Accidental Release Prevention Requirements; Risk Management
Programs Under Clean Air Act Section 112(r)(7); Amendments
Related Material
[Federal Register: January 6, 1999 (Volume 64, Number 3)]
[Rules and Regulations]
[Page 963-980]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06ja99-11]
[[Page 963]]
_______________________________________________________________________
Part IV
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 68
Accidental Release Prevention Requirements; Risk Management Programs
Under Clean Air Act Section 112(r)(7), Amendments; Final Rule
[[Page 964]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 68
[FRL-6214-9]
RIN 2050-AE46
Accidental Release Prevention Requirements; Risk Management
Programs Under Clean Air Act Section 112(r)(7); Amendments
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: This action modifies the chemical accident prevention rule
codified in 40 CFR Part 68. The chemical accident prevention rule
requires owners and operators of stationary sources subject to the rule
to submit a risk management plan (RMP) by June 21, 1999, to a central
location specified by EPA. In this action, EPA is amending the rule to:
add four mandatory and five optional RMP data elements, establish
specific procedures for protecting confidential business information
when submitting RMPs, adopt the government's use of a new industry
classification system, and make technical corrections and
clarifications to Part 68. However, as stated in the proposed rule for
these amendments, this action does not address issues concerning public
access to offsite consequence analysis data in the RMP.
DATES: The rule is effective February 5, 1999.
ADDRESSES: Supporting material used in developing the proposed rule and
final rule is contained in Docket A-98-08. The docket is available for
public inspection and copying between 8:00 a.m. and 5:30 p.m., Monday
through Friday (except government holidays) at Room 1500, 401 M Street
SW, Washington, DC 20460. A reasonable fee may be charged for copying.
FOR FURTHER INFORMATION CONTACT: Sicy Jacob or John Ferris, Chemical
Emergency Preparedness and Prevention Office, Environmental Protection
Agency (5104), 401 M Street SW, Washington, DC 20460, (202) 260-7249 or
(202) 260-4043, respectively; or the Emergency Planning and Community
Right-to-Know Hotline at 800-424-9346 (in the Washington, DC
metropolitan area, (703) 412-9810). You may wish to visit the Chemical
Emergency Preparedness and Prevention Office (CEPPO) Internet site, at
www.epa.gov/ceppo.
SUPPLEMENTARY INFORMATION:
Regulated Entities
Entities potentially regulated by this action are those stationary
sources that have more than a threshold quantity of a regulated
substance in a process. Regulated categories and entities include:
------------------------------------------------------------------------
Category Examples of regulated entities
------------------------------------------------------------------------
Chemical Manufacturers....... Basic chemical manufacturing,
petrochemicals, resins, agricultural
chemicals, pharmaceuticals, paints,
cleaning compounds.
Petroleum.................... Refineries.
Other Manufacturing.......... Paper, electronics, semiconductors,
fabricated metals, industrial machinery,
food processors.
Agriculture.................. Agricultural retailers.
Public Sources............... Drinking water and waste water treatment
systems.
Utilities.................... Electric utilities.
Other........................ Propane retailers and users, cold
storage, warehousing, and wholesalers.
Federal Sources.............. Military and energy installations.
------------------------------------------------------------------------
This table is not meant to be exhaustive, but rather provides a
guide for readers to indicate those entities likely to be regulated by
this action. The table lists entities EPA is aware of that could
potentially be regulated by this action. Other entities not listed in
the table could also be regulated. To determine whether a stationary
source is regulated by this action, carefully examine the provisions
associated with the list of substances and thresholds under Sec. 68.130
and the applicability criteria under Sec. 68.10. If you have questions
regarding applicability of this action to a particular entity, consult
the hotline or persons listed in the preceding FOR FURTHER INFORMATION
CONTACT section.
Table of Contents
I. Introduction and Background
A. Statutory Authority
B. Background
II. Summary of the Final Rule
III. Discussion of Issues
A. NAICS Codes
B. RMP Data Elements
C. Prevention Program Reporting
D. Confidential Business Information
E. Other Issues
F. Technical Corrections
IV. Section-by-Section Discussion of the Final Rule
V. Judicial Review
VI. Administrative Requirements
A. Docket
B. Executive Order 12866
C. Executive Order 12875
D. Executive Order 13045
E. Executive Order 13084
F. Regulatory Flexibility
G. Paperwork Reduction
H. Unfunded Mandates Reform Act
I. National Technology Transfer and Advancement Act
J. Congressional Review Act
I. Introduction and Background
A. Statutory Authority
These amendments are being promulgated under sections 112(r) and
301(a)(1) of the Clean Air Act (CAA) as amended (42 U.S.C. 7412(r),
7601(a)(1)).
B. Background
The 1990 CAA Amendments added section 112(r) to provide for the
prevention and mitigation of accidental chemical releases. Section
112(r) mandates that EPA promulgate a list of ``regulated substances,''
with threshold quantities. Processes at stationary sources that contain
a threshold quantity of a regulated substance are subject to accidental
release prevention regulations promulgated under CAA section 112(r)(7).
EPA promulgated the list of regulated substances on January 31, 1994
(59 FR 4478) (the ``List Rule'') and the accidental release prevention
regulations creating the risk management program requirements on June
20, 1996 (61 FR 31668) (the ``RMP Rule''). Together, these two rules
are codified as 40 CFR Part 68. EPA amended the List Rule on August 25,
1997 (62 FR 45132), to change the listed concentration of hydrochloric
acid. On January 6, 1998 ( 63 FR 640), EPA amended the List Rule to
delist Division 1.1 explosives (classified by DOT), to clarify certain
provisions related to regulated flammable substances and to clarify the
transportation exemption.
Part 68 requires that sources with more than a threshold quantity
of a regulated substance in a process develop and implement a risk
management program that includes a five-year accident history, offsite
consequence analyses, a prevention
[[Page 965]]
program, and an emergency response program. In Part 68, processes are
divided into three categories (Programs 1 through 3). Processes that
have no potential impact on the public in the case of accidental
releases have minimal requirements (Program 1). Processes in Programs 2
and 3 have additional requirements based on the potential for offsite
consequences associated with the worst-case accidental release and
their accident history. Program 3 is also triggered if the processes
are subject to OSHA's Process Safety Management (PSM) Standard. By June
21, 1999, sources must submit to a location designated by EPA, a risk
management plan (RMP) that summarizes their implementation of the risk
management program.
When EPA promulgated the risk management program regulations, it
stated that it intended to work toward electronic submission of RMPs.
The Accident Prevention Subcommittee of the CAA Advisory Committee
convened an Electronic Submission Workgroup to examine technical and
practical issues associated with creating a national electronic
repository for RMPs. Based on workgroup recommendations, EPA is in the
process of developing two systems, a user-friendly PC-based submission
system (RMP*Submit) and a database of RMPs (RMP*Info).
The Electronic Submission Workgroup also recommended that EPA add
some mandatory and optional data elements to the RMP and asked EPA to
clarify how confidential business information (CBI) submitted in the
RMP would be handled. Based on these recommendations and requests for
clarifications, EPA proposed amendments to Part 68 on April 17, 1998
(63 FR 19216). These amendments proposed to replace the use of Standard
Industrial Classification (SIC) codes with the North American Industry
Classification System (NAICS) codes, add four mandatory data elements
to the RMP, add five optional data elements to the RMP, establish
specific requirements for submission of information claimed CBI, and
make technical corrections and clarifications to the rule. EPA received
47 written comments on the proposed rule. Today's rule reflects EPA's
consideration of all comments; major issues raised by commenters and
EPA's responses are discussed in Section III of this preamble. A
summary of all comments submitted and EPA's responses can be found in a
document entitled, Accidental Release Prevention Requirements; Risk
Management Programs Under Clean Air Act Section 112(r)(7); Amendments:
Summary and Response to Comments, in the Docket (see ADDRESSES).
II. Summary of the Final Rule
NAICS Codes
On January 1, 1997, the U.S. Government, in cooperation with the
governments of Canada and Mexico, adopted a new industry classification
system, the North American Industry Classification System (NAICS), to
replace the Standard Industrial Classification (SIC) codes (April 9,
1997, 62 FR 17288). The applicability of some Part 68 requirements
(i.e., Program 3 prevention requirements) is determined, in part, by
SIC codes, and Part 68 also requires the reporting of SIC codes in the
RMP. Therefore, EPA is revising Part 68 to replace all references to
``SIC code'' with ``NAICS code.'' In addition, EPA is replacing, as
proposed, the nine SIC codes subject to Program 3 prevention program
requirements with ten NAICS codes, as follows:
NAICS Sector
32211 Pulp mills
32411 Petroleum refineries
32511 Petrochemical manufacturing
325181 Alkalies and chlorine
325188 All other inorganic chemical manufacturing
325192 Other cyclic crude and intermediate manufacturing
325199 All other basic organic chemical manufacturing
325211 Plastics and resins
325311 Nitrogen fertilizer
32532 Pesticide and other agricultural chemicals
NAICS codes are either five or six digits, depending on the degree to
which the sector is subdivided.
RMP Data Elements
As proposed, EPA is adding four new data elements to the RMP:
latitude/longitude method and description, CAA Title V permit number,
percentage weight of a toxic substance in a liquid mixture, and NAICS
code for each process that had an accidental release reported in the
five-year accident history. EPA is also adding five optional data
elements: local emergency planning committee (LEPC) name, source or
parent company e-mail address, source homepage address, phone number at
the source for public inquiries, and status under OSHA's Voluntary
Protection Program (VPP).
Prevention Program Reporting
EPA is not revising Sections 68.170 and 68.175 as proposed.
Prevention program reporting, therefore, will not be changed to require
a prevention program for each portion of a process for which a Process
Hazard Analysis (PHA) or hazard review was conducted. Instead, EPA
plans to create functions within RMP*Submit to provide stationary
sources with a flexible way of explaining the scope and content of each
prevention program they implement at their facility.
Confidential Business Information
EPA is clarifying how confidential business information (CBI)
submitted in the RMP will be handled. EPA has determined that the
information required by certain RMP data elements does not meet the
criteria for CBI and therefore may not be claimed as such. The Agency
is also requiring submission of substantiation at the time a CBI claim
is filed.
Finally, EPA is promulgating several of the technical corrections
and clarifications, as proposed in the Federal Register, April 17, 1998
(63 FR 19216).
III. Discussion of Issues
EPA received 47 comments on the proposed rule. The commenters
included chemical manufacturers, petroleum refineries, environmental
groups, trade associations, a state agency, and members of the public.
The major issues raised by commenters are addressed briefly below. The
Agency's complete response to comments received on this rulemaking is
available in the docket (see ADDRESSES). The document is titled
Accidental Release Prevention Requirements; Risk Management Programs
Under Clean Air Act Section 112(r)(7); Amendments: Summary and Response
to Comments.
A. NAICS Codes
Two commenters asked that sources be given the option to use either
SIC codes or NAICS codes, or both, in their initial RMP because the
NAICS system is new and may not be familiar to sources. EPA disagrees
with this suggestion. EPA intends to provide several outreach
mechanisms to assist sources in identifying their new NAICS code.
