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PT Notes

Information Availability Requirements

PT Notes is a series of topical technical notes on process safety provided periodically by Primatech for your benefit. Please feel free to provide feedback.

This PT Note describes proposed amendments to EPA's Risk Management Program regulation relating to information availability requirements.

EPA believes that ensuring communities, local planners, local first responders, and the public have appropriate chemical facility hazard-related information is critical to the health and safety of the responders and the local community.

Local Emergency Planning Committees (LEPCs) and first responders have stated that they want to have access to the most relevant chemical hazard and risk information for their needs, in a user-friendly format, to better support planning and preparedness efforts. Community residents, operators of community facilities (such as daycare facilities and nursing homes) and organizations have noted that they need basic information regarding chemical risks at facilities, presented in a clear and consistent manner, so that they can effectively participate in preparedness and planning to address such issues as effective emergency notification procedures, evacuation, and sheltering in place. In response to these issues, EPA is proposing ways to enhance information sharing and collaboration between chemical facility owners and operators, tribal and local emergency planning committees, first responders, and the public, in a manner that balances security and proprietary considerations.

EPA believes that process safety incidents and public comments demonstrate the need for better communication of the potential risks associated with accidental releases at stationary sources. However, in making information more readily available EPA must also recognize and balance the associated security concerns because the public sharing of certain specific facility information and any associated vulnerabilities has the potential to aid terrorists in planning an attack.

EPA is proposing to require certain information to be made available, upon request, to LEPCs and emergency response officials to help them to understand the potential risks at RMP-regulated facilities, as well as to aid them in emergency planning and response activities. EPA also is proposing to amend the information sharing provisions for the public to make existing information more easily accessible to neighboring communities to encourage them to prepare for an emergency. EPA also believes that the revisions will likely contribute to the prevention of future chemical accidents. Cognizant of the spirit and intent of the Chemical Safety Information, Site Security and Fuels Regulatory Relief Act (CSISSFRRA), the proposed revisions do not disclose the substance or form of information subject to restriction under CAA 112(r)(7)(H) or 40 CFR part 1400.

Details of these requirements are provided below.

EPA Objectives

EPA has two objectives for improving public information sharing provisions of the RMP rule. The first is to ensure that local emergency response and planning officials have the information they need to prepare for an emergency response to an accidental release at a stationary source. This includes determining what information is appropriate to improve community emergency response plans and ensure the safety of the local responders and the community.

EPA must also determine the appropriate frequency for updating this information to avoid overwhelming local planners while ensuring information is current. While developing emergency response plans, LEPCs and facility owners or operators should also involve local citizens to help them understand the appropriate actions they should take in the event of an accidental release. This may reduce public panic and enable residents to act quickly and appropriately to protect themselves.

The second objective is to help improve awareness by the public of risks in their communities and provide information on where they can learn more about preparedness and community emergency response plans. Any publicly available information should be in a format that is easily accessible. The goal is to encourage residents to learn about community emergency response plans and understand what actions they need to take during an emergency to protect themselves.

EPA is proposing to add provisions for sharing information, upon request, with LEPCs and/or emergency response officials and revise the existing provisions for sharing information with the public.

EPA is also proposing that facility owners and operators conduct public meetings within 30 days of an RMP reportable accident to discuss chemical hazards present at facilities and provide information on accidental releases. These meetings can provide opportunities for facilities to engage the public to address concerns following an accidental release and explain how facilities will prevent future accidents.

Proposed Public Disclosure Requirements to LEPCs or Emergency Response Officials

EPA is proposing to add requirements to subpart H, Other Requirements, that apply to all facilities regulated under the RMP rule, including facilities with Program 1 processes.

EPA proposes to add § 68.205 to require owners and operators to provide information to local emergency responders and LEPCs upon request. If information required under this proposal is already available to the public on a company website, the owner or operator may comply by providing the website link to the first responders and LEPC.

Paragraph § 68.205(a) would require that the RMP be accessible to local emergency responders and LEPCs in exactly the same manner as the current requirement under § 68.210(a). A reference to 42 U.S.C. 7414(c), which covers information and reports (such as the RMP) required under section 42 U.S.C. 7412, is included to show the authority under which the non-Offsite Consequences Analysis (non-OCA) portion of an RMP shall be available to the public, except for any information that would divulge methods or processes entitled to protection of Confidential Business Information (CBI) or trade secrets. This reference is already part of the current § 68.210(a).

