Federal Register/Vol. 68, No. 147/Thursday, July 31, 2003/Proposed Rules

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 68 [OAR-2003-0044; FRL-7536-9]

RIN 2050-AF09

Accidental Release Prevention Requirements: Risk Management Program Requirements Under Clean AirAct Section 112(r)(7); Amendments to the Submission Schedule and Data Requirements

AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule.

SUMMARY: On June 20, 1996, EPA published risk management planning regulations mandated under the accidental release prevention provisions ofthe Clean Air Act (CAA). These regulations require owners and operators of stationary sources to submit risk management plans (RMPs) tobe made available to federal, state and local emergency planning and response agencies and to the public though a central location. The first submissions
were received in early 1999. EPA isnow proposing to modify the re-submission schedule under the risk management program for sources who have significant accidents and for those who change the information for the
emergency contacts. EPA is also proposing to add three data elements to the RMP, make several revisions tothe submission format for the RMP, and

remove the regulatory requirement to discuss the off-site consequence analysis in the executive summary of the RMP. EPAintends to issue a final rule addressing all ofthese proposed changes in time for the majority of facilities to complete their 5-year anniversary re-submissions byJune 21, 2004. The modifications proposed today seek to improve the accident prevention andreporting programs ofregulated
sources, andto assist federal, state, and local RMP implementation in light of

new homeland security concerns. DATES: Comments must be submitted on

orbefore September 15, 2003. If requested within 7days from publication date, EPAwill hold a public hearing on August 15, 2003 to discuss the modifications in this proposed rule. Consult the sources ofinformation in FOR FURTHER INFORMATION CONTACT for the time and location ofthe hearing, if suchhearing is requested. ADDRESSES: Comments may be submittedby electronic mail (e-mail) to a-and-r-Docket@epa.gov, Attention Docket ID No. OAR-2003-0044. Submit comments by postal mail to: U.S. Environmental Protection Agency, EPA West (AirDocket), 1200 Pennsylvania Ave., NW., Room B108, Mail Code 6102T, Washington, DC 20460, Attention Docket ID No. OAR-2003- 0044. Follow the detailed instructions, and find more options, provided in sectionI.C ofthe SUPPLEMENTARY INFORMATION section.

FOR FURTHER INFORMATION CONTACT: For general information, contact the Emergency Planning and Community Right-to-Know Hotline at (800) 424- 9346; in the Washington, DC metropolitan area, contact (703) 412- 9810. The Telecommunications Device for the Deaf(TDD) Hotline number is (800) 535-7672. You may also access general information online atthe Hotline Internet site, http:// www.epa.gov/epaoswer/hotline/.For questions on the contents ofthis notice
contact Vanessa Rodriguez, Chemical Emergency Preparedness and Prevention Office, Mail Code 5104A, U.S. EPA, 1200 Pennsylvania Avenue, NW., Washington, DC 20004, (202) 564- 7913, Fax (202) 564-8233, rodriguez.vanessa@epa.gov. You may also wish to visit the Chemical Emergency Preparedness and Prevention Office (CEPPO)Internet site
athttp://www.epa.gov/ceppo.
SUPPLEMENTARY INFORMATION:
I. General Information

A. WhatAre theAffected orRegulated Entities?

Entities potentially affected bythis action are those stationary sources that

are subject tothe chemical accident prevention requirements at 40 CFRpart 68. Affected categories and entities include:

CATEGORY EXAMPLES OF AFFECTED ENTITIES

Chemical Manufacturers

................. Basic chemical manufacturing, petrochemicals, resins, agricultural chemicals, pharmaceuticals, paints, cleaning compounds. Petroleum

........................................ Refineries. Other Manufacturing

....................... Paper, electronics, semiconductors, fabricated metals, industrial machinery, food processors. Agriculture

....................................... Agricultural retailers. Public Sources

................................ Drinking water and waste water treatment systems. U

tilities
............................................. Electric utilities. Other

............................................... Cold storage, warehousing, and wholesalers. Federal Sources

.............................. Military and energy installations.

This table isnot intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. This table lists the types ofentities thatEPA isnow

aware could potentially be affected by this action. Other types ofentities not listed in the table could alsobe affected. To determine whether a stationary

source is affected by this action, carefully examine theprovisions associated with the list ofsubstances andthresholds under 40 CFR 68.130 andthe applicability criteria under §68.10. Ifyou have questions regarding the applicability ofthis action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

B. How CanI GetCopiesofThis Document andOtherRelated Information?
1.Docket.EPAhas established an official public docket for this action under Docket ID No. OAR-2003-0044. The official public docket consists ofthe documents specifically referenced in this action, any public comments received, and otherinformation related
to this action. Although a part ofthe official docket, the public docket does
not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection ofmaterials that is available for publicviewing at the AirDocket in the EPA Docket Center, (EPA/DC)EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center Public Reading Room is
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the Air Docket is (202) 566-1742. 

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2. Electronic Access. You may access this Federal Register document electronically through the EPAInternet under the "Federal Register" listings at http://www.epa.gov/fedrgstr/.

An electronic version ofthe public docketis available through EPA's electronic public docket and comment system, EPADockets. You may use EPA Dockets at http://www.epa.gov/edocket
to submit orview public comments,

access the index listing ofthe contents ofthe official public docket, and to

access those documents in the public docketthat are available electronically. Once in the system, select "search," then key in the appropriate docket identification number.

