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Accidental Release Prevention Requirements; Risk Management Programs Under the Clean Air Act Section 112(r)(7); Distribution of Off-Site Consequence Analysis Information
Related Material
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: April 27, 2000 (Volume 65, Number 82)]
[Proposed Rules]
[Page 24833-24848]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27ap00-20]
[[Page 24833]]
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Part VII
Environmental Protection Agency
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Department of Justice
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40 CFR Chapter IV
Accidental Release Prevention Requirements; Risk Management Programs
Under the Clean Air Section 112(r)(7); Distribution of Off-Site
Consequence Analysis Information; Proposed Rule
[[Page 24834]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Chapter IV
[FRL-6584-7]
RIN 2050-AE80
DEPARTMENT OF JUSTICE
40 CFR Chapter IV
[AG Order No. 2299-2000]
RIN 1105-AA70
Accidental Release Prevention Requirements; Risk Management
Programs Under the Clean Air Act Section 112(r)(7); Distribution of
Off-Site Consequence Analysis Information
AGENCIES: Environmental Protection Agency and Department of Justice.
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) and the Department
of Justice (DOJ) are proposing a rule that would provide for access to
information concerning the potential off-site consequences of
hypothetical accidental chemical releases from industrial facilities.
Under section 112(r) of the Clean Air Act, facilities handling large
amounts of extremely hazardous chemicals are required to include this
information in risk management plans which are submitted to EPA. As
required by the Chemical Safety Information, Site Security and Fuels
Regulatory Relief Act, the proposed rule would provide for access by
the members of the public and government officials to this information
in ways that are designed to minimize the likelihood of accidental
releases, the risk to national security associated with posting the
information on the Internet, and the likelihood of harm to public
health and welfare.
DATES: Comments: Comments on the proposed rule must be received by June
8, 2000. Hearings: A public hearing to discuss this proposed rule will
be held on May 9, 2000, at 9 a.m.
ADDRESSES: Docket and Comments. Comments should be mailed to:
Environmental Protection Agency, Office of Air and Radiation, Docket
and Information Center, Ariel Rios Building, M6102, 1200 Pennsylvania
Avenue, NW, Washington DC, 20460, Attn: Docket No. A-2000-20. By
Federal Express or Courier: Waterside Mall, Room M1500, 401 M Street,
S.W., Washington DC, 20460, Attn: Docket No. A-2000-20. Comments may be
submitted on a disk in Wordperfect or Word formats. Please submit
comments and any written testimony prepared for the public hearing in
triplicate. Supporting information used to develop these proposed
regulations is available for public inspection and copying from 8:00
a.m. to 5:30 p.m., Monday through Friday (except government holidays),
at EPA's Air Docket at Waterside Mall, Room 1500, 401 M Street, S.W.,
Washington, DC 20460. A reasonable fee may be charged for copying. The
assessments upon which this proposed rule is based also are available
on the Internet at www.usdoj.gov and www.epa.gov/ceppo.
Hearings: The public hearing will be held at the EPA Auditorium at
Waterside Mall, 401 M Street, S.W., Washington, DC 20460. People who
want to testify at this hearing should call John Ferris, (202) 260-
4043, or Vanessa Rodriguez, (202) 260-7913.
FOR FURTHER INFORMATION CONTACT: Brenda Sue Thornton, Trial Attorney,
Criminal Division, Terrorism and Violent Crime Section, Department of
Justice, 601 D Street, N.W., Room 6500, Washington, DC 20530, (202)
616-5210; John Ferris, Chemical Engineer, (202) 260-4043, or Vanessa
Rodriguez, Chemical Engineer, (202) 260-7913, Chemical Emergency
Preparedness and Prevention Office, Environmental Protection Agency
(5104),1200 Pennsylvania Avenue, N.W., Washington, DC 20460; 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:
Table of Contents
I. Introduction
A. Background
B. What is Reported in an RMP
1. In General
2. OCA Data Elements in Sections 2 Through 5 of RMPs
C. The Passage of CSISSFRRA
D. What CSISSFRRA Does
E. The Delegation to DOJ and EPA
II. The Assessments
A. The Risk Assessment
B. The Benefit Assessment
III. The Proposal
A. Public Access to OCA Information
1. Access to Paper Copies of OCA Information
2. Internet Access to Selected OCA Information
3. Risk Indicator System
4. Enhanced Access to Local OCA Information
5. Additional Information on Chemical Accident Risk
B. Access to OCA Information by Government Officials
IV. Request for Comments
V. Judicial Review
VI. Administrative Requirements
A. Docket
B. Executive Order 12866
C. Executive Order 12988
D. Executive Order 13045
E. Executive Order 13084
F. Executive Order 13132
G. Regulatory Flexibility Act
H. Paperwork Reduction Act
I. Unfunded Mandates Reform Act of 1995
J. Small Business Regulatory Enforcement Fairness Act of 1996
I. Introduction
A. Background
The federal government's efforts to prevent and mitigate chemical
accidents have come largely in the wake of the 1984 chemical release in
Bhopal, India, that killed thousands of people and injured hundreds of
thousands more. Congress responded to the threat of chemical accidents
in this country by enacting several pieces of legislation, including
section 112(r) of the Clean Air Act (CAA), 42 U.S.C. 7412(r). In that
section, Congress established a general duty on industrial facilities
handling any extremely hazardous chemicals to do so safely (CAA section
112(r)(1)), and required EPA to establish a regulatory program to
ensure that facilities that pose the greatest risk develop and
implement a risk management program to detect and prevent or minimize
accidental chemical releases (CAA section 112(r)(7)). Congress further
directed that facilities submit to EPA risk management plans (RMPs)
summarizing their risk management programs and including information
about the potential effects on the public and environment of
hypothetical worst-case and alternative scenario releases (CAA section
112(r)(7)(B)(ii)). Congress also provided that the RMPs shall be
available to the public (CAA section 112(r)(7)(B)(iii)).
In accordance with CAA section 112(r), EPA issued a rule in 1994
listing the most potentially hazardous toxic and flammable chemicals
and establishing a threshold of concern for each (59 FR 4478, January
31, 1994) (the ``List rule''). In 1996, EPA issued a rule requiring
every facility with more than a threshold quantity of a listed chemical
to develop and implement an accident prevention program based on an
assessment of the hazards at that facility (61 FR 31668, June 20, 1996)
(the ``RMP rule''). As required by CAA section 112(r), EPA specified in
the RMP rule that the hazard assessment include an analysis of the
potential consequences of worst-case and alternative scenario
[[Page 24835]]
chemical releases, and that the results of the off-site consequence
analysis (OCA) information be reported in the facility's RMP. To date,
approximately 15,000 facilities have submitted RMPs to EPA. (The list
and RMP rules are codified as the Chemical Accident Prevention
Provisions at 40 CFR part 68.)
B. What is Reported in an RMP
1. In General
An RMP is intended to provide information about the risk a facility
poses to the surrounding community and to summarize the facility's
program to manage that risk. Each RMP consists of nine sections and
contains an executive summary, which is a prose description of a
facility's risk management program, including a ``brief description''
of the potential off-site consequences of one or more hypothetical
accidental releases from the facility. The rest of the data in the RMP
generally consists of yes/no, check-off box, and numerical answers to
standard questions. There are additional areas where facilities may
include prose explanations for various entries, but (with the exception
of the executive summary) these are optional. This format, while
allowing the data to be easily submitted, compiled, and managed in
electronic form, generally precludes facilities from submitting
detailed information. More information on the content and form of RMPs
is available at the CEPPO website (www.epa.gov/ceppo) and in the
assessment prepared by EPA for this rule, which is available in the
rulemaking docket.
2. OCA Data Elements in Sections 2 Through 5 of RMPs
For each covered process at a facility, the facility's RMP will
contain the results of off-site consequence analyses for one or more
hypothetical accidental worst-case and/or alternative release
scenarios. Worst-case scenarios assume the release of the greatest
amount of a regulated substance held in a single vessel or pipe under
specified ambient and process conditions, taking into account
administrative controls that limit the maximum quantity of the release
and the effects of any passive mitigation features such as dikes or
berms. Alternative release scenarios assume a release that is more
likely to occur than the worst case, using release parameters chosen by
the facility owner as appropriate for the scenario, and accounting for
both passive and active mitigation features. The data elements
comprising the OCA information for these scenarios are reported in
sections 2 through 5 of the RMP. For toxic chemicals, sections 2 and 3
contain data on worst-case scenarios and alternative scenarios,
respectively. For flammable chemicals, sections 4 and 5 report data on
worst-case scenarios and alternative scenarios, respectively. A list of
the data elements appears in Table A-1.
Table A-1.--Data Reported in OCA Sections of an RMP
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RMP sections Data elements
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2.1, 2.2, 3.1, 3.2, 4.1, 5.1..................................... Chemical name, percent concentration, and
physical state.
2.3, 3.3, 4.2, 5.2............................................... Dispersion model used to conduct the analysis
(e.g., ``lookup'' table, RMP*Comp software).
2.4, 3.4, 4.3, 5.3............................................... Release scenario (e.g., gas leak, liquid
spill and vaporization, pipe leak, etc.)
4.5, 5.5......................................................... Consequence endpoint assumed (e.g., explosion
over pressure, radiant heat level)
(flammable scenarios only; toxic endpoints
are mandated by rule).
2.5, 2.6, 2.7, 3.5, 3.6, 3.7, 4.4, 5.4........................... Quantity released, release rate, and release
duration (for worst-case, release rate and
release duration are specified by rule).
2.8, 3.8......................................................... Wind speed (for worst-case, must be 1.5
meters/sec unless facility has other data).
2.9, 3.9......................................................... Atmospheric stability class (for worst-case,
must be most stable [F] unless facility has
other data).
2.10, 3.10....................................................... Topography of area surrounding the process or
facility (urban or rural).
2.11, 3.11, 4.6, 5.6............................................. Distance in miles to either the toxic or
flammable endpoint.
2.12, 3.12, 4.7, 5.7............................................. Estimated residential population within the
endpoint distance.
2.13, 3.13, 4.8, 5.8............................................. Public receptors (e.g., schools, residences,
recreation areas, etc.) within the endpoint
distance.
2.14, 3.14, 4.9, 5.9............................................. Environmental receptors (e.g., national or
state parks, etc.) within the endpoint
distance.
2.15, 3.15, 4.10, 5.10........................................... Passive mitigation considered (i.e.,
equipment that functions without human,
mechanical, or energy input that is designed
to limit a release).
