The Agency agrees that either of these approaches can produce an
audit reflecting regulatory compliance for each RMP prevention program
element at each covered process. However, where an owner or operator
chooses to perform such a representative sampling approach, under
either method (or a combination of both methods) they must demonstrate
that the information audited is truly reflective of regulatory
compliance for each process at the source. If the owner or operator can
demonstrate that an audit of an accident prevention provision at one or
more processes is representative of the owner's compliance with the
prevention provision at other processes at the source, then a source
may use the review of that aspect in one process to address and
evaluate other processes, so long as all prevention requirements are
evaluated and addressed for all processes at the source either directly
or by such representative testing every three years. All covered
processes and units must be in the pool from which the representative
sample is selected, and any findings of the audit must be addressed,
and deficiencies corrected at all units. If a facility implements
representative sampling to satisfy compliance audit requirements for
multiple processes, the Agency will evaluate whether non-compliance
with an RMP prevention program element is also evidence of inadequate
compliance audit procedures.
b. Rescind Requirement To Include Findings From Incident Investigations
in Hazard Reviews
    Several commenters expressed support for the proposal to rescind
the requirement to include findings from incident investigations in
hazard reviews for Program 2 sources. A trade association stated that
the requirement to include this information in a hazard review is
essentially a requirement to repackage this information, placing
burdens on facilities already expending resources on implementing
findings from the incident investigation, while providing no new
benefit, arguing that it places an even heavier burden on small
businesses, which make up a greater percentage of processes subject to
Program 2 requirements. A few commenters expressed opposition to the
proposal to rescind the requirement. Multiple State elected officials
commented that eliminating the requirement for hazard reviews to
identify findings from incident investigations that show
vulnerabilities that could cause accidental releases, would weaken
hazard reviews that evaluate the dangers associated with the regulated
substances, processes and procedures at a facility.
    EPA Response: Although not rescinding this change in the Program 2
prevention program requirements would not conflict with the OSHA PSM
standard, which is equivalent to RMP Program 3, EPA is rescinding the
provision to keep Program 2 requirements less burdensome than Program
3, maintaining the pre-Amendments balance of burdens on smaller
entities. This is in keeping with the design for less rigorous
requirements and recordkeeping for Program 2 facilities. Pre-Amendments
Sec.  68.50 (a)(2) hazard review required that the review identify
opportunities for equipment malfunction and human errors that could
cause an accidental release. The Amendments rule added the requirement
to include findings from incident investigations in the hazard review.
EPA expects that Program 2 facilities are already using incident
investigations to identify situations that could cause an accidental
release. Under the pre-Amendments incident investigation requirements,
Program 2 facilities are required to promptly address and resolve
investigation findings and recommendations, with resolutions and
corrective actions documented.
c. Rescind Employee Training Requirements for Supervisors Responsible
for Process Operations
    A few industry trade associations expressed support for EPA's
proposed rescission of the requirement to include supervisors
responsible for process operations under the training requirements. One
commenter stated that the rescission eliminates any ambiguity regarding
the number and types of employees who must receive training. The
commenter stated that without clear guidance regarding the scope of the
employees covered by the provision, the provision would be difficult
for owner/operators to implement with certainty. Additionally, an
industry trade association stated that in the proposed Reconsideration
rule, EPA mischaracterized the change in the training requirements as a
minor wording change. The commenter stated that the term supervisor is
vague and potentially overly broad. The commenter also stated that the
Amendments rule was a departure from the prior regulations and could
create ambiguity regarding who EPA intends to be trained. A trade
industry association stated that the provision is in conflict with the
OSHA PSM standard and increases costs for facility training. Similarly,
another industry trade association stated that EPA's use of the phrase,
``involved in operating a process'' appears to be inconsistent with
OSHA's interpretation of the PSM standard. The commenter stated that
EPA intends the phrase to include process engineers and maintenance
technicians, but that OSHA took the opposite stance and included within
the class of employees involved in operating a process only ``direct
hire employees not involved in maintenance.'' (February 24, 1991, 57 FR
6356). In addition, the commenter indicated that requiring the same
level of training for supervisors as required for operators is not
practical or consistent with the approach prior to 2017 under EPA's
regulations or OSHA's regulations.
    A few commenters expressed opposition to EPA's proposal and
provided various reasons why EPA should retain the provision. For
example, a State government agency stated that the proposed rescission
would decrease safety training. A labor union opposed the rescission of
the provision, stating that ``training is as important for supervisors,
maintenance technicians, and control room operators as it is for the
pilots of commercial airliners.'' The commenter stated that
implementing the training requirements