RMP*Submit will provide a ``pick list'' that will make it easier for
sources to find the appropriate code. Also, selected NAICS codes are
included in the General Guidance for Risk Management Programs (July
1998) and in the industry-specific guidance documents that EPA is
developing. EPA will also utilize the Emergency Planning and Community
Right-to-Know Hotline at 800-424-9346 (or 703-412-9810) and its web
site at www.epa.gov/ceppo/, to assist sources in determining the
source's NAICS codes. EPA also notes that the Internal Revenue Service
is planning to require businesses to
[[Page 966]]
provide NAICS-based activity codes on their 1998 tax returns, so many
sources will have become familiar with their NAICS codes by the June
1999 RMP deadline.
EPA believes it is necessary and appropriate to change from SIC
codes to NAICS codes at this time. EPA recognizes that NAICS codes were
developed for statistical purposes by the Office of Management and
Budget (OMB). In the notice of April 9, 1997 (62 FR 17288) OMB stated
that the ``[u]se of NAICS for nonstatistical purposes (e.g.,
administrative, regulatory, or taxation) will be determined by the
agency or agencies that have chosen to use the SIC for nonstatistical
purposes.'' EPA has determined that NAICS is appropriate in this rule
for several reasons. First, the reason the SIC codes were replaced by
NAICS codes is because the SIC codes no longer accurately represent
today's industries. The SIC codes will become more obsolete over time
because OMB will no longer be supporting the SIC codes; therefore, no
new or modified SIC codes will be developed to reflect future changes
in industries. Second, as the SIC codes become obsolete, most users of
SIC codes will likely change to NAICS codes over time, so future data
sharing and consistency will be enhanced by use of NAICS codes in the
RMP program. Third, through this rulemaking process, EPA has analyzed
specific conversions of SIC codes to NAICS codes for the RMP program
and was able to identify NAICS codes that were applicable to fulfilling
the purposes of this rule. Finally, because the RMP reporting
requirement is new, it is reasonable to begin the program with NAICS
codes now rather than converting to them later.
Three commenters expressed support for the ten NAICS codes that EPA
proposed to use in place of the nine SIC codes referenced in section
68.10(d)(1) of Part 68 and one commenter partially objected. Section
68.10(d)(1) provides that processes in the referenced codes are subject
to Program 3 requirements (if not eligible for Program 1). One
commenter objected to EPA's proposal to replace the SIC code for pulp
and paper mills with only the NAICS code for pulp mills that do not
also produce paper or paperboard. The commenter asked EPA to reexamine
the accident history of paper and paperboard mills. As discussed in the
preamble of the proposed rule, EPA reviewed the accident history data
prior to proposing the new NAICS codes. Neither facilities that
classify themselves as paper mills (NAICS Code 322121) nor paperboard
mills (NAICS code 32213) met the accident history criteria that EPA
used to select industrial sectors for Program 3.
EPA notes that a pulp process at a paper or a paperboard mill may
still be subject to Program 3 as long as the process contains more than
a threshold quantity of a regulated substance and is not eligible for
Program 1. Section 68.10(d)(1) uses industrial codes to classify
processes, not facilities as a whole. Since section 68.10(d)(1) will
continue to list the code for pulp mills, pulpmaking processes will
continue to be subject to Program 3. In addition, under section
68.10(d)(2), paper processes will be in Program 3 (unless eligible for
Program 1) if they are subject to OSHA's Process Safety Management
(PSM) standard. Most pulp and paper processes are, in fact, subject to
this standard.
One commenter objected to assigning NAICS codes to a process rather
than the source as a whole. EPA first notes that the requirement to
assign a SIC code to a process was adopted in the original RMP
rulemaking two years ago. Today's rule does not change that requirement
except to substitute NAICS for SIC codes. In any event, EPA is today
modifying Part 68 to clarify that sources provide the NAICS code that
``most closely corresponds to the process.'' EPA believes that
assigning an industry code to a process will help implementing agencies
and the public understand what the covered process does; using the code
makes it possible to provide this information without requiring a
detailed explanation from the source. In addition, the primary NAICS
code for a source as a whole may not reflect the activity of the
covered process.
B. RMP Data Elements
EPA proposed to add, as optional RMP data elements: local emergency
planning committee (LEPC), source (or parent company) E-mail address,
source homepage address, phone number at the source for public
inquiries, and OSHA Voluntary Protection Program (VPP) status. EPA also
proposed to add, as mandatory data elements: method and description of
latitude/longitude, Title V permit number, percent weight of a toxic
substance in a liquid mixture, and NAICS code (only in the five-year
accident history section).
Commenters generally supported the new optional data elements. One
commenter requested that the optional elements be made mandatory. EPA
disagrees with this comment. While the elements are useful, many
sources covered by this rule will not have e-mail addresses or home
pages. The RMP will provide both addresses and phone numbers so that
the public will have methods to reach the source. EPA has learned that
in some areas there are no functioning LEPCs, therefore, at this time,
EPA will not add this as a mandatory data element. However, in most
cases, the LEPC for an area can be determined by contacting the local
government or the State Emergency Response Commission (SERC) for which
the area is located. Therefore, reporting these data elements will
remain optional at this time.
One commenter supported adding the listing of local emergency
planning committee in the RMP data elements as an optional data
element. The commenter stated that, although it is an optional data
element, this listing will enhance the ability of local responders and
emergency planners to adequately prepare and train for emergency
events.
Of the data elements that were proposed to be mandatory, one
commenter objected to the addition of latitude/longitude method and
description. The commenter stated that it was not clear in the proposal
why the method and description information is needed. EPA is seeking
latitude/longitude method and description in accordance with its
Locational Data Policy. Several EPA regulations require sources to
provide their latitude and longitude, so that EPA can more readily
locate facilities and communicate data between Agency offices. Sharing
of data between EPA offices reduces duplication of information.
Latitude/longitude method and description provides information needed
by EPA offices, and other users of the data, to rectify discrepancies
that may appear in the latitude and longitude information provided by
the source under various EPA requirements. Documentation of the method
by which the latitude and longitude are determined and a description of
the location point referenced by the latitude and longitude (e.g.,
administration building) will permit data users to evaluate the
accuracy of those coordinates, thus addressing EPA data sharing and
integration objectives.
EPA believes this information will also facilitate EPA-State
coordination of environmental programs, including the chemical accident
prevention rule. The State/EPA Data Management Program is a successful
multi-year initiative linking State environmental regulatory agencies
and EPA in cooperative action. The Program's goals include improvements
in data quality and data integration based on location identification.
Therefore, as proposed, the latitude/longitude method and description
will be added to the existing RMP data
[[Page 967]]
elements. RMP*Submit will provide a list of methods and descriptions
from which sources may choose.
EPA also proposed to require that sources report the percentage
weight (weight percent) of a toxic substance in a mixture in the
offsite consequence analysis (OCA) and the accident history sections of
the RMP. This information is necessary for users of RMP data to
understand how worst case and alternative release scenarios have been
modeled. EPA has decided to require reporting of the weight percent of
toxic substance in a liquid mixture because this information is
necessary to understand the volatilization rate, which determines the
downwind dispersion distance of the substance. The volatilization rate
is affected by the vapor pressure of the substance in the mixture. For
example, a spill of 70 percent hydrofluoric acid (HF) will volatilize
more quickly than a spill of the same quantity of HF in a 50 percent
solution; consequently, over a 10-minute period, the 70 percent
solution will travel further. Reviewers of the RMP data, including
local emergency planning committees, need to know the weight percent to
be able to evaluate the results reported in the offsite consequence
analysis and the impacts reported in the accident history. Without
knowing the weight percent of the substance in the mixture, users of
the data may compare scenarios or incidents that appear to involve the
same chemical in the same physical state, but in fact involve the same
chemical held in a different physical state.
One commenter stated that for gas mixtures, percentage by volume
(or volume percent) should be required to be reported rather than
weight percent. In this final rule, EPA does not require reporting of
the weight percent (or volume percent) of a regulated substance in a
gas mixture. If a source handles regulated substances in a gaseous
mixture (e.g., chlorine with hydrogen chloride), the quantity of a
particular regulated substance in the mixture is what is reported in
the RMP, since that is what would be released into the air. Its
percentage weight in the mixture is irrelevant.
Another commenter objected to this data element, claiming that it
could result in reverse engineering and create a competitive
disadvantage. EPA does not believe that this requirement would create a
competitive disadvantage, since similar information is available to the
public under Emergency Planning and Community Right-to-Know Act (EPCRA)
of 1986. Even so, if it were to have such an effect, sources can claim
this element as CBI if it can meet the criteria for CBI claims in 40
CFR Part 2. Another commenter stated that the public would be concerned
if the percentages did not add to 100, in the event that the source
handles both regulated and non-regulated substances. EPA believes that
because a source must model only one substance in a release scenario,
the source need not report the percentages of the other substances in
the mixture. Therefore, it is expected that the weight percent for
mixtures would not always add up to 100, because the mixture could
contain non-regulated substances.
A third commenter suggested that requiring sources to report
percentage weight of a toxic substance in a liquid mixture would create
confusion with the reporting of mixtures containing flammable regulated
substances.
In the January 6, 1998 rule (63 FR 640), EPA clarified that
flammable regulated substances in mixtures are only covered by the RMP
rule if the entire mixture meets the National Fire Protection
Association (NFPA) criteria of 4, thus the entire mixture becomes the
regulated substance. As a result, the percentage of flammables in a
mixture is not relevant under the rule and the requirement to report
the percentage weight will only apply to toxic substances in a liquid
mixture.
Finally, in the Federal Register notice of June 20, 1996 (61 FR
31688), EPA clarified the relationship between the risk management
program and the air permit program under Title V of the CAA for sources
subject to both requirements. Under section 502(b)(5)(A), permitting
authorities must have the authority to assure compliance by all covered
sources with each applicable CAA standard, regulation or requirement,
including the regulations implementing section 112(r)(7). Requiring
sources covered by Title V and section 112(r) to provide their Title V
permit number will help Title V permitting authorities assure that each
source is complying with the RMP rule.
In summary, with the exception of adding the phrase ``that most
closely corresponds to the process'' in sections 68.42(b)(4),
68.160(b)(7), 68.170(b), and 68.175(b), EPA has decided to finalize the
optional and mandatory data elements as they were proposed.
C. Prevention Program Reporting
The final RMP rule, issued June 20, 1996 (61 FR 31668), requires
sources to report their prevention program for each ``process.''
Because the applicable definition of ``process'' is broad, multiple
production and storage units might be a single, complex ``process.''
However, the Agency realizes that some elements of a source's
prevention program for a process may not be applicable to every portion
of the process. In such a situation, reporting prevention program
information for the process as a whole could be misleading without an
explanation of which prevention program element applies to which part
of the process. In order to get more specific information on which
prevention program practices apply to different production and storage
units within a process, EPA proposed to revise the rule to require
prevention program reporting for each part of the process for which a
separate process hazard analysis (PHA) or hazard review was conducted.
EPA further proposed deleting the second sentence from both sections
68.170(a) and 68.175(a), which presently states that, ``[i]f the same
information applies to more than one covered process, the owner or
operator may provide the information only once, but shall indicate to
which process the information applies.''
A number of industry commenters objected to the proposed revisions
as wrongly assuming that a one-to-one relationship exists between a
prevention program and a PHA. The commenters asserted that EPA's
proposed revision did not reflect how facilities conduct PHAs or
implement prevention measures and would cause significant duplicate
reporting, creating unnecessary extra work for facility personnel. One
commenter explained that depending on a source's circumstances, it
might conduct a PHA for each production line, including all of its
different units, or it might conduct a PHA for each common element of
its different production lines. Accordingly, the commenters claimed
that EPA's proposal to require the owner/operator to submit separate
prevention program information for every portion of a process covered
by a PHA would result in multiple submissions of much of the same
material, and would add no value to process safety or accidental
release prevention. Commenters also opposed the deletion of the second
sentence in sections 68.170(a) and 68.175(a). One commenter noted that
many of the elements of the prevention program will not only be common
to a process, but will be common to an entire stationary source. Thus
commenters argued that EPA's proposals would result in redundant
submittals and place an unjustified burden on the regulated community.
