[Federal Register Volume 64, Number 3 (Wednesday, January 6, 1999)]
[Rules and Regulations]
[Pages 964-980]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-231]



[[Page 963]]

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Part IV





Environmental Protection Agency





_______________________________________________________________________



40 CFR Part 68



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

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

[[Page 964]]



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.

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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 Sec. 68.130 
and the applicability criteria under Sec. 68.10. If you have questions 
regarding applicability of this action to a particular entity, consult 
the hotline or persons listed in the preceding FOR FURTHER INFORMATION 
CONTACT section.

Table of Contents

I. Introduction and Background
    A. Statutory Authority
    B. Background
II. Summary of the Final Rule
III. Discussion of Issues
    A. NAICS Codes
    B. RMP Data Elements
    C. Prevention Program Reporting
    D. Confidential Business Information
    E. Other Issues
    F. Technical Corrections
IV. Section-by-Section Discussion of the Final Rule
V. Judicial Review
VI. Administrative Requirements
    A. Docket
    B. Executive Order 12866
    C. Executive Order 12875
    D. Executive Order 13045
    E. Executive Order 13084
    F. Regulatory Flexibility
    G. Paperwork Reduction
    H. Unfunded Mandates Reform Act
    I. National Technology Transfer and Advancement Act
    J. Congressional Review Act

I. Introduction and Background

A. Statutory Authority

    These amendments are being promulgated under sections 112(r) and 
301(a)(1) of the Clean Air Act (CAA) as amended (42 U.S.C. 7412(r), 
7601(a)(1)).

B. Background

    The 1990 CAA Amendments added section 112(r) to provide for the 
prevention and mitigation of accidental chemical releases. Section 
112(r) mandates that EPA promulgate a list of ``regulated substances,'' 
with threshold quantities. Processes at stationary sources that contain 
a threshold quantity of a regulated substance are subject to accidental 
release prevention regulations promulgated under CAA section 112(r)(7). 
EPA promulgated the list of regulated substances on January 31, 1994 
(59 FR 4478) (the ``List Rule'') and the accidental release prevention 
regulations creating the risk management program requirements on June 
20, 1996 (61 FR 31668) (the ``RMP Rule''). Together, these two rules 
are codified as 40 CFR Part 68. EPA amended the List Rule on August 25, 
1997 (62 FR 45132), to change the listed concentration of hydrochloric 
acid. On January 6, 1998 ( 63 FR 640), EPA amended the List Rule to 
delist Division 1.1 explosives (classified by DOT), to clarify certain 
provisions related to regulated flammable substances and to clarify the 
transportation exemption.
    Part 68 requires that sources with more than a threshold quantity 
of a regulated substance in a process develop and implement a risk 
management program that includes a five-year accident history, offsite 
consequence analyses, a prevention

[[Page 965]]

program, and an emergency response program. In Part 68, processes are 
divided into three categories (Programs 1 through 3). Processes that 
have no potential impact on the public in the case of accidental 
releases have minimal requirements (Program 1). Processes in Programs 2 
and 3 have additional requirements based on the potential for offsite 
consequences associated with the worst-case accidental release and 
their accident history. Program 3 is also triggered if the processes 
are subject to OSHA's Process Safety Management (PSM) Standard. By June 
21, 1999, sources must submit to a location designated by EPA, a risk 
management plan (RMP) that summarizes their implementation of the risk 
management program.
    When EPA promulgated the risk management program regulations, it 
stated that it intended to work toward electronic submission of RMPs. 
The Accident Prevention Subcommittee of the CAA Advisory Committee 
convened an Electronic Submission Workgroup to examine technical and 
practical issues associated with creating a national electronic 
repository for RMPs. Based on workgroup recommendations, EPA is in the 
process of developing two systems, a user-friendly PC-based submission 
system (RMP*Submit) and a database of RMPs (RMP*Info).
    The Electronic Submission Workgroup also recommended that EPA add 
some mandatory and optional data elements to the RMP and asked EPA to 
clarify how confidential business information (CBI) submitted in the 
RMP would be handled. Based on these recommendations and requests for 
clarifications, EPA proposed amendments to Part 68 on April 17, 1998 
(63 FR 19216). These amendments proposed to replace the use of Standard 
Industrial Classification (SIC) codes with the North American Industry 
Classification System (NAICS) codes, add four mandatory data elements 
to the RMP, add five optional data elements to the RMP, establish 
specific requirements for submission of information claimed CBI, and 
make technical corrections and clarifications to the rule. EPA received 
47 written comments on the proposed rule. Today's rule reflects EPA's 
consideration of all comments; major issues raised by commenters and 
EPA's responses are discussed in Section III of this preamble. A 
summary of all comments submitted and EPA's responses can be found in a 
document entitled, Accidental Release Prevention Requirements; Risk 
Management Programs Under Clean Air Act Section 112(r)(7); Amendments: 
Summary and Response to Comments, in the Docket (see ADDRESSES).

II. Summary of the Final Rule

NAICS Codes

    On January 1, 1997, the U.S. Government, in cooperation with the 
governments of Canada and Mexico, adopted a new industry classification 
system, the North American Industry Classification System (NAICS), to 
replace the Standard Industrial Classification (SIC) codes (April 9, 
1997, 62 FR 17288). The applicability of some Part 68 requirements 
(i.e., Program 3 prevention requirements) is determined, in part, by 
SIC codes, and Part 68 also requires the reporting of SIC codes in the 
RMP. Therefore, EPA is revising Part 68 to replace all references to 
``SIC code'' with ``NAICS code.'' In addition, EPA is replacing, as 
proposed, the nine SIC codes subject to Program 3 prevention program 
requirements with ten NAICS codes, as follows:

NAICS  Sector
32211  Pulp mills
32411  Petroleum refineries
32511  Petrochemical manufacturing
325181  Alkalies and chlorine
325188  All other inorganic chemical manufacturing
325192  Other cyclic crude and intermediate manufacturing
325199  All other basic organic chemical manufacturing
325211  Plastics and resins
325311  Nitrogen fertilizer
32532  Pesticide and other agricultural chemicals

NAICS codes are either five or six digits, depending on the degree to 
which the sector is subdivided.

RMP Data Elements

    As proposed, EPA is adding four new data elements to the RMP: 
latitude/longitude method and description, CAA Title V permit number, 
percentage weight of a toxic substance in a liquid mixture, and NAICS 
code for each process that had an accidental release reported in the 
five-year accident history. EPA is also adding five optional data 
elements: local emergency planning committee (LEPC) name, source or 
parent company e-mail address, source homepage address, phone number at 
the source for public inquiries, and status under OSHA's Voluntary 
Protection Program (VPP).

Prevention Program Reporting

    EPA is not revising Sections 68.170 and 68.175 as proposed. 
Prevention program reporting, therefore, will not be changed to require 
a prevention program for each portion of a process for which a Process 
Hazard Analysis (PHA) or hazard review was conducted. Instead, EPA 
plans to create functions within RMP*Submit to provide stationary 
sources with a flexible way of explaining the scope and content of each 
prevention program they implement at their facility.

Confidential Business Information

    EPA is clarifying how confidential business information (CBI) 
submitted in the RMP will be handled. EPA has determined that the 
information required by certain RMP data elements does not meet the 
criteria for CBI and therefore may not be claimed as such. The Agency 
is also requiring submission of substantiation at the time a CBI claim 
is filed.
    Finally, EPA is promulgating several of the technical corrections 
and clarifications, as proposed in the Federal Register, April 17, 1998 
(63 FR 19216).

III. Discussion of Issues

    EPA received 47 comments on the proposed rule. The commenters 
included chemical manufacturers, petroleum refineries, environmental 
groups, trade associations, a state agency, and members of the public. 
The major issues raised by commenters are addressed briefly below. The 
Agency's complete response to comments received on this rulemaking is 
available in the docket (see ADDRESSES). The document is titled 
Accidental Release Prevention Requirements; Risk Management Programs 
Under Clean Air Act Section 112(r)(7); Amendments: Summary and Response 
to Comments.

A. NAICS Codes

    Two commenters asked that sources be given the option to use either 
SIC codes or NAICS codes, or both, in their initial RMP because the 
NAICS system is new and may not be familiar to sources. EPA disagrees 
with this suggestion. EPA intends to provide several outreach 
mechanisms to assist sources in identifying their new NAICS code. 
RMP*Submit will provide a ``pick list'' that will make it easier for 
sources to find the appropriate code. Also, selected NAICS codes are 
included in the General Guidance for Risk Management Programs (July 
1998) and in the industry-specific guidance documents that EPA is 
developing. EPA will also utilize the Emergency Planning and Community 
Right-to-Know Hotline at 800-424-9346 (or 703-412-9810) and its web 
site at www.epa.gov/ceppo/, to assist sources in determining the 
source's NAICS codes. EPA also notes that the Internal Revenue Service 
is planning to require businesses to

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provide NAICS-based activity codes on their 1998 tax returns, so many 
sources will have become familiar with their NAICS codes by the June 
1999 RMP deadline.
    EPA believes it is necessary and appropriate to change from SIC 
codes to NAICS codes at this time. EPA recognizes that NAICS codes were 
developed for statistical purposes by the Office of Management and 
Budget (OMB). In the notice of April 9, 1997 (62 FR 17288) OMB stated 
that the ``[u]se of NAICS for nonstatistical purposes (e.g., 
administrative, regulatory, or taxation) will be determined by the 
agency or agencies that have chosen to use the SIC for nonstatistical 
purposes.'' EPA has determined that NAICS is appropriate in this rule 
for several reasons. First, the reason the SIC codes were replaced by 
NAICS codes is because the SIC codes no longer accurately represent 
today's industries. The SIC codes will become more obsolete over time 
because OMB will no longer be supporting the SIC codes; therefore, no 
new or modified SIC codes will be developed to reflect future changes 
in industries. Second, as the SIC codes become obsolete, most users of 
SIC codes will likely change to NAICS codes over time, so future data 
sharing and consistency will be enhanced by use of NAICS codes in the 
RMP program. Third, through this rulemaking process, EPA has analyzed 
specific conversions of SIC codes to NAICS codes for the RMP program 
and was able to identify NAICS codes that were applicable to fulfilling 
the purposes of this rule. Finally, because the RMP reporting 
requirement is new, it is reasonable to begin the program with NAICS 
codes now rather than converting to them later.
    Three commenters expressed support for the ten NAICS codes that EPA 
proposed to use in place of the nine SIC codes referenced in section 
68.10(d)(1) of Part 68 and one commenter partially objected. Section 
68.10(d)(1) provides that processes in the referenced codes are subject 
to Program 3 requirements (if not eligible for Program 1). One 
commenter objected to EPA's proposal to replace the SIC code for pulp 
and paper mills with only the NAICS code for pulp mills that do not 
also produce paper or paperboard. The commenter asked EPA to reexamine 
the accident history of paper and paperboard mills. As discussed in the 
preamble of the proposed rule, EPA reviewed the accident history data 
prior to proposing the new NAICS codes. Neither facilities that 
classify themselves as paper mills (NAICS Code 322121) nor paperboard 
mills (NAICS code 32213) met the accident history criteria that EPA 
used to select industrial sectors for Program 3.
    EPA notes that a pulp process at a paper or a paperboard mill may 
still be subject to Program 3 as long as the process contains more than 
a threshold quantity of a regulated substance and is not eligible for 
Program 1. Section 68.10(d)(1) uses industrial codes to classify 
processes, not facilities as a whole. Since section 68.10(d)(1) will 
continue to list the code for pulp mills, pulpmaking processes will 
continue to be subject to Program 3. In addition, under section 
68.10(d)(2), paper processes will be in Program 3 (unless eligible for 
Program 1) if they are subject to OSHA's Process Safety Management 
(PSM) standard. Most pulp and paper processes are, in fact, subject to 
this standard.
    One commenter objected to assigning NAICS codes to a process rather 
than the source as a whole. EPA first notes that the requirement to 
assign a SIC code to a process was adopted in the original RMP 
rulemaking two years ago. Today's rule does not change that requirement 
except to substitute NAICS for SIC codes. In any event, EPA is today 
modifying Part 68 to clarify that sources provide the NAICS code that 
``most closely corresponds to the process.'' EPA believes that 
assigning an industry code to a process will help implementing agencies 
and the public understand what the covered process does; using the code 
makes it possible to provide this information without requiring a 
detailed explanation from the source. In addition, the primary NAICS 
code for a source as a whole may not reflect the activity of the 
covered process.