3.16, 5.11....................................................... Active mitigation considered (alternative
scenarios only).
Graphics file name (optional). Facilities may
include a map or other graphic to illustrate
a release scenario.
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C. The Passage of CSISSFRRA
As one way of satisfying CAA section 112(r)'s requirement that RMPs
be made available to the public, EPA had considered posting RMPs on the
Internet. In the RMP rule, after public notice and comment, EPA
announced plans for an electronic centralized system for submitting and
managing RMPs. With the help of a federal advisory committee, EPA
designed an RMP form that lends itself to the creation of an electronic
database. Many members of the advisory committee recommended that CAA
section 112(r) would best be satisfied by placing RMPs on the Internet
to afford the public easy access to them. Before EPA had implemented
any plan for doing so, however, the Federal Bureau of Investigation and
other representatives of the law enforcement and intelligence
communities raised law enforcement and national security concerns about
making RMPs electronically available. Specifically, the law enforcement
and intelligence communities voiced concerns that releasing the OCA
portions of RMPs via the Internet would enable Internet users anywhere
in the world to search electronically for industrial facilities in the
U.S. to target for purposes of causing a planned industrial chemical
release, and that no record of such a query would be made.
These concerns eventually led to the passage of the Chemical Safety
Information, Site Security and Fuels Regulatory Relief Act (CSISSFRRA),
Public Law 106-40. In response to the concerns raised by the law
enforcement and national security communities, EPA decided not to place
the OCA portions of RMPs on the Internet. Similar concerns were next
raised, however, that amendments to the Freedom of Information Act
(FOIA) would nevertheless compel EPA to release the OCA portions of
RMPs in electronic
[[Page 24836]]
format. Congress responded by passing CSISSFRRA, which in relevant part
added a new subparagraph (H) to CAA section 112(r)(7).
D. What CSISSFRRA Does
CSISSFRRA exempts ``[OCA] information'' (CAA section
112(r)(7)(H)(iii)) from FOIA, 5 U.S.C. 552, and limits public access to
OCA information for at least one year while the federal government
assesses both the risks of posting the information on the Internet and
the chemical safety benefits of providing public access to the
information, and then issues regulations governing distribution of the
information based on those assessments (CAA section 112(r)(7)(H)(ii)).
In particular, the statute requires the President to assess ``(aa) the
increased risk of terrorist and other criminal activity associated with
the posting of [OCA] information on the Internet'' and ``(bb) the
incentives created by public disclosure of [OCA] information for
reduction in the risk of accidental releases'' (CAA section
112(r)(7)(H)(ii)(I)). It then provides that, based on those
assessments, the President must ``promulgate regulations governing the
distribution of [OCA] information in a manner that, in the opinion of
the President, minimizes the likelihood of accidental releases and the
risk described in subclause (I)(aa) and the likelihood of harm to
public health and welfare'' (CAA section 112(r)(7)(H)(ii)(II)).
CSISSFRRA defines ``[OCA] information'' as ``those portions of a [RMP],
excluding the executive summary of the plan, consisting of an
evaluation of 1 or more worst-case release scenarios or alternative
release scenarios, and any electronic data base created by the
Administrator [of EPA] from those portions'' (CAA section
112(r)(7)(H)(i)(III)). In effect, ``[OCA] information'' means sections
2 through 5 of RMPs and any electronic database EPA creates from those
sections.
CSISSFRRA also requires that the regulations promulgated by the
President meet certain additional requirements for public and
governmental access. The regulations must, for example, ``allow[]
access by any member of the public to paper copies of [OCA] information
for a limited number of stationary sources located anywhere in the
United States, without any geographical restriction,'' as well as
``allow[] other public access to [OCA] information as appropriate''
(CAA section 112(r)(7)(H)(ii)(II)(aa) & (bb)). They also must guarantee
access to ``[OCA] information'' to government officials, referred to in
the statute as ``covered persons,'' for their ``official use'' (see CAA
sections 112(r)(7)(H)(i)(I) & (II) and (H)(ii)(II)(cc)-(ee)).
Government officials include officers and employees of federal, state,
or local government or their agents or contractors, and officers and
employees of state and local emergency response organizations or their
agents or contractors (see CAA section 112(r)(7)(H)(i)(I)). Emergency
response officials include members of State Emergency Response
Commissions (SERCs) and Local Emergency Planning Committees (LEPCs)
created under the Emergency Planning and Community Right-to-Know Act of
1986 (EPCRA, 42 U.S.C. 11001 et seq).
While CSISSFRRA guarantees covered persons access to OCA
information, it prohibits them from disseminating the information to
the public except as authorized by the statute or the regulations
issued under it (CAA section 112(r)(7)(H)(v)(I)). This prohibition on
dissemination, however, applies only to OCA information disseminated
``in the form of a [RMP] or an electronic data base created by the
Administrator [of EPA] from [OCA] information'' (CAA section
112(r)(7)(H)(xii)(II)). Thus, CSISSFRRA prohibits disclosure of RMP
sections 2 through 5, and of OCA data conveyed in the ``form'' of those
sections, and prohibits disclosure of EPA's OCA database. CSISSFRRA
does not prohibit disclosure of the substance of OCA information, i.e.,
the individual pieces of OCA data reported in the OCA sections of RMPs,
when the data is disclosed in a form different than those RMP sections
(sections 2 through 5) or EPA's OCA database. State and local covered
persons, then, may communicate to the public about the potential off-
site consequences of chemical accidents in any way they choose, as long
as they do not hand out copies of, or otherwise replicate, sections 2
through 5 of the RMPs, or provide direct access to the database.
CSISSFRRA also prohibits covered persons from disclosing ``any
statewide or national ranking of identified stationary sources derived
from'' OCA information (CAA section 112(r)(7)(H)(v)(I)). Any covered
person who willfully violates any of these prohibitions is subject to
criminal penalties of up to $1,000,000 for violations committed in any
one year (CAA section 112(r)(7)(H)(v)(II)).
CSISSFRRA also permits the public other means of access to the
substance of OCA information (CAA section 112(r)(7)(H)(i)(II)). For
example, it exempts RMP executive summaries from the definition of
``[OCA] information'' (CAA section 112(r)(7)(H)(i)(III)). In addition,
CSISSFRRA requires virtually all covered facilities to conduct a public
meeting or to post a public notice that summarizes their OCA
information by February 5, 2000 (CSISSFRRA section 4(a)). CSISSFRRA
also allows facilities to release their OCA information to the public
without restriction, and once a facility has so released its OCA
information, covered persons may do so as well (CAA section
112(r)(7)(H)(v)(III)). CSISSFRRA provides further access to this
information, including access for qualified researchers (see CAA
section 112(r)(7)(H)(iv); section 112(r)(7)(H)(vii); and section
112(r)(7)(H)(viii)).
E. The Delegation to DOJ and EPA
In a memorandum dated January 27, 2000 (published in the Federal
Register at 65 FR 8631 (February 22, 2000)), the President delegated to
the Attorney General and the Administrator of EPA authority to perform
the required assessments and to promulgate the required regulations.
The President assigned to the Attorney General the responsibility for
assessing the increased risk of terrorist and other criminal activity
associated with posting OCA information on the Internet (the ``risk
assessment''). He assigned to the Administrator of EPA the
responsibility for assessing the incentives for reduction in the risk
of accidental chemical releases created by public disclosure of OCA
information (the ``benefit assessment''). The President also jointly
delegated to the Attorney General and the Administrator his duty to
promulgate the regulations, subject to review and approval by the
Office of Management and Budget (OMB). In this action, we (i.e., EPA
and DOJ) are jointly proposing regulations pursuant to CSISSFRRA and
the President's delegation. OMB has reviewed and approved the proposed
rule.
II. The Assessments
This section summarizes the findings of the required risk and
benefit assessments that, under CSISSFRRA, must form the basis for this
proposed rule. These assessments, respectively, are available on the
Internet at www.usdoj.gov and www.epa.gov/ceppo.
A. The Risk Assessment
Based upon an analysis of trends in international and domestic
terrorism and upon the burgeoning interest in weapons of mass
destruction (WMD) \1\
[[Page 24837]]
among criminals and, in particular, terrorists, the risk assessment
concludes that the risk of terrorists attempting in the foreseeable
future to cause a potentially catastrophic chemical release is both
real and credible. Terrorists increasingly engineer their attacks to
cause mass casualties to the populace and/or large-scale damage to
property. In recent years, criminals have with increasing frequency
attempted to obtain or to produce WMD to achieve these goals. However,
traditional means of creating or obtaining WMD are generally difficult
to execute. In contrast, breaching a containment vessel of an
industrial facility with an explosive, or otherwise causing a chemical
release, may appear less difficult to a terrorist and may also appear
attractive in light of the pervasiveness of industrial facilities
possessing toxic or flammable chemicals and their proximity to high-
population areas. Certain types of facilities submitting RMPs,
moreover, such as U.S. military, federal, and infrastructure facilities
in the United States, are preferred terrorist targets. While security
at some of these sites may reduce the concern that they will be
targeted, no security is foolproof and not everyone intent on terrorist
activity will be dissuaded by security measures.
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\1\ Federal law defines WMD in 18 U.S.C. 2332a(c)(2) as any
destructive device as defined in 18 U.S.C. 921, which includes
explosive, incendiary, or gas devices; any weapon that is designed
or intended to cause death or serious bodily injury through the
release, dissemination, or impact of toxic or poisonous chemicals,
or their precursors; any weapon involving a disease organism; or any
weapon that is designed to release radiation or radioactivity at a
level dangerous to human life.
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Although no criminal or terrorist has yet successfully caused a
chemical release from an industrial facility on U.S. soil, the risk
assessment points out that domestic terrorist groups have, during the
past two years, twice been caught by law enforcement plotting to cause
industrial chemical releases for terroristic purposes at U.S.
facilities. In addition, the assessment notes that foreign militaries
and certain terrorist groups indigenous to other countries have
successfully caused releases from industrial facilities using bombs or
explosive material. These efforts have in effect converted the
facilities into makeshift WMD.