A reference to 40 CFR Part 1400 has been added to address the disclosure restrictions under CSISSFRRA, that is, restrictions on the disclosure of OCA information. EPA is not changing its policy regarding OCA information. The reference to 40 CFR Part 1400 only clarifies the statutory obligations that relate to securing this information.

Under paragraph § 68.205(b), EPA would require the owner or operator to develop summaries of specific chemical hazard information for all of their regulated processes and provide this information, upon request, to the LEPC or local emergency response officials as part of their emergency response coordination efforts. The facility should make information available in a manner that is understandable and avoids technical jargon. The information should be conveyed without revealing CBI or trade secret information. The information must adequately explain the findings, results, or analysis being provided.

The specific information that must be provided to LEPCs or emergency response officials upon request is outlined below:

  • Information on Regulated Substances. Information related to the names and quantities of regulated substances at the source (paragraph § 68.205(b)(1)). This only applies to regulated substances held in a process above the threshold quantity (TQ).
  • Accident History Information. The facility's accident history information required under § 68.42 (paragraph § 68.205(b)(2)).
  • Compliance Audit Reports. Summaries of compliance audit reports required under §§ 68.58 and 68.59 (for Program 2 processes), or §§ 68.79 and 68.80 (for Program 3 processes), as applicable (paragraph § 68.205(b)(3)). The audit report summary shall include:
    • The date of the report.
    • The name and contact information of the auditor and the facility contact person.
    • A brief description of the audit findings.
    • An appropriate response to each of the findings, and
    • A schedule for addressing each of the findings.
  • Incident Investigation Reports. Summaries of incident investigation reports required under § 68.60(d) (for Program 2 processes) or § 68.81(d) (for Program 3 processes), as applicable (paragraph § 68.205(b)(4)). The incident investigation report summary shall include:
    • A description of the incident and events leading up to it, including a timeline.
    • A brief description of the process involved.
    • The names and contact information of personnel on the investigation team.
    • The direct cause, contributing cause, and root cause of the incident.
    • The on-site and offsite impacts.
    • The emergency response actions taken.
    • Any recommendations, and
    • A schedule for implementing recommendations, as applicable.
  • Inherently Safer Technologies (IST). For each process in NAICS codes 322, 324, and 325, a summary of the IST or ISD identified in accordance with § 68.67(c)(8) that the owner or operator has implemented or plans to implement (paragraph § 68.205(b)(5)). The owner or operator shall update this summary as part of the calendar year submission if any of the summary information has been revised as a result of the safer technology and alternatives analysis (STAA) that is conducted as part of the update to the PHA prepared in accordance with § 68.67(f). The calendar year submission should also identify whether any revisions were incorporated. The IST/ISD summary shall include, at a minimum:
    • The RMP process ID and process description, if provided, of the process affected.
    • A brief description of the IST or ISD and which type of measure best characterizes it: minimization, substitution, modernization, or simplification.
    • The names of the regulated substance(s) whose hazard, potential exposure, or risk was or will be reduced as a result of the implementation and whether the substance is listed as toxic or flammable. If the chemicals affected are a mixture of flammable substances, the name “flammable mixture” may be used, instead of the individual flammable substance names, and
    • The dates of implementation or planned implementation.
  • Exercises. Information on emergency response exercises conducted under § 68.96, including, at a minimum, schedules for upcoming exercises, reports for completed exercises, and other related information (paragraph § 68.205(b)(6)).

EPA believes that summary information on findings from incident investigations, compliance audits, exercises, and IST employed can demonstrate to local emergency response officials how a facility is improving its management of chemical risks and assist local emergency planners to understand and better prepare for these risks when developing community emergency response plans.

Furthermore, EPA believes that disclosing information related to IST can help responders and planners to prioritize and allocate response resources. For example, IST implementation information may be relevant for emergency response personnel who are maintaining response capabilities to address a specific hazard that would no longer apply once an IST is implemented, such as by substituting a less hazardous chemical for an RMP-regulated substance.

The information to be provided, upon request, to LEPCs or emergency response officials in § 68.205 depends on the Program level for the process.

EPA is proposing in § 68.205(c) that the owner or operator update summary information every calendar year, including all applicable information that was revised since the last submission, and provide this information upon request.

EPA is proposing to add § 68.205(d) to address protection of classified information from disclosure. This provision is identical to the current § 68.210(b).

EPA is proposing to add the acronym CBI for Confidential Business Information to § 68.3 and to add § 68.205(e) to describe the process for claiming and handling CBI. EPA is proposing that an owner or operator asserting a CBI claim for information requested by an LEPC or local emergency response official under this section should submit a sanitized version to the LEPC or emergency response officials, and submit to EPA both the sanitized version and a version containing the CBI along with a substantiation of the CBI claim at the time it is asserted.

