that the feasibility analysis outlined in the proposed
regulation is ill-defined and doesn't allow sufficient time for the
work to be properly completed.
    EPA allows that where a practicability evaluation is complex and
resource intensive and may not be completed within the four-year
compliance timeframe from the final rule or within the five years
between PHA reviews, a facility should document during their PHA review
that the IST is under consideration and that the practicability of
implementing the technology is unknown and still undergoing evaluation.
    Practicability decisions made by facilities or outside parties. An
environmental advocacy group argued that, if decisions are left up to
facilities themselves, the economic interests of the facilities will
outweigh considerations of public health. The advocacy group concluded
that an independent body should be tasked with reviewing facilities'
IST/ISD evaluations to determine whether or not such technologies are
feasible and to prevent facility self-regulation. One local agency
asserted that stationary sources rather than a regulatory body should
determine the feasibility of ISD and document their decision.
    EPA disagrees that practicability decisions should be made by
outside parties. These decisions are based on site-specific
circumstances that a third-party may not have the experience to
evaluate. EPA believes it would not be practical for many reasons
including: The delay that may result in finding a third-party to assess
practicability; the variety of factors that must be considered in
establishing a basis for choosing an outside party (e.g. there may not
be enough qualified third-parties with the expertise and resources to
evaluate the various options and processes for the number of facilities
subject to this provision); and the need to protect CBI and sensitive
information that could reveal security vulnerabilities.
    Feasible definition does not take into account removal of existing
safeguards. One commenter stated that the proposed definition for
feasible precludes any reasonable basis for replacing existing controls
and safeguards that have already been identified and implemented to
address the risks. This commenter believes that since all the
engineering and administrative controls necessary to address risk have
already been identified and implemented in an operating plant, it is
not appropriate to require a repeated analysis of alternatives that
that are not feasible for an operating plant.
    EPA disagrees with the commenter. The definition of
``practicability'' in the final rule is not intended to be used to
judge the reasonableness or effectiveness of existing risk reduction
measures, but whether new IST measures could be implemented. The STAA
requirements allow a combination of risk measures to be used to achieve
the desired risk reduction; therefore, they do not necessarily preclude
the use of existing controls and safeguards.
    Feasibility factors go beyond scope of a PHA. One commenter
asserted that requiring consideration of the five factors mentioned in
the proposed definition of ``feasibility'' goes beyond the scope of a
PHA.
    EPA disagrees. While the PHA identifies the hazards, the RMP PHA
requirements require the facility to identify the risk management
measures applicable to eliminating or reducing the risks from the
process hazards. EPA believes that it is appropriate for a facility to
consider the five feasibility (now practicability) factors (``economic,
environmental, legal, social and technological'') for evaluating the
appropriateness of implementing for potential IST measures because some
IST can involve significant costs or involve impacts that go beyond the
facility.
    Feasibility does not take into account full supply chain. An
industry trade organization and a facility warned that the proposed
definition of ``feasible'' does not sufficiently consider costs and
benefits and fails to take into account the full supply chain.
Facilities pressured to take these measures, such as reducing
inventories of products, would prevent companies from meeting
customers' needs. For example, downstream users may not even be able to
receive an alternative product.
    EPA disagrees that the practicability determination does not allow
facilities to take into account costs and benefits and the effect on
the full supply chain. The STAA requirements do not require any
implementation of any particular IST. EPA expects that facility owners
or operators will seriously consider the merits and consequences of
ISTs for their facilities and use their expertise and judgement to
ensure safety while not severely affecting the economic viability of
their businesses. Facilities can consider the effects in their supply
chain (downstream and upstream) when evaluating potential IST options.
i. IST Implementation
    Several industry trade associations and a facility expressed
support for EPA's decision not to require implementation of feasible
safer alternatives and noted that the best approach would be to allow
operators to decide which measures, methods, or IST components would be
feasible at their facilities. An industry trade organization requested
that EPA include language stating that ``the scope of the STAA for a
regulated process will be based on the expert judgment of owners and
operators'' because only the facility is uniquely qualified to
determine what types of changes are feasible and practical. The
commenter cited an example where reducing the volume of chlorine
dioxide on-site at a paper mill may not be practical because a minimum
amount is needed to ensure that production of pulp and paper can
continue when operation of the chlorine dioxide generator is
momentarily disrupted due to maintenance or other issues. The commenter
also cited another example in which eliminating the use of chlorine
dioxide for bleaching may not provide the necessary characteristics of
the finished product.
    Many commenters, including multiple mass mail campaigns joined by
approximately 24,610 commenters and advocacy groups, urged that upon
identifying alternatives in an analysis, facilities should be required
to switch to the safest cost-effective chemicals and technologies
available. Among other reasons, one commenter cited the need to
implement feasible alternatives because the NAS report on the Bayer
CropScience accident stated that feasible alternatives should be
attempted before moving on to specification of risk management
equipment and procedures.\106\ This commenter notes that existing
safeguards used have not prevented accidents from occurring and that
CAA section 7412(r)(7)(B)(i), directs that regulations and guidance
under this provision must ``provide, to the greatest extent
practicable, for the prevention and detection of accidental releases of
regulated substances and for response to such releases.'' [Emphasis
added] In addition, this commenter states that not requiring
implementation of IST also creates a competitive disadvantage for those
facilities that do so voluntarily, as compared to other facilities who
will avoid taking available preventative safety measures to maximize
short-term profits. This commenter wants EPA to

require a timeframe for implementation of IST for those facilities who
plan to implement IST as this will prevent accidents from happening
sooner. A commenter urged that required implementation of feasible
alternatives would reduce the risks associated with a catastrophic
release, including from terrorist attacks, and would be important for
protection of public health.
---------------------------------------------------------------------------