The risk assessment concludes that posting certain portions of OCA
information on the Internet would increase the risk that terrorists or
other criminals will attempt to cause an industrial chemical release in
the United States. Easy access to OCA information would be helpful to
someone seeking to cause such a release because it would provide ``one-
stop shopping'' for refined targeting information, allowing terrorists
to select potential targets from among the 15,000 facilities that have
submitted OCA information. The assessment finds that, in particular,
the following pieces of OCA information would assist someone seeking to
target and maximize an industrial chemical release:
The name of the chemical involved in the worst-case and
alternative release scenarios;
The scenarios that produce the worst-case and
alternative release scenarios (e.g., transfer hose failure, pipe
leak, etc.);
The projected quantity of chemical released in the
worst-case or alternative release scenarios;
The release rate for alternative release scenarios;
The duration of the release in alternative release
scenarios;
Distance to endpoint or the distance that the chemical
release will extend in the worst-case or alternative release
scenarios;
The endpoint for a flammable alternative release
scenario;
The residential population within the affected area in
the worst-case or alternative release scenarios;
The public receptors within the affected area (schools,
residences, hospitals, prison/correctional facilities, recreation
areas, or commercial/industrial areas) of the worst-case or
alternative release scenarios;
The environmental receptors within the affected area
(national or state parks, forests, or monuments; officially
designated wildlife sanctuaries, preserves, or refuges; federal
wilderness area) of the worst-case or alternative release scenarios;
Active mitigation systems in the worst-case or
alternative release scenarios;
Passive mitigation systems in the worst-case or
alternative release scenarios; and
Map or other graphic that illustrates a worst-case or
alternative release scenario.
The risk assessment also finds that the increased risk of terrorist
or other criminal activity associated with posting these portions of
OCA information on the Internet varies among the specific pieces of
information. The assessment thus separates OCA information that would
be helpful to a terrorist or other criminal into three categories. The
first category of OCA information provides a general account of the
consequences of a chemical release in terms of the damage that it might
inflict on the community. It consists of the distance to endpoint, the
residential population within the distance to endpoint, the public
receptors, the environmental receptors, and the map or graphic of the
worst-case or alternative release scenario. The assessment finds that,
because these pieces of OCA information would allow someone to compare
the relative damage that could be caused by chemical releases from
different sites and choose the best target from which to attempt to
cause a release, they would be of the greatest value to terrorists and
hence would present the greatest risk.
The second category of information consists of OCA information that
provides a rough sketch of what is involved in triggering a release
from an RMP facility. Included in this category are the name of the
chemical involved in the worst-case or alternative release scenario;
the projected quantity of chemical released; the release rate; the
duration of the release; and the scenario that results in the release.
The risk assessment concludes that this category of information, while
less sensitive than the first category, still would pose an appreciable
risk if posted on the Internet.
The third category of information consists of OCA information on
passive and active mitigation measures. The assessment finds that this
category of information, while it would be relevant to an attempt to
cause a chemical release, is the least likely to be exploited by a
terrorist, or else is already easily accessible to the public so that
the incremental risk of releasing it in OCA data form would not
significantly add to the risk already posed by its public availability.
The risk assessment concludes that Internet access to categories
one and two of OCA information poses the greatest risk that they will
be used in relation to an attempted industrial chemical release. The
assessment notes that the method of dissemination and the degree to
which OCA information is disseminated are of paramount concern in
evaluating the risk posed by the release of that information to the
public. The assessment finds that Internet access to OCA information
would pose the greatest risk because of the wide dissemination of the
information and the anonymity of the access. Paper copies of OCA
information, if they were permitted to be carried away, would pose a
similar risk because they could be easily scanned and converted into
electronic copy that could then be posted on the Internet.
Although the substance of some of the OCA information that is cause
for concern is already publicly available through means other than
RMPs, the risk assessment finds (as does the benefit assessment
summarized in the next section) that the category one information
discussed above that would be most helpful to terrorists is not
currently available in as readily accessible and user-friendly a format
as the OCA information sections of an RMP. Moreover, the assessment
finds that category two information,
[[Page 24838]]
particularly for alternative release scenarios, is also largely
unavailable. Even if information comparable to that contained in
categories one or two is currently publicly available, the assessment
finds that it can only be converted to targeting information by someone
with some degree of technical proficiency and background in such
information. If those portions of OCA information that represent
refined targeting or chemical release information were posted on the
Internet, however, they would be accessible to anyone anywhere in the
world who has access to the Internet, including agents of hostile
foreign countries. Such unmonitored dissemination of this information
in a manner that permits the recipient to obtain it anonymously and in
a form that is easily understandable greatly increases the risk of its
misuse.
B. The Benefit Assessment
The benefit assessment concludes that public disclosure of OCA
information would likely lead to a significant reduction in the number
and severity of accidental chemical releases. The prevention program
requirements of the RMP rule are performance-based, in part because EPA
considered that the public availability of RMPs would help ensure that
facilities take all reasonable steps to reduce their risk of accidents.
In addition, widespread access to OCA information would serve the
function Congress originally intended in enacting the CAA--to inform
members of the public and allow them to participate in decisions that
affect their lives and communities. The public is not likely to
generate the data contained in the OCA sections of RMPs on its own, and
thus the greater the restrictions on access to OCA information, the
greater the potential that public safety benefits are diminished. In
support of these conclusions, the benefit assessment finds specifically
as follows:
Chemical accidents continue to impose considerable
costs in terms of human lives and health, property, and public
welfare. Facilities covered by the RMP rule reported that from mid-
1994 to mid-1999 there were about 1,900 serious accidents that
caused 33 deaths, 8,300 injuries, and the evacuation or sheltering
of 221,000 people. These accidents cost the affected facilities more
than $1 billion in direct damages and two to four times that in
business interruption losses. These accidents also represent less
than 10 percent of all unintended releases of hazardous substances
reported to the government during this period.
Given the opportunity, the public uses hazard
information to take action that leads to risk reduction. Various
segments of the public have strong incentives to use OCA information
in ways that reduce risk. For example, the national publication of
the Toxics Release Inventory (TRI) data by the government, followed
by analysis by citizens' groups and the news media, appears to have
spurred action by industry to reduce emissions. Nationally, reported
TRI emissions have fallen 43 percent since 1988, a time in which
industrial production has risen 28 percent. Although other factors
contributed to the decline in emissions, negative press coverage
appears to have led some facilities to reduce their TRI emissions.
Ease of access to information is critical to public use
and risk reduction. Data available in paper form on request from
state or local agencies are rarely sought. For example, data on the
location and identity of hazardous chemicals are requested about
3,500 times a year from LEPCs. (There are about 3,200 LEPCs in the
country and about 560,000 facilities subject to requirements to
report information on hazardous chemicals to LEPCs.) Meanwhile,
environmental data on the Environmental Defense Fund's ``Scorecard''
website are at least 250 times more likely to be reviewed by the
public than is information from LEPCs. Likewise, early indications
are that meetings required by CSISSFRRA to explain OCA information
to the public have drawn very few attendees even when citizens
received individual invitations. In contrast, when industry has gone
out to places the public already frequents (for example, a shopping
mall) and provided consequence information directly to citizens,
outreach and communication about chemical accident risks have been
more successful.
Information that puts hazards into context is far more
likely to be used by the public than are ``raw'' data. The
importance of such ``interpreted'' information (already analyzed in
order to be understandable) is demonstrated by the increased use of
TRI data when they were made available as part of Scorecard on the
Internet. Although TRI data are available electronically through
EPA's Envirofacts and the Right-To-Know Network (RTK-Net) websites,
Scorecard ranks each facility on various indicators by county,
state, and nation, and explains the health effects of chemicals
emitted by that facility. The raw TRI data on RTK-Net were drawing
240,000 searches a year; Scorecard draws over a half million page
views a month. OCA information is interpreted in that it reflects
the results of analysis of data that the public might otherwise find
difficult to understand. Ultimately, the best and most effective
interpreted information would be generated during dialogue about OCA
information and RMP data at the local and national levels among the
public, government (particularly emergency response officials), and
facilities.
Although the substance of OCA information could be
derived from other available data, the public is unlikely to do so.
Derivation of such information requires some technical knowledge and
time. While motivated and skilled individuals and organizations can
use widely available existing data, guidance, and models to estimate
off-site consequences with relative ease, the general public is
unlikely to be able and willing to do so.
A complete RMP containing OCA data is necessary to
understand the extent of the hazard posed by a particular facility
in comparison to other facilities in an area, within an industrial
sector, or handling the same chemicals. The accident prevention rule
requires facilities to conduct OCAs in a specified, systematic
manner so that the public and others can understand the relative
hazards and risks posed by facilities as a result of the type and
amount of chemicals handled and the mitigation measures used. While
the OCA information addresses the hazard, the complete RMP also
addresses the steps to control the hazard. Understanding the extent
of a hazard and how it is controlled leads to understanding the risk
posed by a facility.
Multiple segments of the public, particularly citizens,
citizens' groups, and the media, are likely to become more
interested in chemical safety and chemical release risk reduction to
the extent they become aware of the potential consequences
associated with worst-case and alternative release scenarios. The
interest and concern about potential consequences will likely
trigger comparisons and detailed analyses not only of OCA
information but also of the safety and environmental performance of
facilities. Widespread awareness of the comparisons and analyses
would provide the public with a better understanding of accident
risk; combining this understanding with other environmental risk
information would likely stimulate better dialogue at the local and
national levels among the public, government, and facilities to
reduce chemical accident risks.
Although CSISSFRRA provides for access to OCA
information for state and local officials, including emergency
planners and responders, and allows those officials to disseminate
the substance of OCA information to the public, the penalties for
disclosure contained in CSISSFRRA are having a chilling effect. Many
of these officials are not willing to obtain OCA information or to
communicate its substance and thereby risk accidental or inadvertent
disclosure of OCA information, even though CSISSFRRA penalizes only
its willful disclosure.
III. The Proposal
In developing our proposed approach, we have relied, as CSISSFRRA
requires us to do, on the specific findings of the two assessments in a
way that we believe most effectively minimizes the likelihood of
accidental releases, the increased risk of terrorist activity
associated with the posting of OCA information on the Internet, and the
likelihood of harm to public health and welfare from chemical releases.
