964 Federal Register / Vol. 64, No. 3 /Wednesday, January 6, 1999 /Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 68

[FRL–6214–9]

RIN 2050–AE46

Accidental Release Prevention

Requirements; Risk Management

Programs Under Clean Air Act Section

112(r)(7); Amendments

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: This action modifies the

chemical accident prevention rule

codified in 40 CFR Part 68. The

chemical accident prevention rule

requires owners and operators of

stationary sources subject to the rule to

submit a risk management plan (RMP)

by June 21, 1999, to a central location

specified by EPA. In this action, EPA is

amending the rule to: add four

mandatory and five optional RMP data

elements, establish specific procedures

for protecting confidential business

information when submitting RMPs,

adopt the government’s use of a new

industry classification system, and make

technical corrections and clarifications

to Part 68. However, as stated in the

proposed rule for these amendments,

this action does not address issues

concerning public access to offsite

consequence analysis data in the RMP.

DATES: The rule is effective February 5,

1999.

ADDRESSES: Supporting material used in

developing the proposed rule and final

rule is contained in Docket A–98–08.

The docket is available for public

inspection and copying between 8:00

a.m. and 5:30 p.m., Monday through

Friday (except government holidays) at

Room 1500, 401 M Street SW,

Washington, DC 20460. A reasonable fee

may be charged for copying.

FOR FURTHER INFORMATION CONTACT: Sicy

Jacob or John Ferris, Chemical

Emergency Preparedness and

Prevention Office, Environmental

Protection Agency (5104), 401 M Street

SW, Washington, DC 20460, (202) 260–

7249 or (202) 260–4043, respectively; or

the Emergency Planning and

Community Right-to-Know Hotline at

800–424–9346 (in the Washington, DC

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

may wish to visit the Chemical

Emergency Preparedness and

Prevention Office (CEPPO) Internet site,

at www.epa.gov/ceppo.

SUPPLEMENTARY INFORMATION:

Regulated Entities

Entities potentially regulated by this

action are those stationary sources that

have more than a threshold quantity of

a regulated substance in a process.

Regulated categories and entities

include:

Category Examples of regulated entities

Chemical Manufacturers ..................................... Basic chemical manufacturing, petrochemicals, resins, agricultural chemicals, pharmaceuticals,

paints, cleaning compounds.

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

Other Manufacturing ........................................... Paper, electronics, semiconductors, fabricated metals, industrial machinery, food processors.

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

Public Sources .................................................... Drinking water and waste water treatment systems.

Utilities ................................................................. Electric utilities.

Other ................................................................... Propane retailers and users, cold storage, warehousing, and wholesalers.

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

This table is not meant to be

exhaustive, but rather provides a guide

for readers to indicate those entities

likely to be regulated by this action. The

table lists entities EPA is aware of that

could potentially be regulated by this

action. Other entities not listed in the

table could also be regulated. To

determine whether a stationary source is

regulated by this action, carefully

examine the provisions associated with

the list of substances and thresholds

under § 68.130 and the applicability

criteria under § 68.10. If you have

questions regarding applicability of this

action to a particular entity, consult the

hotline or persons listed in the

preceding FOR FURTHER INFORMATION

CONTACT section.

Table of Contents

I. Introduction and Background

A. Statutory Authority

B. Background

II. Summary of the Final Rule

III. Discussion of Issues

A. NAICS Codes

B. RMP Data Elements

C. Prevention Program Reporting

D. Confidential Business Information

E. Other Issues

F. Technical Corrections

IV. Section-by-Section Discussion of the

Final Rule

V. Judicial Review

VI. Administrative Requirements

A. Docket

B. Executive Order 12866

C. Executive Order 12875

D. Executive Order 13045

E. Executive Order 13084

F. Regulatory Flexibility

G. Paperwork Reduction

H. Unfunded Mandates Reform Act

I. National Technology Transfer and

Advancement Act

J. Congressional Review Act

I. Introduction and Background

A. Statutory Authority

These amendments are being

promulgated under sections 112(r) and

301(a)(1) of the Clean Air Act (CAA) as

amended (42 U.S.C. 7412(r), 7601(a)(1)).

B. Background

The 1990 CAA Amendments added

section 112(r) to provide for the

prevention and mitigation of accidental

chemical releases. Section 112(r)

mandates that EPA promulgate a list of

‘‘regulated substances,’’ with threshold

quantities. Processes at stationary

sources that contain a threshold

quantity of a regulated substance are

subject to accidental release prevention

regulations promulgated under CAA

section 112(r)(7). EPA promulgated the

list of regulated substances on January

31, 1994 (59 FR 4478) (the ‘‘List Rule’’)

and the accidental release prevention

regulations creating the risk

management program requirements on

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

Rule’’). Together, these two rules are

codified as 40 CFR Part 68. EPA

amended the List Rule on August 25,

1997 (62 FR 45132), to change the listed

concentration of hydrochloric acid. On

January 6, 1998 ( 63 FR 640), EPA

amended the List Rule to delist Division

1.1 explosives (classified by DOT), to

clarify certain provisions related to

regulated flammable substances and to

clarify the transportation exemption.

Part 68 requires that sources with

more than a threshold quantity of a

regulated substance in a process

develop and implement a risk

management program that includes a

five-year accident history, offsite

consequence analyses, a prevention
Federal Register / Vol. 64, No. 3 /Wednesday, January 6, 1999 /Rules and Regulations 965

program, and an emergency response

program. In Part 68, processes are

divided into three categories (Programs

1 through 3). Processes that have no

potential impact on the public in the

case of accidental releases have minimal

requirements (Program 1). Processes in

Programs 2 and 3 have additional

requirements based on the potential for

offsite consequences associated with the

worst-case accidental release and their

accident history. Program 3 is also

triggered if the processes are subject to

OSHA’s Process Safety Management

(PSM) Standard. By June 21, 1999,

sources must submit to a location

designated by EPA, a risk management

plan (RMP) that summarizes their

implementation of the risk management

program.

When EPA promulgated the risk

management program regulations, it

stated that it intended to work toward

electronic submission of RMPs. The

Accident Prevention Subcommittee of

the CAA Advisory Committee convened

an Electronic Submission Workgroup to

examine technical and practical issues

associated with creating a national

electronic repository for RMPs. Based

on workgroup recommendations, EPA is

in the process of developing two

systems, a user-friendly PC-based

submission system (RMP*Submit) and a

database of RMPs (RMP*Info).

The Electronic Submission

Workgroup also recommended that EPA

add some mandatory and optional data

elements to the RMP and asked EPA to

clarify how confidential business

information (CBI) submitted in the RMP

would be handled. Based on these

recommendations and requests for

clarifications, EPA proposed

amendments to Part 68 on April 17,

1998 (63 FR 19216). These amendments

proposed to replace the use of Standard

Industrial Classification (SIC) codes

with the North American Industry

Classification System (NAICS) codes,

add four mandatory data elements to the

RMP, add five optional data elements to

the RMP, establish specific

requirements for submission of

information claimed CBI, and make

technical corrections and clarifications

to the rule. EPA received 47 written

comments on the proposed rule.

Today’s rule reflects EPA’s

consideration of all comments; major

issues raised by commenters and EPA’s

responses are discussed in Section III of

this preamble. A summary of all

comments submitted and EPA’s

responses can be found in a document

entitled, Accidental Release Prevention

Requirements; Risk Management

Programs Under Clean Air Act Section

112(r)(7); Amendments: Summary and

Response to Comments, in the Docket

(see ADDRESSES).

II. Summary of the Final Rule

NAICS Codes

On January 1, 1997, the U.S.

Government, in cooperation with the

governments of Canada and Mexico,

adopted a new industry classification

system, the North American Industry

Classification System (NAICS), to

replace the Standard Industrial

Classification (SIC) codes (April 9, 1997,

62 FR 17288). The applicability of some

Part 68 requirements (i.e., Program 3

prevention requirements) is determined,

in part, by SIC codes, and Part 68 also

requires the reporting of SIC codes in

the RMP. Therefore, EPA is revising Part

68 to replace all references to ‘‘SIC

code’’ with ‘‘NAICS code.’’ In addition,

EPA is replacing, as proposed, the nine

SIC codes subject to Program 3

prevention program requirements with

ten NAICS codes, as follows:

NAICS Sector

32211 Pulp mills

32411 Petroleum refineries

32511 Petrochemical manufacturing

325181 Alkalies and chlorine

325188 All other inorganic chemical

manufacturing

325192 Other cyclic crude and intermediate

manufacturing

325199 All other basic organic chemical

manufacturing

325211 Plastics and resins

325311 Nitrogen fertilizer

32532 Pesticide and other agricultural

chemicals

NAICS codes are either five or six digits,

depending on the degree to which the

sector is subdivided.

RMP Data Elements

As proposed, EPA is adding four new

data elements to the RMP: latitude/

longitude method and description, CAA

Title V permit number, percentage

weight of a toxic substance in a liquid

mixture, and NAICS code for each

process that had an accidental release

reported in the five-year accident

history. EPA is also adding five optional

data elements: local emergency

planning committee (LEPC) name,

source or parent company e-mail

address, source homepage address,

phone number at the source for public

inquiries, and status under OSHA’s

Voluntary Protection Program (VPP).

Prevention Program Reporting

EPA is not revising Sections 68.170

and 68.175 as proposed. Prevention

program reporting, therefore, will not be

changed to require a prevention

program for each portion of a process for

which a Process Hazard Analysis (PHA)

or hazard review was conducted.

Instead, EPA plans to create functions

within RMP*Submit to provide

stationary sources with a flexible way of

explaining the scope and content of

each prevention program they

implement at their facility.

Confidential Business Information

EPA is clarifying how confidential

business information (CBI) submitted in

the RMP will be handled. EPA has

determined that the information

required by certain RMP data elements

does not meet the criteria for CBI and

therefore may not be claimed as such.

The Agency is also requiring submission

of substantiation at the time a CBI claim

is filed.

Finally, EPA is promulgating several

of the technical corrections and

clarifications, as proposed in the

Federal Register, April 17, 1998 (63 FR

19216).

III. Discussion of Issues

EPA received 47 comments on the

proposed rule. The commenters

included chemical manufacturers,

petroleum refineries, environmental

groups, trade associations, a state

agency, and members of the public. The

major issues raised by commenters are

addressed briefly below. The Agency’s

complete response to comments

received on this rulemaking is available

in the docket (see ADDRESSES). The

document is titled Accidental Release

Prevention Requirements; Risk

Management Programs Under Clean Air

Act Section 112(r)(7); Amendments:

Summary and Response to Comments.

A. NAICS Codes

Two commenters asked that sources

be given the option to use either SIC

codes or NAICS codes, or both, in their

initial RMP because the NAICS system

is new and may not be familiar to

sources. EPA disagrees with this

suggestion. EPA intends to provide

several outreach mechanisms to assist

sources in identifying their new NAICS

code. RMP*Submit will provide a ‘‘pick

list’’ that will make it easier for sources

to find the appropriate code. Also,

selected NAICS codes are included in

the General Guidance for Risk

Management Programs (July 1998) and

in the industry-specific guidance

documents that EPA is developing. EPA

will also utilize the Emergency Planning

and Community Right-to-Know Hotline

at 800–424–9346 (or 703–412–9810) and

its web site at www.epa.gov/ceppo/, to

assist sources in determining the

source’s NAICS codes. EPA also notes

that the Internal Revenue Service is

planning to require businesses to
966 Federal Register / Vol. 64, No. 3 /Wednesday, January 6, 1999 /Rules and Regulations

provide NAICS-based activity codes on

their 1998 tax returns, so many sources

will have become familiar with their

NAICS codes by the June 1999 RMP

deadline.

EPA believes it is necessary and

appropriate to change from SIC codes to

NAICS codes at this time. EPA

recognizes that NAICS codes were

developed for statistical purposes by the

Office of Management and Budget

(OMB). In the notice of April 9, 1997 (62

FR 17288) OMB stated that the ‘‘[u]se of

NAICS for nonstatistical purposes (e.g.,

administrative, regulatory, or taxation)

will be determined by the agency or

agencies that have chosen to use the SIC

for nonstatistical purposes.’’ EPA has

determined that NAICS is appropriate in

this rule for several reasons. First, the

reason the SIC codes were replaced by

NAICS codes is because the SIC codes

no longer accurately represent today’s

industries. The SIC codes will become

more obsolete over time because OMB

will no longer be supporting the SIC

codes; therefore, no new or modified

SIC codes will be developed to reflect

future changes in industries. Second, as

the SIC codes become obsolete, most

users of SIC codes will likely change to

NAICS codes over time, so future data

sharing and consistency will be

enhanced by use of NAICS codes in the

RMP program. Third, through this

rulemaking process, EPA has analyzed

specific conversions of SIC codes to

NAICS codes for the RMP program and

was able to identify NAICS codes that

were applicable to fulfilling the

purposes of this rule. Finally, because

the RMP reporting requirement is new,

it is reasonable to begin the program

with NAICS codes now rather than

converting to them later.

