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Accidental Release Prevention Requirements: Risk Management Programs Under Clean Air Act Section 112(r)(7); Amendments
Related Material
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: April 17, 1998 (Volume 63, Number 74)]
[Proposed Rules]
[Page 19216-19226]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17ap98-17]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 68
[FRL-5997-2]
RIN 2050-AE46
Accidental Release Prevention Requirements: Risk Management
Programs Under Clean Air Act Section 112(r)(7); Amendments
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: On June 20, 1996, EPA published risk management program
regulations, mandated under the accidental release prevention
provisions of the Clean Air Act (CAA). These regulations require owners
and operators of stationary sources subject to the regulations to
submit risk management plans (RMPs) by June 21, 1999, to a central
location specified by EPA. EPA is proposing amendments to these rules
to reflect the government's adoption of a new industrial classification
system, to add some data elements to the RMP, to establish explicit
procedures for protecting confidential information, and to clarify
certain items. These changes will bring the rule up to date with the
new industrial classification system, provide information in the RMP
that will make the data more useful, and clarify procedures and
requirements. The proposed amendments in this rule address the
submission of RMP information to EPA; the amendments do not address the
means by which the public could access RMP information.
DATES: Comments are due on June 1, 1998. Anyone requesting a public
hearing must contact EPA no later than May 4, 1998. If a hearing is
held, EPA will publish the date, time and location in the Federal
Register.
ADDRESSES: Comments should be mailed to the U.S. Environmental
Protection Agency, Attn: Docket A-98-08, Room 1500, 401 M St. SW,
Washington, DC 20460. E-mail comments should be sent to: A-AND-R-
DOCKET@epamail.epa.gov; if comments are filed as an attachment to an e-
mail, the attachment must be in WordPerfect 6.1 or an ASCII file. Paper
comments should be submitted in triplicate; comments may be submitted
on disk in WordPerfect 6.1 or an ASCII file.
Persons interested in presenting oral testimony or inquiring as to
whether a hearing is to be held should notify the person listed in FOR
FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT: Sicy Jacob, Chemical Engineer,
Chemical Emergency Preparedness and Prevention Office, Environmental
Protection Agency (5101), 401 M Street SW, Washington, DC 20460, (202)
260-7249, or the Emergency Planning and Community Right-to-Know Hotline
at 1-800-424-9346 (in the Washington, DC metropolitan area, (703) 412-
9810).
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.................. Basic chemical manufacturing,
petrochemicals, resins,
agricultural chemicals,
pharmaceuticals, paints,
cleaning compounds.
Petroleum............................... Refineries.
Other Manufacturing..................... Paper, electronics,
semiconductors, fabricated
metals, industrial machinery,
food processing.
Agriculture............................. Agricultural retailers.
Public Sources.......................... Drinking water and wastewater
treatment systems.
Utilities............................... Electric and gas utilities.
Other................................... Propane retailers and users,
cold storage, warehousing and
wholesalers.
Federal Sources......................... Military and energy
installations.
------------------------------------------------------------------------
This table is not meant to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. The table lists the types of entities that EPA is aware
[[Page 19217]]
of that could potentially be regulated by this action. Other types of
entities not listed on 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 Sec. 68.130 and the applicability criteria under
Sec. 68.10. If you have questions regarding applicability of this
action to a particular entity, consult the person listed in the
preceding FOR FURTHER INFORMATION CONTACT section.
The following table of contents is provided to aid in reading this
preamble:
Table of Contents
I. Introduction and Background
A. Statutory Authority
B. Background
II. Discussion of Proposed Rule
A. NAICS Codes
B. RMP Data Elements
1. New RMP Data Elements
2. Optional RMP Data Elements
C. Clarification of Prevention Program Reporting
D. Confidential Business Information (CBI)
E. Other Changes
III. Section-by-Section Discussion of the Proposed Rule
IV. Administrative Requirements
A. Docket
B. Public Hearing and Written Comments
C. E.O. 12866
D. E.O. 12875
E. Regulatory Flexibility Act
F. Paperwork Reduction Act
G. Unfunded Mandates
H. National Technology Transfer and Advancement Act
I. Introduction and Background
A. Statutory Authority
These amendments are being proposed under sections 112(r) and
301(a)(1) of the CAA (42 U.S.C. 7412(r), 7601(a)(1)).
B. Background
The 1990 CAA Amendments revised section 112 by adding a paragraph
(r), to prevent accidental releases to the air and mitigate any
accidents that occur. Section 112(r) mandates that EPA promulgate a
list of regulated substances, with threshold quantities. This list
defines the processes at stationary sources that are subject to
accidental release prevention regulations that EPA is mandated to
promulgate under section 112(r)(7). EPA promulgated the list of
substances on January 31, 1994 (59 FR 4478) (the ``List Rule'') and the
accident release prevention regulations, the risk management program
rule, on June 20, 1996 (61 FR 31668) (the ``RMP rule''). Together,
these two rules are codified as part 68 of title 40 of the CFR. On
January 6, 1998 (63 FR 640), EPA amended the listing requirements to
adopt provisions related to certain flammables that had previously been
stayed.
The list of regulated substances covers 77 acutely toxic substances
and 62 flammable gases and highly volatile flammable liquids. The
accidental release prevention regulations require stationary sources
with one or more processes with more than a threshold quantity of a
regulated substance to develop and implement a risk management program
that includes an offsite consequence analysis, a five-year accident
history for covered processes, a prevention program, and an emergency
response program. Sources must summarize this program and submit a risk
management plan (RMP) to a central location specified by EPA prior to
June 21, 1999. The risk management program rule includes a tiered
approach to requirements. Processes that pose low risk of offsite
consequences from a worst-case release are subject to minimal
requirements (Program 1). Processes in industry sectors that have
significant accident histories are required to implement the process
safety management (PSM) standard, which EPA adopted, with minor
changes, from the Occupational Safety and Health Administration's
(OSHA) PSM standard (29 CFR 1910.119) (Program 3). To eliminate
inconsistent requirements, EPA also requires processes already subject
to the OSHA PSM standard to implement Program 3. All other processes
are subject to a streamlined prevention program (Program 2). (Program
eligibility requirements are provided at 40 CFR 68.10.)
When EPA promulgated the risk management program rule, the Agency
stated that it intended to work toward electronic submission of RMPs.