B. RMP Data Elements

    EPA proposed to add, as optional RMP data elements: local emergency 
planning committee (LEPC), source (or parent company) E-mail address, 
source homepage address, phone number at the source for public 
inquiries, and OSHA Voluntary Protection Program (VPP) status. EPA also 
proposed to add, as mandatory data elements: method and description of 
latitude/longitude, Title V permit number, percent weight of a toxic 
substance in a liquid mixture, and NAICS code (only in the five-year 
accident history section).
    Commenters generally supported the new optional data elements. One 
commenter requested that the optional elements be made mandatory. EPA 
disagrees with this comment. While the elements are useful, many 
sources covered by this rule will not have e-mail addresses or home 
pages. The RMP will provide both addresses and phone numbers so that 
the public will have methods to reach the source. EPA has learned that 
in some areas there are no functioning LEPCs, therefore, at this time, 
EPA will not add this as a mandatory data element. However, in most 
cases, the LEPC for an area can be determined by contacting the local 
government or the State Emergency Response Commission (SERC) for which 
the area is located. Therefore, reporting these data elements will 
remain optional at this time.
    One commenter supported adding the listing of local emergency 
planning committee in the RMP data elements as an optional data 
element. The commenter stated that, although it is an optional data 
element, this listing will enhance the ability of local responders and 
emergency planners to adequately prepare and train for emergency 
events.
    Of the data elements that were proposed to be mandatory, one 
commenter objected to the addition of latitude/longitude method and 
description. The commenter stated that it was not clear in the proposal 
why the method and description information is needed. EPA is seeking 
latitude/longitude method and description in accordance with its 
Locational Data Policy. Several EPA regulations require sources to 
provide their latitude and longitude, so that EPA can more readily 
locate facilities and communicate data between Agency offices. Sharing 
of data between EPA offices reduces duplication of information. 
Latitude/longitude method and description provides information needed 
by EPA offices, and other users of the data, to rectify discrepancies 
that may appear in the latitude and longitude information provided by 
the source under various EPA requirements. Documentation of the method 
by which the latitude and longitude are determined and a description of 
the location point referenced by the latitude and longitude (e.g., 
administration building) will permit data users to evaluate the 
accuracy of those coordinates, thus addressing EPA data sharing and 
integration objectives.
    EPA believes this information will also facilitate EPA-State 
coordination of environmental programs, including the chemical accident 
prevention rule. The State/EPA Data Management Program is a successful 
multi-year initiative linking State environmental regulatory agencies 
and EPA in cooperative action. The Program's goals include improvements 
in data quality and data integration based on location identification. 
Therefore, as proposed, the latitude/longitude method and description 
will be added to the existing RMP data

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elements. RMP*Submit will provide a list of methods and descriptions 
from which sources may choose.
    EPA also proposed to require that sources report the percentage 
weight (weight percent) of a toxic substance in a mixture in the 
offsite consequence analysis (OCA) and the accident history sections of 
the RMP. This information is necessary for users of RMP data to 
understand how worst case and alternative release scenarios have been 
modeled. EPA has decided to require reporting of the weight percent of 
toxic substance in a liquid mixture because this information is 
necessary to understand the volatilization rate, which determines the 
downwind dispersion distance of the substance. The volatilization rate 
is affected by the vapor pressure of the substance in the mixture. For 
example, a spill of 70 percent hydrofluoric acid (HF) will volatilize 
more quickly than a spill of the same quantity of HF in a 50 percent 
solution; consequently, over a 10-minute period, the 70 percent 
solution will travel further. Reviewers of the RMP data, including 
local emergency planning committees, need to know the weight percent to 
be able to evaluate the results reported in the offsite consequence 
analysis and the impacts reported in the accident history. Without 
knowing the weight percent of the substance in the mixture, users of 
the data may compare scenarios or incidents that appear to involve the 
same chemical in the same physical state, but in fact involve the same 
chemical held in a different physical state.
    One commenter stated that for gas mixtures, percentage by volume 
(or volume percent) should be required to be reported rather than 
weight percent. In this final rule, EPA does not require reporting of 
the weight percent (or volume percent) of a regulated substance in a 
gas mixture. If a source handles regulated substances in a gaseous 
mixture (e.g., chlorine with hydrogen chloride), the quantity of a 
particular regulated substance in the mixture is what is reported in 
the RMP, since that is what would be released into the air. Its 
percentage weight in the mixture is irrelevant.
    Another commenter objected to this data element, claiming that it 
could result in reverse engineering and create a competitive 
disadvantage. EPA does not believe that this requirement would create a 
competitive disadvantage, since similar information is available to the 
public under Emergency Planning and Community Right-to-Know Act (EPCRA) 
of 1986. Even so, if it were to have such an effect, sources can claim 
this element as CBI if it can meet the criteria for CBI claims in 40 
CFR Part 2. Another commenter stated that the public would be concerned 
if the percentages did not add to 100, in the event that the source 
handles both regulated and non-regulated substances. EPA believes that 
because a source must model only one substance in a release scenario, 
the source need not report the percentages of the other substances in 
the mixture. Therefore, it is expected that the weight percent for 
mixtures would not always add up to 100, because the mixture could 
contain non-regulated substances.
    A third commenter suggested that requiring sources to report 
percentage weight of a toxic substance in a liquid mixture would create 
confusion with the reporting of mixtures containing flammable regulated 
substances.
    In the January 6, 1998 rule (63 FR 640), EPA clarified that 
flammable regulated substances in mixtures are only covered by the RMP 
rule if the entire mixture meets the National Fire Protection 
Association (NFPA) criteria of 4, thus the entire mixture becomes the 
regulated substance. As a result, the percentage of flammables in a 
mixture is not relevant under the rule and the requirement to report 
the percentage weight will only apply to toxic substances in a liquid 
mixture.
    Finally, in the Federal Register notice of June 20, 1996 (61 FR 
31688), EPA clarified the relationship between the risk management 
program and the air permit program under Title V of the CAA for sources 
subject to both requirements. Under section 502(b)(5)(A), permitting 
authorities must have the authority to assure compliance by all covered 
sources with each applicable CAA standard, regulation or requirement, 
including the regulations implementing section 112(r)(7). Requiring 
sources covered by Title V and section 112(r) to provide their Title V 
permit number will help Title V permitting authorities assure that each 
source is complying with the RMP rule.
    In summary, with the exception of adding the phrase ``that most 
closely corresponds to the process'' in sections 68.42(b)(4), 
68.160(b)(7), 68.170(b), and 68.175(b), EPA has decided to finalize the 
optional and mandatory data elements as they were proposed.

C. Prevention Program Reporting

    The final RMP rule, issued June 20, 1996 (61 FR 31668), requires 
sources to report their prevention program for each ``process.'' 
Because the applicable definition of ``process'' is broad, multiple 
production and storage units might be a single, complex ``process.'' 
However, the Agency realizes that some elements of a source's 
prevention program for a process may not be applicable to every portion 
of the process. In such a situation, reporting prevention program 
information for the process as a whole could be misleading without an 
explanation of which prevention program element applies to which part 
of the process. In order to get more specific information on which 
prevention program practices apply to different production and storage 
units within a process, EPA proposed to revise the rule to require 
prevention program reporting for each part of the process for which a 
separate process hazard analysis (PHA) or hazard review was conducted. 
EPA further proposed deleting the second sentence from both sections 
68.170(a) and 68.175(a), which presently states that, ``[i]f the same 
information applies to more than one covered process, the owner or 
operator may provide the information only once, but shall indicate to 
which process the information applies.''
    A number of industry commenters objected to the proposed revisions 
as wrongly assuming that a one-to-one relationship exists between a 
prevention program and a PHA. The commenters asserted that EPA's 
proposed revision did not reflect how facilities conduct PHAs or 
implement prevention measures and would cause significant duplicate 
reporting, creating unnecessary extra work for facility personnel. One 
commenter explained that depending on a source's circumstances, it 
might conduct a PHA for each production line, including all of its 
different units, or it might conduct a PHA for each common element of 
its different production lines. Accordingly, the commenters claimed 
that EPA's proposal to require the owner/operator to submit separate 
prevention program information for every portion of a process covered 
by a PHA would result in multiple submissions of much of the same 
material, and would add no value to process safety or accidental 
release prevention. Commenters also opposed the deletion of the second 
sentence in sections 68.170(a) and 68.175(a). One commenter noted that 
many of the elements of the prevention program will not only be common 
to a process, but will be common to an entire stationary source. Thus 
commenters argued that EPA's proposals would result in redundant 
submittals and place an unjustified burden on the regulated community.
    EPA acknowledges that PHAs do not necessarily determine the scope 
of prevention program measures. Moreover, EPA agrees that duplicative

[[Page 968]]

reporting should be reduced as much as possible. At the same time, EPA, 
implementing agencies, and other users of RMP data need to have 
information that is detailed enough to understand the hazards posed by, 
and the safety practices used for, particular parts of processes and 
equipment. EPA recognizes that some aspects of prevention programs are 
likely to be implemented facility-wide, rather than on a process or 
unit basis, whereas other aspects may apply to a particular process or 
only to particular units within a process. For example, most sources 
are likely to develop an employee participation plan and a system for 
hot work permits facility-wide, rather than on a process or unit basis. 
For sources having processes that include several units (e.g., multiple 
reactors or purification systems), the hazards, process controls, and 
mitigation systems may vary among the individual units. For example, 
one may have a deluge fire control system while another may have a 
runaway reaction quench system.
    EPA has concluded that its proposed changes to prevention program 
reporting would not lead sources to prepare RMPs that accurately and 
efficiently communicate the hazards posed by different aspects of 
covered processes and the safety practices used to address those 
hazards. The Agency now believes that no rule changes are necessary to 
ensure that RMPs convey that information. The current rule already 
requires prevention program reporting, and the issue has been how to 
efficiently convey that information in sufficient detail. EPA believes 
that its electronic program for submitting RMPs can be designed to 
provide for sufficient specificity in prevention program reporting 
without requiring duplicative reporting. In particular, the Agency 
plans to create a comment/text field in RMP*Submit for specifying which 
parts of a prevention program apply to which portions of a particular 
process. For example, if a deluge system only applies to a certain part 
of the overall process, the source would indicate in the comment/text 
screen the portions of the process to which the deluge system applies.
    To reduce the burden of reporting, EPA also plans to create a 
function in RMP*Submit which will allow a source to automatically copy 
prevention program data previously entered for one process to fill 
blank fields in another process's prevention program. The source could 
then edit any of the data elements that are different. For example, 
where the prevention programs for two processes are identical (e.g., 
two identical storage tanks that are considered separate processes), 
the source could copy the data entered for one to fill in the blank 
field for the other. If some of the data elements vary between the 
prevention programs, the source will be able to autofill and change 
only those items that vary among processes or units.
    Although the autofill option will minimize the burden of reporting 
common data elements for those sources filing electronically, EPA has 
decided not to delete the sentence, in both sections 68.170(a) and 
68.175(a), which states, ``[i]f the same information applies to more 
than one covered process, the owner or operator may provide the 
information only once, but shall indicate to which processes the 
information applies '', as proposed.