Three commenters expressed support

for the ten NAICS codes that EPA

proposed to use in place of the nine SIC

codes referenced in section 68.10(d)(1)

of Part 68 and one commenter partially

objected. Section 68.10(d)(1) provides

that processes in the referenced codes

are subject to Program 3 requirements (if

not eligible for Program 1). One

commenter objected to EPA’s proposal

to replace the SIC code for pulp and

paper mills with only the NAICS code

for pulp mills that do not also produce

paper or paperboard. The commenter

asked EPA to reexamine the accident

history of paper and paperboard mills.

As discussed in the preamble of the

proposed rule, EPA reviewed the

accident history data prior to proposing

the new NAICS codes. Neither facilities

that classify themselves as paper mills

(NAICS Code 322121) nor paperboard

mills (NAICS code 32213) met the

accident history criteria that EPA used

to select industrial sectors for Program

3.

EPA notes that a pulp process at a

paper or a paperboard mill may still be

subject to Program 3 as long as the

process contains more than a threshold

quantity of a regulated substance and is

not eligible for Program 1. Section

68.10(d)(1) uses industrial codes to

classify processes, not facilities as a

whole. Since section 68.10(d)(1) will

continue to list the code for pulp mills,

pulpmaking processes will continue to

be subject to Program 3. In addition,

under section 68.10(d)(2), paper

processes will be in Program 3 (unless

eligible for Program 1) if they are subject

to OSHA’s Process Safety Management

(PSM) standard. Most pulp and paper

processes are, in fact, subject to this

standard.

One commenter objected to assigning

NAICS codes to a process rather than

the source as a whole. EPA first notes

that the requirement to assign a SIC

code to a process was adopted in the

original RMP rulemaking two years ago.

Today’s rule does not change that

requirement except to substitute NAICS

for SIC codes. In any event, EPA is

today modifying Part 68 to clarify that

sources provide the NAICS code that

‘‘most closely corresponds to the

process.’’ EPA believes that assigning an

industry code to a process will help

implementing agencies and the public

understand what the covered process

does; using the code makes it possible

to provide this information without

requiring a detailed explanation from

the source. In addition, the primary

NAICS code for a source as a whole may

not reflect the activity of the covered

process.

B. RMP Data Elements

EPA proposed to add, as optional

RMP data elements: local emergency

planning committee (LEPC), source (or

parent company) E-mail address, source

homepage address, phone number at the

source for public inquiries, and OSHA

Voluntary Protection Program (VPP)

status. EPA also proposed to add, as

mandatory data elements: method and

description of latitude/longitude, Title

V permit number, percent weight of a

toxic substance in a liquid mixture, and

NAICS code (only in the five-year

accident history section).

Commenters generally supported the

new optional data elements. One

commenter requested that the optional

elements be made mandatory. EPA

disagrees with this comment. While the

elements are useful, many sources

covered by this rule will not have e-mail

addresses or home pages. The RMP will

provide both addresses and phone

numbers so that the public will have

methods to reach the source. EPA has

learned that in some areas there are no

functioning LEPCs, therefore, at this

time, EPA will not add this as a

mandatory data element. However, in

most cases, the LEPC for an area can be

determined by contacting the local

government or the State Emergency

Response Commission (SERC) for which

the area is located. Therefore, reporting

these data elements will remain

optional at this time.

One commenter supported adding the

listing of local emergency planning

committee in the RMP data elements as

an optional data element. The

commenter stated that, although it is an

optional data element, this listing will

enhance the ability of local responders

and emergency planners to adequately

prepare and train for emergency events.

Of the data elements that were

proposed to be mandatory, one

commenter objected to the addition of

latitude/longitude method and

description. The commenter stated that

it was not clear in the proposal why the

method and description information is

needed. EPA is seeking latitude/

longitude method and description in

accordance with its Locational Data

Policy. Several EPA regulations require

sources to provide their latitude and

longitude, so that EPA can more readily

locate facilities and communicate data

between Agency offices. Sharing of data

between EPA offices reduces

duplication of information. Latitude/

longitude method and description

provides information needed by EPA

offices, and other users of the data, to

rectify discrepancies that may appear in

the latitude and longitude information

provided by the source under various

EPA requirements. Documentation of

the method by which the latitude and

longitude are determined and a

description of the location point

referenced by the latitude and longitude

(e.g., administration building) will

permit data users to evaluate the

accuracy of those coordinates, thus

addressing EPA data sharing and

integration objectives.

EPA believes this information will

also facilitate EPA-State coordination of

environmental programs, including the

chemical accident prevention rule. The

State/EPA Data Management Program is

a successful multi-year initiative linking

State environmental regulatory agencies

and EPA in cooperative action. The

Program’s goals include improvements

in data quality and data integration

based on location identification.

Therefore, as proposed, the latitude/

longitude method and description will

be added to the existing RMP data
Federal Register / Vol. 64, No. 3 /Wednesday, January 6, 1999 /Rules and Regulations 967

elements. RMP*Submit will provide a

list of methods and descriptions from

which sources may choose.

EPA also proposed to require that

sources report the percentage weight

(weight percent) of a toxic substance in

a mixture in the offsite consequence

analysis (OCA) and the accident history

sections of the RMP. This information is

necessary for users of RMP data to

understand how worst case and

alternative release scenarios have been

modeled. EPA has decided to require

reporting of the weight percent of toxic

substance in a liquid mixture because

this information is necessary to

understand the volatilization rate,

which determines the downwind

dispersion distance of the substance.

The volatilization rate is affected by the

vapor pressure of the substance in the

mixture. For example, a spill of 70

percent hydrofluoric acid (HF) will

volatilize more quickly than a spill of

the same quantity of HF in a 50 percent

solution; consequently, over a 10-

minute period, the 70 percent solution

will travel further. Reviewers of the

RMP data, including local emergency

planning committees, need to know the

weight percent to be able to evaluate the

results reported in the offsite

consequence analysis and the impacts

reported in the accident history.

Without knowing the weight percent of

the substance in the mixture, users of

the data may compare scenarios or

incidents that appear to involve the

same chemical in the same physical

state, but in fact involve the same

chemical held in a different physical

state.

One commenter stated that for gas

mixtures, percentage by volume (or

volume percent) should be required to

be reported rather than weight percent.

In this final rule, EPA does not require

reporting of the weight percent (or

volume percent) of a regulated

substance in a gas mixture. If a source

handles regulated substances in a

gaseous mixture (e.g., chlorine with

hydrogen chloride), the quantity of a

particular regulated substance in the

mixture is what is reported in the RMP,

since that is what would be released

into the air. Its percentage weight in the

mixture is irrelevant.

Another commenter objected to this

data element, claiming that it could

result in reverse engineering and create

a competitive disadvantage. EPA does

not believe that this requirement would

create a competitive disadvantage, since

similar information is available to the

public under Emergency Planning and

Community Right-to-Know Act (EPCRA)

of 1986. Even so, if it were to have such

an effect, sources can claim this element

as CBI if it can meet the criteria for CBI

claims in 40 CFR Part 2. Another

commenter stated that the public would

be concerned if the percentages did not

add to 100, in the event that the source

handles both regulated and nonregulated substances. EPA believes that

because a source must model only one

substance in a release scenario, the

source need not report the percentages

of the other substances in the mixture.

Therefore, it is expected that the weight

percent for mixtures would not always

add up to 100, because the mixture

could contain non-regulated substances.

A third commenter suggested that

requiring sources to report percentage

weight of a toxic substance in a liquid

mixture would create confusion with

the reporting of mixtures containing

flammable regulated substances.

In the January 6, 1998 rule (63 FR

640), EPA clarified that flammable

regulated substances in mixtures are

only covered by the RMP rule if the

entire mixture meets the National Fire

Protection Association (NFPA) criteria

of 4, thus the entire mixture becomes

the regulated substance. As a result, the

percentage of flammables in a mixture is

not relevant under the rule and the

requirement to report the percentage

weight will only apply to toxic

substances in a liquid mixture.

Finally, in the Federal Register notice

of June 20, 1996 (61 FR 31688), EPA

clarified the relationship between the

risk management program and the air

permit program under Title V of the

CAA for sources subject to both

requirements. Under section

502(b)(5)(A), permitting authorities

must have the authority to assure

compliance by all covered sources with

each applicable CAA standard,

regulation or requirement, including the

regulations implementing section

112(r)(7). Requiring sources covered by

Title V and section 112(r) to provide

their Title V permit number will help

Title V permitting authorities assure

that each source is complying with the

RMP rule.

In summary, with the exception of

adding the phrase ‘‘that most closely

corresponds to the process’’ in sections

68.42(b)(4), 68.160(b)(7), 68.170(b), and

68.175(b), EPA has decided to finalize

the optional and mandatory data

elements as they were proposed.

C. Prevention Program Reporting

The final RMP rule, issued June 20,

1996 (61 FR 31668), requires sources to

report their prevention program for each

‘‘process.’’ Because the applicable

definition of ‘‘process’’ is broad,

multiple production and storage units

might be a single, complex ‘‘process.’’

However, the Agency realizes that some

elements of a source’s prevention

program for a process may not be

applicable to every portion of the

process. In such a situation, reporting

prevention program information for the

process as a whole could be misleading

without an explanation of which

prevention program element applies to

which part of the process. In order to get

more specific information on which

prevention program practices apply to

different production and storage units

within a process, EPA proposed to

revise the rule to require prevention

program reporting for each part of the

process for which a separate process

hazard analysis (PHA) or hazard review

was conducted. EPA further proposed

deleting the second sentence from both

sections 68.170(a) and 68.175(a), which

presently states that, ‘‘[i]f the same

information applies to more than one

covered process, the owner or operator

may provide the information only once,

but shall indicate to which process the

information applies.’’

A number of industry commenters

objected to the proposed revisions as

wrongly assuming that a one-to-one

relationship exists between a prevention

program and a PHA. The commenters

asserted that EPA’s proposed revision

did not reflect how facilities conduct

PHAs or implement prevention

measures and would cause significant

duplicate reporting, creating

unnecessary extra work for facility

personnel. One commenter explained

that depending on a source’s

circumstances, it might conduct a PHA

for each production line, including all

of its different units, or it might conduct

a PHA for each common element of its

different production lines. Accordingly,

the commenters claimed that EPA’s

proposal to require the owner/operator

to submit separate prevention program

information for every portion of a

process covered by a PHA would result

in multiple submissions of much of the

same material, and would add no value

to process safety or accidental release

prevention. Commenters also opposed

the deletion of the second sentence in

sections 68.170(a) and 68.175(a). One

commenter noted that many of the

elements of the prevention program will

not only be common to a process, but

will be common to an entire stationary

source. Thus commenters argued that

EPA’s proposals would result in

redundant submittals and place an

unjustified burden on the regulated

community.

EPA acknowledges that PHAs do not

necessarily determine the scope of

prevention program measures.

Moreover, EPA agrees that duplicative
968 Federal Register / Vol. 64, No. 3 /Wednesday, January 6, 1999 /Rules and Regulations

1 It is important to note that, as discussed in

Section III. E of this preamble, this rule does not

address issues concerning public access to offsite

consequence analysis data in the RMP.

2 Information is CBI if (1) the business has

asserted a claim which has not expired, been

waived, or been withdrawn; (2) the business has

shown that it has taken and will continue to take

reasonable steps to protect the information from

disclosure; (3) the information is not and has not

been reasonably obtainable by the public (other

than governmental bodies) by use of legitimate

means; (4) no statute requires disclosure of the

information; and (5) disclosure of the information

is likely to cause substantial harm to the business’

competitive position. 40 CFR section 2.208.

reporting should be reduced as much as

possible. At the same time, EPA,

implementing agencies, and other users

of RMP data need to have information

that is detailed enough to understand

the hazards posed by, and the safety

practices used for, particular parts of

processes and equipment. EPA

recognizes that some aspects of

prevention programs are likely to be

implemented facility-wide, rather than

on a process or unit basis, whereas other

aspects may apply to a particular

process or only to particular units

within a process. For example, most

sources are likely to develop an

employee participation plan and a

system for hot work permits facilitywide, rather than on a process or unit

basis. For sources having processes that

include several units (e.g., multiple

reactors or purification systems), the

hazards, process controls, and

mitigation systems may vary among the

individual units. For example, one may

have a deluge fire control system while

another may have a runaway reaction

quench system.