would improve facility safety. Additionally, an advocacy group
expressed opposition to EPA's proposal to rescind the provision,
indicating that employees must meet competency criteria before
operating covered processes.
    EPA Response: The final rule rescinds the language added to the
Program 2 (Sec.  68.54) and Program 3 (Sec.  68.71) training
requirements which more explicitly included supervisors and others
involved in operating a process. However, as EPA noted in the proposed
Amendments rule, EPA has traditionally interpreted the training
provisions of Sec. Sec.  68.54 and 68.71 to apply to any worker that is
involved in operating a process, including supervisors. This is
consistent with the OSHA definition of employee set forth at 29 CFR
1910.2(d) (see 81 FR 13686, Monday, March 14, 2016). Although EPA did
not view the added language as being inconsistent with OSHA PSM, we are
rescinding the added language to maintain wording consistent with the
OSHA PSM training requirements in 29 CFR 1910.119(g) and not create
additional ambiguity or confusion about the type of employees who must
receive training.
d. Rescind Requirement To Keep Process Safety Information Up-to-Date
    An industry trade association supported EPA's proposal to rescind
the requirement to keep process safety information (PSI) up-to-date.
The commenter stated that the provision is likely to result in
significant costs that EPA has failed to justify as PSI documentation
for a single RMP-covered facility can easily consist of thousands of
pages of complex information. In contrast, two commenters opposed EPA's
proposal to rescind the provision. An advocacy group and Multiple State
elected officials stated that out-of-date PSI could lead to dangerous
system errors, and recommended EPA maintain the provision.
    EPA Response: The language explicitly requiring that process safety
information for Program 3 processes be kept up-to-date has been
rescinded in the final rule because it is unnecessary. The language
which is being rescinded in the final rule would only have affected
Program 3 processes. However, for Program 3 processes, the management
of change requirements of Sec.  68.75 already addressed changes that
affect covered processes, and Sec.  68.75(d) already required process
safety information to be updated when changes covered by the management
of change provisions result in a change in the process safety
information. The safety information requirements of Sec.  68.48 for
Program 2 processes already required the owner or operator to compile
and maintain up-to-date safety information, and to update safety
information if a major change occurs.
e. Rescind Requirement To Address Incident Investigation Findings and
Any Other Potential Failure Scenarios in the PHA
    Several commenters expressed support for the proposal to rescind
the requirement to address incident investigation findings and any
other potential failure scenarios in the PHA (Program 3). Two industry
trade associations stated that facilities believe that requiring
incident investigation findings to be addressed during the PHA process
is a duplication of time and effort, increasing the cost of conducting
a PHA without any corresponding safety benefit. Additionally, an
industry trade association expressed support for EPA's proposed
rescission, reasoning that it would avoid inconsistency with the PSM
standard. The commenter stated that instead of being a complimentary
policy, the RMP provision creates unnecessary paperwork burdens on
facilities. Another commenter indicated that as written, the findings
to be reviewed would include findings from all incident investigations
for the entire history of the facility, and that the phrase ``as well
as any other potential failure scenarios'' is inherently vague and
ambiguous. A few commenters expressed opposition to the proposal to
rescind the requirement. Multiple State elected officials commented
that eliminating the requirement that PHAs address the findings from
all incident investigations, as well as any other potential failure
scenarios, would weaken hazard reviews that evaluate the dangers
associated with the regulated substances, processes and procedures at a
facility.
    EPA Response: The final rule rescinds the requirement to address
incident investigation findings and any other potential failure
scenarios in the PHA. While EPA disagrees that the provision was
inherently vague, EPA is rescinding the provision so that the Program 3
PHA requirements remain consistent with the OSHA PSM standard, and to
prevent unduly burdensome or duplicative requirements. EPA does not
have a record showing significant benefits of the added prevention
program provisions. Without such benefits, EPA believes it is better to
take its traditional approach of maintaining consistency with OSHA PSM.
The creation of additional complexity and burden associated with new
provisions where EPA has not demonstrated any benefit is evidence of
the new prevention provisions' impracticability and that the rule
divergence is unreasonable. We also note that this requirement is
unnecessary because under section 68.67(c)(2) the PHA must already
identify ``any previous incident which had a likely potential for
catastrophic consequences'' and paragraph (c)(4) requires the PHA to
consider the ``Consequences of failure of engineering and
administrative controls.'' Therefore, a properly-conducted PHA should
already consider the findings from previous incident investigations,
and the rescinded language built in a difference with PSM without
adding anything to the protectiveness of the RMP rule. The requirement
will revert back to the pre-Amendments rule language that required the
PHA to address any previous incident which had a likely potential for
catastrophic consequences.
f. Rescind Requirement To Report Incident Investigation and Accident
History Information in the RMP Prior To De-Registration
    An industry trade association commented that they supported the
proposed rescission of the requirement for reporting incident
investigation and accident information in the RMP prior to de-
registration and argued that there would be no safety benefit added by
performing requirements prior to deregistration. An industry trade
association argued that EPA did not provide quantifiable improvements
that could result due to implementation of incident investigation
requirements prior to de-registration.
    EPA Response: EPA is finalizing the rescission of the Amendments
rule requirement to report incident investigation and accident history
information prior to de-registering, as this provision would impose
additional regulatory requirements (i.e., beyond the requirement to de-
register) on sources that are no longer subject to the rule.

V. Rescinded and Modified Information Availability Amendments

A. Summary of Proposed Rulemaking

    In the RMP Amendments rule, EPA added several new provisions to
Sec.  68.210--Availability of information to the public. These
included:
    (1) A requirement for the owner or operator to provide, upon
request by any member of the public, specified chemical hazard
information for all regulated processes, as applicable, including:

     Names of regulated substances held in a process,
     SDSs for all regulated substances located at the facility,
     Accident history information required to be reported under
Sec.  68.42,
     Emergency response program information, including whether
or not the source responds to releases of regulated substances, name
and phone number of local emergency response organizations, and
procedures for informing the public and local emergency response
agencies about accidental releases,
     A list of scheduled exercises required under Sec.  68.96
(i.e., new emergency exercise provisions of the RMP Amendments rule),
and; Local Emergency Planning Committees (LEPC) contact information;
    (2) A requirement for the owner or operator to provide ongoing
notification on a company website, social media platforms, or through
other publicly accessible means that the above information is available
to the public upon request, along with the information elements that
may be requested and instructions for how to request the information,
as well as information on where members of the public may access
information on community preparedness, including shelter-in-place and
evacuation procedures;
    (3) A requirement for the owner or operator to provide the
requested chemical hazard information within 45 days of receiving a
request from any member of the public, and;
    (4) A requirement to hold a public meeting to provide accident
information required under Sec.  68.42 as well as other relevant
chemical hazard information, no later than 90 days after any accident
subject to reporting under Sec.  68.42.
    Additionally, the RMP Amendments rule added provisions to Sec.
68.210 to address classified information and confidential business
information (CBI) claims for information required to be provided to the
public and made a minor change to the existing paragraph (a) RMP
availability, to add a reference to 40 CFR part 1400 for controlling
public access to RMPs.
    For security reasons, EPA proposed to rescind the requirements for
providing to the public upon request, chemical hazard information and
access to community emergency preparedness information in Sec.
68.210(b) through (d), as well as rescind the requirement to provide
other chemical hazard information at public meetings required under
Sec.  68.210(e). Alternatively, EPA proposed to rescind all of the
information elements in Sec.  68.210(b) through (d), as well as rescind
the requirement to provide other chemical hazard information at public
meetings required under Sec.  68.210(e), except for the requirement in
Sec.  68.210(b)(5) for the owner or operator to provide a list of
scheduled exercises required under Sec.  68.96. EPA proposed to retain
the requirement in Sec.  68.210(e) for the owner/operator of a
stationary source to hold a public meeting to provide accident
information required under Sec.  68.42 no later than 90 days after any
accident subject to reporting under Sec.  68.42 but proposed to clarify
that the information to be provided is the data listed in Sec.
68.42(b). This data would be provided for only the most recent
accident, and not for previous accidents covered by the 5-year accident
history requirement of Sec.  68.42(a). EPA proposed to retain the
change to paragraph (a) ``RMP availability'' which added availability
under 40 CFR part 1400 (which addresses restrictions on disclosing RMP
offsite consequence analysis under CSISSFRRA).\94\ The provisions for
classified information in Sec.  68.210(f) were also proposed to be
retained but were separately proposed to be incorporated into the
emergency response coordination section of the rule.
---------------------------------------------------------------------------

    \94\ EPA-HQ-OEM-2015-0725-0135.
---------------------------------------------------------------------------

    EPA proposed to delete the provision for CBI in Sec.  68.210(g),
because the only remaining provision for public information
availability in this section (other than the provision for RMP
availability) would have been the requirement to provide at a public
meeting, the information required in the source's five-year accident
history, which Sec.  68.151(b)(3) prohibits the owner or operator from
claiming as CBI. EPA proposed to rescind the requirements in Sec.
68.160(b)(21) to report in the risk management plan, the method of
communication and location of the notification that hazard information
is available to the public, pursuant to Sec.  68.210(c).

