Wednesday
January 6, 1999
Part IV
Environmental
Protection Agency
40 CFR Part 68
Accidental Release Prevention
Requirements; Risk Management
Programs Under Clean Air Act Section
112(r)(7), Amendments; Final Rule
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Federal Register/Vol. 64, No. 3/Wednesday, January 6, 19997Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 68
[FRL-6214-9]
RIN 205Q-AE46
Accidental Release Prevention
Requirements; Risk Management
Programs Under Clean Air Act Section
112(r){7); Amendments
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: This action modifies the '
chemical accident prevention rule
codified in 40 CFR Part 68. The
chemical accident prevention rule
requires owners and operators of
stationary sources subject to the rule to
submit a risk management plan (RMP)
by June 21. 1999. to a central location
specified by EPA. In this action, EPA is
amending the rule to: add four
mandatory and five optional RMP data
elements, establish specific procedures
for protecting confidential business
information when submitting RMPs,
adopt the government's use of a new
industry classification system, and make
technical corrections and clarifications
to Part 68. However, as stated in the
proposed rule for these amendments,
this action does not address issues
concerning public access to offsite
consequence analysis data in the RMP.
DATES: The rule is effective February 5,
1999.
ADDRESSES: Supporting material used in
developing the proposed rule and final
rule is contained in Docket A-98-08.
The docket is available for public
inspection and copying between 8:00
a.m. and 5:30 p.m., Monday through '
Friday (except government holidays) at
Room 1500, 401 M Street SW,
Washington, DC 20460. A reasonable fee
may be charged for copying.
FOR FURTHER INFORMATION CONTACT: Sicy
Jacob or John Ferris, Chemical
Emergency Preparedness and
Prevention Office, Environmental
Protection Agency (5104), 401 M Street
SW, Washington, DC 20460, (202) 260-
7249 or (202) 260-4043, respectively; or
the Emergency Planning and
Community Right-to-Know Hotline at
800-424-9346 (in the Washington, DC
metropolitan area, (703) 412-9810). You
may wish to visit the Chemical
Emergency Preparedness and
Prevention Office (CEPPO) Internet site,
at www.epa.gov/ceppo.
SUPPLEMENTARY INFORMATION :
Regulated Entities
Entities potentially regulated by this
action are those stationary sources that
have more than a threshold quantity of
a regulated substance in a process.
Regulated categories and entities
include:
Category
Examples of regulated entities
Chemical Manufacturers
Polroloum ,„........ ,
Other Manufacturing
Agriculture ,
Public Sources
Ulililies .,., ..........
Olhor ...,.„.,
Federal Sources .......
Basic chemical manufacturing, petrochemicals, resins, agricultural chemicals, Pharmaceuticals,
paints, cleaning compounds. .
Refineries. , %
Paper, electronics, semiconductors, fabricated metals, industrial machinery, food processors.
Agricultural retailers.
Drinking water and waste water treatment systems.
Electric utilities.
Propane retailers and users, cold storage, warehousing, and wholesalers.
Military and energy installations.
This table is not meant to be
exhaustive, but rather provides a guide
for readers to indicate those entities
likely to be regulated by this action. The
table lists entities EPA is aware of that
could potentially be regulated by this
action. Other entities not listed in the
table could also be regulated. To
determine whether a stationary source is
regulated by this action, carefully
examine the provisions associated with
the list of substances and thresholds
under § 68.130 and the applicability
criteria under § 68.10. If you have
questions regarding applicability of this
action to a particular entity, consult the
hotline or persons listed in the
preceding FOR FURTHER INFORMATION
CONTACT section.
Table of Contents
I, Introduction and Background
A, Statutory Authority
B, Background
II, Summary of the Final Rule
HI, Discussion of Issues
A.NAICSCodes
B. RMP Data Elements
C, Prevention Program Reporting
D. Confidential Business Information
E. Other Issues
F. Technical Corrections
IV. Section-by-Section Discussion of the
Final Rule
V. Judicial Review
VI. Administrative Requirements
A. Docket
B. Executive Order 12866
C. Executive Order 12875
D. Executive Order 13045
E. Executive Order 13084
F. Regulatory Flexibility
G. Paperwork Reduction
H. Unfunded Mandates Reform Act
I. National Technology Transfer and
Advancement Act
J. Congressional Review Act
I. Introduction and Background
A. Statutory Authority
These amendments are being
promulgated under sections 112(r) and
301 (a) (1) of the Clean Air Act (CAA) as .
amended (42 U.S.C. 7412(r), 7601(a)(l)).
B. Background
The 1990 CAA Amendments added
section 112(r) to provide for the
prevention and mitigation of accidental
chemical releases. Section 112(r)
mandates that EPA promulgate a list of
"regulated substances," with threshold
quantities. Processes at stationary
sources that contain a threshold
quantity of a regulated substance are
subject to accidental release prevention
regulations promulgated under CAA
section 112(r)(7). EPA promulgated the
list of regulated substances on January
31, 1994 (59 FR 4478) (the "List Rule")
and the accidental release prevention
regulations creating the risk
management program requirements on
June 20, 1996 (61 FR 31668) (the "RMP
Rule"). Together, these two rules are
codified as 40 CFR Part 68. EPA
amended the List Rule on August 25,
1997 (62 FR 45132), to change the listed
concentration of hydrochloric acid. On
January 6, 1998 (63 FR 640), EPA
amended the List Rule to delist Division
1.1 explosives (classified by DOT), to
clarify certain provisions related to
regulated flammable substances and to
clarify the transportation exemption. ;
Part 68 requires that sources with
more than a threshold quantity of a
regulated substance in a process
develop and implement a risk
management program that includes a
five-year accident history, offsite
consequence analyses, a prevention
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Federal Register/Vol. 64,'No. 3/Wednesday, January 6, 1999/RuIes and Regulations
965
program, and an emergency response
program. In Part 68, processes are
divided into three categories (Programs
1 through 3). Processes-that have no
potential impact on the public in the
case of accidental releases have minimal
requirements (Program 1). Processes in
Programs 2 and 3 have additional
requirements based on the potential for
offsite consequences associated with the
worst-case accidental release and their-
accident history. Program 3 is also
triggered if the processes are subject to
: OSHA's Process Safety Management
(PSM) Standard. By June 21, .1999,
, sources must submit to a location
designated by EPA, a risk management •
plan (RMP) that summarizes their.
implementation of the risk management
program.
When EPA promulgated the risk
management program regulations, it
stated that it intended to work toward
electronic submission of RMPs. The :
Accident Prevention Subcommittee of
' the CAA Advisory Committee convened
an Electronic Submission Workgroup to
examine technical and practical issues
associated with creating a national
electronic repository for RMPs. Based
oh workgroup recommendations, EPA is
in the process of developing two
systems, a user-friendly PC-based
submission system (RMP*Submit) and a
database of RMPs (RMP*Info).
The Electronic Submission
Workgroup also recommended that EPA
add some mandatory and optional data
•-. elements to the RMP. and asked EPA to
clarify how confidential business
information (CBI) submitted in the RMP
would be handled. Based on these
recommendations and requests for
clarifications, EPA proposed
amendments to Part 68 on April 17,
1998 (63 FR 19216). These amendments
proposed to replace the use of Standard
Industrial Classification (SIC) codes
with the North American Industry ,
Classification System (NAICS) codes,
add four mandatory data elements to the
RMP, add five optional data elements to •
the RMP, establish specific
requirements for submission of
information claimed CBI, and make
technical corrections and clarifications
to the rule. EPA received 47 written
comments on the proposed rule,
Today's rule reflects EPA's
consideration of all comments; major
issues raised by commenters and EPA's
responses are discussed in Section III of
this preamble. A summary of all
comments submitted and EPA's
responses can be found in a document
entitled, Accidental Release Prevention
Requirements; Risk Management
Programs Under Clean Air Act Section
112(r)(7); Amendments: Summary and
Response to Comments, in the Docket
(see ADDRESSES).
II. Summary of the Final Rule
NAICS Codes .
On January. 1, 1997, the U.S. •
Government, in cooperation with the
governments of Canada and Mexico,
adopted a new industry classification
system, the North American Industry '
Classification System (NAICS); to
replace the Standard Industrial
Classification (SIC) codes (April 9, 1997,
62 FR 17288). The applicability of some
Part 68 requirements (i.e., Program 3
prevention requirements) is determined,
in part, by SIC codes, and Part 68 also
requires the reporting of SIC codes in
the RMP. Therefore, EPA is revising Part
68 to replace all references to "SIC
code" with "NAICS code." In addition,
EPA is replacing, as proposed, the nine
SIC codes subject to Program 3'
prevention program requirements with
ten NAICS codes, as follows:
NAICS Sector' . '" , •
32211. Pulp mills '
32411 Petroleum refineries •
32511 Petrochemical manufacturing
325181" Alkalies and chlorine
32.5188 All other inorganic chemical
manufacturing
325192 Other cyclic crude and intermediate
manufacturing , .
325199- All other basic organic chemical
manufacturing
325211 Plastics and resins " "
325311 Nitrogen fertilizer
32532 Pesticide and other agricultural
chemicals' '
NAICS codes are either five or six digits,'
depending on the degree to which the
sector is subdivided.,
'RMP Data Elements
As proposed, EPA is adding four new
data elements to the RMP: latitude/
longitude method and description, CAA
Title V permit number, percentage.
weight of a toxic substance in a liquid
mixture, and NAICS code for each
process that had an accidental release'
reported in the five-year accident
history. EPA is also adding five optional
data elements: local emergency
planning committee (LEPC) name,
source or parent company e-mail
address, source homepage address,
phone number at the source for public
inquiries, and status under OSHA's
Voluntary Protection Program (VPP).
Prevention Program Reporting
EPA is not revising Sections 68.170
and 68.175 as proposed. Prevention
program reporting, therefore, will not be
changed to require a prevention
program for each portion of a process for
which a Process Hazard Analysis (PHA)
or hazard review was conducted.
Instead, EPA plans to create functions
within RMP*Subrriit to provide
stationary sources with a flexible way "of '
explaining the scope and content of
"each prevention program 'they
implement at their facility:'
Confidential Business, Information
\ EPA is clarifying how confidential
business information (CBI) submitted in
the RMP will.be handled. EPA has
determined that the information
required by certain RMP data elements
, does not meet the criteria for CBI and
therefore may not be claimed as such.
The Agency is also requiring submission
of substantiation at the time a CBI claim
' is filed. •
Finally, EPA is promulgating several
of the technical corrections and
clarifications, as proposed in the
Federal Register, April 17, 1998 (63 FR
19216)'.
IH. Discussion of Issues
EPA received 47 comments on the
proposed rule. The commenters
included chemical manufacturers,
petroleum refineries, environmental
groups, trade associations, a state
agency, and members of the public. The
major issues raised by commenters are
addressed briefly below. The Agency's
• complete response to comments
received on this rulemaking is available
in the docket (see ADDRESSES). The
document is titled Accidental Release
Prevention Requirements; Risk
Management Programs Under Clean Air
ActSection 112(r)(7); Amendments:
Summary and Response to Comments.
A. NAICS Codes !
Two commenters asked that sources
be given the option to use either SIC
codes or NAICS codes, or both, in their
initial RMP because the NAICS system
is new and may not be familiar to
sources. EPA disagrees with this
suggestion. EPA intends to provide
several outreach mechanisms to assist
sources in identifying their new NAICS
code. RMP*Submit will provide a "pick
list" that will make it easier for sources •
to find the appropriate code. Also,
selected NAICS codes areJncluded in
the General Guidance for Risk
Management Programs (July 1998) and
in the industry-specific guidance
documents that EPA is developing. EPA
will also utilize the Emergency Planning
and Community Right-to-Know Hotline
at 800-424-9346(or 703-412-9810) and
its web site at www.epa.gov/ceppo/, to
assist sources in determining the
source's NAICS codes. EPA also notes
that the Internal Revenue Servibe is
planning to require businesses to
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Federal Register/Vol. 64, No. 3/Wednesday, January 6,. 1999/Rules and Regulations
provide hlAICS-based activity codes on
their 1998 tax returns, so many sources
will have become familiar with their.
