Accidental Release Prevention Requirements: Risk Management Programs Under Clean Air Act Section 112(r)(7); Amendments

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 68

[FRL-5997-2]

RIN 2050-AE46

Accidental Release Prevention Requirements: Risk Management

Programs Under Clean Air Act Section 112(r)(7); Amendments

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: On June 20, 1996, EPA published risk management program

regulations, mandated under the accidental release prevention

provisions of the Clean Air Act (CAA). These regulations require owners

and operators of stationary sources subject to the regulations to

submit risk management plans (RMPs) by June 21, 1999, to a central

location specified by EPA. EPA is proposing amendments to these rules

to reflect the government's adoption of a new industrial classification

system, to add some data elements to the RMP, to establish explicit

procedures for protecting confidential information, and to clarify

certain items. These changes will bring the rule up to date with the

new industrial classification system, provide information in the RMP

that will make the data more useful, and clarify procedures and

requirements. The proposed amendments in this rule address the

submission of RMP information to EPA; the amendments do not address the

means by which the public could access RMP information.

DATES: Comments are due on June 1, 1998. Anyone requesting a public

hearing must contact EPA no later than May 4, 1998. If a hearing is

held, EPA will publish the date, time and location in the Federal

Register.

ADDRESSES: Comments should be mailed to the U.S. Environmental

Protection Agency, Attn: Docket A-98-08, Room 1500, 401 M St. SW,

Washington, DC 20460. E-mail comments should be sent to: A-AND-R-

[email protected]; if comments are filed as an attachment to an e-

mail, the attachment must be in WordPerfect 6.1 or an ASCII file. Paper

comments should be submitted in triplicate; comments may be submitted

on disk in WordPerfect 6.1 or an ASCII file.

Persons interested in presenting oral testimony or inquiring as to

whether a hearing is to be held should notify the person listed in FOR

FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Sicy Jacob, Chemical Engineer,

Chemical Emergency Preparedness and Prevention Office, Environmental

Protection Agency (5101), 401 M Street SW, Washington, DC 20460, (202)

260-7249, or the Emergency Planning and Community Right-to-Know Hotline

at 1-800-424-9346 (in the Washington, DC metropolitan area, (703) 412-

9810).

SUPPLEMENTARY INFORMATION:

Regulated Entities

Entities potentially regulated by this action are those stationary

sources that have more than a threshold quantity of a regulated

substance in a process. Regulated categories and entities include:

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Category Examples of regulated entities

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Chemical Manufacturers.................. Basic chemical manufacturing,

petrochemicals, resins,

agricultural chemicals,

pharmaceuticals, paints,

cleaning compounds.

Petroleum............................... Refineries.

Other Manufacturing..................... Paper, electronics,

semiconductors, fabricated

metals, industrial machinery,

food processing.

Agriculture............................. Agricultural retailers.

Public Sources.......................... Drinking water and wastewater

treatment systems.

Utilities............................... Electric and gas utilities.

Other................................... Propane retailers and users,

cold storage, warehousing and

wholesalers.

Federal Sources......................... Military and energy

installations.

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This table is not meant to be exhaustive, but rather provides a

guide for readers regarding entities likely to be regulated by this

action. The table lists the types of entities that EPA is aware

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of that could potentially be regulated by this action. Other types of

entities not listed on the table could also be regulated. To determine

whether a stationary source is regulated by this action, carefully

examine the provisions associated with the list of substances and

thresholds under Sec. 68.130 and the applicability criteria under

Sec. 68.10. If you have questions regarding applicability of this

action to a particular entity, consult the person listed in the

preceding FOR FURTHER INFORMATION CONTACT section.

The following table of contents is provided to aid in reading this

preamble:

Table of Contents

I. Introduction and Background

A. Statutory Authority

B. Background

II. Discussion of Proposed Rule

A. NAICS Codes

B. RMP Data Elements

1. New RMP Data Elements

2. Optional RMP Data Elements

C. Clarification of Prevention Program Reporting

D. Confidential Business Information (CBI)

E. Other Changes

III. Section-by-Section Discussion of the Proposed Rule

IV. Administrative Requirements

A. Docket

B. Public Hearing and Written Comments

C. E.O. 12866

D. E.O. 12875

E. Regulatory Flexibility Act

F. Paperwork Reduction Act

G. Unfunded Mandates

H. National Technology Transfer and Advancement Act

I. Introduction and Background

A. Statutory Authority

These amendments are being proposed under sections 112(r) and

301(a)(1) of the CAA (42 U.S.C. 7412(r), 7601(a)(1)).

B. Background

The 1990 CAA Amendments revised section 112 by adding a paragraph

(r), to prevent accidental releases to the air and mitigate any

accidents that occur. Section 112(r) mandates that EPA promulgate a

list of regulated substances, with threshold quantities. This list

defines the processes at stationary sources that are subject to

accidental release prevention regulations that EPA is mandated to

promulgate under section 112(r)(7). EPA promulgated the list of

substances on January 31, 1994 (59 FR 4478) (the ``List Rule'') and the

accident release prevention regulations, the risk management program

rule, on June 20, 1996 (61 FR 31668) (the ``RMP rule''). Together,

these two rules are codified as part 68 of title 40 of the CFR. On

January 6, 1998 (63 FR 640), EPA amended the listing requirements to

adopt provisions related to certain flammables that had previously been

stayed.

The list of regulated substances covers 77 acutely toxic substances

and 62 flammable gases and highly volatile flammable liquids. The

accidental release prevention regulations require stationary sources

with one or more processes with more than a threshold quantity of a

regulated substance to develop and implement a risk management program

that includes an offsite consequence analysis, a five-year accident

history for covered processes, a prevention program, and an emergency

response program. Sources must summarize this program and submit a risk

management plan (RMP) to a central location specified by EPA prior to

June 21, 1999. The risk management program rule includes a tiered

approach to requirements. Processes that pose low risk of offsite

consequences from a worst-case release are subject to minimal

requirements (Program 1). Processes in industry sectors that have

significant accident histories are required to implement the process

safety management (PSM) standard, which EPA adopted, with minor

changes, from the Occupational Safety and Health Administration's

(OSHA) PSM standard (29 CFR 1910.119) (Program 3). To eliminate

inconsistent requirements, EPA also requires processes already subject

to the OSHA PSM standard to implement Program 3. All other processes

are subject to a streamlined prevention program (Program 2). (Program

eligibility requirements are provided at 40 CFR 68.10.)

When EPA promulgated the risk management program rule, the Agency

stated that it intended to work toward electronic submission of RMPs.

The final rule provided that RMPs shall be submitted in a method and

format to a central location as specified by EPA prior to the

submission date. To provide advice to the Agency on deciding issues

related to electronic submission, the Accident Prevention Subcommittee

of the CAA Advisory Committee created the Electronic Submission

Workgroup in October 1996 to examine the technical and practical issues

associated with creating a national electronic repository of risk

management plans. The Workgroup was charged with recommending how the

regulated community should submit their risk management plans, and how

EPA, State and local governments, and the public should have access to

this information. The Workgroup included 35 representatives from State

and local government, industry, environmental and public interest

groups, and EPA. The Workgroup, with the approval of the Accident

Prevention Subcommittee, concluded its work in June of 1997 with a

Final Report. The Final Report, all meeting summaries and meeting

materials can be obtained from the EPA homepage (www.epa.gov/ceppo/acc-

pre.html) under ``Accident Prevention Subcommittee'' and the

``Electronic Submission Workgroup.''

