\70\ Lees, Frank P. Loss Prevention in the Process Industries,
Volume 3, 2nd ed. Appendix 4, Mexico City (Oxford: Butterworth-
Heinemann, 1996).
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     1994, Port Neal, Iowa, United States: Terra Industries
explosion involving ammonium nitrate (AN) killed four workers and
damaged onsite ammonia tanks, creating an ammonia cloud that resulted
in the evacuation of 2,500 people in nearby neighborhoods.\71\
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    \71\ EPA. Chemical Accident Investigation Report: Terra
Industries, Inc., Nitrogen Fertilizer Facility (2014), https://archive.epa.gov/emergencies/docs/chem/web/pdf/cterra.pdf.
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     2009, Belvidere, Illinois, United States: NDK Crystal
facility catastrophic rupture of a pressure vessel resulted in one
public fatality and one public injury. A building fragment propelled by
the force of the blast traveled nearly 650 feet and killed a member of
the public at a highway rest stop parking lot. An 8,600-pound vessel
fragment traveled 435 feet and impacted a neighboring business,
injuring one offsite worker and causing significant property
damage.\72\
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    \72\ CSB, ``NDK Crystal Inc. Explosion with Offsite Fatality,''
last modified November 14, 2013, https://www.csb.gov/ndk-crystal-inc-explosion-with-offsite-fatality-/.
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     2013, West, Texas, United States: West Fertilizer Company
explosion involving AN damaged an apartment complex and a nursing home
located approximately 450 feet and 600 feet, respectively, from the
source of the explosion, resulting in 3 public fatalities

(out of a total of 15 people killed in the explosion). The explosion
also caused over 260 injuries, as well as damage to over 350 homes and
3 schools located near the plant.\73\
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    \73\ CSB, ``West Fertilizer Explosion and Fire,'' last modified
January 28, 2016, https://www.csb.gov/west-fertilizer-explosion-and-fire-/.
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     2018, Superior, Wisconsin, United States: Superior
Refining Company, LLC, explosion and subsequent fire in the refinery's
fluid catalytic cracking unit resulted in 36 people (workers and
community members) seeking medical attention. In addition, a portion of
Superior, Wisconsin, had to be evacuated.\74\
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    \74\ CSB, ``Husky Energy Refinery Explosion and Fire,'' accessed
January 28, 2022, https://www.csb.gov/husky-energy-refinery-explosion-and-fire/.
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     2020, Visakhapatnam, Andhra Pradesh, India: LG Polymers
styrene release incident produced a toxic cloud that caused at least 11
fatalities and hundreds of injuries in the nearby community.\75\
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    \75\ Doyle, Amanda, ``Hundreds Hospitalized After Styrene Gas
Leak in India,'' The Chemical Engineer, last modified May 7, 2020,
https://www.thechemicalengineer.com/news/hundreds-hospitalised-after-styrene-gas-leak-in-india.
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    This list of accidents provides examples of the numerous accidents
with offsite consequences resulting from the close proximity of
industrial facilities to public receptors, demonstrating that selection
of locations of processes and process equipment within a stationary
source can impact the surrounding community. Communities are affected
not only by the proximity of accidental releases to offsite receptors
(e.g., people, infrastructure, environmental resources) near the
facility boundary, but also by the increased likelihood of subsequent
releases from other nearby processes compromised by the initial
release. As accidents continue to happen, EPA is proposing to emphasize
the intent of the required siting evaluation to ensure protection of
human health and the environment.
    The OSHA PSM standard and RMP rule both require that facility
siting be addressed as one element of a PHA (29 CFR 1910.119(e)(3)(v),
and 40 CFR 68.67(c)(5)). In response to comments on the proposed PSM
rule, OSHA indicated that facility siting should always be considered
during PHAs and therefore decided to emphasize this element by
specifically listing siting evaluation in regulatory text.\76\ With the
adoption of PHA regulatory text, EPA also recognized the offsite
benefits of siting evaluations. EPA's approach to the siting
requirement is consistent with its general approach to PSM in the 1996
RMP rule: sound, comprehensive PSM systems can protect workers, the
public, and the environment.\77\ The Agency chose to include additional
guidance in a frequently asked questions section of its website to not
only indicate the Agency's expectations, but also to provide guidance
on the RMP rule's coverage of facility siting evaluation to include
consideration of offsite receptors. The guidance states: ``The
requirement to consider stationary source siting during the process
hazard analysis means that you should consider the location of the
covered vessels and evaluate whether their location creates risks for
offsite public or environmental receptors, as well as onsite receptors.
This analysis should consider the proximity of the vessels that could
lead to a release of a regulated substance. The proximity of the
vessels to onsite equipment or activities nearby will have been
considered for OSHA; the proximity of the vessels in relation to
offsite receptors will be considered if not already considered for
OSHA. The analysis may be done qualitatively. The analysis addresses
whether the location of the vessels creates risks that could be reduced
by changing the location or taking other actions, such as installing
mitigation systems.'' \78\
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    \76\ OSHA, Final Rule on Process Safety Management of Highly
Hazardous Chemicals; Explosives and Blasting Agents, 29 CFR part
1910 (1992), https://www.osha.gov/laws-regs/federalregister/1992-02-24.
    \77\ 61 FR 31687; June 20, 1996.
    \78\ EPA, ``Is EPA's PHA Stationary Source Siting Requirement
Analogous to OSHA's PSM?'' accessed January 31, 2022, https://www.epa.gov/rmp/epas-pha-stationary-source-siting-requirement-analogous-oshas-psm.
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    As with other aspects of the RMP rule, EPA expects regulated
facilities to rely on industry guidance to help adequately address
stationary source siting in PHAs. The following examples of relevant
industry guidance on siting considerations are available to facility
owners and operators:
     American Petroleum Institute (API) Recommended Practice
752, Management of Hazards Associated with Location of Process Plant
Buildings.\79\
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    \79\ API, Recommended Practice 752, Management of Hazards
Associated with Location of Process Plant Buildings, 3rd Edition
(December 2020), https://www.api.org/oil-and-natural-gas/health-and-safety/refinery-and-plant-safety/process-safety/process-safety-standards/rp-752.
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     API Recommended Practice 753, Management of Hazards
Associated with Location of Process Plant Portable Buildings.\80\
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    \80\ API, Recommended Practice 753, Management of Hazards
Associated with Location of Process Plant Portable Buildings, 1st
Edition (June 2007), https://www.api.org/oil-and-natural-gas/health-and-safety/refinery-and-plant-safety/process-safety/process-safety-standards/rp-753.
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     CCPS Guidelines for Evaluating Process Plant Buildings for
External Explosions, Fires, and Toxic Releases.\81\
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    \81\ CCPS, Guidelines for Evaluating Process Plant Buildings for
External Explosions, Fires, and Toxic Releases, 2nd Edition (2012),
https://www.aiche.org/resources/publications/books/guidelines-evaluating-process-plant-buildings-external-explosions-fires-and-toxic-releases-2nd.
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     CCPS Guidelines for Siting and Layout of Facilities.\82\
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    \82\ CCPS, Guidelines for Siting and Layout of Facilities, 2nd
Edition (Hoboken, NJ: Wiley, 2018), https://www.aiche.org/ccps/resources/publications/books/guidelines-siting-and-layout-facilities-2nd-edition.
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     NFPA Separation Distances in NFPA Codes and Standards.\83\
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    \83\ Argo, Ted, and Evan Sandstrom, Separation Distances in NFPA
Codes and Standards (The Fire Protection Research Foundation, 2014),
https://www.nfpa.org/-/media/Files/News-and-Research/Fire-statistics-and-reports/Hazardous-materials/RFSeparationDistancesNFPACodesAndStandards.ashx.
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    The CCPS ``Guidelines for Siting and Layout of Facilities''
addresses external factors influencing site selection, as well as
factors internal to the source that could influence site layout and
equipment spacing. The most recent edition of this CCPS publication was
updated to address many developments in the last decade that have
improved how companies survey and select new sites, evaluate
acquisitions, and expand their existing facilities.\84\ The title was
also updated to emphasize not only siting of buildings and unit
operations within a facility, but also siting of facilities within a
community. The guidance addresses identifying the process hazards and
risks, selecting a facility location, selecting process unit layout
within a facility, selecting equipment within a process unit, and
managing changes.
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    \84\ CCPS, Guidelines for Siting and Layout of Facilities, 2nd
Edition (Hoboken, NJ: Wiley, 2018), https://www.aiche.org/ccps/resources/publications/books/guidelines-siting-and-layout-facilities-2nd-edition.).
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    As an industry-specific example for siting, the Compressed Gas
Association's (CGA's) ``G-2.1--Requirements for the Storage and
Handling of Anhydrous Ammonia,'' \85\ among other things, requires
facilities with anhydrous ammonia systems to apply specific location
requirements for processes, such as tank loading and unloading
operations, and equipment, such as ammonia storage containers, piping,
and nurse wagons. It also includes specific minimum separation
distances from storage containers to railroad mainlines, highways,
lines of