The final rule provided that RMPs shall be submitted in a method and
format to a central location as specified by EPA prior to the
submission date. To provide advice to the Agency on deciding issues
related to electronic submission, the Accident Prevention Subcommittee
of the CAA Advisory Committee created the Electronic Submission
Workgroup in October 1996 to examine the technical and practical issues
associated with creating a national electronic repository of risk
management plans. The Workgroup was charged with recommending how the
regulated community should submit their risk management plans, and how
EPA, State and local governments, and the public should have access to
this information. The Workgroup included 35 representatives from State
and local government, industry, environmental and public interest
groups, and EPA. The Workgroup, with the approval of the Accident
Prevention Subcommittee, concluded its work in June of 1997 with a
Final Report. The Final Report, all meeting summaries and meeting
materials can be obtained from the EPA homepage (www.epa.gov/ceppo/acc-
pre.html) under ``Accident Prevention Subcommittee'' and the
``Electronic Submission Workgroup.''
Based on the Workgroup's recommendations, EPA is in the process of
developing two systems, a user-friendly PC-based submission system
(RMP*Submit<SUP>TM</SUP>) and a searchable database of RMPs, available
on the Internet (RMP*Submit<SUP>TM</SUP>). RMPs must be submitted
electronically (on diskette), with a provision for an ``electronic
waiver'' for sources that lack the resources to file electronically.
II. Discussion of Proposed Rule
The purpose of today's proposed amendments is to revise part 68 to:
<bullet> Reflect the new industrial classification system that the
U.S. government has adopted;
<bullet> Respond to recommendations on RMP data elements provided
by the Electronic Submission Workgroup and clarify other elements;
<bullet> Provide explicit requirements for the submission of
confidential business information; and
<bullet> Make technical corrections and clarifications to the rule.
This proposed rulemaking addresses only these subjects. The Agency
is not, by this proposal, reconsidering any aspects of part 68, except
as explicitly noted below. The proposed amendments in this rule address
the submission of RMP information to EPA; the amendments do not address
the means by which the public could access RMP information. EPA
discourages any comments not addressed to these specific amendments.
A. NAICS Codes
On January 1, 1997, the U.S. Government, in cooperation with the
governments of Canada and Mexico, adopted a new industrial
classification system, the North American Industrial Classification
System (NAICS) to replace the Standard Industrial Classification (SIC)
codes. Because the applicability of Program 3 is driven, in part, by
SIC codes and because part 68 requires the reporting of SIC codes in
the RMP, EPA proposes to revise the rule to reflect the new NAICS
codes.
[[Page 19218]]
Section 68.10(d)(1) provides that processes in the following four-
digit SIC codes are subject to Program 3 requirements (unless they are
eligible for Program 1): 2611 (pulp mills), 2812 (calor-alkali
manufacturing), 2819 (industrial inorganics, not elsewhere classified
(nec)), 2821 (plastics and resins), 2865 (cyclic crudes and
intermediates), 2869 (industrial organic chemicals, nec), 2873
(nitrogen fertilizers), 2879 (agricultural chemicals, nec), and
petroleum refineries (2911). As explained in the March 13, 1995,
supplemental notice (60 FR 13526) and June 20, 1996 (61 FR 31668),
final rule, these SIC codes were selected because these industrial
sectors have significant accident histories, based on data in EPA's
Accidental Release Information Program (ARIP) database and on data on
accidental releases involving flammables. In each case, a substantial
percentage of the sector (usually more than 20 percent) had reported
releases of regulated substances and many of those releases had impacts
(deaths, injuries, hospitalizations, evacuations, and shelterings). In
selecting NAICS codes, EPA has used the same criteria to the extent
possible; in some cases, the accident data for sectors are not detailed
enough to make it possible to allocate the accidents among the new
codes.
Five of the listed SIC codes have been assigned NAICS codes that
include all of the sources covered by the SIC codes and no others. EPA
is proposing to adopt these five NAICS codes in place of the SIC codes.
(NAICS codes are either five or six digits, depending on the degree to
which the sector is subdivided.)
SIC NAICS Sector
2812 325181 Alkalies and chlorine
2821 325211 Plastics and resins
2873 325311 Nitrogen fertilizer
2879 32532 Pesticide and other
agricultural chemicals
2911 32411 Petroleum refineries
The remaining four SIC codes listed in Sec. 68.10 (2611, 2819,
2865, and 2869) have been subdivided as follows.
SIC Code 2611 (pulp mills) has been split into three NAICS codes:
32211 Pulp mills only
322121 Pulp mills producing paper (includes part of old 2621)
32213 Pulp mills producing paperboard (includes part of old 2631)
EPA has examined the accident history of these groups. Neither
paper mills (NAICS code 322121) nor paperboard mills (NAICS code 32213)
meet the accident history criteria EPA used to select industry sectors.
EPA, therefore, is proposing to list only NAICS code 32211.
SIC Code 2819 (industrial inorganics, nec) has been divided into
four NAICS codes:
325998 Activated carbon and charcoal, which has moved to miscellaneous
chemical products (old 2899)
331311 Alumina, moved to alumina refining in primary metals
manufacturing
325131 Inorganic dyes, moved to inorganic dyes and pigments (old 2816)
325188 Other, in ``all other inorganic chemical manufacturing''
Activated carbon and charcoal (NAICS code 325998) have been placed
in a sector with a very limited accident history. In addition, there
are no releases in the ARIP database that appear to be related to the
manufacture of these substances. Alumina refining (NAICS code 331311)
is a new NAICS code. Research indicates that alumina is produced at
approximately 19 locations; three of these companies reported releases,
but none were impact releases. There were no reported releases for dyes
(NAICS code 325131). Consequently, EPA is proposing to list only NAICS
code 325188, all other inorganic chemical manufacturing, as it includes
almost all of the releases that led to the original listing of SIC code
2819.
SIC Code 2865 (cyclic crudes and intermediates) has been split into
three NAICS codes:
32511 Aromatics have been combined with aliphatics from SIC code 2869
to form a new petrochemical manufacturing code
325132 Organic dyes and pigments is a new code
325192 Other covers the cyclic crude and intermediate manufacturing
Organic pigments are manufactured at about 30 locations. These
sources reported three releases, one of which was an impact release.
There were no reported releases from dye manufacturers. NAICS code
325132, therefore, does not meet the eligibility criteria. Although it
is difficult to determine with any certainty into which of the other
two NAICS codes the sources reporting releases in old SIC code 2865
will fall, both of these sectors have a significant accident history,
as demonstrated both by the ARIP data and by accidents involving
flammables, which are generally not reported in ARIP. EPA, therefore,
is proposing to list both NAICS codes 32511 (petrochemicals) and 325192
(other cyclic crude and intermediate manufacturing).