EPA has concluded that its proposed

changes to prevention program

reporting would not lead sources to

prepare RMPs that accurately and

efficiently communicate the hazards

posed by different aspects of covered

processes and the safety practices used

to address those hazards. The Agency

now believes that no rule changes are

necessary to ensure that RMPs convey

that information. The current rule

already requires prevention program

reporting, and the issue has been how

to efficiently convey that information in

sufficient detail. EPA believes that its

electronic program for submitting RMPs

can be designed to provide for sufficient

specificity in prevention program

reporting without requiring duplicative

reporting. In particular, the Agency

plans to create a comment/text field in

RMP*Submit for specifying which parts

of a prevention program apply to which

portions of a particular process. For

example, if a deluge system only applies

to a certain part of the overall process,

the source would indicate in the

comment/text screen the portions of the

process to which the deluge system

applies.

To reduce the burden of reporting,

EPA also plans to create a function in

RMP*Submit which will allow a source

to automatically copy prevention

program data previously entered for one

process to fill blank fields in another

process’s prevention program. The

source could then edit any of the data

elements that are different. For example,

where the prevention programs for two

processes are identical (e.g., two

identical storage tanks that are

considered separate processes), the

source could copy the data entered for

one to fill in the blank field for the

other. If some of the data elements vary

between the prevention programs, the

source will be able to autofill and

change only those items that vary

among processes or units.

Although the autofill option will

minimize the burden of reporting

common data elements for those sources

filing electronically, EPA has decided

not to delete the sentence, in both

sections 68.170(a) and 68.175(a), which

states, ‘‘[i]f the same information applies

to more than one covered process, the

owner or operator may provide the

information only once, but shall

indicate to which processes the

information applies ’’, as proposed.

D. Confidential Business Information

(CBI)

1. Background

A central element of the chemical

accident prevention program as

established by the Clean Air Act and

implemented by Part 68 is providing

state and local governments and the

public with information about the risk

of chemical accidents in their

communities and what stationary

sources are doing to prevent such

accidents. As explained in the preamble

to the final RMP rule (61 FR 31668, June

20, 1996), every covered stationary

source is required to develop and

implement a risk management program

and provide information about that

program in its RMP. Under CAA section

112(r)(7)(B)(iii), a source’s RMP must be

registered with EPA and also submitted

to the Federal Chemical Safety and

Hazard Investigation Board (‘‘the

Board’’), the state in which the source

is located, and any local entity

responsible for emergency response or

planning. That section also provides

that RMPs ‘‘shall be available to the

public under section 114(c)’’ of the

CAA. Section 114(c) gives the public

access to information obtained under

the Clean Air Act except for information

(other than emission data) that would

divulge trade secrets.

As noted previously, in the final RMP

rule EPA announced its plan to develop

a centralized system for submitting

electronic versions of RMPs that would

reduce the paperwork burden on both

industry and receiving agencies and

provide ready public access to RMP

data. Under the system, a covered

source would submit its RMP on

computer diskette, which would be

entered into a central database that all

interested parties could access

electronically. The system would thus

make it possible for a single RMP

submission to reach all interested

parties, including those identified in

section 112(r)(7)(B)(iii).1

An important assumption underlying

the Agency’s central submission plan

was that RMPs would rarely, if ever,

contain confidential business

information (CBI). Following

publication of the final rule, concerns

were raised that at least some of the

information required to be reported in

RMPs could be CBI in the case of

particular sources. While the June 20,

1996 rule provided for protection of CBI

under section 114(c) (see section

68.210(a)), EPA was asked to address

how CBI would be protected in the

context of the electronic programs being

developed for RMP submission and

public access.

In the April 17, 1998 proposal to

revise the RMP rule, EPA made several

proposals concerning protection of CBI.

It first reviewed the information

requirements for RMPs (sections

68.155–185) and proposed to find that

certain required data elements would

not entail divulging information that

could meet the test for CBI set forth in

the Agency’s comprehensive CBI

regulations at 40 CFR Part 2.2

Information provided in response to

those requirements could not be

claimed CBI. EPA also requested

comment on whether some information

that might be claimed as CBI (e.g.,

worst-case release rate or duration)

would be ‘‘emission data’’ and thus

publicly available under section 114(c)

even if CBI.

EPA administers a variety of statutes

pertaining to the protection of the

environment, each with its own data

collection requirements and

requirements for disclosure of

information to the public. In the

implementation of these statutes, the

Agency collects emission, chemical,

process, waste stream, financial, and

other data from facilities in many, if not

most, sectors of American business.

Companies may consider some of this

information vital to their competitive
Federal Register / Vol. 64, No. 3 /Wednesday, January 6, 1999 /Rules and Regulations 969

3Section 302 of EPCRA (codified in 40 CFR Part

355) requires any facility having more than a

threshold planning quantity of an extremely

hazardous substance (EHS) to notify its state

emergency response commission (SERC) and local

emergency planning committee (LEPC) that the

facility is subject to emergency planning. The vast

majority of toxic substances listed in 40 CFR

Section 68.130 were taken from the EHS list.

Section 303 of EPCRA requires LEPCs to prepare an

emergency response plan for the community that is

under their jurisdiction. Section 303 of EPCRA also

requires that facilities subject to section 302 shall

provide any information required by their LEPC

necessary for developing and implementing the

emergency plan. Section 304 of EPCRA requires an

immediate notification of a release of an EHS or

Hazardous Substances listed in 40 CFR Section

302.4 above a reportable quantity to state and local

entities. Section 304 also requires a written followup which includes among other things, the

chemical name, quantity released and any known

or anticipated health risks associated with the

release. Sections 311 and 312 of EPCRA (codified

in 40 CFR Part 370) require facilities that are subject

to OSHA Hazard Communication Standard (HCS),

to provide information to its SERC, LEPC and local

fire department. This information includes the

hazards posed by its chemicals, and inventory

information, including average daily amount,

maximum quantity and general location. Section

313 of EPCRA (codified in 40 CFR Part 372)

requires certain facilities that are in specific

industries (including chemical manufacturers) and

that manufacture, process, or otherwise use a toxic

chemical above specified threshold amounts to

report, among other things, the annual quantity of

the toxic chemical entering each environmental

medium. Most facilities covered by CAA 112(r) are

covered by one or more of these sections of EPCRA.

Section 322 of EPCRA (codified in Part 350) allows

facilities to claim only the chemical identity as

trade secret.

position, and claim it as confidential

business information (CBI).

In the course of implementing

statutes, the Agency may have a need to

communicate some or all of the

information it collects to the public as

the basis for a rulemaking, to its

contractors, or in response to requests

pursuant to the Freedom of Information

Act (FOIA). Information found to be CBI

is exempt from disclosure under FOIA.

To manage both CBI claims and FOIA

requests, EPA has promulgated in 40

CFR Part 2, Subpart B a set of

procedures for reviewing CBI claims,

releasing information found not to be

CBI, and where authorized, disclosing

CBI. Subpart B lists the criteria that

information must meet in order to be

considered CBI, as well as the special

handling requirements the Agency must

follow when disclosing CBI to

authorized representatives.

For RMP requirements that might

entail divulging CBI, EPA proposed that

a source be required to substantiate a

CBI claim to EPA at the time that it

makes the claim. Under EPA’s Part 2

regulations, a source claiming CBI

generally is required to substantiate the

claim only when EPA needs to make the

information public as part of some

proceeding (e.g., a rulemaking) or EPA

receives a request from the public (e.g.,

under the Freedom of Information Act

(FOIA)) for the information. In view of

the public information function of RMPs

and the interest already expressed by

members of the public in them, EPA

proposed ‘‘up-front substantiation’’ of

CBI claims to ensure that information

not meeting CBI criteria would be made

available to the public as soon as

possible. This approach of requiring upfront substantiation is the same as that

used for trade secret claims filed under

the Emergency Planning and

Community Right-to-Know Act (EPCRA)

of 1986.3

In addition, EPA proposed that any

source claiming CBI submit two

versions of its RMP: (1) a redacted

(‘‘sanitized’’), electronic version, which

would become part of RMP*Info, and (2)

an unsanitized (unredacted) paper copy

of the RMP (see proposed section

68.151(c)). The electronic database of

RMPs would contain only the redacted

version unless and until EPA ruled

against all or part of the source’s CBI

claim, in keeping with the Part 2

procedures. In this way, the public

would have access only to the non-CBI

elements of sources’ RMPs. EPA further

stated that state and local agencies

could receive the unredacted RMPs by

requesting them from EPA under the

Part 2 regulations. Those regulations

authorize EPA to provide CBI to an

agency having implementation

responsibilities under the CAA if the

agency either demonstrates that it has

the authority under state or local law to

compel such information directly from

the source or that it will ‘‘provide

adequate protection to the interests of

affected businesses’’ (40 CFR

2.301(h)(3)).

The following sections of this

preamble summarize and respond to the

comments EPA received on the CBIrelated aspects of its proposal. At the

outset, however, EPA wants to

emphasize that it does not anticipate

many CBI claims being made in

connection with RMPs. The Agency

developed the RMP data elements with

the issue of CBI in mind. It sought to

define data elements that would provide

basic information about a source’s risk

management program without requiring

it to reveal CBI. To have done otherwise

would have risked creating RMPs that

were largely unavailable to the public.

EPA continues to believe that the

required RMP data elements will rarely

require that a business divulge CBI. The

Agency will carefully monitor the CBI

claims made. If it appears that the

number of claims being made is

jeopardizing the public information

objective of the chemical accident

prevention program, EPA will consider

ways of revising RMPs, including

further rulemakings or revising the

underlying program, to ensure that

important health and safety information

is available to the public.

2. RMP Data Elements Found Not CBI

Fifteen commenters representing

environmental groups and members of

the public opposed allowing some or all

RMP data to be claimed as CBI in light

of the public’s interest in the

information RMPs will provide. A

number of commenters urged EPA not

to allow the following RMP data

elements (and supporting documents) to

be claimed as CBI:

• Mitigation measures considered by

the firm in its offsite consequence

analysis,

• Major process hazards identified by

the firm,

• Process controls in use,

• Mitigation systems in use,

• Monitoring and detection systems

in use, and

• Changes since the last hazard

review.

In addition, one commenter

contended that even chemical identity

and quantity should be ineligible for

CBI protection, since the requirement to

submit an RMP only applies to facilities

using a few well-known, extremely

hazardous chemicals, and the public’s

right to know should always outweigh

a company’s claim to CBI.

Along the same lines, a number of

commenters urged EPA to develop a

‘‘corporate sunshine rule’’ that would

allow confidentiality concerns to be

overridden if the protected information

is needed by the public and experts to

understand and assess safety issues.

Another commenter recommended that

a business claiming a chemical’s

identity as CBI should be required to

provide the generic name of the

chemical and information about its

adverse health effects so the public can

determine the potential risks.

One commenter argued that some of

the RMP data that EPA suggested could

reveal CBI, (e.g., release rate), were not

‘‘emission data,’’ because the worst case

scenario data are theoretical estimates,

and do not represent any real emissions,

past or present.

Representatives of the chemical and

petroleum industries disagreed with

EPA’s proposal to list the data elements

that EPA believed could not reveal CBI

in any case. These commenters asserted

that EPA could not anticipate all the

ways in which information required by

a data element might reveal CBI, and

accordingly urged the Agency to make
970 Federal Register / Vol. 64, No. 3 /Wednesday, January 6, 1999 /Rules and Regulations

case-by-case determinations on CBI

claims. They also contended that

‘‘emission data’’ under section 114(c)

does not extend to data on possible, as

opposed to actual, emissions, and thus

that RMP information concerning

potential accidental releases would not

qualify as ‘‘emission data,’’ which must

be made available to the public. As pointed out above, an important

purpose of the chemical accident

prevention program required by section

112(r) is to inform the public of the risk

of accidents in their communities and

the methods sources are employing to

reduce such risks. EPA therefore

believes that as much RMP data as

possible should be available to the

public as soon as possible. However,

section 112(r)(7)(B)(iii) requires that

RMPs be made ‘‘available to the public

under section 114(c),’’ which provides

for protection of trade secret

information (other than emission data).

Given the statute’s direction to protect

whatever trade secret information is

contained in an RMP, EPA is not

authorized to release such information

even when the public’s need for such

information arguably outweighs a

business’ interest in its confidentiality.

The Agency also cannot issue a

‘‘corporate sunshine rule’’ that conflicts

with existing law requiring EPA (and

other agencies) to protect trade secret

information.

As explained above (and in more

detail in the proposed rule), EPA

examined each RMP data element to

determine which would require

information that might, depending on a

business’ circumstances, meet the CBI

criteria set forth in EPA’s regulations

implementing section 114(c) and other

information-related legal requirements.