adjoining properties, and places of public assembly and residential and
institutional occupancy. Asmark Institute,\86\ a well-known
agricultural industry organization, developed an RMP Program 2 Hazard
Review checklist as a resource for its industry to apply CGA G-2.1 and
other applicable industry standards.\87\
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    \85\ ANSI/CGA, Requirements for the Storage and Handling of
Anhydrous Ammonia (an American National Standard) (2014), https://webstore.ansi.org/standards/cga/ansicga2014.
    \86\ Asmark Institute, https://www.asmark.org/.
    \87\ Asmark Institute, MyRMP Hazard Review Worksheet for Program
2 Facilities with Anhydrous Ammonia (2015), https://www.asmark.org/myRMP/Forms/P2AnhydrousWorksheet.pdf.
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    Despite enforcement and the consequences of catastrophic accidents,
issues of siting continue to threaten process safety. For example, in
2018, EPA took an enforcement action against an agricultural anhydrous
ammonia sales operation in Missouri that failed to identify the hazards
associated with the proximity of the facility to a home and a nearby
firehouse.\88\ In 2021, EPA took an enforcement action against a
chemical manufacturing facility in Maine that did not address the
facility's proximity to a nearby bay; lack of proximity to external
trained emergency responders; and process layout--specifically, the
proximity of shutdown valves to operations.\89\
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    \88\ Available at https://yosemite.epa.gov/oa/rhc/epaadmin.nsf/
Filings/E54E9167BD7A4EF6852582C0001BCFD5/$File/CAA-07-2018-
0214%20United%20Cooperatives%20CAFO.pdf.
    \89\ Available at https://yosemite.epa.gov/OA/RHC/EPAAdmin.nsf/
Filings/D26E190D9B6DA9E18525875F006CA916/$File/CAA-01-2021-
0070%20CAF)%20ViewPDF%20(8).pdf.
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    EPA reviewed data from OSHA PSM PHA enforcement actions. In 2018,
16 cases were filed where facility siting was cited as a serious
violation \90\ that could cause an accident or illness that would most
likely result in death or serious physical harm.\91\ One of those cases
was also reported as an RMP accident that occurred on September 1,
2016, at the Brookshire Grocery Company's distribution center in Tyler,
Texas. A failure in the piping on the roof of the cold storage building
caused an ammonia leak. The leak caused 16 injuries and resulted in the
evacuation of the building, the closure of a nearby intersection, and
the need for nearby residents to shelter in place.\92\ Given the
potential risk demonstrated by recurring accidents, EPA seeks to ensure
that emphasis is placed on the importance of all aspects of a proper
facility siting evaluation.
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    \90\ Identified as a ``serious'' violation under OSHA in: OSHA,
``Federal Employer Rights and Responsibilities Following an OSHA
Inspection-1996,'' accessed January 31, 2022, https://www.osha.gov/
publications/
fedrites#:~:text=SERIOUS%3A%20A%20serious%20violation%20exists,have%2
0known%20of%20the%20violation.
    \91\ U.S. Department of Labor, ``Data Catalog; OSHA Enforcement
Data; osha_violation'' accessed March 17, 2022, https://enforcedata.dol.gov/views/data_summary.php.
    \92\ Louanna Campbell, ``Tyler Fire Marshal's Office Releases
Cause of Ammonia Leak at Brookshire's Warehouse,'' last modified
September 5, 2017, https://tylerpaper.com/news/local/tyler-fire-marshals-office-releases-cause-of-ammonia-leak-at-brookshires-warehouse/article_3a7581b2-63b9-57b9-96c2-0b163f546668.html.
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    In a 2014 RMP request for information (RFI),\93\ EPA requested
comments on whether to consider stationary source location requirements
for future rulemaking. EPA specifically asked whether it should amend
the RMP rule to include more specific siting requirements as part of
the PHA. Though EPA received comments on the issue, EPA chose not to
move forward with additional action on siting in the amendment's final
rule but indicated that the Agency would consider comments for a future
rulemaking.
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    \93\ EPA, Accidental Release Prevention Requirements: Risk
Management Programs Under the Clean Air Act, Section 112(r)(7),
Proposed rule, 79 FR 44603 (July 13, 2014), pp. 44603-44633, https://www.federalregister.gov/documents/2014/07/31/2014-18037/accidental-release-prevention-requirements-risk-management-programs-under-the-clean-air-act-section.
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    In response to the RFI, commenters opposed adding additional
provisions to address stationary source siting, citing as rationale
that:
     Existing facilities have limited flexibility to alter
locations onsite.\94\
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    \94\ EPA-HQ-OEM-2014-0328-0121; 0543, 0548, 0605, 0616, 0624.
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     Specifying or requiring buffer or setback zones is a
complicated issue and must be looked at differently for new and
existing facilities.\95\
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    \95\ EPA-HQ-OEM-2014-0328-0543; 0546, 0584, 0616, 0632.
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     EPA would be intruding on local zoning codes when
establishing siting criteria.\96\
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    \96\ EPA-HQ-OEM-2014-0328-0543; 0584, 0614, 0616, 0624, 0626,
0646, 0667.
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     Existing industry guidance is sufficient.\97\
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    \97\ EPA-HQ-OEM-2014-0328-0121; 0543, 0546, 0605, 0620, 0624,
0640, 0665.
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     Requiring additional siting requirements for both new and
existing facilities could result in significant cost to the regulated
entity.\98\
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    \98\ EPA-HQ-OEM-2014-0328-0624; 0626.
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    One opposing commenter specifically indicated that, to date, EPA
has allowed for siting considerations to be included under performance-
based elements of the RMP program. The commenter stated that any
modification of the existing requirements would be inconsistent with a
risk-based management system approach.\99\ Another commenter, although
generally in opposition to new siting requirements, stated that for
existing facilities, the owner/operator should demonstrate that other
technologies, such as early detection, early communication, prevention
measures, and mitigation measures, are applied to manage risk within
acceptable levels. This commenter also stated that in some cases, it
may be necessary to make process changes, and in unique cases where the
risk cannot be abated, owners/operators should consider relocation of
part or all facility operations.\100\
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    \99\ EPA-HQ-OEM-2014-0328-0691.
    \100\ EPA-HQ-OEM-2014-0328-0543.
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    There were also commenters who argued stationary source siting
should be expanded in the RMP rule. For example, one commenter stated
the PHA must address issues of co-location both in terms of adjacent
facilities and in terms of vulnerable populations and infrastructure.
This commenter stated that at a minimum, facilities must address
hazards to and from adjacent facilities--including impacts that a
release from their facility would have on other facilities and the
impact that a release from other facilities would have on their
facility--and further expansion should address buffer zones for nearby
residents, hospitals, and infrastructure. The commenter argued that new
facilities or expansion of facilities must consider the cumulative
impacts from adjacent facilities and look at the threat that a release
from the new facility or expansion would pose to other facilities,
infrastructure, populations, and environmental resources.\101\
Additionally, CSB encouraged EPA to incorporate more explicit
requirements for identifying, evaluating, and addressing facility
siting during a PHA to assess both offsite consequences and onsite
receptors within that stationary source that may be impacted by
chemical fire, explosion, or release.\102\
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    \101\ EPA-HQ-OEM-2014-0328-0637.
    \102\ EPA-HQ-OEM-2014-0328-0689.
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    EPA believes that many matters outlined in comments about the
current stationary source siting provision, while not explicitly
addressed within the current regulatory text, are implicit and
mandatory. Therefore, at this time, EPA is only choosing to make more
explicit what is required to be addressed in a stationary source siting
evaluation. Rather than propose additional requirements, EPA is
expounding on the current regulatory text to ensure that siting
evaluations properly account for hazards resulting from the location of
processes, equipment, building, and proximate facilities, and their
effects on the surrounding community. In addition

to providing some detail on what is intended by the Program 3
regulatory text on stationary source siting, EPA is also proposing to
revise language to Program 2 hazard evaluations to ensure that all RMP
facilities with the potential to cause offsite consequences to public
receptors account for these hazards. Therefore, EPA is proposing to
amend regulatory text for Program 2 and Program 3 under 40 CFR
68.50(a)(6) and 68.67(c)(5), respectively, to define stationary source
siting evaluation as inclusive of the placement of processes,
equipment, buildings, and hazards posed by proximate facilities, and
accidental release consequences posed by proximity to the public and
public receptors. The proposed amendments would make more explicit the
requirement that hazard evaluations for processes under both Program 2
(hazard review) and Program 3 (PHA) need to address the matters in the
siting evaluation.
    Because there is a breadth of guidance on siting, EPA believes
there is adequate information available for facilities to comply with
the proposed text. EPA expects facilities to continue to use available
resources, including those previously mentioned, and any additional
industry-specific guidance to properly evaluate siting hazards.
e. Hazard Evaluation Recommendation Information Availability
    Ensuring that communities, local planners, local first responders,
and the public have appropriate chemical facility hazard-related
information is critical to the health and safety of responders and the
local community. In this action, EPA is proposing ways to enhance
information sharing and collaboration between chemical facility owners/
operators, Tribal and local emergency planning committees (TEPCs/
LEPCs), first responders, and the public in a manner that EPA believes
balances security and proprietary considerations. In addition to the
information accessibility provisions in section IV.C of this preamble,
EPA is also proposing that recommendations resulting from hazard
evaluations discussed in this section be included in a facility's risk
management plan submitted under 40 CFR part 68, subpart G.
Specifically, facilities would be required to implement recommendations
or list in their risk management plans the recommendations from their
natural hazard, loss of power, and siting evaluations that were not
adopted and the justification for those decisions. EPA believes this
will enable the public to ensure facilities have conducted appropriate
evaluations to address potential hazards that can affect communities
near the fenceline of facilities. In response to comments in the RFI on
increased public disclosure of information, one commenter stated that
it is important to help the public understand how the facilities
address the hazard present in their community and keep the risk at or
below the ``acceptable level.'' EPA believes that when local citizens
have adequate information and knowledge about facility hazards,
facility owners and operators may be motivated to further improve their
safety in response to community pressure and oversight.\103\
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    \103\ EPA-HQ-OEM-2014-0328-0543-27.
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    EPA is proposing to require facilities to list in section 7
(Program 3) and section 8 (Program 2) of their risk management plans,
for each process, recommendations resulting from hazard evaluations of
natural hazards, loss of power, and facility siting that the owner/
operator chooses to decline. EPA realizes that the number of hazard
evaluation recommendations may vary widely, depending on the complexity
of the process or facility. Therefore, EPA seeks comments on the format
of listing the recommendations, whether EPA should require
recommendations to be included in narrative form, or whether the Agency
should provide specific categories of recommendations for facilities to
choose from when reporting. Another option would be to allow the owner
or operator to post this information online and provide a link to the
information within their risk management plan.
    Regarding the requirement to provide justification for not
implementing recommendations, EPA is proposing to allow facilities to
choose from pre-selected categories. Under OSHA guidance, an employer
may decline to adopt a PHA recommendation if, based upon adequate
evidence, the employer can document that one or more of the following
conditions is true:\104\
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    \104\ OSHA, Process Safety Management of Highly Hazardous
Chemicals--Compliance Guidelines and Enforcement Procedures, 29 CFR
1910.119 (September 13, 1994), https://www.osha.gov/sites/default/files/enforcement/directives/CPL02-02-045_CH-1_20150901.pdf.
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     The analysis upon which the recommendation is based
contains material factual errors.
     The recommendation is not necessary to protect the health
and safety of the employer's own employees, or the employees of
contractors.
     An alternative measure would provide a sufficient level of
protection.
     The recommendation is infeasible.
    EPA is proposing to adopt these same categories in the risk
management plan as justification for declined recommendations, with a
modification to account for public receptors (i.e., the recommendation
is not necessary to protect public receptors). EPA seeks public comment
on this approach and on alternative categories or methods to provide
justification for declining relevant recommendations. EPA wants to
ensure a balanced approach to providing beneficial data to the public
as well as a straightforward method of reporting for facility owners/
operators.
    Proposed revisions to regulatory text include, requiring risk
management plans under 40 CFR 68.170(e)(7) and 68.175(e)(8), reporting
declined natural hazard, power loss, and siting hazard evaluation
recommendations and their associated justifications in the risk
management plan submitted to EPA.
f. Summary of Proposed Regulatory Text
    EPA is proposing to emphasize that Program 2 hazard reviews and
Program 3 PHAs identify and address natural hazards, loss of power, and
facility siting (as described in this document) in order to effectively
prevent or minimize accidental releases of regulated substances to
protect human health and the environment. EPA is also proposing to
require the owner or operator to report any recommendations arising
from these evaluations that are declined, along with the owner or
operator's justification for declining them, within the risk management
plan submitted to EPA. A summary of the proposed regulatory text
changes are described below:
     Hazard evaluations under 40 CFR 68.50(a)(5) and
68.67(c)(8) to explicitly address external events such as natural
hazards, including those caused by climate change or other triggering
events that could lead to an accidental release.
     Hazard evaluations under 40 CFR 68.50(a)(3) and
68.67(c)(3) to explicitly address standby or emergency power systems.
     Hazard evaluations under 40 CFR 68.50(a)(6) and
68.67(c)(5) to explicitly define stationary source siting as inclusive
of the placement of processes, equipment, buildings within the
facility, and hazards posed by proximate facilities, and accidental
release consequences posed by proximity to the public and public
receptors.
     Risk management plans under 40 CFR 68.170(e)(7) and
68.175(e)(8) to include declined natural hazard, power loss, and siting
hazard evaluation recommendations and their associated justifications.