SIC Code 2869 (industrial organic chemicals) has been divided into
five NAICS codes:
32511 Aliphatics, joined with aromatics in petrochemical manufacturing
325188 Carbon bisulfide, moved to all other inorganic chemical
manufacturing
325193 Ethyl alcohol, a new separate code
32512 Fluorocarbon gases, moved to industrial gases with what used to
be SIC code 2813
325199 Other, moved to all other basic organic chemical manufacturing
with fatty acids from old SIC code 2899
As explained above, EPA is proposing to list NAICS codes 32511 and
325188, which draw sectors from SIC code 2869. Ethyl alcohol is
produced at approximately 27 locations, mostly from grains. Two of
these locations reported releases, one of which led to an evacuation.
This sector, therefore, does not meet the criteria and is not being
proposed for listing. Fluorocarbon gases are produced at about 15
locations; only one release was reported. These gases are being merged
into a sector with more than 500 sources that reported 21 releases, 4
with impacts. Neither fluorocarbon gases themselves nor the combined
sector meet the criteria and, therefore, EPA is not proposing them for
listing. As with SIC code 2865, it is difficult to determine from the
existing data whether the remaining sources in SIC code 2869 that
reported releases will be classified in petrochemicals or other basic
organic chemical manufacturing. Nonetheless, the release history of the
remaining sources for flammables and toxics is significant enough that
EPA is proposing to list both. EPA recognizes that including NAICS code
325199 will extend coverage to fatty acids, which were previously not
included. EPA, however, does not believe that the fatty acid processes
involve regulated substances, and, therefore, does not expect them to
be subject to the rule.
In summary, EPA is proposing to replace the list of nine SIC codes
with the following ten NAICS codes: 32211, 32411, 32511, 325181,
325188, 325192, 325199, 325211, 325311, and 32532. Some processes
originally subject to Program 3 because of the SIC codes would no
longer be subject to Program 3 on that basis. EPA expects that most of
the processes that were part of listed SIC codes, but are not in the
proposed list of NAICS codes, will either continue to be subject to
Program 3 because they are subject to OSHA PSM (e.g., fluorocarbon
gases) or are not subject to the rule at all because they do not
[[Page 19219]]
include regulated substances above the thresholds. In its review of the
NAICS codes, EPA also considered whether any newly created NAICS codes
might meet the accident criteria; no such codes were identified. For
the most part, manufacturing sectors have been assigned codes that
cover the same industries as were covered by the SIC code. (A full list
of the new NAICS codes and further information is available from the
U.S. Bureau of the Census, www.census.gov.)
At every point in part 68 where sources are required to report the
SIC code for a process (registration and both prevention programs), the
rule would instead be changed to require sources to report the NAICS
code for the process.
B. RMP Data Elements
1. New RMP Data Elements
The Electronic Submission Work Group recommended that EPA add three
mandatory data elements that it believed are important for the success
of RMP*Info<SUP>TM</SUP>. In addition, the group recommended that some
optional data elements be included in the final RMP format.
Consequently, EPA is proposing to add the following mandatory data
elements: The method and description for latitude and longitude, the
Title V permit number, and the percentage weight of regulated toxic
substances in mixtures reported in both the offsite consequence
analyses and accident history. EPA also is proposing to add the NAICS
code for the process that had the release to the five-year accident
history section.
a. Latitude/Longitude method and description. As a matter of Agency
policy, EPA requires that when latitude and longitude are reported, the
method of determining latitude/longitude be stated and a description of
what location the numbers represent (e.g., center of the site,
fenceline) be provided. The RMP*Submit<SUP>TM</SUP> will include check
lists that sources will be able to use to indicate the method and
location description.
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. Reliable
and consistent location identification data are critical to support the
Agency-wide development of environmental risk management strategies,
methodologies, and assessments. Documentation of the method and
description of the location will permit other users to evaluate whether
those coordinates can support secondary uses, thus addressing EPA data
sharing and integration objectives.
b. Title V permit number. Listing a Title V permit number will make
it easier for EPA, states, and local agencies to identify sources that
are also subject to Title V. Including this number will impose a
minimal burden on sources; those who have Title V permits will have
permit numbers readily available.
c. Percentage weight of a toxic substance in a mixture. The
percentage weight of a regulated toxic substance in a mixture would
provide useful information to those trying to understand how worst-case
and alternative release scenarios have been modeled. Released in their
pure forms, substances will generally travel greater distances before
the concentration falls below the toxic endpoint (toxic endpoints are
listed in Appendix A to 40 CFR part 68) than they will travel if the
substance is released as part of a mixture. Without reporting on
whether a substance was modeled as being released as part of a mixture,
users of the database may assume that a substance would be released in
its pure form. The distances reported for mixture releases would then
appear to be understated because they are likely to travel far less
than the distances that would be derived for the same substance
quantity released in its pure form. This information will make it
easier for users of the data to understand what a source has done
without needing to seek additional information from the source. On
accident history, it is important to know the physical state and
concentration of a substance that was released. With such data, it is
possible to determine whether certain concentrations pose a substantial
hazard to the public and to help validate models.
d. NAICS code. Including the NAICS code for the process that had a
release in the five-year accident history section will make it possible
for EPA and others to identify industry sectors that have specific
types of accidents and have a significant accident history. The ability
to search its ARIP database by SIC code made it possible for EPA to
identify industry sectors with significant accident histories. This
information is particularly important for the chemical industry and a
few other industry sectors where multiple NAICS codes may be
represented at the source.
2. Optional RMP Data Elements
In addition to proposed data elements that sources would be
required to report, the work group recommended that EPA include the
following data elements, on a optional basis:
a. Local Emergency Planning Committee (LEPC). A source would enter
its LEPC name (from a pick list tied to the source county and zip
code). The LEPC data element would provide a way for LEPCs to quickly
search all of the facilities in their jurisdiction. The LEPC data
element would also allow EPA to determine which LEPC(s) to notify when
it receives an updated RMP.
b. Source (or Parent Company) E-mail address. The source may want
to provide its E-mail address to make it easier for the public to send
an inquiry to the source. Including an E-mail address will aid
communication efforts between industry, local government, and
interested community members.
c. Source Homepage address. The source may want to provide
additional graphics and information on its homepage. The database could
either list the address as any other data element or set up a hyperlink
to the source homepage, depending on the technical issues involved with
the latter.
d. Phone number at the source for public inquiries. The source may
want to provide a phone number for public inquiries. Currently the RMP
data elements list the owner/operator and the emergency contact phone
numbers, but no other phone numbers. A source could enter the phone
number for their public liaison office or the technical contact who
filled out the RMP. This data element would provide sources another
option for directing public inquiries.
e. VPP status. In addition to the four optional data elements
recommended by the workgroup, EPA also plans to give sources an
opportunity to indicate whether they have achieved Star or Merit status
under OSHA's Voluntary Protection Program (VPP). These sources are
exempt from audits under Sec. 68.220(b)(2) and (b)(7). Including this
information will help implementing agencies as they develop audit
plans.