NAICS codes by the June 1999 RMP
deadline,
EPA believes it is necessary and
appropriate to change from SIC codes to
NAICS codes at this time. EPA
recognizes that NAICS codes were
developed for statistical purposes by the
Office of Management and Budget
(OMB). In the notice of April 9. 1997 (62
FR 17288) OMB stated that the "(u]se of
NAICS for nonstatistical purposes (e.g.,
administrative, regulatory, or taxation)
will be determined by the agency or
agencies that have chosen to use the SIC
for nonstatistical purposes." EPA has
determined that NAICS is appropriate in
this rule for several reasons. First, the
reason the SIC codes were replaced by
NAICS codes is because the SIC codes
no longer accurately represent today's
Industries. The SIC codes .will become
more obsolete over time because OMB
will no longer be supporting the SIC
codes; therefore, no new or modified
SIC codes will be developed to reflect
future changes in industries. Second, as
the SIC codes become obsolete, most
users of SIC codes will likely change to
NAICS codes over time, so future data
sharing and consistency will be
enhanced by use of NAICS codes in the.
RMP program. Third, through this
rulemaking process, EPA has analyzed
specific conversions of SIC codes to
NAICS codes for the RMP program and
w^s able to identify NAICS codes that
were applicable to fulfilling the
purposes of this rule. Finally, because
the RMP reporting requirement is new,
it is reasonable to begin the program
with NAICS codes now ratherthan
converting to them later.
Three commenters expressed support
for the ten NAICS codes that EPA
proposed to use in place of the nine SIC
codes referenced in section 68.10(d)(l)
of Part 68 and one commenter partially '
objected. Section 68.10(d)(l) provides
that processes in the referenced codes
ar£ subject to Program 3 requirements (if
not eligible for Program 1). One
commenter objected to EPA's proposal
to replace the SIC code for pulp and
paper mills with only the NAICS code
for pulp mills that do not also produce
paper or paperboard. The commenter
asked EPA to reexamine the accident
history of paper and paperboard mills.
As discussed in the preamble of the
proposed rule, EPA reviewed the
accident history data prior to proposing
the new NAICS codes. Neither facilities
that classify themselves as paper mills
(NAICS Code 322121) nor paperboard
mills (NAICS code 32213) met the
accident history criteria that EPA used
to select industrial sectors for Program
3.
EPA notes that a pulp process at a
paper or a paperboard mill may still be
subject to Program 3 as long as the
process contains more than a threshold
quantity of a regulated substance and is
not eligible for Program 1. Section
68.10(d)(l) uses industrial codes to
classify processes, not facilities as a
whole. Since section 68.10(d)(l) will
continue to list the code for pulp mills,
pulpmaking processes will continue to
be subject to Program 3. In addition,
under section 68.10 (d) (2), paper
processes will be in Program 3 (unless
eligible for Program 1) if they are subject
to OSHA's Process Safety Management
(PSM) standard. Most pulp and paper
processes are, in fact, subject to this
standard.
One commenter objected to assigning
NAICS codes to a process rather than
the source as a whole. EPA first notes
that the requirement to assign a SIC
code to a process was adopted in the
original RMP rulemaking two years ago.
Today's rule does not change that
requirement except to substitute NAICS
for SIC codes. In any event, EPA is
today modifying Part 68 to clarify that
sources provide the NAICS code that
"most closely corresponds to the
process." EPA believes that assigning an
industry code to~a process will help
implementing agencies and the public
understand what the covered process
does; using the code makes it possible
to provide this information without
requiring a detailed explanation from
the source. In addition, the primary
NAICS code for a source as a whole may
not reflect the activity of the covered
process.
B. RMP Data Elements
EPA proposed to add, as optional
RMP data elements: local emergency
planning committee (LEPC), source (or
parent compainy) E-mail address, source
homepage address, phone number at the
source for public inquiries, and OSHA
Voluntary Protection Program (VPP)
status. EPA also proposed to add, as
mandatory data elements: method and
description of latitude/longitude, Title
V permit number, percent weight of a
toxic substance in a liquid mixture, and
NAICS code (only in the five-year
accident history section).
Commenters generally supported the
new optional data elements. One
commenter requested that the optional
elements be made mandatory. EPA
disagrees with this comment. While the
elements are useful, many sources
covered by this rule will not have e-mail
addresses or home pages. The RMP will
provide both addresses and phone
numbers so that the public will have
methods to reach the source. EPA has
learned that in some areas there are no
functioning LEPCs, therefore, at this
time, EPA will not add this as a
mandatory data element. However, in
most cases, the LEPC for an area can be
determined by contacting the local
government or the State Emergency
Response Commission (SERC) for which
the area is located. Therefore, reporting
these data elements will remain
optional at this time.
One commenter supported adding the
listing of local emergency planning
committee in the RMP data elements as
an optional data element. The
commenter stated that, although it is an
optional data element, this listing will
enhance the ability of local responders
and emergency planners to adequately
prepare and train for emergency events.
Of the data elements that were
proposed to be mandatory, one
commenter objected to the addition of
latitude/longitude method and
description. The commenter stated that
it was not clear in the proposal why the
method and description information is
needed. EPA is seeking latitude/
longitude method and description in
accordance with its Locational Data
Policy. Several EPA regulations require
sources to provide their latitude and
longitude, so that EPA can more readily
locate facilities and communicate data'
between Agency offices. Sharing of data
between EPA offices reduces
duplication of information. Latitude/
longitude method and description
provides information needed by EPA
offices, and other users of the data, to
rectify discrepancies that may appear in
the latitude and longitude information
provided by the source under various
EPA requirements. Documentation of
the method by which the latitude and
longitude are determined and a
description of the location point
referenced by the latitude and longitude
(e.g., administration building) will
permit data users to evaluate the
accuracy of those coordinates, thus
addressing EPA data sharing and
integration objectives.
EPA believes this information will
also facilitate EPA-State coordination of
environmental programs, including the
chemical accident prevention rule. The
State/EPA Data Management Program is
a successful multi-year initiative linking
State environmental regulatory agencies
and EPA in cooperative action. The
Program's goals include improvements
in data quality and data integration
based on location identification.
Therefore, as proposed, the latitude/
longitude method and description will
be added to the existing RMP data
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967
, elements. RMP*Submit will provide a
list of methods and descriptions from
which sources may choose.
EPA also proposed to require that
sources report the percentage weight
(weight percent) of a toxic substance in
a mixture in the offsite consequence ' ,
analysis (OCA) and the accident history
sections of the RMP. This information is
necessary for user(s of RMP data to
understand how worst case and
alternative release scenarios have been
modeled. EPA has decided to require
reporting of the weight percent of toxic
substance in a liquid mixture because
this information is necessary vto
understand the volatilization rate,
which determines the downwind
dispersion distance of the substance.
The volatilization rate is affected by the
vapor pressure of the substance in the
mixture. For example, a spill of 70
percent hydrofluoric acid (HF) will
volatilize more quickly than a spill of
the same quantity of HF in a 50 percent
solution; consequently, over a 10-
minute period, the 70 percent solution
will travel further. Reviewers of the
RMP data, including local emergency
planning committees, need to know the
weight percent to be able to evaluate the
results reported in the offsite
conseq'uence analysis and the impacts
reported in the accident history.
Without knowing the weight percent of
the substance in the mixture, users of
the data may compare scenarios or
incidents that appear to involve the
same chemical in the same physical
state, but in fact involve the same
chemical held in a different physical
state. • . .
One commenter stated-that for gas .'
mixtures, percentage by volume (or
volume percent) should be required to
be reported rather than weight percent.
In this final rule, EPA does not require
reporting of the weight percent (or
volume percent) of a regulated
substance in a gas mixture. If a source
handles regulated substances in a
gaseous mixture (e.g., chlorine with
hydrogen chloride), the quantity of a
particular regulated.substance in the
mixture is what is reported in the RMP,
since that is what would be released'
into the air. Its percentage weight in the
mixture is irrelevant.
Another commenter objected to this
data element, claiming that it could
result in reverse engineering and create'
a competitive disadvantage. EPA does
not believe that this requirement would
create a competitive disadvantage, since
similar information is available to the
public under Emergency Planning and
Community Right-to-Know Act (EPCRA)
of 1986. Even so, if it were to have such
an effect, sources can claim this element
as CBI if it can meet the criteria for CBI •
claims in"40 CFR Part 2. Another
commenter stated that the public would
be concerne'd if the percentage's did not
add to 100, in the event that the source
handles both regulated and non-
'regulated substances. EPA believes that ,
because a source must model only one
substance in a release scenario, the
source need not report the percentages
of the other substances in the^mixture/
Therefore, it is expected that the weight
'percent for mixtures would not always
add up to 100, because the1 mixture
could contain non-regulated substances.
A' third commenter suggested that
requiring sources to report percentage
weight of a toxic substance in a liquid
mixture would create confusion with
the reporting of mixtures containing
flammable regulated substances.
In the January 6, 1998 rule (63 FR '
640), EPA clarified that flammable
regulated substances in mixtures are
only covered by the RMP rule if the .
entire mixture meets the National Fire
Protection Association (NFPA) criteria
of 4, thus the entire mixture becomes'
the regulated substance. As a result, the
percentage of flammables in a mixture is
not relevant under the rule and the
requirement to report the percentage
weight will only apply to toxic
substances in a liquid mixture.
Finally, in the Federal Register notice
of June 20, 1996 (61 FR 31688), EPA
clarified the relationship between the
.risk management program and the air
permit program under Title V of the
CAA for sources subject to both
requirements. Under section
502(b)(5)(A), permitting authorities
must have the authority to assure
compliance by all covered sources with
each applicable CAA standard,
regulation or requirement, including the
regulations implementing section
112(r)(7). Requiring sources covered by
Title V and section 112(r) to provide
their Title V permit number will help
Title V permitting authorities assure
that each source is co'mplying with the.
RMP rule. ,
In summary, with the exception of
adding the phrase "that most closely
corresponds to the process" in sections
68.42(b)(4), 68.160(b)(7), 68.170(b), and
68.175(b), EPA has decided to finalize
the optional and mandatory data '
elements as they were proposed. .
C. Prevention Program Reporting
The final RMP rule, issued June 20,
1996 (61 FR 31668), requires sources to
report their prevention program for each
"process." Because the applicable
definition of "process" is broad,
.multiple production and storage units
might be a single, complex "process."
However, the Agency realizes that some.
elements of a source's prevention
program for a process may not be
applicable to every portion of the
process. In such a situation, repdfting
prevention program information for the
process as a whole could be misleading
without an explanation of which
prevention program element applies to
which part of the process. In order to get
more specific,information on which
prevention program practices apply to
different production and storage units
within a process, EPA proposed to
revise the rule to 'require prevention
program reporting for each part of the
process for which a separate process ••
hazard analysis (PHA) or hazard review
was conducted. EPA further proposed
deleting the second sentence from both
sections 6.8.170(a) and 68.175(a), which
presently states that, " [i] f the same
information applies to more than one
covered process, the owner or operator '
may provide the information only once,
but shall indicate to which process the
information applies."
• A number of industry commenters
objected to the proposed revisions as
wrongly assuming that a one-to-one
relationship exists between a prevention
program and a PHA. The commenters
.asserted that EPA's proposed revision
did not reflect how facilities conduct
PHAs or implement prevention
measures and would cause significant
duplicate reporting, creating '
unnecessary extra work for facility
personnel. One commenter .explained
that depending on a source's
circumstances, it might conduct a PHA
for each production line, including all
of its different units, or it rm'ght conduct
a PHA for each common element of its,
different production lines. Accordingly,
the 'commenters claimed that EPA's
proposal to require the owner/operator
to submit separate prevention program
information for every portion of a
"process covered by a PHA would result
in multiple submissions of much of the
same material, and would add no value
to process safety or accidental release
prevention. Commenters also opposed
the deletion of the second sentence in
sections 68.170(a) and 68.175(a). One
commenter noted that many of the
elements of the prevention program will
not only be common to a process, but
will be common to an entire stationary
source. Thus commenters argued that
EPA's proposals would result in
redundant submittals and place an .
unjustified burden on the regulated
community.
EPA acknowledges that PHAs do not
necessarily determine the scope of
prevention program measures.
Moreover, EPA agrees that duplicative
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reporting should be reduced as much as
possible, At the same time, EPA.
Implementing agencies, and other users
of RMP data need to have information
that is detailed enough to understand
the hazards posed by, and the safety
practices used for, particular parts of
processes and equipment. EPA
recognizes that some aspects of
prevention programs are likely to be
implemented facility-wide, rather than
on a process or unit basis, whereas other
aspects may apply to a particular
process or only to particular units
within a process. For example, most
sources are likely to develop an
employee participation plan and a
system for hot work permits facility-
wfde. rather than on a process or unit
basis. For sources having processes that
include several units (e.g., multiple
reactors of purification systems), the
hazards, process controls, and
mitigation systems may vary among the
individual units. For example, one may
have a deluge fire control system while
another may have a runaway reaction
quench system.