B. Summary of Final Rule

    After review and consideration of public comments, EPA is
finalizing the information availability related changes, as proposed
(including rescinding the requirement for the owner or operator to
provide a list of scheduled exercises required under Sec.  68.96), but
is modifying the public meeting requirement. The final rule modifies
the requirement in Sec.  68.210(e) for the owner/operator of a
stationary source to hold a public meeting to provide accident
information required under Sec.  68.42(b) by limiting the trigger for
the requirement to the occurrence of an RMP reportable accident with
offsite impacts specified in Sec.  68.42(a) (i.e., known offsite
deaths, injuries, evacuations, sheltering in place, property damage, or
environmental damage). This is a modification to the RMP Amendments
rule that required a public meeting after any accident subject to
reporting under Sec.  68.42, including accidents that resulted in on
site impacts only. This action rescinds requirements to report in the
risk management plan, the method of communication and the location of
the notification that chemical hazard information is available to the
public, pursuant to Sec.  68.210(c). The final rule retains reporting
in the RMP, as required by Sec.  68.160(b)(21), whether a public
meeting was held following an RMP accident, pursuant to Sec.
68.210(b). Reporting of a public meeting under Sec.  68.160(b)(22) [now
redesignated as Sec.  68.160(b)(21)], is also added to the list of RMP
registration information in Sec.  68.151(b)(1) that are excluded from
being claimed as CBI.

C. Discussion of Comments and Basis for Final Rule Provisions

1. Overview of Basis for Final Rule Provisions
    As noted above, the primary basis for our decisions on rescinding
or modifying provisions adopted in 2017 regarding information
availability is our view that the 2017 provisions underweighted
security concerns in balancing the positive effects of information
availability on accident prevention and the negative effects on public
safety from the utility to terrorists and criminals of the newly
available information and dissemination methods. One important factor
not discussed or assessed in 2017 when balancing these concerns was the
utility for terrorists and criminals of consolidating information that
may otherwise be available publicly and allowing for anonymous access.
We rely on the findings of DOJ in its report required by CSISSFRRA,
which found that assembling the otherwise-public data is valuable in
targeting sources for criminal acts. The report notes that the list of
factors US Special Operations Command (US SOC) held to be useful in
targeting vulnerable assets includes response information, information
on which chemicals are present at a facility, knowledge that there were
offsite consequences to a chemical release, and other factors. While
most of the categories of information specified by US SOC are outside
the OCA information restricted by CSISSFRRA,

the 2017 provisions would make such information newly and anonymously
accessible via the web and other means. This anonymous access to
consolidated information already available, and new mandated
disclosures, undermines the practicability of the changes made in the
2017 rule.
    Except for the requirement to hold a public meeting after an
accidental release having offsite impacts, we have decided to return to
the public information availability provisions that struck a balance
between right-to-know and security. This balance allows for access and
legitimate use of RMP data through multiple means of access. For
members of the public, such means include viewing RMPs at Federal
government reading rooms, obtaining RMP information from state or local
government officials who have obtained RMP data access, or submitting a
request to EPA under the FOIA (for non-OCA RMP information). Owners and
operator of regulated facilities may also disclose RMP information for
their own facilities if they so choose. State and local emergency
response officials may obtain full access to RMP information by
submitting a request to EPA.\95\ Nevertheless, we agree that emergency
responders would benefit from easier access to emergency planning and
response-related information. We believe that, regardless of the cause
of the West Fertilizer incident, a major lesson learned is that better
communication and coordination between emergency responders and
facilities would improve safety. Annual coordination added by the 2017
and mostly retained by this final rule should provide this benefit in a
more secure way than the 2017 provisions.
---------------------------------------------------------------------------

    \95\ See 40 CFR Chapter IV.
---------------------------------------------------------------------------

    In retaining the requirement to hold a public meeting after an
incident that has offsite impacts, we believe we have focused the
requirement for such meetings on the events of greatest public
interest. The public has multiple interests that are materially
advanced by the information required to be addressed in such meetings.
In addition, public exchanges of information will improve the quality
of incident investigations because the public may possess information
the facility does not, such as information about public impacts. Public
meetings conveying initial results of incident investigations to the
extent known are not duplicative of media reports or release reports
under other requirements, which in the case of CERCLA and EPCRA are
based on initial knowledge during the first moments of an incident. We
have limited the information required to be conveyed at meetings to the
preliminary information that ultimately will be required to be reported
in the RMP in order to limit the potential for security-sensitive
information being released at public meetings. Much of this information
is factual, while the rest is primarily based on the best judgment of
the owner or operator. With the modifications of the public meeting
requirement in the final rule, we believe we have struck a reasonable
and practicable balance of the public's need for information about
local incidents, the security of the source and the community, and
other protected interests of the source.
2. Comments on Information Availability Provisions
a. EPA's Security Rationale for Rescinding Information Availability
Provisions
    Many commenters opposed the Amendments rule's expanded public
disclosure requirements, arguing that they would create a security
risk. An industry trade association commented that databases are
especially vulnerable to terrorist data mining, where an actor could
shop for especially vulnerable sites. Another trade association agreed,
stating that Toxic Release Inventory (TRI) regulations and EPCRA
already provide for information disclosure but, importantly, not the
kind of unified information source that a bad actor could use to seek
out the most vulnerable sites. A State government agency commented that
the Reconsideration rule's rescissions would help protect against
criminal acts by anonymous readers. An industry trade association
supported EPA's proposed rescission of the requirements, arguing that
under the pre-Amendments rule parties with legitimate interests can
access information through more secure, controlled means. An industry
trade association cited past comments from the Federal Bureau of
Investigation and DHS to express concern that disclosure requirements
could raise security issues. Another commenter expressed support for
making chemical hazard information available to emergency response
personnel, but not the public at large, because of security concerns.
Another industry trade association stated that while it supported
efforts to enhance information sharing and collaboration between
facility owners, LEPCs, first responders, and members of the public,
this should be done in a manner that balances security and safety
considerations, and the Agency had not adequately justified the
information requirements of the Amendments rule. Other commenters also
opposed disclosing chemical hazard information on the basis of
confidentiality, the costs of disclosure, the availability of
information through other means (such as the FOIA and TRI), and
security risks.
    Other commenters disagreed with the proposed rule's security
rationales. A private citizen argued that the Amendments rule's
information provisions would make little difference to terrorists who
already have access to significant amounts of information. A
professional engineer commented that the RMP information that would
remain public under the Reconsideration rule and other legally required
disclosures would be sufficiently helpful to potential terrorists. He
stated that enough information is already publicly available to create
your own worst-case analysis, and that the Reconsideration rule would
not significantly impact this issue. The commenter stated that relevant
security concerns depend neither on the Amendments or Reconsideration
rules, but rather depend on CSISSFRRA, and argued that withholding
information for security purposes has harmed community planning. A
tribal government argued that EPA cannot demonstrate any real security
risk that would be caused or exacerbated by information disclosure. It
added that past thefts and incidents referenced in the rulemaking were
not caused by information disclosure. Other commenters also contended
that there is no connection between terrorist threats and information
sharing, or that EPA has not made a serious case that terrorist threats
due to information reporting requirement are substantial, or that the
claimed security benefits of the proposed rule are substantial. An
advocacy group cited testimony from a chemical company that, in
relevant part, involved the company abusing security laws. The company
testified to doing so in order to hide from the public information
about a deadly accident at one of their facilities. The group also
stated that, while EPA provided no evidence of information availability
abetting terrorist attacks, there is evidence of emergency responders
struggling to respond to chemical accidents because of a company's
refusal to share information.
    Other commenters argued that public disclosure could, by improving
public safety and responsiveness, reduce the threat of terrorism or
intentional harm. An anonymous commenter stated that information
availability, and the measures the public can take with information to
protect themselves, help allay terrorism risks. A joint submission from
multiple advocacy groups and