    EPA realizes, and commenters have indicated in the past,\105\ that
only a small number of facilities are responsible for a significant
percentage of RMP accidents. EPA expects the proposed language will
ensure that those owner/operators who are not properly evaluating these
hazards will be explicitly required to do so, which will better ensure
owner/operators do their due diligence in preventing or minimizing
accidental releases of regulated substances to protect human health and
the environment. EPA seeks comment on the proposed language or
alternative language that will not unnecessarily expand the scope of
hazard evaluations.
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    \105\ EPA-HQ-OEM-2015-0725-1628.
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2. Prevention Program Provisions
    The following section describes proposed modifications to the
prevention program provisions of the RMP rule. Several of these changes
address issues that have been the subject of both the 2017 amendments
rule and the 2019 reconsideration rule, including safer technologies
and alternatives analysis, root cause analysis incident investigations,
and third-party audits. As detailed below, the Agency's preferred
options for these topics adjust the scope of the provisions adopted and
rescinded by the prior rulemakings. EPA also proposes new requirements
for improved employee participation in prevention programs. The options
proposed below should enhance community safety, especially in
communities facing elevated probability of accidents, without unduly
burdening overly broad classes of stationary sources.
a. Safer Technologies and Alternatives Analysis (STAA)
    EPA is proposing a requirement in 40 CFR 68.67(c)(9) for some
Program 3 regulated processes to consider and document the feasibility
of applying safer technologies and alternatives as part of their PHA.
This requirement applies to petroleum and coal products manufacturing
processes (classified in NAICS code 324) and chemical manufacturing
processes (NAICS code 325) that are located within 1 mile of another
RMP-regulated facility with these same processes (classified in NAICS
324 and 325). EPA is also proposing that all facilities with petroleum
and coal products processes (in NAICS 324) using hydrofluoric acid (HF)
in an alkylation unit (approximately 45 facilities) consider safer
alternatives to HF alkylation, regardless of proximity to another NAICS
324- or 325-regulated facility.
    Current PHA requirements (40 CFR 68.67) under the RMP rule include
some aspects of the hierarchy of controls analysis.\106\ As discussed
in the proposed regulation that became the 2017 amendments rule,
Program 3 processes are required to address process hazards using
engineering and administrative controls since 1996. However, as EPA
pointed out, there is no explicit requirement for owners and operators
to address inherent safety--the first tier of the hierarchy of
controls. EPA is proposing to expand upon these requirements by
requiring the owners or operators to consider safer technology and
alternative risk management measures that could eliminate or reduce
risk from process hazards. In addition to engineering and
administrative controls, owners and operators of facilities with
Program 3 processes covered under this provision would have to consider
the application of the following safer technology measures, in the
following order: inherently safer technology (IST) or inherently safer
design (ISD), passive safeguards, active safeguards, and procedural
safeguards.
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    \106\ Safety experts have developed a way to group types of
controls in an order or ``hierarchy of controls'' that prefers those
that are least likely to fail. As discussed in more detail in in
section IV.A.2.a.i, below, controls that eliminate the hazard are
preferred over those that do not require power or activation, which
are preferred over those that do require power or activation, which
are preferred over those that depend simply on rules of operation.
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    In this proposed regulation, EPA is not requiring facilities to
implement identified inherent safety measures; rather, EPA is requiring
owners and operators to include an evaluation, including the results of
the STAA analysis, as part of the PHA requirements in 40 CFR 68.67(e),
and, to document the feasibility of inherent safety measures based on
more than cost alone. Submission of STAA analysis summaries to EPA is
discussed in further detail under ``STAA technology transfer.''
Finally, EPA is proposing that a facility's STAA team include, and
document the inclusion of, one member who works in the process and has
expertise in the process being evaluated. EPA is also proposing to
include a more comprehensive practicability assessment, in addition to
the STAA evaluation requirements as part of the PHA. As part of this
analysis, owners and operators would be required to identify, evaluate,
and document the practicability of implementing inherent safety
measures, including documenting the practicability of publicly
available safer alternatives.
i. Background on IST/ISD
    EPA discussed safer technology and alternatives at length in its
proposed RMP rule amendments published in 2016. ``Accidental Release
Prevention Requirements: Risk Management Programs Under the Clean Air
Act'' (81 FR 13638, March 14, 2016). ``Safer technology and
alternatives'' refers to risk reduction or risk management strategies
developed through analysis using a hierarchy of process risk management
strategies (or hierarchy of controls). In this context, the hierarchy
of controls consists of controls that are inherent, passive, active,
and procedural. STAA involves considering IST or ISD, which refer to
strategies that permanently reduce or eliminate hazards associated with
the materials and operations of a process. As discussed in EPA/OSHA's
2015 chemical safety fact sheet,\107\ the four major inherently safer
strategies are: (1) substitution: replacing hazardous materials with
less hazardous substances; (2) minimization: using smaller quantities
of hazardous substances; (3) moderation: creating less hazardous
conditions or using less hazardous forms or facility designs to
minimize the impact of potential releases of hazardous materials or
energy; and (4) simplification: designing facilities to eliminate
unnecessary complexity and make operating errors less likely. Inclusion
of IST/ISD in the RMP regulations is consistent with several CSB
investigations that demonstrated that incidents could have been
prevented or consequences mitigated by using IST/
ISD.108 109 110 111
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    \107\ EPA and OSHA, Chemical Safety Alert: Safer Technology and
Alternatives (June 2015), https://www.epa.gov/sites/default/files/2015-06/documents/alert_safer_tech_alts.pdf.
    \108\ CSB, ``Chevron Refinery Fire,'' last modified January 28,
2015, https://www.csb.gov/chevron-refinery-fire/.
    \109\ CSB, ``Tesoro Refinery Fatal Explosion and Fire,'' last
modified May 1, 2014, https://www.csb.gov/tesoro-refinery-fatal-explosion-and-fire/.
    \110\ CSB, ``Kleen Energy Natural Gas Explosion,'' last modified
June 28, 2010, https://www.csb.gov/kleen-energy-natural-gas-explosion/.
    \111\ CSB, ``Bayer CropScience Pesticide Waste Tank Explosion,''
last modified January 1, 2011, https://www.csb.gov/bayer-cropscience-pesticide-waste-tank-explosion/.
---------------------------------------------------------------------------

    In the supplemental proposed RMP rule for the initial requirements
under CAA 112(r)(7), EPA solicited comments on requiring IST.
``Accidental Release Prevention Requirements: Risk Management Programs
Under Clean Air Act Section 112(r)(7)'' (60 FR 13526, March 13, 1995)
(1995 supplemental proposal). Prior to the 2017 final RMP amendments,
however, EPA had never

required RMP facilities to conduct an STAA or implement identified IST/
ISD. The 2017 amendments rule added a requirement to the PHA for
regulated sources in specified industrial sectors to identify and
address hazards at least every 5 years. Specifically, owners or
operators of facilities with Program 3 regulated processes in NAICS
codes 322 (paper manufacturing), 324 (petroleum and coal products
manufacturing), and 325 (chemical manufacturing) were required to
conduct an STAA as part of their PHA and evaluate and document the
practicability of any IST identified. The provision was intended to
reduce the risk of serious accidental releases by requiring facilities
in these sectors to conduct a careful examination of potentially safer
technology and designs that they could implement in lieu of, or in
addition to, their current technologies. EPA adopted STAA based on
recommendations from CSB and other engineering experts, as well as
lessons learned from case studies and investigations of accidents. EPA
identified the sectors covered by this requirement by using sector-wide
accident rates. EPA believes that some of the practicability of
implementation will be identified in the course of the PHA and that for
many processes, owner/operators will already know if implementing a
particular technology is practicable. EPA solicits comments on the
industry understanding of the practicability assessment, and how this
might differ from the findings identified in the PHA, as well as the
additional benefit of such a provision.
    In the 2019 rule completing the process of reconsidering the 2017
rule, EPA removed the new regulatory STAA requirement on all facilities
in NAICS 322, 324, and 325 that are in the RMP program. ``Accidental
Release Prevention Requirements: Risk Management Programs Under the
CAA'' (84 FR 69834, December 19, 2019) (2019 reconsideration rule), EPA
analyzed accident history data in the RMP database, both nationally and
in States and localities with programs that contained some or all the
elements of the prevention program provisions. EPA discusses accident
trends overall in Section III.C of this preamble. The analysis
suggested that accident rates in jurisdictions that adopted STAA-like
programs were not lower than national accident rates. Based on this
assessment, EPA stated that STAA regulations would likely not be
effective at reducing accidents if applied on a national scale,
relative to the pre-2017 program. Instead, EPA decided to take a
source-specific, compliance-driven approach, using oversight and
enforcement tools to identify sources that would appear to benefit from
STAA and to then seek STAA adoption at such sources.
ii. Hydrogen Fluoride
    Hydrogen fluoride (HF) is an extremely toxic chemical that is
lethal at 30 ppm. It is covered by RMP when more than 1,000 pounds are
used in a process. HF is an extremely toxic chemical used for
alkylation at 27 percent of facilities in NAICS 324 (45 of 163). HF has
been the subject of recent catastrophic near-miss investigations by
CSB. One of these investigations involved an explosion at the Husky
Refinery in Superior, Wisconsin, wherein debris impacted processes at a
further distance from the explosion than the refinery's HF storage
tank.\112\ CSB also investigated a near-miss in Torrance, California,
wherein the explosion of ExxonMobil's electrostatic precipitator
resulted in debris landing near the refinery's modified HF tanks.\113\
---------------------------------------------------------------------------

    \112\ CSB, ``Husky Energy Refinery Explosion and Fire,''
accessed February 10, 2022, https://www.csb.gov/husky-energy-refinery-explosion-and-fire/.
    \113\ CSB, ``ExxonMobil Refinery Explosion,'' last updated May
3, 2017, https://www.csb.gov/exxonmobil-refinery-explosion-/.
---------------------------------------------------------------------------

    There are recognized potentially safer alternatives available for
HF alkylation that have been successfully implemented by refineries,
such as sulfuric acid alkylation, ionic liquid alkylation, or solid
acid catalyst alkylation.114 115 EPA contends that the
practicability of these potentially safer alternatives is situation-
specific and that owners and operators are usually in the best position
to make these determinations. Phasing out HF or switching to an
inherently safer alternative may require construction of a new
alkylation unit. Depending on the production levels of the refinery,
implementation of alternatives to HF alkylation could cost between $35
million and $900 million (see RIA, Appendix A).
---------------------------------------------------------------------------

    \114\ Chevron, ``Chevron and Honeywell Announce Start-up of
World's First Commercial ISOALKYTM Ionic Liquids
Alkylation Unit,'' last modified April 13, 2021, https://www.chevron.com/stories/chevron-and-honeywell-announce-start-up-of-isoalky-ionic-liquids-alkylation-unit.
    \115\ United Steelworkers, A Risk Too Great: Hydrofluoric Acid
in U.S. Refineries (April 2013), https://www.usw.org/workplaces/oil/oil-reports/A-Risk-Too-Great.pdf.
---------------------------------------------------------------------------

iii. Recent Public Input on STAA
    During EPA's 2021 listening sessions, approximately 245 commenters
provided feedback on STAA. Many commenters, including individual
commenters, professional associations, advocacy groups, labor
organizations, an association of government agencies, and a Federal
agency, supported EPA restoring the 2017 amendments rule requirement
for facilities to assess safer technologies and substitute safer
alternatives in their processes where feasible.\116\ A group of retired
Federal agency officials said that facilities should share this
analysis with communities and emergency responders, and EPA should
establish a ``publicly accessible clearinghouse of safer
alternatives.'' \117\ Individual commenters stated that STAAs should
include an assessment of environmental justice, including the burden on
surrounding communities,\118\ while another commenter stressed that
STAAs would be very beneficial for communities with environmental
justice concerns.\119\ An environmental advocacy group suggested that
RMP facilities should be required to develop and submit a hazard
reduction plan made by facility experts and workers that would start at
the top of the hierarchy of controls and include considerations of an
EPA-generated list of inherently safer chemicals.\120\
---------------------------------------------------------------------------

    \116\ EPA-HQ-OLEM-2021-0312-0028; 0035, 0039, 0044, 0051, 0057,
0058, 0081, 0095, 0387, 0388.
    \117\ EPA-HQ-OLEM-2021-0312-0004.
    \118\ EPA-HQ-OLEM-2021-0312-0013; 0380.
    \119\ EPA-HQ-OLEM-2021-0312-0028.
    \120\ EPA-HQ-OLEM-2021-0312-0149.
---------------------------------------------------------------------------

    Another advocacy group stated that it is interested in having
facilities incorporate solutions data into STAAs and--along with a
State regulatory agency, labor organizations, advocacy groups, and an
individual commenter--supported requiring STAAs from every RMP facility
in sectors such as water treatment, not just in oil manufacturing,
chemical manufacturing, and paper manufacturing.\121\ A State
regulatory agency mentioned that many safer technology alternative
opportunities exist in other sectors and expressed that there should
not be any limit on how many NAICS sectors are included.\122\
---------------------------------------------------------------------------

    \121\ EPA-HQ-OLEM-2021-0312-0014; 0039, 0057, 0152.
    \122\ EPA-HQ-OLEM-2021-0312-0039.
---------------------------------------------------------------------------

    An advocacy group suggested that EPA implement an even more robust
alternatives analysis and implementation process than that of the STAA
proposed during the 2017 amendments rule. The commenter said that,
rather than basing the universe of facilities subject to the STAA
requirement on the results of data analysis performed in 2017, EPA
should require this type of assessment at all facilities. The commenter
proposed that,

should EPA determine that ``tiered protection should be implemented,''
it should require IST assessment and implementation at facilities in
sectors with known hazard elimination or reduction methods, in areas
with climate risks and other natural hazard risks, in communities with
more than one RMP facility, and at facilities that are using or storing
the highest quantity and toxicity of regulated chemicals and are most
accident-prone.\123\
---------------------------------------------------------------------------

    \123\ EPA-HQ-OLEM-2021-0312-0170.
---------------------------------------------------------------------------

    A few industry trade associations stated that STAAs and IST
evaluations would not generate tangible safety outcomes beyond the
current PHA requirements.\124\ One of the industry trade associations
also discussed EPA's decision to limit the number of facilities covered
by STAA provisions in the 2017 amendments rule, which the commenter
described as lacking evidentiary support.\125\ An industry trade
association that strongly opposed the STAA provision in the 2017
amendments rule supported its removal in the 2019 reconsideration rule,
stating that such a STAA requirement would not improve the
effectiveness of the rule in relation to protecting communities with
environmental justice concerns; instead, it would divert
resources.\126\ An industry trade association stated that some
industries already adopt inherently safer processes and technologies
without direction from EPA.\127\
---------------------------------------------------------------------------

