24834 Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Proposed Rules

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Chapter IV

[FRL–6584–7]

RIN 2050–AE80

DEPARTMENT OF JUSTICE

40 CFR Chapter IV

[AG Order No. 2299–2000]

RIN 1105–AA70

Accidental Release Prevention

Requirements; Risk Management

Programs Under the Clean Air Act

Section 112(r)(7); Distribution of OffSite Consequence Analysis

Information

AGENCIES: Environmental Protection

Agency and Department of Justice.

ACTION: Proposed rule.

SUMMARY: The Environmental Protection

Agency (EPA) and the Department of

Justice (DOJ) are proposing a rule that

would provide for access to information

concerning the potential off-site

consequences of hypothetical accidental

chemical releases from industrial

facilities. Under section 112(r) of the

Clean Air Act, facilities handling large

amounts of extremely hazardous

chemicals are required to include this

information in risk management plans

which are submitted to EPA. As

required by the Chemical Safety

Information, Site Security and Fuels

Regulatory Relief Act, the proposed rule

would provide for access by the

members of the public and government

officials to this information in ways that

are designed to minimize the likelihood

of accidental releases, the risk to

national security associated with

posting the information on the Internet,

and the likelihood of harm to public

health and welfare.

DATES: Comments: Comments on the

proposed rule must be received by June

8, 2000. Hearings: A public hearing to

discuss this proposed rule will be held

on May 9, 2000, at 9 a.m.

ADDRESSES: Docket and Comments.

Comments should be mailed to:

Environmental Protection Agency,

Office of Air and Radiation, Docket and

Information Center, Ariel Rios Building,

M6102, 1200 Pennsylvania Avenue,

NW, Washington DC, 20460, Attn:

Docket No. A–2000–20. By Federal

Express or Courier: Waterside Mall,

Room M1500, 401 M Street, S.W.,

Washington DC, 20460, Attn: Docket

No. A–2000–20. Comments may be

submitted on a disk in Wordperfect or

Word formats. Please submit comments

and any written testimony prepared for

the public hearing in triplicate.

Supporting information used to develop

these proposed regulations is available

for public inspection and copying from

8:00 a.m. to 5:30 p.m., Monday through

Friday (except government holidays), at

EPA’s Air Docket at Waterside Mall,

Room 1500, 401 M Street, S.W.,

Washington, DC 20460. A reasonable fee

may be charged for copying. The

assessments upon which this proposed

rule is based also are available on the

Internet at www.usdoj.gov and

www.epa.gov/ceppo.

Hearings: The public hearing will be

held at the EPA Auditorium at

Waterside Mall, 401 M Street, S.W.,

Washington, DC 20460. People who

want to testify at this hearing should

call John Ferris, (202) 260–4043, or

Vanessa Rodriguez, (202) 260–7913.

FOR FURTHER INFORMATION CONTACT:

Brenda Sue Thornton, Trial Attorney,

Criminal Division, Terrorism and

Violent Crime Section, Department of

Justice, 601 D Street, N.W., Room 6500,

Washington, DC 20530, (202) 616–5210;

John Ferris, Chemical Engineer, (202)

260–4043, or Vanessa Rodriguez,

Chemical Engineer, (202) 260–7913,

Chemical Emergency Preparedness and

Prevention Office, Environmental

Protection Agency (5104),1200

Pennsylvania Avenue, N.W.,

Washington, DC 20460; or the

Emergency Planning and Community

Right-to-Know Hotline at (800) 424–

9346 (in the Washington, DC

metropolitan area, (703) 412–9810). You

may wish to visit the Chemical

Emergency Preparedness and

Prevention Office (CEPPO) Internet site

at www.epa.gov/ceppo.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Introduction

A. Background

B. What is Reported in an RMP

1. In General

2. OCA Data Elements in Sections 2

Through 5 of RMPs

C. The Passage of CSISSFRRA

D. What CSISSFRRA Does

E. The Delegation to DOJ and EPA

II. The Assessments

A. The Risk Assessment

B. The Benefit Assessment

III. The Proposal

A. Public Access to OCA Information

1. Access to Paper Copies of OCA

Information

2. Internet Access to Selected OCA

Information

3. Risk Indicator System

4. Enhanced Access to Local OCA

Information

5. Additional Information on Chemical

Accident Risk

B. Access to OCA Information by

Government Officials

IV. Request for Comments

V. Judicial Review

VI. Administrative Requirements

A. Docket

B. Executive Order 12866

C. Executive Order 12988

D. Executive Order 13045

E. Executive Order 13084

F. Executive Order 13132

G. Regulatory Flexibility Act

H. Paperwork Reduction Act

I. Unfunded Mandates Reform Act of 1995

J. Small Business Regulatory Enforcement

Fairness Act of 1996

I. Introduction

A. Background

The federal government’s efforts to

prevent and mitigate chemical accidents

have come largely in the wake of the

1984 chemical release in Bhopal, India,

that killed thousands of people and

injured hundreds of thousands more.

Congress responded to the threat of

chemical accidents in this country by

enacting several pieces of legislation,

including section 112(r) of the Clean Air

Act (CAA), 42 U.S.C. 7412(r). In that

section, Congress established a general

duty on industrial facilities handling

any extremely hazardous chemicals to

do so safely (CAA section 112(r)(1)), and

required EPA to establish a regulatory

program to ensure that facilities that

pose the greatest risk develop and

implement a risk management program

to detect and prevent or minimize

accidental chemical releases (CAA

section 112(r)(7)). Congress further

directed that facilities submit to EPA

risk management plans (RMPs)

summarizing their risk management

programs and including information

about the potential effects on the public

and environment of hypothetical worstcase and alternative scenario releases

(CAA section 112(r)(7)(B)(ii)). Congress

also provided that the RMPs shall be

available to the public (CAA section

112(r)(7)(B)(iii)).

In accordance with CAA section

112(r), EPA issued a rule in 1994 listing

the most potentially hazardous toxic

and flammable chemicals and

establishing a threshold of concern for

each (59 FR 4478, January 31, 1994) (the

‘‘List rule’’). In 1996, EPA issued a rule

requiring every facility with more than

a threshold quantity of a listed chemical

to develop and implement an accident

prevention program based on an

assessment of the hazards at that facility

(61 FR 31668, June 20, 1996) (the ‘‘RMP

rule’’). As required by CAA section

112(r), EPA specified in the RMP rule

that the hazard assessment include an

analysis of the potential consequences

of worst-case and alternative scenario

Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Proposed Rules 24835

chemical releases, and that the results of

the off-site consequence analysis (OCA)

information be reported in the facility’s

RMP. To date, approximately 15,000

facilities have submitted RMPs to EPA.

(The list and RMP rules are codified as

the Chemical Accident Prevention

Provisions at 40 CFR part 68.)

B. What is Reported in an RMP

1. In General

An RMP is intended to provide

information about the risk a facility

poses to the surrounding community

and to summarize the facility’s program

to manage that risk. Each RMP consists

of nine sections and contains an

executive summary, which is a prose

description of a facility’s risk

management program, including a ‘‘brief

description’’ of the potential off-site

consequences of one or more

hypothetical accidental releases from

the facility. The rest of the data in the

RMP generally consists of yes/no,

check-off box, and numerical answers to

standard questions. There are additional

areas where facilities may include prose

explanations for various entries, but

(with the exception of the executive

summary) these are optional. This

format, while allowing the data to be

easily submitted, compiled, and

managed in electronic form, generally

precludes facilities from submitting

detailed information. More information

on the content and form of RMPs is

available at the CEPPO website

(www.epa.gov/ceppo) and in the

assessment prepared by EPA for this

rule, which is available in the

rulemaking docket.

2. OCA Data Elements in Sections 2

Through 5 of RMPs

For each covered process at a facility,

the facility’s RMP will contain the

results of off-site consequence analyses

for one or more hypothetical accidental

worst-case and/or alternative release

scenarios. Worst-case scenarios assume

the release of the greatest amount of a

regulated substance held in a single

vessel or pipe under specified ambient

and process conditions, taking into

account administrative controls that

limit the maximum quantity of the

release and the effects of any passive

mitigation features such as dikes or

berms. Alternative release scenarios

assume a release that is more likely to

occur than the worst case, using release

parameters chosen by the facility owner

as appropriate for the scenario, and

accounting for both passive and active

mitigation features. The data elements

comprising the OCA information for

these scenarios are reported in sections

2 through 5 of the RMP. For toxic

chemicals, sections 2 and 3 contain data

on worst-case scenarios and alternative

scenarios, respectively. For flammable

chemicals, sections 4 and 5 report data

on worst-case scenarios and alternative

scenarios, respectively. A list of the data

elements appears in Table A–1.

TABLE A–1.—DATA REPORTED IN OCA SECTIONS OF AN RMP

RMP sections Data elements

2.1, 2.2, 3.1, 3.2, 4.1, 5.1 ....................................... Chemical name, percent concentration, and physical state.

2.3, 3.3, 4.2, 5.2 ..................................................... Dispersion model used to conduct the analysis (e.g., ‘‘lookup’’ table, RMP*Comp software).

2.4, 3.4, 4.3, 5.3 ..................................................... Release scenario (e.g., gas leak, liquid spill and vaporization, pipe leak, etc.)

4.5, 5.5 ................................................................... Consequence endpoint assumed (e.g., explosion over pressure, radiant heat level) (flammable scenarios only; toxic endpoints are mandated by rule).

2.5, 2.6, 2.7, 3.5, 3.6, 3.7, 4.4, 5.4 ........................ Quantity released, release rate, and release duration (for worst-case, release rate and release duration are specified by rule).

2.8, 3.8 ................................................................... Wind speed (for worst-case, must be 1.5 meters/sec unless facility has other data).

2.9, 3.9 ................................................................... Atmospheric stability class (for worst-case, must be most stable [F] unless facility has other

data).

2.10, 3.10 ............................................................... Topography of area surrounding the process or facility (urban or rural).

2.11, 3.11, 4.6, 5.6 ................................................. Distance in miles to either the toxic or flammable endpoint.

2.12, 3.12, 4.7, 5.7 ................................................. Estimated residential population within the endpoint distance.

2.13, 3.13, 4.8, 5.8 ................................................. Public receptors (e.g., schools, residences, recreation areas, etc.) within the endpoint distance.

2.14, 3.14, 4.9, 5.9 ................................................. Environmental receptors (e.g., national or state parks, etc.) within the endpoint distance.

2.15, 3.15, 4.10, 5.10 ............................................. Passive mitigation considered (i.e., equipment that functions without human, mechanical, or

energy input that is designed to limit a release).

3.16, 5.11 ............................................................... Active mitigation considered (alternative scenarios only).

Graphics file name (optional). Facilities may include a map or other graphic to illustrate a release scenario.