Based on the Workgroup's recommendations, EPA is in the process of

developing two systems, a user-friendly PC-based submission system

(RMP*SubmitTM) and a searchable database of RMPs, available

on the Internet (RMP*SubmitTM). RMPs must be submitted

electronically (on diskette), with a provision for an ``electronic

waiver'' for sources that lack the resources to file electronically.

II. Discussion of Proposed Rule

The purpose of today's proposed amendments is to revise part 68 to:

Reflect the new industrial classification system that the

U.S. government has adopted;

Respond to recommendations on RMP data elements provided

by the Electronic Submission Workgroup and clarify other elements;

Provide explicit requirements for the submission of

confidential business information; and

Make technical corrections and clarifications to the rule.

This proposed rulemaking addresses only these subjects. The Agency

is not, by this proposal, reconsidering any aspects of part 68, except

as explicitly noted below. The proposed amendments in this rule address

the submission of RMP information to EPA; the amendments do not address

the means by which the public could access RMP information. EPA

discourages any comments not addressed to these specific amendments.

A. NAICS Codes

On January 1, 1997, the U.S. Government, in cooperation with the

governments of Canada and Mexico, adopted a new industrial

classification system, the North American Industrial Classification

System (NAICS) to replace the Standard Industrial Classification (SIC)

codes. Because the applicability of Program 3 is driven, in part, by

SIC codes and because part 68 requires the reporting of SIC codes in

the RMP, EPA proposes to revise the rule to reflect the new NAICS

codes.

[[Page 19218]]

Section 68.10(d)(1) provides that processes in the following four-

digit SIC codes are subject to Program 3 requirements (unless they are

eligible for Program 1): 2611 (pulp mills), 2812 (calor-alkali

manufacturing), 2819 (industrial inorganics, not elsewhere classified

(nec)), 2821 (plastics and resins), 2865 (cyclic crudes and

intermediates), 2869 (industrial organic chemicals, nec), 2873

(nitrogen fertilizers), 2879 (agricultural chemicals, nec), and

petroleum refineries (2911). As explained in the March 13, 1995,

supplemental notice (60 FR 13526) and June 20, 1996 (61 FR 31668),

final rule, these SIC codes were selected because these industrial

sectors have significant accident histories, based on data in EPA's

Accidental Release Information Program (ARIP) database and on data on

accidental releases involving flammables. In each case, a substantial

percentage of the sector (usually more than 20 percent) had reported

releases of regulated substances and many of those releases had impacts

(deaths, injuries, hospitalizations, evacuations, and shelterings). In

selecting NAICS codes, EPA has used the same criteria to the extent

possible; in some cases, the accident data for sectors are not detailed

enough to make it possible to allocate the accidents among the new

codes.

Five of the listed SIC codes have been assigned NAICS codes that

include all of the sources covered by the SIC codes and no others. EPA

is proposing to adopt these five NAICS codes in place of the SIC codes.

(NAICS codes are either five or six digits, depending on the degree to

which the sector is subdivided.)

SIC NAICS Sector

2812 325181 Alkalies and chlorine

2821 325211 Plastics and resins

2873 325311 Nitrogen fertilizer

2879 32532 Pesticide and other

agricultural chemicals

2911 32411 Petroleum refineries

The remaining four SIC codes listed in Sec. 68.10 (2611, 2819,

2865, and 2869) have been subdivided as follows.

SIC Code 2611 (pulp mills) has been split into three NAICS codes:

32211 Pulp mills only

322121 Pulp mills producing paper (includes part of old 2621)

32213 Pulp mills producing paperboard (includes part of old 2631)

EPA has examined the accident history of these groups. Neither

paper mills (NAICS code 322121) nor paperboard mills (NAICS code 32213)

meet the accident history criteria EPA used to select industry sectors.

EPA, therefore, is proposing to list only NAICS code 32211.

SIC Code 2819 (industrial inorganics, nec) has been divided into

four NAICS codes:

325998 Activated carbon and charcoal, which has moved to miscellaneous

chemical products (old 2899)

331311 Alumina, moved to alumina refining in primary metals

manufacturing

325131 Inorganic dyes, moved to inorganic dyes and pigments (old 2816)

325188 Other, in ``all other inorganic chemical manufacturing''

Activated carbon and charcoal (NAICS code 325998) have been placed

in a sector with a very limited accident history. In addition, there

are no releases in the ARIP database that appear to be related to the

manufacture of these substances. Alumina refining (NAICS code 331311)

is a new NAICS code. Research indicates that alumina is produced at

approximately 19 locations; three of these companies reported releases,

but none were impact releases. There were no reported releases for dyes

(NAICS code 325131). Consequently, EPA is proposing to list only NAICS

code 325188, all other inorganic chemical manufacturing, as it includes

almost all of the releases that led to the original listing of SIC code

2819.

SIC Code 2865 (cyclic crudes and intermediates) has been split into

three NAICS codes:

32511 Aromatics have been combined with aliphatics from SIC code 2869

to form a new petrochemical manufacturing code

325132 Organic dyes and pigments is a new code

325192 Other covers the cyclic crude and intermediate manufacturing

Organic pigments are manufactured at about 30 locations. These

sources reported three releases, one of which was an impact release.

There were no reported releases from dye manufacturers. NAICS code

325132, therefore, does not meet the eligibility criteria. Although it

is difficult to determine with any certainty into which of the other

two NAICS codes the sources reporting releases in old SIC code 2865

will fall, both of these sectors have a significant accident history,

as demonstrated both by the ARIP data and by accidents involving

flammables, which are generally not reported in ARIP. EPA, therefore,

is proposing to list both NAICS codes 32511 (petrochemicals) and 325192

(other cyclic crude and intermediate manufacturing).

SIC Code 2869 (industrial organic chemicals) has been divided into

five NAICS codes:

32511 Aliphatics, joined with aromatics in petrochemical manufacturing

325188 Carbon bisulfide, moved to all other inorganic chemical

manufacturing

325193 Ethyl alcohol, a new separate code

32512 Fluorocarbon gases, moved to industrial gases with what used to

be SIC code 2813

325199 Other, moved to all other basic organic chemical manufacturing

with fatty acids from old SIC code 2899

As explained above, EPA is proposing to list NAICS codes 32511 and

325188, which draw sectors from SIC code 2869. Ethyl alcohol is

produced at approximately 27 locations, mostly from grains. Two of

these locations reported releases, one of which led to an evacuation.

This sector, therefore, does not meet the criteria and is not being

proposed for listing. Fluorocarbon gases are produced at about 15

locations; only one release was reported. These gases are being merged

into a sector with more than 500 sources that reported 21 releases, 4

with impacts. Neither fluorocarbon gases themselves nor the combined

sector meet the criteria and, therefore, EPA is not proposing them for

listing. As with SIC code 2865, it is difficult to determine from the

existing data whether the remaining sources in SIC code 2869 that

reported releases will be classified in petrochemicals or other basic

organic chemical manufacturing. Nonetheless, the release history of the

remaining sources for flammables and toxics is significant enough that

EPA is proposing to list both. EPA recognizes that including NAICS code

325199 will extend coverage to fatty acids, which were previously not

included. EPA, however, does not believe that the fatty acid processes

involve regulated substances, and, therefore, does not expect them to

be subject to the rule.