The point of this exercise was to both

protect potential trade secret

information and promote the public

information purpose of RMPs by

identifying which RMP information

might reveal CBI in a particular case and

by precluding CBI claims for

information that could not reveal CBI in

any case. EPA presented the results of

its analysis and an explanation of why

certain data elements could entail the

reporting of CBI depending on a

business’ circumstances and why others

could not. No commenter provided any

specific examples or explanations that

contradicted the Agency’s rationale for

its determinations of which data

elements could or could not result in

reporting of CBI. However, EPA is deleting from the list

of 40 CFR Part 68.151(b)(1) the reference

to 40 CFR Part 68.160(b)(9), to allow for

the possibility of the number of fulltime employees at the stationary source

to be claimed as CBI. Upon further

review, EPA was unable to determine

that providing the number of employees

at the stationary source could never

entail divulging information that could

meet the test for CBI set forth in the

Agency’s comprehensive CBI

regulations at 40 CFR Part 2. Therefore,

EPA has removed this element from the

list of data elements that can not be

claimed CBI in Part 68. With this

exception, EPA is promulgating the list

of RMP data elements for which CBI

claims are precluded, as proposed

(Section 68.151(b)).

EPA’s justifications for its specific CBI

findings appear in an appendix to this

preamble. A more detailed analysis of

all RMP data elements and CBI

determinations is available in the docket

(see ADDRESSES). The Agency continues

to find no reasonable basis for

anticipating that the listed elements will

in any case require a business to reveal

CBI that is not ‘‘emission data.’’ The

information required by each of the

listed data elements either fails to meet

the criteria for CBI set forth in EPA’s

CBI regulations at Part 2 or meets the

Part 2 definition of ‘‘emission data.’’ In

many cases, the information is available

to the public through other reports filed

with EPA, states, or local agencies (e.g.,

reports required by Emergency Planning

and Community Right-to-Know Act

(EPCRA) sections 312 and 313 provide

general facility identification

information and reports of most

accidental releases are available through

several Federal databases including

EPA’s Emergency Release Notification

System and Accidental Release

Information Program databases). In order to preclude CBI claims for

other data elements, the Agency would

have to show that the information

required by a data element either was

‘‘emission data’’ under section 114(c) or

could not, under any circumstances,

reveal CBI. As explained below, EPA

does not believe such a showing can be

made for any of the data elements not

on the list. Therefore, CBI claims made

for information required by data

elements not on the list will be

evaluated on a case-by-case basis

according to the procedures contained

in 40 CFR Part 2 (except that

substantiation will have to accompany

the claims, as discussed below).

The Agency agrees with the

commenters who argued that

information about potential accidental

releases is not ‘‘emission data’’ under

section 114(c). EPA’s existing policy

statement (see 56 FR 7042, Feb. 21,

1991) on what information may be

considered ‘‘emission data’’ was

developed to implement sections 110

and 114(a) of the CAA, which the

Agency generally invokes when it seeks

to gather technical data from a source

about its actual emissions to the air.

While the policy is not explicitly

limited in its scope, EPA believes it

would be inappropriate to apply it to

RMP data elements concerning

hypothetical, as opposed to actual,

releases to the air. Under the definition

of ‘‘emission data’’ contained in Part 2,

information is ‘‘emission data’’ if it is (1)

‘‘necessary to determine the identity,

amount, frequency, concentration, or

other characteristics * * * of any

emission which has been emitted by the

source,’’ (2) ‘‘necessary to determine the

identity, amount, frequency,

concentration, or other characteristics

* * * of the emissions which, under an

applicable standard or limitation, the

source was authorized to emit;’’ or (3)

general facility identification

information regarding the source which

distinguishes it from other sources (40

CFR section 2.301(a)(2)(i) (emphasis

added)). Under these criteria, EPA has

concluded that only the RMP data

elements relating to source-level

registration information (sections

68.160(b)(1)–(6), (8)–(13)) and the fiveyear accident history (section 68.168)

are ‘‘emission data.’’ Of the RMP data

elements, only the five-year accident

history involves actual, past emissions

to the environment; the other data

elements would not, therefore, qualify

as ‘‘emission data’’ under the first prong

of the Part 2 definition. Moreover, the

data elements relating to a source’s

offsite consequence analysis, prevention

program and emergency response

program do not attempt to identify or

otherwise reflect ‘‘authorized’’

emissions; the data elements instead

reflect the source’s potential for

accidental releases. Accordingly, these

data elements would not be ‘‘emission

data’’ under the second prong of the

definition. As for the third prong, some

of the source-level data are ‘‘emission

data’’ because they help identify a

source. Most other RMP data elements

are reported on a process level and are

not generally used to distinguish one

source from another.

The Agency believes it is unable to

show that the remaining data elements

could not, under any circumstances,

reveal CBI. EPA continues to believe

that it is theoretically possible for the

remaining data elements (the elements

not listed in section 68.151(b)) to reveal

CBI either directly or through reverse

engineering, depending on the

circumstances of a particular case. At

the same time, EPA believes that, in

practice, the remaining data elements

will rarely reveal CBI. The purpose of
Federal Register / Vol. 64, No. 3 /Wednesday, January 6, 1999 /Rules and Regulations 971

the data in the RMP is for a source to

articulate its hazards, and the steps it

takes to prevent accidental releases. In

general, the kinds of information

specifying the source’s hazards and risk

management program are not likely to

be competitively sensitive.

In particular, covered processes at the

vast majority of stationary sources

subject to the RMP rule are too common

and well-known to support a CBI claim

for information related to such

processes. For example, covered public

drinking water and wastewater

treatment plants generally use common

regulated substances in standard

processes (i.e., chlorine used for

disinfection). Also, covered processes at

many sources involve the storage of

regulated substances that the sources

sell (e.g., propane, ammonia), so the

processes are already public knowledge.

Other covered processes involve the use

of well-known combinations of

regulated substances such as

refrigerants. RMP information regarding

these types of processes should not

include CBI.

Even in the case of unusual or unique

processes, it is generally unlikely that

RMP information could be used to

reveal CBI through reverse engineering.

To begin with, required RMP

information is general enough that it is

unlikely to provide a basis for reverse

engineering a process. For example, a

source must report in its RMP whether

overpressurization is a hazard and

whether relief valves are used to control

pressure, but it is not required to report

information on actual pressures used,

flow rates, chemical composition, or the

configuration of equipment. Moreover,

while RMP information may provide

some data that could be used in an

attempt to discover CBI information

through reverse engineering, it typically

will not provide enough data for such

an attempt to succeed, because the

source is not required to provide a

detailed description of the chemistry or

production volume of the process.

Businesses claiming CBI based on the

threat of reverse engineering will be

required to show how reverse

engineering could in fact succeed with

the information that the RMP would

otherwise make public, together with

other publicly available information. A

business unable to do so will have its

claim denied.

While EPA is requiring that a source

claiming a chemical’s identity as CBI

provide the generic category or class

name of the chemical, the RMP does not

require sources to provide information

about the adverse health effects of the

chemical. Chemicals were included in

the section 112(r) program because they

are acutely toxic or flammable; health

effects related to chronic exposure were

not considered because they are

addressed by other rules (see List Rule

at 59 FR 4481). EPA believes that

generic names are sufficient to indicate

the general health concerns from shortterm exposures. Should a member of the

public desire more information, EPA

encourages the use of EPCRA section

322(h), which provides a means for the

public to obtain information about the

adverse health effects of a chemical

covered by that statute, where the

chemical’s identity has been claimed a

trade secret. The public will find this

provision of EPCRA useful because most

sources subject to the RMP rule are also

subject to EPCRA.

3. Up-front Substantiation of CBI Claims

One commenter supported the

proposal to require CBI claims to be

substantiated at the time they are made.

Another commenter stated that there is

no compelling need to require up-front

substantiation. The commenter stated

that up-front substantiation would place

a sizable burden on both industry and

EPA and would be in direct conflict

with the Paperwork Reduction Act. The

commenter claimed that, with the

exception of EPCRA, where a submitter

is allowed to claim only one data

element—chemical identity—as CBI, it

is EPA’s standard procedure not to

require submitters to provide written

substantiation unless a record has been

requested. Further, the commenter

stated that the Agency has not shown

any reason for departing from that

procedure in this rule.

EPA believes that requiring up-front

substantiation of CBI claims made for

RMP data has ample precedent, is fully

consistent with the Agency’s CBI

regulations and the Paperwork

Reduction Act, and is critical to

achieving the public information

purposes of the accident prevention

program. EPCRA is not the only

example of an up-front substantiation

requirement. The Agency has also

required up-front substantiation in

several other regulatory contexts,

including those where, like here,

providing the public with health and

safety information is an important

objective [see e.g., 40 CFR section

725.94, 40 CFR section 710.38, and 40

CFR section 720.85 (regulations

promulgated under Toxic Substances

Control Act)].

Even under its general CBI

regulations, the Agency need not wait

for a request to release data to require

businesses to substantiate their CBI

claims. When EPA expects to get a

request to release data claimed

confidential, the Agency is to initiate

‘‘at the earliest practicable time’’ the

regulations’’ procedures for making CBI

determinations (40 CFR section

2.204(a)(3)). Those procedures include

calling on affected businesses to

substantiate their claims (see 40 CFR

section 2.204(e)). Since state and local

agencies, environmental groups,

academics and others have already

indicated their interest in obtaining

complete RMP data (see comments

received on this rulemaking, available

in the DOCKET), EPA fully expects to

get requests for RMP data claimed CBI.

Consequently, even if EPA did not

establish an up-front substantiation

requirement in this rule, under the

Agency’s general CBI regulations it

could require businesses claiming CBI

for RMP data to substantiate their claims

without first receiving a request to

release the data. Establishing an upfront requirement in this rule will

simply allow EPA to obtain

substantiation of CBI claims without

having to request it in every instance.

Requiring up-front substantiation for

RMP CBI claims is consistent with the

Paperwork Reduction Act. Any burden

posed by this requirement has already

been evaluated as part of the

Information Collection Request (ICR)

associated with this rulemaking. EPA

disagrees that up-front substantiation

will impose a substantial or undue

burden. As noted above, under EPA’s

current CBI regulations, a source

claiming CBI could and probably would

be required to provide substantiation for

its claim, in view of the public interest

in RMP information. A requirement to

submit substantiation with the claim

should thus make little difference to the

source. Moreover, a source presumably

does not make any claim of CBI lightly.

Before filing a CBI claim, the source

must first determine whether the claim

meets the criteria specified in 40 CFR

section 2.208. Up-front substantiation

only requires that the source document

that determination at the time it files its

claim. Since it would be sensible for a

source to document the basis of its CBI

claim for its own purposes (e.g., in the

case of a request for substantiation),

EPA expects that many sources already

prepare documentation for their CBI

claims by the time they file them. Also,

submitting substantiation at the time of

claim reduces any additional burden

later, such as reviewing the Agency’s

request, retrieving the relevant

information, etc. Therefore, providing

documentation at the time of filing

should impose no additional burden.

In view of the public information

function of RMPs, EPA believes that upfront substantiation is clearly warranted
972 Federal Register / Vol. 64, No. 3 /Wednesday, January 6, 1999 /Rules and Regulations

4Section 2.301(h)(3) provides that a State or local

government may obtain CBI from EPA under two

circumstances: (1) it provides EPA a written

opinion from its chief legal officer or counsel

stating that the State or local agency has the

authority under applicable State or local law to

compel the business to disclose the information

directly; or (2) the businesses whose information is

disclosed are informed and the State or local

government has shown to a EPA legal office’s

satisfaction that its disclosure of the information

will be governed by State or local law and by

‘‘procedures which will provide adequate

protection to the interests of affected businesses.’’

5EPA does not believe that submission of an RMP

containing CBI to the statutorily specified entities

would defeat a source’s ability to claim information

as CBI for purposes of section 114(c) and EPA’s CBI

regulations. Under those regulations, information

that has been released to the public cannot be

claimed CBI. Release of a RMP containing CBI to

the entities specified by section 112(r)(7)(B)(iii),

including LEPCs, would not constitute such a

release. EPCRA similarly provides that disclosure of

trade secret information to an LEPC does not

prevent a facility from claiming the information

confidential (see EPCRA section 322(b)(1)).

for CBI claims made for RMP data. Upfront substantiation will ensure that

sources filing claims have carefully

considered whether the data they seek

to protect in fact meets the criteria for

protection. Given the public interest

already expressed in RMP data, EPA

expects that CBI claims for RMP data

will have to be substantiated at some

point. Up-front substantiation will save

EPA and the public time and resources

that would otherwise be required to

respond to each CBI claim with a

request for substantiation. EPA is

therefore promulgating the up-front

substantiation requirement as proposed.