    \124\ EPA-HQ-OLEM-2021-0312-0037; 0053, 0071.
    \125\ EPA-HQ-OLEM-2021-0312-0071.
    \126\ EPA-HQ-OLEM-2021-0312-0077.
    \127\ EPA-HQ-OLEM-2021-0312-0077.
---------------------------------------------------------------------------

iv. Recent Public Input on HF
    During EPA's 2021 listening sessions, many commenters, including
individual commenters and advocacy groups, discussed the dangers of HF
and modified HF and argued that facilities should be required to
transition to safer alternatives.\128\ An individual commenter said
that HF is often located in facilities in communities with
environmental justice concerns that are already exposed to many other
hazards. A State elected official said that EPA should require
refineries to evaluate the replacement of these chemicals and report
their findings to EPA within a year.\129\ A form letter campaign
recommended an amendment to 40 CFR 68.169 which, if implemented, would
convert all HF refineries to safer alternatives within 4 years.\130\ A
few individual commenters and an advocacy group expressed general
support for this amendment.\131\ Another individual commenter in
support of this amendment stated that over 40 refineries containing
large quantities of HF endanger 19 million people, including children,
young adults, unhoused people, and more.\132\
---------------------------------------------------------------------------

    \128\ EPA-HQ-OLEM-2021-0312-0013; 0035, 0043, 0054, 0036, 0319,
0146, 0067, 0068, 0096.
    \129\ EPA-HQ-OLEM-2021-0312-0043.
    \130\ EPA-HQ-OLEM-2021-0312-0067.
    \131\ EPA-HQ-OLEM-2021-0312-0354; 0379, 0382, 0384.
    \132\ EPA-HQ-OLEM-2021-0312-0380.
---------------------------------------------------------------------------

v. STAA Applicability
    EPA is proposing to limit the applicability of the STAA provisions
to sources in the petroleum and coal products manufacturing (NAICS 324)
and chemical manufacturing (NAICS 325) sectors, located within 1 mile
of another RMP-regulated 324 or 325 facility. EPA is also proposing
that all facilities in NAICS 324 using HF in an alkylation unit
(approximately 45 facilities) conduct an STAA for the use of safer
alternatives compared to HF alkylation. EPA believes that while most
sectors regulated under 40 CFR part 68 could identify safer technology
and alternatives, sources involved in complex manufacturing operations
have the greatest range of opportunities to identify and implement
safer technologies and alternatives, particularly related to inherent
safety. These sources generally produce, transform, and consume large
quantities of regulated substances under sometimes extreme process
conditions and using a wide range of complex technologies.
    Multiple factors led EPA to propose focusing the STAA requirement
on densely co-located petroleum refining and chemical manufacturing
facilities (i.e., facilities with processes in NAICS codes 324 and 325
that are within 1 mile of another facility in those NAICS codes). The
distance of 1 mile represents the median distance of facilities with
324 and 325 NAICS processes that have had accidents in the period from
2016 to 2020 to the nearest facility with a process in these NAICS in
324 or 325. Facilities in these NAICS codes experience more frequent
accidental releases (see IV.A.2.vi, below). In the period from 2016 to
2020, communities near densely co-located facilities in these NAICS
codes have experienced more frequent accidents than communities near
other facilities in these NAICS codes and have had more offsite impacts
from releases than other communities have experienced (see IV.A.2.vii,
below). Additionally, 80% of 324 and 325 facilities located within 1
mile of another 324/325 facility have toxic worst case release scenario
distance to endpoints reaching or exceeding 1 mile. The proximity of
densely co-located refining and chemical manufacturing facilities
creates a greater risk of an accident at one facility impacting safety
at the nearby facility, thereby increasing the potential for a release
at the second facility (a ``knock-on'' release). Communities in areas
with such densely co-located petroleum refining and chemical
manufacturing facilities face overlapping vulnerability zones and a
heightened risk of being impacted by an accidental release relative to
other communities. The heightened risk of community impacts presented
by densely co-located refineries and chemical manufacturers make it
reasonable for EPA to propose the 1 mile criterion for additional
prevention measures such as STAA. The 1 mile criterion also serves to
limit the burden on portions of both the petroleum refining and
chemical manufacturing industries relative to the 2017 amendments rule
while promoting accident prevention to a greater extent than the
approach taken in the 2019 reconsideration rule (see IV.A.2.viii,
below).
    EPA is proposing that all HF alkylation processes at petroleum
refineries (NAICS 324) conduct a STAA review primarily due the recent
incidents discussed above where HF was nearly released when there were
explosions, fires, and other releases that could have triggered
releases of HF. The recent incident involving Philadelphia Energy
Solutions,\133\ where some of the HF stored apparently was released in
a fire but a worse release was prevented by trained staff activating
release mitigation systems close to the time the event started, raises
the question of whether a more inherently safe process could have
completely avoided a potential catastrophe, or whether reliance on
operational procedures and trained staff is adequate. As mentioned
above, there are recognized potentially safer alternatives available
for HF alkylation that have been successfully implemented by
refineries, such as sulfuric acid alkylation, ionic liquid alkylation,
or solid acid catalyst alkylation. While EPA is not proposing that all
existing refinery processes undergo STAA review, the process of HF
alkylation, with several known alternatives and with recent incident

history, EPA believes may merit a rule-based prevention approach rather
than selective oversight.
---------------------------------------------------------------------------

    \133\ CSB, ``Philadelphia Energy Solutions (PES) Refinery Fire
and Explosions,'' last modified October 16, 2019, https://www.csb.gov/philadelphia-energy-solutions-pes-refinery-fire-and-explosions-/.
---------------------------------------------------------------------------

vi. Accident Frequency
    EPA notes that RMP facilities in the two selected sectors have been
responsible for a relatively large number of accidents, deaths,
injuries, and property damage.\134\ Although the per-facility accident
rate between 2016 and 2020 for all regulated facilities was 3 percent
(n = 382 facilities reporting at least one accident out of 12,855
unique facilities reporting between 2016 and 2020), the sector accident
rates (number of unique facilities with accidents per sector divided by
the number of unique facilities in each sector) for petroleum and coal
manufacturing were seven times higher (23 percent, n = 41 out of 177)
and two times higher for chemical manufacturing (6 percent, n = 96 out
of 1631). Moreover, of the 70 facilities experiencing two or more
incidents between 2016 and 2020, 43 (60 percent) of these facilities
were NAICS 324 and 325. Implementation of safer technology and
alternatives by these facilities in the chemical manufacturing and
petroleum refining sectors may prevent serious accidental releases in
the future.
---------------------------------------------------------------------------

    \134\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
---------------------------------------------------------------------------

vii. Accident Severity
    EPA is proposing to apply STAA requirements to processes at
facilities in NAICS 324 and 325 located within 1 mile of another NAICS
324 or 325 facility, as the increased accident frequency found in these
industries is exacerbated when examining those facilities in more
facility-dense areas (here defined as facilities within 1 mile of
another facility).
    Based on accidents occurring between 2016 and 2020, communities
located near facilities in NAICS 324/325 that are located within 1 mile
of another 324/325 facility are 1.5 times more likely to have been
exposed to accidents at these facilities as compared to communities
near facilities in NAICS 324/325 that are not located within 1 mile of
another 324/325 facility. This increased accident frequency in
facility-dense areas has resulted in considerably larger offsite
impacts, including over 47,000 people sheltering in place, 56,800
people evacuating, and over 153 million dollars in offsite property
damage.\135\
---------------------------------------------------------------------------

    \135\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
---------------------------------------------------------------------------

    Using RMP data from 2016 to 2020, EPA estimates the proposed
approach impacts approximately 563 unique, active facilities. EPA is
making available in the Technical Background Document, a list of
sources it believes would be required to conduct STAA based on the
location information currently provided in facility risk management
plans. In estimating these facilities, EPA used the latitude and
longitude reported to EPA by facilities, which can vary in the
measurement of facility location. For example, facilities can report
location based on the regulated process, facility fenceline or facility
centroid. EPA is proposing to define facility location based on
distance to the facility fenceline but seeks comment on other
definitions of facility proximity.
    Although accident rates for the paper manufacturing sector (NAICS
322, 17 percent, 20 accidents at 11 out of 65 facilities between 2016
and 2020) were similar to NAICS 324, EPA has not proposed STAA
requirements at facilities in NAICS 322 due to the low actual number of
incidents and comparatively fewer accident consequences. While 30
workers were injured (non-fatally) as a result of these accidents, the
accidents resulted in no other reported offsite consequences (i.e.,
sheltering in place, evacuation, or offsite property damage).\136\
---------------------------------------------------------------------------

    \136\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
---------------------------------------------------------------------------

viii. Discussion of Prior STAA Analysis
    In its 2019 decision to rescind STAA requirements, EPA relied on
data analysis of RMP accidents from States with STAA- and IST-like
regulations, primarily New Jersey's Toxic Catastrophe Prevention Act
(TCPA) regulation and the Massachusetts Toxic Use Reduction Act. Using
the accident data EPA provided in the rulemaking docket, EPA compared
accident data for New Jersey and Massachusetts RMP facilities from 2008
through 2016 to the same measures for the national set of RMP
facilities.\137\ EPA interpreted the results as showing that New Jersey
and Massachusetts RMP facilities reported more RMP-reportable accidents
than RMP facilities nationally over the same period. Although the rate
of RMP facility accidents in New Jersey and Massachusetts have
declined, EPA found that this decline is less than the decline in
accidents for RMP facilities nationally over the same period. New
Jersey and Massachusetts exhibited a 1.7 percent and 3.5 percent annual
decline in accident frequency, respectively, whereas nationally, RMP
facilities experienced a 4.1 percent decline in accident frequency over
the same period. The normalized accident rate in New Jersey and
Massachusetts declined by approximately 2 percent and 3 percent per
year, respectively, whereas the normalized accident rate at RMP
facilities nationwide declined by 3.3 percent per year. Regarding
accident severity, EPA examined the impacts of RMP-reportable accidents
in New Jersey over the same period and could discern no declining trend
in accident severity in New Jersey. Based on this data analysis, EPA
concluded the New Jersey and Massachusetts programs had not resulted in
a reduction in either accident frequency or severity at RMP-regulated
facilities subject to the provision, and therefore the costs were
disproportionate to the benefits.
---------------------------------------------------------------------------

    \137\ EPA-HQ-OEM-2015-0725-2063.
---------------------------------------------------------------------------

    Comments provided by the New Jersey Department of Environmental
Protection (NJDEP) point out information that questions the validity of
these assumptions.\138\ First, EPA based its decision to rescind STAA
requirements for NAICS codes 324 and 325 on accident information for
all regulated NAICS codes, thereby applying assumptions based on
analysis of all accidents, rather than analysis of NAICS 324 and 325
specifically, to the subset of facilities it intended to regulate.
Second, NJDEP points out that IST is only one measure to prevent
accidental releases; therefore, the absence of a decrease in accidents
should not be solely attributed to ineffectiveness of IST. NJDEP also
points out that facilities with better accident investigation
requirements and release reporting systems may be reporting more
accidents than those without additional reporting programs. EPA
believes these arguments apply to the 2019 Massachusetts analysis as
well. EPA now acknowledges that applying a rate developed through
analysis of all regulated facilities cannot be applied to the specific
sectors that were selected for regulation (NAICS codes 324 and 325) as
a conclusion based on comparing New Jersey's overall accident rate to
the national overall accident rate is inconclusive about sectors that
would have been subject to the RMP STAA requirement.
---------------------------------------------------------------------------