C. The Passage of CSISSFRRA

As one way of satisfying CAA section

112(r)’s requirement that RMPs be made

available to the public, EPA had

considered posting RMPs on the

Internet. In the RMP rule, after public

notice and comment, EPA announced

plans for an electronic centralized

system for submitting and managing

RMPs. With the help of a federal

advisory committee, EPA designed an

RMP form that lends itself to the

creation of an electronic database. Many

members of the advisory committee

recommended that CAA section 112(r)

would best be satisfied by placing RMPs

on the Internet to afford the public easy

access to them. Before EPA had

implemented any plan for doing so,

however, the Federal Bureau of

Investigation and other representatives

of the law enforcement and intelligence

communities raised law enforcement

and national security concerns about

making RMPs electronically available.

Specifically, the law enforcement and

intelligence communities voiced

concerns that releasing the OCA

portions of RMPs via the Internet would

enable Internet users anywhere in the

world to search electronically for

industrial facilities in the U.S. to target

for purposes of causing a planned

industrial chemical release, and that no

record of such a query would be made.

These concerns eventually led to the

passage of the Chemical Safety

Information, Site Security and Fuels

Regulatory Relief Act (CSISSFRRA),

Public Law 106–40. In response to the

concerns raised by the law enforcement

and national security communities, EPA

decided not to place the OCA portions

of RMPs on the Internet. Similar

concerns were next raised, however,

that amendments to the Freedom of

Information Act (FOIA) would

nevertheless compel EPA to release the

OCA portions of RMPs in electronic

24836 Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Proposed Rules

1Federal law defines WMD in 18 U.S.C.

2332a(c)(2) as any destructive device as defined in

18 U.S.C. 921, which includes explosive,

format. Congress responded by passing

CSISSFRRA, which in relevant part

added a new subparagraph (H) to CAA

section 112(r)(7).

D. What CSISSFRRA Does

CSISSFRRA exempts ‘‘[OCA]

information’’ (CAA section

112(r)(7)(H)(iii)) from FOIA, 5 U.S.C.

552, and limits public access to OCA

information for at least one year while

the federal government assesses both the

risks of posting the information on the

Internet and the chemical safety benefits

of providing public access to the

information, and then issues regulations

governing distribution of the

information based on those assessments

(CAA section 112(r)(7)(H)(ii)). In

particular, the statute requires the

President to assess ‘‘(aa) the increased

risk of terrorist and other criminal

activity associated with the posting of

[OCA] information on the Internet’’ and

‘‘(bb) the incentives created by public

disclosure of [OCA] information for

reduction in the risk of accidental

releases’’ (CAA section

112(r)(7)(H)(ii)(I)). It then provides that,

based on those assessments, the

President must ‘‘promulgate regulations

governing the distribution of [OCA]

information in a manner that, in the

opinion of the President, minimizes the

likelihood of accidental releases and the

risk described in subclause (I)(aa) and

the likelihood of harm to public health

and welfare’’ (CAA section

112(r)(7)(H)(ii)(II)). CSISSFRRA defines

‘‘[OCA] information’’ as ‘‘those portions

of a [RMP], excluding the executive

summary of the plan, consisting of an

evaluation of 1 or more worst-case

release scenarios or alternative release

scenarios, and any electronic data base

created by the Administrator [of EPA]

from those portions’’ (CAA section

112(r)(7)(H)(i)(III)). In effect, ‘‘[OCA]

information’’ means sections 2 through

5 of RMPs and any electronic database

EPA creates from those sections.

CSISSFRRA also requires that the

regulations promulgated by the

President meet certain additional

requirements for public and

governmental access. The regulations

must, for example, ‘‘allow[] access by

any member of the public to paper

copies of [OCA] information for a

limited number of stationary sources

located anywhere in the United States,

without any geographical restriction,’’

as well as ‘‘allow[] other public access

to [OCA] information as appropriate’’

(CAA section 112(r)(7)(H)(ii)(II)(aa) &

(bb)). They also must guarantee access

to ‘‘[OCA] information’’ to government

officials, referred to in the statute as

‘‘covered persons,’’ for their ‘‘official

use’’ (see CAA sections 112(r)(7)(H)(i)(I)

& (II) and (H)(ii)(II)(cc)-(ee)).

Government officials include officers

and employees of federal, state, or local

government or their agents or

contractors, and officers and employees

of state and local emergency response

organizations or their agents or

contractors (see CAA section

112(r)(7)(H)(i)(I)). Emergency response

officials include members of State

Emergency Response Commissions

(SERCs) and Local Emergency Planning

Committees (LEPCs) created under the

Emergency Planning and Community

Right-to-Know Act of 1986 (EPCRA, 42

U.S.C. 11001 et seq).

While CSISSFRRA guarantees covered

persons access to OCA information, it

prohibits them from disseminating the

information to the public except as

authorized by the statute or the

regulations issued under it (CAA section

112(r)(7)(H)(v)(I)). This prohibition on

dissemination, however, applies only to

OCA information disseminated ‘‘in the

form of a [RMP] or an electronic data

base created by the Administrator [of

EPA] from [OCA] information’’ (CAA

section 112(r)(7)(H)(xii)(II)). Thus,

CSISSFRRA prohibits disclosure of RMP

sections 2 through 5, and of OCA data

conveyed in the ‘‘form’’ of those

sections, and prohibits disclosure of

EPA’s OCA database. CSISSFRRA does

not prohibit disclosure of the substance

of OCA information, i.e., the individual

pieces of OCA data reported in the OCA

sections of RMPs, when the data is

disclosed in a form different than those

RMP sections (sections 2 through 5) or

EPA’s OCA database. State and local

covered persons, then, may

communicate to the public about the

potential off-site consequences of

chemical accidents in any way they

choose, as long as they do not hand out

copies of, or otherwise replicate,

sections 2 through 5 of the RMPs, or

provide direct access to the database.

CSISSFRRA also prohibits covered

persons from disclosing ‘‘any statewide

or national ranking of identified

stationary sources derived from’’ OCA

information (CAA section

112(r)(7)(H)(v)(I)). Any covered person

who willfully violates any of these

prohibitions is subject to criminal

penalties of up to $1,000,000 for

violations committed in any one year

(CAA section 112(r)(7)(H)(v)(II)).

CSISSFRRA also permits the public

other means of access to the substance

of OCA information (CAA section

112(r)(7)(H)(i)(II)). For example, it

exempts RMP executive summaries

from the definition of ‘‘[OCA]

information’’ (CAA section

112(r)(7)(H)(i)(III)). In addition,

CSISSFRRA requires virtually all

covered facilities to conduct a public

meeting or to post a public notice that

summarizes their OCA information by

February 5, 2000 (CSISSFRRA section

4(a)). CSISSFRRA also allows facilities

to release their OCA information to the

public without restriction, and once a

facility has so released its OCA

information, covered persons may do so

as well (CAA section

112(r)(7)(H)(v)(III)). CSISSFRRA

provides further access to this

information, including access for

qualified researchers (see CAA section

112(r)(7)(H)(iv); section 112(r)(7)(H)(vii);

and section 112(r)(7)(H)(viii)).

E. The Delegation to DOJ and EPA

In a memorandum dated January 27,

2000 (published in the Federal Register

at 65 FR 8631 (February 22, 2000)), the

President delegated to the Attorney

General and the Administrator of EPA

authority to perform the required

assessments and to promulgate the

required regulations. The President

assigned to the Attorney General the

responsibility for assessing the

increased risk of terrorist and other

criminal activity associated with posting

OCA information on the Internet (the

‘‘risk assessment’’). He assigned to the

Administrator of EPA the responsibility

for assessing the incentives for

reduction in the risk of accidental

chemical releases created by public

disclosure of OCA information (the

‘‘benefit assessment’’). The President

also jointly delegated to the Attorney

General and the Administrator his duty

to promulgate the regulations, subject to

review and approval by the Office of

Management and Budget (OMB). In this

action, we (i.e., EPA and DOJ) are jointly

proposing regulations pursuant to

CSISSFRRA and the President’s

delegation. OMB has reviewed and

approved the proposed rule.

II. The Assessments

This section summarizes the findings

of the required risk and benefit

assessments that, under CSISSFRRA,

must form the basis for this proposed

rule. These assessments, respectively,

are available on the Internet at

www.usdoj.gov and www.epa.gov/

ceppo.

A. The Risk Assessment

Based upon an analysis of trends in

international and domestic terrorism

and upon the burgeoning interest in

weapons of mass destruction (WMD) 1

Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Proposed Rules 24837

incendiary, or gas devices; any weapon that is

designed or intended to cause death or serious

bodily injury through the release, dissemination, or

impact of toxic or poisonous chemicals, or their

precursors; any weapon involving a disease

organism; or any weapon that is designed to release

radiation or radioactivity at a level dangerous to

human life.

among criminals and, in particular,

terrorists, the risk assessment concludes

that the risk of terrorists attempting in

the foreseeable future to cause a

potentially catastrophic chemical

release is both real and credible.

Terrorists increasingly engineer their

attacks to cause mass casualties to the

populace and/or large-scale damage to

property. In recent years, criminals have

with increasing frequency attempted to

obtain or to produce WMD to achieve

these goals. However, traditional means

of creating or obtaining WMD are

generally difficult to execute. In

contrast, breaching a containment vessel

of an industrial facility with an

explosive, or otherwise causing a

chemical release, may appear less

difficult to a terrorist and may also

appear attractive in light of the

pervasiveness of industrial facilities

possessing toxic or flammable chemicals

and their proximity to high-population

areas. Certain types of facilities

submitting RMPs, moreover, such as

U.S. military, federal, and infrastructure

facilities in the United States, are

preferred terrorist targets. While

security at some of these sites may

reduce the concern that they will be

targeted, no security is foolproof and not

everyone intent on terrorist activity will

be dissuaded by security measures.

Although no criminal or terrorist has

yet successfully caused a chemical

release from an industrial facility on

U.S. soil, the risk assessment points out

that domestic terrorist groups have,

during the past two years, twice been

caught by law enforcement plotting to

cause industrial chemical releases for

terroristic purposes at U.S. facilities. In

addition, the assessment notes that

foreign militaries and certain terrorist

groups indigenous to other countries

have successfully caused releases from

industrial facilities using bombs or

explosive material. These efforts have in

effect converted the facilities into

makeshift WMD.

The risk assessment concludes that

posting certain portions of OCA

information on the Internet would

increase the risk that terrorists or other

criminals will attempt to cause an

industrial chemical release in the

United States. Easy access to OCA

information would be helpful to

someone seeking to cause such a release

because it would provide ‘‘one-stop

shopping’’ for refined targeting

information, allowing terrorists to select

potential targets from among the 15,000

facilities that have submitted OCA

information. The assessment finds that,

in particular, the following pieces of

OCA information would assist someone

seeking to target and maximize an

industrial chemical release:

• The name of the chemical involved in

the worst-case and alternative release

scenarios;

• The scenarios that produce the worstcase and alternative release scenarios (e.g.,

transfer hose failure, pipe leak, etc.);

• The projected quantity of chemical

released in the worst-case or alternative

release scenarios;

• The release rate for alternative release

scenarios;

• The duration of the release in alternative

release scenarios;

• Distance to endpoint or the distance that

the chemical release will extend in the worstcase or alternative release scenarios;

• The endpoint for a flammable alternative

release scenario;

• The residential population within the

affected area in the worst-case or alternative

release scenarios;

• The public receptors within the affected

area (schools, residences, hospitals, prison/

correctional facilities, recreation areas, or

commercial/industrial areas) of the worstcase or alternative release scenarios;

• The environmental receptors within the

affected area (national or state parks, forests,

or monuments; officially designated wildlife

sanctuaries, preserves, or refuges; federal

wilderness area) of the worst-case or

alternative release scenarios;

• Active mitigation systems in the worstcase or alternative release scenarios;

• Passive mitigation systems in the worstcase or alternative release scenarios; and

• Map or other graphic that illustrates a

worst-case or alternative release scenario.