In consideration of the two assessments, our proposed approach seeks to
disseminate in an appropriately controlled manner those pieces of OCA
information that the risk assessment found posed the greatest risk of
being used in planning a terrorist or other criminal event and, in
particular, to
[[Page 24839]]
minimize the risk associated with the posting of those pieces of
information on the Internet.\2\ To that end, we propose to make OCA
information available in reading rooms geographically distributed
across the United States. At the same time, our proposed approach
recognizes that several pieces of OCA information pose less risk of
being used for criminal purposes or are otherwise widely available
already and, where that is the case, seeks to provide the data over the
Internet. Placing OCA information on the Internet gives the public a
fast and convenient way to obtain this information. While the Internet
provides a tremendous benefit by offering people easy access to a
wealth of information, we also recognize that it provides a new means
for criminals and terrorists to carry out traditional criminal
activities. We therefore have attempted to balance these interests by
making as much information as appropriate available online, but not
posting the information that the risk assessment found poses a
significant risk for terrorist or criminal purposes. Further, to
address the statute's requirement that we minimize the likelihood of
harm to the public from chemical releases, our proposed rule includes
several components intended to complement reading-room access to OCA
information by providing additional information in easily accessible
ways that would help the public better understand chemical accident
risk and prevention. We anticipate that the proposed measures, taken
together, would stimulate and enhance needed dialogue among members of
the public, government, and industry at the local and national levels
about how to minimize the risk of chemical accidents, however caused.
---------------------------------------------------------------------------
\2\ CSISSFRRA requires that the regulations allow access by any
member of the public to paper copies of OCA information for a
limited number of facilities without geographic restriction, and
also permits other means of access as appropriate.
---------------------------------------------------------------------------
The assessments reveal that some OCA information is already
publicly available to varying degrees. The substance of some OCA
information is capable of being assembled from various public sources,
although the actual OCA information itself represents the most up-to-
date and complete information available. Furthermore, compiling other
publicly available information into a form comparable to OCA
information would require both extensive effort and technical
proficiency. We have factored the issue of the public availability of
OCA-like data into our decisions regarding how various pieces of OCA
information should be treated. For example, while certain pieces of OCA
information would otherwise have been considered to pose law
enforcement and national security concerns, such as the passive and
active mitigation systems considered in the worst-case scenarios, we
believed that the public availability of almost identical information
in other parts of RMPs meant that those pieces of OCA information
should be handled as less sensitive pieces of OCA information and,
hence, have treated them as such.
Finally, we have taken careful note of the benefit assessment's
conclusions regarding the role of risk-related information in risk
reduction and the ways that the public acquires and uses such
information. In response to these conclusions, the proposal would
ensure that all of the OCA information would be available to the public
in some fashion, and some OCA information would be available in several
forms. As explained above, any member of the public would have access
to OCA information without geographical restriction for a limited
number of facilities in federal reading rooms. In addition, the
proposed rule would make as many OCA data elements as appropriate
available to the public on the Internet, providing easy access to that
information. The proposal also would make available on the Internet a
``risk indicator system'' which would provide the public a means of
understanding some aspects of the risk expressed by OCA information
without disclosing the actual OCA information itself. The indicator
proposal responds to the finding that information that is already
interpreted, easily understood, or put into context is far more likely
to be used by the public in taking action that leads to risk reduction.
Further, the proposed rule would seek to enhance local access to
OCA and related information. It would clarify that members of SERCs,
LEPCs, and fire departments (as covered persons) may, even now,
communicate to the public the substance, although not the form, of OCA
information, and thereby contribute to public awareness and discussion
of chemical risk reduction efforts and opportunities. It also would
authorize members of SERCs, LEPCs, and local fire departments to
provide read-only access to OCA information itself for all of the
sources in an LEPC's jurisdiction and for sources with a vulnerable
zone that extends into the LEPC's jurisdiction. This aspect of the
proposal would potentially provide the public with more convenient
access to OCA information for local facilities.
Together, the proposal's public access provisions would facilitate
widespread public awareness of information regarding the safety and
environmental performance of facilities. That awareness, in turn, would
likely stimulate dialogue among members of the public, government, and
industry about what further steps might be taken to reduce chemical
risk. We believe that this scheme effectively responds to the benefit
assessment's conclusion that it is the interaction of the public,
government, and facilities that will ultimately yield the most benefit
in reducing the risks of chemical accidents.
A. Public Access to OCA Information
1. Access to Paper Copies of OCA Information
In accordance with CSISSFRRA, this proposed rule would provide the
public with access to paper copies of OCA information for a limited
number of facilities located anywhere in the United States, without
geographical restriction (see CAA section 112(r)(7)(H)(ii)(II)(aa)).
Under the proposed rule, OCA information for facilities nationwide
would be accessible to the public at reading rooms located at
designated sites throughout the country, such as EPA regional offices
and other federal facilities. There would be at least 50 reading rooms
geographically distributed across the United States so that the public
would have reasonable access to them. At these sites, members of the
public would have access to OCA information for any facility and would
be able to read it and to take notes from it. Members of the public
would not, however, be permitted to remove the OCA portions of RMPs
from a reading room or to mechanically reproduce those portions. Each
reading room would be authorized to provide any member of the public
with access to OCA information for up to 10 stationary sources per
calendar month. Based on an analysis of the geographic distribution of
RMP-covered facilities (available as part of the benefits assessment),
we believe that, in most cases, this would permit members of the public
to have access to OCA information about facilities in whose
``vulnerable zone'' they live or work, as well as to OCA information
about additional facilities for purposes of comparison. At the same
time, it would minimize the criminal risk associated with Internet
access to the most sensitive pieces of OCA information by making it
difficult to obtain large quantities of that information and to convert
it to an electronic format for Internet posting.
[[Page 24840]]
To implement the proposed limit on the number of facilities for
which an individual could obtain access to paper copies of OCA
information, the proposed rule would require that reading room
personnel ask each individual to show a piece of personal
identification issued by a federal, state, or local government agency
(e.g., a driver's license) before the individual is given access to OCA
information. This requirement is necessary because without checking
personal identification, reading room personnel could not keep track of
the number of facilities for which the individual had been given access
to OCA information. Requiring reading room personnel to ask for
personal identification also would decrease the likelihood that OCA
information would be obtained by individuals seeking it for terrorism
or other criminal purposes, because such individuals prefer to hide
their activities from public view.
We anticipate that reading rooms would keep daily sign-in sheets
that would record the names of each individual requesting OCA
information, how many facilities' OCA information the individual had
received to read, and which facilities those were. Whenever someone
requested access to OCA information, reading room personnel would
review the sign-in sheets for that day and the previous days during the
month to determine how many, if any, facilities' OCA information that
person already had received that month. These sign-in sheets would be
protected under the Privacy Act (5 U.S.C. 552a). We envision that they
will be retained for three years.
We also anticipate that reading rooms would generally provide
access to RMP*Info, an electronic public access database on the
Internet that includes the full text of RMPs except for the OCA
sections. Where RMP*Info is not available for use by the public, we
anticipate that the entire copy of each RMP would be made available to
those who request it so that the OCA information may be reviewed in the
context of the larger risk management plan.
We believe that the sort of reading-room access just described, in
conjunction with the other provisions of this proposed rule, achieves
the overall goal of the statute--to minimize the risk to the public
posed by chemical releases, however caused, from the facilities
submitting state, or local government agency (e.g., a driver's license)
before the individual is given access to OCA information. This
requirement is necessary because without checking personal
identification, reading room personnel could not keep track of the
number of facilities for which the individual had been given access to
OCA information. Requiring reading room personnel to ask for personal
identification also would decrease the likelihood that OCA information
would be obtained by individuals seeking it for terrorism or other
criminal purposes, because such individuals prefer to hide their
activities from public view.
We anticipate that reading rooms would keep daily sign-in sheets
that would record the names of each individual requesting OCA
information, how many facilities' OCA information the individual had
received to read, and which facilities those were. Whenever someone
requested access to OCA information, reading room personnel would
review the sign-in sheets for that day and the previous days during the
month to determine how many, if any, facilities' OCA information that
person already had received that month. These sign-in sheets would be
protected under the Privacy Act (5 U.S.C. 552a). We envision that they
will be retained for three years.
We also anticipate that reading rooms would generally provide
access to RMP*Info, an electronic public access database on the
Internet that includes the full text of RMPs except for the OCA
sections. Where RMP*Info is not available for use by the public, we
anticipate that the entire copy of each RMP would be made available to
those who request it so that the OCA information may be reviewed in the
context of the larger risk management plan.
We believe that the sort of reading-room access just described, in
conjunction with the other provisions of this proposed rule, achieves
the overall goal of the statute--to minimize the risk to the public
posed by chemical releases, however caused, from the facilities
submitting RMPs. While we considered permitting the actual release of
paper copies to members of the public upon their request, we concluded
that this would pose too great a risk because such copies could easily
be converted into electronic format for Internet posting. Instead, we
believe that a better approach would be a series of graduated means of
access, starting with the above-described system of reading rooms which
will be geographically distributed across the United States and which
will provide any member of the public with access to all OCA
information for any facility located anywhere in the United States,
contingent upon some reasonable limitations such as a maximum number of
facilities (10) per calendar month as to which an individual can obtain
OCA information. We suggest augmenting this access, as set forth below,
by providing two different additional means of Internet access to OCA
information, and an alternative means by which members of the public
can obtain access to paper copies of OCA information for the localities
in which they live or work. Because this last avenue of access would be
geographically limited to localities, we propose providing access to
OCA information without the types of restrictions that would exist in
the national reading rooms, such as limits on the number of facilities
about which information could be obtained.
2. Internet Access to Selected OCA Information
In an effort to provide robust access to as much OCA information as
practicable, the proposed rule also makes some OCA information
available to the public through the Internet by posting it on EPA's
website. The following pieces of OCA information for both the worst-
case and alternative release scenarios would be posted on the Internet,
along with other RMP data elements available in EPA's RMP*Info\3\:
---------------------------------------------------------------------------
\3\ Certain pieces of OCA information are being released because
they are fixed values and are widely available to the public. The
values for the duration of a chemical release and the endpoint used
for flammables for the worst-case scenario are fixed numbers that
can be found in EPA's guidance for submitting worst-case scenario
data and on the RMP form.
The concentration of the chemical (RMP Sections 2.1.b;
3.1.b);
The physical state of the chemical (RMP Sections 2.2;
3.2);
The duration of the chemical release for the worst-case
scenario (RMP Section 2.7);
The statistical model used (RMP Sections 2.3; 3.3; 4.2;
5.2);
Endpoint used for flammables for the worst-case
scenario (RMP Section 4.5);
Wind speed during the chemical release (RMP Sections
2.8; 3.8);
The atmospheric stability (RMP Sections 2.9; 3.9);
The topography of the surrounding area (RMP Sections
2.10; 3.10);
The passive mitigation systems considered (RMP Sections
2.15; 3.15; 4.10; 5.10); and
The active mitigation systems considered (RMP Sections
3.16; 5.11).