EPA has concluded that its proposed
changes, to prevention program
reportingWould not lead sources to
prepare RMPs that accurately and
efficiently communicate the hazards
posed by different aspects of covered
processes and the safety practices used
to address those hazards. The Agency
now believes that no rule changes are
necessary to ensure that RMPs convey
that information. The current rule
already requires prevention program
reporting, and the issue has been how
to efficiently convey that information in
sufficient detail. EPA believes that its
electronic program for submitting RMPs
can be designed to provide for sufficient
specificity in prevention program
reporting without requiring duplicative
reporting, In particular, the Agency
plans to create a comment/text field in
RMP*Submit for specifying which parts
of a prevention program apply to which
portions of a particular process. For
example, if a deluge system only applies
to a certain part of the overall process,
the source would indicate in the
comment/text screen the portions of the
process to which the deluge system
applies.
To reduce the burden of reporting,
EPA also plans to create a function in
RMP*Submit which will allow a source
to automatically copy prevention
program data previously entered for one
process to fill blank fields in another
process's prevention program. The
source could then edit any of the data
elements that are different. For example,
where the prevention programs for two
processes are identical (e.g., two
identical storage tanks that are
considered separate processes), the
source could copy the data entered for
one to fill in the blank field for the
other. If some of the data elements vary
between the prevention programs, the
source will be able to autofill and
change only those items that vary
among processes or units.
Although the autofill option will
minimize the burden of reporting
common data elements for those sources
filing electronically, EPA has decided
not to delete the sentence, in both
sections 68.170(a) and 68.175(a), which
states, "[i]f the same information applies
to more than one covered process, the
owner or operator may provide the
information only once, but shall
indicate to which processes the
information applies ", as proposed.
D. Confidential Business Information
(CBI)
1. Background
A central element of the chemical
accident prevention program as
established by the Clean Air Act and
implemented by Part 68 is providing
state and local governments and the
public with information about the risk
of chemical accidents in their
communities and what stationary
sources are doing to prevent such
accidents. As explained in the preamble
to the final RMP rule (61 FR 31668, June
20, 1996), every covered stationary
source is required to develop and
implement a risk management program
and provide information about that
program in its RMP. Under CAA section
112 (r) (7) (B) (iii), a source's RMP must be
registered with EPA and also submitted
to the Federal Chemical Safety and
Hazard Investigation Board ("the
Board"), the state in which the source
.is located, and any local entity
responsible for emergency response or
planning. That section also provides
that RMPs "shall be available to the
public under section 114 (c)" of the
CAA. Section 114(c) gives the public
access to information obtained under
the Clean Air Act except for information
(other than emission data) that would
divulge trade secrets.
As noted previously, in the final RMP
rule EPA announced its plan to develop
a centralized system for submitting
electronic versions of RMPs that would
reduce the paperwork burden on both
industry and receiving agencies and
provide ready public access to RMP
data. Under the system, a covered
source would submit its RMP on
computer diskette, which would be
entered into a central database that all
interested parties could access
electronically. The system would thus
make it possible for a single RMP
submission to reach all interested
parties, including those identified in
section 112(r)(7)(B)(iii)-.'
An important assumption underlying
the Agency's central submission plan
was that RMPs would rarely, if ever,
contain confidential business
information (CBI). Following
publication of the final rule, concerns
were raised that at least some of the
information required to be reported in
RMPs could be CBI in the case of
particular sources. While the June 20,
1996 rule provided for protection of CBI
under section 114 (c) (see section
68.210(a)), EPA was asked to address
how CBI would be protected in the
context of the electronic programs being
developed for RMP submission and
public access.
In the April 17, 1998 proposal to
revise the RMP rule, EPA made several
proposals concerning protection of CBI.
It first reviewed the information
requirements for RMPs (sections
68.155-185) and proposed to find that
certain required data elements would.
not entail divulging information that
could meet the test for CBI set forth in
the Agency's comprehensive CBI
regulations at 40 CFR Part 2.2 '
Information provided in response to
those requirements could not be
claimed CBI. EPA also requested
comment on whether some information
that might be claimed as CBI (e.g.,
worst-case release rate or duration)
would.be "emission data" and thus
publicly available under section 114(c)
even if CBI.
EPA administers a variety of statutes
pertaining to the protection of the
environment, each with its own data
collection requirements and
requirements for disclosure of
information to the public. In the
implementation of these statutes, the
Agency collects emission, chemical,
process, waste stream, financial, and
other data from facilities in many, if not
most, sectors of American business.
Companies may consider some of this
information vital to their competitive
1 It is important to note that, as discussed In
Section III. E of this preamble, this rule does not
address issues concerning public access to offsite
consequence analysis data in the RMP.
2 Information is' CBI if (1) the business has
asserted a claim which has not expired, been
.waived, or been withdrawn; (2) the business has
shown that it has taken and will continue to take
reasonable steps to protect the information from
disclosure; (3) the information is not and has not
been reasonably obtainable by the public (other
than governmental bodies) by use of legitimate
means; (4) no statute requires disclosure of the
information; and (5) disclosure of the information
is likely to cause substantial harm to the business'
competitive position. 40 CFR section 2.208.
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969
position, and claim it as confidential
business information (CBI).
In the course of implementing
statutes, the Agency may have a. need to
communicate some or all of the
information it collects to the public as
the basis for a rulemaking, to its
contractors, or in response to requests'
pursuant to the Freedom of Information
Act (FOIA). Information found to be CBI
is exempt from disclosure under FOIA.
To manage both CBI claims and FOIA
requests, EPA has promulgated in 40
CFR Part 2, Subpart B~a set of ,
procedures for reviewing CBI claims,
releasing information found not to be
CBI, a'nd where authorized, disclosing
GBI. Subpart B lists the criteria that
information must meet in order to be
considered CBI, as well as the special
handling requirements the Agency must
follow when disclosing CBI to
authorized representatives.
For RMP requirements that might
entail divulging CBI, EPA proposed that
a source be required to substantiate a
CBI claim to EPA at the time that it
makes the claim. Under EPA's Part 2
regulations, a source claiming CBI
generally is required to substantiate the
claim only when EPA needs to make the
information public as part of some ,
proceeding (e.g., a rulemaking) or EPA
receives a request from the public (e.g.,
under the Freedom of Information Act
(FOIA)) for the information. In view of
the public information function of RMPs
and the interest already expressed by
members of the public in them, EPA
proposed "up-front substantiation" of -
CBI claims to ensure that information
not meeting CBI criteria would be made
available to the public as soon as
, possible. This approach of requiring up-
front substantiation is the same as that
used for trade secret claims filed under
the Emergency Planning and
Community Right-to-Know Act (EPCRA)
of 1986.3 •
3 Section 302 of EPCRA (codified in 40 CFR Part
355) requires any facility having more than a
threshold planning quantity of an extremely
hazardous substance (EHS) to notify its state ,
emergency response commission (SERC) and local „
emergency planning committee (LEPC) that the
facility is subject to emergency planning. The vast
majority of toxic substances' listed in 40 CFR
Section 68.130 were taken from .the EHS list.
Section 303 of EPCRA requires LEPCs to prepare an
emergency response plan for the community that is
under their jurisdiction. Section 303 of EPCRA also
requires that facilities subject to section 302 shall
provide any information required by their LEPC .
necessary for developing arid implementing the
emergency plan. Section 304 of EPCRA requires an
immediate notification of a release of an EHS or
Hazardous Substances listed in 40 CFR Section
302.4 above'a reportable quantity to state and local
entities. Section 304 also requires a written follow-
up which includes among other things, the
chemical name, quantity released and any known
or anticipated health'risks associated with the
In addition, EPA proposed that any
source claiming CBI submit two
versions of its RMP; (1) a redacted
("sanitized"), electronic version, which
would become part of RMP*Info, and (2)
an unsanitized (unredacted) paper copy
of the RMP (see proposed section
68.151 (c)). The electronic database of
RMPs would contain only the redacted
. version unless and until EPA ruled
against.all or part of the source's CBI
claim, in keeping with the Part 2
procedures. In this way, the public
would have access only to the'non-CBI'
elements of sources' RMPs. EPA further
stated that state and local agencies
could receive the unredacted RMPs by,
requesting them from EPA under the
Part 2 regulations. Those regulations
authorize EPA to provide CBI to an
agency having implementation
• responsibilities under the CAA if the
agency either demonstrates that it has
the authority under state or local law to
compel such information directly from
the source or that it will "provide
adequate protection to the interests of
.affected businesses" (40 CFR
2.30 l(h) (3)).,
. The following sections of this
preamble summarize and respond to the
comments EPA received on the CBI-
related aspects of its proposal. At the
outset, however, EPA wants to
emphasize that it does not anticipate ,
many CBI claims being made in
connection with RMPs. The Agency
developed the RMP data elements with
the issue of CBI in mind. It .sought to
define data elements that would provide
basic information about a source's risk <
management program without requiring
it to reveal CBI. To have done otherwise .
would have risked creating RMPs that
were largely unavailable to the public.
EPA continues to believe that the
required RMP data elements will rarely
require that a business divulge CBI. The
Agency will carefully monitor the CBI
claims made. If it appears that the
number of claims being made is
jeopardizing the public information
release. Sections 311 and 312 of EPCRA (codified
in 40 CFR Part 370) require facilities that are subject
to OSHA Hazard Communication Standard (HCS),
to provide information to its SEfiC, LEPC and local
fire department. This information includes the
hazards posed by its chemicals, and inventory
information, including average daily amount,
maximum quantity and general location. Section
313 of EPCRA (codified in 40 CFR Part 372)
requires certain facilities that are in specific
industries (including chemical manufacturers) and
that manufacture, process, or otherwise use a toxic
chemical above specified threshold amounts to
report, among other things, the annual quantity of •
the toxic chemical entering each environmental
medium. Most facilities covered by CAA 112(r) are
covered by one or more of these sections of EPCRA.
.Section 322 of EPCRA (codified-in Part 350) allows
facilities.to claim only the chemical identity as
trade secret. ,
objective of the chemical accident
prevention program, EPA will consider
ways of revising RMPs, including
further rulemakings or revising the
underlying program, to ensure that
important health and safety information
is-available to the public.
2. RMP Data Elements Found Not CBI
Fifteen commenters representing
environmental groups and members of
the public opposed allowing some or all
RMP'data to be claimed as CBI in light
of the public's interest in the ,
information RMPs will, provide. A
number of commenters urged EPA not
to allow the following RMP data •
elements (and supporting documents) to
be claimed as CBI: , /. ' '
«r Mitigation measures considered by
the firm in its offsite consequence
analysis, .
• Major process hazards identified by
the firm, " '- '
• Process controls in use,
• Mitigation systems in use,
• Monitoring and detection systems
in use, and
• Changes since the last hazard
review.
In addition, one commenter
contended that even chemical identity
and quantity should be ineligible for
CBI protection, since the requirement to
submit an RMP only applies to facilities
using a few well-known, extremely
Hazardous chemicals, and the public's
right to know should always outweigh
a company's claim to CBI.
Along the same lines, a number of
commenters urged EPA to develop a .
."corporate sunshine rule" that would
allow confidentiality concerns to be
overridden'if the protected information
is needed by the public and experts to
understand and assess safety issues.
Another commenter recommended that
a business claiming a chemical's
identity as CBI should be required to
provide the generic name of the
chemical and information about its
adverse health effects so the public can
determine the potential risks.
One commenter argued that some of
the RMP data that EPA suggested could
reveal CBI, (e.g., release rate), were not
"emission data," because the worst case
scenario data are theoretical estimates,
and do not represent any real emissions,.
past or present..-.
Representatives of the chemical and
petroleum industries disagreed with
EPA's proposal to list the data elements
that EPA believed could not reveal CBI
in any case. These commenters asserted
that EPA could not anticipate all the
ways in which information required by
a data element might reveal CBI, and
accordingly urged the Agency to make
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case-by-case determinations on CBI
claims. They also contended that
"ernlssloo data" under section 114(c)
docs not extend to data on possible, as
opposed to actual, emissions, and thus
that RMP information concerning
potential accidental releases would not
qualify as "emission data," which must
be made available to the public.
As pointed out above, an important
purpose of the chemical accident
prevention program required by section
112(r) is to inform the public of the risk
of accidents in their communities and
the methods sources are employing to
reduce such risks. EPA therefore
believes that as much RMP data as
possible should be available to the
public as soon as possible. However,
section 112{r)(7)(B)(iii) requires that
RMPs be made "available to the public
under section 114(c)," which provides
for protection of trade secret
information (other than emission data).
Given the statute's direction to protect
whatever trade secret information is
contained In an RMP, EPA is not
authorized to release such information
even when the public's need for such
Information arguably outweighs a
business' interest in its confidentiality.
