So in the last month, I have heard four politicians lay claim that EPA’s amended Risk Management Plan rule will actually make “us all” much less safe because of the “public access” part of the amendments. So let’s see what all the fuss is about and what is scheduled to start on March 21st. I always like to remind politicians that in 1986 (after Bophal), they passed the Emergency Planning and Community Right to Know Act (EPCRA) so that communities can know what chemicals are transported and stored in their “backyards”. Within EPCRA there are these two (2) sections: Sections 311 & 312 which require businesses that have any hazardous chemicals used or stored in their workplace, they must maintain a Safety Data Sheet (SDS) AND submit the SDSs or a list of ALL hazardous chemicals, to their State Emergency Response Commission (SERC), Local Emergency Planning Committee (LEPC) and local fire department. Facilities must also submit an annual inventory of these chemicals by March 1 of each year to their SERC, LEPC and local fire department. The information submitted by facilities must be made available to the public. You’ll never guess this, but the hazardous chemicals covered by Sections 311-312 are also the RMP covered chemicals. But I digress, back to what’s in store for March as to “public access” to RMPs…
(emphasis added by me)
§68.210 Availability of information to the public.
(a) RMP availability. The RMP required under subpart G of this part SHALL BE AVAILABLE TO THE PUBLIC under 42 U.S.C. 7414(c) and 40 CFR part 1400. (see bottom of page for the contents of 40 CFR part 1400)
(b) Chemical hazard information. The owner or operator of a stationary source shall provide, upon request by any member of the public, the following chemical hazard information for all regulated processes, as applicable:
(1) Regulated substances information. Names of regulated substances held in a process;
(2) Safety data sheets (SDS). SDSs for all regulated substances located at the facility;
(3) Accident history information. Provide the five-year accident history information required to be reported under §68.42;
(4) Emergency response program. The following summary information concerning the stationary source’s compliance with §68.10(f)(3) or the emergency response provisions of subpart E:
(i) Whether the stationary source is a responding stationary source or a non-responding stationary source;
(ii) Name and phone number of local emergency response organizations with which the owner or operator last coordinated emergency response efforts, pursuant to §68.180; and
(iii) For stationary sources subject to §68.95, procedures for informing the public and local emergency response agencies about accidental releases;
(5) Exercises. A list of scheduled exercises required under §68.96; and
(6) LEPC contact information. Include LEPC name, phone number, and web address as available.
(c) Notification of availability of information. The owner or operator shall provide ongoing notification on a company Web site, social media platforms, or through other publicly accessible means that:
(1) Information specified in paragraph (b) of this section is available to the public upon request. The notification shall:
(i) Specify the information elements, identified in paragraph (b) of this section, that can be requested; and
(ii) Provide instructions for how to request the information (e.g. email, mailing address, and/or telephone or Web site request);
(2) Identify where to access information on community preparedness, if available, including shelter-in-place and evacuation procedures.
(d) Timeframe to provide requested information. The owner or operator shall provide the requested information under paragraph (b) of this section within 45 DAYS of receiving a request from any member of the public.
(e) Public meetings. The owner or operator of a stationary source shall hold a public meeting to provide information required under §68.42 as well as other relevant chemical hazard information, such as that described in paragraph (b) of this section, no later than 90 DAYS after any accident subject to reporting under §68.42.
(f) Classified information. The disclosure of information classified by the Department of Defense or other Federal agencies or contractors of such agencies shall be controlled by applicable laws, regulations, or executive orders concerning the release of classified information.
(g) CBI. An owner or operator asserting CBI for information required under this section shall provide a sanitized version to the public. Assertion of claims of CBI and substantiation of CBI claims shall be in the same manner as required in §§68.151 and 68.152 for information contained in the RMP required under subpart G of this part. As provided under §68.151(b)(3), an owner or operator of a stationary source may not claim five-year accident history information as CBI. As provided in §68.151(c)(2), an owner or operator of a stationary source asserting that a chemical name is CBI shall provide a generic category or class name as a substitute.
(emphasis added by me)
Subpart A—General
§1400.1 Purpose.