other commenters stated that EPA failed to consider benefits of
improved information sharing, especially in preventing or mitigating
terrorist attacks by better preparing first responders and the
community. The commenters argued that EPA must consider the security
benefits of information sharing if the agency considers its risks.
Finally, the commenters noted that, while security breaches have
resulted in accidents at facilities, these were still accidents--there
was no terrorist intent in the breaches or an intent to cause a
chemical release. The group stated that the Congressional Research
Service estimated the threat of terrorist attacks at chemical
facilities is low compared with that of accidents. A private citizen
stated that law and the judiciary generally favor a right-to-know over
security interests. He stated that efforts to prevent disclosure are
futile.
    Multiple State elected officials commented that EPA has failed to
supply a reasoned explanation for rescinding the community information
sharing requirements included in the Amendments rule. The commenters
acknowledged the need for the RMP regulations to balance between
increasing public awareness of chemical hazards and maintaining
facility security but concluded that the proposal upsets that balance
by focusing too much on the latter concern without addressing the
myriad benefits of increased public awareness.
    An advocacy group stated that EPA's rationale for rescinding the
online notification requirements is arbitrary and capricious. The group
stated that EPA relied on the redundancy of the measure with the role
of LEPCs. However, it asserted that LEPC websites are often inadequate,
making necessary the requirement that facilities provide notification
of available information.
    EPA Response: EPA agrees that anonymous access to sensitive
chemical facility hazard information could increase the risk of
criminal acts and terrorism against regulated facilities, and believes
the pre-Amendments rule's existing provisions for reading room access
to RMPs, combined with the remaining Amendments rule information
availability provisions (i.e., enhanced local coordination requirements
and public meeting requirements) strike an appropriate balance between
community right-to-know and security. EPA also now believes requiring
additional chemical facility hazard and emergency response information
to be made available to the public imposed unnecessary burdens on
regulated facilities.
    After further review of the potential security concerns of the
Amendments rule information availability provisions, EPA believes that
these concerns have merit. Section 68.205 from the proposed RMP
Amendments rule listed specific items of information that the owner or
operator must provide to the LEPC or local emergency response officials
upon request, but it did not include an open-ended provision requiring
the owner or operator to provide any other information that local
responders identify as relevant to local emergency response planning.
By including such a provision in the final RMP Amendments rule, EPA may
have inadvertently opened the door to local emergency officials
requesting and receiving security-sensitive information even beyond the
specific items included in Sec.  68.205 of the proposed RMP Amendments
about which petitioners and others had raised concerns. EPA believes
that the rescission of the chemical hazard information availability
provisions in Sec.  68.210 will provide security benefits relative to
the 2017 Amendments rule by eliminating the security concerns created
by the Amendments rule provisions.
    Another important consideration in EPA's final rule decision is to
avoid providing anonymous access to consolidated chemical hazard
information. As EPA indicated in the proposed rule, the combination of
mandatory disclosure elements as required under the Amendments is
generally not already available to the public from any single source.
EPA believes that the consolidation of the required chemical hazard and
facility information may present a more comprehensive picture of the
vulnerabilities of a facility than would be apparent from any
individual element and requiring it to be made more easily available to
the public from a single source (i.e., the facility itself) could
increase the risk of a terrorist attack on some facilities.
Additionally, as State petitioners and other commenters have pointed
out, the Amendments made no provision for screening requesters of such
information or for the owners or operators of regulated facilities to
restrict what information was provided to a requester or to appeal a
request.
    Regarding commenters' claims that the Amendments rule's information
provisions would make little difference to terrorists who already have
access to significant amounts of information, EPA agrees that under the
final Reconsideration rule, information on most of the individual
disclosure elements required under the Amendments would still be
available via other means, such as by visiting a Federal RMP reading
room, requesting information from an LEPC, or by making a request under
the FOIA. However, this information would not be available in a
consolidated form that may readily identify facility vulnerabilities,
and in each case a requester could be required to identify themselves
before gaining access to the information. FOIA requests require a name
and U.S. state or territory address to receive information. Federal
Reading Rooms require photo identification issued by a Federal, state,
or local government agency such as a driver's license or passport.
These requirements to accurately identify the party requesting the
information may provide a deterrent to those who seek to obtain
chemical information for a facility for terrorist purposes without
unduly impeding access to the information by those in the nearby
community with a right-to-know.
    EPA disagrees with commenters who claim that there are no real
security risks that would be caused or exacerbated by information
disclosure, and that the reporting requirements in the information
availability provisions of the Amendments rule did not create security
concerns. As a result of the CSISSFRRA (Pub. L. 106-40), the DOJ
performed an assessment of the increased risk of terrorist or other
criminal activity associated with posting off-site consequence analysis
information on the internet. In that assessment, DOJ found that the
increased availability of information would increase the risk of the
misuse of information by criminals or terrorists, that criminals and
terrorists had already sought to target U.S. chemical facilities, and
that such threats were likely to increase in the future.\96\ With
respect to OCA information, DOJ found that the assembly of information
that was otherwise public had value in targeting. See DOJ report at 41.
Furthermore, the report noted that the US Special Operations Command
views information about response plans, which would not be OCA data,
would be of value in target selection. See DOJ Report at 38-39.
---------------------------------------------------------------------------

    \96\ Department of Justice. April 18, 2000. Assessment of the
Increased Risk of Terrorist or Other Criminal Activity Associated
with Posting Off-Site Consequence Analysis Information on the
internet. Available in the rulemaking docket.
---------------------------------------------------------------------------