Certain types ofinformation will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for publicviewing in EPA's electronic public docket. EPA's policy isthat copyrighted material will
not be placed in EPA's electronic public docketbut will be available only in printed, paper form in the official public docket. To the extent feasible, publicly available docket materials will be made available in EPA's electronic public docket. When a document is selected from the index listin EPA Dockets, the system will identify whether the document is available for viewing in EPA's electronic public docket. Although not all docket materials may be available electronically, you may still

access any ofthe publicly available docketmaterials through the docket facility identified in section I.B.

For public commenters, it is important to note thatEPA's policy is that public comments, whether submitted electronically orin paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or otherinformation whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide

areference tothat material in the version ofthe comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.

Public comments submitted on computer disksthat are mailed or delivered to the docket will be transferred toEPA's electronic public docket. Public comments that are mailed ordelivered tothe Docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a briefdescription written bythe docket staff.

For additional information about EPA's electronic public docket visitEPA Dockets online or see 67 FR 38102, May 31, 2002.

C.Howandto Whom DoISubmit Comments?

You may submit comments electronically, bymail, byfacsimile, or through hand delivery/courier. To

ensure proper receipt by EPA, identify the appropriate docketidentification number in the subject line onthe first page ofyour comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close ofthe
comment period will be marked "late." EPA isnot required to consider these late comments. Ifyou wish to submit CBI or information that is otherwise protected by statute, please follow the instructions in sectionI.D. Do not use EPA Dockets (EPA's electronic public docket and comment system) or e-mail
to submit CBI orinformation protected by statute. 1.Electronically. Ifyou submit an electronic comment as prescribed below, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body ofyour comment. Also include this contact information on the outside ofany disk

orCD ROM you submit, and in any

cover letter accompanying the disk or CD ROM. This ensures thatyou can be identified asthe submitter ofthe
comment and allows EPAto contact you in caseEPA cannot read your comment dueto technical difficulties or needs further information on the substance of
your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body ofa comment will be included as part ofthe comment that is placed in the official public docket, and made available in EPA's electronic public docket. IfEPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

i. EPA Dockets.Your use ofEPA's electronic public docket to submit
comments to EPA electronically is EPA's preferred method for receiving
comments. Go directly to EPADockets
athttp://www.epa.gov/edocket and follow the online instructions for submitting comments. To access EPA's electronic public docket from the EPA Internet Home Page, select "Information Sources," "Dockets," and "EPA Dockets." Once in the system, select "search," and then key in Docket ID No. OAR-2003-0044. The system is an "anonymous access" system, which

means EPA will not know your identity, e-mail address, or other contact information unless you provide itin the body ofyour comment.

ii. E-mail.Comments may be sent by electronic mail (e-mail) to a-and-rDocket@epa.gov,Attention Docket ID No. OAR-2003-0044. In contrast to EPA's electronic public docket, EPA's email systemis not an "anonymous access" system. Ifyou send an e-mail
comment directly to the Docket without going through EPA's electronic public docket, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part ofthe
comment thatis placed in the official public docket, and made available in EPA's electronic public docket.

iii. DiskorCDROM.You may submit
comments on a disk orCD ROM that you mailto the mailing address identified in section I.C.2. These electronic submissions willbe accepted in WordPerfect orASCII fileformat. Avoidthe use ofspecial characters and any form ofencryption.

2. ByMail.When mailing comments through the U.S. Postal Service, send 2 copies ofyour comments to: U.S. Environmental Protection Agency, EPA West (Air Docket), 1200Pennsylvania Ave., NW., Room: B108, Mail Code 6102T, Washington, DC 20460, Attention Docket ID No. OAR-2003- 0044.

3. ByHandDeliveryorCourier. When mailing comments through Federal Express, UPS, or other courier services, deliver 2copies ofyour comments to: EPADocket Center (AirDocket), U.S. Environmental Protection Agency, 1301 Constitution Avenue, NW., Room: B108, Mail Code 6102T,Washington, DC 20004, Attention Docket ID No. OAR2003-0044. Such deliveries are only accepted duringthe Docket's normal hours ofoperation as identified in Unit I.B.

4. ByFacsimile.Fax your comments to: 202-566-1741, Attention Docket ID. No. OAR-2003-0044.

D.How ShouldISubmit CBIto the Agency?

Do not submitinformation thatyou consider tobe CBI electronically through EPA's electronic public docket

orby e-mail. Send or deliver information identified as CBI onlyto the 

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following address: Dorothy Mcmanus, Mail Code 5104A, U.S. EPA, 1200 Pennsylvania Avenue. NW., Washington, DC 20460, Attention Docket ID No. OAR-2003-0044. You may claim information that you submit
to EPA as CBIby marking any part or all ofthat information as CBI (ifyou submitCBI on disk or CD ROM, mark the outside ofthe disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI mustbe submitted for inclusion in the public docket andEPA's electronic public docket. Ifyou submit the copy that does
not contain CBI on diskor CD ROM, mark the outside ofthe disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI willbe included in the public docket and EPA's electronic public docket without prior notice. Ifyou have any questions about CBI or theprocedures for claiming CBI, please consult the person identified in the FOR FURTHER INFORMATION CONTACT section.

E. What ShouldI ConsiderasIPrepare My Comments forEPA?
You may find the following suggestions helpful for preparing your comments:

1.Explain your views as clearly as possible. 2.Describe any assumptions thatyou used. 3.Provide any technical information and/or datayou used that support your views.

4. Ifyou estimate potential burden or costs, explain how you arrived atyour estimate.

5.Provide specific examples to illustrate your concerns.

6. Offer alternatives. 7.Make sure to submityour comments by the commentperiod deadline identified.

8. To ensure proper receiptby EPA, identify the appropriate docket identification number in the subject line

onthe first page ofyour response. It would also be helpful ifyou provided the name, date, and Federal Register citation related toyour comments.