    \106\ National Research Council, The Use and Storage of Methyl
Isocyanate (MIC) at Bayer CropScience, at 4-53 (2012).
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    One commenter wanted IST to be implemented wherever feasible
because IST is likely to be more effective and less costly in the long
run than other safeguards, noting that the existing rule requires that
facilities implement the recommendations from a conventional PHA. This
commenter also stated that EPA should model its implementation
requirements on California's Contra Costa County Industrial Safety
Ordinance, which directs companies to ``select and implement each
inherently safer system identified to the greatest extent feasible and
as soon as administratively practicable'' or consider California's
Department of Industrial Relations current proposed requirements for
refineries which directs each facility to ``implement all
recommendations'' from inherent safety analyses, unless the facility
can demonstrate that a recommendation is factually flawed or infeasible
on grounds other than cost alone.
    An industry trade association said that in their industry,
operations are diverse and are constantly evolving, making it difficult
to implement IST. A few industry trade associations warned that
substitution is not a legitimate option for their industries, for
manufacturing of agricultural products or in fragrance industry, for
example. Stating that active ingredients in fragrances are extremely
specific and non-fungible, an industry association commented that any
substitution of fragrance ingredients should be done at the point of
design to minimize the threat to fragrance businesses. The commenter
requested that EPA provide a clear statement acknowledging the
infeasibility of substitution in the fragrance industry. Some
commenters stated that the analysis would be of no benefit for their
facility because a Federal permit requires it to use certain processes.
    EPA agrees that the facility is in the best position to decide what
safeguards or risk reduction measure can be employed to eliminate or
reduce process hazards. Facilities must consider safeguards, in the
following order of preference: IST, passive, active or procedural
measures; however, the rule does not automatically require the facility
to implement the measures preferentially in that order. EPA recognizes
that for any particular hazard point, any one of the four types of
safeguards may not exist or may not be practicable for a variety of
reasons. EPA also recognizes that facilities may wish to employ more
than one safeguard.
    The purpose of the STAA requirement is to ensure that facilities
consider the available options and for them to find the best method for
the facility to address accidental releases. The hierarchy of control
methods in an STAA analysis--IST/ISD, passive, active, administrative--
is consistent with the language of CAA section 112(r)(7)(B)(i) in that
it systematically provides for the identification of practicable
control methods while also recognizing that the regulation must be
reasonable. This approach is consistent with the current PHA
requirements which provide flexibility for the owner or operator to
decide which safeguards are appropriate to prevent accidental releases.
We expect STAA analyses to lead to new control approaches at sources
where management finds such approaches to be reasonable and
practicable.
    EPA is not requiring implementation of IST at any facility because
we believe that only the facility has the expertise and resources to
determine whether implementation of any IST or ISD should be
undertaken, taking into account that many factors must be considered
when substituting a chemical or modifying a process, including cost,
risk transfers, technological hurdles, etc. Facilities that choose to
adopt the use of IST or ISD can eliminate or reduce hazards by using
different materials and/or process conditions, which would make
accidental releases less likely, or the impacts of such releases less
severe. The results of the practicability determination must be
documented as part of the current PHA requirements in Sec.  68.67(e),
which requires the owner or operator to document actions to be taken
and resolution of recommendations.
    Also EPA does not believe we should establish a required timeframe
for any planned implementation of IST. Planning, design, equipment
modification and cost to implement IST can vary tremendously depending
on the technology and scope of the project and could only be best
determined by the facility involved in such implementation.
    EPA acknowledges that chemical substitution or whole design
processes may be not practicable for some processes for a variety of
reasons and that facilities should document these reasons for any
particular IST that were considered by the facility for purposes of
complying with the STAA requirements.
j. Security and Risk
    Terrorism. A commenter cited an increased risk of global and
domestic terrorism as a reason to broaden the applicability of STAA
requirements to cover transportation and storage of liquid chlorine.
Another commenter stated that the existing RMP provisions already
require the PHA team to consider safer alternatives, and warned that
explicitly stating consideration or implementation of IST can expose
facilities to risks, such as increased opportunity for terrorism, risk
transfer, and risk accumulation. The commenter remarked that chemicals
handled are highly dependent on the processes employed, so it would be
difficult or impossible to identify an absolute safer alternative. The
commenter concluded that facilities should asses the total risk reduced
by implementation and stated that any alternative considered should be
easily applied and properly tested.
    EPA acknowledges that transportation and storage of liquid chlorine
can pose risks, not only from accidental releases, but from
intentionally caused releases. However, EPA is limiting the scope of
applicability of the STAA requirements in order to balance the
regulatory and administrative burdens of assessing IST against the
accident rate and possible opportunities to employ IST because of
process complexity for various industries. EPA believes that the
industries subject to the STAA provisions are also more likely than
others to have the expertise and resources to properly assess and
implement IST.
    In response to the commenter's concern that explicitly stating
consideration or implementation of IST can expose facilities to risks,
EPA believes that the STAA provisions in the final rule provide enough
flexibility for owners and operators to consider a hierarchy of risk
management measures to minimize the hazard of a process without
prescribing an approach that could compromise facility security or
transfer or increase risks. The STAA requirement does not require IST
implementation but instead allows the facility owner or operator to
determine whether an IST considered would achieve a reduction in risk,
specific to the hazard being addressed. More specifically, the STAA
requirement allows for a combination of risk management measures to be
used to achieve the desired risk reduction. This

flexibility acknowledges that there is not always an absolute safer
alternative to a chemical, which is highly dependent on the process or
application and the chemical involved. EPA is also requiring the
facility to evaluate the practicability of any IST or ISD considered to
account for economic, environmental, legal, social, and technological
factors. Environmental factors would include consideration of potential
transferred risks for new risk reduction measures. This allows
facilities to carefully consider whether an IST could create new risks
or security concerns, including those involving terrorism.
    Security concerns related to STAA documentation. An industry trade
association urged that if (or when) IST becomes applicable to a certain
process, methods should be available for additional review. For
example, the commenter said that documentation of safer technology
information should be considered from a homeland security and critical
infrastructure perspective.
    EPA agrees that documentation that could reveal vulnerabilities at
an RMP-regulated facility must be secured. Therefore, although EPA is
requiring facility owners and operators to document STAA and
practicability determinations, EPA is not requiring this information to
be submitted to implementing agencies, LEPCs or local emergency
response officials. These entities have the ability to request
documentation, at which point representatives of the facility and the
requesting agency can discuss the security concern and involve security
agencies as appropriate.
k. STAA Documentation
    Extent of STAA documentation. Some commenters urged EPA to require
sufficient, detailed documentation of feasibility and alternatives
considered. One commenter asserted that requiring sufficient
documentation of alternatives would facilitate the incorporation of
safer design principles into the PHA and would enhance the integrity of
the process and encouraged a more extensive documentation of
feasibility similar to the program in Contra Costa County, California.
An advocacy group suggested that entities should be required to
document economic benefits as well and quantify specific economic
benefits of adopting safer options, such as reduced liability and
insurance costs, public benefits such as savings to municipalities for
reduced emergency response, and savings to workers and affected
residents for medical care, property damage, etc.
    An industry trade association asserted that any requirement for
entities to determine or document feasibility would be beyond EPA's
authority and would be inappropriate because it does not provide
sufficient detail of what would be required in a ``determination'' or
information about how the determination was considered. An industry
trade association expressed general opposition to a documentation
requirement. A state agency requested clarification as to what type of
documentation would be required in order to demonstrate compliance.
    EPA is not specifying any particular form of documentation for STAA
given the potential complexity of analysis, variety of risk reduction
measures involved and the factors that may be considered for
feasibility and/or implementation. Facilities should retain any
reports, analysis, findings and recommendations used to comply with the
STAA requirements for the life of the process as is required by Sec.
68.67(g). For IST/ISD measures considered, facilities should document
the analysis and methodology used to evaluate or consider IST, its
feasibility and the recommendations of the review team. Facilities may
follow, for example, guidance for IS Review Documentation found in
CCPS's Inherently Safer Chemical Processes, which suggests documenting
the summary of the approach used for the IS review (i.e., methodology,
checklist, etc), names and qualifications of the review team, IS
alternatives considered, as well as those already implemented or
included in the design, results of each consideration including those
not considered and why, documentation of feasibility and rationale for
rejection of IS opportunities. Facilities must provide in their RMP,
any inherently safer technology or design measures implemented since
the last PHA, if any, and the technology category (substitution,
minimization, simplification and/or moderation) (Sec.  68.175(e)(7)).
    CBI. A facility contended that changes in process technology
involving IST or ISD could be considered CBI, have a substantial impact
on the strategic competitive nature of their operation and necessitates
provisions to ensure that CBI claims can be asserted for IST or ISD
implementation. An environmental advocacy group stated that facilities
should have the ability to withhold CBI based on existing standards
when they submit their STAA to EPA.
    EPA is not requiring the STAA or its documentation within the PHA
to be automatically submitted to EPA nor to anyone else, but such
analysis or documentation must be kept as records under the
recordkeeping requirements of Sec.  68.200 and be available for
inspection or review by EPA. Owners or operators may assert claims of
CBI for information requested by EPA following the procedures in
Sec. Sec.  68.151 and 68.152 if the information meets the criteria set
forth in 40 CFR 2.301.
l. Availability and/or Submission of STAA Documentation
    Many commenters, including multiple mass mail campaigns joined by
approximately 22,260 commenters, a Federal agency, and advocacy groups,
stated that RMP facilities should be required to submit their STAA
information to EPA. An environmental advocacy group suggested that the
collection of STAAs is vital for the establishment of a clearinghouse
of safer technology and alternatives and that EPA should certify STAAs
for accuracy and completeness. One commenter suggested that by
requiring the submission of STAAs to EPA, the Agency will enhance the
quality of STAA assessments and feasibility analysis. This commenter
also believed STAA submission would better inform enforcement under the
CAA's General Duty Clause by providing the Agency with world class
knowledge of feasible safer alternatives and effects taken under the
EPA's 2017-2019 NEI approved on February 18, 2016.
    Two local agencies stated that STAA information should be retained
on-site at the facility for inspection or be submitted upon request to
be reviewed by EPA and implementing agencies. One commenter said that
information on IST should be maintained at the stationary source.
    In contrast, other commenters, including multiple industry trade
associations, remarked that EPA should not require RMP-regulated
facilities to submit STAA information to EPA. Some industry trade
associations argued that EPA or any other implementing agency will
likely lack the required knowledge, resources, or expertise to evaluate
an STAA or feasibility determination. An industry trade association
asserted that EPA should have no role in analyzing or approving the
plans. An industry association argued that any requirement for approval
of STAAs by EPA would be too similar to a permitting program and would
thus be against Congress' intent as per CAA section 112(r)(7)(F).
    Some commenters suggested that the submitted STAA information
should be included in the RMP National Database and facilities be
allowed to withhold CBI based on current RMP CBI