EPA acknowledges that PHAs do not necessarily determine the scope
of prevention program measures. Moreover, EPA agrees that duplicative
[[Page 968]]
reporting should be reduced as much as possible. At the same time, EPA,
implementing agencies, and other users of RMP data need to have
information that is detailed enough to understand the hazards posed by,
and the safety practices used for, particular parts of processes and
equipment. EPA recognizes that some aspects of prevention programs are
likely to be implemented facility-wide, rather than on a process or
unit basis, whereas other aspects may apply to a particular process or
only to particular units within a process. For example, most sources
are likely to develop an employee participation plan and a system for
hot work permits facility-wide, rather than on a process or unit basis.
For sources having processes that include several units (e.g., multiple
reactors or purification systems), the hazards, process controls, and
mitigation systems may vary among the individual units. For example,
one may have a deluge fire control system while another may have a
runaway reaction quench system.
EPA has concluded that its proposed changes to prevention program
reporting would not lead sources to prepare RMPs that accurately and
efficiently communicate the hazards posed by different aspects of
covered processes and the safety practices used to address those
hazards. The Agency now believes that no rule changes are necessary to
ensure that RMPs convey that information. The current rule already
requires prevention program reporting, and the issue has been how to
efficiently convey that information in sufficient detail. EPA believes
that its electronic program for submitting RMPs can be designed to
provide for sufficient specificity in prevention program reporting
without requiring duplicative reporting. In particular, the Agency
plans to create a comment/text field in RMP*Submit for specifying which
parts of a prevention program apply to which portions of a particular
process. For example, if a deluge system only applies to a certain part
of the overall process, the source would indicate in the comment/text
screen the portions of the process to which the deluge system applies.
To reduce the burden of reporting, EPA also plans to create a
function in RMP*Submit which will allow a source to automatically copy
prevention program data previously entered for one process to fill
blank fields in another process's prevention program. The source could
then edit any of the data elements that are different. For example,
where the prevention programs for two processes are identical (e.g.,
two identical storage tanks that are considered separate processes),
the source could copy the data entered for one to fill in the blank
field for the other. If some of the data elements vary between the
prevention programs, the source will be able to autofill and change
only those items that vary among processes or units.
Although the autofill option will minimize the burden of reporting
common data elements for those sources filing electronically, EPA has
decided not to delete the sentence, in both sections 68.170(a) and
68.175(a), which states, ``[i]f the same information applies to more
than one covered process, the owner or operator may provide the
information only once, but shall indicate to which processes the
information applies '', as proposed.
D. Confidential Business Information (CBI)
1. Background
A central element of the chemical accident prevention program as
established by the Clean Air Act and implemented by Part 68 is
providing state and local governments and the public with information
about the risk of chemical accidents in their communities and what
stationary sources are doing to prevent such accidents. As explained in
the preamble to the final RMP rule (61 FR 31668, June 20, 1996), every
covered stationary source is required to develop and implement a risk
management program and provide information about that program in its
RMP. Under CAA section 112(r)(7)(B)(iii), a source's RMP must be
registered with EPA and also submitted to the Federal Chemical Safety
and Hazard Investigation Board (``the Board''), the state in which the
source is located, and any local entity responsible for emergency
response or planning. That section also provides that RMPs ``shall be
available to the public under section 114(c)'' of the CAA. Section
114(c) gives the public access to information obtained under the Clean
Air Act except for information (other than emission data) that would
divulge trade secrets.
As noted previously, in the final RMP rule EPA announced its plan
to develop a centralized system for submitting electronic versions of
RMPs that would reduce the paperwork burden on both industry and
receiving agencies and provide ready public access to RMP data. Under
the system, a covered source would submit its RMP on computer diskette,
which would be entered into a central database that all interested
parties could access electronically. The system would thus make it
possible for a single RMP submission to reach all interested parties,
including those identified in section 112(r)(7)(B)(iii).1
---------------------------------------------------------------------------
\1\ It is important to note that, as discussed in Section III. E
of this preamble, this rule does not address issues concerning
public access to offsite consequence analysis data in the RMP.
---------------------------------------------------------------------------
An important assumption underlying the Agency's central submission
plan was that RMPs would rarely, if ever, contain confidential business
information (CBI). Following publication of the final rule, concerns
were raised that at least some of the information required to be
reported in RMPs could be CBI in the case of particular sources. While
the June 20, 1996 rule provided for protection of CBI under section
114(c) (see section 68.210(a)), EPA was asked to address how CBI would
be protected in the context of the electronic programs being developed
for RMP submission and public access.
In the April 17, 1998 proposal to revise the RMP rule, EPA made
several proposals concerning protection of CBI. It first reviewed the
information requirements for RMPs (sections 68.155-185) and proposed to
find that certain required data elements would not entail divulging
information that could meet the test for CBI set forth in the Agency's
comprehensive CBI regulations at 40 CFR Part 2.\2\ Information provided
in response to those requirements could not be claimed CBI. EPA also
requested comment on whether some information that might be claimed as
CBI (e.g., worst-case release rate or duration) would be ``emission
data'' and thus publicly available under section 114(c) even if CBI.
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\2\ Information is CBI if (1) the business has asserted a claim
which has not expired, been waived, or been withdrawn; (2) the
business has shown that it has taken and will continue to take
reasonable steps to protect the information from disclosure; (3) the
information is not and has not been reasonably obtainable by the
public (other than governmental bodies) by use of legitimate means;
(4) no statute requires disclosure of the information; and (5)
disclosure of the information is likely to cause substantial harm to
the business' competitive position. 40 CFR section 2.208.
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EPA administers a variety of statutes pertaining to the protection
of the environment, each with its own data collection requirements and
requirements for disclosure of information to the public. In the
implementation of these statutes, the Agency collects emission,
chemical, process, waste stream, financial, and other data from
facilities in many, if not most, sectors of American business.
Companies may consider some of this information vital to their
competitive
[[Page 969]]
position, and claim it as confidential business information (CBI).
In the course of implementing statutes, the Agency may have a need
to communicate some or all of the information it collects to the public
as the basis for a rulemaking, to its contractors, or in response to
requests pursuant to the Freedom of Information Act (FOIA). Information
found to be CBI is exempt from disclosure under FOIA. To manage both
CBI claims and FOIA requests, EPA has promulgated in 40 CFR Part 2,
Subpart B a set of procedures for reviewing CBI claims, releasing
information found not to be CBI, and where authorized, disclosing CBI.
Subpart B lists the criteria that information must meet in order to be
considered CBI, as well as the special handling requirements the Agency
must follow when disclosing CBI to authorized representatives.
For RMP requirements that might entail divulging CBI, EPA proposed
that a source be required to substantiate a CBI claim to EPA at the
time that it makes the claim. Under EPA's Part 2 regulations, a source
claiming CBI generally is required to substantiate the claim only when
EPA needs to make the information public as part of some proceeding
(e.g., a rulemaking) or EPA receives a request from the public (e.g.,
under the Freedom of Information Act (FOIA)) for the information. In
view of the public information function of RMPs and the interest
already expressed by members of the public in them, EPA proposed ``up-
front substantiation'' of CBI claims to ensure that information not
meeting CBI criteria would be made available to the public as soon as
possible. This approach of requiring up-front substantiation is the
same as that used for trade secret claims filed under the Emergency
Planning and Community Right-to-Know Act (EPCRA) of 1986.\3\
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\3\ Section 302 of EPCRA (codified in 40 CFR Part 355) requires
any facility having more than a threshold planning quantity of an
extremely hazardous substance (EHS) to notify its state emergency
response commission (SERC) and local emergency planning committee
(LEPC) that the facility is subject to emergency planning. The vast
majority of toxic substances listed in 40 CFR Section 68.130 were
taken from the EHS list. Section 303 of EPCRA requires LEPCs to
prepare an emergency response plan for the community that is under
their jurisdiction. Section 303 of EPCRA also requires that
facilities subject to section 302 shall provide any information
required by their LEPC necessary for developing and implementing the
emergency plan. Section 304 of EPCRA requires an immediate
notification of a release of an EHS or Hazardous Substances listed
in 40 CFR Section 302.4 above a reportable quantity to state and
local entities. Section 304 also requires a written follow-up which
includes among other things, the chemical name, quantity released
and any known or anticipated health risks associated with the
release. Sections 311 and 312 of EPCRA (codified in 40 CFR Part 370)
require facilities that are subject to OSHA Hazard Communication
Standard (HCS), to provide information to its SERC, LEPC and local
fire department. This information includes the hazards posed by its
chemicals, and inventory information, including average daily
amount, maximum quantity and general location. Section 313 of EPCRA
(codified in 40 CFR Part 372) requires certain facilities that are
in specific industries (including chemical manufacturers) and that
manufacture, process, or otherwise use a toxic chemical above
specified threshold amounts to report, among other things, the
annual quantity of the toxic chemical entering each environmental
medium. Most facilities covered by CAA 112(r) are covered by one or
more of these sections of EPCRA. Section 322 of EPCRA (codified in
Part 350) allows facilities to claim only the chemical identity as
trade secret.
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In addition, EPA proposed that any source claiming CBI submit two
versions of its RMP: (1) a redacted (``sanitized''), electronic
version, which would become part of RMP*Info, and (2) an unsanitized
(unredacted) paper copy of the RMP (see proposed section 68.151(c)).
The electronic database of RMPs would contain only the redacted version
unless and until EPA ruled against all or part of the source's CBI
claim, in keeping with the Part 2 procedures. In this way, the public
would have access only to the non-CBI elements of sources' RMPs. EPA
further stated that state and local agencies could receive the
unredacted RMPs by requesting them from EPA under the Part 2
regulations. Those regulations authorize EPA to provide CBI to an
agency having implementation responsibilities under the CAA if the
agency either demonstrates that it has the authority under state or
local law to compel such information directly from the source or that
it will ``provide adequate protection to the interests of affected
businesses'' (40 CFR 2.301(h)(3)).
The following sections of this preamble summarize and respond to
the comments EPA received on the CBI-related aspects of its proposal.
At the outset, however, EPA wants to emphasize that it does not
anticipate many CBI claims being made in connection with RMPs. The
Agency developed the RMP data elements with the issue of CBI in mind.
It sought to define data elements that would provide basic information
about a source's risk management program without requiring it to reveal
CBI. To have done otherwise would have risked creating RMPs that were
largely unavailable to the public. EPA continues to believe that the
required RMP data elements will rarely require that a business divulge
CBI. The Agency will carefully monitor the CBI claims made. If it
appears that the number of claims being made is jeopardizing the public
information objective of the chemical accident prevention program, EPA
will consider ways of revising RMPs, including further rulemakings or
revising the underlying program, to ensure that important health and
safety information is available to the public.
2. RMP Data Elements Found Not CBI
Fifteen commenters representing environmental groups and members of
the public opposed allowing some or all RMP data to be claimed as CBI
in light of the public's interest in the information RMPs will provide.
A number of commenters urged EPA not to allow the following RMP data
elements (and supporting documents) to be claimed as CBI:
<bullet> Mitigation measures considered by the firm in its offsite
consequence analysis,
<bullet> Major process hazards identified by the firm,
<bullet> Process controls in use,
<bullet> Mitigation systems in use,
<bullet> Monitoring and detection systems in use, and
<bullet> Changes since the last hazard review.
In addition, one commenter contended that even chemical identity
and quantity should be ineligible for CBI protection, since the
requirement to submit an RMP only applies to facilities using a few
well-known, extremely hazardous chemicals, and the public's right to
know should always outweigh a company's claim to CBI.