This process for assertion and substantiation of CBI claims is the same as that required in §§ 68.151 and 68.152 for information contained in the RMP. As provided under § 68.151(b)(3), an owner or operator of a stationary source may not claim five-year accident history information as CBI. As provided in § 68.151(c)(2), an owner or operator of a stationary source asserting that a chemical name is CBI shall provide a generic category or class name as a substitute in its submission.

An owner or operator should be aware that anything they send to their LEPC in accordance with § 68.205(e) becomes public information. For any information claimed as CBI when submitted to EPA and later submitted to the LEPC, the CBI claim regarding such information is waived. Therefore, if an owner or operator wants to maintain the confidentiality of information, when submitting such information to the LEPC, they should submit a sanitized version.

With these proposed requirements, EPA intends to ensure that LEPCs and emergency response officials have information on chemical hazards at regulated facilities and are better prepared to understand and prepare for risks to the communities and emergency responders. EPA encourages local emergency response officials to coordinate with owners or operators of regulated facilities and participate in emergency response exercises as time and resources allow.

LEPC and local emergency response officials should use the information identified in § 68.205(b) to assist in revising the community emergency response plan developed under 42 U.S.C 11003 and related purposes.

EPA is seeking comments on this approach. The Agency has posed these questions:

  • Will the proposed requirements improve the community emergency planning and preparedness?
  • Is there additional information that should be shared with LEPCs or emergency response officials? For example, should EPA require the full STAA to be submitted to the LEPC?

EPA also is seeking comments on whether to require less information to be shared, for example, limit incident investigation information to incidents with offsite impacts.

Some small entity representatives suggested that information be limited to a one-page summary of each significant chemical hazard and suggested including only the following elements: the name of the substance, its properties, its location, and recommended firefighting and emergency response measures. EPA is seeking comments on this narrowed approach.

The Agency also posed these questions:

  • Should EPA require owners or operators to periodically submit information to the LEPC or local responders, and if so, what timeframe should EPA consider?
  • Is the proposed timeframe for updating information sufficient to ensure information is up-to-date?
  • Should EPA require information to be updated only after the source receives a request from an LEPC or local emergency response official? If so, how much time is sufficient to allow development and submission of summaries following requests for information under this proposed provision?
  • Should EPA specify a standard format for summary information in order to make it easier for local officials to interpret the information, for example, specify a summary template for information on regulated substances, compliance audits reports, incident investigation reports, and IST?

Proposed Revisions to Requirements for Information Availability to the Public

Under paragraph § 68.210(a), EPA is proposing to add a reference to 40 CFR Part 1400 to address CSISSFRRA disclosure restrictions, that is, for OCA information. EPA is not changing its policy regarding OCA information. The reference to 40 CFR Part 1400 only clarifies the statutory obligations that relate to securing this information.

EPA is proposing to redesignate the current paragraph § 68.210(b) that addresses the non-disclosure of classified information by the Department of Defense or other Federal agencies or their contractors as § 68.210(e).

EPA is proposing a new paragraph (b) to require the owner or operator of a stationary source to distribute certain chemical hazard information for all regulated processes to the public in an easily accessible manner. EPA is proposing to require the owner or operator to distribute the following information, as applicable:

  • Names of regulated substances held in a process above TQs.
  • Safety Data Sheets (SDSs) for all regulated substances held above TQs at the facility.
  • The facility's accident history required under § 68.42.
  • Information concerning the source's compliance with § 68.10(b)(3) or the emergency response provisions of subpart E, including:
    • Whether the source is a responding stationary source or a non-responding stationary source.
    • Name and phone number of local emergency response organizations with which the source last coordinated emergency response efforts, pursuant to § 68.180, and
    • For sources subject to § 68.95, procedures for informing the public and local emergency response agencies about accidental releases.
  • Information on emergency response exercises required under § 68.96, including schedules for upcoming exercises, reports for completed exercises as described in § 68.96(b)(3), and any other related information, and
  • LEPC contact information, including LEPC name, phone number, and website address as available.

EPA believes that providing this information to the general public will allow people who live or work near a regulated facility to improve their awareness of risks to the community and to be prepared to protect themselves in the event of an accidental release.

EPA also thinks that requiring facilities to provide summary information on the facility's emergency response plans and emergency exercises to the public will provide assurance to the community that the facility is adequately prepared to properly handle a chemical emergency, should it arise. EPA believes that an additional benefit of sharing exercise schedules is to avoid unnecessary public alarm when exercises are conducted.

