01-1349. Accidental Release Prevention Requirements; Risk Management Programs Under the Clean Air Act Section 112(r)(7); Distribution of Off-Site Consequence Analysis Information; Development of Read-Only Information Technology System and Qualified ...

AGENCY:

Environmental Protection Agency.

ACTION:

Notice of availability.

SUMMARY:

The Environmental Protection Agency (EPA) is developing two systems for providing access to information about the potential off-site consequences of accidental chemical releases from industrial facilities. One system would provide the public with “read-only” access to the information in electronic database form. The other system would provide qualified researchers with access to the information in paper or electronic database form. Both systems are required by section 112(r) of the Clean Air Act, as revised by the Chemical Safety Information, Site Security and Fuels Regulatory Relief Act (CSISSFRRA) of 1999. In this document we describe draft plans for these systems and request public comment on the plans and related issues.

DATES:

Comments should be submitted by March 19, 2001.

ADDRESSES:

Comments should be mailed to: Environmental Protection Agency, Office of Air and Radiation, Docket and Information Center, Ariel Rios Building, M6102, 1200 Pennsylvania Avenue, NW., Washington DC, 20460, Attn: Docket No. A-2000-58. By Federal Express or Courier: Waterside Mall, Room M1500, 401 M Street, SW, Washington DC 20460, Attn: Docket No. A-2000-58. Comments may be submitted on a disk in Wordperfect or Word formats. Please submit comments in duplicate. The draft plan for a qualified researcher system and supporting information used to develop that plan and the draft plan for a “read-only” information system are contained in Docket No. A-2000-58. The docket is available for public inspection and copying between 8 a.m. and 5:30 p.m., Monday through Friday (except government holidays), at Waterside Mall, Room M1500, 401 M Street, S.W., Washington, DC 20460. A reasonable fee may be charged for copying. The draft qualified researcher plan and the supporting information are also available on the Internet at http://www.epa.gov/​ceppo or by calling the Emergency Planning and Community Right-to-Know Hotline at [phone] (in the Washington, DC metropolitan area, [phone]).

FOR FURTHER INFORMATION CONTACT:

Dorothy McManus, Program Analyst, [phone], or Vanessa Rodriguez, Chemical Engineer, [phone], Chemical Emergency Preparedness and Prevention Office, Environmental Protection Agency (5104), 1200 Pennsylvania Avenue, NW., Washington, DC 20460.

SUPPLEMENTARY INFORMATION:

I. Background

Section 112(r)(7) of the Clean Air Act (CAA) establishes a program for the prevention and mitigation of industrial chemical accidents that could harm the surrounding community and environment. Facilities subject to the program are required to prepare risk management plans (RMPs) that include an analysis of the potential off-site consequences of hypothetical worst-case and alternative scenario chemical releases.

Under section 112(r)(7) as originally enacted, RMPs—including the off-site consequence analysis (OCA) portions—were to be available to the public. However, concerns were raised that potential Internet distribution of the OCA portions of RMPs would pose law enforcement and national security risks. In response to these concerns, CSISSFRRA was enacted in 1999. CSISSFRRA amended the Clean Air Act by adding a new subparagraph (H) to section 112(r)(7).

Under CAA section 112(r)(7)(H)(ii), EPA assessed the benefits of public access to the OCA portions of the RMPs and EPA's database compiled from those portions (“OCA information”), while the Department of Justice (DOJ) assessed the risks of Internet dissemination of the same information. Based on the assessments, both agencies issued a rule on August 4, 2000, governing the distribution of paper copies of OCA information (65 FR 48108) to the public.

The rule, which is fully described and explained in the Federal Register notice cited above, provides two ways for the public to obtain limited access to paper copies of OCA information. First, at 50 or more federal reading rooms located across the country, any member of the public may view a paper copy of the OCA information for the facilities located in the jurisdiction of the Local Emergency Planning Committee (LEPCs) where the person lives or works. (LEPCs are established under the federal Emergency Planning and Community Right-to-Know Act (EPCRA) and generally cover one or more counties.) In addition, a member of the public may see a paper copy of the OCA information for up to 10 facilities per month without regard to where the facility is located. Reading rooms may allow the public to read and take notes from, but not remove or mechanically copy, the paper copies of OCA information.

The rule's second avenue for the public to obtain paper copies of OCA information is through state and local agencies. The rule authorizes LEPCs and related local and state agencies to provide the public with read-only access to a paper copy of the OCA information for local facilities.

