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

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:

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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 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.

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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

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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

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reporting should be reduced as much as possible. At the same time, EPA,

implementing agencies, and other users of RMP data need to have

information that is detailed enough to understand the hazards posed by,

and the safety practices used for, particular parts of processes and

equipment. EPA recognizes that some aspects of prevention programs are

likely to be implemented facility-wide, rather than on a process or

unit basis, whereas other aspects may apply to a particular process or

only to particular units within a process. For example, most sources

are likely to develop an employee participation plan and a system for

hot work permits facility-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

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\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.

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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:

Mitigation measures considered by the firm in its offsite

consequence analysis,

Major process hazards identified by the firm,

Process controls in use,

Mitigation systems in use,

Monitoring and detection systems in use, and

Changes since the last hazard review.

In addition, one commenter contended that even chemical identity

and quantity should be ineligible for CBI protection, since the

requirement to submit an RMP only applies to facilities using a few

well-known, extremely hazardous chemicals, and the public's right to

know should always outweigh a company's claim to CBI.

Along the same lines, a number of commenters urged EPA to develop a

``corporate sunshine rule'' that would allow confidentiality concerns

to be overridden if the protected information is needed by the public

and experts to understand and assess safety issues. Another commenter

recommended that a business claiming a chemical's identity as CBI

should be required to provide the generic name of the chemical and

information about its adverse health effects so the public can

determine the potential risks.

One commenter argued that some of the RMP data that EPA suggested

could reveal CBI, (e.g., release rate), were not ``emission data,''

because the worst case scenario data are theoretical estimates, and do

not represent any real emissions, past or present.

Representatives of the chemical and petroleum industries disagreed

with EPA's proposal to list the data elements that EPA believed could

not reveal CBI in any case. These commenters asserted that EPA could

not anticipate all the ways in which information required by a data

element might reveal CBI, and accordingly urged the Agency to make

[[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 [email protected] 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