D. Confidential Business Information (CBI)

1. Background
    A central element of the chemical accident prevention program as 
established by the Clean Air Act and implemented by Part 68 is 
providing state and local governments and the public with information 
about the risk of chemical accidents in their communities and what 
stationary sources are doing to prevent such accidents. As explained in 
the preamble to the final RMP rule (61 FR 31668, June 20, 1996), every 
covered stationary source is required to develop and implement a risk 
management program and provide information about that program in its 
RMP. Under CAA section 112(r)(7)(B)(iii), a source's RMP must be 
registered with EPA and also submitted to the Federal Chemical Safety 
and Hazard Investigation Board (``the Board''), the state in which the 
source is located, and any local entity responsible for emergency 
response or planning. That section also provides that RMPs ``shall be 
available to the public under section 114(c)'' of the CAA. Section 
114(c) gives the public access to information obtained under the Clean 
Air Act except for information (other than emission data) that would 
divulge trade secrets.
    As noted previously, in the final RMP rule EPA announced its plan 
to develop a centralized system for submitting electronic versions of 
RMPs that would reduce the paperwork burden on both industry and 
receiving agencies and provide ready public access to RMP data. Under 
the system, a covered source would submit its RMP on computer diskette, 
which would be entered into a central database that all interested 
parties could access electronically. The system would thus make it 
possible for a single RMP submission to reach all interested parties, 
including those identified in section 112(r)(7)(B)(iii).1
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    An important assumption underlying the Agency's central submission 
plan was that RMPs would rarely, if ever, contain confidential business 
information (CBI). Following publication of the final rule, concerns 
were raised that at least some of the information required to be 
reported in RMPs could be CBI in the case of particular sources. While 
the June 20, 1996 rule provided for protection of CBI under section 
114(c) (see section 68.210(a)), EPA was asked to address how CBI would 
be protected in the context of the electronic programs being developed 
for RMP submission and public access.
    In the April 17, 1998 proposal to revise the RMP rule, EPA made 
several proposals concerning protection of CBI. It first reviewed the 
information requirements for RMPs (sections 68.155-185) and proposed to 
find that certain required data elements would not entail divulging 
information that could meet the test for CBI set forth in the Agency's 
comprehensive CBI regulations at 40 CFR Part 2.\2\ Information provided 
in response to those requirements could not be claimed CBI. EPA also 
requested comment on whether some information that might be claimed as 
CBI (e.g., worst-case release rate or duration) would be ``emission 
data'' and thus publicly available under section 114(c) even if CBI.
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    \2\ Information is CBI if (1) the business has asserted a claim 
which has not expired, been waived, or been withdrawn; (2) the 
business has shown that it has taken and will continue to take 
reasonable steps to protect the information from disclosure; (3) the 
information is not and has not been reasonably obtainable by the 
public (other than governmental bodies) by use of legitimate means; 
(4) no statute requires disclosure of the information; and (5) 
disclosure of the information is likely to cause substantial harm to 
the business' competitive position. 40 CFR section 2.208.
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    EPA administers a variety of statutes pertaining to the protection 
of the environment, each with its own data collection requirements and 
requirements for disclosure of information to the public. In the 
implementation of these statutes, the Agency collects emission, 
chemical, process, waste stream, financial, and other data from 
facilities in many, if not most, sectors of American business. 
Companies may consider some of this information vital to their 
competitive

[[Page 969]]

position, and claim it as confidential business information (CBI).
    In the course of implementing statutes, the Agency may have a need 
to communicate some or all of the information it collects to the public 
as the basis for a rulemaking, to its contractors, or in response to 
requests pursuant to the Freedom of Information Act (FOIA). Information 
found to be CBI is exempt from disclosure under FOIA. To manage both 
CBI claims and FOIA requests, EPA has promulgated in 40 CFR Part 2, 
Subpart B a set of procedures for reviewing CBI claims, releasing 
information found not to be CBI, and where authorized, disclosing CBI. 
Subpart B lists the criteria that information must meet in order to be 
considered CBI, as well as the special handling requirements the Agency 
must follow when disclosing CBI to authorized representatives.
    For RMP requirements that might entail divulging CBI, EPA proposed 
that a source be required to substantiate a CBI claim to EPA at the 
time that it makes the claim. Under EPA's Part 2 regulations, a source 
claiming CBI generally is required to substantiate the claim only when 
EPA needs to make the information public as part of some proceeding 
(e.g., a rulemaking) or EPA receives a request from the public (e.g., 
under the Freedom of Information Act (FOIA)) for the information. In 
view of the public information function of RMPs and the interest 
already expressed by members of the public in them, EPA proposed ``up-
front substantiation'' of CBI claims to ensure that information not 
meeting CBI criteria would be made available to the public as soon as 
possible. This approach of requiring up-front substantiation is the 
same as that used for trade secret claims filed under the Emergency 
Planning and Community Right-to-Know Act (EPCRA) of 1986.\3\
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    \3\ Section 302 of EPCRA (codified in 40 CFR Part 355) requires 
any facility having more than a threshold planning quantity of an 
extremely hazardous substance (EHS) to notify its state emergency 
response commission (SERC) and local emergency planning committee 
(LEPC) that the facility is subject to emergency planning. The vast 
majority of toxic substances listed in 40 CFR Section 68.130 were 
taken from the EHS list. Section 303 of EPCRA requires LEPCs to 
prepare an emergency response plan for the community that is under 
their jurisdiction. Section 303 of EPCRA also requires that 
facilities subject to section 302 shall provide any information 
required by their LEPC necessary for developing and implementing the 
emergency plan. Section 304 of EPCRA requires an immediate 
notification of a release of an EHS or Hazardous Substances listed 
in 40 CFR Section 302.4 above a reportable quantity to state and 
local entities. Section 304 also requires a written follow-up which 
includes among other things, the chemical name, quantity released 
and any known or anticipated health risks associated with the 
release. Sections 311 and 312 of EPCRA (codified in 40 CFR Part 370) 
require facilities that are subject to OSHA Hazard Communication 
Standard (HCS), to provide information to its SERC, LEPC and local 
fire department. This information includes the hazards posed by its 
chemicals, and inventory information, including average daily 
amount, maximum quantity and general location. Section 313 of EPCRA 
(codified in 40 CFR Part 372) requires certain facilities that are 
in specific industries (including chemical manufacturers) and that 
manufacture, process, or otherwise use a toxic chemical above 
specified threshold amounts to report, among other things, the 
annual quantity of the toxic chemical entering each environmental 
medium. Most facilities covered by CAA 112(r) are covered by one or 
more of these sections of EPCRA. Section 322 of EPCRA (codified in 
Part 350) allows facilities to claim only the chemical identity as 
trade secret.
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    In addition, EPA proposed that any source claiming CBI submit two 
versions of its RMP: (1) a redacted (``sanitized''), electronic 
version, which would become part of RMP*Info, and (2) an unsanitized 
(unredacted) paper copy of the RMP (see proposed section 68.151(c)). 
The electronic database of RMPs would contain only the redacted version 
unless and until EPA ruled against all or part of the source's CBI 
claim, in keeping with the Part 2 procedures. In this way, the public 
would have access only to the non-CBI elements of sources' RMPs. EPA 
further stated that state and local agencies could receive the 
unredacted RMPs by requesting them from EPA under the Part 2 
regulations. Those regulations authorize EPA to provide CBI to an 
agency having implementation responsibilities under the CAA if the 
agency either demonstrates that it has the authority under state or 
local law to compel such information directly from the source or that 
it will ``provide adequate protection to the interests of affected 
businesses'' (40 CFR 2.301(h)(3)).
    The following sections of this preamble summarize and respond to 
the comments EPA received on the CBI-related aspects of its proposal. 
At the outset, however, EPA wants to emphasize that it does not 
anticipate many CBI claims being made in connection with RMPs. The 
Agency developed the RMP data elements with the issue of CBI in mind. 
It sought to define data elements that would provide basic information 
about a source's risk management program without requiring it to reveal 
CBI. To have done otherwise would have risked creating RMPs that were 
largely unavailable to the public. EPA continues to believe that the 
required RMP data elements will rarely require that a business divulge 
CBI. The Agency will carefully monitor the CBI claims made. If it 
appears that the number of claims being made is jeopardizing the public 
information objective of the chemical accident prevention program, EPA 
will consider ways of revising RMPs, including further rulemakings or 
revising the underlying program, to ensure that important health and 
safety information is available to the public.
2. RMP Data Elements Found Not CBI
    Fifteen commenters representing environmental groups and members of 
the public opposed allowing some or all RMP data to be claimed as CBI 
in light of the public's interest in the information RMPs will provide. 
A number of commenters urged EPA not to allow the following RMP data 
elements (and supporting documents) to be claimed as CBI:
     Mitigation measures considered by the firm in its offsite 
consequence analysis,
     Major process hazards identified by the firm,
     Process controls in use,
     Mitigation systems in use,
     Monitoring and detection systems in use, and
     Changes since the last hazard review.
    In addition, one commenter contended that even chemical identity 
and quantity should be ineligible for CBI protection, since the 
requirement to submit an RMP only applies to facilities using a few 
well-known, extremely hazardous chemicals, and the public's right to 
know should always outweigh a company's claim to CBI.
    Along the same lines, a number of commenters urged EPA to develop a 
``corporate sunshine rule'' that would allow confidentiality concerns 
to be overridden if the protected information is needed by the public 
and experts to understand and assess safety issues. Another commenter 
recommended that a business claiming a chemical's identity as CBI 
should be required to provide the generic name of the chemical and 
information about its adverse health effects so the public can 
determine the potential risks.
    One commenter argued that some of the RMP data that EPA suggested 
could reveal CBI, (e.g., release rate), were not ``emission data,'' 
because the worst case scenario data are theoretical estimates, and do 
not represent any real emissions, past or present.
    Representatives of the chemical and petroleum industries disagreed 
with EPA's proposal to list the data elements that EPA believed could 
not reveal CBI in any case. These commenters asserted that EPA could 
not anticipate all the ways in which information required by a data 
element might reveal CBI, and accordingly urged the Agency to make