In summary, EPA is proposing to replace the list of nine SIC codes

with the following ten NAICS codes: 32211, 32411, 32511, 325181,

325188, 325192, 325199, 325211, 325311, and 32532. Some processes

originally subject to Program 3 because of the SIC codes would no

longer be subject to Program 3 on that basis. EPA expects that most of

the processes that were part of listed SIC codes, but are not in the

proposed list of NAICS codes, will either continue to be subject to

Program 3 because they are subject to OSHA PSM (e.g., fluorocarbon

gases) or are not subject to the rule at all because they do not

[[Page 19219]]

include regulated substances above the thresholds. In its review of the

NAICS codes, EPA also considered whether any newly created NAICS codes

might meet the accident criteria; no such codes were identified. For

the most part, manufacturing sectors have been assigned codes that

cover the same industries as were covered by the SIC code. (A full list

of the new NAICS codes and further information is available from the

U.S. Bureau of the Census, www.census.gov.)

At every point in part 68 where sources are required to report the

SIC code for a process (registration and both prevention programs), the

rule would instead be changed to require sources to report the NAICS

code for the process.

B. RMP Data Elements

1. New RMP Data Elements

The Electronic Submission Work Group recommended that EPA add three

mandatory data elements that it believed are important for the success

of RMP*InfoTM. In addition, the group recommended that some

optional data elements be included in the final RMP format.

Consequently, EPA is proposing to add the following mandatory data

elements: The method and description for latitude and longitude, the

Title V permit number, and the percentage weight of regulated toxic

substances in mixtures reported in both the offsite consequence

analyses and accident history. EPA also is proposing to add the NAICS

code for the process that had the release to the five-year accident

history section.

a. Latitude/Longitude method and description. As a matter of Agency

policy, EPA requires that when latitude and longitude are reported, the

method of determining latitude/longitude be stated and a description of

what location the numbers represent (e.g., center of the site,

fenceline) be provided. The RMP*SubmitTM will include check

lists that sources will be able to use to indicate the method and

location description.

The State/EPA Data Management Program is a successful multi-year

initiative linking State environmental regulatory agencies and EPA in

cooperative action. The Program's goals include improvements in data

quality and data integration based on location identification. Reliable

and consistent location identification data are critical to support the

Agency-wide development of environmental risk management strategies,

methodologies, and assessments. Documentation of the method and

description of the location will permit other users to evaluate whether

those coordinates can support secondary uses, thus addressing EPA data

sharing and integration objectives.

b. Title V permit number. Listing a Title V permit number will make

it easier for EPA, states, and local agencies to identify sources that

are also subject to Title V. Including this number will impose a

minimal burden on sources; those who have Title V permits will have

permit numbers readily available.

c. Percentage weight of a toxic substance in a mixture. The

percentage weight of a regulated toxic substance in a mixture would

provide useful information to those trying to understand how worst-case

and alternative release scenarios have been modeled. Released in their

pure forms, substances will generally travel greater distances before

the concentration falls below the toxic endpoint (toxic endpoints are

listed in Appendix A to 40 CFR part 68) than they will travel if the

substance is released as part of a mixture. Without reporting on

whether a substance was modeled as being released as part of a mixture,

users of the database may assume that a substance would be released in

its pure form. The distances reported for mixture releases would then

appear to be understated because they are likely to travel far less

than the distances that would be derived for the same substance

quantity released in its pure form. This information will make it

easier for users of the data to understand what a source has done

without needing to seek additional information from the source. On

accident history, it is important to know the physical state and

concentration of a substance that was released. With such data, it is

possible to determine whether certain concentrations pose a substantial

hazard to the public and to help validate models.

d. NAICS code. Including the NAICS code for the process that had a

release in the five-year accident history section will make it possible

for EPA and others to identify industry sectors that have specific

types of accidents and have a significant accident history. The ability

to search its ARIP database by SIC code made it possible for EPA to

identify industry sectors with significant accident histories. This

information is particularly important for the chemical industry and a

few other industry sectors where multiple NAICS codes may be

represented at the source.

2. Optional RMP Data Elements

In addition to proposed data elements that sources would be

required to report, the work group recommended that EPA include the

following data elements, on a optional basis:

a. Local Emergency Planning Committee (LEPC). A source would enter

its LEPC name (from a pick list tied to the source county and zip

code). The LEPC data element would provide a way for LEPCs to quickly

search all of the facilities in their jurisdiction. The LEPC data

element would also allow EPA to determine which LEPC(s) to notify when

it receives an updated RMP.

b. Source (or Parent Company) E-mail address. The source may want

to provide its E-mail address to make it easier for the public to send

an inquiry to the source. Including an E-mail address will aid

communication efforts between industry, local government, and

interested community members.

c. Source Homepage address. The source may want to provide

additional graphics and information on its homepage. The database could

either list the address as any other data element or set up a hyperlink

to the source homepage, depending on the technical issues involved with

the latter.

d. Phone number at the source for public inquiries. The source may

want to provide a phone number for public inquiries. Currently the RMP

data elements list the owner/operator and the emergency contact phone

numbers, but no other phone numbers. A source could enter the phone

number for their public liaison office or the technical contact who

filled out the RMP. This data element would provide sources another

option for directing public inquiries.

e. VPP status. In addition to the four optional data elements

recommended by the workgroup, EPA also plans to give sources an

opportunity to indicate whether they have achieved Star or Merit status

under OSHA's Voluntary Protection Program (VPP). These sources are

exempt from audits under Sec. 68.220(b)(2) and (b)(7). Including this

information will help implementing agencies as they develop audit

plans.

EPA seeks comments on whether these items should be included on the

form. EPA emphasizes that these items would be optional; a space would

be provided, but sources would not be required to complete the items.

EPA recognizes that many smaller sources will not have e-mail addresses

or home pages and, therefore, will leave these blank.

C. Clarification of Prevention Program Reporting

EPA is proposing to revise the language in Secs. 68.170 and 68.175

to clarify how prevention program

[[Page 19220]]

information must be reported. The definition of process, which EPA

adopted verbatim from the OSHA PSM standard, is very broad. EPA

believes it is important that its interpretation of process be

consistent with OSHA's. That interpretation, particularly when applied

to interconnected or co-located production and storage units, is so

inclusive that multiple production units and, in some cases, entire

sources will be considered to be a single process. OSHA and EPA have

always recognized that prevention program implementation is likely to

involve dividing these aggregated units into their components. For

example, because all units at petroleum refineries are usually

interconnected, they will count as a single process for threshold

determination, but each production unit will require a separate process

hazard analysis (PHA), different operating and maintenance procedures,

different process safety information, and different training. OSHA

included a PHA implementation schedule in its standard to recognize

that large sources, such as refineries and large chemical production

sources, needed time to conduct multiple PHAs even if the source is

technically a single process under the definition of process.