The information in this proposed rule is organized as follows:
I.Introduction

A. Statutory Authority B.Background II. Discussion ofProposed Changes A. Changes to Reporting Schedule 1.Five-Year Accident History 2. Emergency Contact Information B. Changes to Executive Summary C. New Data Elements 1.Emergency Contacts E-mail Address 2.Reason for Subsequent RMP

Submissions 3.Contractor Information D.Revisions to RMP Submit Format Uncontrolled/Runaway Reactions III. Other Issues IV. Statutory and Executive OrderReviews

A. Executive Order 12866: Regulatory

Planning andReview B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation

and Coordination withIndian Tribal Governments G.Executive Order 13045: Protection of

Children fromEnvironmental Health and SafetyRisks H. Executive Order 13211: Actionsthat

Significantly Affect Energy Supply, Distribution, orUse I. NationalTechnology Transferand

Advancement Act

I. Introduction

A. StatutoryAuthority

This notice ofproposed rulemaking (NPRM) isbeing issued under section 112(r) ofthe Clean Air Act (CAA or Act)

as amended (42 U.S.C. 7412, 7601).

B. Background

The 1990 CAA Amendments added,
among otherthings, section 112(r) to provide for the prevention and mitigation ofaccidental releases of extremely hazardous substances. Section 112(r) calls for EPA to list the
most dangerous substances and a threshold quantity for each substance. It also directs EPAto issue regulations requiring any stationary source with

more than a threshold quantity of a listed substance to develop and implement a risk management program. EPA published a final rule creating the list ofregulated substances and establishing thresholds onJanuary 31, 1994 (59 FR 4478) (the "List Rule"), and

afinal rule establishing the accidental release prevention regulations onJune 20, 1996 (61 FR 31668) (therisk management program regulations or "RMP Rule"). Together, these two rules

are codified as part 68 oftitle 40 ofthe Code ofFederal Regulations (40 CFR part 68). Sources subject tothe RMP rule are required to develop and implement a risk management program that includes, for covered processes, a five-year accident history, an offsite consequence analysis, a prevention program, and an emergency response program. Sources
must also submit to EPA arisk management plan (RMP) describing the source's risk management program. The deadline for submitting RMPs was June 21, 1999, for sources subject to the programby that date. Approximately 15,000 sources have submitted RMPs.

The RMP rulerequires sources to update and re-submit theirRMPs at least every five years or sooner ifany of the changes specified in section 68.190(b)(2) ofthe rule occur. The specified changes currently include the following conditions: (1)No later than three years after the date onwhich a regulated substance is first listed under §68.130, (2)no later than the date on which a new regulated substance is first presentin an already covered process above a threshold quantity, (3)no later thanthe date on which aregulated substance is first present above a threshold quantity in a newprocess, (4) within 6 months ofa change that requires a revised PHA or hazard review, (5)within 6 months ofa change thatrequires a revised off-site
consequence analysis as provided in §68.36, and (6) within six months of a change that alters the Program level that applied to any covered process. Updates and re-submissions entail the review and revision ofall sections ofthe RMP

as needed to bring the RMP up to date. They must be accompanied by a new certification letter for the entire RMP. If

a source re-submits its RMP for any of the aforementioned reasons, the fiveyear anniversary date forresubmitting the RMP is reset.

Sources maywish to revise their RMPs for other reasons, as well. The Agency distinguishes among the resubmissions discussed above and other various types ofrevisions, namely corrections, de-registrations (revised registrations) and withdrawals. A correction is a change only to individual data elements that a source wishes to change or correct, andrequires anew certification letter covering that change. Corrections maybe required ifthe implementing agency or the reporting
center discovers the submission was incomplete based on avalidation/error report. The source may initiate a correction ifit discovers an error, needs
to make minor administrative changes (e.g., correction ofaphone number or contact name), or changes owners but covered process operations do not change. Corrections do not entail the review and revision of allnine sections ofthe RMP, nor do they affect the fiveyear anniversary date forupdating and resubmitting the RMP.

De-registrations (orrevised registrations as these are referred toin 

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section 68.190(c)) occur when the

source isno longer covered by the program (e.g., the source no longer uses any regulated substances or no longer holds regulated substances in amounts that exceed the threshold quantities). The source submits a letter requesting de-registration, with the RMP being retained in thereporting system database for 15years.

A withdrawal occurs when a source that was never subject to the program submits an RMP in error. Such a source submits a letter requesting a withdrawal, and its RMP is taken out of the reporting system database altogether.

Sources subject tothe rule onJune 21, 1999, were required to submit an RMP by that date. Forthose sources that submitted an RMP onJune 21, 1999, their five-year anniversary date willbe June 21, 2004. Other sources that submitted an RMP before the original deadline, have re-submitted an RMP since, or havebecome subject to the RMP rule since June 21, 1999, will have different anniversary dates.

II. Discussion ofProposed Changes

A. ChangestoRMPSubmission Requirements
1.Five-Year Accident History

EPA proposes that facilities who have

an accident that meets the criteria for the five-year accident history be required to update andre-submit their RMP within six months ofthe date of the accident.

The five-year accident history element for the RMP (40 CFR 68.42) requires the

owner or operator ofa stationary source to record information in their RMP on all accidental releases from covered
processes in the past five years that resulted in deaths, injuries, or significant property damage on site, or known offsite deaths, injuries, evacuations, sheltering in place, property damage, or environmental damage. This requirement includes the release ofany chemical from a covered
process, notjust the release of a regulated substance from that covered
process. During the firstyear ofRMP submissions, approximately 1,150

sources reported in their five-year history thattheir facility had an accidental release that met the criteria for including information on these releases in their RMP.