[[Page 970]]

case-by-case determinations on CBI claims. They also contended that 
``emission data'' under section 114(c) does not extend to data on 
possible, as opposed to actual, emissions, and thus that RMP 
information concerning potential accidental releases would not qualify 
as ``emission data,'' which must be made available to the public.
    As pointed out above, an important purpose of the chemical accident 
prevention program required by section 112(r) is to inform the public 
of the risk of accidents in their communities and the methods sources 
are employing to reduce such risks. EPA therefore believes that as much 
RMP data as possible should be available to the public as soon as 
possible. However, section 112(r)(7)(B)(iii) requires that RMPs be made 
``available to the public under section 114(c),'' which provides for 
protection of trade secret information (other than emission data). 
Given the statute's direction to protect whatever trade secret 
information is contained in an RMP, EPA is not authorized to release 
such information even when the public's need for such information 
arguably outweighs a business' interest in its confidentiality. The 
Agency also cannot issue a ``corporate sunshine rule'' that conflicts 
with existing law requiring EPA (and other agencies) to protect trade 
secret information.
    As explained above (and in more detail in the proposed rule), EPA 
examined each RMP data element to determine which would require 
information that might, depending on a business' circumstances, meet 
the CBI criteria set forth in EPA's regulations implementing section 
114(c) and other information-related legal requirements. The point of 
this exercise was to both protect potential trade secret information 
and promote the public information purpose of RMPs by identifying which 
RMP information might reveal CBI in a particular case and by precluding 
CBI claims for information that could not reveal CBI in any case. EPA 
presented the results of its analysis and an explanation of why certain 
data elements could entail the reporting of CBI depending on a 
business' circumstances and why others could not. No commenter provided 
any specific examples or explanations that contradicted the Agency's 
rationale for its determinations of which data elements could or could 
not result in reporting of CBI.
    However, EPA is deleting from the list of 40 CFR Part 68.151(b)(1) 
the reference to 40 CFR Part 68.160(b)(9), to allow for the possibility 
of the number of full-time employees at the stationary source to be 
claimed as CBI. Upon further review, EPA was unable to determine that 
providing the number of employees at the stationary source could never 
entail divulging information that could meet the test for CBI set forth 
in the Agency's comprehensive CBI regulations at 40 CFR Part 2. 
Therefore, EPA has removed this element from the list of data elements 
that can not be claimed CBI in Part 68. With this exception, EPA is 
promulgating the list of RMP data elements for which CBI claims are 
precluded, as proposed (Section 68.151(b)).
    EPA's justifications for its specific CBI findings appear in an 
appendix to this preamble. A more detailed analysis of all RMP data 
elements and CBI determinations is available in the docket (see 
ADDRESSES). The Agency continues to find no reasonable basis for 
anticipating that the listed elements will in any case require a 
business to reveal CBI that is not ``emission data.'' The information 
required by each of the listed data elements either fails to meet the 
criteria for CBI set forth in EPA's CBI regulations at Part 2 or meets 
the Part 2 definition of ``emission data.'' In many cases, the 
information is available to the public through other reports filed with 
EPA, states, or local agencies (e.g., reports required by Emergency 
Planning and Community Right-to-Know Act (EPCRA) sections 312 and 313 
provide general facility identification information and reports of most 
accidental releases are available through several Federal databases 
including EPA's Emergency Release Notification System and Accidental 
Release Information Program databases).
    In order to preclude CBI claims for other data elements, the Agency 
would have to show that the information required by a data element 
either was ``emission data'' under section 114(c) or could not, under 
any circumstances, reveal CBI. As explained below, EPA does not believe 
such a showing can be made for any of the data elements not on the 
list. Therefore, CBI claims made for information required by data 
elements not on the list will be evaluated on a case-by-case basis 
according to the procedures contained in 40 CFR Part 2 (except that 
substantiation will have to accompany the claims, as discussed below).
    The Agency agrees with the commenters who argued that information 
about potential accidental releases is not ``emission data'' under 
section 114(c). EPA's existing policy statement (see 56 FR 7042, Feb. 
21, 1991) on what information may be considered ``emission data'' was 
developed to implement sections 110 and 114(a) of the CAA, which the 
Agency generally invokes when it seeks to gather technical data from a 
source about its actual emissions to the air. While the policy is not 
explicitly limited in its scope, EPA believes it would be inappropriate 
to apply it to RMP data elements concerning hypothetical, as opposed to 
actual, releases to the air. Under the definition of ``emission data'' 
contained in Part 2, information is ``emission data'' if it is (1) 
``necessary to determine the identity, amount, frequency, 
concentration, or other characteristics * * * of any emission which has 
been emitted by the source,'' (2) ``necessary to determine the 
identity, amount, frequency, concentration, or other characteristics * 
* * of the emissions which, under an applicable standard or limitation, 
the source was authorized to emit;'' or (3) general facility 
identification information regarding the source which distinguishes it 
from other sources (40 CFR section 2.301(a)(2)(i) (emphasis added)). 
Under these criteria, EPA has concluded that only the RMP data elements 
relating to source-level registration information (sections 
68.160(b)(1)-(6), (8)-(13)) and the five-year accident history (section 
68.168) are ``emission data.'' Of the RMP data elements, only the five-
year accident history involves actual, past emissions to the 
environment; the other data elements would not, therefore, qualify as 
``emission data'' under the first prong of the Part 2 definition. 
Moreover, the data elements relating to a source's offsite consequence 
analysis, prevention program and emergency response program do not 
attempt to identify or otherwise reflect ``authorized'' emissions; the 
data elements instead reflect the source's potential for accidental 
releases. Accordingly, these data elements would not be ``emission 
data'' under the second prong of the definition. As for the third 
prong, some of the source-level data are ``emission data'' because they 
help identify a source. Most other RMP data elements are reported on a 
process level and are not generally used to distinguish one source from 
another.
    The Agency believes it is unable to show that the remaining data 
elements could not, under any circumstances, reveal CBI. EPA continues 
to believe that it is theoretically possible for the remaining data 
elements (the elements not listed in section 68.151(b)) to reveal CBI 
either directly or through reverse engineering, depending on the 
circumstances of a particular case. At the same time, EPA believes 
that, in practice, the remaining data elements will rarely reveal CBI. 
The purpose of

[[Page 971]]

the data in the RMP is for a source to articulate its hazards, and the 
steps it takes to prevent accidental releases. In general, the kinds of 
information specifying the source's hazards and risk management program 
are not likely to be competitively sensitive.
    In particular, covered processes at the vast majority of stationary 
sources subject to the RMP rule are too common and well-known to 
support a CBI claim for information related to such processes. For 
example, covered public drinking water and wastewater treatment plants 
generally use common regulated substances in standard processes (i.e., 
chlorine used for disinfection). Also, covered processes at many 
sources involve the storage of regulated substances that the sources 
sell (e.g., propane, ammonia), so the processes are already public 
knowledge. Other covered processes involve the use of well-known 
combinations of regulated substances such as refrigerants. RMP 
information regarding these types of processes should not include CBI.
    Even in the case of unusual or unique processes, it is generally 
unlikely that RMP information could be used to reveal CBI through 
reverse engineering. To begin with, required RMP information is general 
enough that it is unlikely to provide a basis for reverse engineering a 
process. For example, a source must report in its RMP whether 
overpressurization is a hazard and whether relief valves are used to 
control pressure, but it is not required to report information on 
actual pressures used, flow rates, chemical composition, or the 
configuration of equipment. Moreover, while RMP information may provide 
some data that could be used in an attempt to discover CBI information 
through reverse engineering, it typically will not provide enough data 
for such an attempt to succeed, because the source is not required to 
provide a detailed description of the chemistry or production volume of 
the process. Businesses claiming CBI based on the threat of reverse 
engineering will be required to show how reverse engineering could in 
fact succeed with the information that the RMP would otherwise make 
public, together with other publicly available information. A business 
unable to do so will have its claim denied.
    While EPA is requiring that a source claiming a chemical's identity 
as CBI provide the generic category or class name of the chemical, the 
RMP does not require sources to provide information about the adverse 
health effects of the chemical. Chemicals were included in the section 
112(r) program because they are acutely toxic or flammable; health 
effects related to chronic exposure were not considered because they 
are addressed by other rules (see List Rule at 59 FR 4481). EPA 
believes that generic names are sufficient to indicate the general 
health concerns from short-term exposures. Should a member of the 
public desire more information, EPA encourages the use of EPCRA section 
322(h), which provides a means for the public to obtain information 
about the adverse health effects of a chemical covered by that statute, 
where the chemical's identity has been claimed a trade secret. The 
public will find this provision of EPCRA useful because most sources 
subject to the RMP rule are also subject to EPCRA.
3. Up-front Substantiation of CBI Claims
    One commenter supported the proposal to require CBI claims to be 
substantiated at the time they are made. Another commenter stated that 
there is no compelling need to require up-front substantiation. The 
commenter stated that up-front substantiation would place a sizable 
burden on both industry and EPA and would be in direct conflict with 
the Paperwork Reduction Act. The commenter claimed that, with the 
exception of EPCRA, where a submitter is allowed to claim only one data 
element--chemical identity--as CBI, it is EPA's standard procedure not 
to require submitters to provide written substantiation unless a record 
has been requested. Further, the commenter stated that the Agency has 
not shown any reason for departing from that procedure in this rule.
    EPA believes that requiring up-front substantiation of CBI claims 
made for RMP data has ample precedent, is fully consistent with the 
Agency's CBI regulations and the Paperwork Reduction Act, and is 
critical to achieving the public information purposes of the accident 
prevention program. EPCRA is not the only example of an up-front 
substantiation requirement. The Agency has also required up-front 
substantiation in several other regulatory contexts, including those 
where, like here, providing the public with health and safety 
information is an important objective [see e.g., 40 CFR section 725.94, 
40 CFR section 710.38, and 40 CFR section 720.85 (regulations 
promulgated under Toxic Substances Control Act)].
    Even under its general CBI regulations, the Agency need not wait 
for a request to release data to require businesses to substantiate 
their CBI claims. When EPA expects to get a request to release data 
claimed confidential, the Agency is to initiate ``at the earliest 
practicable time'' the regulations'' procedures for making CBI 
determinations (40 CFR section 2.204(a)(3)). Those procedures include 
calling on affected businesses to substantiate their claims (see 40 CFR 
section 2.204(e)). Since state and local agencies, environmental 
groups, academics and others have already indicated their interest in 
obtaining complete RMP data (see comments received on this rulemaking, 
available in the DOCKET), EPA fully expects to get requests for RMP 
data claimed CBI. Consequently, even if EPA did not establish an up-
front substantiation requirement in this rule, under the Agency's 
general CBI regulations it could require businesses claiming CBI for 
RMP data to substantiate their claims without first receiving a request 
to release the data. Establishing an up-front requirement in this rule 
will simply allow EPA to obtain substantiation of CBI claims without 
having to request it in every instance.
    Requiring up-front substantiation for RMP CBI claims is consistent 
with the Paperwork Reduction Act. Any burden posed by this requirement 
has already been evaluated as part of the Information Collection 
Request (ICR) associated with this rulemaking. EPA disagrees that up-
front substantiation will impose a substantial or undue burden. As 
noted above, under EPA's current CBI regulations, a source claiming CBI 
could and probably would be required to provide substantiation for its 
claim, in view of the public interest in RMP information. A requirement 
to submit substantiation with the claim should thus make little 
difference to the source. Moreover, a source presumably does not make 
any claim of CBI lightly. Before filing a CBI claim, the source must 
first determine whether the claim meets the criteria specified in 40 
CFR section 2.208. Up-front substantiation only requires that the 
source document that determination at the time it files its claim. 
Since it would be sensible for a source to document the basis of its 
CBI claim for its own purposes (e.g., in the case of a request for 
substantiation), EPA expects that many sources already prepare 
documentation for their CBI claims by the time they file them. Also, 
submitting substantiation at the time of claim reduces any additional 
burden later, such as reviewing the Agency's request, retrieving the 
relevant information, etc. Therefore, providing documentation at the 
time of filing should impose no additional burden.
    In view of the public information function of RMPs, EPA believes 
that up-front substantiation is clearly warranted