protections and facility-specific, element-specific, up-front
substantiation of security claims. A professional organization
encouraged EPA to use the STAA summary information provided in the RMPs
to gather helpful data and incorporate lessons learned. One commenter
reasoned that collection of STAA data is necessary for EPA and other
regulatory agencies to carry out their regulatory responsibilities.
Another commenter asserted that incorporating summary STAA information
into RMPs will facilitate knowledge of successful practices as well as
knowledge of barriers.
    Two commenters suggested that EPA collect information from
facilities that change program levels within RMP or deregister entirely
in order to collect valuable lessons learned for future use about IST
preventive measures and reducing on-site quantities. One commenter
expressed concern that the current deregistration reason codes are not
sufficient to allow EPA to collect basic information about lessons
learned from deregistered facilities and suggested adding a code
representing ``implemented IST/ISO'' paired with a field to indicate
the nature of the change.
    Some commenters wanted more detailed information about STAA to be
provided in the RMP. Suggested additional information included:
Descriptions of the alternatives evaluated; description of each option
chosen for implementation and timeline; reasons for not implementing
IST such as (1) cost; (2) technical feasibility; (3) conflicts with
other regulatory requirements or good practices; (4) other hazards; (5)
other (indicate reason) or by listing one of the factors included in
the definition of ``feasible:'' time, economic, environmental, legal,
social, or technological; and an attestation and checklist
demonstrating a comprehensive accounting of potential benefits,
savings, and avoided costs associated with each major option.
    One commenter recommended that an independent body be in place to
carefully review the facilities' IST/ISD evaluations to assist in
determining whether or not such technologies are feasible and to
prevent facilities from self-regulating.
    Some commenters wanted STAA and documentation to be made publicly
available, and allowed with reasonable protections, for genuine CBI and
trade secrets. An advocacy group recommended allowing public comment
and response on facilities' STAAs. A few commenters wanted STAA
summaries to be available to at-risk communities and the public both
online and offline, including at public meetings required at Sec.
68.210.
    Reasons given by commenters for providing public availability of
STAA included:
     To hold companies accountable and facilitate significant
process safety changes with appropriate public discussion and oversight
from other stakeholders;
     To ensure right-to-know and transparency for affected
workers and communities;
     To provide comments on the STAA and get implementing
agency response;
     To have facilities that have adopted IST receive public
credit for their positive steps; and
     To ensure opportunities for at-risk communities to engage
with facilities about alternatives and prevention plans.
    EPA is not requiring automatic submission of STAA information or
documentation to EPA or requiring that it be made available to the
public. EPA acknowledges there is much public interest in having STAA
and documentation available to them, but STAA will be part of a PHA
which can be a lengthy (e.g., the sectors subject to STAA requirements
have multiple processes and some PHAs are hundreds of pages)
technically complex document that could contain not only CBI, but
sensitive security information involving process or equipment
vulnerabilities. Some commenters' suggested solution of having
facilities sanitize submitted documents and provide upfront
justification of CBI claims would entail a significant level of burden
upon industry and EPA. It would not be practical or good use of
resources to have thousands of documents submitted to EPA, to any other
body or with the RMP submission. EPA can inspect documents on-site or
request their submission from facilities as needed.
    EPA believes that primary utility of STAA information for the
public is whether or not facilities are implementing IST and the nature
of that change. EPA is requiring that basic information on IST being
implemented be provided in the RMP submission in accordance with Sec.
68.175(e)(7). Facilities must provide in their RMP any inherently safer
technology or design measures implemented since the last PHA, if any,
and the technology category (substitution, minimization, simplification
and/or moderation). In the event of a public meeting held after an
accident, EPA encourages facilities to provide information about any
IST or other safer technology alternatives that the facility is using
or could be using and suggests that the public use this forum to
inquire about ISTs implemented at the facility.
    EPA is not adopting an approval process for STAA analyses, either
by an independent board, by the implementing agency, or by any
emergency planning entity. We recognize nothing in the statute
prohibits the adoption of an approval process. The language of CAA
section 112(r)(7)(F) is directed towards the need for an operating
permit under Title V of the CAA and therefore has no bearing on whether
the underlying substantive rule may establish an approval process. In
CAA section 112(r)(7)(B)(iii), the statute specifically requires EPA's
rules to establish a system that provides for review and, if necessary
revision of RMPs (see 40 CFR 68.220). Nevertheless, the approach we
adopt in this final rule, which requires the owner or operator to
conduct a STAA review and document its review in general and its
reasoning for not adopting practicable IST/ISD, is consistent with the
overall approach of the RMP rule to rely on the development and
assessment of information to lead owners and operators to adopt
reasonable measures to prevent accidents.
m. Clearinghouse
    Some commenters, including a Federal agency, a state agency,
environmental advocacy groups, and a local agency, supported the
establishment of a publicly available online clearinghouse providing
information about the feasibility and efficacy of safer substances and
processes. A Federal agency commented that such a database would also
be a useful resource for insurers, chemical process vendors, emergency
responders, academic researchers, and other government agencies, such
as OSHA.
    One commenter remarked that such a clearinghouse should be
dedicated to the topic of safer technology and alternatives and should
be managed by either EPA, another Federal agency, or an independent
third-party rather than industry-funded academics or institutions. One
commenter suggested that a clearinghouse could be developed by EPA or a
third-party such as CCPS or Texas A&M's Mary Kay O'Connor Process
Safety Center.
    A few industry trade associations remarked that the creation of a
clearinghouse would be redundant with some resources already publicly
available. For example, one trade association asserted that it has
effectively created its own clearinghouse through the publication and
maintenance of its own publicly available publications, semi-annual

conferences, and regular member exchange forums. Additionally, this
organization stated that it hosts a technology symposium every other
year, where members can learn about new technologies, both from members
sharing their experiences and directly from vendors and consultants.
Another trade association suggested that the searchable database of all
patents and patent applications available from the US Patent and
Trademark Office can be used as a clearing house for safer technology
and that information on unpatented technologies is readily available
through the internet and other means.
    Another industry trade association warned that a government
clearinghouse would not reduce chemical accidents because each chemical
process is highly complex and unique and it would be difficult to find
value in a massive database of technologies. A commenter warned that
any clearinghouse would be required to have many ground rules so as to
clarify what factors were at play in the IST decision. The commenter
expressed concern that the clearinghouse could be harmful or not useful
if the information was selective in detail because an IST selected by a
stationary source may be narrow in scope for a specific set of risks to
be avoided or mitigated. The commenter also stated that it is possible
companies would provide information lacking enough detail to be useful.
Another commenter cautioned that one type of technology, system or
design that works for one facility or process may not work for another
facility or process, due to differing processes and other conditions.
    EPA is not finalizing a provision to establish a clearinghouse in
this rule. EPA will further consider the comments and suggestions on
establishing a safer technologies and alternatives information
clearinghouse should we pursue an effort to develop and establish such
a clearinghouse in the future. Currently, industry and other
stakeholders can share chemical safety and security best practices,
including those involving safer technologies and alternatives, at the
Executive Order 13650 best practices Web site.\107\ EPA encourages
stakeholders to review information shared through this forum and to
submit best practices on safer alternatives or other best practices
that serve to improve chemical safety and security.
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    \107\ https://www.osha.gov/chemicalexecutiveorder/LLIS/index.html.
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D. Stationary Source Location and Emergency Shutdown