    Regarding commenters who indicate that public disclosure could, by
improving public safety and responsiveness, reduce the threat of
terrorism or intentional harm, EPA believes that this will only be true
if the disclosure occurs in a manner that

makes information available for legitimate uses while preventing or
dissuading access to it for criminal purposes. The final
Reconsideration rule attempts to strike an appropriate balance between
these concerns by allowing access to information via controlled means.
The final rule retains the information availability provisions of the
pre-Amendments RMP rule, retains a modified form of the Amendments
rule's public meeting requirement and retains the enhanced local
coordination requirements of the Amendments rule with minor
modifications. All of these provisions increased information access
relative to the pre-Amendments rule, to specific categories of chemical
hazard information under controlled circumstances. These requirements
should help ensure that local community members and local responders
have access to appropriate information about regulated facilities
without increasing the risk that such information will be used for
criminal purposes.
    The Agency acknowledges that removing this provision eliminates one
of several ways to locate and obtain chemical hazard information. For
example, RMPs are subject to FOIA (except for OCA information) and may
be reviewed at Federal Reading rooms or through LEPCs. Once a member of
the public reviewed the RMP, they would already have most of the
information available under the Amendments rule information
availability provision. Also, while LEPCs vary in quality, under EPCRA,
much of this information is required to be reported to them and they
are required to provide it upon request to members of the public. Those
other methods remain. Our view is that removing a redundant method of
access that provides consolidated chemical hazard information is a
reasonable balance between community access to chemical hazard
information and security risks.
b. Community Interest in Access to Information
    Some commenters representing industry trade associations expressed
doubt about the value of information disclosures, especially to lay
audiences. One doubted that the disclosures would improve community
responses to accidents. Another noted that chemical hazard information
is very technical and would be very time-consuming to compile and
translate into a format appropriate for the public, who may still be
unable to understand it. A third cautioned that information disclosures
could cause unnecessary and unjustified alarm in unsophisticated
parties. An industry trade organization argued that facilities and the
public are best served by flexibility in public communications, and
that plants could be trusted to decide when, how, and what information
to disclose. Another commenter argued that expansive and redundant
reporting requirements could be counterproductive, allowing important
information to be lost in the mix. A State elected official stated that
much of the information required by the Amendments rule to be released,
such as exercise schedules and emergency response details, does not
help reduce the risk of accidents.
    Many other commenters, including a form letter campaign joined by
approximately 415 individuals, expressed general opposition to
eliminating requirements for facilities to share information with
communities on hazards at the facility and preparedness procedures. A
private citizen and advocacy organization stated that emergency
response agencies and community residents have a right to know where
dangerous materials exist, and that if the Amendments rule provisions
had been in place during the Arkema and West Texas incidents, emergency
responders would have been able to better protect themselves. A Federal
agency and advocacy group agreed, citing a report on the Chevron
Refinery Fire. A tribal government commented that the principles of
EPCRA should be applied to the RMP framework. It added that the public
should both have access to emergency preparedness information and, upon
request, chemical hazard information. Some other commenters asserted a
need for greater information availability so that community members
know how to react when an accident occurs. An advocacy group commented
that community members do not know whether, when they hear sirens at
chemical plants, they are to evacuate or shelter in place. This
commenter argued that reduced information availability will make it
more difficult for residents to prepare in case of accidents. An
anonymous commenter highlighted the importance of access to emergency
plans and the contact information for local coordination officials in
planning. Another referenced Flint, MI, as an example of the importance
of being informed as to health risks in avoiding contamination
consequences. An advocacy group cited a past EPA statement that
additional RMP disclosures would likely reduce the number and severity
of chemical accidents. A private citizen cited a DHS publication,
stating that providing information to the community helps people
protect themselves during accidents. Another commenter cited a 2014
report indicating that 135 million people live within vulnerability
zones of the highest-risk RMP facilities. The commenter argued that
this risk, taken with evidence from the Arkema disaster, merits greater
information disclosure.
    Many commenters argued that reading rooms do not provide a
realistic avenue for much of the public to access information. A State
elected official commented that visitors are limited to gathering
information for a maximum of 10 facilities, once per month, without
access to copying technology beyond hand-written notes. Even then, the
commenter claimed, New York Attorney General interns took more than
three weeks and substantial effort to gain access to reading room
materials. An anonymous commenter and advocacy group echoed these
concerns. A joint submission from multiple advocacy groups and other
commenters cited the distance people may have to travel to access a
reading room and the difficulty the public may have in finding
necessary information for reading room research such as facility
identification numbers. The commenters also argued that reading rooms
presented language and expertise barriers. Another commenter stated
that her State failed to respond to information requests in a timely
manner and that members of the public were compelled to seek legal
counsel to access information. A Federal agency commented that the
burden of information sharing should rest with facilities to
affirmatively provide comprehensive information. It stated that the
public should not have to request such information.
    EPA Response: As EPA indicated in the proposed rule, the
information elements provided by the Amendments rule's information
availability requirements were already obtainable by other means.\97\
As previously noted, RMPs are accessible through multiple means and
contain most of the information that would have been provided under the
Amendments. Once a member of the public obtains a facility's RMP, the
need to make a request to that facility for the elements contained in
the RMP would be eliminated, and most other elements provided for in
the Amendments rule provision are available using the internet or by
contacting local response agencies. In many cases, such information
provided through local authorities may be most relevant to a

member of the public because local authorities will be able to provide
information within the context of the community emergency plan.
---------------------------------------------------------------------------

    \97\ See 83 FR 24873-4, May 30, 2018.
---------------------------------------------------------------------------

    The Amendments rule provision would have allowed anonymous access
to chemical hazard information in consolidated form that may have
presented a more comprehensive picture of the vulnerabilities of a
facility than would be apparent from any individual element. EPA is
concerned that allowing anonymous access to sensitive chemical facility
hazard information could potentially increase the risk of criminal acts
and terrorism against regulated facilities. EPA believes the pre-
Amendments rule's existing provisions for access to RMPs, combined with
the remaining Amendments rule information availability provisions
(i.e., enhanced local coordination requirements and public meeting
requirements as modified by the final rule) strike an appropriate
balance between community access and security.
    Appropriate public response actions will depend on many factors
that an individual member of the public is unlikely to be aware of at
the time of a release, even if the Amendments rule's information
availability provisions were not rescinded. In the event of an
emergency at a regulated facility requiring public evacuation or
sheltering, the community emergency response plan should ultimately
guide the actions taken by members of the public near the affected
facility. Local authorities will generally issue appropriate evacuation
or sheltering orders based on the nature of the release, their
assessment of potential public impacts, and the provisions of the
community emergency plan. Under the pre-Amendments rule, owners and
operators of regulated facilities were already required to coordinate
response actions with local authorities and ensure the source is
included in the community emergency response plan, so that local
authorities, in consultation with the owner or operator, are prepared
to issue appropriate instructions to members of the community. The
Reconsideration rule preserves this system and the enhancements made in
the Amendments rule to make information more available to local
authorities by requiring annual emergency coordination activities.
    EPA disagrees that the Amendments rule's information availability
provisions could have had any influence on the Arkema incident. The
injuries that occurred to first responders at Arkema happened after
facility personnel and county emergency responders had closely
coordinated on the response to the emergency. According to the CSB
investigation report,\98\ at the time of the first responder injuries,
Arkema had already warned local emergency response authorities about
the hazards of organic peroxide decomposition and alerted them that
emergency responders who may be exposed to this material should wear
personal protective equipment and self-contained breathing apparatus.
County emergency response authorities had evacuated the facility and
established a 1.5-mile evacuation zone around the facility. The CSB
investigation report did not recommend changes to the emergency
coordination provisions of the RMP rule, or fault Arkema for failing to
adequately coordinate with local emergency responders. Regarding the
West Fertilizer incident, EPA believes this incident did highlight the
need for better communication between regulated facilities and first
responders, and EPA has therefore retained the enhanced local
coordination requirements of the Amendments rule, with modifications.
EPA believes these enhancements, rather than the public information
availability provisions, will allow community emergency planners and
first responders the opportunity to better prepare themselves to
appropriately respond to accidental releases.
---------------------------------------------------------------------------