The proposed rule would exclude the following pieces of OCA
information from being posted on the EPA website:
The name of the chemical involved (RMP Sections 2.1.a;
3.1.a; 4.1; 5.1);
The scenario involved (RMP Sections 2.4; 3.4; 4.3;
5.3);
The quantity of chemical released (RMP Sections 2.5;
3.5; 4.4; 5.4);
[[Page 24841]]
The release rate of the chemical involved for the
worst-case scenario (RMP Section 2.6);
The release rate of the chemical involved in the
alternative release scenario (RMP Section 3.6);
The duration of the chemical release in the alternative
release scenario (RMP Section 3.7);
Distance to endpoint (RMP Sections 2.11; 3.11; 4.6;
5.6);
Endpoint used for flammables for the alternative
release scenario (RMP Section 5.5);
Residential population within the distance to endpoint
(RMP Sections 2.12; 3.12; 4.7; 5.7);
Public receptors within the distance to endpoint (RMP
Sections 2.13; 3.13; 4.8; 5.8);
Environmental receptors within the distance to endpoint
(RMP Sections 2.14; 3.14; 4.9; 5.9); and
Map or other graphic used to illustrate a scenario (RMP
Sections 2.16; 3.17; 4.11; 5.12).
These pieces are not being posted on the Internet in view of the
risk assessment's findings that Internet posting of these OCA data
elements would increase the risk of a chemical release caused by a
terrorist or criminal.
Our proposal to post some but not all OCA information on the
Internet is guided by the findings in the two assessments. The pieces
of OCA information that would not be posted are restricted to those
that the risk assessment found to pose a significant risk of being used
for terrorist or other criminal purposes. The pieces of OCA information
that would be posted, by contrast, pose less incremental risk, and we
anticipate that Internet release of these pieces of information would
have the benefit of facilitating dialogue between members of the
public, state and local officials, and the facilities. Information
about active and passive mitigation systems that has been included in
worst-case and alternative release scenarios, for example, would
provide the public with knowledge about measures that industry is
taking to limit the potential damage that could result from a chemical
release. Finally, the pieces of information that would not be posted
would remain accessible to members of the public at federal reading
rooms and potentially at the local level through various other means
provided for by this proposed rule. We anticipate that these additional
means of access would help ensure that members of the public have
meaningful access to the full range of OCA information, while reducing
the risk that the most sensitive pieces of that information would be
used for criminal purposes.
3. Risk Indicator System
The proposed rule would set up a ``risk indicator'' system that
would provide the public a means of understanding, via Internet
inquiry, some aspects of the risk expressed by OCA information without
giving them via the Internet the actual OCA information itself or
individual portions thereof. The risk indicator system would consist
primarily of query and response software located in RMP*Info. Members
of the public would be able to enter a specific address (such as that
of a home, school, or place of employment) and learn if that address
might be within the ``vulnerable zone'' (i.e., within the worst-case or
alternative release scenario's ``distance to endpoint'') of at least
one facility currently submitting an RMP to EPA. (As discussed further
below, because the data reported in RMPs is not sufficient to precisely
map the vulnerable zones for chemical releases, the indicator could not
definitively state whether an address is or is not within a vulnerable
zone.) Members of the public who do not have access to the Internet
would be able to obtain the same information by calling the EPA hotline
or by mailing a request to the Administrator of EPA.
The risk indicator system also would inform individuals of several
means by which they can obtain additional information. Any federal
reading rooms and relevant local reading rooms under this proposed
rule, for example, would be sources for identifying the facility or
facilities whose vulnerable zones extend to the address entered into
the indicator system. EPA would revise RMP*Review, the software
designed for use by federal, state, and local ``covered persons,'' so
that it would include a version of the indicator with the capability
easily to identify the names of the facilities whose vulnerable zones
may extend to an address. Therefore, individuals could potentially
obtain this information from federal, state, and local ``covered
persons.'' (We understand that provision of this information by state
and local officials could require additional resources and therefore
that not all state and local officials may be able to respond to
requests for the information.) Our intention is that all of this
contact information would be readily accessible or linked to the
indicator located in RMP*Info.
We believe that the risk indicator system would encourage members
of the public to seek additional information about the risk of chemical
releases in their communities and about steps that they may take to
reduce that risk, and thereby would encourage the sort of dialogue
among community members, government agencies (especially LEPCs), and
industry that is vital to prevention of chemical accidents. Once an
individual learned the identity of facilities that could present a
risk, he or she could refer to those facilities' RMPs in RMP*Info to
learn more about them, including their accident histories and the steps
that each facility is taking to prevent accidents. If the individual
wanted to view all of the OCA information for a facility, he or she
could contact the facility directly (facilities are encouraged but not
required to provide the actual OCA information) or could visit one of
the designated OCA information reading rooms. Finally, the individual
could gain this and further information on risk by contacting an LEPC,
SERC, local fire department, or other state or local ``covered
person.'' As we explain in the next section, federal, state, and local
covered persons are authorized and encouraged by the proposed rule to
provide reading-room access to copies of OCA information. They also are
permitted to convey and discuss the substance of OCA information, so
long as they do so in a way that does not replicate the OCA sections of
RMPs or EPA's OCA database. LEPCs also have access to, and are free to
provide individuals with, hazardous chemical inventory reports
submitted by facilities, local emergency response plans, and other
information beyond that contained in RMPs.
We have some concerns with the precision of the risk indicator
system because it would utilize the latitude/longitude and the distance
to endpoint portions of OCA information reported by facilities. Because
the latitude/longitude readings reported by facilities can be taken at
any point within the facilities, and because some facilities can be
quite large, we are concerned that some addresses would be reported to
be in a vulnerable zone of a facility when in fact they are not.
However, we believe that these concerns are outweighed by the
usefulness of the risk indicator system as a means of stimulating
members of the public to pursue more precise and accurate information
about local risk. To the extent that the indicator helps members of the
public to understand that they may be in a vulnerable zone, it provides
valuable information above that which is currently available. At this
time, RMP*Info allows an individual to learn only the names of
facilities that have submitted RMPs in a particular city or county;
there is currently no easy way of finding out if the off-site
[[Page 24842]]
consequences of any of the facilities' worst-case scenarios could
affect particular addresses. The proposed indicator would provide such
information.
4. Enhanced Access to Local OCA Information
Enhancing public access to OCA information for local sources is
another key element of today's proposed rule. We believe that chemical
safety is most effectively addressed at the local level, and the
benefit assessment confirms that members of the public and local
officials working together and with industry have the potential to
promote chemical accident prevention. LEPCs and fire departments are
closest to the facilities subject to accident prevention rules and the
communities potentially affected by any accidents at those facilities.
For more than a decade, EPA has endeavored to strengthen LEPCs so that
they can realize their potential to prevent and respond to accidental
releases. We therefore believe that LEPCs and fire departments can and
should be encouraged to play an important role in the communication of
OCA information to members of the public. Also, to the extent federal
outlets for reading-room access to paper copies of OCA information may
be located some distance from some members of the public, gaining
access through LEPCs or other local government officials may be a
preferable alternative. While we would not require local officials to
provide such access, we would strongly encourage them to do so,
particularly in light of their key role in chemical safety at the local
level.
The proposed rule includes several provisions for achieving this
objective. The proposed rule authorizes members of LEPCs or local fire
departments to set up reading rooms or other facilities where members
of the public could read, but not remove or mechanically copy, paper
copies of the OCA information for all of the sources in the LEPC's
jurisdiction and for any sources whose vulnerable zone extends into the
LEPC's jurisdiction. A LEPC could, for example, have a binder of OCA
information for all of the sources meeting this criterion and provide
the public with access to the binder. Members of the public would be
permitted to read and take notes from the OCA information, but not to
remove or mechanically reproduce it. The proposed rule would impose no
limit on the number of facilities for which members of the public may
review paper copies of OCA information made available by LEPCs or fire
departments and would not require LEPCs to ask members of the public to
show any identification to gain access to the information. SERCs would
be permitted to provide a person the same access to paper copies of OCA
information as that person would receive at his or her LEPC. Members of
LEPCs, fire departments, and SERCs who provide public access to OCA
information in this manner would not be subject to criminal liability
or penalties under CSISSFRRA.
As mentioned above, the benefit assessment revealed that many local
government officials are reluctant to obtain OCA information from EPA
or to share the substance of that information with the public, at least
in part out of concern that criminal penalties attach to unauthorized
disclosure of OCA information. To address this concern, the proposed
rule includes a provision in the section governing disclosure of OCA
information that makes clear what CSISSFRRA already allows--that
covered persons, including local government officials, may share with
the public data reported in the OCA sections of RMPs, just not the OCA
sections of the forms themselves. In other words, a covered person may
convey, orally or in writing, the OCA results for a facility, so long
as he or she does not hand out a copy of, or otherwise replicate, the
OCA sections of the facility's RMP form itself or provide access to
EPA's OCA database. A local official, for instance, may prepare a hand-
out for a community meeting that includes OCA data for local (and
other) facilities in a format different than that used for sections 2
through 5 of RMPs.
We believe that these proposals for enhanced local access to OCA
information would help to realize the benefits of public disclosure of
OCA information identified in the benefit assessment and would help
satisfy the public's interest in access at the local level to
information about the sources of chemical accident risks that could
affect them directly. We anticipate that members of the public seeking
OCA information held by LEPCs and local fire departments would be more
likely to ask about the other information available from LEPCs under
EPCRA regarding chemical hazards in the community. This would enhance
the already-important role of the LEPCs in local chemical safety and
accident prevention. At the same time, by limiting local access to
paper copies of OCA information to a relatively small number of sources
(those that are directly relevant to the community in question), this
proposal addresses the legitimate security concerns discussed in the
risk assessment.
5. Additional Information on Chemical Accident Risk
As a supplement to the provisions of the proposed rule, EPA also
would make available to the public additional information on chemical
accident risk through an Internet website. The information would enable
citizens to become better informed about the nature and consequences of
chemical accidents in general and the different ways chemical accident
risks might be addressed. Citizens could then use this information
together with any OCA data obtained about specific facilities to engage
in productive dialogues at the local, state, and federal levels about
preventing chemical accidents and minimizing the consequences of any
accidents that do occur.