    EPA discussed the importance of location of stationary sources and
their emergency shutdown capabilities in the preamble of the proposed
rulemaking. However, EPA did not propose any provisions related to
these issues.
1. Discussion of Comments on Stationary Source Location
    The location of stationary sources, and the location and
configuration of regulated processes and equipment within a source, can
significantly affect the severity of an accidental release. The
location of the stationary source in relation to public and
environmental receptors may exacerbate the impacts of an accidental
release, such as blast overpressures or concentrations of toxic gases,
or conversely may allow such effects to dissipate prior to reaching
receptors. EPA requested comments on whether to consider stationary
source location requirements for future rulemakings, including the
scope of such requirements, or whether the Agency should publish
guidance. EPA received multiple comments on this issue.
    Commenters indicated that EPA should use stricter standards for
calculating blast radius areas for new and existing facilities to
ensure that communities, schools, and hospitals are outside of the
blast impact. One commenter stated that EPA should use information
availability requirements to better inform and protect local
communities from accidents. A Federal agency and state/local agency
requested that EPA consider the stationary source location issue in
future rulemakings. A professional organization requested that EPA
consider a 2014 Fire Protection Research Foundation report in future
requirements for stationary source location.
    Several commenters argued that facilities should be located where
no damage could occur to people and homes, asserting that the proposed
rulemaking does not go far enough to ensure public safety. Some of
these commenters specifically mentioned the Rancho LPG facility in San
Pedro, California, and asked that EPA review the siting of this
facility due to the danger it poses to the surrounding community.
    A local agency and an advocacy group asked that EPA consider IST or
risk reduction methodologies and the importance of buffer zones in
siting of new stationary sources. Multiple state and local agencies and
an association of government agencies requested new guidance and tools
for localities to clarify additional requirements for stationary source
location. One commenter stated that EPA should consider reverse 911
calls to public receptors in setting requirements.
    However, numerous commenters opposed adding provisions to address
stationary source location issues in the proposed rulemaking, citing
OSHA's PSM regulations and the lack of authority in the CAA. One
commenter stated that EPA should not propose any additional
requirements on the location of stationary sources. Multiple comments
indicated that states and localities, not EPA, should regulate the
siting of facilities.
    EPA will consider these comments when determining whether to
develop guidance or propose stationary source location requirements in
a future action.
2. Discussion of Comments on Emergency Shutdown
    The RMP regulation requires owners and operators of stationary
sources to develop and implement written operating procedures for the
safe and timely emergency shutdown of Program 2 and Program 3
processes, to ensure operator training for these procedures, and for
maintaining the mechanical integrity of emergency shutdown systems.
However, the regulation does not explicitly require that all covered
processes must include emergency shutdown systems.
    EPA requested comment on whether emergency shutdown system
requirements should be considered for future rulemakings, including the
scope of such requirements, or whether the Agency should publish
guidance.
    Many commenters supported additional regulations and/or guidance on
emergency shutdown systems regulations and/or guidance. Local agencies
stated that EPA should issue regulations or guidance requiring that all
processes be built such that they can be placed in a safe state during
an emergency. Another local agency recommended that EPA publish
guidance on emergency shutdown systems to assist regulated entities in
evaluating various alternatives, but argued that including emergency
shutdown systems in a future rulemaking would be infeasible for
existing locations. One commenter stated that EPA should consider
reverse 911 calls to public receptors in setting requirements. A state/
local agency expressed support for emergency shutdown systems
requirements in a future rulemaking, to include operating procedures
and annual testing.

    However, several commenters argued that EPA should not propose any
additional requirements--regulations or guidance--on emergency shutdown
systems. These commenters asserted that existing regulation and
facility practices address emergency shutdown issues. One commenter
supported EPA's decision to forgo an emergency shutdown system
requirement, arguing that exclusion is consistent with RMP's
performance-based nature, but opposed EPA's suggestion to issue a
guidance document. Another commenter opposed a ``one-size-fits-all''
rule or guidance for emergency shutdown systems and argued that EPA
should propose specific regulatory text in a future rulemaking should
it decide to regulate emergency shutdown.
    EPA will consider these comments when determining whether to
develop guidance or propose emergency shutdown system requirements in a
future action.

V. Emergency Response Preparedness Requirements

A. Emergency Response Program Coordination With Local Responders

1. Summary of Proposed Rulemaking
    EPA proposed to require owners or operators of ``responding'' and
``non-responding'' stationary sources to coordinate response needs with
local emergency planning and response organizations to ensure that
resources and capabilities are in place to respond to an accidental
release of a regulated substance. Responding stationary sources also
would be required to comply with the emergency response program
provisions of Sec.  68.95 when the outcome of coordination activities
demonstrated that local public emergency response capabilities were not
adequate to appropriately respond to an accidental release at the
stationary source, or when the LEPC or equivalent requested in writing
that the owner or operator comply with the requirements of Sec.  68.95.
``Non-responding'' stationary sources need not have complied with Sec.
68.95 provided that the coordination activities indicated that adequate
local public emergency response capabilities are available to
appropriately respond to accidental releases at the source, appropriate
mechanisms are in place to notify emergency responders when there is a
need for a response, and the LEPC or equivalent has not requested in
writing that the owner or operator comply with the requirements of
Sec.  68.95.
    The proposed coordination provisions would have required
coordination to occur at least annually, and more frequently if
necessary to address changes at the source, in the source's emergency
action plan, in local authorities' response resources and capabilities,
or in the local community emergency response plan. The owner or
operator would also have been required to document coordination
activities, including the names of individuals involved and their
contact information, dates of coordination activities, and the nature
of coordination activities. The proposed coordination provisions of
Sec.  68.93 also would have required sources with regulated toxic
substances to coordinate response actions with the LEPC or equivalent,
and sources with only regulated flammable substances to coordinate with
the local fire department. This language is similar to the language in
Sec.  68.90(b)(1) and (2) of the original rule, which requires that
sources with toxic substances held above threshold quantities be
included in the community emergency response plan developed under
EPCRA, and sources with only regulated flammable substances held above
threshold quantities coordinate response actions with the local fire
department.
    The proposed rulemaking retained all emergency response program
provisions from Sec.  68.95 of the original rule, and made two
additions. The first was to modify Sec.  68.95(a)(1)(i) to require that
release notification procedures included procedures to notify Federal
and state emergency response agencies, in addition to the existing
rule's requirement to notify the public and local emergency response
agencies. The second addition was to modify Sec.  68.95(a)(4) to
require the owner or operator to review and update the emergency
response program annually, or more frequently if necessary, to
incorporate recommendations and lessons learned from emergency response
exercises, incident investigations, or other available information. The
proposed rulemaking also would have replaced the phrase ``local
emergency planning committee'' with the acronym ``LEPC.''
2. Summary of Final Rule
    In this rule, EPA has retained the proposed term ``Responding
stationary source'' as a heading for Sec.  68.90(a) and ``Non-
responding stationary source'' as a heading for Sec.  68.90(b), as an
indication of whether or not a facility is required to comply with the
emergency response program provisions of Sec.  68.95. Section 68.90(a)
is otherwise unchanged from the existing rule, as are Sec.
68.90(b)(1), (2), and (3). EPA is also adopting as proposed paragraphs
Sec.  68.90(b)(4) and (5), which require the owner or operator of a
non-responding stationary source to perform the annual coordination
activities required under Sec.  68.93, and the emergency notification
exercises required under Sec.  68.96(a), respectively.
    The final rule adopts as proposed Sec.  68.93, but with some
changes, which are discussed in the following sections. Section 68.93
requires the owner or operator to coordinate response needs with local
emergency planning and response organizations to determine how the
source is addressed in the community emergency response plan and to
ensure that local response organizations are aware of the regulated
substances at the source, their quantities, the risks presented by
covered processes, and the resources and capabilities at the facility
to respond to an accidental release of a regulated substance.
    Section 68.93(a) requires coordination to occur at least annually,
and more frequently if necessary, to address changes at the source, in
the source's emergency response and/or emergency action plans, and/or
in the local community emergency response plan.
    Section 68.93(b) requires coordination to include providing to the
local emergency planning and response organizations, the facility's
emergency response plan if one exists, emergency action plan, updated
emergency contact information, and any other information that local
emergency response planning and response organizations identify as
relevant to local emergency planning. For responding stationary
sources, Sec.  68.93(b) also requires coordination to include
consulting with local emergency response officials to establish
appropriate schedules and plans for field and tabletop exercises
required under Sec.  68.96(b). Lastly, Sec.  68.93(b) require the owner
or operator to request an opportunity to meet with the LEPC (or
equivalent) and/or local fire department as appropriate to review and
discuss these materials.
    Section 68.93(c) adopts as proposed the coordination documentation
provisions without revision. Under Sec.  68.93(c), the owner or
operator is required to document coordination with local authorities,
including the names of individuals involved in coordination and their
contact information, dates of coordination activities, and the nature
of coordination activities.
    EPA is finalizing several modifications to Sec.  68.95. EPA has
adopted the proposed addition to Sec.  68.95(a)(1)(i), which requires
that release notification procedures include procedures to notify
Federal and state emergency response agencies, in addition to public
and local emergency