EPA seeks comments on whether these items should be included on the
form. EPA emphasizes that these items would be optional; a space would
be provided, but sources would not be required to complete the items.
EPA recognizes that many smaller sources will not have e-mail addresses
or home pages and, therefore, will leave these blank.
C. Clarification of Prevention Program Reporting
EPA is proposing to revise the language in Secs. 68.170 and 68.175
to clarify how prevention program
[[Page 19220]]
information must be reported. The definition of process, which EPA
adopted verbatim from the OSHA PSM standard, is very broad. EPA
believes it is important that its interpretation of process be
consistent with OSHA's. That interpretation, particularly when applied
to interconnected or co-located production and storage units, is so
inclusive that multiple production units and, in some cases, entire
sources will be considered to be a single process. OSHA and EPA have
always recognized that prevention program implementation is likely to
involve dividing these aggregated units into their components. For
example, because all units at petroleum refineries are usually
interconnected, they will count as a single process for threshold
determination, but each production unit will require a separate process
hazard analysis (PHA), different operating and maintenance procedures,
different process safety information, and different training. OSHA
included a PHA implementation schedule in its standard to recognize
that large sources, such as refineries and large chemical production
sources, needed time to conduct multiple PHAs even if the source is
technically a single process under the definition of process.
Throughout its part 68 rulemakings and associated economic
analyses, EPA has always considered that RMP reporting would be done
based on the units that require separate implementation of prevention
program elements, particularly the PHA and hazard review. In the
preamble to the final part 68 rule, EPA stated that large chemical
companies and refineries could be reporting on 30 or more processes (61
FR 31694). EPA's Economic Impact Analysis (EIA) for the part 68 rules
explicitly assumed that the chemical industry, refineries, utilities,
POTWs, and even drinking water systems would be implementing the
prevention program elements and reporting on multiple production and
storage units. In the case of the chemical industry and refineries, the
EIA assumed that data on up to 25 to 30 prevention programs would be
reported in the RMP.
To ensure that prevention program data are reported on the parts of
larger processes that require separate program implementation, EPA is
proposing to clarify the basis for prevention program reporting. The
rule would be revised to make it explicit that RMP data for both
Program 2 and Program 3 prevention programs would be submitted on each
part of the process for which a separate hazard review or PHA was
conducted. For example, a propane distribution source that conducted
one hazard review on its two storage tanks would submit data on one
prevention program. A refinery that conducted 25 PHAs on its 25
production units would submit information on 25 prevention programs.
Separate hazard reviews or PHAs means analyses that are conducted by
different people or at different times. This change is consistent with
EPA's original intention. EPA believes this approach also will be more
straightforward for sources. Reporting on processes that aggregate
multiple production and storage units would have required collecting
all of the data on individual prevention programs and merging them into
a single report, increasing the likelihood of errors.
Sources are still required to determine threshold quantity and
Program level using the definition of process; that is, if units are
considered to be interconnected or co-located, all of the regulated
substances in the aggregated units must be included in the threshold
determination. EPA is not proposing to change reporting on the
registration section of the RMP. Sources may report chemical
identities, quantities, NAICS codes, and Program levels by process even
if those processes represent multiple prevention programs. Sources may
elect to list the separate units in the registration section to
parallel their prevention programs, but they are not required to do so.
EPA is also proposing to drop the second sentence in paragraph (a)
of both Secs. 68.170 and 68.175. This sentence--``If 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''--does not impose a regulatory
requirement on sources, but is advisory in nature. At this time, the
RMP*Submit<SUP>TM</SUP> system is not being designed to allow sources
to enter prevention program data once and indicate to which reported
prevention programs the answers apply. Consequently, EPA is proposing
to remove this sentence.
The data required for the RMP are specified in Secs. 68.155-180. To
make a searchable database possible, some of the items will be required
to be reported from checklists, which are not in the rule. For example,
the rule requires that the source list the major hazards identified
during the hazard review or process hazard analysis; the RMP format
will provide a list of potential hazards that sources must use when
filing. During the process of developing the electronic format, some of
these checklists may change to provide more options for sources and to
ensure that the data give the needed information (e.g., on-site deaths
and injuries will be reported for employees/contractors, public
responders, and others). The current version of the draft format is
available at: http://www.epa.gov/ceppo/rules/dataelem.html or from the
EPCRA hotline.
D. Confidential Business Information (CBI)
Members of the Electronic Submission Work Group and others have
asked how EPA plans to handle information within the RMP that is
``confidential business information.'' Part 68 provides protection for
``classified'' information, but this applies only to Federal agencies
and their contractors. Part 68 does provide, in Sec. 68.210, that
information will be available to the public under CAA section 114(c),
which limits how the Administrator must handle certain confidential or
proprietary information.
In response to these questions and to clarify procedures for
submitting RMPs that contain confidential business information (CBI),
EPA is proposing to add two sections to the rule to govern CBI claims
with regard to RMP data. The rules governing CBI that already exist in
40 CFR part 2 will continue to provide the substantive criteria that
must be met to assert such claims. To qualify for CBI protection, the
substantive criteria set forth at 40 CFR 2.301 require that the data be
commercial or financial, that they not be available to the public
through other means, that the source take appropriate steps to prevent
disclosure, and that disclosure of the data would be likely to cause
substantial harm to the source's competitive position. In new
Sec. 68.151, EPA would provide a list of RMP data elements that are not
claimable as CBI and specify procedures and timing for submission of
claims and substantiation.
In the following paragraphs, EPA discusses those RMP data elements
that the Agency proposes are not CBI and are, therefore, not claimable
as such. EPA solicits comment on these assessments. EPA also notes that
certain of the data elements that would be claimable as CBI under the
proposed rule (release rate and release duration, among others) would
appear to be ``emission data'' and, therefore, not be CBI under 40 CFR
2.301, considering the Agency's existing policy regarding ``emission
data.'' See 56 FR 7042 (Feb. 21, 1991). EPA specifically requests
comment on the appropriateness of applying this policy to the RMP data
elements for purposes of the final rule.