Throughout its part 68 rulemakings and associated economic

analyses, EPA has always considered that RMP reporting would be done

based on the units that require separate implementation of prevention

program elements, particularly the PHA and hazard review. In the

preamble to the final part 68 rule, EPA stated that large chemical

companies and refineries could be reporting on 30 or more processes (61

FR 31694). EPA's Economic Impact Analysis (EIA) for the part 68 rules

explicitly assumed that the chemical industry, refineries, utilities,

POTWs, and even drinking water systems would be implementing the

prevention program elements and reporting on multiple production and

storage units. In the case of the chemical industry and refineries, the

EIA assumed that data on up to 25 to 30 prevention programs would be

reported in the RMP.

To ensure that prevention program data are reported on the parts of

larger processes that require separate program implementation, EPA is

proposing to clarify the basis for prevention program reporting. The

rule would be revised to make it explicit that RMP data for both

Program 2 and Program 3 prevention programs would be submitted on each

part of the process for which a separate hazard review or PHA was

conducted. For example, a propane distribution source that conducted

one hazard review on its two storage tanks would submit data on one

prevention program. A refinery that conducted 25 PHAs on its 25

production units would submit information on 25 prevention programs.

Separate hazard reviews or PHAs means analyses that are conducted by

different people or at different times. This change is consistent with

EPA's original intention. EPA believes this approach also will be more

straightforward for sources. Reporting on processes that aggregate

multiple production and storage units would have required collecting

all of the data on individual prevention programs and merging them into

a single report, increasing the likelihood of errors.

Sources are still required to determine threshold quantity and

Program level using the definition of process; that is, if units are

considered to be interconnected or co-located, all of the regulated

substances in the aggregated units must be included in the threshold

determination. EPA is not proposing to change reporting on the

registration section of the RMP. Sources may report chemical

identities, quantities, NAICS codes, and Program levels by process even

if those processes represent multiple prevention programs. Sources may

elect to list the separate units in the registration section to

parallel their prevention programs, but they are not required to do so.

EPA is also proposing to drop the second sentence in paragraph (a)

of both Secs. 68.170 and 68.175. This sentence--``If the same

information applies to more than one covered process, the owner or

operator may provide the information only once, but shall indicate to

which processes the information applies''--does not impose a regulatory

requirement on sources, but is advisory in nature. At this time, the

RMP*SubmitTM system is not being designed to allow sources

to enter prevention program data once and indicate to which reported

prevention programs the answers apply. Consequently, EPA is proposing

to remove this sentence.

The data required for the RMP are specified in Secs. 68.155-180. To

make a searchable database possible, some of the items will be required

to be reported from checklists, which are not in the rule. For example,

the rule requires that the source list the major hazards identified

during the hazard review or process hazard analysis; the RMP format

will provide a list of potential hazards that sources must use when

filing. During the process of developing the electronic format, some of

these checklists may change to provide more options for sources and to

ensure that the data give the needed information (e.g., on-site deaths

and injuries will be reported for employees/contractors, public

responders, and others). The current version of the draft format is

available at: http://www.epa.gov/ceppo/rules/dataelem.html or from the

EPCRA hotline.

D. Confidential Business Information (CBI)

Members of the Electronic Submission Work Group and others have

asked how EPA plans to handle information within the RMP that is

``confidential business information.'' Part 68 provides protection for

``classified'' information, but this applies only to Federal agencies

and their contractors. Part 68 does provide, in Sec. 68.210, that

information will be available to the public under CAA section 114(c),

which limits how the Administrator must handle certain confidential or

proprietary information.

In response to these questions and to clarify procedures for

submitting RMPs that contain confidential business information (CBI),

EPA is proposing to add two sections to the rule to govern CBI claims

with regard to RMP data. The rules governing CBI that already exist in

40 CFR part 2 will continue to provide the substantive criteria that

must be met to assert such claims. To qualify for CBI protection, the

substantive criteria set forth at 40 CFR 2.301 require that the data be

commercial or financial, that they not be available to the public

through other means, that the source take appropriate steps to prevent

disclosure, and that disclosure of the data would be likely to cause

substantial harm to the source's competitive position. In new

Sec. 68.151, EPA would provide a list of RMP data elements that are not

claimable as CBI and specify procedures and timing for submission of

claims and substantiation.

In the following paragraphs, EPA discusses those RMP data elements

that the Agency proposes are not CBI and are, therefore, not claimable

as such. EPA solicits comment on these assessments. EPA also notes that

certain of the data elements that would be claimable as CBI under the

proposed rule (release rate and release duration, among others) would

appear to be ``emission data'' and, therefore, not be CBI under 40 CFR

2.301, considering the Agency's existing policy regarding ``emission

data.'' See 56 FR 7042 (Feb. 21, 1991). EPA specifically requests

comment on the appropriateness of applying this policy to the RMP data

elements for purposes of the final rule.

[[Page 19221]]

EPA is proposing that the following Registration data elements

could not be claimed as CBI:

Source identification information (name, address,

telephone numbers, Dun & Bradstreet numbers, emergency contact data);

Name or title of the person responsible for risk

management program implementation;

The Program level and NAICS codes of the processes

registered;

Number of employees;

Whether the source is subject to other rules; and

Date of the last safety inspection.

These data elements are generally available from other filings with

Federal, state, or local agencies, and from other sources and,

therefore, do not meet the criteria for CBI claims. Source

identification data and NAICS codes are filed with EPA, states, and

local entities and are publicly available under EPCRA, among other

requirements, and are available from many other public sources,

including industrial directories. Number of employees is submitted to

the Census Bureau and is available for many facilities from industrial

directories. Whether a source is subject to other rules and the date of

safety inspections can be obtained from public agencies and are

unlikely to affect a source's competitive position. The name or title

of the person responsible for program implementation will not be

available elsewhere, but would not affect a source's competitive

position. The program level of the process also is not available

elsewhere, but, by itself, reveals no confidential business

information. Therefore, none of these elements is eligible for

protection.

EPA is proposing that the following offsite consequence analysis

data could not be claimed as CBI:

Basis of the results (model used).

Topography.

Distance to an endpoint; and

Public and environmental receptors (including population

potentially affected) within the distance to the endpoint.

EPA believes that certain offsite consequence analysis data may be

eligible for CBI protection, specifically, chemical identity and

quantity released. Because of the ability to derive chemical identity

and quantity released from other data included in the offsite

consequence analysis (e.g., release rate and duration), EPA is also

proposing that sources may claim CBI for those other data elements.

However, EPA is proposing that some offsite consequence analysis items

are not CBI. Without the information on the chemical identity,

quantity, release rate, and duration, the model used and topography

could not be used to derive the chemical identity or quantity and,

therefore, by themselves provide no confidential information. Further,

EPA believes distance to an endpoint and public and environmental

receptors are of most interest to the public, and, their disclosure

reveals no source business data.

EPA is proposing that CBI treatment may not be claimed for any

accident history data. The date, time, and duration of the release, the

chemicals and quantities released, type of event, source, and impacts

will be reported to EPA or other agencies under existing laws before

the RMP is submitted; more importantly, databases with this information

are publicly available. Moreover, the initiating event and contributing

factors are generic enough that reporting them will reveal no

confidential business information.

EPA is proposing that all dates reported for prevention program

elements could not be claimed as CBI. These dates reveal no

confidential business information. They are merely evidence of having

complied with EPA rules and would not affect a source's competitive

position. Similarly, because all emergency response information must be

available to public responders and because it reveals no data that

would affect a source's competitive position, EPA proposes that it be

excluded from CBI claims.