    \98\ To obtain a copy of the Arkema investigation report, see:
https://www.csb.gov/arkema-inc-chemical-plant-fire-/
---------------------------------------------------------------------------

c. Comments on Other Benefits of the Information Availability
Provisions
    Several commenters argued that greater disclosure requirements
could, through political and market mechanisms, be beneficial. An
anonymous commenter stated that access to hazardous chemical
information would allow residents to more accurately determine whether
they should allow a facility to be sited near them. Another commenter
stated that the benefits of economic growth associated with chemical
plants must be balanced against public health concerns, stating that
public information provisions can help inform this balance. An
anonymous commenter stated that the Amendments rule was intended to
help residents make informed decisions as to where to live and help
communities determine whether to subject a plant to greater scrutiny.
An advocacy group cited the RIA, stating information sharing improves
efficiency of location decisions and property markets. The commenter
also stated that information sharing helps appropriately allocate
resources to emergency response preparation. An advocacy group cited
EPA's TRI program, stating that public information requirements can
prompt companies to adopt safer practices. Another advocacy group
described the history of CCC's response to a 2012 refinery accident as
evidence of the public making use of transparency regulations to effect
safer practices. A tribal association cited the costs of compliance at
$4,820 per facility for large facilities and stated that this cost
would be justified by the benefits of informed community members. An
industry trade organization disagreed, commenting that the costs of
establishing a single, streamlined website are high and not outweighed
by any benefits.
    EPA Response: EPA disagrees that rescinding the Amendments rule's
information availability provisions will hinder facility siting
decisions. Facility siting decisions are generally made by facility
owners and local governments, who are in the best position to decide
whether and how chemical facilities will impact economic growth or
public health in the community. Under the Reconsideration rule, both
local governments and members of the public will have enhanced access
to facility hazard information relative to the pre-Amendments rule due
to the Amendments rule's local coordination and public meeting
provisions, which the final rule retains in modified form.
Additionally, members of the public can continue to obtain RMP facility
information through Federal reading rooms and obtain information
relevant to emergency preparedness in their community by contacting
their LEPC or other appropriate emergency planning authorities. The
Agency disagrees that the information availability requirements of the
Amendments rule were analogous to the TRI program. The TRI program
provides information on annual toxic releases from chemical facilities,
but not on chemical facility hazards in a way that could potentially be
exploited by criminals or terrorists. EPA is concerned that allowing
anonymous access to sensitive chemical facility hazard information
could potentially increase the risk of criminal acts and terrorism
against regulated facilities. These were the same concerns that led to
the pre-Amendments rule procedures for public access to RMP OCA
information under the CSISSFRRA (Pub. L. 106-40). Regarding the
commenter's concern about public involvement in advocating safer
refinery practices following the 2012 Chevron

refinery accident, EPA notes that the Agency has retained a modified
form of the Amendments rule's public meeting requirement, which will
require RMP facility owners or operators to hold a public meeting
following any accident involving the release of a regulated substance
with offsite impacts. This provision will allow members of the public
to gain additional information about serious accidents and engage with
the owner or operator as appropriate. Regarding comments on the costs
of the information availability provisions, while reducing unnecessary
regulatory costs was a consideration in EPA's rescission of the
provisions, EPA's primary rationale is to address security concerns.
3. Comments on Proposed Rescission of CBI Requirements in Sec.  68.210
    A commenter asserted that trade secrets should not be protected
when secrecy poses a threat to human life. A private citizen stated
that CBI protections privilege company profits over the health and
safety of citizens. The commenter added that these can undermine
emergency response readiness, violating EPA's mandate. An advocacy
group cited a chemical facility's past testimony as evidence that
chemical companies use security reasons as excuses to limit information
disclosures and obfuscate unsafe practices. An industry trade
association emphasized the necessity that the public know that
disclosures are limited by CBI and classified information rules.
    EPA Response: EPA is finalizing the proposed deletion of the CBI
provision in Sec.  68.210 (g), because with the rescission of the
Amendments rule's information availability requirements and the
modification of the public meeting requirements, the only remaining
information required to be provided is the source's five-year accident
history at the public meeting, and Sec.  68.151(b)(3) prohibits the
owner or operator from claiming this accident history information as
CBI.
4. Comments on Public Meeting Requirements
a. Retention of Public Meeting Requirement
    Many commenters opposed retaining the public meeting requirements.
An industry trade association commented that public meetings are
sparsely attended and of little value, especially given the proposed
removal of other required disclosures at the meeting. Two other
industry trade associations stated that, because they occur after the
accident and response, public meetings do not materially advance any
legitimate interest of the EPA. The commenters asserted that public
meetings instead are only exercises in public shaming. Another industry
trade association commented that the Amendment rule's meeting
requirements would be redundant with initial release reporting and
media reports, which provide the information the community would be
interested in. An industry trade association commented that facilities
already hold public meetings, especially under the ACC Responsible Care
Program, when there is a need for one. Another stated that community
advisory panels are already sufficient. Another commented that a
Federal public meeting requirement would be needlessly duplicative with
those required by State law. A facility commented that there is no need
for the facility to host a public meeting, and instead a government
entity should provide information to the community. An industry trade
association, citing the CAA, stated that LEPCs should bear the
responsibility of determining whether a public meeting needs be held
after an accident, and whether the responsible facility should be
required to attend. An industry trade association stated that the
Amendment's public meeting requirement was too vague. Another commented
that public meetings may not work because members of the public may
protest and disrupt the meeting. An industry trade association stated
that it will be difficult to discuss an incident when, because of
litigation of adverse consequences, there will be legal issues
impinging on the facility's speech.
    Other commenters expressed support for retaining the Amendments
rule public meeting requirement. A joint submission from multiple
advocacy groups and other commenters stated that notice of meetings,
and meetings themselves, are vital to letting the public know that they
have been exposed to hazards. These commenters also stated that
meetings should have translators where the local community may need
them. A private citizen recommended requiring an initial meeting, not
triggered by an accident, to build connections between the community
and facility.
    EPA Response: The final rule enacts an option for public meetings
on which EPA had requested comment. EPA received several public
comments that supported EPA's proposed option to require public
meetings only after accidents with offsite impacts. EPA agrees with
these commenters that incidents with no reportable offsite impacts are
unlikely to generate much interest from the local community and will
therefore be sparsely attended. Public meetings after serious accidents
with offsite impacts, however, are likely to be well attended by the
public and therefore EPA believes such public meetings should still be
required. (See further discussion of public meeting criteria in the
next section: b. Requiring public meetings after accidents meeting
specified criteria.)
    EPA disagrees that public meetings do not advance any legitimate
interest of the EPA or that such meetings are intended to be
``exercises in public shaming.'' Public meetings give the owner or
operator an opportunity to explain in detail the causes and
consequences of serious accidents and respond to legitimate public
concerns about potential health effects or ongoing risks from an
accident. The public has a substantial interest in knowing what
happened in an accident that had off-site impacts, why the accident
happened and what steps the facility is taking to prevent a future
occurrence, which should protect the public or environment from future
impacts of releases of hazardous substances. The public's protection
from the hazards of chemical accidents and ability to participate in
emergency planning and readiness actions is materially advanced by
being better informed about the accident, the risks posed and how they
are being addressed. By meeting with the public, the quality of the
facility's accident report improves due to the exchange of information,
such as information regarding further impacts.
    EPA is not requiring owners or operators to provide language
translators at public meetings or to have initial public meetings not
associated with reportable accidents with offsite impacts. EPA did not
propose these provisions in either the Amendments or Reconsideration
rules. EPA encourages owners or operators to accommodate language
translation requests during public meetings but is not requiring them
to do so. Owners or operators are free to hold additional public
meetings beyond those required under the final rule if they so choose.
EPA disagrees that public meetings are redundant to initial release
reporting and media reports. By holding a public meeting up to 90 days
after an incident, the owner or operator is likely to be able to
provide more accurate and reliable information than is provided in
initial notification or media reports. Also, at a public meeting,
members of the public will have the opportunity to ask follow-up
questions about the accident, which would not be possible through
viewing initial notification reports or media reports.