The Agency also cannot issue a
"corporate sunshine rule" that conflicts
with existing law requiring EPA (and
other agencies) to protect trade secret
information.
As explained above (and in more
detail in the proposed rule), EPA
examined each RMP data element to
determine which would require
information that might, depending on a
business* circumstances, meet the CBI
criteria set forth in EPA's regulations
implementing section 114 (c) and other
information-related legal requirements.
The point of this exercise was to both
protect potential trade secret
Information and promote the public
Information purpose of RMPs by
Identifying which RMP information
might reveal CBI in a particular case and
by precluding CBI claims for
information that could not reveal CBI in
any case. EPA presented the results of
Its analysis and an explanation of why
certain data elements could entail the
reporting of CBI depending on a
business" circumstances and why others
could not. No commenter provided any
specific examples or explanations that
contradicted the Agency's rationale for
Its determinations of which data
elements could or could not result in
reporting of CBI,
However, EPA is deleting from the list
of 40 CFR Part 68.151 (b) (1) the reference
to 40 CFR Part 68.160(b)(9), to allow for
the possibility of the number of full-
• time employees at the stationary source
to be claimed as CBI. Upon further
review. EPA was unable to determine
that providing the number of employees
at the stationary source could never
entail divulging information that could
meet the test for CBI set forth in the
Agency's comprehensive CBI
regulations at 40 CFR Part 2. Therefore',
EPA has removed this element from the
list of data elements that can not be
claimed CBI in Part 68. With this
exception, EPA is promulgating the list
of RMP data elements for which CBI
claims are precluded, as proposed
(Section 68.15 l(b)).
EPA's justifications for its specific CBI
findings appear in an appendix to this
preamble. A more detailed analysis, of
all RMP data elements and CBI
determinations is available in the docket
(see ADDRESSES). The Agency continues
to find no reasonable basis for
anticipating that the listed elements will
in any case require a business to reveal
CBI that is not "emission data." The
information required by each of the
listed data elements either fails to meet
the criteria for CBI set forth in EPA's
CBI regulations at Part 2 or meets the
Part 2 definition of "emission data," In
many cases, the information is available
to the public through other reports filed
with EPA, states, or local agencies (e.g.,
reports required by Emergency Planning
and Community Right-to-Know Act
(EPCRA) sections 312 and 313 provide
general facility identification
information and reports of most
accidental releases are available through
several Federal databases including
EPA's Emergency Release Notification
System and Accidental Release
Information Program databases).
In order to preclude CBI'claims for
other data elements, the Agency would
have to show that the information
required by a data element either was
"emission data" under section 1 l~4(c) or
could not, under any circumstances,
reveal CBI. As explained below, EPA
does not believe such a showing can be
made for any of the data elements not
on the list. Therefore, CBI claims made
for information required by data
elements not on the list will be
evaluated on a case-by-case basis
according to the procedures contained
in 40 CFR Part 2 (except that
substantiation will have to accompany
the claims, as discussed below).
The Agency agrees with the
commenters who argued that
information about potential accidental
releases is not "emission data" under
section 114(c). EPA's existing policy
statement (see 56 FR 7042, Feb. 21,
1991) on what information may be
considered "emission data" was
developed to implement sections 110
and 114 (a) of the CAA, which the
Agency generally invokes when it seeks
to gather technical data from a source
about its actual emissions to the air..
While the policy is not explicitly
limited in its scope, EPA believes it
would be inappropriate to apply it to
RMP data elements concerning
hypothetical, as opposed to actual,
releases to the air. Under the definition
of "emission dataV contained in Part 2,
information is "emission data" if it is (1)
"necessary to determine the identity,
amount, frequency, concentration, or
other characteristics * * * of any
emission which has been emitted by the
source,", (2) "necessary to determine the
identity, amount, frequency,
concentration, or other characteristics
* * * of the emissions which, under an
applicable standard or limitation, the
source was authorized to emit," or (3)
general facility identification
information regarding the source which
distinguishes it from other sources (40
CFR section 2.301 (a)(2) (i) (emphasis
added)). Under these criteria, EPA has
concluded that only the RMP data
elements relating to source-level
registration information (sections
68.160(b)(l)-(6), (8)-(13)) and the five-
year accident history (section 68,168)
are "emission data." Of the RMP data
elements, only the five-year accident
history involves actual, past emissions
to the environment; the other data
elements would not, therefore, qualify
as "emission data" under the first-prong
of the Part 2 definition. Moreover, the
data elements relating to a source's
offsite consequence analysis, prevention
program and emergency response
program do not attempt to identify or
otherwise reflect "authorized"
emissions; the data elements instead
reflect the source's potential for
accidental releases. Accordingly, these
data elements would not be "emission
data" under the second prong of the
definition. As for the third prong, some
of the source-level data are "emission
data" because they help identify a
source. Most other RMP data elements
are reported on a process level and are
not generally used to distinguish one
source from another.
The Agency believes it is unable to
show that the remaining data elements
could not, under any circumstances,
reveal CBI. EPA continues to believe
that it is theoretically possible for the
remaining data elements (the elements
not listed in section 68.151(b)) to reveal
CBI either directly or through reverse
engineering, depending on the
circumstances of a particular case. At
the same time, EPA believes that, in
practice, the remaining data elements
• will rarely reveal CBI. The purpose of
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971
the data in the RMP is for a source to
articulate its hazards, and the steps it
takes to prevent accidental releases. In
general, the kinds of information
specifying the source's hazards and risk
management program are not likely to
be competitively sensitive.
In particular, covered processes at the
vast majority of stationary sources •
subject to the RMP rule are too common
and well-known to support a CBI claim
for information related to such
processes. For example, covered public
drinking water and wastewater
treatment plants generally use common
regulated substances in standard
processes (i.e., chlorine used for '
disinfection). Also, covered processes at
many sources involve the storage of
regulated substances that the sources
sell (e.g., propane, ammonia), so the
processes are already public knowledge.
Other covered processes involve the use
of well-known combinations of
regulated substances such as
refrigerants. RMP information regarding
these types of processes should not'
include CBI:
Even in the case of unusual or unique
processes, it is generally unlikely that
RMP information could be used to
reveal CBI through reverse engineering.
To begin with, required RMP
information is general enough that it is
unlikely to provide a basis for reverse
engineering, a process. For example, a
source must report in its RMP whether
overpressurization is a hazard and
. whether relief valves are used to control
pressure, but it is not required to report
information on actual pressures used,
flow rates, chemical composition, or the
configuration of equipment. Moreover,
while RMP information may provide
some data that could be used in an
attempt to discover CBI information
through reverse engineering, it typically
will not provide enough data for such
an attempt to succeed, because the
source is not required to provide a ' .
detailed description of the chemistry or
production volume of the process.
Businesses claiming CBI based on the
threat of reverse engineering will be
required to show how reverse.
engineering could in fact succeed with
the information that the RMP W9uld
otherwise make public, together with
other publicly available information. A
business unable to do so will have its
claim denied.
While EPA is requiring that a source
claiming a chemical's identity as CBI
provide the generic category or class
name of the chemical, the RMP does not
require sources to provide information
about the adverse health effects of the
chemical. Chemicals were included in
the section 112(r) program because they
are acutely toxic or flammable; health
effects related to chronic exposure were
not considered because they are
addressed by other rules (see List Rule
at 59 FR 4481). EPA believes that
generic'names are sufficient to indicate
the general health concerns from short-
term exposures. Should a member of the
public desire more information, EPA
encourages the use of EPCRA section •
322(h), which provides a means for the
public to obtain information about the
. adverse health effects of a chemical
covered by that statute, where the
chemical's identity has been claimed a
trade secret. The public will find this
provision of EPCRA useful because most
sources subject to the RMP rule are also
subject to EPCRA.
3. Up-front Substantiation of CBI Claims
One commenter supported the
proposal to require CBI claims to be
substantiated at the time they are made.
Another commenter stated that there is
no compelling need to require up-front
substantiation. The commenter stated
that up-front substantiation would place
a sizable burden on both industry and
EPA and would be in direct conflict
with the Paperwork Reduction Act. The
commenter claimed that, with the
exception of EPCRA, where a submitter
is allowed to claim only one data
element—chemical identity—as CBI, it,
is EPA's standard procedure not to
require submitters to provide written
substantiation unless a record has been
requested. Further, the commenter
stated that the Agency has not shown
any reason for departing from that
•procedure in this rule.
EPA believes that "requiring up-front
substantiation of CBI claims made for
RMP data has ample precedent, is fully
consistent with the Agency's-CBI
regulations and the Paperwork
Reduction Act, and is critical to
achieving the public information
purposes of the accident prevention
program. EPCRA is not the only
example of an up-front substantiation
requirement. The Agency has also .
required up-front substantiation in
several other regulatory contexts,
including those where, like here,
providing the public with health and
safety information is an important
objective [see e.'g., 40 CFR section
725.94, 40 CFR section 710.38, and 40
CFR section 720.85 (regulations'
promulgated under Toxic Substances
Control Act)].
Even under its general CBI
regulations, the Agency need not wait
for a request to release data to require
businesses to substantiate'their CBI
claims. When EPA expects to get a
request to release data claimed
confidential, the Agency is to initiate.
"at the earliest practicable time" the
regulations" procedures for making CBI
determinations (40 CFR section '.- ,
2.204(a)(3)). Those procedures include
calling on affected businesses to
substantiate their claims (see 40 CFR
. section 2.204.(e)). Since state'and local
agencies, environmental groups;
academics and others have already
indicated their interest in obtaining
complete RMP data (see comments
received on this rulemaking, available
in the DOCKET), EPA fully expects to
get requests for RMP data claimed CBI.
Consequently, even if EPA did not
establish an up-front substantiation
requirement in this rule, under the
Agency's general CBI regulations it
could require businesses claiming CBI
for RMP data to substantiate their claims
without first receiving a request to
release the data. Establishing an up-
front requirement in this rule will
simply allow EPA to obtain
substantiation of CBI claims without
having to request it in every instance.
Requiring up-front substantiation for
RMP CBI claims is consistent with the
Paperwork Reduction Act. Any burden
posed by this requirement has already -
been evaluated as part of the
Information Collection Request (ICR)
associated with this rulemaking. EPA
disagrees that up-front substantiation
will impose a substantial or undue
burden. As noted above, under EPA's
current CBI regulations, a source
claiming CBI could and probably would
be required to provide substantiation for
its claim, in view of the public interest
in RMP information. A requirement to
submit substantiation with the claim
should thus make little difference to the
source. Moreover, a source presumably
does not make any claim of CBI lightly.
Before filing a CBI claim, the source
must first determine whether the claim
meets the criteria specified in 40 CFR
section 2.208. Up-front substantiation
only requires that the source document
that determination at the time it files its
claim. Since it would be sensible for a
source to document the basis of its CBI
claim for its own purposes (e.g., in the •
case of a request for substantiation),
EPA expects that many sources already
prepare documentation for their CBI
claims by the time they file them. Also,
submitting substantiation at the time of
claim reduces any additional burden
later, such as reviewing the Agency's
request, retrieving the relevant
information, etc. Therefore, providing
documentation at the time of filing
should impose no additional burden.
In view of the public information
function of RMPs, EPA believes that up-
front substantiation is clearly warranted
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for CBI claims made for RMP data. Up-
front substantiation will ensure that
sources filing claims have carefully
considered whether the data they seek
to protect in fact meets the criteria for
protection, Given the public interest
already expressed in RMP data, EPA
expects that CBI claims for RMP data
will have to be substantiated at some
point. Up-front substantiation will save
EPA and the public time and resources
that would otherwise be required to
respond to each CBI claim with a
request for substantiation. EPA is
therefore promulgating the up-front
substantiation requirement as proposed.
4, State and Local Agency Access to
Unredacted RMPs
One comrhenter objected to EPA's
statement in the proposal that it would
provide unredacted (unsanitized)
versions of the RMPs to a state and local
agency only upon meeting the criteria
required by the EPA's CBI rules at 40 •
CFR Part 2.4 The commenter, an
association of fire fighters, argued that
the Agency's position was inconsistent
with CAA section 112(r)(7)(B)(iii),
which provides that RMPs "shall... be
submitted to the Chemical Safety and
Hazard Investigation Board [a federal
agency), to the State in which the
stationary source is located, and to any
local agency or entity having
responsibility for planning for or
responding to accidental releases which
may occur at such source ...." The
commenter claimed that this provision •
entitles the specified entities, including
local fire departments, to receive
unredacted RMPs without having to
make the showings required by EPA's
CBI regulations.
EPA is not resolving this issue today.