    \138\ EPA-HQ-OLEM-2021-0312-0039.
---------------------------------------------------------------------------

    Additionally, EPA realizes it may have been important to consider
that its conclusions were derived from analysis of a small number of
accidents from a small sample size with a high degree of intra-year
variability. For example, RMP

data from New Jersey \139\ demonstrate that the facility accident rates
were 2 per 86 in 2008 and 2 per 80 in 2016, extrapolating a slope
showing a 1.7 percent decrease per year. Yet accidents ranging from 0
to 4 and demonstrating a high amount of intra-year variability are
inconclusive. EPA examined data for NAICS 324 and 325--those proposed
to be regulated in this action--and found similarly low accident counts
(0 to 2 per year), prohibiting meaningful conclusions and leaving the
Agency unable to determine if STAA provisions are ineffective.
Therefore, EPA contends that it is more appropriate to emphasize in
this rulemaking factors like the expert views of CSB and other
researchers, case studies, and EPA's technical judgment rather than the
analysis comparing accident rates under the New Jersey TCPA to national
rates for RMP facilities that helped form the basis for rescinding STAA
in the 2019 reconsideration rule. Finally, in proposing to reestablish
STAA requirements for facilities in NAICS 324 and 325 located within 1
mile of another NAICS 324 or 325 facility and those refineries with HF
alkylation processes, EPA has determined that there are likely limited
legitimate reliance interests associated with the 2019 reconsideration
rule's elimination of these requirements. The compliance date for this
requirement on affected facilities is proposed to be three years after
this rule becomes final, which, based on EPA's announced plans in the
Unified Regulatory Agenda, would be sometime in August 2026. For those
sources who last performed a PHA prior to August 2021, they would be
able to integrate STAA in their next PHA. For those performed since
August 2021 and before this proposed rule (approximately one year),
they would need to perform the STAA outside the normal PHA timeframe.
This should be a relatively small number of facilities in part because
of the limited applicability of the preferred approach and the pattern
of years ending in 4s and 9s being the heaviest years for RMP
submittals. Sources performing PHAs after this proposed notice are on
notice of EPA's intent, so whatever reliance interest there was on the
2019 reconsideration rule to this proposal should be minimal.
---------------------------------------------------------------------------

    \139\ EPA-HQ-OEM-2015-0725-2063, p. 36.
---------------------------------------------------------------------------

ix. STAA Technology Transfer
    Since the inception of RMP, the required elements of risk
management plans have been a narrative executive summary and primarily
fields of check boxes, dates, and numbers that summarize RMP rule
compliance activities. The format facilitates electronic submission and
data analysis. EPA established central processing and handling to
relieve states of data handling burdens while also promoting easy
access for stakeholders. As a result of legislation in 1999 and a
general increase in security concerns post-September 11, 2001, portions
of the risk management plan are restricted, either on a ``need to
know'' basis (much of the release scenario information) or only
released on compact discs/drives when requested through the Freedom of
Information Act (FOIA). In practice, the minimal narrative in risk
management plans and the restrictions on access to these plans have
minimized the transfer of knowledge of successful accident prevention
practices among all stakeholders (e.g., regulated industry,
communities, labor, researchers, planners, responders).
    In the 2017 amendments rule, EPA added an STAA requirement to the
PHA portion of the prevention program requirements for three industry
sectors: petroleum refining (324), chemical manufacturing (325), and
paper production (322). In addition to the previously existing
requirement to report on any changes since the last PHA (40 CFR
68.175(e)(6)), EPA added a requirement for sources to report on whether
IST/ISD--one STAA technique--had been adopted since the last PHA, and
if yes, to report on the broad technology category (i.e., chemical
substitution or minimization, process simplification, and/or moderation
of the process conditions). The 2019 final reconsideration rule
eliminated the additional reporting requirement when EPA eliminated the
STAA prevention provision. EPA is now proposing to reinstate the
provisions to 40 CFR 68.175(e)(7) to report whether the current PHA
addresses the STAA requirement proposed in 40 CFR 68.67(c)(9), whether
any IST/ISD was implemented as a result of 40 CFR 68.67(c)(9)(ii), and
if any IST/ISD was implemented, to identify the measure and technology
category.
    During EPA's 2021 listening sessions and public comment period,
some stakeholders supporting IST/ISD advocated for promoting better
reporting and public availability of ``solutions data''--the successful
practices companies are using to reduce and remove RMP chemical
hazards--about IST/ISD and other measures adopted by sources to reduce
risk. For example, a few advocacy groups expressed that solutions data
should be incorporated into RMP by reporting it in risk management
plans from STAAs, reporting it on RMP deregistration forms, including
it in public meetings after incidents to address the best options at
the top of the hierarchy of prevention, and compiling it into a hazard
reduction clearinghouse, through which EPA could collect and
disseminate lessons learned from successful industry practices.\140\
This sentiment was echoed by another advocacy group, which recommended
that EPA ensure that facilities that are no longer regulated under RMP
coordinate with regulatory agencies and share practices or approaches
with other RMP facilities.\141\ These comments suggest ways of
promoting accident prevention technology transfer and improving on not
only the existing rule, but also the reporting provisions of the 2017
amendments rule. EPA has examples of existing information centers which
aggregate best practices, such as the Pollution Prevention Resource
Exchange.\142\
---------------------------------------------------------------------------

    \140\ EPA-HQ-OLEM-2021-0312-0014; 0058, 0148.
    \141\ EPA-HQ-OLEM-2021-0312-0149-18.
    \142\ EPA. Pollution Prevention Resource Exchange (P2RX).
Available at: https://www.epa.gov/p2/pollution-prevention-resource-
exchange-
p2rx#:~:text=The%20Pollution%20Prevention%20Resource%20Exchange,and%2
0measured%20P2%20program%20results.
---------------------------------------------------------------------------

    EPA has included an outline of the potential information that would
be collected from deregistering facilities as well as in the STAA
documentation in Section 10 of the Technical Background Document. EPA
intends for this not to be a cumbersome exercise, but rather, one that
is based on information facilities likely already have, with EPA making
it available for other industries to identify safer alternatives. EPA
solicits comment on any additional information which would be useful
for such a repository.
x. Alternative Options
    EPA considered other options and is seeking comment on these
alternative approaches. In contrast to the 2017 amendments rule, EPA is
not proposing to apply STAA to NAICS 322 (pulp mills) based on the
smaller number of accidents at these facilities in the last 5 years (n
= 20).\143\ EPA considered applying STAA requirements to facilities in
NAICS 324 and 325 with a reportable accident within the last 5 years,
estimating that this would apply to approximately 140 RMP facilities
during their 5-year PHA schedule.
---------------------------------------------------------------------------

    \143\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
---------------------------------------------------------------------------

    EPA also considered applying these provisions to all NAICS 324 and
325

facilities, which would be similar to provisions promulgated in the
2017 amendments rule and be estimated to apply to 1,660 active RMP
facilities at least every 5 years. Given the high accident rates in
NAICS 324 and 325 industries without considering proximity to other
facilities, EPA solicits comment on whether the RMP rule should simply
reinstate the 2017 rule provisions requiring STAA for NAICS 324 and
325.
    As discussed above regarding recent public comments, EPA is aware
that some commenters would like for all regulated facilities to
implement inherently safer technologies. With respect to whether the
Agency should require implementation of IST/ISD, in this rulemaking,
EPA does not intend to require facilities implement identified IST.
Instead, EPA has required evaluation of STAA as part of the PHA, as
well as employee involvement in the STAA evaluation. EPA believes
facility owners and operators will adopt IST and other safer technology
alternatives when it is practicable technically and economically and
when the risk reduction is significant even in the absence of a
mandate. Part of the basis for this belief is due to most of the
economic savings resulting from reduced accidents will be from reduced
on-site property damage to the owner or operator's facility. However,
EPA seeks comment on whether the Agency should require implementation
of technically practicable IST/ISD and STAAs. With respect to whether
all industries should be required to conduct STAA analysis or
investigate ISTs, as discussed above, while in theory considering IST
may reduce the probability of accidents, the accident history for most
industries does not establish that IST would substantially reduce
accident likelihood or impacts, and that EPA judges lack as many
opportunities for STAA to successfully reduce accidents. To the extent
that commenters have additional considerations relating to probability
and the effectiveness of STAA provisions if extended to all industries,
EPA requests commenters provide this information to EPA.
    In this proposed rulemaking, EPA is only requiring STAA in
industries with the most frequent and severe accidents with offsite
consequences. As discussed in section IV.A.2.v., above, EPA has
identified densely co-located refineries and chemical manufacturing
facilities (i.e., facilities with processes in NAICS 324 and 324 within
1 mile of another facility with processes in these NAICS) as a class of
facilities that present a heightened risk to nearby communities. EPA
seeks comment on whether the proposal to limit the STAA provisions to
324 and 325 regulated processes within 1 mile of another 324 and 325
regulated facility is appropriate or if another distance would be
appropriate; commenters should provide rationales for proposed distance
alternatives. EPA also solicits comment on other industries for which
STAA analysis should be required and seeks comment on how EPA might
justify extending these provisions to other industries with fewer
accidents.
    Finally, EPA considered requiring implementation of IST identified
in the course of an STAA, both for the proposed regulated industries
and for alternative options examined. The known costs of certain STAA
changes range from less than $1,000 to over $100 million. For many
significant STAA changes, the costs would be facility-specific, and EPA
has little information on the potential costs of large STAA projects.
Due to the uncertainty of STAA provision implementation, it is
challenging to identify the benefits that offset implementation costs.
    Commenters have identified industries for which EPA should require
the assessment and specifically suggested implementation of safer
technologies for water treatment facilities; \144\ however, EPA is not
requiring STAA analysis for water treatment facilities for specific
reasons. EPA relies on two reasons for not requiring STAA analysis for
water treatment facilities: our view that the probability of an
incident is low, and our understanding that such a requirement would
unreasonably burden State and local governments, especially when
applied to existing sources. First, in evaluating the potential for
large offsite consequences based on the numbers of persons potentially
exposed, only one of 22 incidents in NAICS 2213 between 2016 and 2020
reported an offsite impact: an evacuation of 125 people caused by an
ammonia leak.\145\ Risk to communities is a function of probability,
hazard, and exposure. Commenters who asked that the Agency mandate IST
for water treatment facilities or at least an assessment have
identified the number of persons potentially exposed in the event of an
accidental release, but generally do not address the accident history
data showing the low probability of an incident when discussing the
risk to be addressed by requiring IST or STAA analysis at water
treatment facilities. Second, most water treatment facilities are
operated by local and State governments. When conducting discretionary
rulemaking, EPA considers the costs to State and local governments. The
benefits of requiring STAA for these facilities would have to be
justified in relation to the costs and EPA needs more information on
such costs before applying any requirements to these facilities.
Therefore, EPA solicits comments on the actual and updated costs to
government-owned water treatment facilities. Additionally, EPA solicits
comments on a provision which would require consideration of ISD in the
design of new water treatment facilities, when the costs of designing
in safer technologies are recognized to be less than the cost of
retrofitting existing facilities.
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    \144\ EPA-HQ-OLEM-2021-0312-0014; 0017, 0039, 0149.
    \145\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022), Appendix A.
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    EPA has used accident history data to provide insight into the
probability with which these accidents have actually occurred to
support requiring STAA analysis for portions of particular industries.
However, EPA recognizes that substance and process-specific accident
history may not always be an appropriate metric for probability of an
accident or the risk communities face. For example, the consequences of
an HF release are so potentially catastrophic, and with known
alternatives existing, EPA has proposed that facilities with HF
alkylation evaluate and document STAA as part of their PHA. In this
case, EPA focused on numerous accidental releases that had the
potential to cause a secondary release of HF from alkylation units
rather than actual HF releases and their consequences. EPA solicits
comment on what other information or consideration it can use to assess
probability of an accident in other industries without substantial
accident history data as well as what specific chemicals or process may
merit the most focus, and how EPA may require STAA requirements for
industries without a history of accidents.
xi. Proposed Revisions to Regulatory Text
    Definitions (40 CFR 68.3). EPA is proposing to add several
definitions that relate to the STAA in 40 CFR 68.3. EPA is adding these
definitions to describe risk reduction strategies that the owner or
operator can use when considering safer technology and alternatives.
    First, EPA is proposing a similar definition for IST/ISD as in the
2017 amendments rule. The proposed definition includes risk management
measures that would eliminate, replace,