response agencies. The final rule also adopts as proposed revisions to
Sec.  68.95(a)(4), with some modifications. The final rule requires the
owner or operator to review and update the emergency response plan as
appropriate based on changes at the source or new information obtained
from coordination activities, emergency response exercises, incident
investigations, or other available information, and ensure that
employees are informed of the changes.
3. Discussion of Comments and Basis for Final Rule Provisions
    Many commenters, including industry trade associations, advocacy
groups, professional organizations, facilities, Federal and state
agencies, and others supported EPA's efforts to increase emergency
response program coordination between facilities and local responders.
Other commenters including industry trade associations and regulated
facilities stated the proposal would potentially duplicate other
Federal or state requirements or voluntary efforts, or suggested that
EPA should increase enforcement efforts rather than impose additional
requirements in certain areas.
    Although ATF ruled that the fire at West Fertilizer in West, Texas
was intentionally set,\108\ the incident highlighted the need for
better coordination between facility staff and local emergency
responders. The approach EPA adopts in the final rule retains the
proposed rulemaking's promotion of coordination between facilities and
responders while recognizing the concerns of many of the commenters
about LEPCs and owners and operators making determinations about the
abilities and roles of owners and operators as well as LEPCs. We
preserve local flexibility under our approach. Public comments on each
proposed provision to the emergency response coordination and emergency
response program provisions of Subpart E are discussed further in this
preamble, along with EPA's responses and decisions for the final rule.
---------------------------------------------------------------------------

    \108\ See ATF Announces $50,000 Reward in West, Texas Fatality
Fire, https://www.atf.gov/news/pr/atf-announces-50000-reward-west-texas-fatality-fire.
---------------------------------------------------------------------------

a. Designation of ``Responding'' and ``Non-Responding'' Stationary
Sources
    Some commenters objected to EPA's proposal to designate all sources
as either responding or non-responding sources. These commenters
pointed out these discrete categories do not accurately represent the
realities of emergency response, which can include many different
degrees of involvement by facilities and local communities in planning,
preparing for and responding to accidental release events. One
commenter stated that all facilities, regardless of whether they are
responding or non-responding facilities, should have a partnership with
the LEPC or local emergency responders. Another commenter stated that
even facilities with full on-site emergency response capability would
likely rely on local public responders to order and manage shelter-in-
place actions or evacuations. Another commenter stated that all
facilities are responsible for and must be prepared to deal with the
regulated substances they handle and there should be no such thing as a
``non-responding'' stationary source, but this does not mean every
facility needs a technician-level hazmat response team. This commenter
stated that every facility must be able to immediately notify emergency
response agencies when a release having the potential to impact the
public occurs, take actions to protect the lives of employees and the
public, minimize or contain the release, and coordinate with local
response agencies who respond to the release.
    EPA agrees there is a wide spectrum of planning, preparedness, and
response arrangements available to facilities and local communities,
and the two categories of ``responding'' and ``non-responding''
facilities do not fully capture this continuum. EPA also acknowledges
there is some overlap between the obligations of non-responding and
responding facilities. For example, both non-responding and responding
facilities must have mechanisms or procedures in place to notify
emergency responders about accidental releases, and both types of
sources must coordinate emergency response activities with local
responders (and under the final rule, these coordination activities
must occur annually and be documented, as further described further in
this preamble). Because the outcome of coordination activities may
result in different types of response arrangements involving regulated
facilities and communities, EPA understands that a facility's
designation as ``responding'' or ``non-responding'' does not, by
itself, explain all facets of emergency preparedness and response for
the facility.
    These designations are still useful, however, because
``responding'' facilities must meet certain requirements that ``non-
responding'' facilities are not required to meet. Responding facilities
must comply with all of the provisions of Sec.  68.95, which include
developing an emergency response plan, developing procedures for the
use, inspection, and testing of emergency response equipment,
conducting training for employees in relevant procedures, and updating
the emergency response plan to reflect changes at the source. Any
facility that plans to use its employees to take response actions
beyond those specified in its emergency action plan under 29 CFR
1910.38 as a result of an accidental release at the source--which could
include, for example, donning emergency air breathing apparatus in
order to enter an area where a toxic gas leak has occurred with the
intention of stopping or controlling the release--would be expected to
have obtained appropriate equipment and training, and to address these
activities in its emergency response program, even if the facility is
also relying on local responders to supplement its own response, or to
manage offsite response actions such as evacuations and sheltering-in-
place. Therefore, in the final rule, EPA has retained the proposed
terms ``Responding stationary source'' as a heading for Sec.  68.90(a)
and ``Non-responding stationary source'' as a heading for Sec.
68.90(b), as an indication of whether or not a facility is required to
comply with the emergency response program provisions of Sec.  68.95.
b. Evaluating Resources and Capabilities of Local Responders
    The proposed rulemaking would have made the owner or operator's
decision to develop an emergency response program contingent on the
outcome of local coordination activities. Under the NPRM, in order to
be a non-responding facility, the owner or operator would have been
required not only to coordinate with local responders and have
appropriate notification mechanisms in place, but also to confirm that
adequate local public emergency response capabilities are available to
appropriately respond to any accidental release of the regulated
substances at the stationary source.
    EPA received numerous comments objecting to this provision. Many
commenters, including industry trade associations, government agencies,
an association of government agencies, facilities, and other
commenters, expressed concern over ambiguity in the terms ``adequate''
response capabilities and ``appropriate'' response. One commenter noted
that unless they are notified by the LEPC or fire department,
facilities will not know when a change in community response
capabilities or resources occurs. Another commenter pointed out there
is no accepted standard for community emergency