[[Page 19221]]
EPA is proposing that the following Registration data elements
could not be claimed as CBI:
<bullet> Source identification information (name, address,
telephone numbers, Dun & Bradstreet numbers, emergency contact data);
<bullet> Name or title of the person responsible for risk
management program implementation;
<bullet> The Program level and NAICS codes of the processes
registered;
<bullet> Number of employees;
<bullet> Whether the source is subject to other rules; and
<bullet> Date of the last safety inspection.
These data elements are generally available from other filings with
Federal, state, or local agencies, and from other sources and,
therefore, do not meet the criteria for CBI claims. Source
identification data and NAICS codes are filed with EPA, states, and
local entities and are publicly available under EPCRA, among other
requirements, and are available from many other public sources,
including industrial directories. Number of employees is submitted to
the Census Bureau and is available for many facilities from industrial
directories. Whether a source is subject to other rules and the date of
safety inspections can be obtained from public agencies and are
unlikely to affect a source's competitive position. The name or title
of the person responsible for program implementation will not be
available elsewhere, but would not affect a source's competitive
position. The program level of the process also is not available
elsewhere, but, by itself, reveals no confidential business
information. Therefore, none of these elements is eligible for
protection.
EPA is proposing that the following offsite consequence analysis
data could not be claimed as CBI:
<bullet> Basis of the results (model used).
<bullet> Topography.
<bullet> Distance to an endpoint; and
<bullet> Public and environmental receptors (including population
potentially affected) within the distance to the endpoint.
EPA believes that certain offsite consequence analysis data may be
eligible for CBI protection, specifically, chemical identity and
quantity released. Because of the ability to derive chemical identity
and quantity released from other data included in the offsite
consequence analysis (e.g., release rate and duration), EPA is also
proposing that sources may claim CBI for those other data elements.
However, EPA is proposing that some offsite consequence analysis items
are not CBI. Without the information on the chemical identity,
quantity, release rate, and duration, the model used and topography
could not be used to derive the chemical identity or quantity and,
therefore, by themselves provide no confidential information. Further,
EPA believes distance to an endpoint and public and environmental
receptors are of most interest to the public, and, their disclosure
reveals no source business data.
EPA is proposing that CBI treatment may not be claimed for any
accident history data. The date, time, and duration of the release, the
chemicals and quantities released, type of event, source, and impacts
will be reported to EPA or other agencies under existing laws before
the RMP is submitted; more importantly, databases with this information
are publicly available. Moreover, the initiating event and contributing
factors are generic enough that reporting them will reveal no
confidential business information.
EPA is proposing that all dates reported for prevention program
elements could not be claimed as CBI. These dates reveal no
confidential business information. They are merely evidence of having
complied with EPA rules and would not affect a source's competitive
position. Similarly, because all emergency response information must be
available to public responders and because it reveals no data that
would affect a source's competitive position, EPA proposes that it be
excluded from CBI claims.
EPA believes that only a limited number of sources, primarily
chemical manufacturers, will have a basis for claiming the remaining
RMP data elements as CBI. EPA's justifications for its specific CBI
findings appear in an appendix to this preamble. An even more detailed
analysis of all RMP data elements and proposed CBI determinations is
available in the docket (see the ADDRESSES section).
To assert a CBI claim, a source would be required to submit to EPA
its RMP in two versions: (1) a redacted (``sanitized''), electronic
version, which would become part of the RMP database, and (2) an
unredacted (``unsanitized''), paper copy. The redacted version would
identify each data element, except chemical identity, claimed as CBI by
entering ``CBI'' into the data field or leaving the field blank. For
chemical identity, the source would be required to provide a generic
chemical category or class name in lieu of the actual chemical name. At
the time of RMP submission, the source would also be required to submit
to EPA its substantiation for each item claimed. Information contained
in a substantiation may be claimed as CBI in accordance with 40 CFR
2.301. If all or part of the substantiation is claimed as CBI, a
redacted version of substantiation must also be filed with EPA. This
approach of submitting dual substantiations is the same as that used
for trade secret claims filed under the Emergency Planning and
Community Right to Know Act of 1986 (EPCRA). Review of these CBI claims
will be conducted in accordance with 40 CFR part 2 and the present
rulemaking.
EPA will make the redacted (sanitized) versions of the RMPs
available to the public, States, and local governments by including
them in RMP*Info<SUP>TM</SUP>. Should States or LEPCs want to obtain
the unsanitized version from EPA, they may do so by filing a written
request with EPA for the information. EPA will respond to such requests
consistent with 40 CFR 2.301(h)(3), which governs disclosures to States
and local agencies having duties or responsibilities under the Clean
Air Act and its implementing regulations. A State or local government
may, under this provision, obtain CBI from EPA under two circumstances:
(1) it provides EPA a written opinion from its chief legal officer or
counsel stating that the State or local agency has the authority under
applicable State or local law to compel the business to disclose the
information directly; or (2) the businesses whose information is
disclosed are informed and the State or local government has shown to
an EPA legal office's satisfaction that its use and 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.''
Notwithstanding the foregoing process, State and local governments
may always obtain the unsanitized versions of the RMP by enacting
regulations to require sources in their jurisdiction to submit the CBI
directly to State and local entities. EPA encourages those State and
local authorities wishing to receive the unsanitized RMPs to use their
own authority to require such information, rather than seeking it under
EPA's disclosure regulations.
EPA is also proposing to amend part 68 by adding Sec. 68.152. This
section would reference the substantive criteria set forth at 40 CFR
2.301 and require sources to claim, and substantiate, CBI at the time
RMP data are submitted. Failure to do so would be considered a waiver
of CBI by the source, and the data would be disclosed to the public and
made part of the RMP*Info database. Section 68.152 also would require
the source's owner, operator, or
[[Page 19222]]
senior official to certify the accuracy of its CBI substantiation
claims. Adopting the Sec. 2.301 criteria without change ensures that
there will be no conflicting interpretations between existing CBI
criteria and the proposed set of rules. Because the existing CBI
criteria are used under many environmental statutes, they are familiar
to industry.