As described further below, EPA would provide the following
information about chemical accident risk at or through the Internet
website, http://www.epa.gov/ceppo. Some version of much of this
information is already available there. EPA would seek to supplement
that information as necessary or appropriate to provide the public with
a full understanding of chemical accident risk and prevention.
RMPs (except for the OCA information, sections 2 through 5) are
currently available to the public through RMP*Info, which is available
at the website mentioned above. RMP*Info allows an individual to learn
the names of facilities that submitted RMPs in a particular city, town,
or county, and then view the RMPs for those facilities. RMP*Info is
part of EPA's Envirofacts, a data warehouse which provides a single
point of access to select environmental data. Through Envirofacts, the
public can have easy access to other information about facilities that
have submitted RMPs.
EPA will make available an updated list of LEPC, SERC, and other
emergency response contacts. From the EPA website, industry and the
public can access the LEPC/SERC Net, a page maintained by EPA and the
Unison Institute, which provides a list of LEPC and SERC contacts
searchable by LEPC locality name, city, or state.
EPA has facilitated research on accident histories based on the
data provided in RMPs. The Wharton School at the University of
Pennsylvania is looking at RMP data to compare accident histories by
process, chemical, and industry sector. The results of the Wharton
School's analysis will be posted on EPA's website when they become
available. In addition, the EPA website provides links to various
websites with information and
[[Page 24843]]
databases concerning accident histories, including the National
Reporting Center; the Emergency Response Notification System (ERNS);
the Accidental Release Information Program (ARIP) database; the
Chemical Safety Board accident investigations and database; and several
databases of worldwide incidents.
EPA maintains contact information and external site links to
organizations from industry, government, and community groups with
experience in fostering risk communication and chemical accident risk
reduction. Many of these organizations have published guidance or
primers on risk communication which can be obtained through the
Internet or through EPA's National Service Center for Environmental
Publications. EPA maintains additional external links to trade
associations and other organizations that may provide information to
assist facilities with RMP compliance and safe chemical management
practices. EPA will expand the number of links to environmental
organizations, industry trade groups, and academic institutions to
provide the public with a comprehensive means of finding chemical risk
and safety information.
EPA and other organizations have developed guidance to assist
community members to work with facility management and local officials
to better understand and manage the risks posed by the storage of large
quantities of toxic or flammable chemicals. EPA has revised the guide,
``Chemicals in Your Community,'' and made it available electronically
on EPA's website. The guide provides a checklist of suggestions for how
community members can work with facility management and local officials
to better understand and assess the risks posed by the storage of large
quantities of toxic or flammable chemicals.
Through a cooperative agreement with EPA, the National Safety
Council (NSC) has revised ``Chemicals, the Press & the Public,'' which
is a journalist's guide to chemical information which will be available
on the NSC website at http://www.nsc.org (which is linked to EPA's
website). Copies are also available from EPA's document center at (800)
490-9198.
EPA is developing examples of facilities and industries that can
serve as models for ``best practices'' in chemical accident risk
prevention. EPA has developed RMP Network, which is designed to share
successful practices in RMP implementation, risk communication, and use
of data. Projects undertaken by industry, small businesses, state and
local government, non-profits, citizen groups, and others will be
represented in this series. The projects detailed in RMP Network are
easily reproducible and low cost, and promote partnership-building in
the community. Under a cooperative agreement with EPA, NSC will also
post summaries of industry best practices on their website.
EPA and other organizations are developing background information
about the nature of chemical accident risk, and that information will
be posted on EPA's website when it becomes available. EPA's website
also has links to a web-based Chemical Guide (http://
chemicalguide.com). This chemical guide is a tool to help the public
better understand the chemicals used in their community. Another link
to assist the public is the NSC website (http://www.nsc.org/
xroads.cfm). This website is aimed at the news media and provides
suggestions for information to request of facility management and local
officials, for approaches to sifting through the information, and for
presenting the information in a way that helps communities interpret
local RMPs. This website also includes five guides to chemical risk
management that assist communities in evaluating chemical risks.
Through a cooperative agreement between EPA and Clean Air Action (a
non-profit organization), a primer will be developed for lay persons on
basic risk management terms and principles that would help to provide a
basis for understanding chemical accident risks.
Taken together, these tools will help give the public a better
understanding of the general nature of the risks associated with
potential accidental releases posed by hazardous chemicals. They
provide assistance in understanding the data that is available and how
it can be used to build a snapshot of chemical use in a community. They
also encourage the public to contact key groups and organizations and
provide guidance on how to become directly involved in decisions at the
local level that affect public health and safety.
B. Access to OCA Information by Government Officials
Today's proposed rule also addresses, in Subpart C, how the
Administrator of EPA would provide access to OCA information to
federal, state, and local ``covered persons'' when they request the
information for their ``official use.'' This subpart would essentially
codify the provisions of CSISSFRRA that appear in CAA section
112(r)(7)(H)(ii)(II)(cc)-(ee).
IV. Request for Comments
We acknowledge the significant public interest and diversity of
views on the issues addressed in this proposal. With this in mind, we
are seeking your comments on any and all aspects of this proposed rule,
including our overall approach to achieving the goals of the statute,
the alternatives we have considered, and any other alternatives
commenters may wish to suggest. We are particularly interested in
receiving comments in the following areas and on the following issues:
Access to Paper Copies of OCA Information
What types of federal outlets would be appropriate for
providing reading-room access to paper copies?
Where should reading rooms be located, and how should
they be dispersed geographically to provide for optimal public
access to paper copies?
How should reading rooms be operated to best minimize
the risk associated with the dissemination of OCA information?
Is providing access to OCA information for 10
facilities per month an appropriate limit on access to paper copies,
or would some other limit (for example, some greater number such as
20 facilities or some other lesser number) better meet the statutory
test for overall risk reduction?
As an alternative to reading room access to OCA
information, should paper copies of the information be released to
the public upon request, with a limit placed on the number of
facilities for which any individual could receive OCA information in
a given period? How effectively would this alternative approach
provide information to those persons who would benefit from it, what
would be the security concerns associated with it, and what steps
could be taken to address those concerns?
Are there other ways of providing access to paper
copies of OCA information that would better minimize the overall
risk (i.e., both terrorism-and accident-related) of chemical
release?
Internet Access to Selected OCA Information
Should any additional pieces of OCA information, such
as those that the risk assessment places in the third risk category,
not be posted on the Internet? Should other pieces of OCA
information be posted on the Internet that would not be posted under
this proposed rule, such as the information in the second risk
category?
Risk Indicator System
Is the proposed risk indicator a useful mechanism for
assisting the public in understanding certain aspects of the risk of
chemical accidents and for creating incentives that would reduce the
risk of accidental releases?
Should the risk indicator system specify how many
facilities have vulnerable zones that extend to a particular address
and include the identities of those facilities in its response to
queries, thereby allowing members of the public to learn this
information without the need to contact ``covered persons''?
[[Page 24844]]
What security concerns would be associated with the
implementation of the risk indicator system as described in the
proposal and with the alternative suggested above? In light of those
concerns, would implementation of such a system do more harm than
good to the overall statutory goal of minimizing both the terrorism-
and accident-related risks of chemical releases?
The risk indicator system contemplates that, in
response to an inquiry about a particular address, a person would
receive information telling him or her whether the address may be in
a vulnerable zone and, if so, whom to contact for additional
information (such as officials at the relevant LEPC). Would it be
useful to provide alternative ways of learning the identities of
facilities that may affect a particular address? Federal officials,
for example, could provide the identity of facilities through a
telephone hotline mechanism to assist individuals for whom obtaining
this information at the state or local level is too inconvenient or
difficult. In the alternative, federal officials could provide by
mail the identities of the facilities whose vulnerable zones affect
the address at issue, if the request were accompanied by
documentation indicating that the address for which the additional
information is sought is that of the requestor's residence,
workplace, or school, or that of a family member. What security,
practicality, burden, or other concerns, if any, would be associated
with implementation of either the hotline or mail system as
discussed above? Are there other, better alternatives to substitute
for the suggested method of having members of the public contact
their local LEPC for additional information?
Enhanced Access to Local OCA Information
Should LEPCs or local fire departments be allowed to
distribute paper copies of OCA information to the public that could
be taken away from the local reading site and/or be permitted to
mail that information to members of the public, thus eliminating the
need to travel to the LEPC's reading site? Or would doing so raise
unacceptable terrorism-related security concerns?
The proposed rule would authorize LEPCs and local fire
departments to provide read-only public access to OCA information
for facilities in the LEPC's jurisdiction and for any other facility
which has a vulnerable zone that extends into the LEPC's
jurisdiction. For facilities outside an LEPC's jurisdiction, would
it be easier for an LEPC to implement this provision if it were
authorized to provide access to OCA information for any facility
within 25 miles of the LEPC's boundaries (virtually no vulnerable
zones are greater than 25 miles in diameter), or would this approach
lead to an inappropriately broad scope of access? Would some other
method be preferable for implementing local reading-room access?
The proposed rule would not require LEPCs, SERCs, and
local fire departments to collect identifying information from
individuals wishing to view copies of local OCA information. Would
it be appropriate to require individuals viewing local OCA
information at LEPCs, SERCs, and local fire departments to provide
identifying information before doing so, just as they would do at a
federal reading room under the proposal? Or would the extra security
offered by this approach be outweighed by the burden it would impose
on these state and local organizations?
Additional Information on Chemical Accident Risk
Are there other types of general information about
chemical risk and safety that should be made available to facilitate
public understanding and dialogue about these issues?
V. Judicial Review
Under CAA section 307(b)(1), 42 U.S.C. 7607(b)(1), judicial review
of this rule, once promulgated, would be available only by filing a
petition for review in the U.S. Court of Appeals for the District of
Columbia Circuit within 60 days of publication of the final rule. Under
CAA section 307(b)(2), 42 U.S.C. 7607(b)(2), the final rule could not
be challenged later in civil or criminal proceedings brought by the
government to enforce it.
VI. Administrative Requirements
A. Docket
The docket is an organized and complete file of all the information
that we considered in the development of this rule. The docket is a
dynamic file, because it allows members of the public and industries
involved readily to 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 for purposes of judicial review. (See CAA
section 307(d)(7)(A), 42 U.S.C. 7607(d)(7)(A).)
The official record for this rulemaking has been established under
Docket No. A-2000-20 (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 Confidential Business Information, 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 specified in the ADDRESSES section at the beginning of this
document.