response capability applicable nationwide, and that response resources
and capabilities can only be evaluated in the context of the overall
community's response plan.
    EPA has not adopted this provision in the final rule. While EPA
believes it is important for regulated facilities and local responders
to share information on response resources and capabilities, the Agency
acknowledges the capabilities and resources of local response
organizations are subject to numerous influences, including other
potential demands within the community for local response resources,
local government organization and budgets, Federal, state, and local
regulations, and others. Few if any of these factors are within the
purview of the owners and operators of individual regulated facilities,
and therefore in many cases, owners and operators will not be in a
position to judge the adequacy of local response capabilities and
resources.
c. Developing an Emergency Response Program Upon Receiving a Written
Request From the LEPC
    The NPRM would also have required the owner or operator to develop
an emergency response program in accordance with Sec.  68.95 upon
receiving a written request to do so from the LEPC or local response
authorities. Numerous commenters objected to this provision. These
commenters indicated that the provision would allow or incentivize
LEPCs to absolve themselves of their emergency response obligations
under EPCRA, even if this may not be in the best interest of the
overall emergency response. Several commenters stated that allowing
local authorities to ``opt out'' of their responsibilities would
undermine the mission of those authorities, and that relying on
facilities to fulfill emergency response obligations if an LEPC ``opts
out'' may not be within these facilities' authority or capability.
Several commenters also expressed concern that EPA's proposal did not
include criteria LEPCs must meet before requesting a facility become a
responding facility. One commenter representing an association of state
government response commissions stated that this provision would cause
the vast majority of LEPCs to request facilities become responding
facilities.
    EPA disagrees the proposed provision would have absolved local
responders of their responsibilities under EPCRA or allowed them to
disregard their other response obligations. The proposed provisions
would have had no effect on local authorities' community emergency
planning responsibilities under EPCRA. Also, even in situations where
regulated sources maintain full emergency response capabilities, local
responders would still be responsible for managing the aspects of the
response external to the source, such as community evacuations and
sheltering-in-place. Nevertheless, EPA has decided not to finalize this
provision because of the objections raised by commenters, and because
it would have allowed local governments to place emergency response
program obligations on the owners or operators of regulated facilities
without requisite knowledge of the facility's operations, business
practices, financial condition, and other relevant factors. Also,
commenters pointed out that many facilities--particularly small
businesses--would as a practical matter simply be unable to manage all
of their own response needs, which could include maintaining a full
hazardous materials response team, as well as firefighting
capabilities. In the preamble to the original rule, EPA acknowledged
that small businesses would often be unable to manage these duties.
d. Emergency Response Coordination Activities
    Many commenters, including industry trade associations, advocacy
groups, facilities, government agencies, professional organizations,
and others supported EPA's proposed requirements for improved emergency
response coordination between facilities and local responders. Several
commenters recommended EPA clarify what is meant by ``coordination.''
Some commenters opposed EPA's proposed coordination requirements on the
basis that these activities were already required under other
regulations, or were being carried out voluntarily. Other commenters
expressed concerns about an historical lack of participation by LEPCs
in emergency response coordination activities, or that the proposed
coordination provisions would place increased burdens on local
responders.
    In the final rule, EPA has adopted as proposed the emergency
response coordination provisions of Sec.  68.93, with some changes. One
significant change relates to the modified applicability provisions
discussed previously. In addition to removing the two provisions from
Sec.  68.90 of the final rule that would have made the owner or
operator's decision to develop an emergency response program contingent
on the outcome of local coordination activities, and required the owner
or operator to develop an emergency response program upon receiving a
written request to do so from the LEPC or local response authorities,
EPA has also removed the proposed language in Sec.  68.93 that placed
the focus of coordination on ensuring response resources and
capabilities are in place. This language has been replaced with
language that places the focus of coordination on sharing information
related to emergency planning.
    EPA has also clarified what coordination activities are required.
In the final rule, under Sec.  68.93 the owner or operator is required
to provide local authorities with information about the regulated
substances at the source, their quantities, the risks presented by
covered processes, and the resources and capabilities at the facility
to respond to an accidental release of a regulated substance. Section
68.93(a) requires coordination to occur at least annually, and under
Sec.  68.93(b), the owner or operator is also required to provide the
facility's emergency response plan if one exists, the emergency action
plan required under 29 CFR 1910.38, updated emergency contact
information, and any other information local emergency planning and
response organizations identify as relevant to local emergency
planning. EPA notes that under 29 CFR 1910.38(b), OSHA requires
emergency action plans to be kept in writing, unless an employer has 10
or fewer employees, in which case they may communicate the plan orally
to employees. Under the final rule, if the owner or operator has a
written emergency action plan, that written plan should be provided to
local authorities, but if the plan is an oral plan, the owner or
operator may also communicate the plan orally to local authorities.
    In requiring ``any other information that local emergency planning
and response organizations identify as relevant to local emergency
planning,'' EPA is encouraging local emergency officials to consider
what other facility information may aid them in preparing for
emergencies at the source beyond those specific elements identified in
Sec.  68.93 and Sec.  68.93(b), and request such information from the
owner or operator when conducting annual coordination activities. Such
information could include accident histories, portions of incident
investigation reports relevant to emergency response, incident after-
action reports, records of notification exercises, field and tabletop
exercise evaluation reports, etc. The owner or operator is required to
provide any information requested by local emergency planning and
response organizations, to the extent the information is relevant to
local emergency planning.

    EPA disagrees with commenters who suggested not adopting the
proposed emergency response coordination requirements on the basis that
they are already required under other regulations, or are being carried
out voluntarily. While it is true that in some cases, other Federal or
state regulations contain emergency response coordination provisions
similar to those in the final rule, many regulated sources are not
subject to other regulations with requirements comparable to those in
the final rule. Also, in locations without functional LEPCs, other
local response authorities may be carrying out local emergency planning
functions, and these organizations may be unable to rely on authorities
granted to LEPCs under EPCRA to obtain needed information. Where
regulated sources are already subject to other Federal or state
emergency response coordination requirements comparable to those in the
final rule, compliance with those regulations may be used to
demonstrate compliance with the final rule, to the extent the
activities meet the specific requirements of the rule. Similarly, while
EPA agrees that some facilities may already voluntarily carry out the
coordination activities required under the final rule, not all
regulated facilities do so. Facilities that already carry out these
activities voluntarily may also use them to demonstrate compliance with
the final rule to the extent the activities meet the specific
requirements of the rule.
    EPA understands some communities do not have functional LEPCs, but
has accounted for this possibility by requiring coordination to be with
``local emergency planning and response organizations.'' This term is
intended to encompass all manner of local public emergency planning and
response organizations. In many cases this will be the LEPC, but in
other cases it may be a local emergency management agency, a local fire
department, or another local response organization (or, if appropriate,
multiple organizations). These non-LEPC planning entities can use this
provision to obtain necessary planning information even when they lack
the authority granted LEPCs under EPCRA 303(d)(3). Regardless of
whether or not their community has an active LEPC, EPA expects owners
and operators of regulated sources to make good faith efforts to carry
out the coordination activities required in the final rule. If local
emergency planning and response organizations decline to participate in
coordination activities, or the owner or operator cannot identify any
appropriate local emergency planning and response organization with
which to coordinate, the owner or operator should document their
coordination efforts, and continue to attempt to perform coordination
activities at least annually.
    EPA is also aware that increasing regulated facilities' emergency
response coordination obligations will often place increased demands on
local emergency planning and response organizations through increased
coordination requests made by the owners or operators of regulated
sources located in their communities. This is an unavoidable
consequence of increasing the owner or operator's emergency response
coordination obligations. However, the final rule's emergency response
coordination requirements are intended to be a straightforward
information exchange for both regulated sources and local response
organizations, and therefore should not be highly burdensome for either
party. Also, the regulatory requirements for coordination have been
placed on the owner or operator, rather than local emergency planning
and response organizations. Therefore, local response organizations are
not obligated to participate in the coordination activities specified
in the final rule. In our estimate of the burden of the rule, we have
conservatively projected an estimate of the cost of coordination on
local responders. EPA expects in most cases, local responders will
participate in these coordination activities because it is in their
best interest to have up-to-date information about the risks posed by
regulated stationary sources in their community and sources' emergency
response plans.
e. Frequency of Emergency Response Ccoordination Activities
    Many commenters, including state or local agencies and industry
trade associations, expressed support for EPA's proposal to require
annual emergency response coordination activities between owners and
operators and local emergency response officials. Commenters noted such
ongoing coordination could help clarify roles and responsibilities and
refresh contacts. Some commenters expressed concerns that annual
coordination may be difficult or impractical if a source is remote or
if local authorities refuse to participate. One commenter suggested
that coordination activities should occur on a regular basis at an
appropriate frequency determined by the facility and when there is a
significant change to the source's emergency plan.
    EPA has decided to finalize as proposed the requirement at Sec.
68.93(a) for coordination to occur at least annually and more
frequently if necessary. EPA agrees with the majority of commenters
that believe that regular ongoing coordination is useful to address
changes at the source and in the local community emergency plan. EPA
believes most sources are located close enough to local responders to
make annual coordination activities practical. Where necessary, owners
and operators and local authorities may conduct coordination activities
remotely (e.g., using conference calls, webinars, email, etc.). EPA
does not agree the frequency of coordination should be left completely
up to the source. Sources and local response organizations may choose
to coordinate more frequently than annually, but the Agency believes
annual emergency coordination between regulated sources and local
responders is necessary to the development and maintenance of effective
response plans,\109\ and unlikely to impose an undue burden on any
source.
---------------------------------------------------------------------------