EPA believes that only a limited number of sources, primarily

chemical manufacturers, will have a basis for claiming the remaining

RMP data elements as CBI. EPA's justifications for its specific CBI

findings appear in an appendix to this preamble. An even more detailed

analysis of all RMP data elements and proposed CBI determinations is

available in the docket (see the ADDRESSES section).

To assert a CBI claim, a source would be required to submit to EPA

its RMP in two versions: (1) a redacted (``sanitized''), electronic

version, which would become part of the RMP database, and (2) an

unredacted (``unsanitized''), paper copy. The redacted version would

identify each data element, except chemical identity, claimed as CBI by

entering ``CBI'' into the data field or leaving the field blank. For

chemical identity, the source would be required to provide a generic

chemical category or class name in lieu of the actual chemical name. At

the time of RMP submission, the source would also be required to submit

to EPA its substantiation for each item claimed. Information contained

in a substantiation may be claimed as CBI in accordance with 40 CFR

2.301. If all or part of the substantiation is claimed as CBI, a

redacted version of substantiation must also be filed with EPA. This

approach of submitting dual substantiations is the same as that used

for trade secret claims filed under the Emergency Planning and

Community Right to Know Act of 1986 (EPCRA). Review of these CBI claims

will be conducted in accordance with 40 CFR part 2 and the present

rulemaking.

EPA will make the redacted (sanitized) versions of the RMPs

available to the public, States, and local governments by including

them in RMP*InfoTM. Should States or LEPCs want to obtain

the unsanitized version from EPA, they may do so by filing a written

request with EPA for the information. EPA will respond to such requests

consistent with 40 CFR 2.301(h)(3), which governs disclosures to States

and local agencies having duties or responsibilities under the Clean

Air Act and its implementing regulations. A State or local government

may, under this provision, obtain CBI from EPA under two circumstances:

(1) it provides EPA a written opinion from its chief legal officer or

counsel stating that the State or local agency has the authority under

applicable State or local law to compel the business to disclose the

information directly; or (2) the businesses whose information is

disclosed are informed and the State or local government has shown to

an EPA legal office's satisfaction that its use and disclosure of the

information will be governed by State or local law and by ``procedures

which will provide adequate protection to the interests of affected

businesses.''

Notwithstanding the foregoing process, State and local governments

may always obtain the unsanitized versions of the RMP by enacting

regulations to require sources in their jurisdiction to submit the CBI

directly to State and local entities. EPA encourages those State and

local authorities wishing to receive the unsanitized RMPs to use their

own authority to require such information, rather than seeking it under

EPA's disclosure regulations.

EPA is also proposing to amend part 68 by adding Sec. 68.152. This

section would reference the substantive criteria set forth at 40 CFR

2.301 and require sources to claim, and substantiate, CBI at the time

RMP data are submitted. Failure to do so would be considered a waiver

of CBI by the source, and the data would be disclosed to the public and

made part of the RMP*Info database. Section 68.152 also would require

the source's owner, operator, or

[[Page 19222]]

senior official to certify the accuracy of its CBI substantiation

claims. Adopting the Sec. 2.301 criteria without change ensures that

there will be no conflicting interpretations between existing CBI

criteria and the proposed set of rules. Because the existing CBI

criteria are used under many environmental statutes, they are familiar

to industry.

It should be noted that information properly claimed as CBI in

accordance with this regulation may nevertheless be disclosed to the

public pursuant to the community right-to-know provisions of other

environmental laws. Under EPCRA section 303, local emergency planning

committees (LEPCs) must prepare and make publicly available

comprehensive emergency response plans for their jurisdictions. These

plans must address, among other things, facilities that are subject to

the emergency planning and notification requirements of EPCRA sections

302 and 303 (``EPCRA Planning facilities''). Accordingly, section

303(d)(3) permits an LEPC to compel an owner or operator of an EPCRA

Planning facility to provide any information (except trade secret

information properly withheld pursuant to section 322 of EPCRA)

necessary to enable the LEPC to develop and implement the emergency

plan. An EPCRA Planning facility which receives from its LEPC a proper

section 303(d)(3) request for information contained in its RMP must

therefore provide the information promptly, irrespective of a valid CBI

claim under this rule. Similarly, a proper CBI claim under this part

will bind only the Administrator and will not prevent an LEPC from

disclosing certain confidential information collected under EPCRA

section 303(d)(3), because information included in an emergency plan

must be made public under EPCRA section 324(a) and because State or

local laws may require the LEPC to make such information public.

Furthermore, once that information is requested by the LEPC and

available to the public, that information would no longer be subject to

CBI protection under Federal CBI rules.

E. Other Changes

When part 68 was promulgated, Sec. 68.79(a), which was adopted from

the OSHA PSM standard, was not revised to reflect the different

structure of EPA's rule. The OSHA PSM standard is contained in a single

section; EPA's Program 3 prevention program is contained in a subpart,

with OSHA paragraphs handled as separate sections. Rather than

referencing ``this section,'' the paragraph should have referenced the

``subpart.'' The section would be changed to correct this error and

ensure that the compliance audit covers the entire prevention program.

Under Sec. 68.180(b), EPA intended that all covered sources report

the name and telephone number of the agency with which they coordinate

emergency response activities, even if the source is not required to

have an emergency response plan. However, the rule refers only to

coordinating the emergency plan. EPA is proposing to revise the rule to

include both the plan and response activities.

III. Section-by-Section Discussion of the Proposed Rule

In Section 68.3, Definitions, the definition of SIC would be

removed and the definition of NAICS added.

Section 68.10, Applicability, would be revised to replace the SIC

codes with NAICS codes, as discussed above.

Section 68.42, Five-Year Accident History, would be revised to

require the percentage concentration by weight of regulated toxic

substances released in a mixture and NAICS code for the process that

had the release.

Section 68.79, Compliance Audits, the word ``section'' in paragraph

(a) would be replaced by ``subpart.''

Section 68.150, Submission, would be revised by adding a paragraph

to state that procedures for asserting CBI claims and determining the

sufficiency of such claims are provided in new Secs. 68.151 and 68.152

and in 40 CFR part 2.

Section 68.151 would be added, as discussed above.

Section 68.152 would be added, as discussed above.

Section 68.160, Registration, would be revised by adding the

requirements for the method and description of latitude and longitude,

replacing SIC codes with NAICS codes, and adding the requirement to

report a Title V permit number, when applicable.

Section 68.165, Offsite Consequence Analysis, would be revised by

adding the requirement that the percentage weight of a regulated toxic

substance in a mixture be reported.

Section 68.170, Prevention Program/Program 2 would be revised to

clarify the basis for reporting to make it clear that RMP data for

prevention programs must be submitted for each part of the process for

which a separate hazard review is conducted and to replace SIC codes

with NAICS codes.

Section 68.175, Prevention Program/Program 3 would be revised to

clarify the basis for reporting to make it clear that RMP data for

prevention programs must be submitted for each part of the process for

which a separate PHA is conducted and to replace SIC codes with NAICS

codes.

Section 68.180 would be revised to clarify paragraph (b) as

discussed above.

Section 68.210, Availability of information to the public, would be

revised to include references to Secs. 68.150 through 68.152 and to

replace the reference to CAA section 114 with a reference to

40 CFR part 2.

IV. Administrative Requirements

A. Docket

The docket is an organized and complete file of all the information

considered by the EPA in the development of this proposed rulemaking.