Stationary sources subject to the Chemical Accident Prevention Provisions of 40 CFR part 68 are required to analyze the potential harm to public health and welfare of hypothetical chemical accidents and submit the results of their analyses to the U.S. Environmental Protection Agency as part of risk management plans. This part governs access by the public and by government officials to the portions of risk management plans containing the results of those analyses and certain related materials. This part also RESTRICTS DISSEMINATION OF THAT INFORMATION by government officials.
§1400.2 Definitions.
CLICK HERE for definitions if needed
Subpart B—Public Access
§1400.3 Public access to paper copies of off-site consequence analysis information.
(a) General. The Administrator and the Attorney General shall ensure that any member of the public has access to a paper copy of OCA information in the manner prescribed by this section.
(b) Reading-room access. Paper copies of OCA information shall be available in at least 50 reading rooms geographically distributed across the United States and its territories. The reading rooms shall allow any person to read, but NOT REMOVE OR MECHANICALLY REPRODUCE, a paper copy of OCA information, in accordance with paragraphs (c) through (g) of this section and procedures established by the Administrator and Attorney General.
(c) Limited number. Any person shall be provided with access to a paper copy of the OCA information for UP TO 10 STATIONARY SOURCES located anywhere in the country, WITHOUT geographical restriction, in A CALENDAR MONTH.
(d) Additional access. Any person also shall be provided with access to a paper copy of the OCA information for stationary sources LOCATED IN THE JURISDICTION OF THE LEPC WHERE THE PERSON LIVES OR WORKS and for any other stationary source that has a VULNERABLE ZONE THAT EXTENDS INTO THAT LEPC’S JURISDICTION.
(e) Personal identification for access to OCA information without geographical restriction. Reading rooms established under this section shall provide a person with access to a paper copy of OCA information under paragraph (c) of this section only after a reading room representative has:
(1) Ascertained the person’s identity by VIEWING PHOTO IDENTIFICATION issued by a Federal, State, or local government agency to the person; AND
(2) Obtained the person’s signature on a sign-in sheet and a certification that the person has not received access to OCA information for more than 10 stationary sources for that calendar month.
(f) Personal identification for access to local OCA information. Reading rooms established under this section shall provide a person with access to a paper copy of OCA information under paragraph (d) of this section only after a reading room representative has:
(1) Ascertained where the person lives or works by viewing appropriate documentation; and
(2) Obtained the person’s signature on a sign-in sheet.
(g) Record keeping. Reading room personnel shall keep records of reading room use and certifications in accordance with procedures established by the Administrator and the Attorney General. These records shall be retained for no more than three years. Federal reading rooms will not index or otherwise manipulate the sign-in sheets according to individuals’ names, except in accordance with the Privacy Act.
§1400.4 Vulnerable zone indicator system.
(a) In general. The Administrator shall provide access to a computer-based indicator that shall inform any person located in any state whether an address specified by that person might be within the vulnerable zone of one or more stationary sources, according to the data reported in RMPs. The indicator also shall provide information about how to obtain further information.
(b) Methods of access. The indicator shall be available on the Internet or by request made by telephone or by mail to the Administrator to operate the indicator for an address specified by the requestor. SERCs, LEPCs, and other related state or local government agencies are authorized and encouraged to operate the indicator as well.
§1400.5 Internet access to certain off-site consequence analysis data elements.
The Administrator shall include only the following OCA data elements in the risk management plan database available on the Internet:
(a) The CONCENTRATION of the chemical (RMP Sections 2.1.b; 3.1.b);
(b) The PHYSICAL STATE of the chemical (RMP Sections 2.2; 3.2);
(c) The STATISTICAL MODEL used (RMP Sections 2.3; 3.3; 4.2; 5.2);
(d) The ENDPOINT USED FOR FLAMMABLES in the worst-case scenario (RMP Section 4.5);
(e) The DURATION OF THE CHEMICAL RELEASE for the worst-case scenario (RMP Section 2.7);
(f) The WIND SPEED during the chemical release (RMP Sections 2.8; 3.8);
(g) The ATMOSPHERIC STABILITY (RMP Sections 2.9; 3.9);
(h) The TOPOGRAPHY of the surrounding area (RMP Sections 2.10; 3.10);
(i) The PASSIVE MITIGATION SYSTEMS considered (RMP Sections 2.15; 3.15; 4.10; 5.10); and
(j) The ACTIVE MITIGATION SYSTEMS considered (RMP Sections 3.16; 5.11).