The Agency has reviewed the relevant
statutory text and legislative history, as
well as analogous provisions of EPCRA,
and believes that arguments can be
made on both sides of this issue. While
section 112(r)(7)(B)(iii) calls for RMPs to
be submitted to states, local entities and
the Board, it is not clear that Congress
intended CBI contained in RMPs to be
provided to those entities without
ensuring appropriate protection of CBI.
'Section 2,301 (h)(3) provides that a State or local
govcrnmcm may obtain CBI from EPA under two
Circumstances: (1) it provides EPA a written
opinion from its chief legal officer or counsel
Slating that the State or local agency has the
authority under applicable State or local law to
Compel Ow business to disclose the information
dh«ctly; or (2) the businesses whose information is
disclosed are Informed and the State or local
government "has shown to a EPA legal office's
sal isf.it (Ion that Its disclosure of the Information
will be governed by State or local law and by
"procedures which will provide adequate
protection to the interests of affected businesses."
At stake in resolving this issue are two
important interests—local responders'
interest in unrestricted access to
information that may be critical to their
safety and effectiveness in responding to
emergencies and businesses' interest in
protecting sensitive information from
their competitors. Before making a final
decision on this issue, EPA believes it
would benefit from further public input.
Because EPA stated that it would not
provide unredacted RMPs to states and
local agencies, those interested in
protecting CBI may not have considered
it necessary to lay out the legal and
policy arguments supporting their
views. State and local agencies, many of
which in the past have expressed
concern about the potential
administrative burden of receiving
RMPs directly from sources, also did not
comment on the issue. EPA has
therefore decided to accept additional
comments on this issue alone.
(Additional comments on any other
issues addressed in this rulemaking will
not be considered or addressed, since
the Agency is taking final action on
them here.) Comments should be mailed
to the persons listed in the preceding
FOR FURTHER INFORMATION CONTACT
section. In the meantime, unredacted
RMPs will be available to states, local
agencies and the Board under the terms
of the Agency's existing CBI regulations
at 40 CFR section 2.301 (h) (3) (for state
and local agencies) and 40 CFR section
2.209(c) (for the Board).
Section 112(r)(7)(B)(iii) states in
relevant part:
[RMPs] shall also be submitted to the
Chemical Safety and Hazard Investigation
Board, to the State in which the stationary
source is .located, and to any local agency or
entity having responsibility for planning for
or responding to accidental releases which
may occur at such source, and shall be
available to the public under section 114(c)
of [the Act].
Section 114(c) provides for the public
availability of any information obtained
by EPA under the Clean Air Act, except
for information (other than emissions
data) that would divulge trade secrets.
From a public policy perspective,
there are some obvious advantages to
reading section 112(r)(7)(B)(iii) in the
way the commenter suggests. Local fire
departments and other local responders
are typically the first to arrive at the
scene of chemical accidents in their
jurisdictions. RMP information that first
responders could find helpful include
chemical identity, chemical quantity,
and potential source of an accident.
Under EPA's regulations, however, any
or all of this information could be
claimed CBI. In addition, state and local
authorities are often in the best position
to assess the adequacy of a source's risk
management program and to initiate a
dialogue with the facility should its ,..
RMP indicate a need for improvement.
However, state and local authorities'
ability to provide this contribution to
community safety would be impeded to
the extent a source claimed key
information as CBI. While states and
local agencies may obtain information
claimed CBI under EPA's CBI
regulations (assuming they can make the
requisite showing), the time required to
obtain the necessary authority or
findings from state or local and EPA
officials could be substantial.
At the same time, there are also public
policy reasons for ensuring protection of
CBI contained in RMPs. Congress has in
many statutes, including the CAA and
EPCRA, provided for the protection of
trade-secrets to~safeguard the
competitive position of private
businesses. Businesses' ability to
maintain the confidentiality of trade
secrets helps ensure competition in the
U.S. economy and U.S. businesses'
competitive position in the world
economy. Protection of trade secrets
also encourages innovation, which is an
important contributor to economic
growth.
A reading of section 112 (r) (7) (B) (iii)
that demands submission of unredacted
RMPs to states, local entities, and.the
Board may lead to widespread public
access to information claimed CBI. For
purposes of section 112 (r) (7) (B) (iii),
"any local agency or entity having
responsibility for planning for or
responding to accidental releases"
includes local emergency planning
committees (LEPCs) established under
EPCRA. Section 301 (c) of EPCRA
provides that LEPCs must include
representatives from both the public and
private sectors, including the media and
facilities subject to EPCRA
requirements. Submission of an
unredacted RMP to an LEPC would thus
entail release of CBI to some members
of the public and potentially even
competitors.5 More generally, local
agencies may not be subject to any legal
requirement to protect CBI and may lack
the knowledge and resources to address
CBI claims. Arguably, it would be
5 EPA does not believe that submission of an RMP
containing CBI to the statutorily specified entities
would defeat a source's ability to claim information
as CBI for purposes of section 114 (c) and EPA's CBI
regulations. Under those regulations, information
that has been released to the public cannot be
claimed CBI. Release of a RMP containing CBI to
the entities specified by section 112(r)(7)(B)(iii),
including LEPCs, would not constitute such a
release. EPCRA similarly provides that disclosure of
trade secret information to an LEPC does not
prevent a facility from claiming the information
confidential (see EPCRA section 322(b)(l)).
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973
anomalous for Congress to require EPA
to protect trade secrets contained in
RMPs against release to the public only
to risk divulging the.same'infdrmation
by requiring submission of unfedacted
RMPs to a broad range of entities that
may not have the' need or capacity to
protect CBI themselves. It would also ;
appear inconsistent with the approach
Congress took to protecting trade secrets
in EPCRA, where Congress did not
provide for release of trade secret
chemical identity information to local
agencies.
Relatedly, many state and local
. agencies objected to EPA's original
proposal in the RMP proposed
rulemaking (58 FR 54190, October 20,
1993) that sources submit RMPs directly
• to States, local agencies, and the Board,
as well as EPA. They noted that
managing the information contained in
RMPs would be difficult without a
significant expenditure,of typically.
scarce resources. Many states and local
agencies thus supported EPA's final
decision to develop an electronic
submission and distribution system that
would allow covered sources to submit
their RMPs to EPA, which would make •
them available to states, local agencies,
and the Board, as well as the general
public. If the statute is read to require
submission of RMP information to state
and local agencies, and the Board, to the
extent it is claimed as CBI, the resource
concerns raised by State and local
agencies commenters likely would be
raised to that extent again.
EPA also questions the extent to
which states, local entities and the
Board would be disadvantaged if they
did not receive unredacted RMPs
without making the .showings required
by EPA's CBI regulations. As noted
earlier, EPA expects that relatively-little-'
RMP information will be CBI. RMP data
will only rarely contain CBI, and the up-
front substantiation will minimize the
number of CBI claims it receives by
ensuring that sources carefully examine
the basis for any claims before ,
submitting them. Consequently, the
Agency believes that a state or local
• agency will rarely confront a redacted
RMP. • '
Moreover, EPCRA provides state and
local entities, including fire
departments, with access to much of the
pertinent data already. EPA's
regulations under EPCRA cover a
universe of sources and chemicals that
includes most, if not all, the sources and
substances covered by the RMP'rule.
The EPCRA regulations require
reporting of some of the same
information required by the RMP rule,
including chemical identity. EPCRA
withholds from public release only
chemical identities that are trade secrets
and the location of specific chemicals
where a facility so requests. In practice,
relatively few facilities have requested ,
trade secret protection for. a chemical's
identity. '. • .
Additionally, EPCRA section 312(fj
empowers local fire departments to
conduct on-site inspections at facilities
subject to EPCRA section 3,12 (a) and
obtain information on chemical
location. Most facilities subject to
EPCRA section 312(a) are also subject to
the RMP rule. On-site inspections could^
also provide information on hazards and
mitigation measures. In addition,
EPCRA section 303 (d) (3) authorizes
LEPCs, which include representatives of
fire departments, to request from
facilities covered by EPCRA section
302 (b) such information as may be
necessary to prepare an emergency
response plan and to include such
information in the plan as appropriate.
Some sources subject to the RMP rule
are also covered by EPCRA section
302(b).
In light of the points made above, EPA
questions whether section
112(r) (7) (B)(iii) should be interpreted to
require submission of unredacted RMPs
containing CBI to the statutorily
specified entities without provision.
being, made for protecting CBI. EPA
invites the public to provide any
additional comment or information
relevant to interpreting the submission
requirement of section 112 (r) (7) (B) (iii).
5. Other CBI Issues .
Two commenters disagreed with
EPA's statement that a source cannot
make a CBI claim for information
•available to the public under EPCRA or
another statute. They claimed that a
request for information-under EPCRA
cannot supersede the CBI provisions
applicable to data collected under the
authorities of the CAA or Toxic
Substances Control Act pr any other
regulatory program.
EPA does not agree with this
comment. Claims of CBI may not be
upheld if the information is properly
obtainable or made public under other
statutes Or authorities. For example, '
chemical quantity oh site is available to
the public under EPCRA Tier II •
reporting. In addition, under EPCRA
section 303(d)(3), LEPCs have the
authority to request any information
they need to develop and implement
community emergency response plans.
If information obtained through such a
request is included in the community
plan, it will become available to the '
public under EPCRA section 324.
Information obtainable or .made public •
under EPCRA would riot be eligible for
CBI protection under~40 CFR section'
2.208, which specifically excludes from
CBI protection information already
available to the public. Filing a CBI
claim under the CAA or another statute
does not protect information if it is
legitimately requested'and made public
under other federal, state, or local law.
Information obtainable or made public
(through proper means) under existing,
statutes cannot be CBI under EPA's CBI
regulations.
6. Actions Taken
In summary, the Agency is adding
two sections (68.151 and 68.152) to Part
68. Section 68.151 sets forth the
procedures for a source to follow when
asserting a CBI claim and lists data.
elements that can not be claimed as CBI.
This section also requires sources filing
CBI claims to provide the information
claimed confidential, in a format to be
specified by EPA, instead of the
unsanitized paper copy of the RMP as
discussed in the proposal. Section '
68.152 sets forth the procedures for
substantiating CBI claims. Sources
claiming CBI are required to submit
. their substantiation of their claims at the
same time they submit their RMPs.
E. Other Issues .
Two commenters asked why EPA had
proposed to drop the phrase "if used"
in section 68.165(b)(3) where the rule
asks for the basis of the offsite
< consequence analysis results. EPA has
decided to retain the language, since
sources will have a choice of using
either EPA's RMP guidance documents
or a model. Where a model is used, the
source will have to provide the name of
the model. These commenters also •
asked why EPA proposed to drop
(alternative releases only) from section
68.1.65(b)(13). EPA has also decided to
retain the parenthetical language.
One commenter stated that EPA •
should allow sources to submit RMPs
either electronically or in hard copy.
The commenter stated that, not allowing
hard copy submissions will be
burdensome on many sources wrho have
never filed an electronic report to the
government before. As stated in the
April proposal, EPA is allowing sources
to submit RMPs on paper. Paper
submitters are asked to fill out a simple
paper form to tell EPA why they are
unable to file electronically.
Two commenters Objected to placing
offsite consequence analysis (OCA) data,
particularly worst-case release
scenarios, on the Internet, for security
reasons. Issues related to public access
to OCA data are beyond the scope of
this rulemaking, as this action is limited
to the issues discussed above. It does
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not Include decisions regarding how the
public will access the OCA data
elements of the RMPs, Statements in the
preamble about EPA providing public
access to RMP data are not intended to
address which portions of the RMP data
will be electronically available.
A number of commenters were
concerned about a statement EPA made
in the preamble to the proposed rule
regarding the definition of "process",
and stated that EPA's interpretation of
"process" is not consistent with the
interpretation the Occupational Safety
and Health Administration (OSHA) uses
in its process safety management (PSM)
standard (29 CFR 1910.119). In this
rulemaking, EPA did not propose any
changes to the definition of process nor
is it adopting any changes to the
definition, As EPA stated in the
preamble to the final RMP rule, it will
interpret "process" consistently with
OSHA's interpretation of that term (29
CFR 1910.119). Therefore, if a source is
subject to the PSM rule, the limits of its
processes) for purposes of OSHA PSM
will be the limits of its processes) for
purposes of RMP (except in cases
involving atmospheric storage tanks
containing flammable regulated
substances, which are exempt from PSM
but not RMP). If a source is not covered
by OSHA PSM and is complicated from
an engineering perspective, it should
consider contacting its implementing
agency for advice on determining
process boundaries. EPA and OSHA are
coordinating the agencies' approach to
common issues, such as the
interpretation of "process".