The docket is a dynamic file, because it allows members of the public

and industries involved to readily identify and locate documents so

that they can effectively participate in the rulemaking process. Along

with the proposed and promulgated standards and their preambles, the

contents of the docket will serve as the record in the case of judicial

review. (See section 307(d)(7)(A) of the Act.)

The official record for this rulemaking, as well as the public

version, has been established for this rulemaking under Docket No. A-

98-08 (including comments and data submitted electronically as

described below). A public version of this record, including printed,

paper versions of electronic comments, which does not include any

information claimed as CBI, is available for inspection from 8 a.m. to

4 p.m., Monday through Friday, excluding legal holidays. The official

rulemaking record is located at the address in ADDRESSES at the

beginning of this document.

Electronic comments can be sent directly to EPA's Air and Radiation

Docket and Information Center at: ``A-and-R-D[email protected]''.

Electronic comments must be submitted as an ASCII file avoiding the use

of special characters and any form of encryption. Comments and data

will also be accepted on disks in WordPerfect in 6.1 file format or

ASCII file format. All comments and data in electronic form must be

identified by the docket number A-98-08. Electronic comments on this

proposed rule may be filed online at many Federal Depository Libraries.

B. Public Hearing and Written Comments

A public hearing will be held, if requested, to discuss the

proposed amendments in accordance with section 307(d)(5) of the Clean

Air Act. If a public hearing is requested and held,

[[Page 19223]]

the EPA will ask clarifying questions during the oral presentation but

will not respond to the presentations or comments. Written statements

and supporting information will be considered with equivalent weight as

any oral statement and supporting information subsequently presented at

a public hearing, if held. Persons wishing to present oral testimony or

to inquire as to whether a hearing is to be held should contact the EPA

(see ADDRESSES). To provide an opportunity for all who may wish to

speak, oral presentations will be limited to 15 minutes each.

Any member of the public may file a written statement on or before

June 1, 1998. Written statements should be addressed to the Air and

Radiation Docket and Information Center (see ADDRESSES), and refer to

Docket No. A-98-08. A verbatim transcript of the hearing and written

statements will be placed in the docket and be available for public

inspection and copying, or mailed upon request, at the Air and

Radiation Docket and Information Center.

C. E.O. 12866

Under Executive Order (E.O.) 12866, EPA must determine whether a

regulatory action is ``significant'' and, therefore, subject to OMB

review and the requirements of the E.O. The Order defines ``significant

regulatory action'' as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or

adversely affect in a material way the economy, a sector of the

economy, productivity, competition, jobs, the environment, public

health or safety, or state, local or tribal government or communities;

(2) Create a serious inconsistency or otherwise interfere with an

action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants,

user fees, or loan programs or the rights and obligations of recipients

thereof; or

(4) Raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

the E.O.

It has been determined that today's proposed rule is not a

``significant regulatory action'' under the terms of E.O. 12866 and is,

therefore, not subject to OMB review.

D. E.O. 12875

To reduce the burden of Federal regulations on States and small

governments, President Clinton issued Executive Order 12875 on October

26, 1993, entitled ``Enhancing the Intergovernmental Partnership.''

Under Executive Order 12875, EPA may not issue a regulation which is

not required by statute unless the Federal Government provides the

necessary funds to pay the direct costs incurred by the State and small

governments or EPA provides to the Office of Management and Budget a

description of the prior consultation and communications the agency has

had with representatives of State and small governments and statement

supporting the need to issue the regulation. In addition, Executive

Order 12875 requires EPA to develop an effective process permitting

elected and other representatives of State and small governments ``to

provide meaningful and timely input in the development of regulatory

proposals containing significant unfunded mandates.''

The present proposed rule satisfies the requirements of Executive

Order 12875 because it is required by statute and because it does not

contain a significant unfunded mandate. Section 112(r) of the Clean Air

Act requires that facilities submit risk management plans containing

certain essential information. This rulemaking, together with the rule

it amends, implements that statutory command. In addition, this rule

contains no mandate binding upon State or small governments.

Nevertheless, EPA has taken independent efforts to involve such

entities in this regulatory effort; specifically, much of the rule

responds to issues raised by the Electronic Submission Workgroup

discussed above, which included State and local government

stakeholders.

E. Regulatory Flexibility Act

In accordance with the Regulatory Flexibility Act of 1980, as

amended by the Small Business Regulatory Enforcement Fairness Act,

Federal agencies must evaluate the impacts of rules on small entities.

EPA has examined this proposed rule's potential effects on small

entities as required. EPA has determined that this proposed rule will

have a negligible effect on small entities because the proposed rule

would, if promulgated, only impose real costs on those small businesses

that claim CBI when submitting the RMP. EPA estimates that very few

small entities (approximately 500) will claim CBI and that these few

entities represent a small fraction of the small entities (less than 5

percent) affected by the RMP rule. Finally, EPA estimates that those

small businesses filing CBI will experience a cost which is

significantly less than one percent of their annual sales. Therefore, I

certify that today's proposed rule will not have a significant economic

effect on a substantial number of small entities. For a more detailed

analysis of the small entity impacts of this proposed rulemaking, see

Document Number II-B-03, available in the docket for this rulemaking

(see ADDRESSES section).

F. Paperwork Reduction Act

The information collection requirements in this proposed rule have

been submitted for approval to the Office of Management and Budget

(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An

Information Collection Request (ICR) document has been prepared by EPA

(ICR No. 1656.04) and a copy may be obtained from Sandy Farmer, OPPE

Regulatory Information Division, U.S. Environmental Protection Agency

(2137), 401 M St, SW, Washington, DC 20460, by e-mail at

[email protected] or by calling (202) 260-2740. A copy may

also be downloaded off the Internet at http://www.epa.gov/icr.

The submission of the RMP is mandated by section 112(r)(7) of the

CAA and demonstrates compliance with part 68. The information collected

also will be made available to state and local governments and the

public to enhance their preparedness, response, and prevention

activities. Information in the RMP may be claimed as confidential

business information under 40 CFR part 2 and part 68.

EPA estimates that the new data elements will impose little burden

on sources; latitude and longitude method and description will be

selected from a list of options. The Title V permit number is available

to any source to which it applies. Percentage weight of a toxic

substance in a mixture is usually provided by the supplier of the

mixture. The NAICS code is simply a change from one code to another;

sources will have determined their NAICS codes for the 1997 Census of

Manufacturers prior to RMP submission.

The public reporting burden for CBI claims is estimated to be 15

hours for chemical manufacturers with Program 3 processes. EPA

estimates that approximately 20 percent of the 4000 chemical

manufacturers may file CBI claims (800 sources). The total annual

public reporting burden for filing CBI claims is estimated to be about

12,000 hours over three years, or an annual burden of 4,000 hours.

Burden means the total time, effort, or financial resources expended by

persons to generate, maintain, retain, or disclose or provide

information to or for a Federal agency. This includes the time needed

to review instructions; develop, acquire,

[[Page 19224]]

install, and utilize technology and systems for the purposes of

collecting, validating, and verifying information, processing and

maintaining information, and disclosing and providing information;

adjust the existing ways to comply with any previously applicable

instructions and requirements; train personnel to be able to respond to

a collection of information; search data sources; complete and review

the collection of information; and transmit or otherwise disclose the

information.