It should be noted that information properly claimed as CBI in
accordance with this regulation may nevertheless be disclosed to the
public pursuant to the community right-to-know provisions of other
environmental laws. Under EPCRA section 303, local emergency planning
committees (LEPCs) must prepare and make publicly available
comprehensive emergency response plans for their jurisdictions. These
plans must address, among other things, facilities that are subject to
the emergency planning and notification requirements of EPCRA sections
302 and 303 (``EPCRA Planning facilities''). Accordingly, section
303(d)(3) permits an LEPC to compel an owner or operator of an EPCRA
Planning facility to provide any information (except trade secret
information properly withheld pursuant to section 322 of EPCRA)
necessary to enable the LEPC to develop and implement the emergency
plan. An EPCRA Planning facility which receives from its LEPC a proper
section 303(d)(3) request for information contained in its RMP must
therefore provide the information promptly, irrespective of a valid CBI
claim under this rule. Similarly, a proper CBI claim under this part
will bind only the Administrator and will not prevent an LEPC from
disclosing certain confidential information collected under EPCRA
section 303(d)(3), because information included in an emergency plan
must be made public under EPCRA section 324(a) and because State or
local laws may require the LEPC to make such information public.
Furthermore, once that information is requested by the LEPC and
available to the public, that information would no longer be subject to
CBI protection under Federal CBI rules.
E. Other Changes
When part 68 was promulgated, Sec. 68.79(a), which was adopted from
the OSHA PSM standard, 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,
with OSHA paragraphs handled as separate sections. Rather than
referencing ``this section,'' the paragraph should have referenced the
``subpart.'' The section would be changed to correct this error and
ensure that the compliance audit covers the entire prevention program.
Under Sec. 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. EPA is proposing to revise the rule to
include both the plan and response activities.
III. Section-by-Section Discussion of the Proposed Rule
In Section 68.3, Definitions, the definition of SIC would be
removed and the definition of NAICS added.
Section 68.10, Applicability, would be revised to replace the SIC
codes with NAICS codes, as discussed above.
Section 68.42, Five-Year Accident History, would be revised to
require the percentage concentration by weight of regulated toxic
substances released in a mixture and NAICS code for the process that
had the release.
Section 68.79, Compliance Audits, the word ``section'' in paragraph
(a) would be replaced by ``subpart.''
Section 68.150, Submission, would be revised by adding a paragraph
to state that procedures for asserting CBI claims and determining the
sufficiency of such claims are provided in new Secs. 68.151 and 68.152
and in 40 CFR part 2.
Section 68.151 would be added, as discussed above.
Section 68.152 would be added, as discussed above.
Section 68.160, Registration, would be revised by adding the
requirements for the method and description of latitude and longitude,
replacing SIC codes with NAICS codes, and adding the requirement to
report a Title V permit number, when applicable.
Section 68.165, Offsite Consequence Analysis, would be revised by
adding the requirement that the percentage weight of a regulated toxic
substance in a mixture be reported.
Section 68.170, Prevention Program/Program 2 would be revised to
clarify the basis for reporting to make it clear that RMP data for
prevention programs must be submitted for each part of the process for
which a separate hazard review is conducted and to replace SIC codes
with NAICS codes.
Section 68.175, Prevention Program/Program 3 would be revised to
clarify the basis for reporting to make it clear that RMP data for
prevention programs must be submitted for each part of the process for
which a separate PHA is conducted and to replace SIC codes with NAICS
codes.
Section 68.180 would be revised to clarify paragraph (b) as
discussed above.
Section 68.210, Availability of information to the public, would be
revised to include references to Secs. 68.150 through 68.152 and to
replace the reference to CAA section 114<Copyright> with a reference to
40 CFR part 2.
IV. 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 proposed 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 standards and their preambles, the
contents of the docket will serve as the record in the case of judicial
review. (See section 307(d)(7)(A) of the Act.)
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 as
described below). 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 a.m. to
4 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.
Electronic comments can be sent directly to EPA's Air and Radiation
Docket and Information Center at: ``A-and-R-Docket@epamail.epa.gov''.
Electronic comments must be submitted as an ASCII file avoiding the use
of special characters and any form of encryption. Comments and data
will also be accepted on disks in WordPerfect in 6.1 file format or
ASCII file format. All comments and data in electronic form must be
identified by the docket number A-98-08. Electronic comments on this
proposed rule may be filed online at many Federal Depository Libraries.
B. Public Hearing and Written Comments
A public hearing will be held, if requested, to discuss the
proposed amendments in accordance with section 307(d)(5) of the Clean
Air Act. If a public hearing is requested and held,
[[Page 19223]]
the EPA will ask clarifying questions during the oral presentation but
will not respond to the presentations or comments. Written statements
and supporting information will be considered with equivalent weight as
any oral statement and supporting information subsequently presented at
a public hearing, if held. Persons wishing to present oral testimony or
to inquire as to whether a hearing is to be held should contact the EPA
(see ADDRESSES). To provide an opportunity for all who may wish to
speak, oral presentations will be limited to 15 minutes each.
Any member of the public may file a written statement on or before
June 1, 1998. Written statements should be addressed to the Air and
Radiation Docket and Information Center (see ADDRESSES), and refer to
Docket No. A-98-08. A verbatim transcript of the hearing and written
statements will be placed in the docket and be available for public
inspection and copying, or mailed upon request, at the Air and
Radiation Docket and Information Center.
C. E.O. 12866
Under Executive Order (E.O.) 12866, EPA must determine whether a
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;
(2) Create a serious inconsistency or otherwise interfere 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.O.
It has been determined that today's proposed rule is not a
``significant regulatory action'' under the terms of E.O. 12866 and is,
therefore, not subject to OMB review.
D. E.O. 12875
To reduce the burden of Federal regulations on States and small
governments, President Clinton issued Executive Order 12875 on October
26, 1993, entitled ``Enhancing the Intergovernmental Partnership.''
Under Executive Order 12875, EPA may not issue a regulation which is
not required by statute unless the Federal Government provides the
necessary funds to pay the direct costs incurred by the State and small
governments or EPA provides to the Office of Management and Budget a
description of the prior consultation and communications the agency has
had with representatives of State and small governments and statement
supporting the need to issue the regulation. In addition, Executive
Order 12875 requires EPA to develop an effective process permitting
elected and other representatives of State and small governments ``to
provide meaningful and timely input in the development of regulatory
proposals containing significant unfunded mandates.''
The present proposed rule satisfies the requirements of Executive
Order 12875 because it is required by statute and because it does not
contain a significant unfunded mandate. Section 112(r) of the Clean Air
Act requires that facilities submit risk management plans containing
certain essential information. This rulemaking, together with the rule
it amends, implements that statutory command. In addition, this rule
contains no mandate binding upon State or small governments.