The risk assessment also finds that the

increased risk of terrorist or other

criminal activity associated with posting

these portions of OCA information on

the Internet varies among the specific

pieces of information. The assessment

thus separates OCA information that

would be helpful to a terrorist or other

criminal into three categories. The first

category of OCA information provides a

general account of the consequences of

a chemical release in terms of the

damage that it might inflict on the

community. It consists of the distance to

endpoint, the residential population

within the distance to endpoint, the

public receptors, the environmental

receptors, and the map or graphic of the

worst-case or alternative release

scenario. The assessment finds that,

because these pieces of OCA

information would allow someone to

compare the relative damage that could

be caused by chemical releases from

different sites and choose the best target

from which to attempt to cause a

release, they would be of the greatest

value to terrorists and hence would

present the greatest risk.

The second category of information

consists of OCA information that

provides a rough sketch of what is

involved in triggering a release from an

RMP facility. Included in this category

are the name of the chemical involved

in the worst-case or alternative release

scenario; the projected quantity of

chemical released; the release rate; the

duration of the release; and the scenario

that results in the release. The risk

assessment concludes that this category

of information, while less sensitive than

the first category, still would pose an

appreciable risk if posted on the

Internet.

The third category of information

consists of OCA information on passive

and active mitigation measures. The

assessment finds that this category of

information, while it would be relevant

to an attempt to cause a chemical

release, is the least likely to be exploited

by a terrorist, or else is already easily

accessible to the public so that the

incremental risk of releasing it in OCA

data form would not significantly add to

the risk already posed by its public

availability.

The risk assessment concludes that

Internet access to categories one and

two of OCA information poses the

greatest risk that they will be used in

relation to an attempted industrial

chemical release. The assessment notes

that the method of dissemination and

the degree to which OCA information is

disseminated are of paramount concern

in evaluating the risk posed by the

release of that information to the public.

The assessment finds that Internet

access to OCA information would pose

the greatest risk because of the wide

dissemination of the information and

the anonymity of the access. Paper

copies of OCA information, if they were

permitted to be carried away, would

pose a similar risk because they could

be easily scanned and converted into

electronic copy that could then be

posted on the Internet.

Although the substance of some of the

OCA information that is cause for

concern is already publicly available

through means other than RMPs, the

risk assessment finds (as does the

benefit assessment summarized in the

next section) that the category one

information discussed above that would

be most helpful to terrorists is not

currently available in as readily

accessible and user-friendly a format as

the OCA information sections of an

RMP. Moreover, the assessment finds

that category two information,

24838 Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Proposed Rules

particularly for alternative release

scenarios, is also largely unavailable.

Even if information comparable to that

contained in categories one or two is

currently publicly available, the

assessment finds that it can only be

converted to targeting information by

someone with some degree of technical

proficiency and background in such

information. If those portions of OCA

information that represent refined

targeting or chemical release

information were posted on the Internet,

however, they would be accessible to

anyone anywhere in the world who has

access to the Internet, including agents

of hostile foreign countries. Such

unmonitored dissemination of this

information in a manner that permits

the recipient to obtain it anonymously

and in a form that is easily

understandable greatly increases the

risk of its misuse.

B. The Benefit Assessment

The benefit assessment concludes that

public disclosure of OCA information

would likely lead to a significant

reduction in the number and severity of

accidental chemical releases. The

prevention program requirements of the

RMP rule are performance-based, in part

because EPA considered that the public

availability of RMPs would help ensure

that facilities take all reasonable steps to

reduce their risk of accidents. In

addition, widespread access to OCA

information would serve the function

Congress originally intended in enacting

the CAA—to inform members of the

public and allow them to participate in

decisions that affect their lives and

communities. The public is not likely to

generate the data contained in the OCA

sections of RMPs on its own, and thus

the greater the restrictions on access to

OCA information, the greater the

potential that public safety benefits are

diminished. In support of these

conclusions, the benefit assessment

finds specifically as follows:

• Chemical accidents continue to impose

considerable costs in terms of human lives

and health, property, and public welfare.

Facilities covered by the RMP rule reported

that from mid-1994 to mid-1999 there were

about 1,900 serious accidents that caused 33

deaths, 8,300 injuries, and the evacuation or

sheltering of 221,000 people. These accidents

cost the affected facilities more than $1

billion in direct damages and two to four

times that in business interruption losses.

These accidents also represent less than 10

percent of all unintended releases of

hazardous substances reported to the

government during this period.

• Given the opportunity, the public uses

hazard information to take action that leads

to risk reduction. Various segments of the

public have strong incentives to use OCA

information in ways that reduce risk. For

example, the national publication of the

Toxics Release Inventory (TRI) data by the

government, followed by analysis by citizens’

groups and the news media, appears to have

spurred action by industry to reduce

emissions. Nationally, reported TRI

emissions have fallen 43 percent since 1988,

a time in which industrial production has

risen 28 percent. Although other factors

contributed to the decline in emissions,

negative press coverage appears to have led

some facilities to reduce their TRI emissions.

• Ease of access to information is critical

to public use and risk reduction. Data

available in paper form on request from state

or local agencies are rarely sought. For

example, data on the location and identity of

hazardous chemicals are requested about

3,500 times a year from LEPCs. (There are

about 3,200 LEPCs in the country and about

560,000 facilities subject to requirements to

report information on hazardous chemicals to

LEPCs.) Meanwhile, environmental data on

the Environmental Defense Fund’s

‘‘Scorecard’’ website are at least 250 times

more likely to be reviewed by the public than

is information from LEPCs. Likewise, early

indications are that meetings required by

CSISSFRRA to explain OCA information to

the public have drawn very few attendees

even when citizens received individual

invitations. In contrast, when industry has

gone out to places the public already

frequents (for example, a shopping mall) and

provided consequence information directly

to citizens, outreach and communication

about chemical accident risks have been

more successful.

• Information that puts hazards into

context is far more likely to be used by the

public than are ‘‘raw’’ data. The importance

of such ‘‘interpreted’’ information (already

analyzed in order to be understandable) is

demonstrated by the increased use of TRI

data when they were made available as part

of Scorecard on the Internet. Although TRI

data are available electronically through

EPA’s Envirofacts and the Right-To-Know

Network (RTK-Net) websites, Scorecard ranks

each facility on various indicators by county,

state, and nation, and explains the health

effects of chemicals emitted by that facility.

The raw TRI data on RTK-Net were drawing

240,000 searches a year; Scorecard draws

over a half million page views a month. OCA

information is interpreted in that it reflects

the results of analysis of data that the public

might otherwise find difficult to understand.

Ultimately, the best and most effective

interpreted information would be generated

during dialogue about OCA information and

RMP data at the local and national levels

among the public, government (particularly

emergency response officials), and facilities.

• Although the substance of OCA

information could be derived from other

available data, the public is unlikely to do so.

Derivation of such information requires some

technical knowledge and time. While

motivated and skilled individuals and

organizations can use widely available

existing data, guidance, and models to

estimate off-site consequences with relative

ease, the general public is unlikely to be able

and willing to do so.

• A complete RMP containing OCA data is

necessary to understand the extent of the

hazard posed by a particular facility in

comparison to other facilities in an area,

within an industrial sector, or handling the

same chemicals. The accident prevention

rule requires facilities to conduct OCAs in a

specified, systematic manner so that the

public and others can understand the relative

hazards and risks posed by facilities as a

result of the type and amount of chemicals

handled and the mitigation measures used.

While the OCA information addresses the

hazard, the complete RMP also addresses the

steps to control the hazard. Understanding

the extent of a hazard and how it is

controlled leads to understanding the risk

posed by a facility.

• Multiple segments of the public,

particularly citizens, citizens’ groups, and the

media, are likely to become more interested

in chemical safety and chemical release risk

reduction to the extent they become aware of

the potential consequences associated with

worst-case and alternative release scenarios.

The interest and concern about potential

consequences will likely trigger comparisons

and detailed analyses not only of OCA

information but also of the safety and

environmental performance of facilities.

Widespread awareness of the comparisons

and analyses would provide the public with

a better understanding of accident risk;

combining this understanding with other

environmental risk information would likely

stimulate better dialogue at the local and

national levels among the public,

government, and facilities to reduce chemical

accident risks.

• Although CSISSFRRA provides for

access to OCA information for state and local

officials, including emergency planners and

responders, and allows those officials to

disseminate the substance of OCA

information to the public, the penalties for

disclosure contained in CSISSFRRA are

having a chilling effect. Many of these

officials are not willing to obtain OCA

information or to communicate its substance

and thereby risk accidental or inadvertent

disclosure of OCA information, even though

CSISSFRRA penalizes only its willful

disclosure.

III. The Proposal

In developing our proposed approach,

we have relied, as CSISSFRRA requires

us to do, on the specific findings of the

two assessments in a way that we

believe most effectively minimizes the

likelihood of accidental releases, the

increased risk of terrorist activity

associated with the posting of OCA

information on the Internet, and the

likelihood of harm to public health and

welfare from chemical releases. In

consideration of the two assessments,

our proposed approach seeks to

disseminate in an appropriately

controlled manner those pieces of OCA

information that the risk assessment

found posed the greatest risk of being

used in planning a terrorist or other

criminal event and, in particular, to

Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Proposed Rules 24839

2CSISSFRRA requires that the regulations allow

access by any member of the public to paper copies

of OCA information for a limited number of

facilities without geographic restriction, and also

permits other means of access as appropriate.

minimize the risk associated with the

posting of those pieces of information

on the Internet.2 To that end, we

propose to make OCA information

available in reading rooms

geographically distributed across the

United States. At the same time, our

proposed approach recognizes that

several pieces of OCA information pose

less risk of being used for criminal

purposes or are otherwise widely

available already and, where that is the

case, seeks to provide the data over the

Internet. Placing OCA information on

the Internet gives the public a fast and

convenient way to obtain this

information. While the Internet provides

a tremendous benefit by offering people

easy access to a wealth of information,

we also recognize that it provides a new

means for criminals and terrorists to

carry out traditional criminal activities.

We therefore have attempted to balance

these interests by making as much

information as appropriate available

online, but not posting the information

that the risk assessment found poses a

significant risk for terrorist or criminal

purposes. Further, to address the

statute’s requirement that we minimize

the likelihood of harm to the public

from chemical releases, our proposed

rule includes several components

intended to complement reading-room

access to OCA information by providing

additional information in easily

accessible ways that would help the

public better understand chemical

accident risk and prevention. We

anticipate that the proposed measures,

taken together, would stimulate and

enhance needed dialogue among

members of the public, government, and

industry at the local and national levels

about how to minimize the risk of

chemical accidents, however caused.