Along the same lines, a number of commenters urged EPA to develop a
``corporate sunshine rule'' that would allow confidentiality concerns
to be overridden if the protected information is needed by the public
and experts to understand and assess safety issues. Another commenter
recommended that a business claiming a chemical's identity as CBI
should be required to provide the generic name of the chemical and
information about its adverse health effects so the public can
determine the potential risks.
One commenter argued that some of the RMP data that EPA suggested
could reveal CBI, (e.g., release rate), were not ``emission data,''
because the worst case scenario data are theoretical estimates, and do
not represent any real emissions, past or present.
Representatives of the chemical and petroleum industries disagreed
with EPA's proposal to list the data elements that EPA believed could
not reveal CBI in any case. These commenters asserted that EPA could
not anticipate all the ways in which information required by a data
element might reveal CBI, and accordingly urged the Agency to make
[[Page 970]]
case-by-case determinations on CBI claims. They also contended that
``emission data'' under section 114(c) does not extend to data on
possible, as opposed to actual, emissions, and thus that RMP
information concerning potential accidental releases would not qualify
as ``emission data,'' which must be made available to the public.
As pointed out above, an important purpose of the chemical accident
prevention program required by section 112(r) is to inform the public
of the risk of accidents in their communities and the methods sources
are employing to reduce such risks. EPA therefore believes that as much
RMP data as possible should be available to the public as soon as
possible. However, section 112(r)(7)(B)(iii) requires that RMPs be made
``available to the public under section 114(c),'' which provides for
protection of trade secret information (other than emission data).
Given the statute's direction to protect whatever trade secret
information is contained in an RMP, EPA is not authorized to release
such information even when the public's need for such information
arguably outweighs a business' interest in its confidentiality. The
Agency also cannot issue a ``corporate sunshine rule'' that conflicts
with existing law requiring EPA (and other agencies) to protect trade
secret information.
As explained above (and in more detail in the proposed rule), EPA
examined each RMP data element to determine which would require
information that might, depending on a business' circumstances, meet
the CBI criteria set forth in EPA's regulations implementing section
114(c) and other information-related legal requirements. The point of
this exercise was to both protect potential trade secret information
and promote the public information purpose of RMPs by identifying which
RMP information might reveal CBI in a particular case and by precluding
CBI claims for information that could not reveal CBI in any case. EPA
presented the results of its analysis and an explanation of why certain
data elements could entail the reporting of CBI depending on a
business' circumstances and why others could not. No commenter provided
any specific examples or explanations that contradicted the Agency's
rationale for its determinations of which data elements could or could
not result in reporting of CBI.
However, EPA is deleting from the list of 40 CFR Part 68.151(b)(1)
the reference to 40 CFR Part 68.160(b)(9), to allow for the possibility
of the number of full-time employees at the stationary source to be
claimed as CBI. Upon further review, EPA was unable to determine that
providing the number of employees at the stationary source could never
entail divulging information that could meet the test for CBI set forth
in the Agency's comprehensive CBI regulations at 40 CFR Part 2.
Therefore, EPA has removed this element from the list of data elements
that can not be claimed CBI in Part 68. With this exception, EPA is
promulgating the list of RMP data elements for which CBI claims are
precluded, as proposed (Section 68.151(b)).
EPA's justifications for its specific CBI findings appear in an
appendix to this preamble. A more detailed analysis of all RMP data
elements and CBI determinations is available in the docket (see
ADDRESSES). The Agency continues to find no reasonable basis for
anticipating that the listed elements will in any case require a
business to reveal CBI that is not ``emission data.'' The information
required by each of the listed data elements either fails to meet the
criteria for CBI set forth in EPA's CBI regulations at Part 2 or meets
the Part 2 definition of ``emission data.'' In many cases, the
information is available to the public through other reports filed with
EPA, states, or local agencies (e.g., reports required by Emergency
Planning and Community Right-to-Know Act (EPCRA) sections 312 and 313
provide general facility identification information and reports of most
accidental releases are available through several Federal databases
including EPA's Emergency Release Notification System and Accidental
Release Information Program databases).
In order to preclude CBI claims for other data elements, the Agency
would have to show that the information required by a data element
either was ``emission data'' under section 114(c) or could not, under
any circumstances, reveal CBI. As explained below, EPA does not believe
such a showing can be made for any of the data elements not on the
list. Therefore, CBI claims made for information required by data
elements not on the list will be evaluated on a case-by-case basis
according to the procedures contained in 40 CFR Part 2 (except that
substantiation will have to accompany the claims, as discussed below).
The Agency agrees with the commenters who argued that information
about potential accidental releases is not ``emission data'' under
section 114(c). EPA's existing policy statement (see 56 FR 7042, Feb.
21, 1991) on what information may be considered ``emission data'' was
developed to implement sections 110 and 114(a) of the CAA, which the
Agency generally invokes when it seeks to gather technical data from a
source about its actual emissions to the air. While the policy is not
explicitly limited in its scope, EPA believes it would be inappropriate
to apply it to RMP data elements concerning hypothetical, as opposed to
actual, releases to the air. Under the definition of ``emission data''
contained in Part 2, information is ``emission data'' if it is (1)
``necessary to determine the identity, amount, frequency,
concentration, or other characteristics * * * of any emission which has
been emitted by the source,'' (2) ``necessary to determine the
identity, amount, frequency, concentration, or other characteristics *
* * of the emissions which, under an applicable standard or limitation,
the source was authorized to emit;'' or (3) general facility
identification information regarding the source which distinguishes it
from other sources (40 CFR section 2.301(a)(2)(i) (emphasis added)).
Under these criteria, EPA has concluded that only the RMP data elements
relating to source-level registration information (sections
68.160(b)(1)-(6), (8)-(13)) and the five-year accident history (section
68.168) are ``emission data.'' Of the RMP data elements, only the five-
year accident history involves actual, past emissions to the
environment; the other data elements would not, therefore, qualify as
``emission data'' under the first prong of the Part 2 definition.
Moreover, the data elements relating to a source's offsite consequence
analysis, prevention program and emergency response program do not
attempt to identify or otherwise reflect ``authorized'' emissions; the
data elements instead reflect the source's potential for accidental
releases. Accordingly, these data elements would not be ``emission
data'' under the second prong of the definition. As for the third
prong, some of the source-level data are ``emission data'' because they
help identify a source. Most other RMP data elements are reported on a
process level and are not generally used to distinguish one source from
another.
The Agency believes it is unable to show that the remaining data
elements could not, under any circumstances, reveal CBI. EPA continues
to believe that it is theoretically possible for the remaining data
elements (the elements not listed in section 68.151(b)) to reveal CBI
either directly or through reverse engineering, depending on the
circumstances of a particular case. At the same time, EPA believes
that, in practice, the remaining data elements will rarely reveal CBI.
The purpose of
[[Page 971]]
the data in the RMP is for a source to articulate its hazards, and the
steps it takes to prevent accidental releases. In general, the kinds of
information specifying the source's hazards and risk management program
are not likely to be competitively sensitive.
In particular, covered processes at the vast majority of stationary
sources subject to the RMP rule are too common and well-known to
support a CBI claim for information related to such processes. For
example, covered public drinking water and wastewater treatment plants
generally use common regulated substances in standard processes (i.e.,
chlorine used for disinfection). Also, covered processes at many
sources involve the storage of regulated substances that the sources
sell (e.g., propane, ammonia), so the processes are already public
knowledge. Other covered processes involve the use of well-known
combinations of regulated substances such as refrigerants. RMP
information regarding these types of processes should not include CBI.
Even in the case of unusual or unique processes, it is generally
unlikely that RMP information could be used to reveal CBI through
reverse engineering. To begin with, required RMP information is general
enough that it is unlikely to provide a basis for reverse engineering a
process. For example, a source must report in its RMP whether
overpressurization is a hazard and whether relief valves are used to
control pressure, but it is not required to report information on
actual pressures used, flow rates, chemical composition, or the
configuration of equipment. Moreover, while RMP information may provide
some data that could be used in an attempt to discover CBI information
through reverse engineering, it typically will not provide enough data
for such an attempt to succeed, because the source is not required to
provide a detailed description of the chemistry or production volume of
the process. Businesses claiming CBI based on the threat of reverse
engineering will be required to show how reverse engineering could in
fact succeed with the information that the RMP would otherwise make
public, together with other publicly available information. A business
unable to do so will have its claim denied.
While EPA is requiring that a source claiming a chemical's identity
as CBI provide the generic category or class name of the chemical, the
RMP does not require sources to provide information about the adverse
health effects of the chemical. Chemicals were included in the section
112(r) program because they are acutely toxic or flammable; health
effects related to chronic exposure were not considered because they
are addressed by other rules (see List Rule at 59 FR 4481). EPA
believes that generic names are sufficient to indicate the general
health concerns from short-term exposures. Should a member of the
public desire more information, EPA encourages the use of EPCRA section
322(h), which provides a means for the public to obtain information
about the adverse health effects of a chemical covered by that statute,
where the chemical's identity has been claimed a trade secret. The
public will find this provision of EPCRA useful because most sources
subject to the RMP rule are also subject to EPCRA.
3. Up-front Substantiation of CBI Claims
One commenter supported the proposal to require CBI claims to be
substantiated at the time they are made. Another commenter stated that
there is no compelling need to require up-front substantiation. The
commenter stated that up-front substantiation would place a sizable
burden on both industry and EPA and would be in direct conflict with
the Paperwork Reduction Act. The commenter claimed that, with the
exception of EPCRA, where a submitter is allowed to claim only one data
element--chemical identity--as CBI, it is EPA's standard procedure not
to require submitters to provide written substantiation unless a record
has been requested. Further, the commenter stated that the Agency has
not shown any reason for departing from that procedure in this rule.
EPA believes that requiring up-front substantiation of CBI claims
made for RMP data has ample precedent, is fully consistent with the
Agency's CBI regulations and the Paperwork Reduction Act, and is
critical to achieving the public information purposes of the accident
prevention program. EPCRA is not the only example of an up-front
substantiation requirement. The Agency has also required up-front
substantiation in several other regulatory contexts, including those
where, like here, providing the public with health and safety
information is an important objective [see e.g., 40 CFR section 725.94,
40 CFR section 710.38, and 40 CFR section 720.85 (regulations
promulgated under Toxic Substances Control Act)].
Even under its general CBI regulations, the Agency need not wait
for a request to release data to require businesses to substantiate
their CBI claims. When EPA expects to get a request to release data
claimed confidential, the Agency is to initiate ``at the earliest
practicable time'' the regulations'' procedures for making CBI
determinations (40 CFR section 2.204(a)(3)). Those procedures include
calling on affected businesses to substantiate their claims (see 40 CFR
section 2.204(e)). Since state and local agencies, environmental
groups, academics and others have already indicated their interest in
obtaining complete RMP data (see comments received on this rulemaking,
available in the DOCKET), EPA fully expects to get requests for RMP
data claimed CBI. Consequently, even if EPA did not establish an up-
front substantiation requirement in this rule, under the Agency's
general CBI regulations it could require businesses claiming CBI for
RMP data to substantiate their claims without first receiving a request
to release the data. Establishing an up-front requirement in this rule
will simply allow EPA to obtain substantiation of CBI claims without
having to request it in every instance.