4. State and Local Agency Access to

Unredacted RMPs

One commenter objected to EPA’s

statement in the proposal that it would

provide unredacted (unsanitized)

versions of the RMPs to a state and local

agency only upon meeting the criteria

required by the EPA’s CBI rules at 40

CFR Part 2.4 The commenter, an

association of fire fighters, argued that

the Agency’s position was inconsistent

with CAA section 112(r)(7)(B)(iii),

which provides that RMPs ‘‘shall . . . be

submitted to the Chemical Safety and

Hazard Investigation Board [a federal

agency], to the State in which the

stationary source is located, and to any

local agency or entity having

responsibility for planning for or

responding to accidental releases which

may occur at such source . . . .’’ The

commenter claimed that this provision

entitles the specified entities, including

local fire departments, to receive

unredacted RMPs without having to

make the showings required by EPA’s

CBI regulations.

EPA is not resolving this issue today.

The Agency has reviewed the relevant

statutory text and legislative history, as

well as analogous provisions of EPCRA,

and believes that arguments can be

made on both sides of this issue. While

section 112(r)(7)(B)(iii) calls for RMPs to

be submitted to states, local entities and

the Board, it is not clear that Congress

intended CBI contained in RMPs to be

provided to those entities without

ensuring appropriate protection of CBI.

At stake in resolving this issue are two

important interests—local responders’

interest in unrestricted access to

information that may be critical to their

safety and effectiveness in responding to

emergencies and businesses’ interest in

protecting sensitive information from

their competitors. Before making a final

decision on this issue, EPA believes it

would benefit from further public input.

Because EPA stated that it would not

provide unredacted RMPs to states and

local agencies, those interested in

protecting CBI may not have considered

it necessary to lay out the legal and

policy arguments supporting their

views. State and local agencies, many of

which in the past have expressed

concern about the potential

administrative burden of receiving

RMPs directly from sources, also did not

comment on the issue. EPA has

therefore decided to accept additional

comments on this issue alone.

(Additional comments on any other

issues addressed in this rulemaking will

not be considered or addressed, since

the Agency is taking final action on

them here.) Comments should be mailed

to the persons listed in the preceding

FOR FURTHER INFORMATION CONTACT

section. In the meantime, unredacted

RMPs will be available to states, local

agencies and the Board under the terms

of the Agency’s existing CBI regulations

at 40 CFR section 2.301(h)(3) (for state

and local agencies) and 40 CFR section

2.209(c) (for the Board).

Section 112(r)(7)(B)(iii) states in

relevant part:

[RMPs] shall also be submitted to the

Chemical Safety and Hazard Investigation

Board, to the State in which the stationary

source is located, and to any local agency or

entity having responsibility for planning for

or responding to accidental releases which

may occur at such source, and shall be

available to the public under section 114(c)

of [the Act].

Section 114(c) provides for the public

availability of any information obtained

by EPA under the Clean Air Act, except

for information (other than emissions

data) that would divulge trade secrets.

From a public policy perspective,

there are some obvious advantages to

reading section 112(r)(7)(B)(iii) in the

way the commenter suggests. Local fire

departments and other local responders

are typically the first to arrive at the

scene of chemical accidents in their

jurisdictions. RMP information that first

responders could find helpful include

chemical identity, chemical quantity,

and potential source of an accident.

Under EPA’s regulations, however, any

or all of this information could be

claimed CBI. In addition, state and local

authorities are often in the best position

to assess the adequacy of a source’s risk

management program and to initiate a

dialogue with the facility should its

RMP indicate a need for improvement.

However, state and local authorities’

ability to provide this contribution to

community safety would be impeded to

the extent a source claimed key

information as CBI. While states and

local agencies may obtain information

claimed CBI under EPA’s CBI

regulations (assuming they can make the

requisite showing), the time required to

obtain the necessary authority or

findings from state or local and EPA

officials could be substantial.

At the same time, there are also public

policy reasons for ensuring protection of

CBI contained in RMPs. Congress has in

many statutes, including the CAA and

EPCRA, provided for the protection of

trade secrets to safeguard the

competitive position of private

businesses. Businesses’ ability to

maintain the confidentiality of trade

secrets helps ensure competition in the

U.S. economy and U.S. businesses’

competitive position in the world

economy. Protection of trade secrets

also encourages innovation, which is an

important contributor to economic

growth.

A reading of section 112(r)(7)(B)(iii)

that demands submission of unredacted

RMPs to states, local entities, and the

Board may lead to widespread public

access to information claimed CBI. For

purposes of section 112(r)(7)(B)(iii),

‘‘any local agency or entity having

responsibility for planning for or

responding to accidental releases’’

includes local emergency planning

committees (LEPCs) established under

EPCRA. Section 301(c) of EPCRA

provides that LEPCs must include

representatives from both the public and

private sectors, including the media and

facilities subject to EPCRA

requirements. Submission of an

unredacted RMP to an LEPC would thus

entail release of CBI to some members

of the public and potentially even

competitors.5 More generally, local

agencies may not be subject to any legal

requirement to protect CBI and may lack

the knowledge and resources to address

CBI claims. Arguably, it would be
Federal Register / Vol. 64, No. 3 /Wednesday, January 6, 1999 /Rules and Regulations 973

anomalous for Congress to require EPA

to protect trade secrets contained in

RMPs against release to the public only

to risk divulging the same information

by requiring submission of unredacted

RMPs to a broad range of entities that

may not have the need or capacity to

protect CBI themselves. It would also

appear inconsistent with the approach

Congress took to protecting trade secrets

in EPCRA, where Congress did not

provide for release of trade secret

chemical identity information to local

agencies.

Relatedly, many state and local

agencies objected to EPA’s original

proposal in the RMP proposed

rulemaking (58 FR 54190, October 20,

1993) that sources submit RMPs directly

to States, local agencies, and the Board,

as well as EPA. They noted that

managing the information contained in

RMPs would be difficult without a

significant expenditure of typically

scarce resources. Many states and local

agencies thus supported EPA’s final

decision to develop an electronic

submission and distribution system that

would allow covered sources to submit

their RMPs to EPA, which would make

them available to states, local agencies,

and the Board, as well as the general

public. If the statute is read to require

submission of RMP information to state

and local agencies, and the Board, to the

extent it is claimed as CBI, the resource

concerns raised by State and local

agencies commenters likely would be

raised to that extent again.

EPA also questions the extent to

which states, local entities and the

Board would be disadvantaged if they

did not receive unredacted RMPs

without making the showings required

by EPA’s CBI regulations. As noted

earlier, EPA expects that relatively little

RMP information will be CBI. RMP data

will only rarely contain CBI, and the upfront substantiation will minimize the

number of CBI claims it receives by

ensuring that sources carefully examine

the basis for any claims before

submitting them. Consequently, the

Agency believes that a state or local

agency will rarely confront a redacted

RMP.

Moreover, EPCRA provides state and

local entities, including fire

departments, with access to much of the

pertinent data already. EPA’s

regulations under EPCRA cover a

universe of sources and chemicals that

includes most, if not all, the sources and

substances covered by the RMP rule.

The EPCRA regulations require

reporting of some of the same

information required by the RMP rule,

including chemical identity. EPCRA

withholds from public release only

chemical identities that are trade secrets

and the location of specific chemicals

where a facility so requests. In practice,

relatively few facilities have requested

trade secret protection for a chemical’s

identity.

Additionally, EPCRA section 312(f)

empowers local fire departments to

conduct on-site inspections at facilities

subject to EPCRA section 312(a) and

obtain information on chemical

location. Most facilities subject to

EPCRA section 312(a) are also subject to

the RMP rule. On-site inspections could

also provide information on hazards and

mitigation measures. In addition,

EPCRA section 303(d)(3) authorizes

LEPCs, which include representatives of

fire departments, to request from

facilities covered by EPCRA section

302(b) such information as may be

necessary to prepare an emergency

response plan and to include such

information in the plan as appropriate.

Some sources subject to the RMP rule

are also covered by EPCRA section

302(b).

In light of the points made above, EPA

questions whether section

112(r)(7)(B)(iii) should be interpreted to

require submission of unredacted RMPs

containing CBI to the statutorily

specified entities without provision

being made for protecting CBI. EPA

invites the public to provide any

additional comment or information

relevant to interpreting the submission

requirement of section 112(r)(7)(B)(iii).

5. Other CBI Issues

Two commenters disagreed with

EPA’s statement that a source cannot

make a CBI claim for information

available to the public under EPCRA or

another statute. They claimed that a

request for information under EPCRA

cannot supersede the CBI provisions

applicable to data collected under the

authorities of the CAA or Toxic

Substances Control Act or any other

regulatory program.

EPA does not agree with this

comment. Claims of CBI may not be

upheld if the information is properly

obtainable or made public under other

statutes or authorities. For example,

chemical quantity on site is available to

the public under EPCRA Tier II

reporting. In addition, under EPCRA

section 303(d)(3), LEPCs have the

authority to request any information

they need to develop and implement

community emergency response plans.

If information obtained through such a

request is included in the community

plan, it will become available to the

public under EPCRA section 324.

Information obtainable or made public

under EPCRA would not be eligible for

CBI protection under 40 CFR section

2.208, which specifically excludes from

CBI protection information already

available to the public. Filing a CBI

claim under the CAA or another statute

does not protect information if it is

legitimately requested and made public

under other federal, state, or local law.

Information obtainable or made public

(through proper means) under existing

statutes cannot be CBI under EPA’s CBI

regulations.

6. Actions Taken

In summary, the Agency is adding

two sections (68.151 and 68.152) to Part

68. Section 68.151 sets forth the

procedures for a source to follow when

asserting a CBI claim and lists data

elements that can not be claimed as CBI.

This section also requires sources filing

CBI claims to provide the information

claimed confidential, in a format to be

specified by EPA, instead of the

unsanitized paper copy of the RMP as

discussed in the proposal. Section

68.152 sets forth the procedures for

substantiating CBI claims. Sources

claiming CBI are required to submit

their substantiation of their claims at the

same time they submit their RMPs.

E. Other Issues

Two commenters asked why EPA had

proposed to drop the phrase ‘‘if used’’

in section 68.165(b)(3) where the rule

asks for the basis of the offsite

consequence analysis results. EPA has

decided to retain the language, since

sources will have a choice of using

either EPA’s RMP guidance documents

or a model. Where a model is used, the

source will have to provide the name of

the model. These commenters also

asked why EPA proposed to drop

(alternative releases only) from section

68.165(b)(13). EPA has also decided to

retain the parenthetical language.

One commenter stated that EPA

should allow sources to submit RMPs

either electronically or in hard copy.

The commenter stated that not allowing

hard copy submissions will be

burdensome on many sources who have

never filed an electronic report to the

government before. As stated in the

April proposal, EPA is allowing sources

to submit RMPs on paper. Paper

submitters are asked to fill out a simple

paper form to tell EPA why they are

unable to file electronically.

Two commenters objected to placing

offsite consequence analysis (OCA) data,

particularly worst-case release

scenarios, on the Internet, for security

reasons. Issues related to public access

to OCA data are beyond the scope of

this rulemaking, as this action is limited

to the issues discussed above. It does
974 Federal Register / Vol. 64, No. 3 /Wednesday, January 6, 1999 /Rules and Regulations

not include decisions regarding how the

public will access the OCA data

elements of the RMPs. Statements in the

preamble about EPA providing public

access to RMP data are not intended to

address which portions of the RMP data

will be electronically available.

A number of commenters were

concerned about a statement EPA made

in the preamble to the proposed rule

regarding the definition of ‘‘process’’,

and stated that EPA’s interpretation of

‘‘process’’ is not consistent with the

interpretation the Occupational Safety

and Health Administration (OSHA) uses

in its process safety management (PSM)

standard (29 CFR 1910.119). In this

rulemaking, EPA did not propose any

changes to the definition of process nor

is it adopting any changes to the

definition. As EPA stated in the

preamble to the final RMP rule, it will

interpret ‘‘process’’ consistently with

OSHA’s interpretation of that term (29

CFR 1910.119). Therefore, if a source is

subject to the PSM rule, the limits of its

process(es) for purposes of OSHA PSM

will be the limits of its process(es) for

purposes of RMP (except in cases

involving atmospheric storage tanks

containing flammable regulated

substances, which are exempt from PSM

but not RMP). If a source is not covered

by OSHA PSM and is complicated from

an engineering perspective, it should

consider contacting its implementing

agency for advice on determining

process boundaries. EPA and OSHA are

coordinating the agencies’ approach to

common issues, such as the

interpretation of ‘‘process’’.