The regulations require that each time

a source re-submits its RMP, the fiveyear accident history is updated. Information on accidental releases in the previous RMP submission that are
now outside the five-year time frame is removed while information onrecent accidental releases is added. However, unless asource re-submits its RMP

soonerthan the five-year anniversary date, information onmore recent accidental releases will not be submitted in an RMP for potentially 5
years. The five-year accident history is valuable information for chemical accident prevention andpreparedness efforts bynot onlyindustry but bymany stakeholders, including emergency responders. Consequently, EPA is proposing to require that sources update andre-submit their RMP within six months of an accidental release that
meets the five-year accident history reporting criteria.

EPA believes this proposed requirement wouldhelp spur significant improvements in the accident prevention and reporting programs of

sources at which reportable releases

occur. Accidents canbe causedby failures in a source's accident prevention program. This new resubmission trigger would require the

source to review its accident prevention program in light ofthe accident, and to update its RMP with any changes tothe program. While allphysical or procedural improvements may not be finished and completely implemented within the 6-month accident reporting deadline, the Agency believes that review ofthe process hazard analysis and other elements ofthe program can be completed within six months. The Agency also believes that sources would benefit greatly from theprompt scrutiny ofthe accident, allowing the findings of

an accident investigation to better influence any safety recommendations.

EPA also believes the proposed requirement wouldhave the additional benefit ofimproving reporting of accidental releases. Byproviding the details ofthe accident soon after the accident takes place, the source would be likely to provide more complete and
accurate information in its accident reporting. Current requirements allow

sources to compile an accident report for the RMP up to 5years after the accident occurs.

The proposed submission requirement would also allow EPA and interested stakeholders to determine on
an annual basis ifthe rate of accidents is increasing or decreasing, rather than waiting five years to see such data. It would also enable all involved in chemical accident prevention to identify trends in accident causes, examine if there are problem areas or aneed for assistance in specific industry sectors, and identify effective prevention

measures that could be shared so that other sources may avoid similar accidents. This change would modify the schedule for updating andre-submitting

an RMP, but it shouldnot significantly change the associated burden. Ifa
source had a reportable accident, it would need to update andre-submit an RMP within 6 months. However, the

source would not need to resubmit again, provided there are no other accidents or major changes, for another 5years.

An alternative thatwas also considered would require sources with

new accidents that meet the criteria for reporting in the 5-year accident history
to update their RMP on afixed date everyyear. This option would havethe Agency receiving RMPs at the same time from all ofthe sources who have had accidents that meet the criteria during the previous 12 months. This option would provide EPA with an annual report of all ofthe significant accidents thathave occurred at reporting sources, and the changes that were made dueto these accidents. EPAis notproposing this option at this time, because the Agency prefers to give the same amount oftime for reporting (six months) to all

sources. Forexample, ifthe fixed date for annual accident reporting was established asJune 21, a source having

an accident onJune 15 would have no timeto significantly investigate the accident and provide a meaningful report. Nonetheless, EPAis requesting
comment on this option and whether it is preferable to requiring the resubmissions within six months of a significant accident.

2.Emergency Contact Information

EPA proposes to require that facilities
correct their emergency contact information within one month of a change in the information.

The RMP hasbecome a primary

source ofinformation for the federal government's efforts in the homeland security area. The emergency contact information is important not only to state and local responders, but also for the federal government. Under current requirements, ifthe information for the
emergency contact becomes outdated (e.g., change of emergency contact's phone number, emergency contact leaves the position, etc.), the source may take up to five years to report these changes. Implementing agencies that have audited RMPs report that much of the information for emergency contacts is outdated or otherwise inaccurate. For these reasons, EPA is proposing to require that facilities correct their emergency contact information within

one month ofa change in the information. Explained in the following section in detail is also a proposal for an 

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additional email address data element; this would also trigger the requirement
to correct emergency information within

one month ofa change. These changes
to emergency contact information would be considered corrections and would
not require a complete updating and resubmission ofthe RMP. EPArequests comment on this proposal.

B. ChangestoExecutiveSummary

EPA proposes to remove the requirement for sources tobriefly describe the off-site consequence analysis (i.e,worst-case accidental release scenario(s) and the alternative accidental release scenario(s) within the executive summary ofthe RMP.

Section 112(r)(7) ofthe Clean Air Act requires sources subject to the risk management program requirements to conduct an off-site consequence analysis (OCA) for one or more hypothetical accidental worst case and alternative release scenarios and report the results ofthe analysis in the RMP. In 1999, Congress passed the Chemical Safety Information, Site Security and Fuels Regulatory Relief Act (CSISSFRRA), governing the distribution of "off-site consequence [OCA] information." The statute defines "OCA information" as the OCA sections ofthe RMP (sections 2through 5) and any EPA database derived from those sections, but expressly excludes the executive summary section ofthe RMP. Under CSISSFRRA, EPA andthe Department ofJustice jointly issued regulations restricting access to OCA information and certain related information. This regulation (40 CFR part 1400) was published in the Federal Register on August 4, 2000 (65 FR 48108).

Promulgated prior to the passage of CSISSFRRA, §68.155(c) ofthe RMP rule currently requires sources to briefly describe in their RMP executive
summary "the worst-case release scenario(s) and the alternative release scenario(s), including administrative controls and mitigation measures to limit the distances for each reported scenario." EPA, along with federal law enforcement agencies, believes that due
to its sensitive nature, this information shouldnot be included in executive summaries, which are available to the public without restriction under 40 CFR part 1400. For this reason, EPA is proposing to remove the requirement to summarize OCA results, andrequests that sources not voluntarily provide this specific information, in the executive summary. Facilities must continue to provide details ofthe OCA in sections 2through 5 ofthe RMP. The public would continue to have restricted access to OCA information in the manner required bythe regulations at 40 CFR part 1400. EPA requests comment on this proposed change.