Nevertheless, EPA has taken independent efforts to involve such
entities in this regulatory effort; specifically, much of the rule
responds to issues raised by the Electronic Submission Workgroup
discussed above, which included State and local government
stakeholders.
E. Regulatory Flexibility Act
In accordance with the Regulatory Flexibility Act of 1980, as
amended by the Small Business Regulatory Enforcement Fairness Act,
Federal agencies must evaluate the impacts of rules on small entities.
EPA has examined this proposed rule's potential effects on small
entities as required. EPA has determined that this proposed rule will
have a negligible effect on small entities because the proposed rule
would, if promulgated, only impose real costs on those small businesses
that claim CBI when submitting the RMP. 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. Therefore, I
certify that today's proposed rule will not have a significant economic
effect on a substantial number of small entities. For a more detailed
analysis of the small entity impacts of this proposed rulemaking, see
Document Number II-B-03, available in the docket for this rulemaking
(see ADDRESSES section).
F. Paperwork Reduction Act
The information collection requirements in this proposed 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. 1656.04) and a copy may be obtained from Sandy Farmer, OPPE
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 submission of the RMP is mandated by section 112(r)(7) of the
CAA and demonstrates compliance with part 68. The information collected
also will be made available to state and local governments and the
public to enhance their preparedness, response, and prevention
activities. Information in the RMP may be claimed as confidential
business information under 40 CFR part 2 and part 68.
EPA estimates that the new data elements will impose little burden
on sources; 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 it applies. Percentage weight of a toxic
substance in a mixture is usually provided by the supplier of the
mixture. The NAICS code is simply a change from one code to another;
sources will have determined their NAICS codes for the 1997 Census of
Manufacturers prior to RMP submission.
The public reporting burden for CBI claims is estimated to be 15
hours for chemical manufacturers with Program 3 processes. EPA
estimates that approximately 20 percent of the 4000 chemical
manufacturers may file CBI claims (800 sources). The total annual
public reporting burden for filing CBI claims is estimated to be about
12,000 hours over three years, or an annual burden of 4,000 hours.
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,
[[Page 19224]]
install, and utilize technology and systems 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 not 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.
Comments are requested on the Agency's need for this information,
the accuracy of the provided burden estimates, and any suggested
methods for minimizing respondent burden, including through the use of
automated collection techniques. Send comments on the ICR to the
Director, OPPE Regulatory Information Division, 2137, U.S.
Environmental Protection Agency, 401 M Street SW, Washington D.C.
20460; and to the Office of Information and Regulatory Affairs, Office
of Management and Budget, Washington, D.C. 20503, ``Attn: Desk Officer
for EPA.'' Include the ICR number in any correspondence. Since OMB is
required to make a decision concerning the ICR between 30 and 60 days
after April 17, 1998, a comment to OMB is best assured of having its
full effect if OMB receives it by May 18, 1998. The final rule will
respond to any OMB and public comments on the information collection
requirements contained in this proposed notice.
G. Unfunded Mandates
Section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded
Mandates Act''), signed into law on March 22, 1995 (109 Stat. 48),
requires that the Agency prepare a statement, including a cost-benefit
analysis, before promulgating a rule that includes a Federal mandate
that may result in expenditure by State, local, and tribal governments,
in the aggregate, or by the private sector, of $100 million or more in
any one year. Where the rule might significantly affect small
governments, section 203 requires the Agency to establish a plan for
obtaining input from small governments and informing, educating, and
advising them on compliance with the requirements of the rule.
Under section 205 of the Unfunded Mandates Act, the Agency must
identify and consider a reasonable number of regulatory alternatives
before promulgating a rule for which a statement must be prepared. The
Agency must select from those alternatives the least costly, most cost-
effective, or least burdensome alternative for State, local, and tribal
governments and the private sector that achieves the objectives of the
rule, unless the Agency explains why this alternative is not selected
or unless the selection of this alternative is inconsistent with law.
The EPA has determined that the total nationwide capital cost for
these rule amendments is approximately zero and the annual nationwide
cost for these amendments is less than $1 million. Because this rule is
estimated to result in the expenditure by State and local governments,
in the aggregate, or by the private sector of less than $100 million in
any one year, the Agency has not prepared a statement or engaged in an
alternatives analysis pursuant to sections 202 and 205 of the Unfunded
Mandates Act.
Because small governments will not be significantly or uniquely
affected by this rule, the Agency is not required to develop a plan
with regard to small governments in accordance with section 203 of the
Unfunded Mandates Act.
H. 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, etc.) 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 proposed regulatory action does not involve any technical
standards that would require Agency consideration of voluntary
consensus standards pursuant to section 12(d) of the NTTAA. EPA invites
public comment on this analysis.
Appendix to Preamble--Data Elements That May Not Be Claimed As CBI
------------------------------------------------------------------------
Rule element Comment
------------------------------------------------------------------------
68.160(b)(1). Stationary source name, This information is filed with
street, city, county, state, zip code, EPA and other agencies under
latitude, and longitude; 68.160(b)(2) other regulations and is made
Stationary source Dun and Bradstreet available to the public and,
number; 68.160(b)(3) Name and Dun and therefore, does not meet the
Bradstreet number of the corporate criteria for CBI claims. It is
parent company; 68.160(b)(4) The name, also available in business and
telephone number, and mailing address other directories.
of the owner/operator.
68.160(b)(5) The name and title of the This information provides no
person or position with overall information that would affect
responsibility for RMP elements and a source's competitive
implementation. position.
68.160(b)(6) The name, title, telephone This information is filed with
number, and 24-hour telephone number state and local agencies under
of the emergency contact. EPCRA and is made available to
the public and, therefore,
does not meet the criteria for
CBI claims.
68.160(b)(7) Program level and NAICS This information provides no
code. information that would affect
a source's competitive
position.
68.160(b)(8) The stationary source EPA This information provides no
identifier. information that would affect
a source's competitive
position.
68.160(b)(9) The number of full time This information is available
employees. for many sources from public
directories. This information
provides no information that
would affect a source's
competitive position.
68.160(b)(10) Whether the source is This information provides no
subject to 29 CFR 1910.119. information that would affect
a source's competitive
position.
[[Page 19225]]
68.160(b)(11) Whether the source is Sources are required to notify
subject to 40 CFR part 355. 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.
68.160(b)(12) Whether the source has a This information will be known
CAA Title V operating permit. to state and federal air
agencies and is available to
the public and, therefore,
does not meet the criteria for
CBI claims.