F. Technical Corrections

When Part 68 was promulgated, the

text of section 68.79(a), was drawn from

the OSHA PSM standard, but it was not

revised to reflect the different structure

of EPA’s rule. The OSHA PSM standard

is contained in a single section; EPA’s

Program 3 prevention program is

contained in a subpart. Rather than

referencing ‘‘this section,’’ the

paragraph should have referenced the

‘‘subpart.’’ Therefore, as proposed, EPA

is changing ‘‘section’’ to ‘‘subpart’’ in

section 68.79(a).

Under section 68.180(b), EPA

intended that all covered sources report

the name and telephone number of the

agency with which they coordinate

emergency response activities, even if

the source is not required to have an

emergency response plan. However, the

rule refers only to coordinating the

emergency plan. In this action, EPA is

revising this section to refer to the local

agency with which emergency response

activities and the emergency response

plan is coordinated.

IV. Section-by-Section Discussion of the

Final Rule

In Section 68.3, Definitions, the

definition of SIC is removed and

replaced by the definition of NAICS.

Section 68.10, Applicability, is

revised to replace the SIC codes with

NAICS codes, as discussed above.

Section 68.42, Five-Year Accident

History, is revised to require the

percentage concentration by weight of

regulated toxic substances released in a

liquid mixture and the five- or six-digit

NAICS code that most closely

corresponds to the process that had the

release. The phrase ‘‘five- or six-digit’’

has been added before the NAICS code

to clarify the level of detail required for

NAICS code reporting.

Section 68.79, Compliance Audits, the

word ‘‘section’’ in paragraph (a) is

replaced by ‘‘subpart.’’

Section 68.150, Submission, is revised

by adding a paragraph to state that

procedures for asserting CBI claims and

determining the sufficiency of such

claims are provided in new Sections

68.151 and 68.152.

Section 68.151 is added to set forth

the procedures to assert a CBI claim and

list data elements that may not be

claimed as CBI, as discussed above.

Section 68.152 is added to set forth

procedures for substantiating CBI

claims, as proposed.

Section 68.160, Registration, is

revised by adding the requirements to

report the method and description of

latitude and longitude, replacing SIC

codes with five- or six-digit NAICS

codes, and adding the requirement to

report Title V permit number, when

applicable. This section is also revised

to include optional data elements. The

phrase ‘‘five- or six-digit’’ has been

added before NAICS code to clarify the

level of detail required for NAICS code

reporting.

Section 68.165, Offsite Consequence

Analysis, is revised by adding the

requirement that the percentage weight

of a regulated toxic substance in a liquid

mixture be reported.

Section 68.170, Prevention Program/

Program 2, is revised to replace SIC

codes with five- or six-digit NAICS

codes, as is Section 68.175.

Section 68.180, Emergency Response

Program, is revised to clarify that

paragraph (b) covers both the

coordination of response activities and

plans, as proposed.

V. Judicial Review

The proposed rule amending the

accidental release prevention

requirements; under section 112(r)(7)

was proposed in the Federal Register on

April 17, 1998. This Federal Register

action announces EPA’s final decision

on the amendments. Under section

307(b)(1) of the CAA, judicial review of

this action is available only by filing a

petition for review in the U.S. Court of

Appeals for the District of Columbia

Circuit on or before March 8, 1999.

Under section 307(b)(2) of the CAA, the

requirements that are the subject of

today’s action may not be challenged

later in civil or criminal proceedings

brought by EPA to enforce these

requirements.

VI. Administrative Requirements

A. Docket

The docket is an organized and

complete file of all the information

considered by the EPA in the

development of this rulemaking. The

docket is a dynamic file, because it

allows members of the public and

industries involved to readily identify

and locate documents so that they can

effectively participate in the rulemaking

process. Along with the proposed and

promulgated rules and their preambles,

the contents of the docket serve as the

record in the case of judicial review.

(See section 307(d)(7)(A) of the CAA.)

The official record for this

rulemaking, as well as the public

version, has been established for this

rulemaking under Docket No. A–98–08

(including comments and data

submitted electronically). A public

version of this record, including

printed, paper versions of electronic

comments, which does not include any

information claimed as CBI, is available

for inspection from 8:00 a.m. to 5:30

p.m., Monday through Friday, excluding

legal holidays. The official rulemaking

record is located at the address in

ADDRESSES at the beginning of this

document.

B. Executive Order 12866

Under Executive Order (E.O.) 12866,

[58 FR 51,735 (October 4, 1993)], the

Agency must determine whether the

regulatory action is ‘‘significant’’, and

therefore subject to OMB review and the

requirements of the E.O. The Order

defines ‘‘significant regulatory action’’

as one that is likely to result in a rule

that may:

(1) Have an annual effect on the

economy of $100 million or more or

adversely affect in a material way the

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, or

state, local or tribal government or

communities;
Federal Register / Vol. 64, No. 3 /Wednesday, January 6, 1999 /Rules and Regulations 975

(2) Create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency;

(3) Materially alter the budgetary

impact of entitlements, grants, user fees,

or loan programs or the rights and

obligations of recipients thereof; or

(4) Raise novel legal or policy issues

arising out of legal mandates, the

President’s priorities, or the principles

set forth in the E.O.

Pursuant to the terms of Executive

Order 12866, OMB has notified EPA

that it considers this a ‘‘significant

regulatory action’’ within the meaning

of the Executive Order. EPA has

submitted this action to OMB for

review. Changes made in response to

OMB suggestions or recommendations

will be documented in the public

record.

C. Executive Order 12875

Under Executive Order 12875, EPA

may not issue a regulation that is not

required by statute and that creates a

mandate upon a State, local or tribal

government, unless the Federal

government provides the funds

necessary to pay the direct compliance

costs incurred by those governments, or

EPA consults with those governments. If

EPA complies by consulting, Executive

Order 12875 requires EPA to provide to

the Office of Management and Budget a

description of the extent of EPA’s prior

consultation with representatives of

affected State, local and tribal

governments, the nature of their

concerns, copies of any written

communications from the governments,

and a statement supporting the need to

issue the regulation. In addition,

Executive Order 12875 requires EPA to

develop an effective process permitting

elected officials and other

representatives of State, local and tribal

governments ‘‘to provide meaningful

and timely input to the development of

regulatory proposals containing

significant unfunded mandates.’’

EPA has concluded that this rule may

create a nominal mandate on State, local

or tribal governments and that the

Federal government will not provide the

funds necessary to pay the direct costs

incurred by these governments in

complying with the mandate.

Specifically, some public entities may

be covered sources and will have to add

the new data elements to their RMP. In

developing this rule, EPA consulted

with state, local and tribal governments

to enable them to provide meaningful

and timely input in the development of

this rule. Even though this rule revises

Part 68 in a way that does not

significantly change the burden

imposed by the underlying rule, EPA

has taken efforts to involve state and

local entities in this regulatory effort.

Specifically, much of the rule responds

to issues raised by the Electronic

Submission Workgroup discussed

above, which includes State and local

government stakeholders. In addition,

EPA has recently conducted seminars

with tribal governments; however, there

were no concerns raised on any issues

that are covered in this rule. EPA

discussed the need for issuing this

regulation in sections II and III in this

preamble. Also, EPA provided OMB

with copies of the comments to the

proposed rule.

D. Executive Order 13045

Executive Order 13045: ‘‘Protection of

Children from Environmental Health

Risks and Safety Risks’’ (62 FR 19885,

April 23, 1997) applies to any rule that:

(1) is determined to be ‘‘economically

significant’’ as defined under E.O.

12866, and (2) concerns an

environmental health or safety risk that

EPA has reason to believe may have a

disproportionate effect on children. If

the regulatory action meets both criteria,

the Agency must evaluate the

environmental health or safety effects of

the planned rule on children, and

explain why the planned regulation is

preferable to other potentially effective

and reasonably feasible alternatives

considered by the Agency.

This final rule is not subject to the

E.O. 13045 because it is not

‘‘economically significant’’ as defined in

E.O. 12866, and because it does not

involve decisions based on

environmental health or safety risks.

E. Executive Order 13084

Under Executive Order 13084, EPA

may not issue a regulation that is not

required by statute, that significantly or

uniquely affects the communities of

Indian tribal governments, and that

imposes substantial direct compliance

costs on those communities, unless the

Federal government provides the funds

necessary to pay the direct compliance

costs incurred by the tribal

governments, or EPA consults with

those governments. If EPA complies by

consulting, Executive Order 13084

requires EPA to provide to the Office of

Management and Budget, in a separately

identified section of the preamble to the

rule, a description of the extent of EPA’s

prior consultation with representatives

of affected tribal governments, a

summary of the nature of their concerns,

and a statement supporting the need to

issue the regulation. In addition,

Executive Order 13084 requires EPA to

develop an effective process permitting

elected and other representatives of

Indian tribal governments ‘‘to provide

meaningful and timely input in the

development of regulatory policies on

matters that significantly or uniquely

affect their communities.’’

Today’s rule does not significantly or

uniquely affect the communities of

Indian tribal governments. Two of the

amendments made by this rule, the

addition of RMP data elements and the

conversion of SIC codes to NAICS

codes, impose only minimal burden on

any sources that may be owned or

operated by tribal governments, such as

drinking water and waste water

treatment systems. The third

amendment made by this rule addresses

the procedures for submission of

confidential business information in the

RMP. The sources that are mentioned

above handle chemicals that are known

to public (e.g., chlorine for use of

disinfection, propane used for fuel, etc.).

EPA does not, therefore, expect RMP

information on these types of processes

to include CBI, so any costs related to

CBI will not fall on Indian tribal

governments. Accordingly, the

requirements of section 3(b) of

Executive Order 13084 do not apply to

this rule.

Notwithstanding the non-applicability

of E. O. 13084, EPA has recently

conducted seminars with the tribal

governments. However, there were no

concerns raised on any issues that are

covered in this rule.

F. Regulatory Flexibility

EPA has determined that it is not

necessary to prepare a regulatory

flexibility analysis in connection with

this final rule. EPA has also determined

that this action will not have a

significant economic impact on a

substantial number of small entities.

Two of the amendments made by this

rule, the addition of RMP data elements

and the conversion of SIC codes to

NAICS codes, impose only minimal

burden on small entities. Moreover,

those small businesses that claim CBI

when submitting the RMP will not face

any costs beyond those imposed by the

existing CBI regulations. Even

considering the costs of CBI

substantiation, however, there is no

significant economic impact on a

substantial number of small entities.

EPA estimates that very few small

entities (approximately 500) will claim

CBI and that these few entities represent

a small fraction of the small entities

(less than 5 percent) affected by the

RMP rule. Finally, EPA estimates that

those small businesses filing CBI will

experience a cost which is significantly

less than one percent of their annual

sales. For a more detailed analysis of the
976 Federal Register / Vol. 64, No. 3 /Wednesday, January 6, 1999 /Rules and Regulations

6EPA intends to provide several outreach

mechanisms to assist sources in identifying their

new NAICS code. RMP*Submit will provide a

‘‘pick list’’ that will make it easier for sources to

find the appropriate code. Also, selected NAICS

codes are included in the General Guidance for Risk

Management Programs (July 1998) and in the

industry-specific guidance documents that EPA is

developing. EPA will also utilize the Emergency

Planning and Community Right-to-Know Hotline at

800–424–9346 (or 703–412–9810) to assist sources

in determining the source’s NAICS codes.

small entity impacts of CBI submission,

see Document Number, IV-B–02,

available in the docket for this

rulemaking (see ADDRESSES section).

G. Paperwork Reduction

1. General

The information collection

requirements in this rule have been

submitted for approval to the Office of

Management and Budget (OMB) under

the Paperwork Reduction Act, 44 U.S.C.

3501 et seq. An Information Collection

Request (ICR) document has been

prepared by EPA (ICR No. 1656.05) and

a copy may be obtained from Sandy

Farmer, by mail at Office of Policy,

Regulatory Information Division, U.S.

Environmental Protection Agency

(2137), 401 M St, SW, Washington, DC

20460, by e-mail at

farmer.sandy@epamail.epa.gov or by

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

be downloaded off the Internet at http:/

/www.epa.gov/icr. The information

requirements are not effective until

OMB approves them.

The submission of the RMP is

mandated by section 112(r)(7) of the

CAA and demonstrates compliance with

Part 68 consistent with section 114(c) of

the CAA. The information collected also

will be made available to state and local

governments and the public to enhance

their preparedness, response, and

prevention activities. Certain

information in the RMP may be claimed

as confidential business information

under 40 CFR Part 2 and Part 68.