[[Page 972]]

for CBI claims made for RMP data. Up-front substantiation will ensure 
that sources filing claims have carefully considered whether the data 
they seek to protect in fact meets the criteria for protection. Given 
the public interest already expressed in RMP data, EPA expects that CBI 
claims for RMP data will have to be substantiated at some point. Up-
front substantiation will save EPA and the public time and resources 
that would otherwise be required to respond to each CBI claim with a 
request for substantiation. EPA is therefore promulgating the up-front 
substantiation requirement as proposed.
4. State and Local Agency Access to Unredacted RMPs
    One commenter objected to EPA's statement in the proposal that it 
would provide unredacted (unsanitized) versions of the RMPs to a state 
and local agency only upon meeting the criteria required by the EPA's 
CBI rules at 40 CFR Part 2.4 The commenter, an association 
of fire fighters, argued that the Agency's position was inconsistent 
with CAA section 112(r)(7)(B)(iii), which provides that RMPs ``shall . 
. . be submitted to the Chemical Safety and Hazard Investigation Board 
[a federal agency], to the State in which the stationary source is 
located, and to any local agency or entity having responsibility for 
planning for or responding to accidental releases which may occur at 
such source . . . .'' The commenter claimed that this provision 
entitles the specified entities, including local fire departments, to 
receive unredacted RMPs without having to make the showings required by 
EPA's CBI regulations.
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    \4\ Section 2.301(h)(3) provides that a State or local 
government may obtain CBI from EPA under two circumstances: (1) it 
provides EPA a written opinion from its chief legal officer or 
counsel stating that the State or local agency has the authority 
under applicable State or local law to compel the business to 
disclose the information directly; or (2) the businesses whose 
information is disclosed are informed and the State or local 
government has shown to a EPA legal office's satisfaction that its 
disclosure of the information will be governed by State or local law 
and by ``procedures which will provide adequate protection to the 
interests of affected businesses.''
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    EPA is not resolving this issue today. The Agency has reviewed the 
relevant statutory text and legislative history, as well as analogous 
provisions of EPCRA, and believes that arguments can be made on both 
sides of this issue. While section 112(r)(7)(B)(iii) calls for RMPs to 
be submitted to states, local entities and the Board, it is not clear 
that Congress intended CBI contained in RMPs to be provided to those 
entities without ensuring appropriate protection of CBI. At stake in 
resolving this issue are two important interests--local responders' 
interest in unrestricted access to information that may be critical to 
their safety and effectiveness in responding to emergencies and 
businesses' interest in protecting sensitive information from their 
competitors. Before making a final decision on this issue, EPA believes 
it would benefit from further public input. Because EPA stated that it 
would not provide unredacted RMPs to states and local agencies, those 
interested in protecting CBI may not have considered it necessary to 
lay out the legal and policy arguments supporting their views. State 
and local agencies, many of which in the past have expressed concern 
about the potential administrative burden of receiving RMPs directly 
from sources, also did not comment on the issue. EPA has therefore 
decided to accept additional comments on this issue alone. (Additional 
comments on any other issues addressed in this rulemaking will not be 
considered or addressed, since the Agency is taking final action on 
them here.) Comments should be mailed to the persons listed in the 
preceding FOR FURTHER INFORMATION CONTACT section. In the meantime, 
unredacted RMPs will be available to states, local agencies and the 
Board under the terms of the Agency's existing CBI regulations at 40 
CFR section 2.301(h)(3) (for state and local agencies) and 40 CFR 
section 2.209(c) (for the Board).
    Section 112(r)(7)(B)(iii) states in relevant part:

    [RMPs] shall also be submitted to the Chemical Safety and Hazard 
Investigation Board, to the State in which the stationary source is 
located, and to any local agency or entity having responsibility for 
planning for or responding to accidental releases which may occur at 
such source, and shall be available to the public under section 
114(c) of [the Act].

Section 114(c) provides for the public availability of any information 
obtained by EPA under the Clean Air Act, except for information (other 
than emissions data) that would divulge trade secrets.
    From a public policy perspective, there are some obvious advantages 
to reading section 112(r)(7)(B)(iii) in the way the commenter suggests. 
Local fire departments and other local responders are typically the 
first to arrive at the scene of chemical accidents in their 
jurisdictions. RMP information that first responders could find helpful 
include chemical identity, chemical quantity, and potential source of 
an accident. Under EPA's regulations, however, any or all of this 
information could be claimed CBI. In addition, state and local 
authorities are often in the best position to assess the adequacy of a 
source's risk management program and to initiate a dialogue with the 
facility should its RMP indicate a need for improvement. However, state 
and local authorities' ability to provide this contribution to 
community safety would be impeded to the extent a source claimed key 
information as CBI. While states and local agencies may obtain 
information claimed CBI under EPA's CBI regulations (assuming they can 
make the requisite showing), the time required to obtain the necessary 
authority or findings from state or local and EPA officials could be 
substantial.
    At the same time, there are also public policy reasons for ensuring 
protection of CBI contained in RMPs. Congress has in many statutes, 
including the CAA and EPCRA, provided for the protection of trade 
secrets to safeguard the competitive position of private businesses. 
Businesses' ability to maintain the confidentiality of trade secrets 
helps ensure competition in the U.S. economy and U.S. businesses' 
competitive position in the world economy. Protection of trade secrets 
also encourages innovation, which is an important contributor to 
economic growth.
    A reading of section 112(r)(7)(B)(iii) that demands submission of 
unredacted RMPs to states, local entities, and the Board may lead to 
widespread public access to information claimed CBI. For purposes of 
section 112(r)(7)(B)(iii), ``any local agency or entity having 
responsibility for planning for or responding to accidental releases'' 
includes local emergency planning committees (LEPCs) established under 
EPCRA. Section 301(c) of EPCRA provides that LEPCs must include 
representatives from both the public and private sectors, including the 
media and facilities subject to EPCRA requirements. Submission of an 
unredacted RMP to an LEPC would thus entail release of CBI to some 
members of the public and potentially even competitors.5 
More generally, local agencies may not be subject to any legal 
requirement to protect CBI and may lack the knowledge and resources to 
address CBI claims. Arguably, it would be

[[Page 973]]

anomalous for Congress to require EPA to protect trade secrets 
contained in RMPs against release to the public only to risk divulging 
the same information by requiring submission of unredacted RMPs to a 
broad range of entities that may not have the need or capacity to 
protect CBI themselves. It would also appear inconsistent with the 
approach Congress took to protecting trade secrets in EPCRA, where 
Congress did not provide for release of trade secret chemical identity 
information to local agencies.
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    \5\ EPA does not believe that submission of an RMP containing 
CBI to the statutorily specified entities would defeat a source's 
ability to claim information as CBI for purposes of section 114(c) 
and EPA's CBI regulations. Under those regulations, information that 
has been released to the public cannot be claimed CBI. Release of a 
RMP containing CBI to the entities specified by section 
112(r)(7)(B)(iii), including LEPCs, would not constitute such a 
release. EPCRA similarly provides that disclosure of trade secret 
information to an LEPC does not prevent a facility from claiming the 
information confidential (see EPCRA section 322(b)(1)).
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    Relatedly, many state and local agencies objected to EPA's original 
proposal in the RMP proposed rulemaking (58 FR 54190, October 20, 1993) 
that sources submit RMPs directly to States, local agencies, and the 
Board, as well as EPA. They noted that managing the information 
contained in RMPs would be difficult without a significant expenditure 
of typically scarce resources. Many states and local agencies thus 
supported EPA's final decision to develop an electronic submission and 
distribution system that would allow covered sources to submit their 
RMPs to EPA, which would make them available to states, local agencies, 
and the Board, as well as the general public. If the statute is read to 
require submission of RMP information to state and local agencies, and 
the Board, to the extent it is claimed as CBI, the resource concerns 
raised by State and local agencies commenters likely would be raised to 
that extent again.
    EPA also questions the extent to which states, local entities and 
the Board would be disadvantaged if they did not receive unredacted 
RMPs without making the showings required by EPA's CBI regulations. As 
noted earlier, EPA expects that relatively little RMP information will 
be CBI. RMP data will only rarely contain CBI, and the up-front 
substantiation will minimize the number of CBI claims it receives by 
ensuring that sources carefully examine the basis for any claims before 
submitting them. Consequently, the Agency believes that a state or 
local agency will rarely confront a redacted RMP.
    Moreover, EPCRA provides state and local entities, including fire 
departments, with access to much of the pertinent data already. EPA's 
regulations under EPCRA cover a universe of sources and chemicals that 
includes most, if not all, the sources and substances covered by the 
RMP rule. The EPCRA regulations require reporting of some of the same 
information required by the RMP rule, including chemical identity. 
EPCRA withholds from public release only chemical identities that are 
trade secrets and the location of specific chemicals where a facility 
so requests. In practice, relatively few facilities have requested 
trade secret protection for a chemical's identity.
    Additionally, EPCRA section 312(f) empowers local fire departments 
to conduct on-site inspections at facilities subject to EPCRA section 
312(a) and obtain information on chemical location. Most facilities 
subject to EPCRA section 312(a) are also subject to the RMP rule. On-
site inspections could also provide information on hazards and 
mitigation measures. In addition, EPCRA section 303(d)(3) authorizes 
LEPCs, which include representatives of fire departments, to request 
from facilities covered by EPCRA section 302(b) such information as may 
be necessary to prepare an emergency response plan and to include such 
information in the plan as appropriate. Some sources subject to the RMP 
rule are also covered by EPCRA section 302(b).
    In light of the points made above, EPA questions whether section 
112(r)(7)(B)(iii) should be interpreted to require submission of 
unredacted RMPs containing CBI to the statutorily specified entities 
without provision being made for protecting CBI. EPA invites the public 
to provide any additional comment or information relevant to 
interpreting the submission requirement of section 112(r)(7)(B)(iii).
5. Other CBI Issues
    Two commenters disagreed with EPA's statement that a source cannot 
make a CBI claim for information available to the public under EPCRA or 
another statute. They claimed that a request for information under 
EPCRA cannot supersede the CBI provisions applicable to data collected 
under the authorities of the CAA or Toxic Substances Control Act or any 
other regulatory program.
    EPA does not agree with this comment. Claims of CBI may not be 
upheld if the information is properly obtainable or made public under 
other statutes or authorities. For example, chemical quantity on site 
is available to the public under EPCRA Tier II reporting. In addition, 
under EPCRA section 303(d)(3), LEPCs have the authority to request any 
information they need to develop and implement community emergency 
response plans. If information obtained through such a request is 
included in the community plan, it will become available to the public 
under EPCRA section 324. Information obtainable or made public under 
EPCRA would not be eligible for CBI protection under 40 CFR section 
2.208, which specifically excludes from CBI protection information 
already available to the public. Filing a CBI claim under the CAA or 
another statute does not protect information if it is legitimately 
requested and made public under other federal, state, or local law. 
Information obtainable or made public (through proper means) under 
existing statutes cannot be CBI under EPA's CBI regulations.
6. Actions Taken
    In summary, the Agency is adding two sections (68.151 and 68.152) 
to Part 68. Section 68.151 sets forth the procedures for a source to 
follow when asserting a CBI claim and lists data elements that can not 
be claimed as CBI. This section also requires sources filing CBI claims 
to provide the information claimed confidential, in a format to be 
specified by EPA, instead of the unsanitized paper copy of the RMP as 
discussed in the proposal. Section 68.152 sets forth the procedures for 
substantiating CBI claims. Sources claiming CBI are required to submit 
their substantiation of their claims at the same time they submit their 
RMPs.