An Agency may not conduct or sponsor, and a person is not required

to respond to a collection of information unless it displays a

currently valid OMB control number. The OMB control numbers for EPA's

regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15.

Comments are requested on the Agency's need for this information,

the accuracy of the provided burden estimates, and any suggested

methods for minimizing respondent burden, including through the use of

automated collection techniques. Send comments on the ICR to the

Director, OPPE Regulatory Information Division, 2137, U.S.

Environmental Protection Agency, 401 M Street SW, Washington D.C.

20460; and to the Office of Information and Regulatory Affairs, Office

of Management and Budget, Washington, D.C. 20503, ``Attn: Desk Officer

for EPA.'' Include the ICR number in any correspondence. Since OMB is

required to make a decision concerning the ICR between 30 and 60 days

after April 17, 1998, a comment to OMB is best assured of having its

full effect if OMB receives it by May 18, 1998. The final rule will

respond to any OMB and public comments on the information collection

requirements contained in this proposed notice.

G. Unfunded Mandates

Section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded

Mandates Act''), signed into law on March 22, 1995 (109 Stat. 48),

requires that the Agency prepare a statement, including a cost-benefit

analysis, before promulgating a rule that includes a Federal mandate

that may result in expenditure by State, local, and tribal governments,

in the aggregate, or by the private sector, of $100 million or more in

any one year. Where the rule might significantly affect small

governments, section 203 requires the Agency to establish a plan for

obtaining input from small governments and informing, educating, and

advising them on compliance with the requirements of the rule.

Under section 205 of the Unfunded Mandates Act, the Agency must

identify and consider a reasonable number of regulatory alternatives

before promulgating a rule for which a statement must be prepared. The

Agency must select from those alternatives the least costly, most cost-

effective, or least burdensome alternative for State, local, and tribal

governments and the private sector that achieves the objectives of the

rule, unless the Agency explains why this alternative is not selected

or unless the selection of this alternative is inconsistent with law.

The EPA has determined that the total nationwide capital cost for

these rule amendments is approximately zero and the annual nationwide

cost for these amendments is less than $1 million. Because this rule is

estimated to result in the expenditure by State and local governments,

in the aggregate, or by the private sector of less than $100 million in

any one year, the Agency has not prepared a statement or engaged in an

alternatives analysis pursuant to sections 202 and 205 of the Unfunded

Mandates Act.

Because small governments will not be significantly or uniquely

affected by this rule, the Agency is not required to develop a plan

with regard to small governments in accordance with section 203 of the

Unfunded Mandates Act.

H. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement

Act of 1995 (``NTTAA''), Pub L. 104-113, section 12(d) (15 U.S.C. 272

note), directs EPA to use voluntary consensus standards in its

regulatory activities unless to do so would be inconsistent with

applicable law or otherwise impractical. Voluntary consensus standards

are technical standards (e.g., materials specifications, test methods,

sampling procedures, business practices, etc.) that are developed or

adopted by voluntary consensus standards bodies. The NTTAA requires EPA

to provide Congress, through OMB, explanations when the Agency decides

not to use available and applicable voluntary consensus standards.

This proposed regulatory action does not involve any technical

standards that would require Agency consideration of voluntary

consensus standards pursuant to section 12(d) of the NTTAA. EPA invites

public comment on this analysis.

Appendix to Preamble--Data Elements That May Not Be Claimed As CBI

------------------------------------------------------------------------

Rule element Comment

------------------------------------------------------------------------

68.160(b)(1). Stationary source name, This information is filed with

street, city, county, state, zip code, EPA and other agencies under

latitude, and longitude; 68.160(b)(2) other regulations and is made

Stationary source Dun and Bradstreet available to the public and,

number; 68.160(b)(3) Name and Dun and therefore, does not meet the

Bradstreet number of the corporate criteria for CBI claims. It is

parent company; 68.160(b)(4) The name, also available in business and

telephone number, and mailing address other directories.

of the owner/operator.

68.160(b)(5) The name and title of the This information provides no

person or position with overall information that would affect

responsibility for RMP elements and a source's competitive

implementation. position.

68.160(b)(6) The name, title, telephone This information is filed with

number, and 24-hour telephone number state and local agencies under

of the emergency contact. EPCRA and is made available to

the public and, therefore,

does not meet the criteria for

CBI claims.

68.160(b)(7) Program level and NAICS This information provides no

code. information that would affect

a source's competitive

position.

68.160(b)(8) The stationary source EPA This information provides no

identifier. information that would affect

a source's competitive

position.

68.160(b)(9) The number of full time This information is available

employees. for many sources from public

directories. This information

provides no information that

would affect a source's

competitive position.

68.160(b)(10) Whether the source is This information provides no

subject to 29 CFR 1910.119. information that would affect

a source's competitive

position.

[[Page 19225]]

68.160(b)(11) Whether the source is Sources are required to notify

subject to 40 CFR part 355. the state and local agencies

if they are subject to this

rule; this information is

available to the public and,

therefore, does not meet the

criteria for CBI claims.

68.160(b)(12) Whether the source has a This information will be known

CAA Title V operating permit. to state and federal air

agencies and is available to

the public and, therefore,

does not meet the criteria for

CBI claims.

68.160(b)(13) The date of the last This information provides no

safety inspection and identity of the information that would affect

inspecting agency. a source's competitive

position.

68.165(b)(3) Basis of the results (give Without the chemical name and

model name if used). quantity, this reveals no

business information.

68.165(b)(9) Topography (toxics only).. Without the chemical name and

quantity, this reveals no

business information.

68.165(b)(10) Distance to an endpoint.. By itself, this information

provides no confidential

information. Other elements

that would reveal chemical

identity or quantity may be

claimed as CBI.

68.165(b)(11) Public and environmental By itself, this information

receptors within the distance. provides no confidential

information. Other elements

that would reveal chemical

identity or quantity may be

claimed as CBI.

68.168 Five-year accident history...... Sources are required to report

most of these releases and

information (chemical

released, quantity, impacts)

to the federal, state, and

local agencies under CERCLA

and EPCRA; these data are

available to the public and,

therefore, do not meet the

criteria for CBI claims. Much

of this information is also

available from the public

media.

68.170(b), (d), (e)(1), and (f)-(k); NAICS codes and the prevention

68.175(b), (d), (e)(1), and (f)-(p); program compliance dates and

NAICS code, prevention program information provide no

compliance dates and information. information that would affect

a source's competitive

position.

68.180 Emergency response program...... This information provides no

information that would affect

a source's competitive

position.

------------------------------------------------------------------------

List of Subjects in 40 CFR Part 68

Environmental protection, Administrative practice and procedure,

Air pollution control, Chemicals, Hazardous substances,

Intergovernmental relations, Reporting and recordkeeping requirements.

Dated: April 9, 1998.

Carol M. Browner,

Administrator.

For the reasons set out in the Preamble, Title 40, Chapter I,

Subchapter C, Part 68 of the Code of Federal Regulations is proposed to

be amended to read as follows:

PART 68--CHEMICAL ACCIDENT PREVENTION PROVISIONS

1. The authority citation for part 68 continues to read as follows:

Authority: 42 U.S.C. 7412(r), 7601(a)(1), 7661-7661f.