This rule will impose very little

burden on affected sources. First, EPA

estimates that the new data elements

will require only a nominal burden, .25

hours for a typical source, because

latitude and longitude method and

description will be selected from a list

of options, the Title V permit number is

available to any source to which Title V

applies, and the percentage weight of a

toxic substance in a liquid mixture is

usually provided by the supplier of the

mixture. Second, the NAICS code

provision is simply a change from one

code to another.6 Third, as discussed

above in the preamble, EPA believes

that the CBI provisions of this rule will

add no additional burden beyond what

sources otherwise would face in

complying with the CBI rules in 40 CFR

Part 2. The Agency has calculated the

burden of substantiations made for

purposes of this rule below.

Burden means the total time, effort, or

financial resources expended by persons

to generate, maintain, retain, or disclose

or provide information to or for a

Federal agency. This includes the time

needed to review instructions; develop,

acquire, install, and utilize technology

and system for the purposes of

collecting, validating, and verifying

information, processing and

maintaining information, and disclosing

and providing information; adjust the

existing ways to comply with any

previously applicable instructions and

requirements; train personnel to be able

to respond to a collection of

information; search data sources;

complete and review the collection of

information; and transmit or otherwise

disclose the information.

An agency may not conduct or

sponsor, and a person is not required to

respond to a collection of information

unless it displays a currently valid OMB

control number. The OMB control

numbers for EPA’s regulations are listed

in 40 CFR Part 9 and 48 CFR Chapter

15.

2. CBI Burden

In the Notice of Proposed Rulemaking

for these amendments, EPA proposed to

amend existing 40 CFR Part 68 to add

two sections which would clarify the

procedures for submitting RMPs that

contain confidential business

information (CBI). As proposed, CBI

would be handled in much the same

way as it presently is under other EPA

programs, except that EPA would

require sources claiming CBI to submit

documentation substantiating their CBI

claims at the time such claims were

made and EPA also would not permit

CBI claims for certain data elements

which clearly are not CBI. Aside from

these procedural changes, however, the

proposed rule was substantively

identical to the existing rules governing

the substantiation of CBI claims,

presently codified in 40 CFR Part 2.

At the time it proposed these

amendments, EPA estimated the public

reporting burden for CBI claims to be 15

hours for chemical manufacturers with

Program 3 processes, the only kinds of

facilities that EPA expects to be able to

claim CBI for any RMP data elements.

This estimate was premised upon EPA’s

assessment that it would require 8.5

hours per claim to develop and submit

the CBI substantiation and 6.5 hours to

complete an unsanitized version of the

RMP, for a total of 15 hours. EPA also

estimated that approximately 20 percent

of the 4000 chemical manufacturers (out

of 64,200 stationary sources estimated to

be covered by the RMP rule) may file

CBI claims (800 sources). The 800

sources represent a conservative

projection based on the Agency’s

experience under EPCRA program.

Consequently, the total annual public

reporting burden for filing CBI claims

was estimated to be approximately

12,000 hours over three years (800

facilities multiplied by an average

burden of 15 hours), or an annual

burden of 4,000 hours (Information

Collection Request No. 1656.04).

a. Comment received. EPA received

one comment on the ICR developed for

the proposed rule, opposing up-front

substantiation of any CBI claims. The

commenter stated that ‘‘[t]his is a major

departure from standard EPA procedure,

and would impose a substantial and

unjustified burden for several years.’’

The commenter further added that upfront substantiation would significantly

increase the burden of this rule, and that

up-front substantiation unnecessarily

increases the volume and potential loss

of CBI documents. The commenter also

stated that the estimate of 15 hours for

chemical manufacturers ‘‘seems

unreasonably low,’’ and cited the EPA

burden estimate of 27.7 to 33.2 hours

per claim (with an average of 28.8)

under the trade secret provisions of

EPCRA.

In the preamble to the proposed rule,

EPA estimated that 20 percent of the

4,000 chemical manufacturers will file a

CBI claim. The commenter contends

that ‘‘[t]he EPA analysis * * * excludes

facilities in other industries that will

need to file CBI claims.’’

Finally, the commenter stated that

claiming multiple data elements as CBI

will increase reporting burden.

b. EPA response. Burden Estimates:

EPA disagrees with these comments. As

pointed out above, the requirement to

submit up-front substantiation of CBI

claims imposes no additional burden. In

addition, the total burden of the CBI

provisions of this rule are not

understated. EPA has re-examined its

analysis in light of the commenter’s

concerns and has determined—contrary

to the commenter’s claim—that its

initial estimate of the total burden

associated with preparing and claiming

CBI was likely too conservative. As

explained below, the Agency’s best

available information indicates that the

process of documenting and submitting

a claim of CBI should impose a burden

of approximately 9.5 hours per CBI

claimant.

First, EPA believes that the

requirement to submit, at the time a

source claims information as CBI,
Federal Register / Vol. 64, No. 3 /Wednesday, January 6, 1999 /Rules and Regulations 977

substantiation demonstrating that the

material truly is CBI imposes no burden

on sources beyond that which presently

exists under EPA’s CBI regulations in

Part 2. In order to decide whether they

might properly claim CBI for a given

piece of information, a source must

determine if the criteria stated in section

2.208 of 40 CFR Part 2 are satisfied.

Naturally, a source goes through this

process before a CBI claim is made. EPA

agrees that most programs do not

require the information that forms the

basis for the substantiation to be

submitted at the time of the claim;

however, a facility must still determine

whether or not a claim can be

substantiated. Because existing rules

require sources to formulate a legitimate

basis for claiming CBI, even if those

rules do not require immediate

documentation, and because the Agency

fully expects requests for RMP

information which will necessitate

sources’ submitting such

documentation, EPA believes that upfront submission will not increase the

burden of the regulation.

Second, in response to the

commenter’s claim that the Agency had

underestimated the total burden

associated with CBI claims, EPA

undertook a review of recent

information collection requests (ICRs)

covering data similar to that required to

be submitted in an RMP. Initially, EPA

examined the ICR prepared for Part 2

itself (ICR No. 1665.02, OMB Control

No. 2020–0003). Under an analysis

contained in the Statement of Support

for the ICR, the Agency estimated that

it takes approximately 9.4 hours to

substantiate claims of CBI, prepare

documentation, and submit such

documentation to EPA. Next, the

Agency reviewed a survey conducted by

the Agency (under Office of

Management and Budget clearance

#2070–0034), to present the average

burden associated with indicating

confidential business information

claims for certain data elements under

the proposed inventory update rule

(IUR) amendment under TSCA section

8. This survey specifically asked

affected industry how long it would take

to prepare CBI claims for two data

elements—chemical identity and

production volume range information.

Part 68 also requires similar information

(e.g., chemical identity and maximum

quantity in a process) to be included in

a source’s RMP and, indeed, EPA

anticipates that they will be the data

elements most likely to be claimed CBI.

The average burden estimates for

chemical identity were between 1.82

and 3.13 hours, and the average burden

estimates for production volume in

ranges were between 0.87 and 2.08

hours. Thus, assuming that the average

source claims both chemical identity

and the maximum quantity in a process

as CBI, a conservative estimate for the

reporting burden would be 5.21 hours.

Finally, EPA examined the burden

estimate upon which it relied at

proposal. That estimate predicted that

the average CBI claim would take 15

hours, of which 8.5 would be

developing and submitting the CBI

claim, and 6.5 would be completing an

unsanitized version of the RMP. In view

of EPA’s current plan not to require a

source claiming CBI to submit a full,

unsanitized RMP, but instead to submit

only the particular elements claimed as

CBI, the Agency expects the latter

burden to decrease to 1 hour, for a total

burden of 9.5 hours.

In light of its extensive research of the

burden hours involved in preparing and

submitting CBI claims, EPA believes

that the total burden estimate was not

understated in the April proposal.

Rather, other ICRs and the ICR proposal,

combined with the changes to the

method of documenting CBI claims,

indicate that a burden estimate between

5.21 and 9.5 hours is appropriate for

this final rule. EPA has selected the

most conservative of these, 9.5 hours, in

its ICR for this final rule.

EPA rejected one ICR’s burden

estimate as being inapplicable to the

present rulemaking. Although the

commenter urged the Agency to adopt

the estimate associated with trade secret

claims under EPCRA (28 hours), EPA

believes that the estimates discussed

above are more accurate for several

reasons. First, the EPCRA figures are

based upon a survey with a very small

sample size, as compared to the TSCA

survey cited previously. Second, most

(if not all) of the facilities submitting

RMPs are likely to already be reporting

under sections 311 and 312 or section

313 of EPCRA, and many of the

manufacturers submitting an RMP are

subject to TSCA reporting requirements;

thus, most sources likely to claim CBI

for an RMP data element will have

already done some analysis of whether

or not such information would reveal

legitimately confidential matter.

Other Facilities Can Claim CBI: The

Agency does not agree with the

commenter’s claim that facilities other

than chemical manufacturers might be

expected to claim CBI for information

contained in their RMPs. The other

industries affected by the RMP rule (e.g.,

propane retailers, publicly owned

treatment works) will not be disclosing

in the RMP information that is likely to

cause substantial harm to the business’s

competitive position. For example,

covered public drinking water and

wastewater treatment plants generally

use common regulated substances in

standard processes (i.e., chlorine used

for disinfection). Also, covered

processes at many sources involve the

storage of regulated substances that the

sources sell (e.g., propane, ammonia), so

the processes are already public

knowledge. Other covered processes

involve the use of well-known

combinations of regulated substances

such as refrigerants. Therefore, it is not

likely that these businesses would claim

information as CBI.

As a point of comparison, EPA notes

that of the 869,000 facilities that are

estimated to be required to report under

sections 311 and 312 of EPCRA,

approximately 58 facilities have

submitted trade secret claims for under

those sections. For this reason, EPA

believes the estimate of 800 sources

may, in fact, be an overestimate of the

number of sources claiming CBI.

Reporting Multiple Data Elements:

The Agency disagrees with the

commenters assertion that it has

underestimated the reporting burden on

sources’ claiming multiple data

elements as CBI. The burden figures

stated above are based on the Agency’s

estimates of the average number of data

elements that a typical source will likely

claim CBI.

Public reporting of the new RMP data

elements is estimated to require an

average of .25 hours for all sources

(64,200 sources) and substantiating CBI

claims is estimated to take

approximately 9.5 hours for certain

chemical manufacturing sources (800

sources). The aggregate increase in

burden over that estimated in the

previous Information Collection Request

(ICR) for part 68 is estimated to be about

23,650 hours over three years, or an

annual burden of 7,883 hours for the

three years covered by the ICR.

H. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), P.L. 104–

4, establishes requirements for Federal

agencies to assess the effects of their

regulatory actions on State, local, and

tribal governments and the private

sector. Under section 202 of the UMRA,

EPA generally must prepare a written

statement, including a cost-benefit

analysis, for proposed and final rules

with ‘‘Federal mandates’’ that may

result in expenditures to State, local,

and tribal governments, in the aggregate,

or to the private sector, of $100 million

or more in any one year. Before

promulgating an EPA rule for which a

written statement is needed, section 205
978 Federal Register / Vol. 64, No. 3 /Wednesday, January 6, 1999 /Rules and Regulations

of the UMRA generally requires EPA to

identify and consider a reasonable

number of regulatory alternatives and

adopt the least costly, most costeffective or least burdensome alternative

that achieves the objectives of the rule.

The provisions of section 205 do not

apply when they are inconsistent with

applicable law. Moreover, section 205

allows EPA to adopt an alternative other

than the least costly, most cost-effective

or least burdensome alternative if the

Administrator publishes with the final

rule an explanation why that alternative

was not adopted. Before EPA establishes

any regulatory requirements that may

significantly or uniquely affect small

governments, including tribal

governments, it must have developed

under section 203 of the UMRA a small

government agency plan. The plan must

provide for notifying potentially

affected small governments, enabling

officials of affected small governments

to have meaningful and timely input in

the development of EPA regulatory

proposals with significant Federal

intergovernmental mandates, and

informing, educating, and advising

small governments on compliance with

the regulatory requirements.

EPA has determined that this rule

does not contain a Federal mandate that

may result in expenditures of $100

million or more for state, local, and

tribal governments, in the aggregate, or

the private sector in any one year. The

EPA has determined that the total

nationwide capital cost for these rule

amendments is zero and the annual

nationwide cost for these amendments

is less than $1 million. Thus, today’s

rule is not subject to the requirements

of sections 202 and 205 of the Unfunded

Mandates Act.

EPA has determined that this rule

contains no regulatory requirements that

might significantly or uniquely affect

small governments. Small governments

are unlikely to claim information

confidential, because sources owned or

operated by these entities (e.g., drinking

water and waste water treatment

systems), handle chemicals that are

known to public. The new data

elements and the conversion of SIC

codes to NAICS codes impose only

minimal burden on these entities.