E. Other Issues

    Two commenters asked why EPA had proposed to drop the phrase ``if 
used'' in section 68.165(b)(3) where the rule asks for the basis of the 
offsite consequence analysis results. EPA has decided to retain the 
language, since sources will have a choice of using either EPA's RMP 
guidance documents or a model. Where a model is used, the source will 
have to provide the name of the model. These commenters also asked why 
EPA proposed to drop (alternative releases only) from section 
68.165(b)(13). EPA has also decided to retain the parenthetical 
language.
    One commenter stated that EPA should allow sources to submit RMPs 
either electronically or in hard copy. The commenter stated that not 
allowing hard copy submissions will be burdensome on many sources who 
have never filed an electronic report to the government before. As 
stated in the April proposal, EPA is allowing sources to submit RMPs on 
paper. Paper submitters are asked to fill out a simple paper form to 
tell EPA why they are unable to file electronically.
    Two commenters objected to placing offsite consequence analysis 
(OCA) data, particularly worst-case release scenarios, on the Internet, 
for security reasons. Issues related to public access to OCA data are 
beyond the scope of this rulemaking, as this action is limited to the 
issues discussed above. It does

[[Page 974]]

not include decisions regarding how the public will access the OCA data 
elements of the RMPs. Statements in the preamble about EPA providing 
public access to RMP data are not intended to address which portions of 
the RMP data will be electronically available.
    A number of commenters were concerned about a statement EPA made in 
the preamble to the proposed rule regarding the definition of 
``process'', and stated that EPA's interpretation of ``process'' is not 
consistent with the interpretation the Occupational Safety and Health 
Administration (OSHA) uses in its process safety management (PSM) 
standard (29 CFR 1910.119). In this rulemaking, EPA did not propose any 
changes to the definition of process nor is it adopting any changes to 
the definition. As EPA stated in the preamble to the final RMP rule, it 
will interpret ``process'' consistently with OSHA's interpretation of 
that term (29 CFR 1910.119). Therefore, if a source is subject to the 
PSM rule, the limits of its process(es) for purposes of OSHA PSM will 
be the limits of its process(es) for purposes of RMP (except in cases 
involving atmospheric storage tanks containing flammable regulated 
substances, which are exempt from PSM but not RMP). If a source is not 
covered by OSHA PSM and is complicated from an engineering perspective, 
it should consider contacting its implementing agency for advice on 
determining process boundaries. EPA and OSHA are coordinating the 
agencies' approach to common issues, such as the interpretation of 
``process''.

F. Technical Corrections

    When Part 68 was promulgated, the text of section 68.79(a), was 
drawn from the OSHA PSM standard, but it was not revised to reflect the 
different structure of EPA's rule. The OSHA PSM standard is contained 
in a single section; EPA's Program 3 prevention program is contained in 
a subpart. Rather than referencing ``this section,'' the paragraph 
should have referenced the ``subpart.'' Therefore, as proposed, EPA is 
changing ``section'' to ``subpart'' in section 68.79(a).
    Under section 68.180(b), EPA intended that all covered sources 
report the name and telephone number of the agency with which they 
coordinate emergency response activities, even if the source is not 
required to have an emergency response plan. However, the rule refers 
only to coordinating the emergency plan. In this action, EPA is 
revising this section to refer to the local agency with which emergency 
response activities and the emergency response plan is coordinated.

IV. Section-by-Section Discussion of the Final Rule

    In Section 68.3, Definitions, the definition of SIC is removed and 
replaced by the definition of NAICS.
    Section 68.10, Applicability, is revised to replace the SIC codes 
with NAICS codes, as discussed above.
    Section 68.42, Five-Year Accident History, is revised to require 
the percentage concentration by weight of regulated toxic substances 
released in a liquid mixture and the five- or six-digit NAICS code that 
most closely corresponds to the process that had the release. The 
phrase ``five- or six-digit'' has been added before the NAICS code to 
clarify the level of detail required for NAICS code reporting.
    Section 68.79, Compliance Audits, the word ``section'' in paragraph 
(a) is replaced by ``subpart.''
    Section 68.150, Submission, is revised by adding a paragraph to 
state that procedures for asserting CBI claims and determining the 
sufficiency of such claims are provided in new Sections 68.151 and 
68.152.
    Section 68.151 is added to set forth the procedures to assert a CBI 
claim and list data elements that may not be claimed as CBI, as 
discussed above.
    Section 68.152 is added to set forth procedures for substantiating 
CBI claims, as proposed.
    Section 68.160, Registration, is revised by adding the requirements 
to report the method and description of latitude and longitude, 
replacing SIC codes with five- or six-digit NAICS codes, and adding the 
requirement to report Title V permit number, when applicable. This 
section is also revised to include optional data elements. The phrase 
``five- or six-digit'' has been added before NAICS code to clarify the 
level of detail required for NAICS code reporting.
    Section 68.165, Offsite Consequence Analysis, is revised by adding 
the requirement that the percentage weight of a regulated toxic 
substance in a liquid mixture be reported.
    Section 68.170, Prevention Program/Program 2, is revised to replace 
SIC codes with five- or six-digit NAICS codes, as is Section 68.175.
    Section 68.180, Emergency Response Program, is revised to clarify 
that paragraph (b) covers both the coordination of response activities 
and plans, as proposed.

V. Judicial Review

    The proposed rule amending the accidental release prevention 
requirements; under section 112(r)(7) was proposed in the Federal 
Register on April 17, 1998. This Federal Register action announces 
EPA's final decision on the amendments. Under section 307(b)(1) of the 
CAA, judicial review of this action is available only by filing a 
petition for review in the U.S. Court of Appeals for the District of 
Columbia Circuit on or before March 8, 1999. Under section 307(b)(2) of 
the CAA, the requirements that are the subject of today's action may 
not be challenged later in civil or criminal proceedings brought by EPA 
to enforce these requirements.

VI. Administrative Requirements

A. Docket

    The docket is an organized and complete file of all the information 
considered by the EPA in the development of this rulemaking. The docket 
is a dynamic file, because it allows members of the public and 
industries involved to readily identify and locate documents so that 
they can effectively participate in the rulemaking process. Along with 
the proposed and promulgated rules and their preambles, the contents of 
the docket serve as the record in the case of judicial review. (See 
section 307(d)(7)(A) of the CAA.)
    The official record for this rulemaking, as well as the public 
version, has been established for this rulemaking under Docket No. A-
98-08 (including comments and data submitted electronically). A public 
version of this record, including printed, paper versions of electronic 
comments, which does not include any information claimed as CBI, is 
available for inspection from 8:00 a.m. to 5:30 p.m., Monday through 
Friday, excluding legal holidays. The official rulemaking record is 
located at the address in ADDRESSES at the beginning of this document.

B. Executive Order 12866

    Under Executive Order (E.O.) 12866, [58 FR 51,735 (October 4, 
1993)], the Agency must determine whether the regulatory action is 
``significant'', and therefore subject to OMB review and the 
requirements of the E.O. The Order defines ``significant regulatory 
action'' as one that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or state, local or tribal government or communities;

[[Page 975]]

    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the E.O.
    Pursuant to the terms of Executive Order 12866, OMB has notified 
EPA that it considers this a ``significant regulatory action'' within 
the meaning of the Executive Order. EPA has submitted this action to 
OMB for review. Changes made in response to OMB suggestions or 
recommendations will be documented in the public record.

C. Executive Order 12875

    Under Executive Order 12875, EPA may not issue a regulation that is 
not required by statute and that creates a mandate upon a State, local 
or tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments, or EPA consults with those governments. If EPA complies by 
consulting, Executive Order 12875 requires EPA to provide to the Office 
of Management and Budget a description of the extent of EPA's prior 
consultation with representatives of affected State, local and tribal 
governments, the nature of their concerns, copies of any written 
communications from the governments, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 12875 
requires EPA to develop an effective process permitting elected 
officials and other representatives of State, local and tribal 
governments ``to provide meaningful and timely input to the development 
of regulatory proposals containing significant unfunded mandates.''
    EPA has concluded that this rule may create a nominal mandate on 
State, local or tribal governments and that the Federal government will 
not provide the funds necessary to pay the direct costs incurred by 
these governments in complying with the mandate. Specifically, some 
public entities may be covered sources and will have to add the new 
data elements to their RMP. In developing this rule, EPA consulted with 
state, local and tribal governments to enable them to provide 
meaningful and timely input in the development of this rule. Even 
though this rule revises Part 68 in a way that does not significantly 
change the burden imposed by the underlying rule, EPA has taken efforts 
to involve state and local entities in this regulatory effort. 
Specifically, much of the rule responds to issues raised by the 
Electronic Submission Workgroup discussed above, which includes State 
and local government stakeholders. In addition, EPA has recently 
conducted seminars with tribal governments; however, there were no 
concerns raised on any issues that are covered in this rule. EPA 
discussed the need for issuing this regulation in sections II and III 
in this preamble. Also, EPA provided OMB with copies of the comments to 
the proposed rule.

D. Executive Order 13045

    Executive Order 13045: ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies 
to any rule that: (1) is determined to be ``economically significant'' 
as defined under E.O. 12866, and (2) concerns an environmental health 
or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    This final rule is not subject to the E.O. 13045 because it is not 
``economically significant'' as defined in E.O. 12866, and because it 
does not involve decisions based on environmental health or safety 
risks.

E. Executive Order 13084

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected and other representatives of 
Indian tribal governments ``to provide meaningful and timely input in 
the development of regulatory policies on matters that significantly or 
uniquely affect their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. Two of the amendments made by 
this rule, the addition of RMP data elements and the conversion of SIC 
codes to NAICS codes, impose only minimal burden on any sources that 
may be owned or operated by tribal governments, such as drinking water 
and waste water treatment systems. The third amendment made by this 
rule addresses the procedures for submission of confidential business 
information in the RMP. The sources that are mentioned above handle 
chemicals that are known to public (e.g., chlorine for use of 
disinfection, propane used for fuel, etc.). EPA does not, therefore, 
expect RMP information on these types of processes to include CBI, so 
any costs related to CBI will not fall on Indian tribal governments. 
Accordingly, the requirements of section 3(b) of Executive Order 13084 
do not apply to this rule.
    Notwithstanding the non-applicability of E. O. 13084, EPA has 
recently conducted seminars with the tribal governments. However, there 
were no concerns raised on any issues that are covered in this rule.

F. Regulatory Flexibility

    EPA has determined that it is not necessary to prepare a regulatory 
flexibility analysis in connection with this final rule. EPA has also 
determined that this action will not have a significant economic impact 
on a substantial number of small entities. Two of the amendments made 
by this rule, the addition of RMP data elements and the conversion of 
SIC codes to NAICS codes, impose only minimal burden on small entities. 
Moreover, those small businesses that claim CBI when submitting the RMP 
will not face any costs beyond those imposed by the existing CBI 
regulations. Even considering the costs of CBI substantiation, however, 
there is no significant economic impact on a substantial number of 
small entities. EPA estimates that very few small entities 
(approximately 500) will claim CBI and that these few entities 
represent a small fraction of the small entities (less than 5 percent) 
affected by the RMP rule. Finally, EPA estimates that those small 
businesses filing CBI will experience a cost which is significantly 
less than one percent of their annual sales. For a more detailed 
analysis of the

[[Page 976]]

small entity impacts of CBI submission, see Document Number, IV-B-02, 
available in the docket for this rulemaking (see ADDRESSES section).