Requiring up-front substantiation for RMP CBI claims is consistent
with the Paperwork Reduction Act. Any burden posed by this requirement
has already been evaluated as part of the Information Collection
Request (ICR) associated with this rulemaking. EPA disagrees that up-
front substantiation will impose a substantial or undue burden. As
noted above, under EPA's current CBI regulations, a source claiming CBI
could and probably would be required to provide substantiation for its
claim, in view of the public interest in RMP information. A requirement
to submit substantiation with the claim should thus make little
difference to the source. Moreover, a source presumably does not make
any claim of CBI lightly. Before filing a CBI claim, the source must
first determine whether the claim meets the criteria specified in 40
CFR section 2.208. Up-front substantiation only requires that the
source document that determination at the time it files its claim.
Since it would be sensible for a source to document the basis of its
CBI claim for its own purposes (e.g., in the case of a request for
substantiation), EPA expects that many sources already prepare
documentation for their CBI claims by the time they file them. Also,
submitting substantiation at the time of claim reduces any additional
burden later, such as reviewing the Agency's request, retrieving the
relevant information, etc. Therefore, providing documentation at the
time of filing should impose no additional burden.
In view of the public information function of RMPs, EPA believes
that up-front substantiation is clearly warranted
[[Page 972]]
for CBI claims made for RMP data. Up-front substantiation will ensure
that sources filing claims have carefully considered whether the data
they seek to protect in fact meets the criteria for protection. Given
the public interest already expressed in RMP data, EPA expects that CBI
claims for RMP data will have to be substantiated at some point. Up-
front substantiation will save EPA and the public time and resources
that would otherwise be required to respond to each CBI claim with a
request for substantiation. EPA is therefore promulgating the up-front
substantiation requirement as proposed.
4. State and Local Agency Access to Unredacted RMPs
One commenter objected to EPA's statement in the proposal that it
would provide unredacted (unsanitized) versions of the RMPs to a state
and local agency only upon meeting the criteria required by the EPA's
CBI rules at 40 CFR Part 2.4 The commenter, an association
of fire fighters, argued that the Agency's position was inconsistent
with CAA section 112(r)(7)(B)(iii), which provides that RMPs ``shall .
. . be submitted to the Chemical Safety and Hazard Investigation Board
[a federal agency], to the State in which the stationary source is
located, and to any local agency or entity having responsibility for
planning for or responding to accidental releases which may occur at
such source . . . .'' The commenter claimed that this provision
entitles the specified entities, including local fire departments, to
receive unredacted RMPs without having to make the showings required by
EPA's CBI regulations.
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\4\ Section 2.301(h)(3) provides that a State or local
government may obtain CBI from EPA under two circumstances: (1) it
provides EPA a written opinion from its chief legal officer or
counsel stating that the State or local agency has the authority
under applicable State or local law to compel the business to
disclose the information directly; or (2) the businesses whose
information is disclosed are informed and the State or local
government has shown to a EPA legal office's satisfaction that its
disclosure of the information will be governed by State or local law
and by ``procedures which will provide adequate protection to the
interests of affected businesses.''
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EPA is not resolving this issue today. The Agency has reviewed the
relevant statutory text and legislative history, as well as analogous
provisions of EPCRA, and believes that arguments can be made on both
sides of this issue. While section 112(r)(7)(B)(iii) calls for RMPs to
be submitted to states, local entities and the Board, it is not clear
that Congress intended CBI contained in RMPs to be provided to those
entities without ensuring appropriate protection of CBI. At stake in
resolving this issue are two important interests--local responders'
interest in unrestricted access to information that may be critical to
their safety and effectiveness in responding to emergencies and
businesses' interest in protecting sensitive information from their
competitors. Before making a final decision on this issue, EPA believes
it would benefit from further public input. Because EPA stated that it
would not provide unredacted RMPs to states and local agencies, those
interested in protecting CBI may not have considered it necessary to
lay out the legal and policy arguments supporting their views. State
and local agencies, many of which in the past have expressed concern
about the potential administrative burden of receiving RMPs directly
from sources, also did not comment on the issue. EPA has therefore
decided to accept additional comments on this issue alone. (Additional
comments on any other issues addressed in this rulemaking will not be
considered or addressed, since the Agency is taking final action on
them here.) Comments should be mailed to the persons listed in the
preceding FOR FURTHER INFORMATION CONTACT section. In the meantime,
unredacted RMPs will be available to states, local agencies and the
Board under the terms of the Agency's existing CBI regulations at 40
CFR section 2.301(h)(3) (for state and local agencies) and 40 CFR
section 2.209(c) (for the Board).
Section 112(r)(7)(B)(iii) states in relevant part:
[RMPs] shall also be submitted to the Chemical Safety and Hazard
Investigation Board, to the State in which the stationary source is
located, and to any local agency or entity having responsibility for
planning for or responding to accidental releases which may occur at
such source, and shall be available to the public under section
114(c) of [the Act].
Section 114(c) provides for the public availability of any information
obtained by EPA under the Clean Air Act, except for information (other
than emissions data) that would divulge trade secrets.
From a public policy perspective, there are some obvious advantages
to reading section 112(r)(7)(B)(iii) in the way the commenter suggests.
Local fire departments and other local responders are typically the
first to arrive at the scene of chemical accidents in their
jurisdictions. RMP information that first responders could find helpful
include chemical identity, chemical quantity, and potential source of
an accident. Under EPA's regulations, however, any or all of this
information could be claimed CBI. In addition, state and local
authorities are often in the best position to assess the adequacy of a
source's risk management program and to initiate a dialogue with the
facility should its RMP indicate a need for improvement. However, state
and local authorities' ability to provide this contribution to
community safety would be impeded to the extent a source claimed key
information as CBI. While states and local agencies may obtain
information claimed CBI under EPA's CBI regulations (assuming they can
make the requisite showing), the time required to obtain the necessary
authority or findings from state or local and EPA officials could be
substantial.
At the same time, there are also public policy reasons for ensuring
protection of CBI contained in RMPs. Congress has in many statutes,
including the CAA and EPCRA, provided for the protection of trade
secrets to safeguard the competitive position of private businesses.
Businesses' ability to maintain the confidentiality of trade secrets
helps ensure competition in the U.S. economy and U.S. businesses'
competitive position in the world economy. Protection of trade secrets
also encourages innovation, which is an important contributor to
economic growth.
A reading of section 112(r)(7)(B)(iii) that demands submission of
unredacted RMPs to states, local entities, and the Board may lead to
widespread public access to information claimed CBI. For purposes of
section 112(r)(7)(B)(iii), ``any local agency or entity having
responsibility for planning for or responding to accidental releases''
includes local emergency planning committees (LEPCs) established under
EPCRA. Section 301(c) of EPCRA provides that LEPCs must include
representatives from both the public and private sectors, including the
media and facilities subject to EPCRA requirements. Submission of an
unredacted RMP to an LEPC would thus entail release of CBI to some
members of the public and potentially even competitors.5
More generally, local agencies may not be subject to any legal
requirement to protect CBI and may lack the knowledge and resources to
address CBI claims. Arguably, it would be
[[Page 973]]
anomalous for Congress to require EPA to protect trade secrets
contained in RMPs against release to the public only to risk divulging
the same information by requiring submission of unredacted RMPs to a
broad range of entities that may not have the need or capacity to
protect CBI themselves. It would also appear inconsistent with the
approach Congress took to protecting trade secrets in EPCRA, where
Congress did not provide for release of trade secret chemical identity
information to local agencies.
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\5\ EPA does not believe that submission of an RMP containing
CBI to the statutorily specified entities would defeat a source's
ability to claim information as CBI for purposes of section 114(c)
and EPA's CBI regulations. Under those regulations, information that
has been released to the public cannot be claimed CBI. Release of a
RMP containing CBI to the entities specified by section
112(r)(7)(B)(iii), including LEPCs, would not constitute such a
release. EPCRA similarly provides that disclosure of trade secret
information to an LEPC does not prevent a facility from claiming the
information confidential (see EPCRA section 322(b)(1)).
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Relatedly, many state and local agencies objected to EPA's original
proposal in the RMP proposed rulemaking (58 FR 54190, October 20, 1993)
that sources submit RMPs directly to States, local agencies, and the
Board, as well as EPA. They noted that managing the information
contained in RMPs would be difficult without a significant expenditure
of typically scarce resources. Many states and local agencies thus
supported EPA's final decision to develop an electronic submission and
distribution system that would allow covered sources to submit their
RMPs to EPA, which would make them available to states, local agencies,
and the Board, as well as the general public. If the statute is read to
require submission of RMP information to state and local agencies, and
the Board, to the extent it is claimed as CBI, the resource concerns
raised by State and local agencies commenters likely would be raised to
that extent again.
EPA also questions the extent to which states, local entities and
the Board would be disadvantaged if they did not receive unredacted
RMPs without making the showings required by EPA's CBI regulations. As
noted earlier, EPA expects that relatively little RMP information will
be CBI. RMP data will only rarely contain CBI, and the up-front
substantiation will minimize the number of CBI claims it receives by
ensuring that sources carefully examine the basis for any claims before
submitting them. Consequently, the Agency believes that a state or
local agency will rarely confront a redacted RMP.
Moreover, EPCRA provides state and local entities, including fire
departments, with access to much of the pertinent data already. EPA's
regulations under EPCRA cover a universe of sources and chemicals that
includes most, if not all, the sources and substances covered by the
RMP rule. The EPCRA regulations require reporting of some of the same
information required by the RMP rule, including chemical identity.
EPCRA withholds from public release only chemical identities that are
trade secrets and the location of specific chemicals where a facility
so requests. In practice, relatively few facilities have requested
trade secret protection for a chemical's identity.
Additionally, EPCRA section 312(f) empowers local fire departments
to conduct on-site inspections at facilities subject to EPCRA section
312(a) and obtain information on chemical location. Most facilities
subject to EPCRA section 312(a) are also subject to the RMP rule. On-
site inspections could also provide information on hazards and
mitigation measures. In addition, EPCRA section 303(d)(3) authorizes
LEPCs, which include representatives of fire departments, to request
from facilities covered by EPCRA section 302(b) such information as may
be necessary to prepare an emergency response plan and to include such
information in the plan as appropriate. Some sources subject to the RMP
rule are also covered by EPCRA section 302(b).
In light of the points made above, EPA questions whether section
112(r)(7)(B)(iii) should be interpreted to require submission of
unredacted RMPs containing CBI to the statutorily specified entities
without provision being made for protecting CBI. EPA invites the public
to provide any additional comment or information relevant to
interpreting the submission requirement of section 112(r)(7)(B)(iii).
5. Other CBI Issues
Two commenters disagreed with EPA's statement that a source cannot
make a CBI claim for information available to the public under EPCRA or
another statute. They claimed that a request for information under
EPCRA cannot supersede the CBI provisions applicable to data collected
under the authorities of the CAA or Toxic Substances Control Act or any
other regulatory program.
EPA does not agree with this comment. Claims of CBI may not be
upheld if the information is properly obtainable or made public under
other statutes or authorities. For example, chemical quantity on site
is available to the public under EPCRA Tier II reporting. In addition,
under EPCRA section 303(d)(3), LEPCs have the authority to request any
information they need to develop and implement community emergency
response plans. If information obtained through such a request is
included in the community plan, it will become available to the public
under EPCRA section 324. Information obtainable or made public under
EPCRA would not be eligible for CBI protection under 40 CFR section
2.208, which specifically excludes from CBI protection information
already available to the public. Filing a CBI claim under the CAA or
another statute does not protect information if it is legitimately
requested and made public under other federal, state, or local law.
Information obtainable or made public (through proper means) under
existing statutes cannot be CBI under EPA's CBI regulations.