F. Technical Corrections
When Part 68 was promulgated, the
text of section 68.79(a), was drawn from
the OSHA PSM standard, but it was not
revised to reflect the different structure
of EPA's rule. The OSHA PSM standard
is contained in a single section; EPA's
Program 3 prevention program is
contained in a subpart. Rather than
referencing "this section." the
paragraph should have referenced the
"subpart," Therefore, as proposed, EPA
Is changing "section" to "subpart" in
section G8.79(a).
Under section 68.180(b), EPA
Intended that all covered sources report
the name and telephone number of the
agency with which they coordinate
emergency response activities, even if
the source is not required to have an
emergency response plan. However, the
rule refers only to coordinating the
emergency plan. In this action, EPA is
revising this section to refer to the local
agency with which emergency response
activities and the emergency response
plan is coordinated.
IV. Section-by-Section Discussion of the
Final Rule
In Section 68.3. Definitions, the
definition of SIC is removed and
replaced by the definition of NAICS.
Section 68.10, Applicability, is
revised to replace the SIC codes with
NAICS codes, as discussed above.
Section 68.42, Five-Year Accident
History, is revised to require the
percentage concentration by weight of
regulated toxic substances released in a
liquid mixture and the five- or six-digit
NAICS code that most closely
corresponds to the process that had the
release. The phrase "five- or six-digit"
has been added before the NAICS code
to clarify the level of detail required for
NAICS code reporting.
Section 68.79, Compliance Audits, the
word "section" in paragraph (a) is
replaced by "subpart."
Section 68.150, Submission,, is revised
by adding a paragraph to state that
procedures for asserting CBI claims and
determining the sufficiency of such
claims are provided in new Sections
68.151 and 68.152.
Section 68.151 is added to set forth
the procedures to assert a CBI claim and
list data elements that may not be
claimed as CBI, as discussed above.
Section 68.152 is added to set forth
procedures for substantiating CBI
claims, as proposed.
Section 68.160, Registration, is
revised by adding the requirements to
report the method and description of
latitude and longitude, replacing SIC
codes with five- or six-digit NAICS
codes, and adding the requirement to
report Title V permit number, when
applicable. This section is also revised
to include optional data elements. The
phrase "five- or six-digit" has been
added before NAICS code to clarify the
level of detail required for NAICS code
reporting.
Section 68.165, Offsite Consequence
Analysis, is revised by adding the
requirement that the percentage weight
of a regulated toxic substance in a liquid
mixture be reported.
Section 68.170, Prevention Program/
Program 2, is revised to replace SIC
codes with five- or six-digit NAICS
codes, as is Section 68.175.
Section 68.180, Emergency Response
Program, is revised to clarify that
paragraph (b) covers both the
coordination of response activities and
plans, as proposed.
V. Judicial Review
The proposed rule amending the
accidental release prevention
requirements; under section 112(r)(7)
was proposed in the Federal Register on
April 17. 1998. This Federal Register
action announces EPA's final decision
on the amendments. Under section •
307(b)(l) of the CAA, judicial review of
this action is available only by filing a
petition for review in the U.S. Court of
Appeals for the District of Columbia
Circuit on or before March 8, 1999.
Under section 307 (b) (2) of the CAA, the
requirements that are the subject of
today's action may not be challenged
later in civil or criminal proceedings
brought by EPA to enforce these
requirements.
VI. Administrative Requirements
A. Docket
The docket is an organized and
complete file of all the information
considered by the EPA in the
development of this rulemaking. The
docket is a dynamic file, because it
allows members of the public and
industries involved to readily identify
and locate documents so that they can
effectively participate in the rulemaking
process. Along with the proposed and
promulgated rules and their preambles,
the contents of the docket serve as the
record in the case of judicial review.
(See section 307 (d) (7) (A) of the CAA.)
The official record for this
rulemaking, as well as the public
version, has been established for this
rulemaking under Docket No. A-98-08
(including comments and data
submitted electronically). A public
version of this record, including
printed, paper versions of electronic
comments, which does not include any
information claimed as CBI, is available
for inspection from 8:00 a.m. to 5:30
p.m., Monday through Friday, excluding
legal holidays. The official rulemaking
record is located at the address in
ADDRESSES at the beginning of this '
document.
B, Executive Order 12866
Under Executive Order (E.O.) 12866,
[58 FR 51,735 (October 4, 1993)], the
Agency must determine whether the
regulatory action is "significant", and
therefore subject to OMB review and the
requirements of the E.O. The Order
defines "significant regulatory action"
as one that is likely to result in a rule
that may:
(1) Have an annual effect on the
economy of $100 million or more or
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
state, local or tribal government or
communities;
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Federal Register /Vol.' .64,' No. 3/Wednesday, January 6, 1999/Rules and Regulations ' ,975
• .(2) Create a serious inconsistency or
otherwise interfe're'with an action taken
or planned by another agency;
(3) Materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs or the rights and
obligations of recipients thereof; or
(4) Raise, novel legal or policy issues
arising out of legal mandates, the
President's priorities, or the principles
set forth in the E.G.
• Pursuant to the terms of Executive
Order 12866, OMB has notified EPA
that it considers this a "significant
regulatory-action" within the meaning
of the Executive Order. EPA has !
submitted this action to OMB for
review. Changes made in response to
OMB suggestions or recommendations
will be documented in the public
record.
C. Executive Order 12875
Under Executive Order 12875, EPA
may not issue a regulation that is not
required by statute and that creates a
mandate upon a State, local or tribal
government, unless the Federal
government provides, the funds
necessary to pay the direct compliance
costs incurred by those governments, or
EPA consults with those governments. If
EPA complies by consulting, Executive
Order 12875 requires EPA to provide to
the Office of Management and Budget a
description-of the extent of EPA's prior,
consultation with representatives of
affected State, local and tribal
governments, the,nature of their
concerns, copies of any written
communications from the governments,
and a statement supporting the need to .
issue the regulation. In addition,
Executive Order 12875 requires EPA to
develop an effective process permitting
elected officials and other : .
representatives of State, local and tribal
governments "to provide meaningful .
and timely input to the development of
regulatory proposals containing
significant unfunded mandates."
EPA has concluded that this rule may
create a nominal mandate on State, local
or tribal governments and 'that the
Federal government will not provide the
funds necessary to pay the direct costs
incurred by these governments in
complying with the mandate.
Specifically, some public entities may
be covered sources and will have to add
the new "data, elements to their RMP. In
developing this rule, EPA consulted
'with state, local and tribal governments
to enable them to provide meaningful
and time.ly input in the development of
this rule. Even though this rule revises
Part 68 in a way that does not
significantly change the burden '
imposed by the underlying rule, EPA •
has taken efforts to involve state and
local entities in this regulatory .effort.
Specifically, much of the rule responds
to issues raised by the Electronic
Submission Workgroup discussed
above,-which includes State and Ipcal
government stakeholders. In addition,
EPA has recently conducted seminars
with tribal governments; however, there
were no concerns raised on any issues
that are covered in this rule. EPA
discussed the need for issuing' this
regulation in sections II and III in this
preamble. Also, EPA provided OMB.
with copies of the comments to the
proposed rule.
D. Executive Order 13045
Executive Order 13045: "Protection of
Children from Environmental Health
Risks and Safety Risks" (62 FR 19885, -
April 23, 1997) applies to any rule that:
(1) is determined to be "economically
significant" as defined under E.O.
12866, and (2) concerns an
environmental health or safety risk that
EPA has reason to believe may have a
disproportionate effect on children. If
the regulatory action meets both criteria,
the Agency must evaluate the
environmental health or safety effects of
the planned rule on children, and
explain whythe planned regulation is
preferable to other potentially effective
and reasonably feasible alternatives
considered by the Agency.
This final rule is not subject to the
E.O. 13045 because it is not
"economically significant" as defined in
E.O. 12866, and because it does not
involve decisions based on
environmental health or safety risks.
E. Executive Order 13084
. Under Executive Order 13084, EPA
may not issue a regulation that is not
required by statute, that significantly or
Uniquely affects the communities of
Indian tribal governments, and that
. imposes substantial direct compliance
costs on those communities, unless the
Federal government provides the funds
necessary to pay the direct compliance
costs incurred by the tribal
governments, or EPA consults with
those governments. If EPA complies by
consulting, Executive Order 13084
requires EPA to provide to the Office of
Management and Budget, in .a separately
identified section of the preamble to the
rule, a description of the extent of EPA's-
prior consultation with representatives
of affected tribal governments, a
summary of the nature of their concerns,
and a statement supporting the need to
issue the regulation. In addition,
Executive Order 13084 requires EPA to
develop an effective process permitting
elected and other representatives of
Indian tribal governments, "to provide
meaningful and timely input in the
development of regulatory policies on
matters that significantly or uniquely
affect their communities."
Today's rule does not significantly or
uniquely affect the communities of
Indian tribal governments. Two of the
amendments madefy'this rule, the
addition of RMP data elements and the
conversion of SIC codes to NAICS
codes,- impose only minimal burden on
any sources that may be owned or
operated by tribal governments, such as
drinking water'and waste water
treatment'systems. The third
' amendment made by this rule addresses
the procedures for submission of
confidential business information in the
RMP. The sources that are mentioned
above handle chemicals that are known '
to public (e.g., chlorine for use of
disinfection, propane used for fuel, etc.).
EPA does not, therefore, expect RMP
information on these types of processes
to include CBI, so any costs related to
CBI. will not fall on Indian tribal
governments. Accordingly, the
, requirements of section 3 (b) of
Executive Order 13084 do not apply to
this rule. . - . .- . .......
Notwithstanding the non-applicability
of E. O. 13084, EPA has recently
conducted seminars with the tribal
governments. However, there were no
concerns raised on any issues that are
covered in this rule. , •
F. Regulatory Flexibility
•EPA has determined that it is not
necessary to prepare a regulatory
flexibility analysis in connection with
this final rule. EPA has also determined
that this action will not have a
significant economic impact on a
substantial number of small entities.
Two of the amendments made by this
rule, the addition of RMP data elements
and the conversion of SIC codes to
NAICS codes, impose only minimal
burden on small entities. Moreover,
those small businesses that claim CBI
when submitting the RMP will not face
any costs beyond those imposed by the
existing CBI regulations. Even
.considering the costs of CBI
substantiation, however, there is no
significant economic impact on a
substantial number of small entities.
EPA estimates that very few small
entities (approximately ,500) will claim
CBI and that these few entities represent-
a small fraction of the small entities
(less than 5 percent) affected by the
RMP rule. Finally, EPA estimates that
those small businesses filing CBI will
experience a cost which is significantly
less than one percent of their annual
sales, For a more detailed analysis of the
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small entity impacts of CBI submission,
see Document Number. IV-B-02.
available In the docket for this
rulemaking (see ADDRESSES section).
C, Paperwork Reduction
1, General
The information collection
requirements in this rule have been
Submitted for approval to the Office of
Management and Budget (OMB) under
the Paperwork Reduction Act, 44 U.S.C.
3501 et seq. An Information Collection
Request (ICR) document has been
prepared by EPA (ICR No. 1656.05) and
a copy may be obtained from Sandy
Farmer, by mail at Office of Policy,
Regulatory Information Division, U.S.
Environmental Protection Agency
(2137), 401 M St. SW, Washington, DC
20460, by e-mail at
farmer.sandy@epamail.epa.gov or by
calling (202) 260-2740. A copy may also
be downloaded off the Internet at http:/
/www.epa.gov/icr. The information
requirements are not effective until
OMB approves them.
The submission of the RMP is
mandated by section 112(r) (7) of the
CAA and demonstrates compliance with
Part 68 consistent with section 114(c) of
the CAA. The information collected also
will be made available to state and local
governments and the public to enhance
their preparedness, response, and
prevention activities. Certain
information in the RMP may be claimed
as confidential business information
under 40 CFR Part 2 and Part 68.
This rule will impose very little
burden on affected sources. First, EPA
estimates that the new data elements
Will require only a nominal burden, .25
hours for a typical source, because
latitude and longitude method and
description will be selected from a list
of options, the Title V permit number is
available to any source to which Title V
applies, and the percentage weight of a
toxic substance in a liquid mixture is
usually provided by the supplier of the
mixture. Second, the NAICS code
provision is simply a change from one
code to another,6 Third, as discussed
above in the preamble, EPA believes
that the CBI provisions of this rule will
add no additional burden beyond what
sources otherwise would face in
*EPA intends to provide several outreach
mechanisms lo assist sources in identifying their
new NAICS cods. RMP'Submit will provide a
"pick list" that will make it easier for sources to
find tlx? appropriate code, Also, selected NAICS
codes are Included In the General Guidance for Risk
Management Programs (July 1998) and in the
Industry-specific guidance documents that EPA is
developing, EPA will also utilize the Emergency
Planning and Community Right-to-Know Hotline at
800-424-9346 (or 703-412-9810) to assist sources
In determining the source's NAICS codes,
complying with the CBI rules in 40 CFR
Part 2. The Agency has calculated the
burden of substantiations made for
purposes of this rule below.