The facility owner or operator can make all the required information available to the public in a variety of ways. For example, the owner or operator could comply by making the information available on the facility or company website, if one is available. If the facility does not have a website, the owner or operator could establish one. Alternatively, there are free or low cost internet platforms, file sharing services, and social media tools that are designed to share information with the public.

As another option, the facility could make the information available in hard copy at publicly accessible locations such as a public library or a local government office. If the facility has the means to handle public visitors, it could choose to make the information available at the facility location.

Alternatively, the facility could provide the information by email, upon request. EPA encourages the facility owner or operator to coordinate information distribution with the LEPC or local emergency response officials to determine the best way to reach public stakeholders.

EPA is seeking comments on this approach. The Agency has posed these questions:

  • Is there additional information that should be shared with the public? For example, should EPA require the STAA proposed under § 68.67(c)(8), or a summary of that analysis, be shared with the public?
  • Alternatively, should EPA further limit the information elements proposed? For example, how should EPA limit the disclosure of information in exercise reports that might reveal security vulnerabilities about the facility or emergency responders?
  • Should EPA not require disclosure of names of individuals involved in exercises or facility security vulnerabilities revealed by the exercise?
  • Is there an alternative way to improve community preparedness for safety purposes while balancing the security concerns to limit a terrorist's ability to use the information for an attack?
  • Is there other information that community residents and operators of community facilities, such as schools, nursing homes, and daycare centers, need in order to participate in emergency preparedness planning, particularly as it relates to effective incident notification, sheltering in place, and evacuation?

EPA also is seeking comments on the feasibility of these various options for providing information to the public and requests suggestions for other ways that the data could be made available.

Lastly, EPA is seeking comments on any challenges facility owners or operators would have in providing the information or challenges public stakeholders would have in obtaining the information.

In order to inform the public of the location of the information, EPA is proposing to require under § 68.160(b) that the facility report in their RMP the location or means of public access to the information proposed to be disclosed under this subsection.

EPA is proposing that the owner or operator shall update and submit information required under § 68.210(b) every calendar year, including all applicable information that was revised since the last update.

In § 68.210(f), an owner or operator asserting CBI shall submit a sanitized version of the information required under this section to the public. Assertion of claims of CBI and substantiation of CBI claims shall be in the same manner as required in §§ 68.151 and 68.152 for information contained in the RMP required under subpart G. As provided in § 68.151(c)(2), an owner or operator of a stationary source asserting that a chemical name is CBI shall provide a generic category or class name as a substitute.

If an owner or operator has already claimed CBI for a portion of the Risk Management Plan, then that claim still applies for the disclosure elements here. The owner or operator should provide a sanitized version as described in the RMP*eSubmit User's Manual.

EPA is seeking comments on this approach. The Agency has posed these questions:

  • Will the proposed requirements improve the knowledge sharing between regulated facilities and the public?
  • Is there additional information that should be shared with the public stakeholders?
  • Should EPA only require information to be shared upon request by the public?
  • Alternatively, should EPA further limit the information the Agency is proposing to be required, such as requiring only a one-page summary that addresses chemical hazard information and emergency response measures? EPA could alternatively eliminate some of the required information elements or further limit information, such as by limiting accident history information to only those with offsite impact. Some small entity representatives asked whether the existing RMP data or the RMP executive summary available to the public through existing sources (Freedom of Information Act requests, Federal reading rooms, or other public sources who have compiled the data) are adequate to meet the information needs of the public.

When the CSISSFRRA was enacted in 1999, it included a section that required owners or operators of all facilities regulated under the RMP rule to hold a public meeting within 180 days of enactment. The purpose of the public meeting was to describe and discuss the local implications of the RMP on the community. Two or more stationary sources were allowed to conduct a joint meeting, while small businesses were allowed to instead post a summary of their OCA information no later than 180 days after enactment.

EPA is proposing in paragraph § 68.210(d) to require regulated facilities that have any accident meeting the five-year accident history criteria of § 68.42 to hold a public meeting within 30 days after the accident. This provides an opportunity for the owner or operator of the RMP facility to inform the community about the accident including, at a minimum, the information reportable under § 68.42. This includes information on:

  • When the accident occurred.
  • The nature of the accident including initiating event and contributing factors, if known.
  • Chemicals involved and quantities released.
  • Weather conditions, if known.
  • On-site and offsite impacts.
  • Emergency response notifications, and
  • Operational or process changes that resulted, thus far, from investigation of the release.