The assessments reveal that some

OCA information is already publicly

available to varying degrees. The

substance of some OCA information is

capable of being assembled from various

public sources, although the actual OCA

information itself represents the most

up-to-date and complete information

available. Furthermore, compiling other

publicly available information into a

form comparable to OCA information

would require both extensive effort and

technical proficiency. We have factored

the issue of the public availability of

OCA-like data into our decisions

regarding how various pieces of OCA

information should be treated. For

example, while certain pieces of OCA

information would otherwise have been

considered to pose law enforcement and

national security concerns, such as the

passive and active mitigation systems

considered in the worst-case scenarios,

we believed that the public availability

of almost identical information in other

parts of RMPs meant that those pieces

of OCA information should be handled

as less sensitive pieces of OCA

information and, hence, have treated

them as such.

Finally, we have taken careful note of

the benefit assessment’s conclusions

regarding the role of risk-related

information in risk reduction and the

ways that the public acquires and uses

such information. In response to these

conclusions, the proposal would ensure

that all of the OCA information would

be available to the public in some

fashion, and some OCA information

would be available in several forms. As

explained above, any member of the

public would have access to OCA

information without geographical

restriction for a limited number of

facilities in federal reading rooms. In

addition, the proposed rule would make

as many OCA data elements as

appropriate available to the public on

the Internet, providing easy access to

that information. The proposal also

would make available on the Internet a

‘‘risk indicator system’’ which would

provide the public a means of

understanding some aspects of the risk

expressed by OCA information without

disclosing the actual OCA information

itself. The indicator proposal responds

to the finding that information that is

already interpreted, easily understood,

or put into context is far more likely to

be used by the public in taking action

that leads to risk reduction.

Further, the proposed rule would seek

to enhance local access to OCA and

related information. It would clarify that

members of SERCs, LEPCs, and fire

departments (as covered persons) may,

even now, communicate to the public

the substance, although not the form, of

OCA information, and thereby

contribute to public awareness and

discussion of chemical risk reduction

efforts and opportunities. It also would

authorize members of SERCs, LEPCs,

and local fire departments to provide

read-only access to OCA information

itself for all of the sources in an LEPC’s

jurisdiction and for sources with a

vulnerable zone that extends into the

LEPC’s jurisdiction. This aspect of the

proposal would potentially provide the

public with more convenient access to

OCA information for local facilities.

Together, the proposal’s public access

provisions would facilitate widespread

public awareness of information

regarding the safety and environmental

performance of facilities. That

awareness, in turn, would likely

stimulate dialogue among members of

the public, government, and industry

about what further steps might be taken

to reduce chemical risk. We believe that

this scheme effectively responds to the

benefit assessment’s conclusion that it is

the interaction of the public,

government, and facilities that will

ultimately yield the most benefit in

reducing the risks of chemical

accidents.

A. Public Access to OCA Information

1. Access to Paper Copies of OCA

Information

In accordance with CSISSFRRA, this

proposed rule would provide the public

with access to paper copies of OCA

information for a limited number of

facilities located anywhere in the

United States, without geographical

restriction (see CAA section

112(r)(7)(H)(ii)(II)(aa)). Under the

proposed rule, OCA information for

facilities nationwide would be

accessible to the public at reading rooms

located at designated sites throughout

the country, such as EPA regional

offices and other federal facilities. There

would be at least 50 reading rooms

geographically distributed across the

United States so that the public would

have reasonable access to them. At these

sites, members of the public would have

access to OCA information for any

facility and would be able to read it and

to take notes from it. Members of the

public would not, however, be

permitted to remove the OCA portions

of RMPs from a reading room or to

mechanically reproduce those portions.

Each reading room would be authorized

to provide any member of the public

with access to OCA information for up

to 10 stationary sources per calendar

month. Based on an analysis of the

geographic distribution of RMP-covered

facilities (available as part of the

benefits assessment), we believe that, in

most cases, this would permit members

of the public to have access to OCA

information about facilities in whose

‘‘vulnerable zone’’ they live or work, as

well as to OCA information about

additional facilities for purposes of

comparison. At the same time, it would

minimize the criminal risk associated

with Internet access to the most

sensitive pieces of OCA information by

making it difficult to obtain large

quantities of that information and to

convert it to an electronic format for

Internet posting.

24840 Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Proposed Rules

3Certain pieces of OCA information are being

released because they are fixed values and are

widely available to the public. The values for the

duration of a chemical release and the endpoint

used for flammables for the worst-case scenario are

fixed numbers that can be found in EPA’s guidance

for submitting worst-case scenario data and on the

RMP form.

To implement the proposed limit on

the number of facilities for which an

individual could obtain access to paper

copies of OCA information, the

proposed rule would require that

reading room personnel ask each

individual to show a piece of personal

identification issued by a federal, state,

or local government agency (e.g., a

driver’s license) before the individual is

given access to OCA information. This

requirement is necessary because

without checking personal

identification, reading room personnel

could not keep track of the number of

facilities for which the individual had

been given access to OCA information.

Requiring reading room personnel to ask

for personal identification also would

decrease the likelihood that OCA

information would be obtained by

individuals seeking it for terrorism or

other criminal purposes, because such

individuals prefer to hide their activities

from public view.

We anticipate that reading rooms

would keep daily sign-in sheets that

would record the names of each

individual requesting OCA information,

how many facilities’ OCA information

the individual had received to read, and

which facilities those were. Whenever

someone requested access to OCA

information, reading room personnel

would review the sign-in sheets for that

day and the previous days during the

month to determine how many, if any,

facilities’ OCA information that person

already had received that month. These

sign-in sheets would be protected under

the Privacy Act (5 U.S.C. 552a). We

envision that they will be retained for

three years.

We also anticipate that reading rooms

would generally provide access to

RMP*Info, an electronic public access

database on the Internet that includes

the full text of RMPs except for the OCA

sections. Where RMP*Info is not

available for use by the public, we

anticipate that the entire copy of each

RMP would be made available to those

who request it so that the OCA

information may be reviewed in the

context of the larger risk management

plan.

We believe that the sort of readingroom access just described, in

conjunction with the other provisions of

this proposed rule, achieves the overall

goal of the statute—to minimize the risk

to the public posed by chemical

releases, however caused, from the

facilities submitting state, or local

government agency (e.g., a driver’s

license) before the individual is given

access to OCA information. This

requirement is necessary because

without checking personal

identification, reading room personnel

could not keep track of the number of

facilities for which the individual had

been given access to OCA information.

Requiring reading room personnel to ask

for personal identification also would

decrease the likelihood that OCA

information would be obtained by

individuals seeking it for terrorism or

other criminal purposes, because such

individuals prefer to hide their activities

from public view.

We anticipate that reading rooms

would keep daily sign-in sheets that

would record the names of each

individual requesting OCA information,

how many facilities’ OCA information

the individual had received to read, and

which facilities those were. Whenever

someone requested access to OCA

information, reading room personnel

would review the sign-in sheets for that

day and the previous days during the

month to determine how many, if any,

facilities’ OCA information that person

already had received that month. These

sign-in sheets would be protected under

the Privacy Act (5 U.S.C. 552a). We

envision that they will be retained for

three years.

We also anticipate that reading rooms

would generally provide access to

RMP*Info, an electronic public access

database on the Internet that includes

the full text of RMPs except for the OCA

sections. Where RMP*Info is not

available for use by the public, we

anticipate that the entire copy of each

RMP would be made available to those

who request it so that the OCA

information may be reviewed in the

context of the larger risk management

plan.

We believe that the sort of readingroom access just described, in

conjunction with the other provisions of

this proposed rule, achieves the overall

goal of the statute—to minimize the risk

to the public posed by chemical

releases, however caused, from the

facilities submitting RMPs. While we

considered permitting the actual release

of paper copies to members of the

public upon their request, we concluded

that this would pose too great a risk

because such copies could easily be

converted into electronic format for

Internet posting. Instead, we believe that

a better approach would be a series of

graduated means of access, starting with

the above-described system of reading

rooms which will be geographically

distributed across the United States and

which will provide any member of the

public with access to all OCA

information for any facility located

anywhere in the United States,

contingent upon some reasonable

limitations such as a maximum number

of facilities (10) per calendar month as

to which an individual can obtain OCA

information. We suggest augmenting

this access, as set forth below, by

providing two different additional

means of Internet access to OCA

information, and an alternative means

by which members of the public can

obtain access to paper copies of OCA

information for the localities in which

they live or work. Because this last

avenue of access would be

geographically limited to localities, we

propose providing access to OCA

information without the types of

restrictions that would exist in the

national reading rooms, such as limits

on the number of facilities about which

information could be obtained.

2. Internet Access to Selected OCA

Information

In an effort to provide robust access

to as much OCA information as

practicable, the proposed rule also

makes some OCA information available

to the public through the Internet by

posting it on EPA’s website. The

following pieces of OCA information for

both the worst-case and alternative

release scenarios would be posted on

the Internet, along with other RMP data

elements available in EPA’s RMP*Info3:

• The concentration of the chemical (RMP

Sections 2.1.b; 3.1.b);

• The physical state of the chemical (RMP

Sections 2.2; 3.2);

• The duration of the chemical release for

the worst-case scenario (RMP Section 2.7);

• The statistical model used (RMP

Sections 2.3; 3.3; 4.2; 5.2);

• Endpoint used for flammables for the

worst-case scenario (RMP Section 4.5);

• Wind speed during the chemical release

(RMP Sections 2.8; 3.8);

• The atmospheric stability (RMP Sections

2.9; 3.9);

• The topography of the surrounding area

(RMP Sections 2.10; 3.10);

• The passive mitigation systems

considered (RMP Sections 2.15; 3.15; 4.10;

5.10); and

• The active mitigation systems considered

(RMP Sections 3.16; 5.11).

The proposed rule would exclude the

following pieces of OCA information from

being posted on the EPA website:

• The name of the chemical involved

(RMP Sections 2.1.a; 3.1.a; 4.1; 5.1);

• The scenario involved (RMP Sections

2.4; 3.4; 4.3; 5.3);

• The quantity of chemical released (RMP

Sections 2.5; 3.5; 4.4; 5.4);

Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Proposed Rules 24841

• The release rate of the chemical involved

for the worst-case scenario (RMP Section

2.6);

• The release rate of the chemical involved

in the alternative release scenario (RMP

Section 3.6);

• The duration of the chemical release in

the alternative release scenario (RMP Section

3.7);

• Distance to endpoint (RMP Sections

2.11; 3.11; 4.6; 5.6);

• Endpoint used for flammables for the

alternative release scenario (RMP Section

5.5);

• Residential population within the

distance to endpoint (RMP Sections 2.12;

3.12; 4.7; 5.7);

• Public receptors within the distance to

endpoint (RMP Sections 2.13; 3.13; 4.8; 5.8);

• Environmental receptors within the

distance to endpoint (RMP Sections 2.14;

3.14; 4.9; 5.9); and

• Map or other graphic used to illustrate a

scenario (RMP Sections 2.16; 3.17; 4.11;

5.12).