G. Paperwork Reduction

1. General
    The information collection requirements in this rule have been 
submitted for approval to the Office of Management and Budget (OMB) 
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An 
Information Collection Request (ICR) document has been prepared by EPA 
(ICR No. 1656.05) and a copy may be obtained from Sandy Farmer, by mail 
at Office of Policy, Regulatory Information Division, U.S. 
Environmental Protection Agency (2137), 401 M St, SW, Washington, DC 
20460, by e-mail at [email protected] or by calling (202) 
260-2740. A copy may also be downloaded off the Internet at http://
www.epa.gov/icr. The information requirements are not effective until 
OMB approves them.
    The submission of the RMP is mandated by section 112(r)(7) of the 
CAA and demonstrates compliance with Part 68 consistent with section 
114(c) of the CAA. The information collected also will be made 
available to state and local governments and the public to enhance 
their preparedness, response, and prevention activities. Certain 
information in the RMP may be claimed as confidential business 
information under 40 CFR Part 2 and Part 68.
    This rule will impose very little burden on affected sources. 
First, EPA estimates that the new data elements will require only a 
nominal burden, .25 hours for a typical source, because latitude and 
longitude method and description will be selected from a list of 
options, the Title V permit number is available to any source to which 
Title V applies, and the percentage weight of a toxic substance in a 
liquid mixture is usually provided by the supplier of the mixture. 
Second, the NAICS code provision is simply a change from one code to 
another.6 Third, as discussed above in the preamble, EPA 
believes that the CBI provisions of this rule will add no additional 
burden beyond what sources otherwise would face in complying with the 
CBI rules in 40 CFR Part 2. The Agency has calculated the burden of 
substantiations made for purposes of this rule below.
---------------------------------------------------------------------------

    \6\ EPA intends to provide several outreach mechanisms to assist 
sources in identifying their new NAICS code. RMP*Submit will provide 
a ``pick list'' that will make it easier for sources to find the 
appropriate code. Also, selected NAICS codes are included in the 
General Guidance for Risk Management Programs (July 1998) and in the 
industry-specific guidance documents that EPA is developing. EPA 
will also utilize the Emergency Planning and Community Right-to-Know 
Hotline at 800-424-9346 (or 703-412-9810) to assist sources in 
determining the source's NAICS codes.
---------------------------------------------------------------------------

    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and system for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15.
2. CBI Burden
    In the Notice of Proposed Rulemaking for these amendments, EPA 
proposed to amend existing 40 CFR Part 68 to add two sections which 
would clarify the procedures for submitting RMPs that contain 
confidential business information (CBI). As proposed, CBI would be 
handled in much the same way as it presently is under other EPA 
programs, except that EPA would require sources claiming CBI to submit 
documentation substantiating their CBI claims at the time such claims 
were made and EPA also would not permit CBI claims for certain data 
elements which clearly are not CBI. Aside from these procedural 
changes, however, the proposed rule was substantively identical to the 
existing rules governing the substantiation of CBI claims, presently 
codified in 40 CFR Part 2.
    At the time it proposed these amendments, EPA estimated the public 
reporting burden for CBI claims to be 15 hours for chemical 
manufacturers with Program 3 processes, the only kinds of facilities 
that EPA expects to be able to claim CBI for any RMP data elements. 
This estimate was premised upon EPA's assessment that it would require 
8.5 hours per claim to develop and submit the CBI substantiation and 
6.5 hours to complete an unsanitized version of the RMP, for a total of 
15 hours. EPA also estimated that approximately 20 percent of the 4000 
chemical manufacturers (out of 64,200 stationary sources estimated to 
be covered by the RMP rule) may file CBI claims (800 sources). The 800 
sources represent a conservative projection based on the Agency's 
experience under EPCRA program. Consequently, the total annual public 
reporting burden for filing CBI claims was estimated to be 
approximately 12,000 hours over three years (800 facilities multiplied 
by an average burden of 15 hours), or an annual burden of 4,000 hours 
(Information Collection Request No. 1656.04).
    a. Comment received. EPA received one comment on the ICR developed 
for the proposed rule, opposing up-front substantiation of any CBI 
claims. The commenter stated that ``[t]his is a major departure from 
standard EPA procedure, and would impose a substantial and unjustified 
burden for several years.'' The commenter further added that up-front 
substantiation would significantly increase the burden of this rule, 
and that up-front substantiation unnecessarily increases the volume and 
potential loss of CBI documents. The commenter also stated that the 
estimate of 15 hours for chemical manufacturers ``seems unreasonably 
low,'' and cited the EPA burden estimate of 27.7 to 33.2 hours per 
claim (with an average of 28.8) under the trade secret provisions of 
EPCRA.
    In the preamble to the proposed rule, EPA estimated that 20 percent 
of the 4,000 chemical manufacturers will file a CBI claim. The 
commenter contends that ``[t]he EPA analysis * * * excludes facilities 
in other industries that will need to file CBI claims.''
    Finally, the commenter stated that claiming multiple data elements 
as CBI will increase reporting burden.
    b. EPA response. Burden Estimates: EPA disagrees with these 
comments. As pointed out above, the requirement to submit up-front 
substantiation of CBI claims imposes no additional burden. In addition, 
the total burden of the CBI provisions of this rule are not 
understated. EPA has re-examined its analysis in light of the 
commenter's concerns and has determined--contrary to the commenter's 
claim--that its initial estimate of the total burden associated with 
preparing and claiming CBI was likely too conservative. As explained 
below, the Agency's best available information indicates that the 
process of documenting and submitting a claim of CBI should impose a 
burden of approximately 9.5 hours per CBI claimant.
    First, EPA believes that the requirement to submit, at the time a 
source claims information as CBI,

[[Page 977]]

substantiation demonstrating that the material truly is CBI imposes no 
burden on sources beyond that which presently exists under EPA's CBI 
regulations in Part 2. In order to decide whether they might properly 
claim CBI for a given piece of information, a source must determine if 
the criteria stated in section 2.208 of 40 CFR Part 2 are satisfied. 
Naturally, a source goes through this process before a CBI claim is 
made. EPA agrees that most programs do not require the information that 
forms the basis for the substantiation to be submitted at the time of 
the claim; however, a facility must still determine whether or not a 
claim can be substantiated. Because existing rules require sources to 
formulate a legitimate basis for claiming CBI, even if those rules do 
not require immediate documentation, and because the Agency fully 
expects requests for RMP information which will necessitate sources' 
submitting such documentation, EPA believes that up-front submission 
will not increase the burden of the regulation.
    Second, in response to the commenter's claim that the Agency had 
underestimated the total burden associated with CBI claims, EPA 
undertook a review of recent information collection requests (ICRs) 
covering data similar to that required to be submitted in an RMP. 
Initially, EPA examined the ICR prepared for Part 2 itself (ICR No. 
1665.02, OMB Control No. 2020-0003). Under an analysis contained in the 
Statement of Support for the ICR, the Agency estimated that it takes 
approximately 9.4 hours to substantiate claims of CBI, prepare 
documentation, and submit such documentation to EPA. Next, the Agency 
reviewed a survey conducted by the Agency (under Office of Management 
and Budget clearance #2070-0034), to present the average burden 
associated with indicating confidential business information claims for 
certain data elements under the proposed inventory update rule (IUR) 
amendment under TSCA section 8. This survey specifically asked affected 
industry how long it would take to prepare CBI claims for two data 
elements--chemical identity and production volume range information. 
Part 68 also requires similar information (e.g., chemical identity and 
maximum quantity in a process) to be included in a source's RMP and, 
indeed, EPA anticipates that they will be the data elements most likely 
to be claimed CBI. The average burden estimates for chemical identity 
were between 1.82 and 3.13 hours, and the average burden estimates for 
production volume in ranges were between 0.87 and 2.08 hours. Thus, 
assuming that the average source claims both chemical identity and the 
maximum quantity in a process as CBI, a conservative estimate for the 
reporting burden would be 5.21 hours. Finally, EPA examined the burden 
estimate upon which it relied at proposal. That estimate predicted that 
the average CBI claim would take 15 hours, of which 8.5 would be 
developing and submitting the CBI claim, and 6.5 would be completing an 
unsanitized version of the RMP. In view of EPA's current plan not to 
require a source claiming CBI to submit a full, unsanitized RMP, but 
instead to submit only the particular elements claimed as CBI, the 
Agency expects the latter burden to decrease to 1 hour, for a total 
burden of 9.5 hours.
    In light of its extensive research of the burden hours involved in 
preparing and submitting CBI claims, EPA believes that the total burden 
estimate was not understated in the April proposal. Rather, other ICRs 
and the ICR proposal, combined with the changes to the method of 
documenting CBI claims, indicate that a burden estimate between 5.21 
and 9.5 hours is appropriate for this final rule. EPA has selected the 
most conservative of these, 9.5 hours, in its ICR for this final rule.
    EPA rejected one ICR's burden estimate as being inapplicable to the 
present rulemaking. Although the commenter urged the Agency to adopt 
the estimate associated with trade secret claims under EPCRA (28 
hours), EPA believes that the estimates discussed above are more 
accurate for several reasons. First, the EPCRA figures are based upon a 
survey with a very small sample size, as compared to the TSCA survey 
cited previously. Second, most (if not all) of the facilities 
submitting RMPs are likely to already be reporting under sections 311 
and 312 or section 313 of EPCRA, and many of the manufacturers 
submitting an RMP are subject to TSCA reporting requirements; thus, 
most sources likely to claim CBI for an RMP data element will have 
already done some analysis of whether or not such information would 
reveal legitimately confidential matter.
    Other Facilities Can Claim CBI: The Agency does not agree with the 
commenter's claim that facilities other than chemical manufacturers 
might be expected to claim CBI for information contained in their RMPs. 
The other industries affected by the RMP rule (e.g., propane retailers, 
publicly owned treatment works) will not be disclosing in the RMP 
information that is likely to cause substantial harm to the business's 
competitive position. For example, covered public drinking water and 
wastewater treatment plants generally use common regulated substances 
in standard processes (i.e., chlorine used for disinfection). Also, 
covered processes at many sources involve the storage of regulated 
substances that the sources sell (e.g., propane, ammonia), so the 
processes are already public knowledge. Other covered processes involve 
the use of well-known combinations of regulated substances such as 
refrigerants. Therefore, it is not likely that these businesses would 
claim information as CBI.
    As a point of comparison, EPA notes that of the 869,000 facilities 
that are estimated to be required to report under sections 311 and 312 
of EPCRA, approximately 58 facilities have submitted trade secret 
claims for under those sections. For this reason, EPA believes the 
estimate of 800 sources may, in fact, be an overestimate of the number 
of sources claiming CBI.
    Reporting Multiple Data Elements: The Agency disagrees with the 
commenters assertion that it has underestimated the reporting burden on 
sources' claiming multiple data elements as CBI. The burden figures 
stated above are based on the Agency's estimates of the average number 
of data elements that a typical source will likely claim CBI.
    Public reporting of the new RMP data elements is estimated to 
require an average of .25 hours for all sources (64,200 sources) and 
substantiating CBI claims is estimated to take approximately 9.5 hours 
for certain chemical manufacturing sources (800 sources). The aggregate 
increase in burden over that estimated in the previous Information 
Collection Request (ICR) for part 68 is estimated to be about 23,650 
hours over three years, or an annual burden of 7,883 hours for the 
three years covered by the ICR.

H. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L. 
104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205

[[Page 978]]

of the UMRA generally requires EPA to identify and consider a 
reasonable number of regulatory alternatives and adopt the least 
costly, most cost-effective or least burdensome alternative that 
achieves the objectives of the rule. The provisions of section 205 do 
not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    EPA has determined that this rule does not contain a Federal 
mandate that may result in expenditures of $100 million or more for 
state, local, and tribal governments, in the aggregate, or the private 
sector in any one year. The EPA has determined that the total 
nationwide capital cost for these rule amendments is zero and the 
annual nationwide cost for these amendments is less than $1 million. 
Thus, today's rule is not subject to the requirements of sections 202 
and 205 of the Unfunded Mandates Act.
    EPA has determined that this rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments. Small governments are unlikely to claim information 
confidential, because sources owned or operated by these entities 
(e.g., drinking water and waste water treatment systems), handle 
chemicals that are known to public. The new data elements and the 
conversion of SIC codes to NAICS codes impose only minimal burden on 
these entities.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Pub L. 104-113, section 12(d)(15 U.S.C. 272 
note), directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, business practices) that are developed or adopted 
by voluntary consensus standards bodies. The NTTAA requires EPA to 
provide Congress, through OMB, explanations when the Agency decides not 
to use available and applicable voluntary consensus standards.
    This action does not involve technical standards. Therefore, EPA 
did not consider the use of any voluntary consensus standards.

J. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. section 801 et seq., as 
added by the Small Business Regulatory Enforcement Fairness Act of 
1996, generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. EPA will submit a report containing this 
rule and other required information to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States 
prior to publication of the rule in the Federal Register. This action 
is not a ``major rule'' as defined by 5 U.S.C. section 804(2). This 
rule will be effective February 5, 1999.

   Appendix to Preamble--Data Elements That May Not be Claimed as CBI
------------------------------------------------------------------------
         Rule element                           Comment
------------------------------------------------------------------------
68.160(b)(1) Stationary        This information is filed with EPA and
 source name, street, city,     other agencies under other regulations
 county, state, zip code,       and is made available to the public and,
 latitude, and longitude,       therefore, does not meet the criteria
 method for obtaining           for CBI claims. It is also available in
 latitude and longitude, and    business and other directories.
 description of location that
 latitude and longitude
 represent.
68.160(b)(2) Stationary
 source Dun and Bradstreet
 number.
68.160(b)(3) Name and Dun and
 Bradstreet number of the
 corporate parent company.
68.160(b)(4) The name,
 telephone number, and
 mailing address of the owner/
 operator.
68.160(b)(5) The name and      This information provides no information
 title of the person or         that would affect a source's competitive
 position with overall          position.
 responsibility for RMP
 elements and implementation.
68.160(b)(6) The name, title,  This information is filed with state and
 telephone number, and 24-      local agencies under EPCRA and is made
 hour telephone number of the   available to the public and, therefore,
 emergency contact.             does not meet the criteria for CBI
                                claims.
68.160(b)(7) Program level     This information provides no information
 and NAICS code of the          that would affect a source's competitive
 process.                       position.
68.160(b)(8) The stationary    This information provides no information
 source EPA identifier.         that would affect a source's competitive
                                position.
68.160(b)(10) Whether the      This information provides no information
 stationary source is subject   that would affect a source's competitive
 to 29 CFR 1910.119.            position.
68.160(b)(11) Whether the      Sources are required to notify the state
 stationary source is subject   and local agencies if they are subject
 to 40 CFR Part 355.            to this rule; this information is
                                available to the public and, therefore,
                                does not meet the criteria for CBI
                                claims.
68.160(b)(12) If the           This information will be known to state
 stationary source has a CAA    and federal air agencies and is
 Title V operating permit,      available to the public and, therefore,
 the permit number.             does not meet the criteria for CBI
                                claims.

[[Page 979]]

 
68.160(b)(13) The date of the  This information provides no information
 last safety inspection and     that would affect a source's competitive
 the identity of the            position.
 inspecting entity.
68.165(b)(4) Basis of the      Without the chemical name and quantity,
 results (give model name if    this reveals no business information.
 used).
68.165(b)(9) Wind speed and    This information provides no information
 atmospheric stability class    that would affect a source's competitive
 (toxics only).                 position.
68.165(b)(10) Topography       Without the chemical name and quantity,
 (toxics only).                 this reveals no business information.
68.165(b)(11) Distance to an   By itself, this information provides no
 endpoint.                      confidential information. Other elements
                                that would reveal chemical identity or
                                quantity may be claimed as CBI.
68.165(b)(12) Public and       By itself, this information provides no
 environmental receptors        confidential information. Other elements
 within the distance.           that would reveal chemical identity or
                                quantity may be claimed as CBI.
68.168 Five-year accident      Sources are required to report most of
 history.                       these releases and information (chemical
                                released, quantity, impacts) to the
                                federal, state, and local agencies under
                                CERCLA and EPCRA; these data are
                                available to the public and, therefore,
                                do not meet the criteria for CBI claims.
                                Much of this information is also
                                available from the public media.
68.170(b), (d), (e)(1), and
 (f)-(k)
68.175(b), (d), (e)(1), and
 (f)-(p)
    NAICS code, prevention     NAICS codes and the prevention program
     program compliance dates   compliance dates and information provide
     and information.           no information that would affect a
                                source's competitive position.
68.180 Emergency response      This information provides no information
 program.                       that would affect a source's competitive
                                position.
------------------------------------------------------------------------

List of Subjects in 40 CFR Part 68

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Chemicals, Hazardous substances, 
Intergovernmental relations, Reporting and recordkeeping requirements.

    Dated: December 29, 1998.
Carol M. Browner,
Administrator.

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

PART 68--CHEMICAL ACCIDENT PREVENTION PROVISIONS

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

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

    2. Section 68.3 is amended by removing the definition of SIC and by 
adding in alphabetical order the definition for NAICS to read as 
follows:


Sec. 68.3  Definitions.

* * * * *
    NAICS means North American Industry Classification System.
* * * * *
    3. Section 68.10 is amended by revising paragraph (d)(1) to read as 
follows:


Sec. 68.10  Applicability.

* * * * *
    (d) * * *
    (1) The process is in NAICS code 32211, 32411, 32511, 325181, 
325188, 325192, 325199, 325211, 325311, or 32532; or
* * * * *
    4. Section 68.42 is amended by revising paragraph (b)(3), 
redesignating paragraphs (b)(4) through (b)(10) as paragraphs (b)(5) 
through (b)(11) and by adding a new paragraph (b)(4) to read as 
follows:


Sec. 68.42  Five-year accident history.

* * * * *
    (b) * * *
    (3) Estimated quantity released in pounds and, for mixtures 
containing regulated toxic substances, percentage concentration by 
weight of the released regulated toxic substance in the liquid mixture;
    (4) Five- or six-digit NAICS code that most closely corresponds to 
the process;
* * * * *
    5. Section 68.79 is amended by revising paragraph (a) to read as 
follows:


Sec. . 68.79  Compliance audits.

    (a) The owner or operator shall certify that they have evaluated 
compliance with the provisions of this subpart at least every three 
years to verify that procedures and practices developed under this 
subpart are adequate and are being followed.
* * * * *
    6. Section 68.150 is amended by adding paragraph (e) to read as 
follows:


Sec. 68.150  Submission.

* * * * *
    (e) Procedures for asserting that information submitted in the RMP 
is entitled to protection as confidential business information are set 
forth in Secs. 68.151 and 68.152.
    7. Section 68.151 is added to read as follows:


Sec. 68.151  Assertion of claims of confidential business information.

    (a) Except as provided in paragraph (b) of this section, an owner 
or operator of a stationary source required to report or otherwise 
provide information under this part may make a claim of confidential 
business information for any such information that meets the criteria 
set forth in 40 CFR 2.301.
    (b) Notwithstanding the provisions of 40 CFR part 2, an owner or 
operator of a stationary source subject to this part may not claim as 
confidential business information the following information:
    (1) Registration data required by Sec. 68.160(b)(1) through (b)(6) 
and (b)(8), (b)(10) through (b)(13) and NAICS code and Program level of 
the process set forth in Sec. 68.160(b)(7);
    (2) Offsite consequence analysis data required by 
Sec. 68.165(b)(4), (b)(9), (b)(10), (b)(11), and (b)(12).
    (3) Accident history data required by Sec. 68.168;
    (4) Prevention program data required by Sec. 68.170(b), (d), 
(e)(1), (f) through (k);
    (5) Prevention program data required by Sec. 68.175(b), (d), 
(e)(1), (f) through (p); and
    (6) Emergency response program data required by Sec. 68.180.
    (c) Notwithstanding the procedures specified in 40 CFR part 2, an 
owner or operator asserting a claim of CBI with respect to information 
contained in its RMP, shall submit to EPA at the time it submits the 
RMP the following:
    (1) The information claimed confidential, provided in a format to 
be specified by EPA;

[[Page 980]]

    (2) A sanitized (redacted) copy of the RMP, with the notation 
``CBI'' substituted for the information claimed confidential, except 
that a generic category or class name shall be substituted for any 
chemical name or identity claimed confidential; and
    (3) The document or documents substantiating each claim of 
confidential business information, as described in Sec. 68.152.
    8. Section 68.152 is added to read as follows:


Sec. 68.152  Substantiating claims of confidential business 
information.

    (a) An owner or operator claiming that information is confidential 
business information must substantiate that claim by providing 
documentation that demonstrates that the claim meets the substantive 
criteria set forth in 40 CFR 2.301.
    (b) Information that is submitted as part of the substantiation may 
be claimed confidential by marking it as confidential business 
information. Information not so marked will be treated as public and 
may be disclosed without notice to the submitter. If information that 
is submitted as part of the substantiation is claimed confidential, the 
owner or operator must provide a sanitized and unsanitized version of 
the substantiation.
    (c) The owner, operator, or senior official with management 
responsibility of the stationary source shall sign a certification that 
the signer has personally examined the information submitted and that 
based on inquiry of the persons who compiled the information, the 
information is true, accurate, and complete, and that those portions of 
the substantiation claimed as confidential business information would, 
if disclosed, reveal trade secrets or other confidential business 
information.
    9. Section 68.160 is amended by revising paragraphs (b)(1), (b)(7), 
and (b)(12) and adding paragraphs (b)(14) through (b)(18) to read as 
follows:


Sec. 68.160  Registration.

* * * * *
    (b) * * *
    (1) Stationary source name, street, city, county, state, zip code, 
latitude and longitude, method for obtaining latitude and longitude, 
and description of location that latitude and longitude represent;
* * * * *
    (7) For each covered process, the name and CAS number of each 
regulated substance held above the threshold quantity in the process, 
the maximum quantity of each regulated substance or mixture in the 
process (in pounds) to two significant digits, the five- or six-digit 
NAICS code that most closely corresponds to the process, and the 
Program level of the process;
* * * * *
    (12) If the stationary source has a CAA Title V operating permit, 
the permit number; and
* * * * *
    (14) Source or Parent Company E-Mail Address (Optional);
    (15) Source Homepage address (Optional)
    (16) Phone number at the source for public inquiries (Optional);
    (17) Local Emergency Planning Committee (Optional);
    (18) OSHA Voluntary Protection Program status (Optional);
    10. Section 68.165 is amended by revising paragraph (b) to read as 
follows:


Sec. 68.165  Offsite consequence analysis.

* * * * *
    (b) The owner or operator shall submit the following data:
    (1) Chemical name;
    (2) Percentage weight of the chemical in a liquid mixture (toxics 
only);
    (3) Physical state (toxics only);
    (4) Basis of results (give model name if used);
    (5) Scenario (explosion, fire, toxic gas release, or liquid spill 
and evaporation);
    (6) Quantity released in pounds;
    (7) Release rate;
    (8) Release duration;
    (9) Wind speed and atmospheric stability class (toxics only);
    (10) Topography (toxics only);
    (11) Distance to endpoint;
    (12) Public and environmental receptors within the distance;
    (13) Passive mitigation considered; and
    (14) Active mitigation considered (alternative releases only);
    11. Section 68.170 is amended by revising paragraph (b) to read as 
follows:


Sec. 68.170  Prevention program/Program 2.

* * * * *
    (b) The five- or six-digit NAICS code that most closely corresponds 
to the process.
* * * * *
    12. Section 68.175 is amended by revising paragraph (b) to read as 
follows:


Sec. 68.175  Prevention program/Program 3.

* * * * *
    (b) The five- or six-digit NAICS code that most closely corresponds 
to the process.
* * * * *
    13. Section 68.180 is amended by revising paragraph (b) to read as 
follows:


Sec. 68.180  Emergency response program.

* * * * *
    (b) The owner or operator shall provide the name and telephone 
number of the local agency with which emergency response activities and 
the emergency response plan is coordinated.
* * * * *
[FR Doc. 99-231 Filed 1-5-99; 8:45 am]
BILLING CODE 6560-50-P