EPA expects that, in some cases, sources will have completed the incident investigation required under § 68.60 or § 68.81 prior to holding the public meeting. This would allow the owner or operator to share appropriate information about the accident with the local community. However, in some cases, such as for complex, protracted investigations, the source may need to hold a public meeting prior to completing the incident investigation. In such cases, the owner or operator should consider holding a second public meeting after completing the incident investigation.

Additionally, a public meeting must be held after accidents that destroy a process or stationary source or cause the process or source to be subsequently decommissioned.

Stationary sources may combine public meetings with LEPC meetings or other events as long as those events/meetings are available for public participation.

Public meetings must also address other relevant chemical hazard information such as that described in § 68.210(b) and any other appropriate information that may improve safety and emergency preparedness activities in the community. The facility representative should describe the risks that are associated with the facility, and what the facility is doing to protect the public from those risks. In addition, the facility personnel should relay information that would assist the public to prepare for accidental releases. For example, at the meeting, the facility representative should discuss the process for public emergency notification, procedures for sheltering in place or evacuating, and where to obtain further updates on the status of an emergency incident. The discussion should also address how the public can access community emergency response plans and identify what the community may expect to see during a field exercise.

EPA noted that several small entity representatives questioned the value of having any public meetings and noted that, when held in the past, public meetings were not well attended. Some small entity representatives suggested altering the requirement to allow for the request of a public meeting if an LEPC or community felt it was necessary.

Additionally, small entity representatives expressed concern about the requirement to hold public meetings 30 days after an accident. Suggestions by small entity representatives included expanding the timeframe from 60 days to 9 months. Small entity representatives also indicated that many small businesses may still be handling the aftermath of accidents, conducting incident investigations, and arranging audits in this time period, with limited attention to devote to educating the public.

EPA is seeking comments on the proposed approach and whether there are other options that EPA should consider for public meetings. For example:

  • Should EPA require regular public meetings rather than only after an accident subject to reporting requirements under § 68.42?
  • Should EPA require public meetings upon request by LEPCs, emergency responders, or the public?
  • Alternatively, should the public meeting requirement be restricted to RMP reportable accidents with offsite impacts?
  • Instead of requiring a public meeting after RMP reportable accidents, should EPA require owners and operators to meet only with LEPCs and emergency responders?
  • If EPA finalizes the requirement to hold post-accident public meetings, should EPA extend the required timeframe to hold the meeting beyond 30 days, for example, to 90 days, in order to give the owner or operator more time to learn about accident causal factors and prepare for a public meeting? If so, what extended timeframe should EPA choose and should EPA require the implementing agency to approve any extensions?

Alternative Options

EPA considered an option to require all facilities to hold public meetings at least once every five years (and within 30 days after an accident) to share chemical hazard information described under § 68.210(b) and any other appropriate information that may improve safety and emergency preparedness activities in the community. However, EPA did not propose this requirement as the Agency’s preferred option because of concerns raised by small entity representatives that periodic public meetings are often sparsely attended.

EPA also considered limiting the requirement for periodic and post-accident public meetings to only Program 2 and Program 3 facilities. However, EPA did not propose this option as the Agency’s preferred option because even though accidents at Program 1 facilities should not have significant public impacts, some communities near these facilities may still be interested in understanding the risks at the facility and the procedures and controls that are in place to limit offsite impacts. Additionally, if a Program 1 facility does have an RMP reportable accident with offsite impacts, EPA believes they should be held to the same standard as other facilities and be required to hold a public meeting within 30 days of the incident to provide additional information on the accidental release. Nevertheless, EPA is interested in receiving public feedback on whether EPA should consider requiring periodic public meetings and whether the requirement should be limited to Program 2 and Program 3 facilities.

EPA also is considering an option for supporting the public disclosure provisions with a “score card” or a “grade” system that could be provided by an independent third party. The score or grade would be made available to the LEPCs and public to demonstrate the facility's compliance with the RMP rule. This method could be used either instead of or in addition to what EPA is proposing. EPA requests information and recommendations on how to develop such a program, including the types of scoring criteria that should be used and any other issues that the Agency should consider when developing such a system.

EPA is seeking comments on these alternative approaches and whether there are any other alternative options that EPA should consider for future actions.

Further details can be found at:

https://www.regulations.gov/#!documentDetail;D=EPA-HQ-OEM-2015-0725-0001

Comments on the proposed amendments must be submitted on or before May 13, 2016. Comments should be identified by docket EPA-HQ-OEM-2015-0725 and submitted through to the Federal eRulemaking Portal: http://www.regulations.gov.

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