Apart from the rule, CSISSFRRA provides several other avenues for the public to access OCA information. In particular, CAA section 112(r)(7)(H)(viii) requires EPA, “[i]n consultation with the Attorney General and the heads of other appropriate Federal agencies, [to] establish an information technology system that provides for the availability to the public of off-site consequence analysis information by means of a central data base under the control of the Federal Government that contains information that users may read, but that provides no means by which an electronic or mechanical copy of the information may be made.” This provision, in short, calls on EPA to provide public access to OCA information for all facilities in electronic, read-only form.

CSISSFRRA also includes a provision for making OCA information available to “qualified researchers.” CAA section 112(r)(7)(H)(vii) requires EPA , “[i]n consultation with the Attorney General, [to] develop and implement a system for providing [OCA] information, including facility identification, to any qualified researcher, including a qualified researcher from industry or any public interest group.” That section further provides that “[t]he system shall not allow the researcher to disseminate, or make available on the Internet, the [OCA] information, or any portion of the [OCA] information, received” under the system.

II. Draft System for Public Information Technology System

A. Description of Draft System

After consulting with DOJ and other appropriate agencies, EPA is considering an information technology (IT) system that would provide the public with read-only access to OCA information in electronic form by means of stand-alone or restricted computers. The computers would contain a database compiled from all of the RMPs submitted to EPA. The database would include the OCA portions of RMPs along with information about facilities' accident prevention programs, accident history and emergency response plans.

An IT system computer would provide no more than read-only access by having all of its external communication ports and disk drives removed or physically disabled so that there would be no way to attach the computer to a printer or other external device. Essentially, the only items on the computer would be a monitor, hard disk, and CD-ROM reader. There also would be locks on the case of the computer so that the hard drive could not be removed and stolen, and the case would be bolted to the desk or located in a locked room, so that the computer could not be stolen.

The same precautions would maintain EPA control of the IT system's database. That database would not be connected to EPA's central database because of the potential for hacking. However, EPA would periodically update the IT system's database to keep it reasonably current.

To make the IT system user-friendly, EPA would equip it with software that would allow users to query on various types of information, such as chemical name and industry sector. For example, users could ask the system to pull up the RMPs, including OCA information, for facilities that use a particular chemical or belong to the same industry sector. At the same time, the software would not allow queries on any OCA data elements.

EPA would introduce the IT system in one location at EPA Headquarters in Washington, D.C. That location would be open to the public during normal working hours on Mondays through Fridays. Currently, members of the public visiting EPA's headquarters must sign in and show identification to gain entry to the building. The same would be true for users of the IT system.

B. Facility Identification Issue

An important remaining issue in EPA's development of an IT system is whether the system should identify facilities by providing the name and address. The system would include all of the data in the OCA sections of RMPs (sections 2 through 5). It would also include the information in RMPs about prevention programs, accident history and emergency response plans. Members of the public using the system would thus be able to view OCA information in the context of a facility's overall risk management program. They would also be allowed to view an unlimited number of facilities' information. The issue is whether the system should reveal the names or locations of facilities.

As noted above, EPA and DOJ issued a rule that provides any member of the public with read-only access to paper copies of OCA information for facilities in the LEPC jurisdiction where the person lives or works and for up to 10 facilities per month regardless of where the facility is located. The agencies based the rule on assessments of the risks and benefits of broad public dissemination of OCA information, including facility identification. The agencies concluded that posting of a large OCA database on the Internet would pose a significant national security and law enforcement risk, while public access to OCA information would provide significant chemical safety benefits. The agencies thus decided to reduce the risk of Internet posting while preserving the public availability of OCA information by providing any member of the public with read-only access to paper copies of OCA information for a limited number of facilities.

In light of the rule and assessments underlying it, EPA is considering whether the IT system should include facility identification information. A database including that information would provide users with an efficient means of identifying and learning about facilities that may put them at risk. At the same time, such a database could undercut the security purposes that the rule's limits on public access to paper copies of OCA information are intended to serve. A database excluding the information, while not permitting users to access RMPs for named facilities, could allow users to identify and study trends in chemical safety among facilities using the same chemical or process. It could also allow users to identify facilities similar to ones for which the user had obtained read-only access to OCA information in paper form. Comparing similar facilities would allow members of the public to assess a particular facility's chemical safety practices.

EPA requests comment on the issue of whether the IT system should include facility identification information and how useful such a system would be without that information. EPA also requests comment on whether we could address any security concerns raised by an IT system with facility identification information by limiting the number of outlets for the system and adequately securing those outlets.