    \109\ See preamble discussion in proposed rulemaking, 81 FR
13671, March 14, 2016.
---------------------------------------------------------------------------

f. Annual Coordination Meetings
    In the proposed rulemaking, EPA did not specifically propose to
require that the owner or operator ``meet with'' local authorities to
conduct annual coordination. However, in the preamble to the proposal,
EPA did indicate that as part of the coordination, the owner or
operator and the local response authorities should ``work together'' to
determine who will respond if an incident occurs, and what would be an
appropriate response. Additionally, in the information availability
section of the preamble to the proposed rulemaking, EPA requested
comment on whether the Agency should require owners and operators to
meet with LEPCs and emergency responders. Several commenters
recommended EPA clarify that coordination activities should include
regular meetings between the owner or operator and local authorities.
These commenters noted that such regular meetings would provide
opportunities for both parties to exchange, update, and discuss
information relating to emergency response planning. One commenter
noted that annual meetings would allow the owner or operator to
communicate potentially security-sensitive information needed for
emergency preparedness and response. A few commenters noted that while
they were in favor of coordination meetings, the owner or operator
should not be held to a requirement for such meetings in situations
where local authorities are

unable or unwilling to participate. Another commenter stated that
coordination meetings should occur, but the frequency of such meetings
should be left up to the owner or operator and local authorities to
decide.
    In Sec.  68.93(b) of the final rule, as part of the required annual
coordination activities, EPA is requiring the owner or operator to
request an opportunity to meet with the local emergency planning
committee (or equivalent) and/or local fire department. The purpose of
the annual coordination meeting is to allow the owner or operator to
update and discuss the information being provided to local authorities,
and to allow local authorities to provide the owner or operator with
updated information on how the source is addressed in the community
emergency response plan. The annual coordination meeting will also
provide an opportunity for local authorities to request any other
information that may be relevant to local emergency planning, and for
the owner or operator to provide this information. In the final rule,
EPA has worded the meeting requirement to only require the owner or
operator to request such a meeting, so that the owner or operator would
not be required to hold a meeting if local authorities are unable or
unwilling to participate. The forum for coordination meetings is left
up to the reasonable judgement of the owner or operator and local
response authorities. They may choose to hold a meeting specifically
for this purpose, or combine the coordination meeting with another
appropriate meeting, such as a regularly scheduled LEPC meeting, if
both parties agree to the arrangement. Where necessary, owners and
operators and local authorities may hold meetings remotely (e.g., via
conference call or webinar).
    g. Coordination of Exercise Frequencies and Plans
    In Sec.  68.96(b) of the final rule the owner or operator of a
responding stationary source is required, as part of their emergency
response coordination activities, to consult with local emergency
response officials to establish appropriate frequencies and plans for
tabletop and field exercises. This provision was added because numerous
commenters, including industry associations, facilities, government
agencies, and others, objected to the potentially high burden
associated with conducting field exercises every five years and
tabletop exercises every year. An association of government agencies
noted that requiring field exercises every five years and tabletop
exercises every year would place substantial burdens on LEPCs and
response agencies, particularly as these organizations are often
composed of volunteers. This commenter recommended that the frequency
and scope of field and tabletop exercises be determined as part of the
coordination process. EPA adopted a modified form of this provision
(which is discussed further in the following preamble section on
Emergency Response Exercises) in the final rule, and therefore added
language to Sec.  68.93 (b) to also require that for responding
stationary sources, coordination must include consulting with local
emergency response officials to establish appropriate schedules and
plans for field and tabletop exercises.
    EPA understands there may be cases where local emergency response
agencies are unable or unwilling to coordinate with a regulated
stationary source on exercise frequencies and plans, or to participate
in exercises. In such cases, the owner or operator may establish
appropriate exercise frequencies and plans on their own, provided they
meet the minimum requirements set forth in Sec.  68.96. Also, the owner
or operator should revisit their exercise schedules and plans at the
next annual coordination opportunity with local response officials, so
that these officials are given an opportunity for input on exercise
schedules and plans, even if they remain unable to participate in the
exercises.
h. Documentation of Coordination Activities
    Many commenters, including state and local agencies and industry
trade associations, expressed support for EPA's proposal to require
documentation of coordination activities. Several commenters requested
EPA clarify how facilities should document coordination activities when
local responders are not available or responsive to a facility's
attempts to coordinate. Some commenters suggested that EPA require
facilities make a reasonable attempt to make arrangements to coordinate
with local responders and document any failure to complete such
arrangements. One commenter suggested facilities should be required to
seek a written or electronic acknowledgement from local responders of
coordination efforts, or, if unavailable, document any efforts made to
coordinate. A few commenters expressed opposition to the requirement
for documentation of coordination. One indicated that such
documentation could ``serve as a basis for mutual accusations or
second-guessing between first responders and the RMP-regulated facility
in the aftermath of an emergency.'' Another indicated that fire
departments in California have found CalARP requirements to document
emergency coordination to be a large burden. A third commenter stated
that if facilities are included in the community response plan, this
should be all the documentation needed to demonstrate coordination.
    EPA has decided to finalize the requirement at Sec.  68.93(c) for
coordination to be documented, as proposed (the final rule reverses the
order that the coordination and documentation provisions appear in the
regulatory text). The final rule does not specifically require the
owner or operator to seek acknowledgement from local responders of
coordination efforts. The owner or operator may seek such
acknowledgement if desired, but local authorities are not required to
provide it. EPA believes the required documentation elements, which
include the names of individuals involved in coordination activities
and their contact information, the dates of coordination activities,
and the nature of coordination activities, should clearly demonstrate
whether local responders were involved in coordination, without
requiring any other specific acknowledgement from local responders. EPA
agrees with commenters that suggested the owner or operator should
document any unsuccessful attempts to coordinate with local response
organizations. The final rule does not specifically require the owner
or operator to document unsuccessful coordination attempts, but EPA
believes it will be in the owner or operator's best interest to do so,
and allow the owner or operator to demonstrate their good faith efforts
to conduct coordination activities in the event an implementing agency
requests this information.
    EPA does not agree with commenters' objections to documentation of
coordination activities. If response to an emergency goes badly,
documentation of prior coordination is more likely to clarify
deficiencies than obscure or exacerbate them. The objection that
documentation could cause a large burden on fire departments is not
applicable to this provision, as the requirement for documentation in
this rule is placed on the owner or operator rather than local
responders, and in any case, the Agency does not view the documentation
requirement as highly burdensome. Most of the documents the final rule
requires the owner or operator to provide to local authorities are
either already required to exist (i.e., emergency response plan and
emergency action plan), or should require minimal effort