or reduce the use of regulated substances or make operating conditions
less hazardous or less complex.
    As in the 2017 amendments rule, EPA is also proposing definitions
for ``passive,'' ``active,'' and ``procedural'' measures. EPA proposes
that ``passive measures'' (in 40 CFR 68.3) be defined as those that
rely on measures that reduce a hazard without human, mechanical, or
other energy input. EPA also proposes to define ``active measures'' as
those that involve engineering controls that rely on mechanical, or
other energy input to detect and respond to process deviations.
Examples of active measures include alarms, safety instrumented
systems, and detection hardware (e.g., hydrocarbon sensors). Lastly,
EPA proposes a definition for ``procedural measures'' that includes
policies, operating procedures, training, administrative controls, and
emergency response actions to prevent or minimize incidents. Examples
of procedural measures include administrative limits on process vessel
fill levels and procedural steps taken to avoid releases.
    Finally, EPA is proposing to define ``practicability'' as the
capability of being successfully accomplished within a reasonable time,
accounting for technological, environmental, legal, social, and
economic factors. EPA clarifies in this definition that environmental
factors would include consideration of potential transferred risks for
new risk reduction measures. EPA is not requiring owners or operators
to implement identified IST/ISD. Although an owner or operator may
choose not to implement a safer technology or design identified on
account of its cost, EPA is proposing that the evaluation of
practicability be first based on technological, environmental, legal,
and social factors, with economic considerations evaluated last. EPA
proposes that the practicability assessment be documented with the
technological, environmental, legal, social and economic factors
outlined, along with any methods or processes used to determine
practicability.
xii. Process Hazard Analysis (40 CFR 68.67)
    EPA is proposing to modify the process hazard analysis (PHA)
provisions by adding paragraph (c)(9) to 40 CFR 68.67 to require that
the owner or operator of a facility with Program 3 processes in NAICS
codes 324 and 325 located within 1 mile of another 324 and 325
regulated facility address safer technology and alternative risk
management measures applicable to eliminating or reducing risk from
process hazards. EPA proposes that ``1 mile'' be interpreted to mean
``1 mile to the nearest fenceline'' for a facility in NAICS 324 or 325.
EPA is proposing to add paragraph (c)(9)(i) to specify that the
analysis include, in the following order, IST or ISD, passive measures,
active measures, and procedural measures. The owner or operator may
evaluate a combination of risk management measures to reduce risk. By
incorporating these requirements into the PHA, EPA proposes to require
facilities to address STAA in processes that already exist, rather than
only during the design phase. The results of the STAA must be
documented as part of the current PHA provisions in 40 CFR 68.67(e),
which require the owner or operator to document actions to be taken and
resolution of recommendations. EPA is also proposing that a summary of
this information be submitted to EPA as part of the STAA Technology
Transfer section. Finally, EPA is proposing to add paragraph
(c)(9)(iii) to require that the STAA team include and document the
involvement of one member who works in the process and has expertise in
the process being evaluated.
    EPA is also proposing to add paragraph (c)(9)(ii) to require that
the owner or operator determine and document the practicability of the
IST or ISD considered. EPA intends for this process to be separate and
additional to the PHA requirements described above. EPA solicits
comment on if it should only require the STAA as part of the PHA,
without the additional practicability assessment.
    The PHA must be updated and revalidated at least every 5 years in
accordance with paragraph 40 CFR 68.67(f). This provides the owner or
operator opportunities to evaluate the practicability of IST or ISD
considered since the last PHA review. EPA contends that 5-year
revalidation will give the owner or operator the opportunity to
identify new risk reduction strategies, as well as revisit strategies
that were previously evaluated to determine whether they are now
practicable as a result of changes in cost and technology. EPA seeks
comment on these proposed revisions.
b. Root Cause Analysis
    EPA is proposing to require all facilities with Program 2 and 3
processes to conduct a root cause analysis as part of an incident
investigation for an RMP-reportable accident as defined under 40 CFR
68.42. This includes requiring the root cause analysis to include
specific elements, requiring the use of a recognized investigation
method, and requiring that investigations are completed within 12
months. Based on RMP-reportable accidents from 2016 to 2020, EPA
estimates this provision will apply to an average of 100 facilities per
year.
    In the 2017 amendments rule, EPA amended 40 CFR 68.81 to add that
incident investigations shall include ``the factors that contributed to
the incident including the initiating event, direct and indirect
contributing factors, and root causes'' and that ``root causes shall be
determined by conducting an analysis for each incident using a
recognized method.'' In the 2019 reconsideration rule, EPA rescinded
the root cause analysis requirements, stating that EPA was ``unable to
make a direct connection between the presence or absence of these
provisions and a number of accidents prevented'' (84 FR 69834). EPA
also stated that it did not rely exclusively on a comparison of costs
and benefits to justify the rescission, but also acted to maintain
consistency with the OSHA PSM standard. As a result of the 2019 removal
of root cause analysis requirements, EPA's current causal incident
investigation requirements under 40 CFR 68.60 and 68.81 require
investigation into only ``the factors that contributed to the
incident.''
    Since the 2019 reconsideration rule, EPA has coordinated with OSHA
to ensure that any proposed incident investigation root cause analysis
provisions do not contradict OSHA PSM requirements. In the 2019
reconsideration rule, EPA also indicated that it had not conducted any
overall analysis of data from RMP accident investigations conducted by
regulated facilities to determine how well these investigations
identified causes and contributing factors (84 FR 69834). However, this
is in part because EPA has not required the investigation of root
causes and therefore cannot analyze such data. EPA therefore revisited
commenters' points concerning facilities with more than one accident.
Updated analysis of EPA's RMP accident reporting data identified
repeated accidents in facilities within the same process.\146\
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    \146\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
---------------------------------------------------------------------------

    For the 2019 reconsideration rule, EPA relied upon data
demonstrating that only a subset of facilities experience accidents.
This holds true for the updated analysis, with only 3 percent (n = 382)
of facilities between

2016 and 2020 reporting one RMP-reportable accident and 0.5 percent (n
= 70) of all RMP facilities reporting two or more RMP-reportable
accidents during that period. Among facilities reporting accidents,
facilities who reported one often have multiple accidents, indicating a
failure to properly address circumstances leading to subsequent
accidents. For example, between 2016 and 2020, these facilities
accounted for 36 percent (n = 176) of all accidents reported (n = 488).
Additionally, of these 70 facilities, 61 percent (n = 43) had
experienced another accident prior to 2016. Between 2004 and 2020, 18
facilities had more than 10 accidents each, with two facilities
reporting over 20 incidents each to EPA.\147\ These accidents may have
been preventable if root cause analyses had been required. EPA believes
multiple accidents result, in part, from a failure to thoroughly
investigate and learn from prior accidents.
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    \147\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
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    Although EPA cannot be certain that in all cases, subsequent
accidents are due to a failure to conduct a root cause analysis of an
earlier incident, EPA finds that of the 70 facilities with multiple
accidents between 2016 and 2020, 60 percent (n = 42) reported repeat
causal factors within the same process.\148\ While this could be a
failure to implement incident investigation findings or could be
unrelated to the earlier incident, multiple accidents within the same
process with the same causal factors indicate a likely failure to
rectify prior failures and root causes of these incidents. EPA believes
the occurrence of such subsequent incidents indicates an overall
failure to identify and implement controls that may have prevented
future incidents.
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    \148\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
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    In proposing to reestablish the root-cause analysis requirements,
EPA has determined that there are likely no legitimate reliance
interests associated with the 2019 reconsideration rule's elimination
of these requirements. The 2019 rule has only been in place for three
years and any accident investigation in the past, under way, or that
otherwise would be required that predate the proposed rule will not
have to be revised or changed in scope should EPA finalize the proposed
change. Further, the burden of the proposed root cause analysis is
relatively small. Few sources will have to conduct one because
accidents occur at a small number of sources and many sources perform
root cause analyses already in a manner consistent with industry or
company protocols. The potential benefit from improved incident
investigations is apparent from the significant percentage of sources
and processes that have another accident after the first. Rather than
relying on negotiations in enforcement actions as a basis for promoting
root cause analyses as necessary under the approach of the 2019
reconsideration rule, EPA believes the delays of negotiations and the
transaction costs of such an approach, and the benefit of a root cause
approach to incident investigations, makes it more prudent and
reasonable to impose a rule requirement for root cause analysis in
incident investigations rather than the approach adopted in 2019.
i. Root Cause Analysis Background
    EPA discussed root cause analysis at length in the 2016 proposed
amendments. As discussed, CCPS defines root cause analysis as: ``A
formal investigation method that attempts to identify and address the
management system failures that led to an incident. These root causes
often are the causes, or potential causes, of other seemingly unrelated
incidents. Root cause analysis identifies the underlying reasons the
event was allowed to occur so that workable corrective actions can be
implemented to help prevent recurrence of the event (or occurrence of
similar events).'' \149\ EPA also discussed that causes of incidents
are commonly referred to as ``causal factors'' (also known as
contributing causes, contributory causes, contributing factors, or
critical factors). CCPS defines a causal factor as a ``major unplanned,
unintended contributor to an incident (a negative event or undesirable
condition), that if eliminated would have either prevented the
occurrence of the incident or reduced its severity or frequency.''
\150\ Causal or contributing factors usually have underlying reasons
for why they occurred, which are known as ``root causes.'' CCPS defines
a root cause as a ``fundamental, underlying, system-related reason why
an incident occurred that identifies a correctable failure(s) in
management systems.'' \151\ EPA proposed that root causes shall be
determined by conducting a root cause analysis for each incident using
a recognized method or approach. CCPS' ``Guidelines for Investigating
Chemical Process Incidents'' discusses incident investigation
approaches and techniques and root cause analysis methods.\152\
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    \149\ CCPS, ``Root Cause Analysis (RCA),'' accessed February 15,
2022, https://www.aiche.org/ccps/resources/glossary/process-safety-glossary/root-cause-analysis-rca.
    \150\ CCPS, Guidelines for Investigating Process Safety
Incidents, 3rd Edition (2019).
    \151\ CCPS, Guidelines for Investigating Process Safety
Incidents, 3rd Edition (2019).
    \152\ CCPS, Guidelines for Investigating Process Safety
Incidents, 3rd Edition (2019).
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    EPA previously discussed that identifying and addressing incident
contributing factors and their root causes helps eliminate or
substantially reduce the risk of reoccurrence of the incident and other
similar incidents, citing notable incidents that CSB investigated.
These CSB investigations of the 2004 Formosa Plastics Corporation
incident,\153\ the 2005 BP Texas City Refinery incidents,\154\ and the
2010 Millard Refrigerated Services incident \155\ found that root
causes of prior, similar incidents were not identified, a lack that
contributed to subsequent incidents.
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    \153\ CSB, ``Formosa Plastics Vinyl Chloride Explosion,'' last
modified March 6, 2007, https://www.csb.gov/formosa-plastics-vinyl-chloride-explosion/.
    \154\ CSB, ``BP America Refinery Explosion,'' last modified
March 20, 2007, https://www.csb.gov/bp-america-refinery-explosion/.
    \155\ CSB, ``Millard Refrigerated Services Ammonia Release,''
last modified January 15, 2015, https://www.csb.gov/millard-refrigerated-services-ammonia-release/.
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    In the 2016 proposed amendments, EPA also discussed that root cause
analysis of accidents is an accepted safe management practice used by
many industries, noting that the American Chemistry Council (ACC)
conducts root cause analyses as part of its Responsible Care
program.\156\ In addition, New Jersey's TCPA,\157\ as well as
California's PSM for Refineries,\158\ Contra Costa County Health
Services,\159\ and the City of Richmond, California, Industrial Safety
Ordinances, already require root cause analyses for major chemical
accidents.\160\
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    \156\ EPA-HQ-OEM-2014-0328-0694.
    \157\ NJDEP, Toxic Catastrophe Prevention Act Program, TCPA
Program Consolidated Rule Document, section 68.42 (February 1,
2016), p. 38, https://www.nj.gov/dep/rules/rules/njac7_31_consolidated.pdf.
    \158\ California General Industry Safety Orders, Process Safety
Management for Petroleum Refineries, General Industry Safety Orders
section 5189.1(o) (2017).
    \159\ Contra Costa County, Chapter 450-8--Risk Management, Ord.
98-48 (1998), https://cchealth.org/hazmat/pdf/iso/Chapter-450-8-RISK-MANAGEMENT.pdf.
    \160\ City of Richmond, California, Chapter 6.43--Industrial
Safety (2016), https://cchealth.org/hazmat/pdf/iso/RISO-Chapter-6-43-INDUSTRIAL-SAFETY.pdf.