III. Draft System for Qualified Researcher Access to OCA Information

A. Description of Draft System

EPA has developed draft guidance, in consultation with DOJ, for implementing a qualified researcher (QR) system. The draft guidance describes the background of the RMP program, CSISSFRRA and the QR provision, the factors EPA considered relevant to developing a QR system, and the potential terms of the system itself.

As noted above, CSISSFRRA requires that the QR system not allow researchers to disseminate the OCA information, or any portion of the OCA information, they receive under the system. This restriction reflects the fact that under the system, qualified researchers are to receive the most comprehensive and manipulable form of OCA information—EPA's OCA database containing OCA data and identification information for all covered facilities. QR access to EPA's OCA database thus entails some risk of a large OCA database becoming broadly available, the same risk the rule for public access is designed to address. Consequently, EPA has sought to develop a system that would adequately screen applicants to identify only bona fide researchers and preclude the release of OCA information in a form or to an extent that could pose that same risk.

The system described in the draft QR guidance contains potential criteria for identifying a QR, including experience in conducting research in relevant subject matter areas and ability to protect OCA information from dissemination. The draft system also calls for any QR to sign a consent agreement acknowledging that dissemination of OCA information except as authorized by law is a crime and committing the QR to protect OCA information from unauthorized dissemination. The draft consent agreement provides for significant financial penalties for failure to meets its terms.

A copy of the draft guidance is contained in Docket No. A-2000-58 and may be viewed at EPA's website or obtained by calling the EPCRA Hotline. The addresses and numbers for these outlets are provided in the “Addresses” section of this notice.

B. Facility Identification Issue

Like the IT system, the QR system raises an issue related to facility identification. As noted above, a QR will have access to OCA information, including facility identification information. A QR will also be subject to the prohibition in CSISSFRRA and the public access rule against distributing OCA information except as authorized by the law and regulations. The question EPA must still address is whether a QR should be allowed to publish OCA data, as distinct from “OCA information,” for identified facilities.

“OCA information” is defined by CSISSFRRA and the public access rule as the OCA portions of RMPs and any EPA database derived from those portions. CSISSFRRA and the rule make clear that while OCA information may not be disseminated to the public except in specified ways, there is no restriction on the dissemination of the data reported in the OCA portions of RMPs so long as the data is conveyed in a format different than the OCA portions of RMPs or EPA's OCA database. (The rule captures this distinction by defining a new term, “OCA data elements,” to refer to OCA data in a format other than the restricted RMP and EPA database formats.) The distinction reflects that fact that the RMP and EPA database formats are relatively easy to post on the Internet and thus pose the greatest risk of broad dissemination of a large OCA database.

At the same time, the QR provision in CSISSFRRA provides that the system “shall not allow the researcher to disseminate * * * the [OCA] information, or any portion of the [OCA] information,” the researcher receives under the system. There is also concern that a QR could potentially defeat the purpose of the statutory and regulatory limits on the dissemination of “OCA information” by publishing OCA data for a large number of identified facilities. We are thus considering whether the QR system should place limits on a QR's ability to publish OCA data for identified facilities. Among the limits being considered are a bar on publication of OCA data for identified facilities and a numerical limit on the number of identified facilities for which OCA data could be published. Under either of these alternatives, there would be no limit on the amount of OCA data that a QR could publish without facility identification. We are also considering the alternative of not restricting the publication of OCA data for identified facilities.

We request comment on this issue and the alternatives being considered for addressing it. In particular, we would like to know why researchers might find it necessary to publish OCA data for identified facilities and the number of facilities that might be involved. Our review of past publications on chemical safety indicates that much useful research on chemical safety has been published without naming the facilities that were studied. We are aware, however, that some researchers, especially those affiliated with public interest groups, are interested in identifying facilities in an industry or geographical area that have notably good or bad safety records or programs. We are therefore interested in receiving comments on how useful a QR system would be if it were to include one or the other of the restrictions being considered.

In considering this question, it should be noted that CSISSFRRA and the rule prohibit “covered persons,” including a QR, from publishing statewide or national rankings of RMP facilities based on OCA information. This prohibition is likely to lead researchers themselves to limit the number of facilities they identify, with or without OCA data. It is also worth noting that the draft QR system defines “research” as more than regurgitation or reformatting of available information. Consequently, a QR applicant must show that he or she needs OCA information to learn something new, such as industry averages and ranges. In short, an applicant cannot obtain OCA information merely to publicize OCA data. We welcome comments on whether the QR system should include restrictions on publication of OCA data for identified facilities and, if so, what those restrictions should be. We also welcome comment on any other aspect of the draft guidance.

Dated: December 28, 2000.

Timothy Fields, Jr.,

Assistant Administrator for Solid Waste and Emergency Response.