6. Actions Taken
In summary, the Agency is adding two sections (68.151 and 68.152)
to Part 68. Section 68.151 sets forth the procedures for a source to
follow when asserting a CBI claim and lists data elements that can not
be claimed as CBI. This section also requires sources filing CBI claims
to provide the information claimed confidential, in a format to be
specified by EPA, instead of the unsanitized paper copy of the RMP as
discussed in the proposal. Section 68.152 sets forth the procedures for
substantiating CBI claims. Sources claiming CBI are required to submit
their substantiation of their claims at the same time they submit their
RMPs.
E. Other Issues
Two commenters asked why EPA had proposed to drop the phrase ``if
used'' in section 68.165(b)(3) where the rule asks for the basis of the
offsite consequence analysis results. EPA has decided to retain the
language, since sources will have a choice of using either EPA's RMP
guidance documents or a model. Where a model is used, the source will
have to provide the name of the model. These commenters also asked why
EPA proposed to drop (alternative releases only) from section
68.165(b)(13). EPA has also decided to retain the parenthetical
language.
One commenter stated that EPA should allow sources to submit RMPs
either electronically or in hard copy. The commenter stated that not
allowing hard copy submissions will be burdensome on many sources who
have never filed an electronic report to the government before. As
stated in the April proposal, EPA is allowing sources to submit RMPs on
paper. Paper submitters are asked to fill out a simple paper form to
tell EPA why they are unable to file electronically.
Two commenters objected to placing offsite consequence analysis
(OCA) data, particularly worst-case release scenarios, on the Internet,
for security reasons. Issues related to public access to OCA data are
beyond the scope of this rulemaking, as this action is limited to the
issues discussed above. It does
[[Page 974]]
not include decisions regarding how the public will access the OCA data
elements of the RMPs. Statements in the preamble about EPA providing
public access to RMP data are not intended to address which portions of
the RMP data will be electronically available.
A number of commenters were concerned about a statement EPA made in
the preamble to the proposed rule regarding the definition of
``process'', and stated that EPA's interpretation of ``process'' is not
consistent with the interpretation the Occupational Safety and Health
Administration (OSHA) uses in its process safety management (PSM)
standard (29 CFR 1910.119). In this rulemaking, EPA did not propose any
changes to the definition of process nor is it adopting any changes to
the definition. As EPA stated in the preamble to the final RMP rule, it
will interpret ``process'' consistently with OSHA's interpretation of
that term (29 CFR 1910.119). Therefore, if a source is subject to the
PSM rule, the limits of its process(es) for purposes of OSHA PSM will
be the limits of its process(es) for purposes of RMP (except in cases
involving atmospheric storage tanks containing flammable regulated
substances, which are exempt from PSM but not RMP). If a source is not
covered by OSHA PSM and is complicated from an engineering perspective,
it should consider contacting its implementing agency for advice on
determining process boundaries. EPA and OSHA are coordinating the
agencies' approach to common issues, such as the interpretation of
``process''.
F. Technical Corrections
When Part 68 was promulgated, the text of section 68.79(a), was
drawn from the OSHA PSM standard, but it was not revised to reflect the
different structure of EPA's rule. The OSHA PSM standard is contained
in a single section; EPA's Program 3 prevention program is contained in
a subpart. Rather than referencing ``this section,'' the paragraph
should have referenced the ``subpart.'' Therefore, as proposed, EPA is
changing ``section'' to ``subpart'' in section 68.79(a).
Under section 68.180(b), EPA intended that all covered sources
report the name and telephone number of the agency with which they
coordinate emergency response activities, even if the source is not
required to have an emergency response plan. However, the rule refers
only to coordinating the emergency plan. In this action, EPA is
revising this section to refer to the local agency with which emergency
response activities and the emergency response plan is coordinated.
IV. Section-by-Section Discussion of the Final Rule
In Section 68.3, Definitions, the definition of SIC is removed and
replaced by the definition of NAICS.
Section 68.10, Applicability, is revised to replace the SIC codes
with NAICS codes, as discussed above.
Section 68.42, Five-Year Accident History, is revised to require
the percentage concentration by weight of regulated toxic substances
released in a liquid mixture and the five- or six-digit NAICS code that
most closely corresponds to the process that had the release. The
phrase ``five- or six-digit'' has been added before the NAICS code to
clarify the level of detail required for NAICS code reporting.
Section 68.79, Compliance Audits, the word ``section'' in paragraph
(a) is replaced by ``subpart.''
Section 68.150, Submission, is revised by adding a paragraph to
state that procedures for asserting CBI claims and determining the
sufficiency of such claims are provided in new Sections 68.151 and
68.152.
Section 68.151 is added to set forth the procedures to assert a CBI
claim and list data elements that may not be claimed as CBI, as
discussed above.
Section 68.152 is added to set forth procedures for substantiating
CBI claims, as proposed.
Section 68.160, Registration, is revised by adding the requirements
to report the method and description of latitude and longitude,
replacing SIC codes with five- or six-digit NAICS codes, and adding the
requirement to report Title V permit number, when applicable. This
section is also revised to include optional data elements. The phrase
``five- or six-digit'' has been added before NAICS code to clarify the
level of detail required for NAICS code reporting.
Section 68.165, Offsite Consequence Analysis, is revised by adding
the requirement that the percentage weight of a regulated toxic
substance in a liquid mixture be reported.
Section 68.170, Prevention Program/Program 2, is revised to replace
SIC codes with five- or six-digit NAICS codes, as is Section 68.175.
Section 68.180, Emergency Response Program, is revised to clarify
that paragraph (b) covers both the coordination of response activities
and plans, as proposed.
V. Judicial Review
The proposed rule amending the accidental release prevention
requirements; under section 112(r)(7) was proposed in the Federal
Register on April 17, 1998. This Federal Register action announces
EPA's final decision on the amendments. Under section 307(b)(1) of the
CAA, judicial review of this action is available only by filing a
petition for review in the U.S. Court of Appeals for the District of
Columbia Circuit on or before March 8, 1999. Under section 307(b)(2) of
the CAA, the requirements that are the subject of today's action may
not be challenged later in civil or criminal proceedings brought by EPA
to enforce these requirements.
VI. Administrative Requirements
A. Docket
The docket is an organized and complete file of all the information
considered by the EPA in the development of this rulemaking. The docket
is a dynamic file, because it allows members of the public and
industries involved to readily identify and locate documents so that
they can effectively participate in the rulemaking process. Along with
the proposed and promulgated rules and their preambles, the contents of
the docket serve as the record in the case of judicial review. (See
section 307(d)(7)(A) of the CAA.)
The official record for this rulemaking, as well as the public
version, has been established for this rulemaking under Docket No. A-
98-08 (including comments and data submitted electronically). A public
version of this record, including printed, paper versions of electronic
comments, which does not include any information claimed as CBI, is
available for inspection from 8:00 a.m. to 5:30 p.m., Monday through
Friday, excluding legal holidays. The official rulemaking record is
located at the address in ADDRESSES at the beginning of this document.
B. Executive Order 12866
Under Executive Order (E.O.) 12866, [58 FR 51,735 (October 4,
1993)], the Agency must determine whether the regulatory action is
``significant'', and therefore subject to OMB review and the
requirements of the E.O. The Order defines ``significant regulatory
action'' as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or state, local or tribal government or communities;
[[Page 975]]
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the E.O.
Pursuant to the terms of Executive Order 12866, OMB has notified
EPA that it considers this a ``significant regulatory action'' within
the meaning of the Executive Order. EPA has submitted this action to
OMB for review. Changes made in response to OMB suggestions or
recommendations will be documented in the public record.
C. Executive Order 12875
Under Executive Order 12875, EPA may not issue a regulation that is
not required by statute and that creates a mandate upon a State, local
or tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments, or EPA consults with those governments. If EPA complies by
consulting, Executive Order 12875 requires EPA to provide to the Office
of Management and Budget a description of the extent of EPA's prior
consultation with representatives of affected State, local and tribal
governments, the nature of their concerns, copies of any written
communications from the governments, and a statement supporting the
need to issue the regulation. In addition, Executive Order 12875
requires EPA to develop an effective process permitting elected
officials and other representatives of State, local and tribal
governments ``to provide meaningful and timely input to the development
of regulatory proposals containing significant unfunded mandates.''
EPA has concluded that this rule may create a nominal mandate on
State, local or tribal governments and that the Federal government will
not provide the funds necessary to pay the direct costs incurred by
these governments in complying with the mandate. Specifically, some
public entities may be covered sources and will have to add the new
data elements to their RMP. In developing this rule, EPA consulted with
state, local and tribal governments to enable them to provide
meaningful and timely input in the development of this rule. Even
though this rule revises Part 68 in a way that does not significantly
change the burden imposed by the underlying rule, EPA has taken efforts
to involve state and local entities in this regulatory effort.
Specifically, much of the rule responds to issues raised by the
Electronic Submission Workgroup discussed above, which includes State
and local government stakeholders. In addition, EPA has recently
conducted seminars with tribal governments; however, there were no
concerns raised on any issues that are covered in this rule. EPA
discussed the need for issuing this regulation in sections II and III
in this preamble. Also, EPA provided OMB with copies of the comments to
the proposed rule.
D. Executive Order 13045
Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) is determined to be ``economically significant''
as defined under E.O. 12866, and (2) concerns an environmental health
or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This final rule is not subject to the E.O. 13045 because it is not
``economically significant'' as defined in E.O. 12866, and because it
does not involve decisions based on environmental health or safety
risks.
E. Executive Order 13084
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected and other representatives of
Indian tribal governments ``to provide meaningful and timely input in
the development of regulatory policies on matters that significantly or
uniquely affect their communities.''
Today's rule does not significantly or uniquely affect the
communities of Indian tribal governments. Two of the amendments made by
this rule, the addition of RMP data elements and the conversion of SIC
codes to NAICS codes, impose only minimal burden on any sources that
may be owned or operated by tribal governments, such as drinking water
and waste water treatment systems. The third amendment made by this
rule addresses the procedures for submission of confidential business
information in the RMP. The sources that are mentioned above handle
chemicals that are known to public (e.g., chlorine for use of
disinfection, propane used for fuel, etc.). EPA does not, therefore,
expect RMP information on these types of processes to include CBI, so
any costs related to CBI will not fall on Indian tribal governments.
Accordingly, the requirements of section 3(b) of Executive Order 13084
do not apply to this rule.
Notwithstanding the non-applicability of E. O. 13084, EPA has
recently conducted seminars with the tribal governments. However, there
were no concerns raised on any issues that are covered in this rule.
F. Regulatory Flexibility
EPA has determined that it is not necessary to prepare a regulatory
flexibility analysis in connection with this final rule. EPA has also
determined that this action will not have a significant economic impact
on a substantial number of small entities. Two of the amendments made
by this rule, the addition of RMP data elements and the conversion of
SIC codes to NAICS codes, impose only minimal burden on small entities.
Moreover, those small businesses that claim CBI when submitting the RMP
will not face any costs beyond those imposed by the existing CBI
regulations. Even considering the costs of CBI substantiation, however,
there is no significant economic impact on a substantial number of
small entities. EPA estimates that very few small entities
(approximately 500) will claim CBI and that these few entities
represent a small fraction of the small entities (less than 5 percent)
affected by the RMP rule. Finally, EPA estimates that those small
businesses filing CBI will experience a cost which is significantly
less than one percent of their annual sales. For a more detailed
analysis of the
[[Page 976]]
small entity impacts of CBI submission, see Document Number, IV-B-02,
available in the docket for this rulemaking (see ADDRESSES section).