    EPA disagrees that the final rule's public meeting requirement is
duplicated in any other law or regulation that is applicable to all RMP
facilities. However, if a facility conducts a public meeting to comply
with another law or regulation, or as a result of complying with an
industry code of practice, such a meeting may be used to comply with
the final rule's requirement, provided the meeting is held within 90
days of the accident and provides the information required to be
reported under Sec.  68.42(a). EPA disagrees that the possibility of a
meeting being disrupted by protesters or the owner or operator's
concerns about litigation are good reasons to not require public
meetings. Public meetings are used in many communities throughout the
country for a variety of purposes and are rarely disrupted by
protesters. Owners and operators may take appropriate and lawful
measures to maintain order and security at public meetings. Regarding
litigation concerns, the owner or operator already has a regulatory
duty to disclose the information required under Sec.  68.42(a)--
therefore, discussing this information at a public meeting should not
increase the owner or operator's vulnerability to litigation. EPA
disagrees that the government entities such as LEPCs should be
responsible for holding public meetings concerning RMP facility
accidents. The owner or operator will have the most accurate and up to
date information about the accident because of the owner or operator's
incident investigation. However, a regulated facility may combine their
post-accident public meeting with an LEPC meeting that is open to the
public, if the LEPC agrees to such an arrangement. EPA has removed the
more open-ended requirement to provide ``other relevant chemical hazard
information'' beyond the information required in 40 CFR 68.42, thus
making the requirement for disclosure less vague by limiting the
required content of public meetings to more specific, factual
information.
b. Requiring Public Meetings After Accidents Meeting Specified Criteria
    Several commenters argued that public meetings should only be
required for especially serious accidents. A State government agency
commented that public meeting requirements should be limited to
reportable incidents with off-site consequences. An industry trade
association suggested that no public meeting be required when there is
a shelter-in-place order just as a precaution, if there are no real
offsite impacts. Another commenter recommended that meetings only be
required for major accidents, noting that meetings are often sparsely
attended. Another industry trade association stated that the public is
unlikely to attend meetings for accidents with few offsite impacts.
Another industry trade association commented that meetings for onsite-
only incidents engender distrust and could be overly alarming after
minor accidents. Other commenters supported limiting public meeting
requirements to accidents with the offsite impacts specified in Sec.
68.42. The commenters stated that accidents with strictly on-site
consequences fall exclusively under OSHA's purview. Another commenter
recommended that meetings only occur upon request by the public or an
official.
    EPA Response: EPA agrees that incidents with no reportable offsite
impacts are unlikely to generate much interest from the local community
and will therefore be sparsely attended. Public meetings after serious
accidents with offsite impacts, however, are likely to be well attended
by the public and therefore EPA believes such public meetings should
still be required. EPA disagrees, however, that shelter-in-place orders
should not trigger public meetings. Sheltering-in-place is considered
an offsite impact under Sec.  68.42(a) and therefore, under the final
rule, a public meeting is required after an accident that results in a
community shelter-in-place order, even if no other impact occurs. EPA
also disagrees that accidents with only on-site consequences fall
exclusively under OSHA's purview. Such accidents involving covered
processes must still be reported in a source's RMP if they cause any of
the consequences listed under Sec.  68.42(a). If the accident involved
a Program 2 or Program 3 process and resulted in, or could reasonably
have resulted in a catastrophic release, the owner or operator must
also perform an incident investigation as required under Sec.  68.60 or
Sec.  68.81.
    EPA did not require public meetings upon request of a member of the
public (or an official) because such a provision would be difficult to
implement for many facilities. In order to have a meeting occur within
90 days of an accident under this approach, EPA would need to establish
a relatively short time frame for a member of the public to make a
request, and regulated facilities would therefore have needed to
provide almost immediate notice to the public to explain how and where
to submit such a request. If a member of the public submitted a
request, then the facility would need to provide a second public notice
that a public meeting would occur, prepare for the meeting, and hold
the meeting, all within 90 days of the incident. Under the final rule,
regulated facilities and members of the public will know in advance
that any accident from a regulated process involving specified offsite
impacts will automatically trigger a public meeting. The owner or
operator will only need to provide a single notice to members of the
public to inform them when and where the meeting will be held. The
owner or operator will also have a full 90 days to prepare for the
meeting, as they will not need to await the receipt of a public request
in order to determine whether or not to hold a meeting.
c. Required Timeframe for Public Meeting
    Many commenters supported longer, more flexible timeframes for
public meetings. An industry trade association recommended a 180-day
timeframe, so more information can be gathered for the meeting. Other
commenters opposed a 90-day timeframe, arguing that they may need more
time to investigate the accident. An industry trade association
recommended making the public meeting deadline coincide with the
requirement to update accident history information in a facility's RMP,
within 6-months of an accident. Another commenter suggested that timing
should vary, according to the accident. An industry trade association
recommended that owners or operators should be able to request time
extensions for holding a public meeting if an investigation is ongoing.
A facility, mentioning its positive experience with such an approach,
suggested, instead of requiring a public meeting in 90 days, a meeting
with the LEPC and emergency responder community be required within 120
days.
    Other commenters, including a joint submission from multiple
advocacy groups and other commenters and an industry trade association
supported earlier meetings in order to address public health concerns.
    EPA Response: EPA considered both longer and shorter timeframes for
the public meeting but elected to retain the 90-day timeframe
established in the Amendments rule. As the pre-Amendments rule already
contained a requirement for facilities to update their RMP within 6
months of an accident meeting the reporting criteria of Sec.  68.42,
EPA considered whether to extend the timeframe to 6 months, as it would
be more likely that a source would have completed its incident
investigation by the time a public meeting was held. However, the
Agency judged that even though in some cases the owner or