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ii. Recent Public Comments on Root Cause Analysis
    EPA received comments on root cause analysis during its 2021
listening sessions. For instance, a labor organization expressed
support for requiring RMP facilities to conduct root cause analyses as
part of incident investigations, as root cause analyses can prevent
similar events from occurring; this commenter suggested that a lot can
be learned from near misses and smaller incidents.\161\ The commenter
suggested that the definition of ``root cause'' could be revised to
read, ``a fundamental, underlying, system-related reason why an
incident occurred that identifies a correctable failure(s) in
management systems or process design.'' The commenter also suggested
that EPA should implement a timeline for near-miss investigations,
requiring initiation of the incident investigation within 48 hours of
an incident, a preliminary report within 90 days, and a final report
within 6 months. Further, the commenter suggested that EPA require
incident investigation teams including experts involved in the process
and the root cause analysis method, as well as employees and their
representatives and applicable contractors. Similarly, an advocacy
group suggested that the incident investigation should be completed
within 12 months of the incident.\162\ The advocacy group went on to
conclude that incident investigations should include a root cause
analysis, and that facilities should investigate near misses as well as
accidents where the affected process was decommissioned or destroyed.
Another commenter stated that owners or operators should report serious
near misses to EPA and that these incidents should be compiled in a
publicly available online database.\163\
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    \161\ EPA-HQ-OLEM-2021-0312-0057.
    \162\ EPA-HQ-OLEM-2021-0312-0170.
    \163\ EPA-HQ-OLEM-2021-0312-0076.
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    EPA also received comments that did not support root cause analysis
provisions. A regional industry trade association expressed concern
about the ``near-miss'' standard of the root cause analysis.\164\ This
commenter stated that the quality of safety reviews under the 2017
amendments rule could be diluted by applying them to high-frequency,
low-consequence events. The commenter also stated that the near-miss
requirement would impose significant administrative burdens and
economic costs on regulated facilities, especially without a clear
threshold for a near-miss event. The commenter requested that EPA not
adopt this proposal from the 2017 amendments rule. Similarly, another
industry trade association stated that facilities do not benefit from a
burdensome, one-size-fits-all requirement.\165\ This commenter went on
to say that near-miss incidents are often examples of active process
protections working as designed and requiring a root cause analysis of
near-miss events would create a disincentive for reporting. An industry
trade association stated that the root cause analysis under the 2017
amendments rule is duplicative of the root cause analysis conducted for
incident investigations under OSHA PSM regulations, as well as some
State regulations.\166\ An individual commenter also expressed general
opposition to the root cause analysis requirement, stating that most
companies already have a tiered process for conducting incident
investigations--including root cause analyses--and that the size of the
investigation should match the size of the incident.\167\ Meanwhile, an
industry trade association stated that EPA's definition of ``root
cause'' in 2017 was too narrow and would potentially exclude non-
system-related root causes, such as human error.\168\ Another industry
trade association stated that requiring an incident investigation
before ``de-registering'' a process would provide no benefit.\169\
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    \164\ EPA-HQ-OLEM-2021-0312-0037.
    \165\ EPA-HQ-OLEM-2021-0312-0078.
    \166\ EPA-HQ-OLEM-2021-0312-0045.
    \167\ EPA-HQ-OLEM-2021-0312-0050.
    \168\ EPA-HQ-OLEM-2021-0312-0071.
    \169\ EPA-HQ-OLEM-2021-0312-0078.
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iii. Investigation Timeframe
    In the 2017 amendments rule, EPA discussed that conducting incident
investigations as soon as possible after an incident may yield better
quality data and information, although it may take time to collect,
validate, and integrate data from a range of sources. EPA has
discovered situations where owners or operators of regulated facilities
indefinitely delayed completing incident investigations.
    EPA's own experience with accident investigation has shown that a
major accident investigation can take up to a year, or even longer.
Taking into consideration the need to complete an investigation while
allowing the proper time to determine the correct root causes, EPA is
again proposing to require that facility owners or operators complete
an incident investigation report as soon as reasonably practicable, but
no later than 12 months after an RMP-reportable accident. For very
complex incident investigations that cannot be completed within 12
months, EPA is allowing an extension of time if the implementing agency
(i.e., EPA and delegated authorities) approves the extension in
writing. EPA believes that 12 months is long enough to complete most
complex accident investigations but will allow facilities more time if
they consult with their implementing agency and receive approval for an
extension.
    In the 2017 amendments rule, EPA noted that the Agency's own
requirements under the Petroleum Refinery Maximum Achievable Control
Technology (MACT) and New Source Performance Standards (NSPS)
regulations already require root cause and corrective action analyses
for certain release events \170\ with a more stringent timeframe (i.e.,
45 days) for completing these analyses than the 12 months specified in
this proposed rule. RMP-regulated facilities that are also required to
meet the MACT and NSPS root cause analysis requirements must continue
to meet the timeframes specified under those rules, as applicable. EPA
again proposes that root cause analyses conducted to meet those
requirements may also be used to comply with the root cause analysis
requirements proposed herein, provided that the analysis meets the
requirements of 40 CFR 68.60 or 68.81. EPA did not receive substantive
comments on this provision, but again invites comments on this
approach.
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    \170\ 40 CFR 63.648(j)(6) and (j)(7)), and 40 CFR 60.103a(d).
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iv. Proposed Revisions to Regulatory Text
    EPA is proposing to define ``root cause'' as a fundamental,
underlying, system-related reason why an incident occurred. For
incidents that meet the accident history reporting requirements under
40 CFR 68.42, EPA is also proposing to amend 40 CFR 68.81 and 68.60 to
require the owner or operator to investigate the factors that
contributed to an incident. In the proposed amendment, these factors
will now include root causes, and these root causes shall be determined
by conducting an analysis for each incident using a recognized method
(such as CCPS). EPA is also amending both 40 CFR 68.81 and 68.60 to
require that a report be prepared at the conclusion of the
investigation and completed within 12 months of the incident (though it
will allow for facility owners or operators to request an extension
from the implementing agency).

v. ``Near Miss'' Definition
    In the 2017 amendments rule, EPA considered, but elected not to
finalize, a regulatory definition of ``near miss'' to identify
incidents that require investigation. At the time, EPA stated that the
criteria for determining incidents that require investigation would
continue to include events that ``could reasonably have resulted in a
catastrophic release.'' As discussed, adding the term ``near miss'' was
not intended to expand the types of incidents required to be
investigated, but rather, was intended as a clarification of incidents
that may have reasonably resulted in a catastrophic release and were
already required to be investigated. EPA notes that even without a
``near miss'' definition, these incidents are still currently required
to be investigated. EPA also notes that the definition of ``near
miss,'' as described here, is unrelated to the root cause analysis
provisions described above; 40 CFR 68.42 criteria would not be
applicable to near misses. EPA may ultimately believe that adding a
definition of a ``near miss'' may help clarify incident investigation
requirements overall. During the 2017 rulemaking, however, comments
demonstrated that adding the ``near miss'' definition as discussed at
that time instead resulted in confusion about incident investigation
requirements.
    EPA is not proposing a definition of ``near miss'' as part of this
rulemaking. Nevertheless, it solicits comments on a potential
definition of ``near miss'' that would address difficulties in
identifying the variety of incidents that may occur at RMP facilities
that could be near misses that should be investigated. For example,
CCPS defines a ``near miss,'' as ``an incident in which an adverse
consequence could potentially have resulted if circumstances (weather
conditions, process safeguard response, adherence to procedure, etc.)
had been slightly different.'' \171\ During the 2019 proposed RMP
reconsideration rule comment period, NJDEP provided recommended draft
text for 40 CFR 68.81 that would require investigation of all
accidental releases and near misses (instead of incidents that resulted
in or could reasonably have resulted in a catastrophic release) and
included a definition of ``near miss'' to mean ``an unplanned,
unforeseen, or unintended incident, situation, condition, or set of
circumstances which does not directly or indirectly result in a
regulated substance release. Examples of a near miss include, but are
not limited to, process upsets such as excursions of process parameters
beyond pre-established critical control limits; activation of layers of
protection such as relief valves, interlocks, rupture discs, blowdown
systems, halon systems, vapor release alarms, and fixed vapor spray
systems; and activation of emergency shutdowns. A near miss also
includes an incident at a nearby process or equipment outside of a
regulated process if the incident had the potential to cause an
unplanned, unforeseen, or unintended incident, situation, condition, or
set of circumstances at the regulated process.'' \172\ EPA solicits
comments on a universal ``near miss'' definition, as well as comments
on strengths and limitations of the definition provided by NJDEP and
how the definition may clarify requirements for incident
investigations. Based on these comments, in a future rulemaking, EPA
may propose a definition of ``near miss.''
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    \171\ CCPS, Guidelines for Investigating Process Safety
Incidents, 3rd Edition (2019).
    \172\ EPA-HQ-OEM-2015-0725-0973.
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c. Third-Party Compliance Audits
    Section IV.A.2.b of this preamble, ``root cause analysis,''
explains that incident investigations following an accident often
reveal multiple causal factors related to prevention program elements.
However, incident investigations generally evaluate only the affected
process; they do not necessarily address all covered processes \173\ at
a facility or even all prevention program elements for the affected
process. EPA expects that the proposed requirement to conduct a formal
root cause analysis after an RMP-reportable accident will be helpful to
ensure deficient prevention program areas are thoroughly investigated
for the specific covered processes involved in the accident.
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    \173\ See 2019 RMP reconsideration rule discussion of
``representative sampling'' to satisfy compliance audit evaluation
of multiple processes, 84 FR 69882-69883.
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    Compliance audits, in contrast, help to ensure a systematic
evaluation of the full prevention program for all covered processes.
EPA's RMP general guidance explains, ``A compliance audit is a way for
you to evaluate and measure the effectiveness of your risk management
program. An audit reviews each of the prevention program elements to
ensure that they are up-to-date and are being implemented and will help
you identify problem areas and take corrective actions.'' \174\
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    \174\ EPA, General Risk Management Program, Ch. 6: Prevention
Programs (2012), p. 6-24, https://www.epa.gov/sites/default/files/2013-11/documents/chap-06-final.pdf.
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    As discussed in the 2019 reconsideration rule, EPA recognizes that
a relatively small number of RMP-regulated facilities have RMP-
reportable accidents. However, EPA continues to be concerned with RMP
facilities that--despite current RMP regulations, enforcement, and
lessons learned from previous accidents--continue to have accidents
and, in some cases, multiple accidents. EPA RMP accident history data
show that while 97 percent of all RMP facilities had no RMP-reportable
accidents from 2016-2020, 3 percent of all RMP facilities had at least
one RMP-reportable accident and 0.5 percent of all RMP facilities had
two or more RMP-reportable accidents. Facilities responsible for two or
more accidents in those 5 years generally were within industry sectors
where regulated facilities have multiple RMP-regulated processes. RMP
facilities within the chemical manufacturing (NAICS 325) and petroleum
and coal products manufacturing (NAICS 324) industries represent over
50 percent of the facilities with two or more accidents in 5 years, and
they have on average two and eight RMP-regulated processes,
respectively, at their facilities.\175\ When RMP facilities have
multiple accidents within a 5-year period, EPA is concerned that those
facilities have not been able to identify measures on their own
(through incident investigations, hazard evaluations, and compliance
self-audits) to properly evaluate and apply appropriate prevention
program measures to stop accidents from occurring.
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    \175\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
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    EPA also has similar concerns for facilities with NAICS code 324
and 325 Program 3 processes that have had one RMP-reportable accident
and are located within a 1-mile radius of another 324 and 325 regulated
facility. EPA discusses the increased accident severity, frequency, and
consequences for these facilities in the STAA section (IV.A.2.a) of
this preamble. Between 2016 and 2020, 66 accidents occurred among
facilities in NAICS codes 324 and 325 located within 1 mile of another
324 or 325 facility.\176\
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    \176\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
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    Stationary sources that have had multiple accidents within a short
period; substantial non-compliance with RMP requirements; and/or high
accident