68.160(b)(13) The date of the last This information provides no
safety inspection and identity of the information that would affect
inspecting agency. a source's competitive
position.
68.165(b)(3) Basis of the results (give Without the chemical name and
model name if used). quantity, this reveals no
business information.
68.165(b)(9) Topography (toxics only).. Without the chemical name and
quantity, this reveals no
business information.
68.165(b)(10) Distance to an endpoint.. By itself, this information
provides no confidential
information. Other elements
that would reveal chemical
identity or quantity may be
claimed as CBI.
68.165(b)(11) Public and environmental By itself, this information
receptors within the distance. provides no confidential
information. Other elements
that would reveal chemical
identity or quantity may be
claimed as CBI.
68.168 Five-year accident history...... 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.
68.170(b), (d), (e)(1), and (f)-(k); NAICS codes and the prevention
68.175(b), (d), (e)(1), and (f)-(p); program compliance dates and
NAICS code, prevention program information provide no
compliance dates and information. information that would affect
a source's competitive
position.
68.180 Emergency response program...... 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: April 9, 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 proposed to
be 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), 7601(a)(1), 7661-7661f.
2. Section 68.3 is proposed to be amended by removing the
definition of SIC and by adding in alphabetical order the definition
for NAICS to read as follows:
Sec. 68.3 Definitions.
* * * * *
NAICS means North American Industrial Classification System.
* * * * *
3. Section 68.10 is proposed to be amended by revising paragraph
(d)(1) to read as follows:
Sec. 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 proposed to be 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:
Sec. 68.42 Five-year accident history.
* * * * *
(b) * * *
(3) Estimated quantity released in pounds and, for mixtures of
regulated toxic substances, percentage concentration by weight of the
released regulated substance in the mixture;
(4) NAICS code for the process;
* * * * *
5. Section 68.79 is proposed to be amended by revising paragraph
(a) to read as follows:
Sec. 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 proposed to be amended by adding paragraph (e)
to read as follows:
Sec. 68.150 Submission.
* * * * *
(e) Procedures for asserting and determining that some of the
information submitted in the RMP is entitled to protection as
confidential business information are set forth in Secs. 68.151 and
68.152 and in 40 CFR part 2.
7. Section 68.151 is proposed to be added to read as follows:
Sec. 68.151 Assertion of claims of confidential business information.
(a) Except as provided in paragraph (b) of this section, a claim of
confidential business information may be made for any data elements
that meet the criteria provided in 40 CFR 2.301.
(b) Notwithstanding the procedures specified in 40 CFR part 2, the
following data elements shall not be claimed as confidential business
information for the purposes of complying with this part:
(1) Registration data set forth in Sec. 68.160(b)(1) through (b)(6)
and (b)(8) through (b)(13) and NAICS code and Program level of the
process set forth in Sec. 68.160(b)(7);
(2) Offsite consequence analysis set forth in Sec. 68.165(b)(3),
(b)(9), (b)(10) and (b)(11);
(3) Accident history data set forth in Sec. 68.168;
[[Page 19226]]
(4) Prevention program data set forth in Sec. 68.170(b), (d),
(e)(1), (f) through (k);
(5) Prevention program data set forth in Sec. 68.175(b), (d),
(e)(1), (f) through (p);
(6) Emergency response program data set forth in Sec. 68.180.
(c) Notwithstanding the procedures specified in 40 CFR part 2, to
assert a claim that one or more data elements are entitled to
protection as confidential business information, the owner or operator
shall submit to EPA the following:
(1) An unsanitized (unredacted) paper copy of the RMP that clearly
identifies each data element that is being claimed as confidential
business information;
(2) A sanitized (redacted) copy of the RMP that shall be identical
to the unsanitized copy of the RMP except that the submitter shall
replace each data element, except chemical identity, claimed as
confidential business information with the notation ``CBI'' or a blank
field. For chemical identities claimed as CBI, the submitter shall
substitute a generic category or class name; and
(3) At the time of submission of the RMP, a sanitized and
unsanitized document substantiating each claim of confidential business
information.
8. Section 68.152 is proposed to be added to read as follows:
Sec. 68.152 Substantiating claims of confidential business
information.
(a) Claims of confidential business information must be
substantiated by providing documentation that demonstrates that the
information meets the substantive criteria set forth in 40 CFR 2.301.
(b) The submitter may claim as confidential information submitted
as part of the substantiation. To claim materials as confidential, the
submitter shall clearly designate those portions of the substantiation
to be claimed as confidential by marking them as confidential business
information. Information not so marked will be treated as public and
may be disclosed without notice to the submitter.
(c) The owner, operator, or senior official with management
responsibility 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 substantiation
claimed as confidential business information would, if disclosed,
reveal trade secrets or other confidential business information.
9. Section 68.160 is proposed to be amended by revising paragraphs
(b)(1), (b)(7), and (b)(12) to read as follows:
Sec. 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 NAICS code of 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
* * * * *
10. Section 68.165 is proposed to be amended by revising paragraph
(b) to read as follows:
Sec. 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 mixture (toxics only);
(3) Physical state (toxics only);
(4) Basis of results (give model name);
(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.
11. Section 68.170 is proposed to be amended by revising paragraphs
(a) and (b) to read as follows:
Sec. 68.170 Prevention program/Program 2.
(a) For each part of a Program 2 process for which a separate
hazard review was conducted, the owner or operator shall provide in the
RMP the information indicated in paragraphs (b) through (k) of this
section.
(b) The NAICS code for the part of the process.
* * * * *
12. Section 68.175 is proposed to be amended by revising paragraphs
(a) and (b) to read as follows:
Sec. 68.175 Prevention program/Program 3.
(a) For each part of a Program 3 process for which a separate
process hazard analysis was conducted, the owner or operator shall
provide in the RMP the information indicated in paragraphs (b) through
(p) of this section.
(b) The NAICS code for the part of the process.
* * * * *
13. Section 68.180 is proposed to be amended by revising paragraph
(b) to read as follows:
Sec. 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 or
the emergency response plan is coordinated.
* * * * *
14. Section 68.210 is proposed to be amended by revising paragraph
(a) to read as follows:
Sec. 68.210 Availability of information to the public.
(a) The RMP required under subpart G of this part shall be
available to the public except as provided in Secs. 68.150 through
68.152 and 40 CFR part 2.
* * * * *
[FR Doc. 98-10145 Filed 4-16-98; 8:45 am]
BILLING CODE 6560-50-P