I. National Technology Transfer and

Advancement Act

Section 12(d) of the National

Technology Transfer and Advancement

Act of 1995 (‘‘NTTAA’’), Pub L. 104–

113, section 12(d)(15 U.S.C. 272 note),

directs EPA to use voluntary consensus

standards in its regulatory activities

unless to do so would be inconsistent

with applicable law or otherwise

impractical. Voluntary consensus

standards are technical standards (e.g.,

materials specifications, test methods,

sampling procedures, business

practices) that are developed or adopted

by voluntary consensus standards

bodies. The NTTAA requires EPA to

provide Congress, through OMB,

explanations when the Agency decides

not to use available and applicable

voluntary consensus standards.

This action does not involve technical

standards. Therefore, EPA did not

consider the use of any voluntary

consensus standards.

J. Congressional Review Act

The Congressional Review Act, 5

U.S.C. section 801 et seq., as added by

the Small Business Regulatory

Enforcement Fairness Act of 1996,

generally provides that before a rule

may take effect, the agency

promulgating the rule must submit a

rule report, which includes a copy of

the rule, to each House of the Congress

and to the Comptroller General of the

United States. EPA will submit a report

containing this rule and other required

information to the U.S. Senate, the U.S.

House of Representatives, and the

Comptroller General of the United

States prior to publication of the rule in

the Federal Register. This action is not

a ‘‘major rule’’ as defined by 5 U.S.C.

section 804(2). This rule will be

effective February 5, 1999.

APPENDIX TO PREAMBLE—DATA ELEMENTS THAT MAY NOT BE CLAIMED AS CBI

Rule element Comment

68.160(b)(1) Stationary source name, street,

city, county, state, zip code, latitude, and longitude, method for obtaining latitude and longitude, and description of location that latitude and longitude represent.

This information is filed with EPA and other agencies under other regulations and is made

available to the public and, therefore, does not meet the criteria for CBI claims. It is also

available in business and other directories.

68.160(b)(2) Stationary source Dun and Bradstreet number.

68.160(b)(3) Name and Dun and Bradstreet

number of the corporate parent company.

68.160(b)(4) The name, telephone number, and

mailing address of the owner/operator.

68.160(b)(5) The name and title of the person

or position with overall responsibility for RMP

elements and implementation.

This information provides no information that would affect a source’s competitive position.

68.160(b)(6) The name, title, telephone number,

and 24-hour telephone number of the emergency contact.

This information is filed with state and local agencies under EPCRA and is made available to

the public and, therefore, does not meet the criteria for CBI claims.

68.160(b)(7) Program level and NAICS code of

the process.

This information provides no information that would affect a source’s competitive position.

68.160(b)(8) The stationary source EPA identifier.This information provides no information that would affect a source’s competitive position.

68.160(b)(10) Whether the stationary source is

subject to 29 CFR 1910.119.

This information provides no information that would affect a source’s competitive position.

68.160(b)(11) Whether the stationary source is

subject to 40 CFR Part 355.

Sources are required to notify the state and local agencies if they are subject to this rule; this

information is available to the public and, therefore, does not meet the criteria for CBI

claims.

68.160(b)(12) If the stationary source has a

CAA Title V operating permit, the permit number.

This information will be known to state and federal air agencies and is available to the public

and, therefore, does not meet the criteria for CBI claims.
Federal Register / Vol. 64, No. 3 /Wednesday, January 6, 1999 /Rules and Regulations 979

APPENDIX TO PREAMBLE—DATA ELEMENTS THAT MAY NOT BE CLAIMED AS CBI—Continued

Rule element Comment

68.160(b)(13) The date of the last safety inspection and the identity of the inspecting entity.This information provides no information that would affect a source’s competitive position.

68.165(b)(4) Basis of the results (give model

name if used).

Without the chemical name and quantity, this reveals no business information.

68.165(b)(9) Wind speed and atmospheric stability class (toxics only).This information provides no information that would affect a source’s competitive position.

68.165(b)(10) Topography (toxics only) ............. Without the chemical name and quantity, this reveals no business information.

68.165(b)(11) Distance to an endpoint ............... By itself, this information provides no confidential information. Other elements that would reveal chemical identity or quantity may be claimed as CBI.

68.165(b)(12) Public and environmental receptors within the distance.By itself, this information provides no confidential information. Other elements that would reveal chemical identity or quantity may be claimed as CBI.

68.168 Five-year accident history ....................... Sources are required to report most of these releases and information (chemical released,

quantity, impacts) to the federal, state, and local agencies under CERCLA and EPCRA;

these data are available to the public and, therefore, do not meet the criteria for CBI claims.

Much of this information is also available from the public media.

68.170(b), (d), (e)(1), and (f)–(k)

68.175(b), (d), (e)(1), and (f)–(p)

NAICS code, prevention program compliance dates and information.NAICS codes and the prevention program compliance dates and information provide no information that would affect a source’s competitive position.

68.180 Emergency response program ............... This information provides no information that would affect a source’s competitive position.

List of Subjects in 40 CFR Part 68

Environmental protection,

Administrative practice and procedure,

Air pollution control, Chemicals,

Hazardous substances,

Intergovernmental relations, Reporting

and recordkeeping requirements.

Dated: December 29, 1998.

Carol M. Browner,

Administrator.

For the reasons set out in the

preamble, title 40, chapter I, subchapter

C, part 68 of the Code of Federal

Regulations is amended to read as

follows:

PART 68—CHEMICAL ACCIDENT

PREVENTION PROVISIONS

1. The authority citation for Part 68

continues to read as follows:

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

7661–7661f.

2. Section 68.3 is amended by

removing the definition of SIC and by

adding in alphabetical order the

definition for NAICS to read as follows:

§ 68.3 Definitions.

* * * * *

NAICS means North American

Industry Classification System.

* * * * *

3. Section 68.10 is amended by

revising paragraph (d)(1) to read as

follows:

§ 68.10 Applicability.

* * * * *

(d) * * *

(1) The process is in NAICS code

32211, 32411, 32511, 325181, 325188,

325192, 325199, 325211, 325311, or

32532; or

* * * * *

4. Section 68.42 is amended by

revising paragraph (b)(3), redesignating

paragraphs (b)(4) through (b)(10) as

paragraphs (b)(5) through (b)(11) and by

adding a new paragraph (b)(4) to read as

follows:

§ 68.42 Five-year accident history.

* * * * *

(b) * * *

(3) Estimated quantity released in

pounds and, for mixtures containing

regulated toxic substances, percentage

concentration by weight of the released

regulated toxic substance in the liquid

mixture;

(4) Five- or six-digit NAICS code that

most closely corresponds to the process;

* * * * *

5. Section 68.79 is amended by

revising paragraph (a) to read as follows:

§ . 68.79 Compliance audits.

(a) The owner or operator shall certify

that they have evaluated compliance

with the provisions of this subpart at

least every three years to verify that

procedures and practices developed

under this subpart are adequate and are

being followed.

* * * * *

6. Section 68.150 is amended by

adding paragraph (e) to read as follows:

§ 68.150 Submission.

* * * * *

(e) Procedures for asserting that

information submitted in the RMP is

entitled to protection as confidential

business information are set forth in

§§ 68.151 and 68.152.

7. Section 68.151 is added to read as

follows:

§ 68.151 Assertion of claims of

confidential business information.

(a) Except as provided in paragraph

(b) of this section, an owner or operator

of a stationary source required to report

or otherwise provide information under

this part may make a claim of

confidential business information for

any such information that meets the

criteria set forth in 40 CFR 2.301.

(b) Notwithstanding the provisions of

40 CFR part 2, an owner or operator of

a stationary source subject to this part

may not claim as confidential business

information the following information:

(1) Registration data required by

§ 68.160(b)(1) through (b)(6) and (b)(8),

(b)(10) through (b)(13) and NAICS code

and Program level of the process set

forth in § 68.160(b)(7);

(2) Offsite consequence analysis data

required by § 68.165(b)(4), (b)(9), (b)(10),

(b)(11), and (b)(12).

(3) Accident history data required by

§ 68.168;

(4) Prevention program data required

by § 68.170(b), (d), (e)(1), (f) through (k);

(5) Prevention program data required

by § 68.175(b), (d), (e)(1), (f) through (p);

and

(6) Emergency response program data

required by § 68.180.

(c) Notwithstanding the procedures

specified in 40 CFR part 2, an owner or

operator asserting a claim of CBI with

respect to information contained in its

RMP, shall submit to EPA at the time it

submits the RMP the following:

(1) The information claimed

confidential, provided in a format to be

specified by EPA;
980 Federal Register / Vol. 64, No. 3 /Wednesday, January 6, 1999 /Rules and Regulations

(2) A sanitized (redacted) copy of the

RMP, with the notation ‘‘CBI’’

substituted for the information claimed

confidential, except that a generic

category or class name shall be

substituted for any chemical name or

identity claimed confidential; and

(3) The document or documents

substantiating each claim of confidential

business information, as described in

§ 68.152.

8. Section 68.152 is added to read as

follows:

§ 68.152 Substantiating claims of

confidential business information.

(a) An owner or operator claiming that

information is confidential business

information must substantiate that claim

by providing documentation that

demonstrates that the claim meets the

substantive criteria set forth in 40 CFR

2.301.

(b) Information that is submitted as

part of the substantiation may be

claimed confidential by marking it as

confidential business information.

Information not so marked will be

treated as public and may be disclosed

without notice to the submitter. If

information that is submitted as part of

the substantiation is claimed

confidential, the owner or operator must

provide a sanitized and unsanitized

version of the substantiation.

(c) The owner, operator, or senior

official with management responsibility

of the stationary source shall sign a

certification that the signer has

personally examined the information

submitted and that based on inquiry of

the persons who compiled the

information, the information is true,

accurate, and complete, and that those

portions of the substantiation claimed as

confidential business information

would, if disclosed, reveal trade secrets

or other confidential business

information.

9. Section 68.160 is amended by

revising paragraphs (b)(1), (b)(7), and

(b)(12) and adding paragraphs (b)(14)

through (b)(18) to read as follows:

§ 68.160 Registration.

* * * * *

(b) * * *

(1) Stationary source name, street,

city, county, state, zip code, latitude and

longitude, method for obtaining latitude

and longitude, and description of

location that latitude and longitude

represent;

* * * * *

(7) For each covered process, the

name and CAS number of each

regulated substance held above the

threshold quantity in the process, the

maximum quantity of each regulated

substance or mixture in the process (in

pounds) to two significant digits, the

five- or six-digit NAICS code that most

closely corresponds to the process, and

the Program level of the process;

* * * * *

(12) If the stationary source has a CAA

Title V operating permit, the permit

number; and

* * * * *

(14) Source or Parent Company E-Mail

Address (Optional);

(15) Source Homepage address

(Optional)

(16) Phone number at the source for

public inquiries (Optional);

(17) Local Emergency Planning

Committee (Optional);

(18) OSHA Voluntary Protection

Program status (Optional);

10. Section 68.165 is amended by

revising paragraph (b) to read as follows:

§ 68.165 Offsite consequence analysis.

* * * * *

(b) The owner or operator shall

submit the following data:

(1) Chemical name;

(2) Percentage weight of the chemical

in a liquid mixture (toxics only);

(3) Physical state (toxics only);

(4) Basis of results (give model name

if used);

(5) Scenario (explosion, fire, toxic gas

release, or liquid spill and evaporation);

(6) Quantity released in pounds;

(7) Release rate;

(8) Release duration;

(9) Wind speed and atmospheric

stability class (toxics only);

(10) Topography (toxics only);

(11) Distance to endpoint;

(12) Public and environmental

receptors within the distance;

(13) Passive mitigation considered;

and

(14) Active mitigation considered

(alternative releases only);

11. Section 68.170 is amended by

revising paragraph (b) to read as follows:

§ 68.170 Prevention program/Program 2.

* * * * *

(b) The five- or six-digit NAICS code

that most closely corresponds to the

process.

* * * * *

12. Section 68.175 is amended by

revising paragraph (b) to read as follows:

§ 68.175 Prevention program/Program 3.

* * * * *

(b) The five- or six-digit NAICS code

that most closely corresponds to the

process.

* * * * *

13. Section 68.180 is amended by

revising paragraph (b) to read as follows:

§ 68.180 Emergency response program.

* * * * *

(b) The owner or operator shall

provide the name and telephone

number of the local agency with which

emergency response activities and the

emergency response plan is

coordinated.

* * * * *

[FR Doc. 99–231 Filed 1–5–99; 8:45 am]

BILLING CODE 6560–50–P