C.NewDataElements

1.Emergency Contacts E-Mail Address

EPA proposes to add a mandatory data element to the RMP for sources to provide the e-mail address (ifany) for the emergency contact. Section 68.160(b)(6) ofthe RMP rule currently requires facilities to provide the name, title, telephone number, and

a 24-hour telephone number ofan emergency contact person. Similarly, §68.160(b)(14) allows facilities to optionally provide an e-mail address for the source orparent company. From time to time, EPA is made aware of specific hazards. For example, in the Hazardous Materials Accident Report: Hazardous Materials Release From Railroad Tank Car With Subsequent Fire
atRiverview, Michigan, July 14, 2001, the National Transportation Safety Board (NTSB) included the following recommendation:

"[EPA should] notify all facilities that are required to submitrisk management plans to the Environmental Protection Agency that tank car excess flowvalves cannot berelied upon to stop leaks that occur during tankcar loading and unloading operations and that those companies thathave included reliance

on suchvalves intheir riskmanagement plans shouldinstead identify and implement other measures thatwill stopthe uncontrolled release ofproduct in the event ofatransfer line failure during tank car loading or unloading." (NTSB, R-02-17)

Having an e-mail address for the emergency contact would allow the Agency to quickly and directly communicate hazard information such

asthat provided above by the NTSB. Providing suchnotifications in a timely

manner to all sources subject to RMP requirements would improve sources

access to critical process safety information.

Additionally, RMPs have become a critical source ofinformation for the federal government's homeland security efforts. In our new environment of heightened security, itmay become necessary for an RMP implementing
agency to communicate directly and on short notice with sources subject to the RMP program, orwith a portion ofthat universe. The e-mail address for a source's emergency contact would be a necessary piece ofinformation for this
to occur.

As noted above, EPAis also proposing that any change to the email address for

a source's emergency contact be followed by a corresponding change to the source's RMP within amonth ofthe address change. Thisrequirement would trigger a correction; aresubmission would not be required for this particular change. The Agency requests comments on this proposal and also on the extent to which sources may nothave an e-mail address. Some
sources, such as small agricultural retailers orfertilizer warehouses, may nothave e-mail capability.

2.Reason for Subsequent RMP Submissions

EPA is proposing to add a mandatory data element to the RMP for sources to identify the purpose of submissions that revise or otherwise affect their previously filed RMPs.

As noted above, sources are required
to submit, update andresubmit their RMP bythe schedule specified in section 68.190 ofthe RMP rule. Since the initial June 1999 reporting deadline, EPAhas received thousands of submissions containing corrections, resubmissions, de-registrations (revised registrations) or withdrawals of previously submitted RMPs. However,
atthis time the RMP electronic submission program does nothave an entry thatprovides the reason for the submission, making itdifficult at times for RMP implementing agencies to determine their purpose.

This proposal would add a new data element in the RMP for sources to indicate whatthey are submitting and why. For example, a source that modifies its RMP to correct minor technical errors, make minor administrative changes (i.e.,updates to contact names, addresses, telephone numbers, e-mail addresses), fillin missing data elements, or reflect facility ownership changes, would indicate that itwas making such a correction. Similarly, a source thatrevised the RMP for itsupdate and re-submission as required every five years or when certain changes are made, such as introducing aregulated substance in a process, would indicate that it was sending an RMP re-submission and why. A source that was previously required to submit an RMP, but due to changes in operations was no longer required to report, wouldindicate why itwas submitting a de-registration (revisedregistration) ofthe chemical or process. Sources thathad originally submitted an RMP in error (i.e.they

were never subject to RMP regulation) would indicate why they were withdrawing their RMP from the national database. To help sources provide this information, we would anticipate adding to the RMP electronic submission program a pop-up menu of typical reasons for submissions. Sources 45128

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would simply click on the appropriate

menu item or, ifnone is appropriate, briefly state the reason for the change.

This additional reporting element is intended to assistthe Agency and other implementing agencies in understanding the reason a source is submitting a revised RMP or asking to

remove an existing one. This information would also provide acheck

onthe RMP submission to ensure that information isprovided accurately. Further, this proposed reporting requirement would provide important information on changes occurring in industry, providing insight into chemical usage and process safety management. For example, monitoring the number ofsources de-registering their RMPs because they have substituted the regulated substance for a non-regulated substance, or decreasing the quantity ofa regulated substance in

aprocess, would provide some indication ofthe extent to which inherently safer or alternative technologies are being utilizedby the

sources subject to the RMP. This information would be ofinterest to

sources that could learn from identified trends and industry practices in the area ofchemical process safety management. The Agency is requesting comments on this proposal.

The Agency alsorecognizes that the terminology used to identify the various types ofsubmissions may cause some confusion, and is requesting comments that may help clarify those terms. Specifically, the Agency is considering changing the term revised registrations
to de-registrations, which more clearly conveys the action being taken and is the term used in the implementation materials for the RMP.
3.Contractor Information

EPA isproposing to add a mandatory data element in the RMP for sources that

use a contractor to help prepare their RMPs to so indicate.

Through RMP audits, implementing agencies have learned that many RMPs have been prepared in large part by
contractors. Use ofcontractors for this
purpose is allowed under the RMP rule. However, some implementing agencies have noted potential systemic errors in the way some contractors prepare RMPs. Concern has alsobeen raised that, in

some cases, sources whose RMPs are largely prepared by contractors are not sufficiently familiar with the contents of their RMPs. EPA isproposing to require

an additional data element in the RMP for sources who use a contractor to help develop and fill outthe RMP. Those

sources would be required to provide the name ofthe contractor who helped prepare the RMP and a phone number
to contact the contractor.