§1400.6 Enhanced local access.
(a) OCA data elements. Consistent with 42 U.S.C. 7412(r)(7)(H)(xii)(II), members of LEPCs and SERCs, and any other State or local government official, may convey to the public OCA data elements orally or in writing, as long as the data elements are NOT conveyed in the format of sections 2 through 5 of an RMP OR any electronic database developed by the Administrator from those sections. Disseminating OCA data elements to the public in a manner consistent with this provision does not violate 42 U.S.C. 7412(r)(7)(H)(v) and is not punishable under federal law.
(b) OCA information.
(1) LEPCs and related local government agencies are authorized and encouraged to allow any member of the public to read, but NOT remove or mechanically copy, a paper copy of the OCA sections of RMPs (i.e., sections 2 through 5) for stationary sources located within the jurisdiction of the LEPC and for any other stationary source that has a vulnerable zone that extends into that jurisdiction.
(2) LEPCs and related local government agencies that provide read-only access to the OCA sections of RMPs under this paragraph (b) are NOT required to limit the number of stationary sources for which a person can gain access, ascertain a person’s identity or place of residence or work, or keep records of public access provided.
(3) SERCs and related state government agencies are authorized and encouraged to allow any person to read, but not remove or mechanically copy, a paper copy of the OCA sections of RMPs for the same stationary sources that the LEPC in whose jurisdiction the person lives or works would be authorized to make available to that person under paragraph (b)(1) of this section.
(4) Any LEPC, SERC, or related local or State government agency that allows a person to read the OCA sections of RMPs in a manner consistent with this paragraph (b) shall not be in violation of 42 U.S.C. 7412(r)(7)(H)(v) or any other provision of federal law.
Subpart C—Access to Off-Site Consequence Analysis Information by Government Officials.
§1400.7 In general.
The Administrator shall provide OCA information to government officials as provided in this subpart. Any OCA information provided to government officials shall be accompanied by a copy of the notice prescribed by 42 U.S.C. 7412(r)(7)(H)(vi).
§1400.8 Access to off-site consequence analysis information by Federal government officials.
The Administrator shall provide any Federal government official with the OCA information requested by the official for official use. The Administrator shall provide the OCA information to the official in electronic form, unless the official specifically requests the information in paper form. The Administrator may charge a fee to cover the cost of copying OCA information in paper form.
§1400.9 Access to off-site consequence analysis information by State and local government officials.
(a) The Administrator shall make available to any State or local government official for official use the OCA information for stationary sources located in the official’s state.
(b) The Administrator also shall make available to any State or local government official for official use the OCA information for stationary sources not located in the official’s state, at the request of the official.
(c) The Administrator shall provide OCA information to a State or local government official in electronic form, unless the official specifically requests the information in paper form. The Administrator may charge a fee to cover the cost of copying OCA information in paper form.
(d) Any State or local government official is authorized to provide, for official use, OCA information relating to stationary sources located in the official’s state to other State or local government officials in that state and to State or local government officials in a contiguous state.
§1400.10 Limitation on public dissemination.
Except as authorized by this part and by 42 U.S.C. 7412(r)(7)(H)(v)(III), Federal, State, and local government officials, and qualified researchers are prohibited from disseminating OCA information and OCA rankings to the public. Violation of this provision subjects the violator to criminal liability as provided in 42 U.S.C. 7412(r)(7)(H)(v) and civil liability as provided in 42 U.S.C. 7413.
§1400.11 Limitation on dissemination to State and local government officials.
Except as authorized by this part and by 42 U.S.C. 7412(r)(7)(H)(v)(III), Federal, State, and local government officials, and qualified researchers are prohibited from disseminating OCA information to State and local government officials. Violation of this provision subjects the violator to civil liability as provided in 42 U.S.C. 7413.
§1400.12 Qualified researchers.
The Administrator is authorized to provide OCA information, including facility identification, to qualified researchers pursuant to a system developed and implemented under 42 U.S.C. 7412(r)(7)(H)(vii), in consultation with the Attorney General.
§1400.13 Read-only database.
The Administrator is authorized to establish, pursuant to 42 U.S.C. 7412(r)(7)(H)(viii), an information technology system that makes available to the public off-site consequence analysis information by means of a central database 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.