to produce (i.e., updated emergency contact information, names and
contact information of individuals involved in coordination activities,
dates of coordination activities, and the nature of coordination
activities). EPA views these documentation requirements as
straightforward and minimally burdensome.
    During coordination meetings, EPA encourages owners and operators
to provide local emergency response officials with additional
documentation relating to emergency planning if those officials request
it. The annual coordination provisions require the owner or operator to
ensure local response organizations are aware of the regulated
substances at the source, their quantities, the risks presented by
covered processes, and the resources and capabilities at the facility
to respond to an accidental release of a regulated substance. The final
rule also requires the owner or operator to provide any other
information local emergency planning and response organizations
identify as relevant to local emergency planning. In most cases, the
Agency believes the most efficient way for the owner or operator to
provide such information is to not only discuss it during annual
coordination meetings, but also to provide appropriate documentation to
local authorities.
    Lastly, EPA does not agree that a facility's inclusion in the
community response plan is sufficient documentation to demonstrate
annual coordination. EPA notes that community emergency response plans
are not prepared or maintained by stationary sources, and that EPCRA
does not require community emergency plans to be updated annually.
Without regular emergency response coordination activities involving
local authorities, the owner or operator could remain unaware of
important changes in the community emergency plan, and local responders
could remain unaware of changes at the source that could potentially
affect the response to an accidental release.
    EPA believes there is a wide range of potential outcomes from
emergency response coordination activities, but the primary purpose of
such coordination should be the regular sharing of information between
the owner or operator and local response authorities. Both the owner or
operator and local responders should benefit from this exchange by
becoming more aware of each organization's response capabilities,
resources, and procedures. Based on these increased coordination
activities, both regulated sources and local response organizations
will be better able to adapt their response plans and procedures to
updated information. This information exchange could also prompt some
facilities to enhance their existing response capabilities, and even to
develop a full emergency response program where none previously
existed. Conversely, such increased coordination could result in local
authorities, in consultation with an owner or operator, deciding that
local public responders are better positioned to respond to releases of
regulated substances at the source than the facility itself.
Additionally, coordination could lead to development of mutual aid
agreements with neighboring facilities, arrangements with response
contractors, or other means to improve community and/or facility
response plans, procedures, and resources. Such measures could enhance
both the community's and facility's ability to effectively respond to
emergencies without necessarily requiring a facility to maintain its
own hazardous materials response team and/or fire brigade, unless the
owner or operator, after coordinating with local authorities, decides
this is the most effective approach.
i. Changes to Emergency Response Program Provisions
    The proposed rulemaking contained two substantive changes to the
emergency response program provisions of Sec.  68.95. The first change
would have modified the emergency response plan provision in Sec.
68.95(a)(1)(i) that requires the plan to include procedures for
informing the public and local emergency response agencies about
accidental releases, to also require these procedures to inform
appropriate Federal and state emergency response agencies about
accidental releases. EPA received no comments on this provision, and
therefore is finalizing it as proposed.
    The second change would have modified Sec.  68.95(a)(4). Under the
existing rule, this provision requires the emergency response program
to include procedures to review and update the emergency response plan
to reflect changes at the stationary source and ensure employees are
informed of changes. The proposed change would have required the owner
or operator to review and update the emergency response plan annually,
or more frequently if necessary, to incorporate recommendations and
lessons learned from emergency response exercises, incident
investigations, or other available information.
    Some commenters stated that requiring annual updates to the
facility emergency response plan is unnecessary, and that EPA should
allow updates to be performed less frequently, such as every three or
five years, unless changes occur. Others stated that the proposed
requirement was vague and should be clarified. A few commenters,
including an industry trade association and a private citizen,
commented that EPA's proposed requirement to require annual updates to
emergency response plans incorrectly assumes the owner or operator will
know when changes in community emergency response resources and
capabilities occur. One facility requested EPA clarify in the final
rule that facilities would not be deemed noncompliant if changes in
local authorities' response plans or capabilities occur without
notification to the facility. A private citizen suggested EPA add a
requirement for local response authorities to provide a copy of the
local community emergency response plan to the facility.
    The final rule has adopted a modified version of the proposed
emergency response plan update provision. Under the final rule, the
owner or operator must review and update the emergency response plan as
appropriate based on changes at the source or new information obtained
from coordination activities, emergency response exercises, incident
investigations, or other available information, and ensure that
employees are informed of the changes. EPA agreed with commenters who
stated that requiring annual emergency response plan updates is
unnecessary. EPA is not finalizing a requirement to update the
emergency response plan annually, because while coordination activities
will occur annually, they may not always generate information that
necessitates changes to the facility's emergency response plan. Other
events that could trigger updates to the emergency response plan, such
as incident investigations and field and tabletop exercises, may also
occur less frequently than annually, and may or may not produce
information that could affect the emergency response plan. Therefore,
EPA has decided to finalize a more flexible update provision. Under the
final rule, the owner or operator is required to update the emergency
response plan, but only when changes at the source, or new information
obtained from coordination activities, exercises, incident
investigations, or other information sources make it appropriate to
change the plan.
    EPA disagrees with commenters who stated the owner or operator will
be unaware of changes in community

emergency response resources that could affect the source's emergency
response plan. EPA believes the annual coordination provision should
ensure the owner or operator is kept up to date on relevant changes in
the community emergency response plan. EPA agrees with commenters that
the owner or operator should not be held responsible for updating the
facility emergency response plan to reflect changes in the local
community emergency response plan if local response officials do not
provide the necessary information. However, the Agency is not requiring
local authorities to provide a complete copy of the local community
emergency plan to the owner or operator. Local authorities may provide
it if they choose, and in some cases the community emergency response
plan may be publicly available information. However, the local
community emergency response plan may also contain a significant amount
of information that is not relevant to the owner or operator, so local
response authorities may prefer to provide only the information from
the community emergency response plan that relates to the stationary
source.
    In the final rule, the Agency has also included a requirement to
ensure employees are informed of any changes to the emergency response
plan. This requirement was already in Sec.  68.95(a)(4) of the existing
rule, but had inadvertently been omitted from the proposed rulemaking
language that revised this section. One commenter noted this issue, and
stated that workers should continue to be involved in reviewing the
emergency response plan. EPA agrees, and therefore has restored this
provision in the final rule.
    Lastly, EPA is finalizing the proposal to replace the term ``local
emergency planning committee'' with the acronym ``LEPC.'' EPA received
no comments on this issue.

B. Facility Exercises

1. Summary of Proposed Rulemaking
    In Sec.  68.96 of the NPRM, EPA proposed to require three types of
emergency response exercises under Subpart E of the RMP rule--
notification, field, and tabletop exercises. Under Sec.  68.96(a), EPA
proposed to require all stationary sources with any Program 2 or
Program 3 process to conduct annual notification exercises that would
include contacting the Federal, Tribal, state, and local public
emergency response authorities and other external responders that would
respond to accidental releases at the source. EPA also proposed that
these exercises be documented and written records maintained for a
period of five years.
    Under Sec.  68.96(b), EPA proposed that responding stationary
sources develop and implement an exercise program that includes field
and tabletop exercises. Under Sec.  68.96(b)(1), field exercises would
have been required at least once every five years, and within one year
of any accidental release meeting the accident history reporting
requirements of Sec.  68.42. Under Sec.  68.96(b)(2), tabletop
exercises would have been required annually, except during the calendar
year when a field exercise was conducted. Also under these provisions,
when planning field and tabletop exercises, EPA proposed to require the
owner or operator to coordinate with local public emergency responders
and invite them to participate in exercises.
    Lastly, under Sec.  68.96(b)(3), EPA proposed to require the owner
or operator to prepare an evaluation report for both field and tabletop
exercises, within 90 days of the exercise. The report would require a
description of the exercise 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. In the
preamble to the proposed rulemaking, EPA indicated the report would
also include an evaluation of the adequacy of coordination with local
emergency response authorities, and other external responders, as
appropriate.
2. Summary of Final Rule
    EPA is finalizing the notification exercise provisions of Sec.
68.96(a) as proposed but with modifications. Under Sec.  68.96(b), the
final rule requires responding stationary sources to develop and
implement an exercise program that includes both field and tabletop
exercises; however, EPA is modifying the exercise frequency to allow an
owner or operator to establish a schedule in coordination with local
officials, with minimum timeframes prescribed in the rule. Exercises
must involve facility emergency response personnel and, as appropriate,