G. Paperwork Reduction
1. General
The information collection requirements in this rule have been
submitted for approval to the Office of Management and Budget (OMB)
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An
Information Collection Request (ICR) document has been prepared by EPA
(ICR No. 1656.05) and a copy may be obtained from Sandy Farmer, by mail
at Office of Policy, Regulatory Information Division, U.S.
Environmental Protection Agency (2137), 401 M St, SW, Washington, DC
20460, by e-mail at farmer.sandy@epamail.epa.gov or by calling (202)
260-2740. A copy may also be downloaded off the Internet at http://
www.epa.gov/icr. The information requirements are not effective until
OMB approves them.
The submission of the RMP is mandated by section 112(r)(7) of the
CAA and demonstrates compliance with Part 68 consistent with section
114(c) of the CAA. The information collected also will be made
available to state and local governments and the public to enhance
their preparedness, response, and prevention activities. Certain
information in the RMP may be claimed as confidential business
information under 40 CFR Part 2 and Part 68.
This rule will impose very little burden on affected sources.
First, EPA estimates that the new data elements will require only a
nominal burden, .25 hours for a typical source, because latitude and
longitude method and description will be selected from a list of
options, the Title V permit number is available to any source to which
Title V applies, and the percentage weight of a toxic substance in a
liquid mixture is usually provided by the supplier of the mixture.
Second, the NAICS code provision is simply a change from one code to
another.6 Third, as discussed above in the preamble, EPA
believes that the CBI provisions of this rule will add no additional
burden beyond what sources otherwise would face in complying with the
CBI rules in 40 CFR Part 2. The Agency has calculated the burden of
substantiations made for purposes of this rule below.
---------------------------------------------------------------------------
\6\ EPA intends to provide several outreach mechanisms to assist
sources in identifying their new NAICS code. RMP*Submit will provide
a ``pick list'' that will make it easier for sources to find the
appropriate code. Also, selected NAICS codes are included in the
General Guidance for Risk Management Programs (July 1998) and in the
industry-specific guidance documents that EPA is developing. EPA
will also utilize the Emergency Planning and Community Right-to-Know
Hotline at 800-424-9346 (or 703-412-9810) to assist sources in
determining the source's NAICS codes.
---------------------------------------------------------------------------
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and system for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15.
2. CBI Burden
In the Notice of Proposed Rulemaking for these amendments, EPA
proposed to amend existing 40 CFR Part 68 to add two sections which
would clarify the procedures for submitting RMPs that contain
confidential business information (CBI). As proposed, CBI would be
handled in much the same way as it presently is under other EPA
programs, except that EPA would require sources claiming CBI to submit
documentation substantiating their CBI claims at the time such claims
were made and EPA also would not permit CBI claims for certain data
elements which clearly are not CBI. Aside from these procedural
changes, however, the proposed rule was substantively identical to the
existing rules governing the substantiation of CBI claims, presently
codified in 40 CFR Part 2.
At the time it proposed these amendments, EPA estimated the public
reporting burden for CBI claims to be 15 hours for chemical
manufacturers with Program 3 processes, the only kinds of facilities
that EPA expects to be able to claim CBI for any RMP data elements.
This estimate was premised upon EPA's assessment that it would require
8.5 hours per claim to develop and submit the CBI substantiation and
6.5 hours to complete an unsanitized version of the RMP, for a total of
15 hours. EPA also estimated that approximately 20 percent of the 4000
chemical manufacturers (out of 64,200 stationary sources estimated to
be covered by the RMP rule) may file CBI claims (800 sources). The 800
sources represent a conservative projection based on the Agency's
experience under EPCRA program. Consequently, the total annual public
reporting burden for filing CBI claims was estimated to be
approximately 12,000 hours over three years (800 facilities multiplied
by an average burden of 15 hours), or an annual burden of 4,000 hours
(Information Collection Request No. 1656.04).
a. Comment received. EPA received one comment on the ICR developed
for the proposed rule, opposing up-front substantiation of any CBI
claims. The commenter stated that ``[t]his is a major departure from
standard EPA procedure, and would impose a substantial and unjustified
burden for several years.'' The commenter further added that up-front
substantiation would significantly increase the burden of this rule,
and that up-front substantiation unnecessarily increases the volume and
potential loss of CBI documents. The commenter also stated that the
estimate of 15 hours for chemical manufacturers ``seems unreasonably
low,'' and cited the EPA burden estimate of 27.7 to 33.2 hours per
claim (with an average of 28.8) under the trade secret provisions of
EPCRA.
In the preamble to the proposed rule, EPA estimated that 20 percent
of the 4,000 chemical manufacturers will file a CBI claim. The
commenter contends that ``[t]he EPA analysis * * * excludes facilities
in other industries that will need to file CBI claims.''
Finally, the commenter stated that claiming multiple data elements
as CBI will increase reporting burden.
b. EPA response. Burden Estimates: EPA disagrees with these
comments. As pointed out above, the requirement to submit up-front
substantiation of CBI claims imposes no additional burden. In addition,
the total burden of the CBI provisions of this rule are not
understated. EPA has re-examined its analysis in light of the
commenter's concerns and has determined--contrary to the commenter's
claim--that its initial estimate of the total burden associated with
preparing and claiming CBI was likely too conservative. As explained
below, the Agency's best available information indicates that the
process of documenting and submitting a claim of CBI should impose a
burden of approximately 9.5 hours per CBI claimant.
First, EPA believes that the requirement to submit, at the time a
source claims information as CBI,
[[Page 977]]
substantiation demonstrating that the material truly is CBI imposes no
burden on sources beyond that which presently exists under EPA's CBI
regulations in Part 2. In order to decide whether they might properly
claim CBI for a given piece of information, a source must determine if
the criteria stated in section 2.208 of 40 CFR Part 2 are satisfied.
Naturally, a source goes through this process before a CBI claim is
made. EPA agrees that most programs do not require the information that
forms the basis for the substantiation to be submitted at the time of
the claim; however, a facility must still determine whether or not a
claim can be substantiated. Because existing rules require sources to
formulate a legitimate basis for claiming CBI, even if those rules do
not require immediate documentation, and because the Agency fully
expects requests for RMP information which will necessitate sources'
submitting such documentation, EPA believes that up-front submission
will not increase the burden of the regulation.
Second, in response to the commenter's claim that the Agency had
underestimated the total burden associated with CBI claims, EPA
undertook a review of recent information collection requests (ICRs)
covering data similar to that required to be submitted in an RMP.
Initially, EPA examined the ICR prepared for Part 2 itself (ICR No.
1665.02, OMB Control No. 2020-0003). Under an analysis contained in the
Statement of Support for the ICR, the Agency estimated that it takes
approximately 9.4 hours to substantiate claims of CBI, prepare
documentation, and submit such documentation to EPA. Next, the Agency
reviewed a survey conducted by the Agency (under Office of Management
and Budget clearance #2070-0034), to present the average burden
associated with indicating confidential business information claims for
certain data elements under the proposed inventory update rule (IUR)
amendment under TSCA section 8. This survey specifically asked affected
industry how long it would take to prepare CBI claims for two data
elements--chemical identity and production volume range information.
Part 68 also requires similar information (e.g., chemical identity and
maximum quantity in a process) to be included in a source's RMP and,
indeed, EPA anticipates that they will be the data elements most likely
to be claimed CBI. The average burden estimates for chemical identity
were between 1.82 and 3.13 hours, and the average burden estimates for
production volume in ranges were between 0.87 and 2.08 hours. Thus,
assuming that the average source claims both chemical identity and the
maximum quantity in a process as CBI, a conservative estimate for the
reporting burden would be 5.21 hours. Finally, EPA examined the burden
estimate upon which it relied at proposal. That estimate predicted that
the average CBI claim would take 15 hours, of which 8.5 would be
developing and submitting the CBI claim, and 6.5 would be completing an
unsanitized version of the RMP. In view of EPA's current plan not to
require a source claiming CBI to submit a full, unsanitized RMP, but
instead to submit only the particular elements claimed as CBI, the
Agency expects the latter burden to decrease to 1 hour, for a total
burden of 9.5 hours.
In light of its extensive research of the burden hours involved in
preparing and submitting CBI claims, EPA believes that the total burden
estimate was not understated in the April proposal. Rather, other ICRs
and the ICR proposal, combined with the changes to the method of
documenting CBI claims, indicate that a burden estimate between 5.21
and 9.5 hours is appropriate for this final rule. EPA has selected the
most conservative of these, 9.5 hours, in its ICR for this final rule.
EPA rejected one ICR's burden estimate as being inapplicable to the
present rulemaking. Although the commenter urged the Agency to adopt
the estimate associated with trade secret claims under EPCRA (28
hours), EPA believes that the estimates discussed above are more
accurate for several reasons. First, the EPCRA figures are based upon a
survey with a very small sample size, as compared to the TSCA survey
cited previously. Second, most (if not all) of the facilities
submitting RMPs are likely to already be reporting under sections 311
and 312 or section 313 of EPCRA, and many of the manufacturers
submitting an RMP are subject to TSCA reporting requirements; thus,
most sources likely to claim CBI for an RMP data element will have
already done some analysis of whether or not such information would
reveal legitimately confidential matter.
Other Facilities Can Claim CBI: The Agency does not agree with the
commenter's claim that facilities other than chemical manufacturers
might be expected to claim CBI for information contained in their RMPs.
The other industries affected by the RMP rule (e.g., propane retailers,
publicly owned treatment works) will not be disclosing in the RMP
information that is likely to cause substantial harm to the business's
competitive position. For example, covered public drinking water and
wastewater treatment plants generally use common regulated substances
in standard processes (i.e., chlorine used for disinfection). Also,
covered processes at many sources involve the storage of regulated
substances that the sources sell (e.g., propane, ammonia), so the
processes are already public knowledge. Other covered processes involve
the use of well-known combinations of regulated substances such as
refrigerants. Therefore, it is not likely that these businesses would
claim information as CBI.
As a point of comparison, EPA notes that of the 869,000 facilities
that are estimated to be required to report under sections 311 and 312
of EPCRA, approximately 58 facilities have submitted trade secret
claims for under those sections. For this reason, EPA believes the
estimate of 800 sources may, in fact, be an overestimate of the number
of sources claiming CBI.
Reporting Multiple Data Elements: The Agency disagrees with the
commenters assertion that it has underestimated the reporting burden on
sources' claiming multiple data elements as CBI. The burden figures
stated above are based on the Agency's estimates of the average number
of data elements that a typical source will likely claim CBI.
Public reporting of the new RMP data elements is estimated to
require an average of .25 hours for all sources (64,200 sources) and
substantiating CBI claims is estimated to take approximately 9.5 hours
for certain chemical manufacturing sources (800 sources). The aggregate
increase in burden over that estimated in the previous Information
Collection Request (ICR) for part 68 is estimated to be about 23,650
hours over three years, or an annual burden of 7,883 hours for the
three years covered by the ICR.
H. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L.
104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205
[[Page 978]]
of the UMRA generally requires EPA to identify and consider a
reasonable number of regulatory alternatives and adopt the least
costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
EPA has determined that this rule does not contain a Federal
mandate that may result in expenditures of $100 million or more for
state, local, and tribal governments, in the aggregate, or the private
sector in any one year. The EPA has determined that the total
nationwide capital cost for these rule amendments is zero and the
annual nationwide cost for these amendments is less than $1 million.
Thus, today's rule is not subject to the requirements of sections 202
and 205 of the Unfunded Mandates Act.