These pieces are not being posted on

the Internet in view of the risk

assessment’s findings that Internet

posting of these OCA data elements

would increase the risk of a chemical

release caused by a terrorist or criminal.

Our proposal to post some but not all

OCA information on the Internet is

guided by the findings in the two

assessments. The pieces of OCA

information that would not be posted

are restricted to those that the risk

assessment found to pose a significant

risk of being used for terrorist or other

criminal purposes. The pieces of OCA

information that would be posted, by

contrast, pose less incremental risk, and

we anticipate that Internet release of

these pieces of information would have

the benefit of facilitating dialogue

between members of the public, state

and local officials, and the facilities.

Information about active and passive

mitigation systems that has been

included in worst-case and alternative

release scenarios, for example, would

provide the public with knowledge

about measures that industry is taking to

limit the potential damage that could

result from a chemical release. Finally,

the pieces of information that would not

be posted would remain accessible to

members of the public at federal reading

rooms and potentially at the local level

through various other means provided

for by this proposed rule. We anticipate

that these additional means of access

would help ensure that members of the

public have meaningful access to the

full range of OCA information, while

reducing the risk that the most sensitive

pieces of that information would be

used for criminal purposes.

3. Risk Indicator System

The proposed rule would set up a

‘‘risk indicator’’ system that would

provide the public a means of

understanding, via Internet inquiry,

some aspects of the risk expressed by

OCA information without giving them

via the Internet the actual OCA

information itself or individual portions

thereof. The risk indicator system would

consist primarily of query and response

software located in RMP*Info. Members

of the public would be able to enter a

specific address (such as that of a home,

school, or place of employment) and

learn if that address might be within the

‘‘vulnerable zone’’ (i.e., within the

worst-case or alternative release

scenario’s ‘‘distance to endpoint’’) of at

least one facility currently submitting an

RMP to EPA. (As discussed further

below, because the data reported in

RMPs is not sufficient to precisely map

the vulnerable zones for chemical

releases, the indicator could not

definitively state whether an address is

or is not within a vulnerable zone.)

Members of the public who do not have

access to the Internet would be able to

obtain the same information by calling

the EPA hotline or by mailing a request

to the Administrator of EPA.

The risk indicator system also would

inform individuals of several means by

which they can obtain additional

information. Any federal reading rooms

and relevant local reading rooms under

this proposed rule, for example, would

be sources for identifying the facility or

facilities whose vulnerable zones extend

to the address entered into the indicator

system. EPA would revise RMP*Review,

the software designed for use by federal,

state, and local ‘‘covered persons,’’ so

that it would include a version of the

indicator with the capability easily to

identify the names of the facilities

whose vulnerable zones may extend to

an address. Therefore, individuals could

potentially obtain this information from

federal, state, and local ‘‘covered

persons.’’ (We understand that

provision of this information by state

and local officials could require

additional resources and therefore that

not all state and local officials may be

able to respond to requests for the

information.) Our intention is that all of

this contact information would be

readily accessible or linked to the

indicator located in RMP*Info.

We believe that the risk indicator

system would encourage members of the

public to seek additional information

about the risk of chemical releases in

their communities and about steps that

they may take to reduce that risk, and

thereby would encourage the sort of

dialogue among community members,

government agencies (especially LEPCs),

and industry that is vital to prevention

of chemical accidents. Once an

individual learned the identity of

facilities that could present a risk, he or

she could refer to those facilities’ RMPs

in RMP*Info to learn more about them,

including their accident histories and

the steps that each facility is taking to

prevent accidents. If the individual

wanted to view all of the OCA

information for a facility, he or she

could contact the facility directly

(facilities are encouraged but not

required to provide the actual OCA

information) or could visit one of the

designated OCA information reading

rooms. Finally, the individual could

gain this and further information on risk

by contacting an LEPC, SERC, local fire

department, or other state or local

‘‘covered person.’’ As we explain in the

next section, federal, state, and local

covered persons are authorized and

encouraged by the proposed rule to

provide reading-room access to copies

of OCA information. They also are

permitted to convey and discuss the

substance of OCA information, so long

as they do so in a way that does not

replicate the OCA sections of RMPs or

EPA’s OCA database. LEPCs also have

access to, and are free to provide

individuals with, hazardous chemical

inventory reports submitted by

facilities, local emergency response

plans, and other information beyond

that contained in RMPs.

We have some concerns with the

precision of the risk indicator system

because it would utilize the latitude/

longitude and the distance to endpoint

portions of OCA information reported

by facilities. Because the latitude/

longitude readings reported by facilities

can be taken at any point within the

facilities, and because some facilities

can be quite large, we are concerned

that some addresses would be reported

to be in a vulnerable zone of a facility

when in fact they are not. However, we

believe that these concerns are

outweighed by the usefulness of the risk

indicator system as a means of

stimulating members of the public to

pursue more precise and accurate

information about local risk. To the

extent that the indicator helps members

of the public to understand that they

may be in a vulnerable zone, it provides

valuable information above that which

is currently available. At this time,

RMP*Info allows an individual to learn

only the names of facilities that have

submitted RMPs in a particular city or

county; there is currently no easy way

of finding out if the off-site

24842 Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Proposed Rules

consequences of any of the facilities’

worst-case scenarios could affect

particular addresses. The proposed

indicator would provide such

information.

4. Enhanced Access to Local OCA

Information

Enhancing public access to OCA

information for local sources is another

key element of today’s proposed rule.

We believe that chemical safety is most

effectively addressed at the local level,

and the benefit assessment confirms that

members of the public and local

officials working together and with

industry have the potential to promote

chemical accident prevention. LEPCs

and fire departments are closest to the

facilities subject to accident prevention

rules and the communities potentially

affected by any accidents at those

facilities. For more than a decade, EPA

has endeavored to strengthen LEPCs so

that they can realize their potential to

prevent and respond to accidental

releases. We therefore believe that

LEPCs and fire departments can and

should be encouraged to play an

important role in the communication of

OCA information to members of the

public. Also, to the extent federal

outlets for reading-room access to paper

copies of OCA information may be

located some distance from some

members of the public, gaining access

through LEPCs or other local

government officials may be a preferable

alternative. While we would not require

local officials to provide such access, we

would strongly encourage them to do so,

particularly in light of their key role in

chemical safety at the local level.

The proposed rule includes several

provisions for achieving this objective.

The proposed rule authorizes members

of LEPCs or local fire departments to set

up reading rooms or other facilities

where members of the public could

read, but not remove or mechanically

copy, paper copies of the OCA

information for all of the sources in the

LEPC’s jurisdiction and for any sources

whose vulnerable zone extends into the

LEPC’s jurisdiction. A LEPC could, for

example, have a binder of OCA

information for all of the sources

meeting this criterion and provide the

public with access to the binder.

Members of the public would be

permitted to read and take notes from

the OCA information, but not to remove

or mechanically reproduce it. The

proposed rule would impose no limit on

the number of facilities for which

members of the public may review

paper copies of OCA information made

available by LEPCs or fire departments

and would not require LEPCs to ask

members of the public to show any

identification to gain access to the

information. SERCs would be permitted

to provide a person the same access to

paper copies of OCA information as that

person would receive at his or her

LEPC. Members of LEPCs, fire

departments, and SERCs who provide

public access to OCA information in

this manner would not be subject to

criminal liability or penalties under

CSISSFRRA.

As mentioned above, the benefit

assessment revealed that many local

government officials are reluctant to

obtain OCA information from EPA or to

share the substance of that information

with the public, at least in part out of

concern that criminal penalties attach to

unauthorized disclosure of OCA

information. To address this concern,

the proposed rule includes a provision

in the section governing disclosure of

OCA information that makes clear what

CSISSFRRA already allows—that

covered persons, including local

government officials, may share with

the public data reported in the OCA

sections of RMPs, just not the OCA

sections of the forms themselves. In

other words, a covered person may

convey, orally or in writing, the OCA

results for a facility, so long as he or she

does not hand out a copy of, or

otherwise replicate, the OCA sections of

the facility’s RMP form itself or provide

access to EPA’s OCA database. A local

official, for instance, may prepare a

hand-out for a community meeting that

includes OCA data for local (and other)

facilities in a format different than that

used for sections 2 through 5 of RMPs.

We believe that these proposals for

enhanced local access to OCA

information would help to realize the

benefits of public disclosure of OCA

information identified in the benefit

assessment and would help satisfy the

public’s interest in access at the local

level to information about the sources of

chemical accident risks that could affect

them directly. We anticipate that

members of the public seeking OCA

information held by LEPCs and local

fire departments would be more likely

to ask about the other information

available from LEPCs under EPCRA

regarding chemical hazards in the

community. This would enhance the

already-important role of the LEPCs in

local chemical safety and accident

prevention. At the same time, by

limiting local access to paper copies of

OCA information to a relatively small

number of sources (those that are

directly relevant to the community in

question), this proposal addresses the

legitimate security concerns discussed

in the risk assessment.

5. Additional Information on Chemical

Accident Risk

As a supplement to the provisions of

the proposed rule, EPA also would

make available to the public additional

information on chemical accident risk

through an Internet website. The

information would enable citizens to

become better informed about the nature

and consequences of chemical accidents

in general and the different ways

chemical accident risks might be

addressed. Citizens could then use this

information together with any OCA data

obtained about specific facilities to

engage in productive dialogues at the

local, state, and federal levels about

preventing chemical accidents and

minimizing the consequences of any

accidents that do occur.

As described further below, EPA

would provide the following

information about chemical accident

risk at or through the Internet website,

http://www.epa.gov/ceppo. Some

version of much of this information is

already available there. EPA would seek

to supplement that information as

necessary or appropriate to provide the

public with a full understanding of

chemical accident risk and prevention.

RMPs (except for the OCA

information, sections 2 through 5) are

currently available to the public through

RMP*Info, which is available at the

website mentioned above. RMP*Info

allows an individual to learn the names

of facilities that submitted RMPs in a

particular city, town, or county, and

then view the RMPs for those facilities.

RMP*Info is part of EPA’s Envirofacts,

a data warehouse which provides a

single point of access to select

environmental data. Through

Envirofacts, the public can have easy

access to other information about

facilities that have submitted RMPs.

EPA will make available an updated

list of LEPC, SERC, and other emergency

response contacts. From the EPA

website, industry and the public can

access the LEPC/SERC Net, a page

maintained by EPA and the Unison

Institute, which provides a list of LEPC

and SERC contacts searchable by LEPC

locality name, city, or state.

EPA has facilitated research on

accident histories based on the data

provided in RMPs. The Wharton School

at the University of Pennsylvania is

looking at RMP data to compare

accident histories by process, chemical,

and industry sector. The results of the

Wharton School’s analysis will be

posted on EPA’s website when they

become available. In addition, the EPA

website provides links to various

websites with information and

Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Proposed Rules 24843

databases concerning accident histories,

including the National Reporting

Center; the Emergency Response

Notification System (ERNS); the

Accidental Release Information Program

(ARIP) database; the Chemical Safety

Board accident investigations and

database; and several databases of

worldwide incidents.