B. Executive Order 12866
OMB has determined that this proposed rule would be a ``significant
regulatory action'' under Executive Order 12866, section 3(f),
``Regulatory Planning and Review'' (58 FR 51735, October 4, 1993). OMB
also has determined that the proposed rule would not be economically
significant because it would have an annual effect on the economy of
less than $100 million and would not 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
governments or communities. Under the terms of Executive Order 12866,
OMB has reviewed the proposed rule.
C. Executive Order 12988
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988, ``Civil Justice Reform'' (61 FR
4729, February 5, 1996).
D. Executive Order 13045
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), does not
apply to this rule because it is not economically significant under
Executive Order 12866.
E. Executive Order 13084
Under Executive Order 13084, ``Consultation and Coordination with
Indian Tribal Governments,'' section 3, Consultation (63 FR 27655, May
19, 1998), federal agencies may not promulgate 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 the regulating agencies
consult with those governments before formal promulgation of the rule.
Today's proposed rule does not significantly or uniquely affect the
communities of Indian tribal governments or impose substantial direct
compliance costs on those communities. Accordingly, the requirements of
section 3(b) of Executive Order 13084 do not appear to apply to this
rule.
We welcome comments on the effect of this rule on communities of
Indian tribal governments.
F. Executive Order 13132
Executive Order 13132, ``Federalism'' (64 FR 43255, August 10,
1999), requires federal agencies to develop an accountable process to
ensure ``meaningful and timely input by State and local officials in
the development of regulatory policies that have federalism
implications.'' ``Policies that have federalism implications'' is
defined in the Executive Order to include regulations that have
``substantial direct
[[Page 24845]]
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
Under section 6 of Executive Order 13132, a federal agency may not
issue a regulation that has federalism implications, that imposes
substantial direct compliance costs, and that is not required by
statute, unless the federal government provides the funds necessary to
pay the direct compliance costs incurred by state and local
governments, or the agency issuing the regulation consults with state
and local officials early in the process of developing the proposed
regulation. A federal agency also may not issue a regulation that has
federalism implications and that preempts state law unless the agency
consults with state and local officials early in the process of
developing the proposed regulation.
CSISSFRRA currently restricts the dissemination of OCA information
by state and local officials and supersedes inconsistent provisions of
state or local law. The proposed rule would narrow those restrictions,
allowing certain state and local entities to provide the public with
read-only access to OCA information for local facilities. We have
consulted with state and local representatives of the Accident
Prevention Subcommittee of the CAA Advisory Committee (under the
Federal Advisory Committee Act (FACA)) about the implementation of the
OCA provisions of CSISSFRRA. In response to concerns some have raised
about a potentially chilling effect of CSISSFRRA's restrictions on
state and local officials' willingness to obtain OCA information and to
communicate the substance of that information to the public, the
proposed rule includes a provision clarifying that state and local
officials can share OCA data with the public as long as they do so in a
way that does not disseminate or permit mechanical replication of the
OCA sections of RMPs or provide access to EPA's OCA database. As noted
above, the proposed rule would also authorize some state and local
officials to share OCA information itself in certain ways.
We welcome comments on whether this rule has federalism
implications within the meaning of Executive Order 13132. We will
continue to consult with state and local representatives of the FACA
subcommittee, and other representatives of state and local governments,
as the rulemaking proceeds.
G. Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA) of 1980 (5 U.S.C. 601,
et seq.), as amended by the Small Business Regulatory Enforcement
Fairness Act of 1996 (SBREFA), agencies are required to give special
consideration to the effect of federal regulations on small entities
and to consider regulatory options that might mitigate any such
impacts. However, an agency need not prepare a regulatory flexibility
analysis if the rule would not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions.
In accordance with 5 U.S.C. 605(b), we certify that today's
proposed rule, if promulgated, would not have a significant economic
impact on a substantial number of small entities. Although the rule
would authorize small governmental jurisdictions to provide read-only
access to OCA information, it does not require those jurisdictions to
provide that access. The rule contains a prohibition on local
government officials (and other government officials) disclosing OCA
information to the public except in authorized ways, but that
prohibition already exists under CAA section 112(r)(7)(H)(v). Moreover,
we do not expect that any burden resulting indirectly from the
provisions of this rule would have a significant economic impact on the
operations of local governments.
H. Paperwork Reduction Act
The information collection requirements in this proposed rule have
been submitted for approval to 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. 1656.08) and a copy may be obtained
from Sandy Farmer by mail at Collection Strategies Division, U.S.
Environmental Protection Agency (2822), 1200 Pennsylvania Ave., N.W.,
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.
This proposed rule would impose minimal information collection
requirements, but would require recordkeeping. The respondent universe
for this rule is state and local officials and members of the public.
None of the respondent activities for state and local agencies are
mandatory and all depend on the state or local agency deciding to
obtain OCA information and/or communicating the substance of the
information or the information itself to the public. The respondent
activities for these agencies include reading and understanding the
Security Notice to federal, state, and local officials and researchers;
requesting the OCA information and certifying that they are covered
persons; providing secure storage for the CD Rom or paper copies when
not in use; learning how to use the database and software, if needed,
to produce a copy of an RMP; providing a location for the public to
review RMPs for local facilities; ensuring that members of the public
do not remove or copy RMPs they review; and making OCA data available
in formats other than the RMP format.
The number of respondents undertaking one or more of these
activities is estimated to be at least one agency in each of the 50
states; these agencies are assumed to be the SERCs and may be
environmental protection agencies, emergency management agencies, or
both. In addition, it is assumed that at least one agency in the 3,043
U.S. counties will elect to obtain OCA information and/or make OCA
information or the substance of that information available.
The counties are estimated to spend one hour per week and states
are estimated to spend four hours per week providing information to the
public. Because the work to be performed is either retrieving a paper
copy from a file cabinet or downloading a file from the database, then
either returning the copy to the file or shredding it, it is assumed
that these tasks will be carried out by clerical and administrative
staff. It is assumed that one county official per county and one state
official per state would submit a written request for the OCA
information. The total burden hours for counties and states are
estimated to be 169,670 hrs annually (509,010 hours for three years) at
a cost of $3,051,170 annually ($9,153,510 million for three years).
For members of the public, the respondent activity includes showing
a piece of personal identification and entering their name and the
names of the facilities whose OCA information they wish to view at a
federal reading room. It is assumed that two people from each county
will visit these reading rooms annually. The total burden hours for the
public to sign in at the reading rooms and provide personal
identification are estimated to be 507 hours annually (1520 hours for
three years) at a cost of $9,890 annually ($29,670 for three years).
[[Page 24846]]
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, disclose, or provide
information to or for a federal agency. This includes the time needed
to review instructions to develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating,
verifying, processing, maintaining, disclosing, and providing
information; to adjust existing ways to comply with any previously
applicable instructions and requirements; to train personnel; to search
data sources; to complete and review the collection of information; and
to 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 the collection
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 federal government's need for the
information being collected, the accuracy of the provided burden
estimates, and any suggested methods for minimizing the respondent
burden, including through the use of automated collection techniques.
Send comments on the ICR to the Director, Collection Strategies
Division, U.S. Environmental Protection Agency (2822), 1200
Pennsylvania Ave., N.W., Washington, DC 20460; and to the Office of
Information and Regulatory Affairs, Office of Management and Budget,
725 17th St., N.W., Washington, DC 20503, marked ``Attention: Desk
Officer for EPA.'' Include the ICR number in any correspondence.
Because OMB is required to make a decision concerning the ICR between
30 and 60 days after April 27, 2000 a comment to OMB is best assured of
having its full effect if OMB receives it by May 30, 2000. The final
rule will respond to any OMB or public comments on the information
collection requirements contained in this proposal.
I. Unfunded Mandates Reform Act of 1995
Today's proposed rule will not result in the expenditure by state,
local, and tribal governments, in the aggregate, or by the private
sector, of $100 million or more in any one year, and it contains no
requirements that might significantly or uniquely affect small
governments. Under the proposal, small governments that wish to obtain
OCA information would be required to request it, and once they obtained
it, would be prohibited from disseminating it except in accordance with
the rule. We do not expect that these provisions would impose a
significant burden. Moreover, certain members of small governments
would be authorized, but not required, to provide public access to OCA
information in a manner that is less burdensome than would be required
of federal covered persons. Therefore, no actions were deemed necessary
under the Unfunded Mandates Reform Act of 1995.
J. Small Business Regulatory Enforcement Fairness Act of 1996
This proposed rule is not a major rule as defined by section 251 of
the Small Business Regulatory Enforcement Fairness Act of 1996, 5
U.S.C. 804. This rule will not result in an annual effect on the
economy of $100 million or more; a major increase in costs or prices;
or significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United States-based
companies to compete with foreign-based companies in domestic and
export markets.
List of Subjects in 40 CFR Part 1400
Environmental protection, Chemicals, Chemical accident prevention.
Dated: April 19, 2000.
Carol M. Browner,
Administrator.
Dated: April 19, 2000.
Janet Reno
Attorney General.
For the reasons set forth in the preamble, EPA and DOJ propose to
establish chapter IV of title 40 of the Code of Federal Regulations,
consisting of subchapter A, part 1400, as follows:
CHAPTER IV--ENVIRONMENTAL PROTECTION AGENCY AND DEPARTMENT OF JUSTICE
SUBCHAPTER A--ACCIDENTAL RELEASE PREVENTION REQUIREMENTS; RISK
MANAGEMENT PROGRAMS UNDER THE CLEAN AIR ACT SECTION 112(R)(7);
DISTRIBUTION OF OFF-SITE CONSEQUENCE ANALYSIS INFORMATION
PART 1400--DISTRIBUTION OF OFF-SITE CONSEQUENCE ANALYSIS
INFORMATION
Subpart A--General
Sec.
1400.1X Purpose.
1400.2 Definitions.
Subpart B--Public Access
1400.3 Public access to paper copies of off-site consequence
analysis information.
1400.4 Risk indicator system.
1400.5 Internet access to certain off-site consequence analysis
data elements.
1400.6 Enhanced local access.
Subpart C--Access to Off-Site Consequence Analysis Information by
Government Officials
1400.7 In general.
1400.8 Access to off-site consequence analysis information by
federal government officials.
1400.9 Access to off-site consequence analysis information by
state and local government officials.
Subpart D--Other Provisions
1400.10 Limitation on public dissemination.
1400.11 Limitation on dissemination to state and local government
officials.