Burden means the total time, effort, or
financial resources expended by persons
to generate, maintain, retain, or disclose
or provide information to or for a
Federal agency. This includes the time
needed to review instructions; develop,
acquire, install, and utilize technology
and system for the purposes of
collecting, validating, and verifying
information, processing and
maintaining information, and disclosing
and providing information; adjust the
existing ways to comply with any
previously applicable instructions and
requirements; train personnel to be able
to respond to a collection of
information; search data sources;
complete and review the collection of
information; and transmit or otherwise
disclose the information.
An agency may nqt conduct or
sponsor, and a person is not required to
respond to a collection of information
unless it displays a currently valid OMB
control number. The OMB control
numbers for EPA's regulations are listed
in 40 CFR Part 9 and 48 CFR Chapter
15.
2. CBI Burden .
In the Notice of Proposed Rulemaking
for these amendments, EPA proposed to
amend existing 40 CFR Part 68 to add
two sections which would clarify the
procedures for submitting RMPs that
contain confidential business
information (CBI). As proposed, CBI
would be handled in much the same
way as it presently is under other EPA
programs, except that EPA would
require sources claiming CBI to submit
documentation substantiating their CBI
claims at the time such claims were
made and EPA also would not permit
CBI claims for certain data elements
which clearly are not CBI. Aside from
these procedural changes, however, the
proposed rule was substantively
identical to the existing rules governing
the substantiation of CBI claims,
presently codified in 40 CFR Part 2.
At the time it proposed these
amendments, EPA estimated the public
reporting burden for CBI claims to be 15
hours for chemicaj manufacturers with
Program 3 processes, the only kinds of
facilities that EPA expects to be able to
claim CBI for any RMP data elements.
This estimate was premised upon EPA's
assessment that it would require 8.5
hours per claim to develop and submit
the CBI substantiation and 6.5 hours to
complete an unsanitize'd version of the
RMP, for a total of 15 hours. EPA also
estimated that approximately 20 percent
of the 4000 chemical manufacturers (out
of 64,200 stationary sources estimated,to
be covered by the RMP rule) may file'
CBI claims (800 sources). The 800
sources represent a conservative
projection based on the Agency's
experience under EPCRA program.
Consequently, the total annual public
reporting burden for filing CBI claims
was estimated to be approximately
12,000 hours over three years (800
facilities multiplied by an average
burden of 15 hours), or an annual
burden of 4,000 hours (Information
Collection Request No. 1656.04).
a. Comment received. EPA received
one comment on the ICR developed for
the proposed rule, opposing up-front
substantiation of any CBI claims. The
commenter stated that "[t]his is a major
departure from standard EPA procedure,
and would impose a substantial and
unjustified burden for several years."
The commenter further added that up-
front substantiation would significantly
increase the burden of this rule, and that
up-front substantiation unnecessarily
increases the volume and potential loss
of CBI documents. The commenter also
stated that the estimate of 15 hours for
chemical manufacturers "seems
unreasonably low," and cited the EPA
burden estimate of 27.7 to 33.2 hours
per claim (with an average of 28.8)
under the trade secret provisions of
EPCRA.
In the preamble to the proposed rule,
EPA estimated that 20 percent of the
4,000 chemical manufacturers will file a
CBI claim. The commenter contends
that "[t] he EPA analysis * * * excludes
facilities in other industries that will
need to file CBI claims."
Finally, the commenter stated that
claiming multiple data elements as CBI
will increase reporting burden.
b. EPA response. Burden Estimates:
EPA disagrees with these comments. As
pointed out above, the requirement to
submit up-front substantiation of CBI
claims imposes no additional burden. In
addition, the total burden of the CBI
provisions of this rule are not
understated. EPA has re-examined its
analysis in light of the commenter's
concerns and has determined—contrary
- to the commenter's claim—that its
initial estimate of the total burden
associated with preparing and claiming
CBI was likely too conservative. As
explained below, the Agency's best
available information indicates that the
process of documenting and submitting •
a claim of CBI should impose a burden
of approximately 9.5 hours per CBI
claimant.
First, EPA believes that the
requirement to submit, at the time a
source claims information as CBI, ,
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Federal Register/Vol. 64v No. 3/Wednesday, January 6, -1999/Rules and Regulations
977
. substantiation demonstrating that the
material truly is-CBI imposes no burden
on sources beyond that which presently'
exists under EPA's CBI regulations in
Part 2. In order to decide whether they
might properly claim CBI for a given
piece of information, a source must
determine if the criteria stated ih section
2.208 of 40 CFR Part 2 are satisfied.
Naturally, a source goes through this
process before a CBI claim is made. EPA
agrees that most programs do not' '
require the information that forms the
basis for the substantiation to be
submitted at the time of the claim;
however, a' facility must still determine
whether or not a'claim can be
substantiated. Because existing rules
require sources to formulate a legitimate
basis for claiming CBI, even if those
rules do not require immediate
documentation, and because the Agency
fully expects requests for RMP
information which will necessitate
sources' submitting such
documentation, EPA believes that up-
.front submission will not increase the
burden of the regulation.
Second, in response to the
commeriter's claim that the Agency had
underestimated the total burden
associated with CBI claims, EPA
undertook a review of recent
information collection requests (ICRs)
covering data similar to that required to
be submitted in an RMP. Initially, EPA
examined the ICR prepared for Part 2
itself (ICR No. 1665.02, OMB Control
No. 2020-0003). Under an analysis
contained in the Statement of Support
for the ICR, the Agency estimated that
it takes approximately 9.4 hours to -
substantiate claims of CBI, prepare
documentation, and submit such
documentation to EPA. Next, the
Agency reviewed a survey conducted by
the Agency (under Office of
Management and Budget clearance
#2070-0034), to present the average
burden associated with indicating
confidential business information
claims for certain data elements .under
the proposed inventory update rule
(IUR) amendment under TSCA section
8. This survey specifically asked
affected industry how long it would take
to prepare CBI claims for two data
elements—chemical identity and
production volume range information.
Part 68 also requires similar information
(e.g., chemical identity and maximum
quantity in a process) to be included in
a source's RMP and, indeed, EPA
anticipates that they will be the data
elements most likely to be claimed CBI.
The average burden estimates for
chemical identity were between 1.82
and 3.13 hours, and the average burden
estimates for production volume in
ranges were between 0.87 and 2.08
hours. Thus, assuming that the average
source claims both chemical identity
and the maximum quantity in a process
as CBI, a conservative estimate for the
reporting burden would be 5.21 hours.
Finally, EPA examined the burden
estimateupon which it relied at
proposal. That estimate predicted that
the average CBI claim would take 15
hours, of which 8.5 would be
developing and submitting the CBI
claim, and 6.5 would be completing an ,
unsanitized version of the RMP. In view'
of EPA's current plan not to require a
source claiming CBI to submit a full,
unsanitized RMP, but instead to submit
only the particular elements claimed as
CBI, the Agency expects the latter
• burden to decrease to 1 hour, 'for a total
burden of 9.5 hours.
In light of its extensive research of the
burden hours involved in preparing and
submitting CBI claims, EPA believes
that the total burden estimate was not
understated in the April proposal.
Rather, other ICRs and the ICR proposal,
combined with the changes to the
method of documenting CBI claims, -;'
indicate that a burden estimate between
5.21 and 9.5 hours is appropriate for
this final rule. EPA has selected the
most-conservative of these, 9.5 hours, in
its ICR for this final rule. •'• ' .
EPA rejected one ICR's burden
estimate as being inapplicable to the
present rulemaking. Although the
•commenter urged the Agency to adopt .
the estimate associated with trade secret
claims under EPCRA (28 hours), EPA
believes that the estimates discussed
above are more accurate for several
reasons. First, the EPCRA figures are
based upon a. survey with a very small
sample size, as compared to the TSCA
survey cited previously. Second, most
(if not all) of the facilities submitting
RMPs are likely to already'be reporting
under sections 311 and 312 or section
313 of EPCRA, and many of the ;
manufacturers submitting an RMP are
subject to TSCA reporting requirements;,
thus, most sources likely to claim CBI
for an RMP data elemen^ will have
already'done some analysis of whether
or not such information would reveal
legitimately confidential matter.
Other Facilities Can Claim CBI: The
Agency does not agree with the
commenter's claim that facilities other
than chemical manufacturers might be
expected to claim CBI for information
contained in their .RMPs. The other
industries affected by the RMP rule (e.g.,
propane retailers, publicly owned
. treatment works) will not be disclosing
in the RMP information that is likely to
cause substantial harm to the business's
'competitive position, For example,
covered public drinking water and
wastewater treatment plants generally
use common regulated substances in
standard processes (i.e., chlorine used
, for disinfection). Also, covered ;' .
processes at many sources involve the
storage of regulated substances that the
sources sell (e.g., propane, ammonia), so
the processes are already public
knowledge. Other covered processes
involve the use of well-known
combinations of regulated substances
such as refrigerants. Therefore, it is not
likely that these businesses would claim
information as CBI. ,
As a point of comparison, EPA notes
that of the 869,000 facilities that are '
estimated-to,be required to report under
sections 311 and 312 of EPCRA,
approximately 58 facilities have,
submitted trade secret claims for under
those sections. For this reason, EPA
believes the estimate of 800 sources ~
may, in fact, be an overestimate of the
number of sources claiming CBI.
Reporting Multiple Data Elements:
The Agency disagrees with the
commenters assertion that it has s-
underestimated the reporting burden on
sources' claiming multiple data ' .
elements as CBI. The burden figures
stated above are based on the Agency's
estimates of the average number of data
elements that a typical source will likely
claim CBI.
Public reporting of the new RMP data
elements is estimated to require an
average of .25 hours for all sources
(64,200 sources) and substantiating CBI
claims is estimated to take
approximately 9.5 hours for certain
chemical manufacturing sources (800
sources). The aggregate increase in
burden over that estimated in the
previous Information Collection Request
(ICR) for part 68 is estimated to be about
23,650 hours over three years, or an
annual burden of 7,883 hours for the
three years covered by the ICR.
H. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA), P.L. 104-
4, establishes requirements for Federal
agencies to assess the effects of their
regulatory actions on State, local, and
tribal governments and the private
sector. Under section 202 of the UMRA,
EPA generally, must prepare a written
statement, including a cost-benefit
analysis, for proposed and final rules
with "Federal mandates" that may
result in expenditures to State, local,
and tribalgovernments, in the aggregate,
or to the private sector, of $100 million
or more in any one year. Before
promulgating an EPA rule for which a
written statement is needed, section 205
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Federal Register/Vol. 64, No. 3/Wednesday, January 6, 1999/Rules and Regulations
of the L'MRA generally requires EPA to
Identify and consider a reasonable
number of regulatory alternatives and
adopt the least costly, most cost-
effective or least burdensome alternative
thai achieves the objectives of the rule.
The provisions of section 205 do not
apply when they are inconsistent with
applicable law. Moreover, section 205
allows EPA to adopt an alternative other
than the least costly, most cost-effective
or least burdensome alternative if the
Administrator publishes with the final
rule an explanation why that alternative
was not adopted. Before EPA establishes
any regulatory requirements that may
significantly or uniquely affect small
governments, including tribal
governments, it must have developed
under section 203 of the UMRA a small
government agency plan. The plan must
provide for notifying potentially
affected small governments, enabling
officials of affected small governments
to have meaningful and timely input in
the development of EPA regulatory
proposals with significant Federal
intergovernmental mandates, and
Informing, educating, and advising
small governments on compliance with
the regulatory requirements.
EPA has determined that this rule
does not contain a Federal mandate that
mdy result In expenditures of $100
million or more for state, local, and
tribal governments, in the aggregate, or
the private sector in any one year. The
EPA has determined that -the total
nationwide capital cost for these rule
amendments is zero and the annual
nationwide cost for thesp amendments
is less than $1 million. Thus, today's
rule is not subject to the requirements
of sections 202 and 205 of the Unfunded
Mandates Act.
EPA has determined that this rule
contains no regulatory requirements that
might significantly or uniquely affect
small governments. Small governments
are unlikely to claim information
confidential, because sources owned or
operated by these entities (e.g., drinking
water and waste water treatment
systems), handle chemicals that are
known to public. The new data
elements and the conversion of SIC
codes to NAICS codes impose only
minimal burden on these entities.