EPA has determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. Small governments are unlikely to claim information
confidential, because sources owned or operated by these entities
(e.g., drinking water and waste water treatment systems), handle
chemicals that are known to public. The new data elements and the
conversion of SIC codes to NAICS codes impose only minimal burden on
these entities.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Pub L. 104-113, section 12(d)(15 U.S.C. 272
note), directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, business practices) that are developed or adopted
by voluntary consensus standards bodies. The NTTAA requires EPA to
provide Congress, through OMB, explanations when the Agency decides not
to use available and applicable voluntary consensus standards.
This action does not involve technical standards. Therefore, EPA
did not consider the use of any voluntary consensus standards.
J. Congressional Review Act
The Congressional Review Act, 5 U.S.C. section 801 et seq., as
added by the Small Business Regulatory Enforcement Fairness Act of
1996, generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. EPA will submit a report containing this
rule and other required information to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States
prior to publication of the rule in the Federal Register. This action
is not a ``major rule'' as defined by 5 U.S.C. section 804(2). This
rule will be effective February 5, 1999.
Appendix to Preamble--Data Elements That May Not be Claimed as CBI
------------------------------------------------------------------------
Rule element Comment
------------------------------------------------------------------------
68.160(b)(1) Stationary This information is filed with EPA and
source name, street, city, other agencies under other regulations
county, state, zip code, and is made available to the public and,
latitude, and longitude, therefore, does not meet the criteria
method for obtaining for CBI claims. It is also available in
latitude and longitude, and business and other directories.
description of location that
latitude and longitude
represent.
68.160(b)(2) Stationary
source Dun and Bradstreet
number.
68.160(b)(3) Name and Dun and
Bradstreet number of the
corporate parent company.
68.160(b)(4) The name,
telephone number, and
mailing address of the owner/
operator.
68.160(b)(5) The name and This information provides no information
title of the person or that would affect a source's competitive
position with overall position.
responsibility for RMP
elements and implementation.
68.160(b)(6) The name, title, This information is filed with state and
telephone number, and 24- local agencies under EPCRA and is made
hour telephone number of the available to the public and, therefore,
emergency contact. does not meet the criteria for CBI
claims.
68.160(b)(7) Program level This information provides no information
and NAICS code of the that would affect a source's competitive
process. position.
68.160(b)(8) The stationary This information provides no information
source EPA identifier. that would affect a source's competitive
position.
68.160(b)(10) Whether the This information provides no information
stationary source is subject that would affect a source's competitive
to 29 CFR 1910.119. position.
68.160(b)(11) Whether the Sources are required to notify the state
stationary source is subject and local agencies if they are subject
to 40 CFR Part 355. to this rule; this information is
available to the public and, therefore,
does not meet the criteria for CBI
claims.
68.160(b)(12) If the This information will be known to state
stationary source has a CAA and federal air agencies and is
Title V operating permit, available to the public and, therefore,
the permit number. does not meet the criteria for CBI
claims.
[[Page 979]]
68.160(b)(13) The date of the This information provides no information
last safety inspection and that would affect a source's competitive
the identity of the position.
inspecting entity.
68.165(b)(4) Basis of the Without the chemical name and quantity,
results (give model name if this reveals no business information.
used).
68.165(b)(9) Wind speed and This information provides no information
atmospheric stability class that would affect a source's competitive
(toxics only). position.
68.165(b)(10) Topography Without the chemical name and quantity,
(toxics only). this reveals no business information.
68.165(b)(11) Distance to an By itself, this information provides no
endpoint. confidential information. Other elements
that would reveal chemical identity or
quantity may be claimed as CBI.
68.165(b)(12) Public and By itself, this information provides no
environmental receptors confidential information. Other elements
within the distance. that would reveal chemical identity or
quantity may be claimed as CBI.
68.168 Five-year accident Sources are required to report most of
history. these releases and information (chemical
released, quantity, impacts) to the
federal, state, and local agencies under
CERCLA and EPCRA; these data are
available to the public and, therefore,
do not meet the criteria for CBI claims.
Much of this information is also
available from the public media.
68.170(b), (d), (e)(1), and
(f)-(k)
68.175(b), (d), (e)(1), and
(f)-(p)
NAICS code, prevention NAICS codes and the prevention program
program compliance dates compliance dates and information provide
and information. no information that would affect a
source's competitive position.
68.180 Emergency response This information provides no information
program. that would affect a source's competitive
position.
------------------------------------------------------------------------
List of Subjects in 40 CFR Part 68
Environmental protection, Administrative practice and procedure,
Air pollution control, Chemicals, Hazardous substances,
Intergovernmental relations, Reporting and recordkeeping requirements.
Dated: December 29, 1998.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, title 40, chapter I,
subchapter C, part 68 of the Code of Federal Regulations is amended to
read as follows:
PART 68--CHEMICAL ACCIDENT PREVENTION PROVISIONS
1. The authority citation for Part 68 continues to read as follows:
Authority: 42 U.S.C. 7412(r), 7601(a)(1), 7661-7661f.
2. Section 68.3 is amended by removing the definition of SIC and by
adding in alphabetical order the definition for NAICS to read as
follows:
Sec. 68.3 Definitions.
* * * * *
NAICS means North American Industry Classification System.
* * * * *
3. Section 68.10 is amended by revising paragraph (d)(1) to read as
follows:
Sec. 68.10 Applicability.
* * * * *
(d) * * *
(1) The process is in NAICS code 32211, 32411, 32511, 325181,
325188, 325192, 325199, 325211, 325311, or 32532; or
* * * * *
4. Section 68.42 is amended by revising paragraph (b)(3),
redesignating paragraphs (b)(4) through (b)(10) as paragraphs (b)(5)
through (b)(11) and by adding a new paragraph (b)(4) to read as
follows:
Sec. 68.42 Five-year accident history.
* * * * *
(b) * * *
(3) Estimated quantity released in pounds and, for mixtures
containing regulated toxic substances, percentage concentration by
weight of the released regulated toxic substance in the liquid mixture;
(4) Five- or six-digit NAICS code that most closely corresponds to
the process;
* * * * *
5. Section 68.79 is amended by revising paragraph (a) to read as
follows:
Sec. . 68.79 Compliance audits.
(a) The owner or operator shall certify that they have evaluated
compliance with the provisions of this subpart at least every three
years to verify that procedures and practices developed under this
subpart are adequate and are being followed.
* * * * *
6. Section 68.150 is amended by adding paragraph (e) to read as
follows:
Sec. 68.150 Submission.
* * * * *
(e) Procedures for asserting that information submitted in the RMP
is entitled to protection as confidential business information are set
forth in Secs. 68.151 and 68.152.
7. Section 68.151 is added to read as follows:
Sec. 68.151 Assertion of claims of confidential business information.
(a) Except as provided in paragraph (b) of this section, an owner
or operator of a stationary source required to report or otherwise
provide information under this part may make a claim of confidential
business information for any such information that meets the criteria
set forth in 40 CFR 2.301.
(b) Notwithstanding the provisions of 40 CFR part 2, an owner or
operator of a stationary source subject to this part may not claim as
confidential business information the following information:
(1) Registration data required by Sec. 68.160(b)(1) through (b)(6)
and (b)(8), (b)(10) through (b)(13) and NAICS code and Program level of
the process set forth in Sec. 68.160(b)(7);
(2) Offsite consequence analysis data required by
Sec. 68.165(b)(4), (b)(9), (b)(10), (b)(11), and (b)(12).
(3) Accident history data required by Sec. 68.168;
(4) Prevention program data required by Sec. 68.170(b), (d),
(e)(1), (f) through (k);
(5) Prevention program data required by Sec. 68.175(b), (d),
(e)(1), (f) through (p); and
(6) Emergency response program data required by Sec. 68.180.
(c) Notwithstanding the procedures specified in 40 CFR part 2, an
owner or operator asserting a claim of CBI with respect to information
contained in its RMP, shall submit to EPA at the time it submits the
RMP the following:
(1) The information claimed confidential, provided in a format to
be specified by EPA;
[[Page 980]]
(2) A sanitized (redacted) copy of the RMP, with the notation
``CBI'' substituted for the information claimed confidential, except
that a generic category or class name shall be substituted for any
chemical name or identity claimed confidential; and
(3) The document or documents substantiating each claim of
confidential business information, as described in Sec. 68.152.
8. Section 68.152 is added to read as follows:
Sec. 68.152 Substantiating claims of confidential business
information.
(a) An owner or operator claiming that information is confidential
business information must substantiate that claim by providing
documentation that demonstrates that the claim meets the substantive
criteria set forth in 40 CFR 2.301.
(b) Information that is submitted as part of the substantiation may
be claimed confidential by marking it as confidential business
information. Information not so marked will be treated as public and
may be disclosed without notice to the submitter. If information that
is submitted as part of the substantiation is claimed confidential, the
owner or operator must provide a sanitized and unsanitized version of
the substantiation.
(c) The owner, operator, or senior official with management
responsibility of the stationary source shall sign a certification that
the signer has personally examined the information submitted and that
based on inquiry of the persons who compiled the information, the
information is true, accurate, and complete, and that those portions of
the substantiation claimed as confidential business information would,
if disclosed, reveal trade secrets or other confidential business
information.
9. Section 68.160 is amended by revising paragraphs (b)(1), (b)(7),
and (b)(12) and adding paragraphs (b)(14) through (b)(18) to read as
follows:
Sec. 68.160 Registration.
* * * * *
(b) * * *
(1) Stationary source name, street, city, county, state, zip code,
latitude and longitude, method for obtaining latitude and longitude,
and description of location that latitude and longitude represent;
* * * * *
(7) For each covered process, the name and CAS number of each
regulated substance held above the threshold quantity in the process,
the maximum quantity of each regulated substance or mixture in the
process (in pounds) to two significant digits, the five- or six-digit
NAICS code that most closely corresponds to the process, and the
Program level of the process;
* * * * *
(12) If the stationary source has a CAA Title V operating permit,
the permit number; and
* * * * *
(14) Source or Parent Company E-Mail Address (Optional);
(15) Source Homepage address (Optional)
(16) Phone number at the source for public inquiries (Optional);
(17) Local Emergency Planning Committee (Optional);
(18) OSHA Voluntary Protection Program status (Optional);
10. Section 68.165 is amended by revising paragraph (b) to read as
follows:
Sec. 68.165 Offsite consequence analysis.
* * * * *
(b) The owner or operator shall submit the following data:
(1) Chemical name;
(2) Percentage weight of the chemical in a liquid mixture (toxics
only);
(3) Physical state (toxics only);
(4) Basis of results (give model name if used);
(5) Scenario (explosion, fire, toxic gas release, or liquid spill
and evaporation);
(6) Quantity released in pounds;
(7) Release rate;
(8) Release duration;
(9) Wind speed and atmospheric stability class (toxics only);
(10) Topography (toxics only);
(11) Distance to endpoint;
(12) Public and environmental receptors within the distance;
(13) Passive mitigation considered; and
(14) Active mitigation considered (alternative releases only);
11. Section 68.170 is amended by revising paragraph (b) to read as
follows:
Sec. 68.170 Prevention program/Program 2.
* * * * *
(b) The five- or six-digit NAICS code that most closely corresponds
to the process.
* * * * *
12. Section 68.175 is amended by revising paragraph (b) to read as
follows:
Sec. 68.175 Prevention program/Program 3.
* * * * *
(b) The five- or six-digit NAICS code that most closely corresponds
to the process.
* * * * *
13. Section 68.180 is amended by revising paragraph (b) to read as
follows:
Sec. 68.180 Emergency response program.
* * * * *
(b) The owner or operator shall provide the name and telephone
number of the local agency with which emergency response activities and
the emergency response plan is coordinated.
* * * * *
[FR Doc. 99-231 Filed 1-5-99; 8:45 am]
BILLING CODE 6560-50-P
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