This new data would allow the implementing agencies to monitor the

use ofcontractors for RMP preparation andprovide appropriate follow-up. For example, RMP auditors could use the information tomore easily identify systemic errors linked to a particular contractor, and could then share this information withthe source submitting the RMP, thus improving the overall quality ofthe sources' safety management programs. Ultimate responsibility for RMP implementation would continue to reside onthe stationary source's owner or operator. EPA requests comments onthis new requirement.

D.Revisions toRMPSubmitFormat Uncontrolled/Runaway Reactions

EPA is proposing to expand the list of possible causes ofaccidental releases to the reporting ofsources' five-year accident history so an owner or operator

canindicate whether an accident involved an uncontrolled/runaway reaction.

In its report, Improving Reactive Hazard Management (December 2002), the U.S. Chemical Safety andHazard Investigation Board (CSB)recommended that EPA "[m]odify the accident reporting requirements in RMP*Info to define and record reactive incidents. Consider adding the term 'reactive incident' tothe fourexisting 'release events' in EPA's current 5-year accident reporting requirements (Gas Release, Liquid Spill/Evaporation, Fire, and Explosion). Structure this information collection to allow EPA andits stakeholders to identify andfocus

resources on industry sectors that experienced the incidents; chemicals andprocesses involved; and impact on the public, the workforce, andthe environment" (CSB recommendation 2001-01-H-R4).

Based onthis recommendation, EPA is proposing torevise RMP reporting of the five-year accident history (40 CFR 68.42) to allow the owner or operator to indicate whether the accident involved

an uncontrolled/runaway reaction.

The new element would provide

sources with an additional choice to

more accurately report accidents that involved uncontrolled orrunaway reactions. This information is important when measuring whether the accidents involved simple releases ofthe chemical (e.g.,broken valve, broken pipe) orwere the result ofaprocess upset. This new information would provide abetter understanding ofthe types ofaccidents occurring atregulated sources. III. Other Issues
CollectionofOSHA Occupational Injury andIllnessDatain ConjunctionWith theRMPFiling Required Under112(r)of the CAA

EPA and others use the information reported in the RMP accident history in combination with other datato better understand accident risks and to gauge the trends with respect to risk and accident prevention across various industry sectors. Health and safety indicators could alsoprovide information to industry, government, and other researchers inunderstanding the factors that affect chemical accident prevention. Under 29 CFRpart 1904, the Occupational Safety and Health Administration (OSHA) requires employers to maintain logs of employee reportable injury and illness statistics (OII) for every calendar year. Employers need tohave these records available for compliance officers to review upon inspections, and the records for each year mustbe kept for 5years.

Three ofthese records are ofspecial interest to EPA: (1)Total Incidence Rate, (2)Workdays Lost to Injuries, and (3) Illness and Workdays under Restricted Duties. EPAis considering whether future RMP submissions should be required to include data for these three records, aggregated for five mostrecent calendar years. With renewed emphasis

on quantifying the risks and benefits related to chemical accidents, and on the trends in key sectors covered by existing regulations, these data, if collected, would allow an objective analysis ofany statistical relationship between levels ofreported injuries and illnesses, accidental releases and a variety ofother elements driving chemical industry preparedness and prevention activities. The ability to link
to injury and illness data and the indicators theyprovide onhealth and safety at chemical facilities could provide extremely valuable information both to EPA andto industry for understanding the factors thatunderlie chemical process safety. Given that RMPs are submitted by alarge number ofchemical facilities, providing OSHA OII data in RMPs wouldgreatly facilitate analysis oftrends in the U.S. chemical industry on accidental releases and the relationship ofthese, ifany, to facility safety levels.

RMP submitters could provide the aggregate statistics requested with only minimal additional effort in filling out the RMP. Forthe government to obtain this databy other means would require significant effort. The Bureau ofLabor Statistics (BLS) only collects this data from arepresentative sample of 

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companies/facilities andnot from the entire set offacilities covered under RMP; linking BLS data tothe RMP records outside ofthe RMP data collection would require a significant expenditure oftime and resources even though itwould lack a complete data
set. EPAwould expect little additional burden onindustry for the collection of this information since OSHA already requires that itbe maintained. EPA is requesting comments on the practicability andburden ofadding these data elements toRMP reporting requirements, and on thepotential value they mayyield. EPAis also requesting
comments with respect to other data elements that may serve this purpose.
IV. Statutory andExecutive Order Reviews

A. Executive Order12866:Regulatory PlanningandReview

Under Executive Order 12866, (58 FR 51735 (October 4, 1993)), the Agency
must determine whether the regulatory action is "significant" and therefore subject to OMB review and the requirements ofthe Executive Order. The Order defines "significant regulatory action" as one that is likely
to result in a rule thatmay: (1)Have an annual effect onthe 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 governments or communities; (2) create

a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter thebudgetary 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 oflegal mandates, the President's priorities, or the principles set forth in the Executive Order." It has been determined that this proposal isnot considered to be a "significant regulatory action" within the meaning ofthe Executive Order and is therefore not subject to OMB review.

B. Paperwork ReductionAct
The information collection requirements in this proposed rule have been submitted for approval to the Office ofManagement and Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 etseq.The Information Collection Request (ICR) document prepared by EPA has been assigned EPA ICRnumber 1656.10.