1400.12 Qualified researchers.
Authority: Public Law No. 106-40, 113 Stat 207 (42 U.S.C.
7412(r)).
Subpart A--General
Sec. 1400.1 Purpose.
Stationary sources subject to the chemical accident prevention
provisions of 40 CFR part 68 are required to analyze the potential harm
to public health and welfare of hypothetical chemical accidents and
submit the results of their analyses to the U.S. Environmental
Protection Agency as part of risk management plans. This part governs
access by the public and by government officials to the portions of
risk management plans containing the results of those analyses and
certain related materials.
Sec. 1400.2 Definitions.
For the purposes of this part:
(a) Accidental release means an unanticipated emission of a
regulated substance or other extremely hazardous substance into the
ambient air from a stationary source.
(b) Administrator means the Administrator of the U.S. Environmental
Protection Agency or her designated representative.
(c) Attorney General means the Attorney General of the United
States or her designated representative.
(d) Federal government official means--
(1) An officer or employee of the United States; and
(2) An officer or employee of an agent or contractor of the federal
government.
(e) State or local government official means--
(1) An officer or employee of a state or local government;
(2) An officer or employee of an agent or contractor of a State or
local government;
[[Page 24847]]
(3) An individual affiliated with an entity that has been given, by
a state or local government, responsibility for preventing, planning
for, or responding to accidental releases, such as a member of a Local
Emergency Planning Committee (LEPC) or a State Emergency Response
Commission (SERC), or a paid or volunteer member of a fire or police
department; or
(4) An officer or employee or an agent or contractor of an entity
described in paragraph (e)(3) of this section.
(f) LEPC means a Local Emergency Planning Committee created under
the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. 11001
et seq.
(g) Member of the public or person means an individual located in
the United States.
(h) Official use means an action of a federal, state, or local
government agency or an entity described in paragraph (e)(3) of this
section intended to carry out a function relevant to preventing,
planning for, or responding to accidental releases.
(i) Off-site consequence analysis (OCA) information means sections
2 through 5 of a risk management plan (consisting of an evaluation of 1
or more worst-case release scenarios or alternative release scenarios)
and any electronic database created by the Administrator from those
sections.
(j) Off-site consequence analysis (OCA) data elements means the
results of the off-site consequence analysis conducted by a stationary
source pursuant to 40 CFR part 68, subpart B, when presented in a
format different than sections 2 through 5 of a risk management plan or
any Administrator-created electronic database.
(k) Off-site consequence analysis (OCA) rankings means any
statewide or national ranking of identified stationary sources derived
from OCA information.
(l) Risk management plan (RMP) means a risk management plan
submitted to the Administrator by an owner or operator of a stationary
source pursuant to 40 CFR part 68, subpart G.
(m) SERC means a State Emergency Response Commission created under
the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. 11001
et seq.
(n) State has the same meaning as provided in 42 U.S.C. 7602(d) (a
state, the District of Columbia, the Commonwealth of Puerto Rico, the
Virgin Islands, Guam, American Samoa, and the Commonwealth of the
Northern Mariana Islands).
(o) Stationary source has the same meaning as provided in 40 CFR
part 68 subpart A, Sec. 68.3.
(p) Vulnerable zone means the geographical area that could be
affected by a worst-case or alternative scenario release from a
stationary source, as indicated by the off-site consequence analysis
reported by the stationary source in its risk management plan. It is
defined as a circle, the center of which is the stationary source and
the radius of which is the ``distance-to-endpoint,'' or the distance a
toxic or flammable cloud, overpressure, or radiant heat would travel
after being released and before dissipating to the point that it no
longer threatens serious short-term harm to people or the environment.
Subpart B--Public Access
Sec. 1400.3 Public access to paper copies of off-site consequence
analysis information.
(a) General. The Administrator and the Attorney General shall
ensure that any member of the public has access to paper copies of OCA
information for a limited number of stationary sources located anywhere
in the United States, without any geographical restriction, in the
manner prescribed by this section.
(b) Reading-room access. Paper copies of OCA information shall be
available in at least 50 reading rooms geographically distributed
across the United States. The reading rooms shall allow any person to
read, but not to remove or mechanically reproduce, paper copies of OCA
information, in accordance with paragraphs (c) and (d) of this section.
(c) Limited number. A reading room established under this section
shall provide any person with access to a paper copy of the OCA
information for up to 10 stationary sources per calendar month.
(d) Personal identification. A reading room established under this
section shall provide a person with access to a paper copy of OCA
information only after a reading room representative has viewed the
person's driver's license or another piece of identification issued by
a federal, state, or local government agency.
Sec. 1400.4 Risk indicator system.
(a) In general. The Administrator shall provide access to a
computer-based indicator that shall inform any person whether an
address specified by that person might be within the vulnerable zone of
one or more stationary sources, according to the data reported in RMPs.
The indicator also shall provide information about how to contact the
appropriate LEPC or SERC, or EPA, to obtain further information.
(b) Methods of access. The indicator shall be available on the
Internet or by request made by telephone or by mail to the
Administrator to operate the indicator for an address specified by the
requestor. SERCs, LEPCs, and fire departments are authorized and
encouraged to operate the indicator as well.
Sec. 1400.5 Internet access to certain off-site consequence analysis
data elements.
The Administrator shall include only the following OCA data
elements in the risk management plan database available on the
Internet:
(a) The concentration of the chemical (RMP Sections 2.1.b; 3.1.b);
(b) The physical state of the chemical (RMP Sections 2.2; 3.2);
(c) The statistical model used (RMP Sections 2.3; 3.3; 4.2; 5.2);
(d) Endpoint used for flammables in the worst-case scenario (RMP
Section 4.5);
(e) The duration of the chemical release for the worst-case
scenario (RMP Section 2.7);
(f) Wind speed during the chemical release (RMP Sections 2.8; 3.8);
(g) The atmospheric stability (RMP Sections 2.9; 3.9);
(h) The topography of the surrounding area (RMP Sections 2.10;
3.10);
(i) The passive mitigation systems considered (RMP Sections 2.15;
3.15; 4.10; 5.10); and
(j) The active mitigation systems considered (RMP Sections 3.16;
5.11).
Sec. 1400.6 Enhanced local access.
(a) OCA data elements--Consistent with 42 U.S.C.
7412(r)(7)(H)(xii)(II), members of LEPCs, SERCs, and fire departments
and any other government official may convey to the public OCA data
elements orally or in writing, as long as the data elements are not
conveyed in a format that replicates sections 2 through 5 of a risk
management plan or any electronic database developed by the
Administrator from those sections. Disseminating OCA data elements to
the public in a manner consistent with this provision does not violate
42 U.S.C. 7412(r)(7)(H)(v) and is not punishable under federal law.
(b) OCA information--
(1) Members of LEPCs or fire departments organized by local
government are authorized and encouraged to allow any member of the
public to read, but not to remove or mechanically copy, paper copies of
OCA information (i.e., sections 2 through 5 of risk management plans)
for stationary sources located within the jurisdiction of the LEPC and
for any other stationary sources that have a vulnerable zone that
extends into that jurisdiction.
[[Page 24848]]
(2) Members of LEPCs and fire departments are not required to limit
the number of stationary sources for which a person can read OCA
information or to view a person's personal identification before
allowing the person to read OCA information.
(3) Members of SERCs are authorized and encouraged to allow any
person to read, but not to remove or mechanically copy, paper copies of
OCA information for the same stationary sources that the LEPC in whose
jurisdiction the person lives or works would be authorized to make
available to that person.
(4) Any member of an LEPC, SERC, or fire department who allows a
person to read OCA information in a manner consistent with this
subsection shall not be in violation of 42 U.S.C. 7412(r)(7)(H)(v) or
any other provision of federal law.
Subpart C--Access to off-site consequence analysis information by
government officials.
Sec. 1400. 7 In general.
The Administrator shall provide OCA information to government
officials as provided in this section. Any OCA information provided to
government officials shall be accompanied by a copy of the notice
prescribed by 42 U.S.C. 7412(r)(7)(H)(vi).
Sec. 1400.8 Access to off-site consequence analysis information by
federal government officials.
The Administrator shall provide any federal government official
with the OCA information requested by the official for his or her
official use. The Administrator shall provide the OCA information to
the official in electronic form, unless the official specifically
requests the information in paper form. The Administrator may charge a
fee to cover the cost of copying OCA information in paper form.
Sec. 1400.9 Access to off-site consequence analysis information by
state and local government officials.
(a) The Administrator shall make available to any state or local
government official for his or her official use the OCA information for
stationary sources located in the official's state.
(b) The Administrator also shall make available to any state or
local government official for his or her official use the OCA
information for stationary sources not located in the official's state,
at the request of the official.
(c) The Administrator shall provide OCA information to a state or
local government official in electronic form, unless the official
specifically requests the information in paper form. The Administrator
may charge a fee to cover the cost of copying OCA information in paper
form.
(d) Any state or local government official is authorized to
provide, for official use, OCA information relating to stationary
sources located in the official's state to a state or local government
official in a contiguous state.
Subpart D--Other Provisions
Sec. 1400.10 Limitation on public dissemination.
Except as authorized by this part and by 42 U.S.C.
7412(r)(7)(H)(v)(III), federal, state, and local government officials,
and qualified researchers under 42 U.S.C. 7412(r)(7)(H)(vii), are
prohibited from disseminating OCA information and OCA rankings to the
public. Violation of this provision subjects the violator to criminal
liability as provided in 42 U.S.C. 7412(r)(7)(H)(v) and civil liability
as provided in 42 U.S.C. 7413.
Sec. 1400.11 Limitation on dissemination to state and local government
officials.
Except as authorized by this part and by 42 U.S.C.
7412(r)(7)(H)(v)(III), federal, state, and local government officials,
and qualified researchers under 42 U.S.C. 7412(r)(7)(H)(vii), are
prohibited from disseminating OCA information to state and local
government officials. Violation of this provision subjects the violator
to civil liability as provided in 42 U.S.C. 7413.
Sec. 1400.12 Qualified researchers.
The Administrator is authorized to provide OCA information,
including facility identification, to qualified researchers pursuant to
a system developed and implemented under 42 U.S.C. 7412(r)(7)(H)(vii),
in consultation with the Attorney General.
[FR Doc. 00-10641 Filed 4-25-00; 1:03 pm]
BILLING CODE 6560-50-P