EPA maintains contact information

and external site links to organizations

from industry, government, and

community groups with experience in

fostering risk communication and

chemical accident risk reduction. Many

of these organizations have published

guidance or primers on risk

communication which can be obtained

through the Internet or through EPA’s

National Service Center for

Environmental Publications. EPA

maintains additional external links to

trade associations and other

organizations that may provide

information to assist facilities with RMP

compliance and safe chemical

management practices. EPA will expand

the number of links to environmental

organizations, industry trade groups,

and academic institutions to provide the

public with a comprehensive means of

finding chemical risk and safety

information.

EPA and other organizations have

developed guidance to assist

community members to work with

facility management and local officials

to better understand and manage the

risks posed by the storage of large

quantities of toxic or flammable

chemicals. EPA has revised the guide,

‘‘Chemicals in Your Community,’’ and

made it available electronically on

EPA’s website. The guide provides a

checklist of suggestions for how

community members can work with

facility management and local officials

to better understand and assess the risks

posed by the storage of large quantities

of toxic or flammable chemicals.

Through a cooperative agreement

with EPA, the National Safety Council

(NSC) has revised ‘‘Chemicals, the Press

& the Public,’’ which is a journalist’s

guide to chemical information which

will be available on the NSC website at

http://www.nsc.org (which is linked to

EPA’s website). Copies are also available

from EPA’s document center at (800)

490–9198.

EPA is developing examples of

facilities and industries that can serve as

models for ‘‘best practices’’ in chemical

accident risk prevention. EPA has

developed RMP Network, which is

designed to share successful practices in

RMP implementation, risk

communication, and use of data.

Projects undertaken by industry, small

businesses, state and local government,

non-profits, citizen groups, and others

will be represented in this series. The

projects detailed in RMP Network are

easily reproducible and low cost, and

promote partnership-building in the

community. Under a cooperative

agreement with EPA, NSC will also post

summaries of industry best practices on

their website.

EPA and other organizations are

developing background information

about the nature of chemical accident

risk, and that information will be posted

on EPA’s website when it becomes

available. EPA’s website also has links

to a web-based Chemical Guide (http:/

/chemicalguide.com). This chemical

guide is a tool to help the public better

understand the chemicals used in their

community. Another link to assist the

public is the NSC website (http://

www.nsc.org/xroads.cfm). This website

is aimed at the news media and

provides suggestions for information to

request of facility management and local

officials, for approaches to sifting

through the information, and for

presenting the information in a way that

helps communities interpret local

RMPs. This website also includes five

guides to chemical risk management

that assist communities in evaluating

chemical risks.

Through a cooperative agreement

between EPA and Clean Air Action (a

non-profit organization), a primer will

be developed for lay persons on basic

risk management terms and principles

that would help to provide a basis for

understanding chemical accident risks.

Taken together, these tools will help

give the public a better understanding of

the general nature of the risks associated

with potential accidental releases posed

by hazardous chemicals. They provide

assistance in understanding the data

that is available and how it can be used

to build a snapshot of chemical use in

a community. They also encourage the

public to contact key groups and

organizations and provide guidance on

how to become directly involved in

decisions at the local level that affect

public health and safety.

B. Access to OCA Information by

Government Officials

Today’s proposed rule also addresses,

in Subpart C, how the Administrator of

EPA would provide access to OCA

information to federal, state, and local

‘‘covered persons’’ when they request

the information for their ‘‘official use.’’

This subpart would essentially codify

the provisions of CSISSFRRA that

appear in CAA section

112(r)(7)(H)(ii)(II)(cc)–(ee).

IV. Request for Comments

We acknowledge the significant

public interest and diversity of views on

the issues addressed in this proposal.

With this in mind, we are seeking your

comments on any and all aspects of this

proposed rule, including our overall

approach to achieving the goals of the

statute, the alternatives we have

considered, and any other alternatives

commenters may wish to suggest. We

are particularly interested in receiving

comments in the following areas and on

the following issues:

Access to Paper Copies of OCA Information

• What types of federal outlets would be

appropriate for providing reading-room

access to paper copies?

• Where should reading rooms be located,

and how should they be dispersed

geographically to provide for optimal public

access to paper copies?

• How should reading rooms be operated

to best minimize the risk associated with the

dissemination of OCA information?

• Is providing access to OCA information

for 10 facilities per month an appropriate

limit on access to paper copies, or would

some other limit (for example, some greater

number such as 20 facilities or some other

lesser number) better meet the statutory test

for overall risk reduction?

• As an alternative to reading room access

to OCA information, should paper copies of

the information be released to the public

upon request, with a limit placed on the

number of facilities for which any individual

could receive OCA information in a given

period? How effectively would this

alternative approach provide information to

those persons who would benefit from it,

what would be the security concerns

associated with it, and what steps could be

taken to address those concerns?

• Are there other ways of providing access

to paper copies of OCA information that

would better minimize the overall risk (i.e.,

both terrorism-and accident-related) of

chemical release?

Internet Access to Selected OCA Information

• Should any additional pieces of OCA

information, such as those that the risk

assessment places in the third risk category,

not be posted on the Internet? Should other

pieces of OCA information be posted on the

Internet that would not be posted under this

proposed rule, such as the information in the

second risk category?

Risk Indicator System

• Is the proposed risk indicator a useful

mechanism for assisting the public in

understanding certain aspects of the risk of

chemical accidents and for creating

incentives that would reduce the risk of

accidental releases?

• Should the risk indicator system specify

how many facilities have vulnerable zones

that extend to a particular address and

include the identities of those facilities in its

response to queries, thereby allowing

members of the public to learn this

information without the need to contact

‘‘covered persons’’?

24844 Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Proposed Rules

• What security concerns would be

associated with the implementation of the

risk indicator system as described in the

proposal and with the alternative suggested

above? In light of those concerns, would

implementation of such a system do more

harm than good to the overall statutory goal

of minimizing both the terrorism-and

accident-related risks of chemical releases?

• The risk indicator system contemplates

that, in response to an inquiry about a

particular address, a person would receive

information telling him or her whether the

address may be in a vulnerable zone and, if

so, whom to contact for additional

information (such as officials at the relevant

LEPC). Would it be useful to provide

alternative ways of learning the identities of

facilities that may affect a particular address?

Federal officials, for example, could provide

the identity of facilities through a telephone

hotline mechanism to assist individuals for

whom obtaining this information at the state

or local level is too inconvenient or difficult.

In the alternative, federal officials could

provide by mail the identities of the facilities

whose vulnerable zones affect the address at

issue, if the request were accompanied by

documentation indicating that the address for

which the additional information is sought is

that of the requestor’s residence, workplace,

or school, or that of a family member. What

security, practicality, burden, or other

concerns, if any, would be associated with

implementation of either the hotline or mail

system as discussed above? Are there other,

better alternatives to substitute for the

suggested method of having members of the

public contact their local LEPC for additional

information?

Enhanced Access to Local OCA Information

• Should LEPCs or local fire departments

be allowed to distribute paper copies of OCA

information to the public that could be taken

away from the local reading site and/or be

permitted to mail that information to

members of the public, thus eliminating the

need to travel to the LEPC’s reading site? Or

would doing so raise unacceptable terrorismrelated security concerns?

• The proposed rule would authorize

LEPCs and local fire departments to provide

read-only public access to OCA information

for facilities in the LEPC’s jurisdiction and

for any other facility which has a vulnerable

zone that extends into the LEPC’s

jurisdiction. For facilities outside an LEPC’s

jurisdiction, would it be easier for an LEPC

to implement this provision if it were

authorized to provide access to OCA

information for any facility within 25 miles

of the LEPC’s boundaries (virtually no

vulnerable zones are greater than 25 miles in

diameter), or would this approach lead to an

inappropriately broad scope of access?

Would some other method be preferable for

implementing local reading-room access?

• The proposed rule would not require

LEPCs, SERCs, and local fire departments to

collect identifying information from

individuals wishing to view copies of local

OCA information. Would it be appropriate to

require individuals viewing local OCA

information at LEPCs, SERCs, and local fire

departments to provide identifying

information before doing so, just as they

would do at a federal reading room under the

proposal? Or would the extra security offered

by this approach be outweighed by the

burden it would impose on these state and

local organizations?

Additional Information on Chemical

Accident Risk

• Are there other types of general

information about chemical risk and

safety that should be made available to

facilitate public understanding and

dialogue about these issues?

V. Judicial Review

Under CAA section 307(b)(1), 42

U.S.C. 7607(b)(1), judicial review of this

rule, once promulgated, would be

available only by filing a petition for

review in the U.S. Court of Appeals for

the District of Columbia Circuit within

60 days of publication of the final rule.

Under CAA section 307(b)(2), 42 U.S.C.

7607(b)(2), the final rule could not be

challenged later in civil or criminal

proceedings brought by the government

to enforce it.

VI. Administrative Requirements

A. Docket

The docket is an organized and

complete file of all the information that

we considered in the development of

this rule. The docket is a dynamic file,

because it allows members of the public

and industries involved readily to

identify and locate documents so that

they can effectively participate in the

rulemaking process. Along with the

proposed and promulgated rules and

their preambles, the contents of the

docket serve as the record for purposes

of judicial review. (See CAA section

307(d)(7)(A), 42 U.S.C. 7607(d)(7)(A).)

The official record for this rulemaking

has been established under Docket No.

A–2000–20 (including comments and

data submitted electronically). A public

version of this record, including

printed, paper versions of electronic

comments, which does not include any

information claimed as Confidential

Business Information, is available for

inspection from 8:00 a.m. to 5:30 p.m.,

Monday through Friday, excluding legal

holidays. The official rulemaking record

is located at the address specified in the

ADDRESSES section at the beginning of

this document.

B. Executive Order 12866

OMB has determined that this

proposed rule would be a ‘‘significant

regulatory action’’ under Executive

Order 12866, section 3(f), ‘‘Regulatory

Planning and Review’’ (58 FR 51735,

October 4, 1993). OMB also has

determined that the proposed rule

would not be economically significant

because it would have an annual effect

on the economy of less than $100

million and would not affect in a

material way the economy, a sector of

the economy, productivity, competition,

jobs, the environment, public health or

safety, or state, local, or tribal

governments or communities. Under the

terms of Executive Order 12866, OMB

has reviewed the proposed rule.

C. Executive Order 12988

This rule meets the applicable

standards set forth in sections 3(a) and

3(b)(2) of Executive Order 12988, ‘‘Civil

Justice Reform’’ (61 FR 4729, February

5, 1996).

D. Executive Order 13045

Executive Order 13045, ‘‘Protection of

Children from Environmental Health

Risks and Safety Risks’’ (62 FR 19885,

April 23, 1997), does not apply to this

rule because it is not economically

significant under Executive Order

12866.