EPA is proposing to add three data elements tothe RiskManagement Plan (RMP), to modify one data element, and to remove the obligation to discuss the off-site consequence analysis in the executive summary ofthe RMP. EPA is alsoproposing to modify the submission schedule under the risk management program for sources who have significant accidents, and for those who change the information for the emergency contacts. This actionmay increase some burden on facilities that currently submit risk management plans
to EPA.

The mostrecently recorded number of

sources subject to this proposed action, ifadopted, is 14,930. The public reporting burden estimated for familiarizing with this rule amendment is 2.0 hours for each source. Estimated unit burden for the new RMP data elements is 0.25 hours. The burden for change in submission schedule for RMP dueto significant accidents ranges from 3.0 hours for wholesale to 9.0 hours for large chemical manufacturers. The burden for change in submission schedule for RMP dueto change in emergency contact information is 0.1 hour for each source.

The total annual burden for rule familiarization, addition ofnew elements tothe RMP, and for the change in RMP submission schedule is 33,943 hours (101,829 hours for 3years), with

an annual cost of$992,400 ($2,977,200 for 3years).

Burden means the total time, effort, or financial resources expended bypersons to generate, maintain, retain, ordisclose

orprovide information to or for a Federal agency. This includes the time needed toreview instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, andverifying information, processing and maintaining information, and disclosing andproviding 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; andtransmit orotherwise disclose the information.

An Agency may not conduct or sponsor, and a person is not required to respond to a collection ofinformation unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and48 CFR chapter 15.

To comment on the Agency's need for this information, the accuracy ofthe provided burden estimates, and any suggested methods for minimizing respondent burden, including the use of automated collection techniques, EPA has established a public docket for this ICRunder Docket ID number OAR2003-0052. The public docket is available for viewing atthe Air Docket in the EPADocket Center (EPA/DC), EPAWest, Room B102, 1301 Constitution Ave., NW,Washington, DC. The EPADocket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Reading Room is (202) 566-1744, andthe telephone number for the Air Docket is (202) 566-1742. An electronic version ofthe public docket is available through EPA Dockets (EDOCKET) at http://www.epa.govl edocket.Use EDOCKET to submit or view public comments, access the index listing ofthe contents ofthepublic docket, and to access those documents in the public docket that are available electronically. Once in the system, select "search," then key in the docket ID number OAR-2003-0052. Also, you

can send comments to the Office of Information and Regulatory Affairs, Office ofManagement and Budget, 725 17th Street, NW,Washington, DC 20503, Attention: Desk Office for EPA. Since OMB is required to make a decision concerning the ICR between 30 and 60 days after July 31, 2003, a comment to OMB isbest assured ofhaving its full effect ifOMB receives itby September 2, 2003. The final rule will respond to any OMB or public comments on the information collection requirements contained in this proposal.

C.Regulatory FlexibilityAct
The Regulatory Flexibility Act (RFA),

as amended bythe Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5U.S.C. 601 et. seq, generally requires an agency to prepare

a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies thatthe rule will not have asignificant economic impact on a substantial number of small entities. Small entities include smallbusinesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts oftoday's rule on small entities, a small entity is defined as: (1)A small business thatis definedby the Small Business Administration by category ofbusiness using North American Industrial Classification System (NAICS) and codified at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government ofa city, county, town, school district or special district with a population ofless than 50,000; and (3)

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profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts oftoday's proposed rule on small entities, we have concluded that this action would not have a significant economic impact on a substantial number ofsmall entities.

D. UnfundedMandatesReformAct

Title II ofthe Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, andtribal governments andthe private
sector. Under section 202 ofthe 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, andtribal governments, in the aggregate,

orto the private sector, of $100 million

ormore in any one year.Before promulgating an EPArule for which a written statement is needed, section 205 ofthe UMRA generally requires EPAto identify and consider areasonable number ofregulatory alternatives and adopt the least costly, most costeffective or least burdensome alternative that achieves the objectives ofthe rule. The provisions ofsection 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPAto adopt an alternative other than the least costly, mostcost-effective

orleast burdensome alternative ifthe Administrator publishes with the final rule an explanation why that alternative

was not adopted. Before EPA establishes any regulatory requirements that may significantly oruniquely affect small governments, including tribal governments, it must have developed under section 203 ofthe UMRA a small government agency plan.The plan must provide for notifying potentially affected small governments, enabling officials ofaffected small governments to have meaningful and timely input in the development ofEPAregulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

EPA has determined that this proposed rule would not contain a Federal mandate thatmay 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 nationwide capital
costfor these rule amendments is estimated to be zero and the annual nationwide costs for these amendments are estimated tobe less than $1 million. Thus, today's rule is not subject to the requirements ofsections 202 and 205 of the Unfunded Mandates Act. EPA has determined that this proposed rule contains no regulatory requirements that might significantly or uniquely affect small governments. The new data elements and submission requirements would impose only minimal burden on these entities.

E.Executive Order13132:Federalism

Executive Order 13132, entitled "Federalism" (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure "meaningful and timely inputby State and local officials in the development of regulatory policies thathave federalism implications." "Policies that have federalism implications" is defined in the Executive Order to include regulations thathave "substantial direct effects onthe States, onthe relationship between the national government and the States, or onthe distribution of
power and responsibilities among the various levels ofgovernment."

Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State andlocal officials early in the
process ofdeveloping the proposed regulation.