severity, frequency, and consequences pose a greater risk to
surrounding communities. EPA therefore believes it is appropriate to
require such stationary sources to undergo auditing by competent and
independent third-party auditors.
i. Third-Party Compliance Audits in Previous RMP Rulemakings
    EPA discussed third-party compliance audits at length in the 2016
proposed amendments. EPA discussed that self-auditing may be
insufficient to prevent accidents, determine compliance with the RMP
rule's prevention program requirements, and ensure safe operation. In
the preamble to the 1996 RMP rule, EPA identified the potential to use
independent third-party auditors for RMP compliance audits as an issue
for further consideration. In the 2016 proposed amendments, EPA
explained that poor compliance audits have been cited by EPA and CSB as
a contributing factor to the severity of past chemical accidents and
that in some cases, EPA has required third-party audits in enforcement
settlement agreements.
    The 2016 proposed amendments noted that other Federal programs
require third-party audits in existing rules to ensure safe operations.
The Administrative Conference of the United States' ``Third-Party
Programs Final Report'' (October 22, 2012) describes a variety of
third-party programs in Food and Drug Administration, Consumer Product
Safety Commission, and Federal Communications Commission
regulations.\177\ The Bureau of Safety and Environmental Enforcement
(BSEE) also promulgated revisions to their Safety and Environmental
Management Systems (SEMS II) requirements (78 FR 20423, April 5, 2013)
to help ensure the safe operations of offshore oil and natural gas
drilling and production facilities.
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    \177\ McCallister, Lesley. October 22, 2012. Third-Party
Programs Final Report (2012). https://www.acus.gov/report/third-party-programs-final-report.
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    The 2016 proposed amendments also discussed how industry recognizes
the benefits of third-party auditing programs and has established
programs and standards for third-party audits for some types of
operations, many of which are also subject to the RMP rule. Some of
these programs still in use are:
     National Association of Chemical Distributors (NACD)--
Responsible Distribution.\178\
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    \178\ National Association of Chemical Distributors, ``About
Responsible Distribution,'' accessed February 15, 2022, https://www.nacd.com/responsible-distribution/about-responsible-distribution/.
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     ACC--Responsible Care program.\179\
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    \179\ ACC, ``Responsible Care[supreg]: Driving Safety & Industry
Performance,'' accessed February 15, 2022, https://www.americanchemistry.com/chemistry-in-america/responsible-care-driving-safety-industry-performance?gclid=EAIaIQobChMIov_h7qbw9QIVj67ICh3g5guDEAAYASAAEgLHCfD_BwE.
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     API--Process Safety Site Assessments.\180\
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    \180\ API, ``Process Safety Site Assessments (PSSAP[supreg]),''
accessed February 15, 2022, https://www.api.org/products-and-services/site-safety.
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     Society of Chemical Manufacturers & Affiliates (SOCMA)--
ChemStewards program.\181\
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    \181\ Society of Chemical Manufacturers & Affiliates (SOCMA),
``SOCMA'S ChemStewards[supreg] Program,'' accessed February 15,
2022, https://www.socma.org/operations-manufacturing/chemstewards/.
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    In the 2017 amendments rule, EPA added compliance audit provisions
under 40 CFR 68.58 and 68.79 to require independent third-party
compliance audits after an RMP-reportable accident or findings of
significant non-compliance by an implementing agency for facilities
with Program 2 and Program 3 processes. EPA explained that independent
third-party auditing can assist owners and operators, EPA (or the
implementing agency), and the public to better determine whether the
procedures and practices developed by owners or operators for the
prevention program requirements are adequate and being followed.
    The 2019 reconsideration rule rescinded the third-party compliance
audit requirements. EPA's decision to rescind the third-party audit
requirements was to ``allow for coordination of process safety
requirements with OSHA before proposing future regulatory changes, and
to reduce unnecessary regulatory costs and burdens of a broad rule-
based approach to third-party audits rather than a case-by-case
approach (84 FR 69875)''; it was not based on a determination that
third-party audits are not beneficial or justified in certain cases. In
the 2019 reconsideration rule, EPA further indicated that ``while EPA
cannot inspect every RMP facility every year, the Agency performs
approximately 300 RMP facility inspections each year and prioritizes
inspections at facilities that have had accidental releases. Therefore,
EPA's enforcement resources and posture are capable of addressing
accident-prone facilities without additional broad regulatory mandates.
The Agency's choice to use a more surgical approach to accident
prevention at these facilities is reasonable and practicable (84 FR
69853).''
    In proposing to reestablish third-party compliance audits, EPA has
determined that there are likely no legitimate reliance interests
associated with the 2019 reconsideration rule's elimination of these
requirements. Similar to the possible reliance interests regarding root
cause analysis, the 2019 rule has only been in place for three years,
and any compliance audit in the past, under way, or that otherwise
would be required that predate the proposed rule will not have to be
revised or changed in scope should EPA finalize the proposed change.
Since the 2019 reconsideration rule, EPA has coordinated with OSHA to
ensure that any proposed third-party compliance audit provisions do not
contradict OSHA PSM requirements. The Agency continues to require third
parties to conduct compliance audits for the settlement of some RMP
civil enforcement cases. Facilities in those cases are often required
to also comply with the OSHA PSM standard, and conflicts between the
third-party audit provisions of settlement agreements and the
compliance self-auditing requirements of the PSM standard have not
arisen with OSHA.182 183 184 The Agency now recognizes that
there are some impracticalities of relying on EPA inspections,
particularly in the wake of the COVID-19 pandemic and in consideration
of the long time period over which some enforcement matters are
settled. EPA realizes that a better approach is to be more proactive
with respect to prevention and aim to prevent further accidents at
facilities, particularly facilities that have proven to be accident-
prone.
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    \182\ United States of America v. Harcros Chemicals Inc, No.
2:17-cv-02432, Document 3-1 (January 31, 2017), https://www.justice.gov/enrd/consent-decree/file/1280071/download.
    \183\ United States of America and the State of Kansas, ex rel.
Kansas Department of Health and Environment v. HollyFrontier El
Dorado Refining LLC, No. 2:20-cv-02270, Document 1 (May 28, 2020),
https://www.justice.gov/opa/press-release/file/985591/download.
    \184\ United States of America v. Formosa Plastics Corporation,
Texas, No. 6:21-cv-00043, Document 2-1 (September 13, 2021), https://www.justice.gov/opa/press-release/file/1432401/download.
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ii. Recent Public Input on Third-Party Compliance Audits
    Commenters provided feedback on third-party audits during the two
2021 listening sessions and in written comments submitted in response
to an associated request for comments.
    Several commenters expressed general support for the third-party
audit requirement of the 2017 amendments

rule.\185\ A labor organization expressed support for requiring third-
party audits after an accidental release or discovery of significant
non-compliance. The commenter stated that these audits are critical to
protecting high-risk facilities and suggested that EPA ensure these
audits are not used to merely satisfy a requirement. The commenter also
suggested that EPA require auditors to be accredited by an auditing
accreditation organization and prohibit auditors from developing
relationships with facilities.\186\ Another individual commenter
supported including a requirement for third-party audits in the RMP
rule and said that auditors should engage with employees and their
representatives to become more familiar with the facilities; this
commenter also suggested that auditors should include comments provided
by employee representatives in the draft and final audit report.\187\
Another commenter suggested that it is feasible to train engineers and
chemists to be auditors so that they ensure industry standard practices
are being followed, but noted that there should not be a ``revolving
door'' between auditors and industry employees.\188\
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    \185\ EPA-HQ-OLEM-2021-0312-0170; 0057, 0076.
    \186\ EPA-HQ-OLEM-2021-0312-0057.
    \187\ EPA-HQ-OLEM-2021-0312-0076.
    \188\ EPA-HQ-OLEM-2021-0312-0383-2.
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    Several commenters expressed opposition to the third-party audit
requirement of the 2017 amendments rule. An industry trade association
stated that the third-party audit requirement is not realistic, would
not support better audits of RMP facilities, and would potentially
``degrade rather than improve safety.'' \189\ This commenter and others
expressed concern about the potential costs and availability of third-
party auditors.\190\ One commenter stated that the industry would be
subject to third-party consultant pricing demands, as well as
administrative and recordkeeping burdens. The commenter stressed that
third-party auditors may be unacquainted with certain processes,
industries, or businesses, and argued that the 3-year disqualifier for
auditors who have conducted past research, development, or consulting
with the owner or operator of a facility is unrealistic, overly
restrictive, and especially difficult for facilities in more rural
areas.\191\
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    \189\ EPA-HQ-OLEM-2021-0312-0037.
    \190\ EPA-HQ-OLEM-2021-0312-0037; 0077.
    \191\ EPA-HQ-OLEM-2021-0312-0037.
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    Other commenters, including industry trade associations and an
individual commenter, expressed concerns about the auditors' lack of
industry and process knowledge.\192\ An industry trade association said
that the audit teams at facilities are highly trained and report
directly to a chief executive officer. These teams visit different
facilities under one company and transfer safety knowledge from one
facility to another without concerns about disclosing confidential
information. The commenter explained that the potential disclosure of
confidential information would be a concern with independent third-
party auditors who observe production processes at many
facilities.\193\ Another industry trade association expressed
agreement, saying that independent auditors do not hold certain
industry knowledge and cannot be trusted.\194\ Another industry trade
association said that because the audit mandate would not enhance
chemical safety at facilities, it supported EPA's decision to rescind
this provision in 2019. This commenter suggested that EPA use its own
inspection powers to better enforce auditing practices at facilities,
focusing on facilities responsible for the majority of the
accidents.\195\ Another industry trade association stated that
requiring a third-party audit after a release would be redundant due to
the current requirement to perform a root cause analysis.\196\ The
industry trade association further commented that requiring a
compliance audit for each covered process every 3 years under Program 2
and Program 3 would impose substantial burdens and cause inefficiencies
and operation disruptions.
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    \192\ EPA-HQ-OLEM-2021-0312-0077; 0045, 0050, 0071.
    \193\ EPA-HQ-OLEM-2021-0312-0045.
    \194\ EPA-HQ-OLEM-2021-0312-0071.
    \195\ EPA-HQ-OLEM-2021-0312-0077.
    \196\ EPA-HQ-OLEM-2021-0312-0078.
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iii. Proposed Third-Party Compliance Audit Requirements
    2017 provisions. EPA is proposing to adopt the independent third-
party compliance audit provisions as outlined in the 2017 amendments
rule with modifications to account for EPA's recent review of the
current RMP rule, which included data analyses and solicitation of
comments. The proposed provisions for this action reflect that the most
accident-prone facilities have not been able to properly evaluate and
apply appropriate prevention program measures to regulated processes to
stop accidents from occurring and that the availability of some
qualified third-party auditors may be limited.
    EPA is proposing to use the same definition of ``third-party
audit'' as in 40 CFR 68.3 in the 2017 amendments rule. Regarding when a
third-party audit must be performed, EPA is proposing to modify the
first condition from the 2017 amendments rule (at 40 CFR 68.58 and
68.79) that requires a third-party audit after one accidental release
meeting the criteria in 68.42, instead requiring it after two
accidental releases within a 5-year period. Based on RMP-reportable
accidents from 2016 to 2020, EPA estimates this will apply to an
average of 70 facilities. Additionally, EPA is proposing to require all
facilities with regulated NAICS code 324 and 325 Program 3 processes
that have had one RMP-reportable accident and are located within a 1-
mile radius of another facility with a regulated NAICS code 324 and 325
process to conduct a third-party audit after one accident. EPA
discusses the increased accident severity, frequency, and consequences
for these facilities in the STAA section (IV.A.2.a) of this preamble.
Between 2016 and 2020, 66 accidents occurred among facilities in NAICS
codes 324 and 325 located within 1 mile of another 324 or 325
facility.\197\
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    \197\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
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    Regarding requirements for third-party auditors and third-party
audits in new sections 68.59 and 68.80, EPA is proposing to restore the
provisions from the 2017 amendments rule but remove the following
auditor independence requirements contained in 40 CFR 68.59 and
68.80(c)(2)(iii) and (iv) to allow more flexibility in choosing
auditors:
     Auditors cannot have conducted past research, development,
design, construction services, or consulting for the owner or operator
within the last 2 years.
     Auditors cannot provide other business or consulting
services to the owner or operator, including advice or assistance to
implement the findings or recommendations of an audit report, for a
period of at least 2 years following submission of the final audit
report.
    As noted earlier in this section, several trade associations in the
chemical manufacturing and petroleum refining industries have third-
party auditing as part of their industry programs on process safety
(NACD, ACC, API, SOCMA). For owners and operators with processes in
NAICS codes 324 and 325, the Agency expects that there would be ample
auditors experienced in the relevant industries and knowledgeable of
the processes available for sources in these particular NAICS codes.
The 2017 final RMP