E. Executive Order 13084

Under Executive Order 13084,

‘‘Consultation and Coordination with

Indian Tribal Governments,’’ section 3,

Consultation (63 FR 27655, May 19,

1998), federal agencies may not

promulgate a regulation that is not

required by statute, that significantly or

uniquely affects the communities of

Indian tribal governments, and that

imposes substantial direct compliance

costs on those communities, unless the

federal government provides the funds

necessary to pay the direct compliance

costs incurred by the tribal

governments, or the regulating agencies

consult with those governments before

formal promulgation of the rule. Today’s

proposed rule does not significantly or

uniquely affect the communities of

Indian tribal governments or impose

substantial direct compliance costs on

those communities. Accordingly, the

requirements of section 3(b) of

Executive Order 13084 do not appear to

apply to this rule.

We welcome comments on the effect

of this rule on communities of Indian

tribal governments.

F. Executive Order 13132

Executive Order 13132, ‘‘Federalism’’

(64 FR 43255, August 10, 1999), requires

federal agencies to develop an

accountable process to ensure

‘‘meaningful and timely input by State

and local officials in the development of

regulatory policies that have federalism

implications.’’ ‘‘Policies that have

federalism implications’’ is defined in

the Executive Order to include

regulations that have ‘‘substantial direct

Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Proposed Rules 24845

effects on the States, on the relationship

between the national government and

the States, or on the distribution of

power and responsibilities among the

various levels of government.’’

Under section 6 of Executive Order

13132, a federal agency may not issue a

regulation that has federalism

implications, that imposes substantial

direct compliance costs, and that is not

required by statute, unless the federal

government provides the funds

necessary to pay the direct compliance

costs incurred by state and local

governments, or the agency issuing the

regulation consults with state and local

officials early in the process of

developing the proposed regulation. A

federal agency also may not issue a

regulation that has federalism

implications and that preempts state

law unless the agency consults with

state and local officials early in the

process of developing the proposed

regulation.

CSISSFRRA currently restricts the

dissemination of OCA information by

state and local officials and supersedes

inconsistent provisions of state or local

law. The proposed rule would narrow

those restrictions, allowing certain state

and local entities to provide the public

with read-only access to OCA

information for local facilities. We have

consulted with state and local

representatives of the Accident

Prevention Subcommittee of the CAA

Advisory Committee (under the Federal

Advisory Committee Act (FACA)) about

the implementation of the OCA

provisions of CSISSFRRA. In response

to concerns some have raised about a

potentially chilling effect of

CSISSFRRA’s restrictions on state and

local officials’ willingness to obtain

OCA information and to communicate

the substance of that information to the

public, the proposed rule includes a

provision clarifying that state and local

officials can share OCA data with the

public as long as they do so in a way

that does not disseminate or permit

mechanical replication of the OCA

sections of RMPs or provide access to

EPA’s OCA database. As noted above,

the proposed rule would also authorize

some state and local officials to share

OCA information itself in certain ways.

We welcome comments on whether

this rule has federalism implications

within the meaning of Executive Order

13132. We will continue to consult with

state and local representatives of the

FACA subcommittee, and other

representatives of state and local

governments, as the rulemaking

proceeds.

G. Regulatory Flexibility Act

Under the Regulatory Flexibility Act

(RFA) of 1980 (5 U.S.C. 601, et seq.), as

amended by the Small Business

Regulatory Enforcement Fairness Act of

1996 (SBREFA), agencies are required to

give special consideration to the effect

of federal regulations on small entities

and to consider regulatory options that

might mitigate any such impacts.

However, an agency need not prepare a

regulatory flexibility analysis if the rule

would not have a significant economic

impact on a substantial number of small

entities. Small entities include small

businesses, small not-for-profit

enterprises, and small governmental

jurisdictions.

In accordance with 5 U.S.C. 605(b),

we certify that today’s proposed rule, if

promulgated, would not have a

significant economic impact on a

substantial number of small entities.

Although the rule would authorize

small governmental jurisdictions to

provide read-only access to OCA

information, it does not require those

jurisdictions to provide that access. The

rule contains a prohibition on local

government officials (and other

government officials) disclosing OCA

information to the public except in

authorized ways, but that prohibition

already exists under CAA section

112(r)(7)(H)(v). Moreover, we do not

expect that any burden resulting

indirectly from the provisions of this

rule would have a significant economic

impact on the operations of local

governments.

H. Paperwork Reduction Act

The information collection

requirements in this proposed rule have

been submitted for approval to OMB

under the Paperwork Reduction Act, 44

U.S.C. 3501 et seq. An Information

Collection Request (ICR) document has

been prepared by EPA (ICR No. 1656.08)

and a copy may be obtained from Sandy

Farmer by mail at Collection Strategies

Division, U.S. Environmental Protection

Agency (2822), 1200 Pennsylvania Ave.,

N.W., Washington, DC 20460; by e-mail

at farmer.sandy@epamail.epa.gov; or by

calling (202) 260–2740. A copy may also

be downloaded off the Internet at http:/

/www.epa.gov/icr.

This proposed rule would impose

minimal information collection

requirements, but would require

recordkeeping. The respondent universe

for this rule is state and local officials

and members of the public.

None of the respondent activities for

state and local agencies are mandatory

and all depend on the state or local

agency deciding to obtain OCA

information and/or communicating the

substance of the information or the

information itself to the public. The

respondent activities for these agencies

include reading and understanding the

Security Notice to federal, state, and

local officials and researchers;

requesting the OCA information and

certifying that they are covered persons;

providing secure storage for the CD Rom

or paper copies when not in use;

learning how to use the database and

software, if needed, to produce a copy

of an RMP; providing a location for the

public to review RMPs for local

facilities; ensuring that members of the

public do not remove or copy RMPs

they review; and making OCA data

available in formats other than the RMP

format.

The number of respondents

undertaking one or more of these

activities is estimated to be at least one

agency in each of the 50 states; these

agencies are assumed to be the SERCs

and may be environmental protection

agencies, emergency management

agencies, or both. In addition, it is

assumed that at least one agency in the

3,043 U.S. counties will elect to obtain

OCA information and/or make OCA

information or the substance of that

information available.

The counties are estimated to spend

one hour per week and states are

estimated to spend four hours per week

providing information to the public.

Because the work to be performed is

either retrieving a paper copy from a file

cabinet or downloading a file from the

database, then either returning the copy

to the file or shredding it, it is assumed

that these tasks will be carried out by

clerical and administrative staff. It is

assumed that one county official per

county and one state official per state

would submit a written request for the

OCA information. The total burden

hours for counties and states are

estimated to be 169,670 hrs annually

(509,010 hours for three years) at a cost

of $3,051,170 annually ($9,153,510

million for three years).

For members of the public, the

respondent activity includes showing a

piece of personal identification and

entering their name and the names of

the facilities whose OCA information

they wish to view at a federal reading

room. It is assumed that two people

from each county will visit these

reading rooms annually. The total

burden hours for the public to sign in

at the reading rooms and provide

personal identification are estimated to

be 507 hours annually (1520 hours for

three years) at a cost of $9,890 annually

($29,670 for three years).

24846 Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Proposed Rules

Burden means the total time, effort, or

financial resources expended by persons

to generate, maintain, retain, disclose, or

provide information to or for a federal

agency. This includes the time needed

to review instructions to develop,

acquire, install, and utilize technology

and systems for the purposes of

collecting, validating, verifying,

processing, maintaining, disclosing, and

providing information; to adjust existing

ways to comply with any previously

applicable instructions and

requirements; to train personnel; to

search data sources; to complete and

review the collection of information;

and to transmit or otherwise disclose

the information.

An agency may not conduct or

sponsor, and a person is not required to

respond to, a collection of information

unless the collection displays a

currently valid OMB control number.

The OMB control numbers for EPA’s

regulations are listed in 40 CFR Part 9

and 48 CFR Chapter 15.

Comments are requested on the

federal government’s need for the

information being collected, the

accuracy of the provided burden

estimates, and any suggested methods

for minimizing the respondent burden,

including through the use of automated

collection techniques. Send comments

on the ICR to the Director, Collection

Strategies Division, U.S. Environmental

Protection Agency (2822), 1200

Pennsylvania Ave., N.W., Washington,

DC 20460; and to the Office of

Information and Regulatory Affairs,

Office of Management and Budget, 725

17th St., N.W., Washington, DC 20503,

marked ‘‘Attention: Desk Officer for

EPA.’’ Include the ICR number in any

correspondence. Because OMB is

required to make a decision concerning

the ICR between 30 and 60 days after

April 27, 2000 a comment to OMB is

best assured of having its full effect if

OMB receives it by May 30, 2000. The

final rule will respond to any OMB or

public comments on the information

collection requirements contained in

this proposal.

I. Unfunded Mandates Reform Act of

1995

Today’s proposed rule will not result

in the expenditure by state, local, and

tribal governments, in the aggregate, or

by the private sector, of $100 million or

more in any one year, and it contains no

requirements that might significantly or

uniquely affect small governments.

Under the proposal, small governments

that wish to obtain OCA information

would be required to request it, and

once they obtained it, would be

prohibited from disseminating it except

in accordance with the rule. We do not

expect that these provisions would

impose a significant burden. Moreover,

certain members of small governments

would be authorized, but not required,

to provide public access to OCA

information in a manner that is less

burdensome than would be required of

federal covered persons. Therefore, no

actions were deemed necessary under

the Unfunded Mandates Reform Act of

1995.

J. Small Business Regulatory

Enforcement Fairness Act of 1996

This proposed rule is not a major rule

as defined by section 251 of the Small

Business Regulatory Enforcement

Fairness Act of 1996, 5 U.S.C. 804. This

rule will not result in an annual effect

on the economy of $100 million or

more; a major increase in costs or prices;

or significant adverse effects on

competition, employment, investment,

productivity, innovation, or on the

ability of United States-based

companies to compete with foreignbased companies in domestic and

export markets.

List of Subjects in 40 CFR Part 1400

Environmental protection, Chemicals,

Chemical accident prevention.

Dated: April 19, 2000.

Carol M. Browner,

Administrator.

Dated: April 19, 2000.

Janet Reno

Attorney General.

For the reasons set forth in the

preamble, EPA and DOJ propose to

establish chapter IV of title 40 of the

Code of Federal Regulations, consisting

of subchapter A, part 1400, as follows:

CHAPTER IV—ENVIRONMENTAL

PROTECTION AGENCY AND DEPARTMENT

OF JUSTICE

SUBCHAPTER A—ACCIDENTAL

RELEASE PREVENTION REQUIREMENTS;

RISK MANAGEMENT PROGRAMS UNDER

THE CLEAN AIR ACT SECTION 112(R)(7);

DISTRIBUTION OF OFF-SITE

CONSEQUENCE ANALYSIS INFORMATION

PART 1400—DISTRIBUTION OF OFFSITE CONSEQUENCE ANALYSIS

INFORMATION

Subpart A—General

Sec.

1400.1X Purpose.

1400.2 Definitions.

Subpart B—Public Access

1400.3 Public access to paper copies of

off-site consequence analysis

information.

1400.4 Risk indicator system.

1400.5 Internet access to certain off-site

consequence analysis data elements.

1400.6 Enhanced local access.

Subpart C—Access to Off-Site

Consequence Analysis Information by

Government Officials

1400.7 In general.

1400.8 Access to off-site consequence

analysis information by federal

government officials.