This proposed rule does not have federalism implications. It would not have substantial direct effects onthe States, on the relationship between the national government andthe States, or
onthe distribution ofpower and responsibilities amongthe various levels ofgovernment, as specified in Executive Order 13132. The proposed rule focuses onrequirements for regulated facilities without affecting the relationships between governments in its implementation. Thus, Executive Order 13132 does not apply to this rule. Although section 6 ofExecutive Order 13132 does not apply to this rule, EPA did consult with State andlocal officials and implementing agencies in developing this rule. EPA held a RMP Implementing Agency meeting in Atlanta, October 21 and 22, 2002. State and local implementing agencies in attendance included representatives from Alabama, California, Colorado, Delaware, Florida, Georgia, Hawaii, Iowa, Kentucky, Louisiana, Mississippi, New Jersey, North Carolina, Ohio, Pennsylvania, and South Carolina. Participants were invited toprovide feedbackregarding the program and related software, aswell as suggestions for improvements.

In the spirit ofExecutive Order 13132, and consistent with EPA policy to promote communications between EPA and State andlocal governments, EPA specifically solicits comment onthis proposed rule from State andlocal officials.

F. Executive Order13175:Consultation andCoordinationWith IndianTribal Governments

Executive Order 13175, entitled "Consultation and Coordination with Indian Tribal Governments" (65FR 67249, November 9, 2000), requires EPA
to develop an accountable process to

ensure "meaningful and timely input by tribal officials inthe development of regulatory policies that havetribal implications." This proposed rule does
nothave tribal implications, as specified in Executive Order 13175. The proposed rule focuses onrequirements for all regulated sources without affecting the relationships between tribal governments in its implementation, and applies to all regulated sources, without distinction ofthe surrounding populations affected. Thus, Executive Order 13175 does not apply to this rule. EPA specifically solicits additional
comment on this proposed rule from tribal officials.

G. Executive Order13045:Protectionof ChildrenFromEnvironmentalHealth & SafetyRisks

The Executive Order 13045, entitled "Protection ofChildren from Environmental HealthRisks and Safety Risks" (62FR 19885, April 23, 1997) applies to any rule that: (1)Is determined tobe economically significant under Executive Order 12866, and (2)concerns an environmental health or safety risk that EPAhas 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. EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such thatthe analysis required under section 5-501 ofthe Order has the potential to influence the regulation. Thisproposal is not subject to Executive Order 13045 because itdoes not involve regulatory decisions that are based on 

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public health or safety risks, nor would it establish environmental standards intended to mitigate health or safety risks.

H. Executive Order13211:ActionsThat Significantly Affect EnergySupply, Distribution,or Use

This rule is not subject to Executive Order 13211, "Actions Concerning Regulations That Significantly Affect Energy Supply,Distribution, orUse" (66 FR 28355 (May 22, 2001))because itis
not a significant regulatory action under Executive Order 12866.

L NationalTechnologyTransferand AdvancementAct

Section 12(d) ofthe National Technology Transfer and Advancement Act of 1995 ("NTTAA"), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary

consensus standards in itsregulatory 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, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards. This proposed rulemaking does not involve technical standards. Therefore, EPAis
not considering the use of any voluntary

consensus standards.

Lists ofSubjects in 40 CFRPart 68

Environmental protection, Administrative practice and procedure, Air pollution control, Chemicals, Hazardous substances, Intergovernmental relations, Reporting andrecordkeeping requirements. Authority: Sec. 112(r) ofthe Clean AirAct.
Dated: July 23, 2003. Marianne L.Horinko, ActingAdministrator.

For the reasons set out in the preamble, title 40, chapter I,part 68 of the Code ofFederal Regulations is proposed to be amended to read as follows:

PART 68-CHEMICAL ACCIDENT PREVENTION PROVISIONS

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

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

2. Section 68.155 is amendedby removing paragraph (c) and redesignating paragraphs (d)through (g)

asparagraphs (c) through (f).

3. Section 68.160 is amendedby revising paragraph (b)(6), redesignating paragraphs b(14) through b(18) as paragraphs b(15) through b(19), and adding anew paragraph b(14) as follows:
§68.160 Registration.

(b) * * * (6) The name, title, telephone number, 24-hour telephone number, and the email address (ifan e-mail address exists) ofthe emergency contact;

(14) The name, the mailing address, andthe telephone number of any contractor who helped prepare the RMP;

5. Section 68.190 is amendedby revising paragraphs (b)(6) and (b)(7),by adding anew paragraph (b)(8),by redesignating paragraph (c) asparagraph (d), and by adding new paragraphs (c) and (e) to read as follows: §68.190 Updates.

(b) * * * (6) Within 6 months ofa change that requires a revised offsite consequence analysis asprovided in §68.36;

(7)Within 6 months ofa change that alters the Program level that applied to any covered process; and

(8) Within 6 months ofthe date ofan accidental release ofany chemical from

a covered process, where the accidental release meets the criteria for reporting in the 5-year accident history as provided in §68.42(a).

(c) The owner or operator ofa stationary source shall submit a correction to the RMP for any change in the emergency contact information required by §68.160 (b)(6) within one month ofthe change.

(e) Following submission ofan initial RMP, an owner or operator submitting
any subsequent version or revision of the RMP shall identify the type of submission being made and the reason for it. The types ofsubmission include:

(1)Corrections (e.g., changes to fix minor technical errors, update administrative information, provide missing data elements orreflect facility ownership changes) which do not require an update and revision ofthe RMP under this section;

(2)Re-submissions under paragraph (b) ofthis section;

(3)De-registrations (revised registrations) under paragraph (c) ofthis section; and

(4) Withdrawals ofan RMP for any facility that was erroneously considered subject to part 68.

[FR Doc. 03-19281 Filed 7-30-03; 8:45 am]

BILLING CODE 6560-50-P 

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# Part VI



# Federal Trade Commission

16 CFR Part 310 Telemarketing Sales Rule Fees; Final Rule ................