I. National Technology Transfer and
Advancement Act
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 ("NTTAA"), Pub L. 104-
113, section 12(d)(15 U.S.C. 272 note),
directs EPA to use voluntary consensus
standards in its regulatory activities
unless to do so would be inconsistent
with applicable law or otherwise
impractical. Voluntary consensus
standards are technical standards (e.g.,
materials specifications, test methods,
sampling procedures, business
practices) that are developed or adopted
by voluntary consensus standards
bodies. The NTTAA requires EPA to
provide Congress, through OMB,
explanations when the Agency decides
not to use available and applicable
voluntary consensus standards.
This action does not involve technical
standards. Therefore, EPA did not
consider the use of any voluntary
consensus standards.
J. Congressional Review Act
The Congressional Review Act, 5
U.S.C. section 801 et seq., as added by
the Small Business Regulatory
Enforcement Fairness Act of 1996,
generally provides that before a rule
may take effect, the agency ;
promulgating the rule must submit a
rule report, which includes a copy of
the rule, to each House of the Congress
and to the Comptroller General of the
United States. EPA will submit a report
containing this rule and other required
information to the U.S. Senate, the U.S.
House of Representatives, and the
Comptroller General of the United
States prior to publication of the rule in
the Federal Register. This action is not
a "major rule" as defined by 5 U.S.C,
section 804(2). This rule will be
effective February 5, 1999.
APPENDIX TO PREAMBLE—DATA ELEMENTS THAT MAY NOT BE CLAIMED AS CBI
Rule element
Comment
68.160(b)(1) Stationary source name, street,
dty, county, slate, zip code, latitude, and lon-
gitude, method for obtaining latitude and lon-
gitude, and description of location that lati-
tude and longitude represent.
68:160(b)(2) Stationary source Dun and Brad-
stroet number,
68.160(b)(3) Name and Dun and Bradstreet
number of the corporate parent company.
68,160{b)(4) The name, telephone number, and
mailing address of the owner/operator.
68,160(b)(5) The name and title of the person
or position with overall responsibility for RMP
elements and implementation.
68.160(b)(6) The name, title, telephone number,
and 24-hour telephone number of the emer-
gency contact.
68.160(b}(7) Program level and NAICS code of
the process,
68.160(b}(8) The stationary source EPA identi-
fier.
68,160(b){10) Whether the stationary source is
subject to 29 CFR 1910.119.
68,160(b)(11) Whether the stationary source is
subject to 40 CFR Part 355.
68,160(b)(i2) If the stationary source has a
CAA Title V operating permit, the permit num-
ber.
This information is filed with EPA and other agencies under other regulations and is made
available to the public and, therefore, does not meet the criteria for CBI claims. It is also
available in business and other directories.
This information provides no information that would affect a source's competitive position.
This information js filed with state and local agencies under EPCRA and is made available to
the public and, therefore, does not meet the criteria for CBI claims.
This information provides no information that would affect a source's competitive position.
This information provides no information that would affect a source's competitive position.
This information provides no information that would affect a source's competitive position.
Sources are required to notify the state and local agencies if they are subject to this rule; this
information is. available to the public and, therefore, does not meet the criteria for CBI
claims.
This information will be known to state and federal air agencies and is available to the public
and, therefore, does not meet the criteria for CBI claims.
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APPENDIX TO PREAMBLE—DATA ELEMENTS THAT MAY NOT BE CLAIMED AS CBI—Continued
Rule element
Comment
68.160(b)(13) The date of the last safety in-
spection and the identity of the inspecting en-
tity.
68.165(b)(4)'Basis of the results (give model
name if used).
68.165(b)(9) Wind speed and atmospheric sta-
bility class (toxics only).
68.165(b)(10) Topography (toxics only)
68.165(b)(11) Distance to an endpoint
68,165(b)(12) Public and environmental recep-
tors within the distance.
68.168 Five-year accident history
68.170(b), (d), (e)(1), and (f)-(k)
68.175^), (d), (e)(1), and (f)-(p)
NAICS code, prevention- program compli-
ance dates and information.
68,180 Emergency response program
This information provides no information that would affect.a source's competitive position.
Without the chemical name and quantity, this reveals no business information.
This information provides no information that would affect a source's competitive position.
Without the chemical name and quantity, this reveals no business information.
By itself, this information provides no confidential information. Other elements that would re-
veal chemical identity or quantity may be claimed as CBI.
By'itself, this Information provides" no confidential information. Other elements that would re-r
veal chemical identity or quantity may be claimed as CBI. '
Sources are required to-report most of these releases and information (chemical released,-
quantity, impacts) to, the federal, state, and local agencies under CERCLA and EPCRA;
these data are available to the'public and, therefore, do not meet the criteria for CBI claims.
Much of this information is also available from the public media.
NAICS codes and the prevention program compliance dates and information provide no infor-
mation that would affect a source's competitive position!.
This information provides no information that would affect a source's competitive position.
List of Subjects in 40 CFR Part 68
Environmental protection,
Administrative practice and procedure,
Air pollution control, Chemicals,
Hazardous substances, •
Intergovernmental relations, Reporting
and recordkeeping requirements.
Dated: December 29, 1998.
Carol M. Browner,
Administrator.'
For the reasons set out in the
preamble, title 40, chapter I, subchapter
C, part 68 of the Code of Federal
Regulations is amended to read as '
follows:
PART 68—CHEMICAL ACCIDENT
PREVENTION PROVISIONS
1. The authority citation for Part 68
continues to read as follows:
Authority: 42 U.S.C. 7412(r), 760l(a)(l),
7661-766 If.,
2. Section 68.3 is amended by
removing the definition of SIC and by
adding in alphabetical order the
definition for NAICS to read as follows:
§68.3 Definitions.
*,*.*** =
NAICS. means North American
Industry Classification System.
*-••'* * * * '
3. Section 68^10 is amended by
revising paragraph (d)(l) tp read as
follows:
§68.10 Applicability.
* * _ * . *_ * •'
- (d) * * * '
(1) The process is in NAICS code
32211,32411,32511,325181,325188,
325192,325199,325211, 325311, or
32532; or
.*.-** * *
4. Section 68.42 is amended by
revising paragraph (b) (3), redesignating
paragraphs (b)(4) through (b)(10) as
paragraphs (b)(5) through (b)( 11) and by
adding a new paragraph (b)(4) to read as
follows:
§68.42 Five-year accident history.
* . * . * * *
(b) * *' * '• .
(3) Estimated quantity released in
pounds and, for mixtures containing
regulated toxic substances, percentage
concentration by weight of the released
regulated toxic substance in the liquid
mixture;
(4) Five- or six-digit NAICS code that
most closely corresponds to the process;
* * . * . * *
5. Section 68.79 is amended by
revising paragraph (a) to read as follows:
§. 68.79 Compliance audits.
• (a) The owner or operator shall certify
that they have evaluated compliance
with the provisions of this subpart at
least every three years to verify that
procedures and practices developed
under this subpart are adequate and are
being followed.
*****
6. Section 68.150 is amended by.
adding paragraph (e) to read as follows:
§68.150 Submission.
. * * * * *
(e) Procedures for asserting that
information submitted in the RMP is
entitled to protection as confidential
business information are set forth in
§§68.'l51 and 68.152. •
. 7. Section 68.151 is added to read as •
follows:
§68.151 Assertion of claims of
confidential business information.
(a) Except as provided in paragraph
(b) of this section, an owner or operator
of a stationary source required to report
or otherwise provide information under
this part may make a claim of
confidential business information for
any such information that meets the
criteria set forth in 40 CFR 2.301 .
(b) Notwithstanding the provisions of
40 CFR part 2, an owner or operator of
a stationary source subject to this part
may not claim as confidential business
information the following information:
(1) Registration data required by
§68.160(b)(l) through (b)(6)'and (b)(8),
(b)(10) through (b)(13) and NAICS code
-and Program level of the process set
forth in §68.160(b)(7);
(2) Offsite consequence analysis data
required by § 6.8. 1 65 (b) (4) , (b) (9) , (b) ( 1 0) ,
(3) Accident history data required by
§68.168; ." '
(4) Prevention program data required
by§68.170(b), (d), (e)(l), (f) through (k);
(5) Prevention program data required
by §68. 175 (b), (d), (e)(l), (f) through (p);
and • ' ' , .
(6) Emergency response program data
required by §68.180.
• (c) Notwithstanding the procedures
specified in 40 CFR part 2, an owner or
operator asserting a claim of CBI with
respect to information contained in its
RMP, shall submit to EPA at the time it
submits the RMP Jhe following:
(1) The information claimed
confidential, provided in a format to be
specified by EPA;
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Federal Register/Vol. 64, No. 3/Wednesday, January 6, 1999/Rules and Regulations
(2) A sanitized (redacted) copy of the
RMP, with the notation "CBl"
substituted for the information claimed
confidential, except that a generic
category or class name shall be
substituted for any chemical name or
identity claimed confidential; and
(3) Tne document or documents
substantiating each claim of confidential
business information, as described in
§68,152.
8. Section 68.152 is added to read as
follows:
§ 68.152 Substantiating claims of
confidential business information.
(a) An owner or operator claiming that
information is confidential business
information must substantiate that claim
by providing documentation that
demonstrates that the claim meets the
substantive criteria set forth in 40 CFR
3,301.
(b) Information that is submitted as
part of the substantiation may be
claimed confidential by marking it as
confidential business information.
Information not so marked will be
treated as public and may be disclosed
without notice to the submitter. If
Information that is submitted as part of
the substantiation is claimed
Confidential, the owner or operator must
provide a sanitized and unsanitized
version of the substantiation.
(c) The owner, operator, or senior
official with management responsibility
of the stationary source shall sign a
certification that the signer has
personally examined the information
submitted and that based on inquiry of
the persons who compiled the
Information, the information is true,
accurate, and complete, and that those
portions of the substantiation claimed as
confidential business information
would, if disclosed, reveal trade secrets
or other confidential business
information.
9. Section 68.160 is amended by
revising paragraphs (b)(l), (b)(7), and
(b)(12) and adding paragraphs (b)(14)
through (b)(18) to read as follows:
§68.160 Registration.
*****
(b) * * *
(1) Stationary source name, street,
city, county, state, zip code, latitude and
longitude, method for obtaining latitude
and longitude, and description of
location that latitude-and longitude
represent;
*****
(7) For each covered process, the
name and CAS number of each
regulated substance held above the
threshold quantity in the process, the
maximum quantity of each regulated
substance or mixture in the process (in
pounds) to two significant digits, the
five- or six-digit NAICS code that most
closely corresponds to the process, and
the Program level of the process;
*****
(12) If the stationary source has a CAA
Title V operating permit, the permit
number; and
*****
(14) Source or Parent Company E-Mail
Address (Optional);
(15) Source Homepage address
(Optional)
(16) Phone number at the source for
public inquiries (Optional);
(17) Local Emergency Planning
Committee (Optional);
(18) OSHA Voluntary Protection
Program status (Optional);
10. Section 68.165 is amended by
revising paragraph (b) to read as follows:
§ 68.165 Offsite consequence analysis.
* * * * * ,
(b) The owner or operator shall
submit the following data:
(1) Chemical name;
(2) Percentage weight of the chemical
in a liquid mixture (toxics only);
(3) Physical state (toxics only);
(4) Basis of results (give model name
if used);
(5) Scenario (explosion, fire, toxic gas
release, or liquid spill and evaporation);
(6) Quantity released in pounds;
(7) Release rate;
(8) Release, duration;
(9) Wind speed and atmospheric
stability class (toxics only); :
(10) Topography (toxics only);
(11) Distance to endpoint;
(12) Public and environmental
receptors within the distance;
(13) Passive mitigation considered;
and
(14) Active mitigation considered
(alternative releases only);
11. Section 68.170 is amended by
, revising paragraph (b) to read as follows:
§ 68.170 Prevention-program/Program 2.
****-#
(b) The five- or six-digit NAICS code
that most closely corresponds to the
process.
*****
12. Section 68.175 is amended by
revising paragraph (b) to read as follows:
§68.175 Prevention program/Program 3.
*****
(b) The five- or six-digit NAICS code
that most closely corresponds to the
process.
*****
13. Section 68.180 is amended by
revising paragraph (b) to read as follows:
§ 68.180 [Emergency response program.
* * * * *
(b) The owner or operator shall
provide the name and telephone
number of the local agency with which
emergency response activities and the
emergency response plan is
coordinated.
*****
[FR Doc. 99-231 Filed 1-5-99; 8:45 am]
BILLING CODE 6560-50-P
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