1400.9 Access to off-site consequence

analysis information by state and local

government officials.

Subpart D—Other Provisions

1400.10 Limitation on public

dissemination.

1400.11 Limitation on dissemination to

state and local government officials.

1400.12 Qualified researchers.

Authority: Public Law No. 106–40, 113

Stat 207 (42 U.S.C. 7412(r)).

Subpart A—General

§ 1400.1 Purpose.

Stationary sources subject to the

chemical accident prevention

provisions of 40 CFR part 68 are

required to analyze the potential harm

to public health and welfare of

hypothetical chemical accidents and

submit the results of their analyses to

the U.S. Environmental Protection

Agency as part of risk management

plans. This part governs access by the

public and by government officials to

the portions of risk management plans

containing the results of those analyses

and certain related materials.

§ 1400.2 Definitions.

For the purposes of this part:

(a) Accidental release means an

unanticipated emission of a regulated

substance or other extremely hazardous

substance into the ambient air from a

stationary source.

(b) Administrator means the

Administrator of the U.S.

Environmental Protection Agency or her

designated representative.

(c) Attorney General means the

Attorney General of the United States or

her designated representative.

(d) Federal government official

means—

(1) An officer or employee of the

United States; and

(2) An officer or employee of an agent

or contractor of the federal government.

(e) State or local government official

means—

(1) An officer or employee of a state

or local government;

(2) An officer or employee of an agent

or contractor of a State or local

government;

Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Proposed Rules 24847

(3) An individual affiliated with an

entity that has been given, by a state or

local government, responsibility for

preventing, planning for, or responding

to accidental releases, such as a member

of a Local Emergency Planning

Committee (LEPC) or a State Emergency

Response Commission (SERC), or a paid

or volunteer member of a fire or police

department; or

(4) An officer or employee or an agent

or contractor of an entity described in

paragraph (e)(3) of this section.

(f) LEPC means a Local Emergency

Planning Committee created under the

Emergency Planning and Community

Right-to-Know Act, 42 U.S.C. 11001 et

seq.

(g) Member of the public or person

means an individual located in the

United States.

(h) Official use means an action of a

federal, state, or local government

agency or an entity described in

paragraph (e)(3) of this section intended

to carry out a function relevant to

preventing, planning for, or responding

to accidental releases.

(i) Off-site consequence analysis

(OCA) information means sections 2

through 5 of a risk management plan

(consisting of an evaluation of 1 or more

worst-case release scenarios or

alternative release scenarios) and any

electronic database created by the

Administrator from those sections.

(j) Off-site consequence analysis

(OCA) data elements means the results

of the off-site consequence analysis

conducted by a stationary source

pursuant to 40 CFR part 68, subpart B,

when presented in a format different

than sections 2 through 5 of a risk

management plan or any Administratorcreated electronic database.

(k) Off-site consequence analysis

(OCA) rankings means any statewide or

national ranking of identified stationary

sources derived from OCA information.

(l) Risk management plan (RMP)

means a risk management plan

submitted to the Administrator by an

owner or operator of a stationary source

pursuant to 40 CFR part 68, subpart G.

(m) SERC means a State Emergency

Response Commission created under the

Emergency Planning and Community

Right-to-Know Act, 42 U.S.C. 11001 et

seq.

(n) State has the same meaning as

provided in 42 U.S.C. 7602(d) (a state,

the District of Columbia, the

Commonwealth of Puerto Rico, the

Virgin Islands, Guam, American Samoa,

and the Commonwealth of the Northern

Mariana Islands).

(o) Stationary source has the same

meaning as provided in 40 CFR part 68

subpart A, § 68.3.

(p) Vulnerable zone means the

geographical area that could be affected

by a worst-case or alternative scenario

release from a stationary source, as

indicated by the off-site consequence

analysis reported by the stationary

source in its risk management plan. It is

defined as a circle, the center of which

is the stationary source and the radius

of which is the ‘‘distance-to-endpoint,’’

or the distance a toxic or flammable

cloud, overpressure, or radiant heat

would travel after being released and

before dissipating to the point that it no

longer threatens serious short-term harm

to people or the environment.

Subpart B—Public Access

§ 1400.3 Public access to paper copies of

off-site consequence analysis information.

(a) General. The Administrator and

the Attorney General shall ensure that

any member of the public has access to

paper copies of OCA information for a

limited number of stationary sources

located anywhere in the United States,

without any geographical restriction, in

the manner prescribed by this section.

(b) Reading-room access. Paper copies

of OCA information shall be available in

at least 50 reading rooms geographically

distributed across the United States. The

reading rooms shall allow any person to

read, but not to remove or mechanically

reproduce, paper copies of OCA

information, in accordance with

paragraphs (c) and (d) of this section.

(c) Limited number. A reading room

established under this section shall

provide any person with access to a

paper copy of the OCA information for

up to 10 stationary sources per calendar

month.

(d) Personal identification. A reading

room established under this section

shall provide a person with access to a

paper copy of OCA information only

after a reading room representative has

viewed the person’s driver’s license or

another piece of identification issued by

a federal, state, or local government

agency.

§ 1400.4 Risk indicator system.

(a) In general. The Administrator shall

provide access to a computer-based

indicator that shall inform any person

whether an address specified by that

person might be within the vulnerable

zone of one or more stationary sources,

according to the data reported in RMPs.

The indicator also shall provide

information about how to contact the

appropriate LEPC or SERC, or EPA, to

obtain further information.

(b) Methods of access. The indicator

shall be available on the Internet or by

request made by telephone or by mail to

the Administrator to operate the

indicator for an address specified by the

requestor. SERCs, LEPCs, and fire

departments are authorized and

encouraged to operate the indicator as

well.

§ 1400.5 Internet access to certain off-site

consequence analysis data elements.

The Administrator shall include only

the following OCA data elements in the

risk management plan database

available on the Internet:

(a) The concentration of the chemical

(RMP Sections 2.1.b; 3.1.b);

(b) The physical state of the chemical

(RMP Sections 2.2; 3.2);

(c) The statistical model used (RMP

Sections 2.3; 3.3; 4.2; 5.2);

(d) Endpoint used for flammables in

the worst-case scenario (RMP Section

4.5);

(e) The duration of the chemical

release for the worst-case scenario (RMP

Section 2.7);

(f) Wind speed during the chemical

release (RMP Sections 2.8; 3.8);

(g) The atmospheric stability (RMP

Sections 2.9; 3.9);

(h) The topography of the surrounding

area (RMP Sections 2.10; 3.10);

(i) The passive mitigation systems

considered (RMP Sections 2.15; 3.15;

4.10; 5.10); and

(j) The active mitigation systems

considered (RMP Sections 3.16; 5.11).

§ 1400.6 Enhanced local access.

(a) OCA data elements—Consistent

with 42 U.S.C. 7412(r)(7)(H)(xii)(II),

members of LEPCs, SERCs, and fire

departments and any other government

official may convey to the public OCA

data elements orally or in writing, as

long as the data elements are not

conveyed in a format that replicates

sections 2 through 5 of a risk

management plan or any electronic

database developed by the

Administrator from those sections.

Disseminating OCA data elements to the

public in a manner consistent with this

provision does not violate 42 U.S.C.

7412(r)(7)(H)(v) and is not punishable

under federal law.

(b) OCA information—

(1) Members of LEPCs or fire

departments organized by local

government are authorized and

encouraged to allow any member of the

public to read, but not to remove or

mechanically copy, paper copies of

OCA information (i.e., sections 2

through 5 of risk management plans) for

stationary sources located within the

jurisdiction of the LEPC and for any

other stationary sources that have a

vulnerable zone that extends into that

jurisdiction.

24848 Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Proposed Rules

(2) Members of LEPCs and fire

departments are not required to limit

the number of stationary sources for

which a person can read OCA

information or to view a person’s

personal identification before allowing

the person to read OCA information.

(3) Members of SERCs are authorized

and encouraged to allow any person to

read, but not to remove or mechanically

copy, paper copies of OCA information

for the same stationary sources that the

LEPC in whose jurisdiction the person

lives or works would be authorized to

make available to that person.

(4) Any member of an LEPC, SERC, or

fire department who allows a person to

read OCA information in a manner

consistent with this subsection shall not

be in violation of 42 U.S.C.

7412(r)(7)(H)(v) or any other provision

of federal law.

Subpart C—Access to off-site

consequence analysis information by

government officials.

§ 1400. 7 In general.

The Administrator shall provide OCA

information to government officials as

provided in this section. Any OCA

information provided to government

officials shall be accompanied by a copy

of the notice prescribed by 42 U.S.C.

7412(r)(7)(H)(vi).

§ 1400.8 Access to off-site consequence

analysis information by federal government

officials.

The Administrator shall provide any

federal government official with the

OCA information requested by the

official for his or her official use. The

Administrator shall provide the OCA

information to the official in electronic

form, unless the official specifically

requests the information in paper form.

The Administrator may charge a fee to

cover the cost of copying OCA

information in paper form.

§ 1400.9 Access to off-site consequence

analysis information by state and local

government officials.

(a) The Administrator shall make

available to any state or local

government official for his or her official

use the OCA information for stationary

sources located in the official’s state.

(b) The Administrator also shall make

available to any state or local

government official for his or her official

use the OCA information for stationary

sources not located in the official’s state,

at the request of the official.

(c) The Administrator shall provide

OCA information to a state or local

government official in electronic form,

unless the official specifically requests

the information in paper form. The

Administrator may charge a fee to cover

the cost of copying OCA information in

paper form.

(d) Any state or local government

official is authorized to provide, for

official use, OCA information relating to

stationary sources located in the

official’s state to a state or local

government official in a contiguous

state.

Subpart D—Other Provisions

§ 1400.10 Limitation on public

dissemination.

Except as authorized by this part and

by 42 U.S.C. 7412(r)(7)(H)(v)(III),

federal, state, and local government

officials, and qualified researchers

under 42 U.S.C. 7412(r)(7)(H)(vii), are

prohibited from disseminating OCA

information and OCA rankings to the

public. Violation of this provision

subjects the violator to criminal liability

as provided in 42 U.S.C. 7412(r)(7)(H)(v)

and civil liability as provided in 42

U.S.C. 7413.

§ 1400.11 Limitation on dissemination to

state and local government officials.

Except as authorized by this part and

by 42 U.S.C. 7412(r)(7)(H)(v)(III),

federal, state, and local government

officials, and qualified researchers

under 42 U.S.C. 7412(r)(7)(H)(vii), are

prohibited from disseminating OCA

information to state and local

government officials. Violation of this

provision subjects the violator to civil

liability as provided in 42 U.S.C. 7413.

§ 1400.12 Qualified researchers.

The Administrator is authorized to

provide OCA information, including

facility identification, to qualified

researchers pursuant to a system

developed and implemented under 42

U.S.C. 7412(r)(7)(H)(vii), in consultation

with the Attorney General.

[FR Doc. 00–10641 Filed 4–25–00; 1:03 pm]

BILLING CODE 6560–50–P