2. Section 68.3 is proposed to be amended by removing the

definition of SIC and by adding in alphabetical order the definition

for NAICS to read as follows:

Sec. 68.3 Definitions.

* * * * *

NAICS means North American Industrial Classification System.

* * * * *

3. Section 68.10 is proposed to be amended by revising paragraph

(d)(1) to read as follows:

Sec. 68.10 Applicability.

* * * * *

(d) * * *

(1) The process is in NAICS code 32211, 32411, 32511, 325181,

325188, 325192, 325199, 325211, 325311, or 32532; or

* * * * *

4. Section 68.42 is proposed to be amended by revising paragraph

(b)(3), redesignating paragraphs (b)(4) through (b)(10) as paragraphs

(b)(5) through (b)(11) and by adding a new paragraph (b)(4) to read as

follows:

Sec. 68.42 Five-year accident history.

* * * * *

(b) * * *

(3) Estimated quantity released in pounds and, for mixtures of

regulated toxic substances, percentage concentration by weight of the

released regulated substance in the mixture;

(4) NAICS code for the process;

* * * * *

5. Section 68.79 is proposed to be amended by revising paragraph

(a) to read as follows:

Sec. 68.79 Compliance audits.

(a) The owner or operator shall certify that they have evaluated

compliance with the provisions of this subpart at least every three

years to verify that procedures and practices developed under this

subpart are adequate and are being followed.

* * * * *

6. Section 68.150 is proposed to be amended by adding paragraph (e)

to read as follows:

Sec. 68.150 Submission.

* * * * *

(e) Procedures for asserting and determining that some of the

information submitted in the RMP is entitled to protection as

confidential business information are set forth in Secs. 68.151 and

68.152 and in 40 CFR part 2.

7. Section 68.151 is proposed to be added to read as follows:

Sec. 68.151 Assertion of claims of confidential business information.

(a) Except as provided in paragraph (b) of this section, a claim of

confidential business information may be made for any data elements

that meet the criteria provided in 40 CFR 2.301.

(b) Notwithstanding the procedures specified in 40 CFR part 2, the

following data elements shall not be claimed as confidential business

information for the purposes of complying with this part:

(1) Registration data set forth in Sec. 68.160(b)(1) through (b)(6)

and (b)(8) through (b)(13) and NAICS code and Program level of the

process set forth in Sec. 68.160(b)(7);

(2) Offsite consequence analysis set forth in Sec. 68.165(b)(3),

(b)(9), (b)(10) and (b)(11);

(3) Accident history data set forth in Sec. 68.168;

[[Page 19226]]

(4) Prevention program data set forth in Sec. 68.170(b), (d),

(e)(1), (f) through (k);

(5) Prevention program data set forth in Sec. 68.175(b), (d),

(e)(1), (f) through (p);

(6) Emergency response program data set forth in Sec. 68.180.

(c) Notwithstanding the procedures specified in 40 CFR part 2, to

assert a claim that one or more data elements are entitled to

protection as confidential business information, the owner or operator

shall submit to EPA the following:

(1) An unsanitized (unredacted) paper copy of the RMP that clearly

identifies each data element that is being claimed as confidential

business information;

(2) A sanitized (redacted) copy of the RMP that shall be identical

to the unsanitized copy of the RMP except that the submitter shall

replace each data element, except chemical identity, claimed as

confidential business information with the notation ``CBI'' or a blank

field. For chemical identities claimed as CBI, the submitter shall

substitute a generic category or class name; and

(3) At the time of submission of the RMP, a sanitized and

unsanitized document substantiating each claim of confidential business

information.

8. Section 68.152 is proposed to be added to read as follows:

Sec. 68.152 Substantiating claims of confidential business

information.

(a) Claims of confidential business information must be

substantiated by providing documentation that demonstrates that the

information meets the substantive criteria set forth in 40 CFR 2.301.

(b) The submitter may claim as confidential information submitted

as part of the substantiation. To claim materials as confidential, the

submitter shall clearly designate those portions of the substantiation

to be claimed as confidential by marking them as confidential business

information. Information not so marked will be treated as public and

may be disclosed without notice to the submitter.

(c) The owner, operator, or senior official with management

responsibility shall sign a certification that the signer has

personally examined the information submitted and that based on inquiry

of the persons who compiled the information, the information is true,

accurate, and complete, and that those portions of substantiation

claimed as confidential business information would, if disclosed,

reveal trade secrets or other confidential business information.

9. Section 68.160 is proposed to be amended by revising paragraphs

(b)(1), (b)(7), and (b)(12) to read as follows:

Sec. 68.160 Registration.

* * * * *

(b) * * *

(1) Stationary source name, street, city, county, state, zip code,

latitude and longitude, method for obtaining latitude and longitude,

and description of location that latitude and longitude represent;

* * * * *

(7) For each covered process, the name and CAS number of each

regulated substance held above the threshold quantity in the process,

the maximum quantity of each regulated substance or mixture in the

process (in pounds) to two significant digits, the NAICS code of the

process, and the Program level of the process;

* * * * *

(12) If the stationary source has a CAA Title V operating permit,

the permit number; and

* * * * *

10. Section 68.165 is proposed to be amended by revising paragraph

(b) to read as follows:

Sec. 68.165 Offsite consequence analysis.

* * * * *

(b) The owner or operator shall submit the following data:

(1) Chemical name;

(2) Percentage weight of the chemical in a mixture (toxics only);

(3) Physical state (toxics only);

(4) Basis of results (give model name);

(5) Scenario (explosion, fire, toxic gas release, or liquid spill

and evaporation);

(6) Quantity released in pounds;

(7) Release rate;

(8) Release duration;

(9) Wind speed and atmospheric stability class (toxics only);

(10) Topography (toxics only);

(11) Distance to endpoint;

(12) Public and environmental receptors within the distance;

(13) Passive mitigation considered; and

(14) Active mitigation considered.

11. Section 68.170 is proposed to be amended by revising paragraphs

(a) and (b) to read as follows:

Sec. 68.170 Prevention program/Program 2.

(a) For each part of a Program 2 process for which a separate

hazard review was conducted, the owner or operator shall provide in the

RMP the information indicated in paragraphs (b) through (k) of this

section.

(b) The NAICS code for the part of the process.

* * * * *

12. Section 68.175 is proposed to be amended by revising paragraphs

(a) and (b) to read as follows:

Sec. 68.175 Prevention program/Program 3.

(a) For each part of a Program 3 process for which a separate

process hazard analysis was conducted, the owner or operator shall

provide in the RMP the information indicated in paragraphs (b) through

(p) of this section.

(b) The NAICS code for the part of the process.

* * * * *

13. Section 68.180 is proposed to be amended by revising paragraph

(b) to read as follows:

Sec. 68.180 Emergency response program.

* * * * *

(b) The owner or operator shall provide the name and telephone

number of the local agency with which emergency response activities or

the emergency response plan is coordinated.

* * * * *

14. Section 68.210 is proposed to be amended by revising paragraph

(a) to read as follows:

Sec. 68.210 Availability of information to the public.

(a) The RMP required under subpart G of this part shall be

available to the public except as provided in Secs. 68.150 through

68.152 and 40 CFR part 2.

* * * * *

[FR Doc. 98-10145 Filed 4-16-98; 8:45 am]

BILLING CODE 6560-50-P