operator's incident investigation may not be complete within 90 days of
the accident, the owner or operator is likely to know most of the
elements required to be reported under Sec.  68.42 earlier than 90 days
after the accident. Of the eleven information elements required to be
reported in a regulated source's accident history, EPA believes it is
likely that the owner or operator will know all except perhaps the
contributing factors to the accident (Sec.  68.42(b)(9)) and
operational or process changes that resulted from investigation of the
release (Sec.  68.42(b)(11)). The owner or operator may also lack
knowledge about the full extent of offsite impacts of the accident
(Sec.  68.42(b)(8)), and an additional benefit of holding a public
meeting within 90 days of the event may be that it allows the owner or
operator to gain additional information about offsite impacts. By
meeting with the public in advance of needing to report the incident in
its accident history, the quality of the facility's accident report
improves due to the exchange of information. In some cases, the owner
or operator will have completed their incident investigation and will
know all eleven information elements required to be reported in the
accident history. Even if the owner or operator's incident
investigation is incomplete at the time of the public meeting, EPA
believes holding a meeting as early as reasonably possible is most
beneficial to the community. The 90-day timeframe should allow the
owner or operator to share appropriate information about the accident
with the local community. The facility could discuss the progress of
the investigation so far and next steps planned. While EPA encourages
owners and operators to hold public meetings sooner than 90 days after
an accident if possible, EPA did not establish a shorter timeframe
because shorter timeframes could make it less likely that the owner or
operator will have complete information about the incident to present
at the public meeting, and the Agency also did not want to exacerbate
logistical challenges for regulated facilities in the immediate
aftermath of a serious accident, when facility resources may be
stressed in responding to and recovering from the accident.
d. Limiting Accident Information Discussed at Public Meetings to the
Most Recent Accident
    An industry trade association expressed support for limiting the
content of public meetings to the accident at issue rather than
including the entire 5-year accident history. Other commenters agreed,
citing security concerns. A joint submission from multiple advocacy
groups and other commenters disagreed, commenting that accident history
is useful to understand future risks and what the community may have
already been exposed to. A tribal government commented that emergency
personnel should have access to past accident/incident reports, not
just information about the current incident.
    EPA Response: The final rule requires public meetings to cover only
the accident at issue and not the full 5-year accident history. While
EPA agrees that information about other accidents may be useful to
provide context to the public and encourages the owner or operator to
provide such additional information if appropriate, the Agency is not
requiring sources to provide information on older accidents because the
Agency believes that it would place an additional burden on the source
to prepare for and present the additional accident information, which
may or may not be relevant to the most recent accident. Therefore,
under the final rule, the owner or operator is free to judge what
additional information beyond that required to be reported under Sec.
68.42 for the most recent accident should be presented at the public
meeting. Regarding the comment about emergency personnel having access
to past accident reports, while this information is not required to be
presented at public meetings, it can be requested by local emergency
response authorities at annual coordination meetings required under
Sec.  68.93. If local authorities can show that such information is
necessary for developing and implementing the local emergency response
plan, the owner or operator must provide it to them.
e. Rescission of Providing Other Relevant Chemical Hazard Information
at Public Meetings
    A State elected official commented that no evidence demonstrates
that chemical hazard disclosure will increase the risk of a terrorist
attack or other intentional harm. The commenter specifically stated
that there is no indication that such disclosures played a role at the
West Fertilizer explosion. A tribal government opposed the rescission
and asserted that the community has a right to know what chemicals are
being used in their community. The commenter added that the information
that would be provided may be useful to emergency personnel. A joint
submission from multiple advocacy groups and other commenters stated
that EPA's rationale that the language requiring the owner or operator
to provide other relevant chemical hazard information at public
meetings ``could be interpreted to be an overly broad requirement'' is
arbitrary and capricious. The commenters asserted that, if EPA is truly
concerned about how facilities will interpret this language, it can
clarify the requirement or provide examples of the types of information
that would need to be shared. The commenters stated that deleting the
requirement isn't necessary and deprives communities of information
that EPA itself determined was valuable for them to know. An industry
trade association supported rescinding the requirement, citing security
concerns. Another industry trade association agreed and stated that
allowing facilities to choose what to disclose would ease their ability
to comply with the DHS CFATS.
    EPA Response: EPA is finalizing the proposed rescission of the
Amendments rule requirement for the owner or operator to provide other
chemical hazard information at public meetings. EPA disagrees that its
rationale for rescinding this requirement is either arbitrary or
capricious. EPA is rescinding this requirement for the same reason that
we are modifying the similar requirement for facilities to share other
information that local emergency planning and response organizations
identify as relevant to local emergency response planning in Sec.
68.93--EPA believes this language is too open ended and could trigger
requests for security-sensitive information at public meetings. As EPA
noted in the preamble to the proposed rule, the language of the public
meeting provision requiring the owner or operator to provide other
information is similar to the Amendments rule requirement for the owner
or operator to share with local responders other information that
responders identify as relevant to local emergency response planning,
which this final rule modifies to require providing other information
necessary for developing and implementing the local emergency response
plan. (See discussion later in section VI.C.2.a ``Information
disclosure during local emergency coordination.'') All three of the
reconsideration petitioners had security concerns with providing this
type of information with no screening process for requesters or
limitations on the use or distribution of information, and EPA believes
that these legitimate concerns that can reasonably be addressed by
deleting this language in the public meeting requirement. EPA believes
deleting the language is better than attempting to narrow it by
providing specific examples of the types

of other information that should be shared, because the purpose of the
public meeting provision is to share information relating to the
accident that resulted in the meeting, and this information is already
listed in Sec.  68.42. Any attempt to list additional types of
information would presuppose that such information would be relevant to
the accident and not present security risks, but EPA cannot reach such
a conclusion without knowledge of the specific contents of the other
information or circumstances of a particular accident.
    EPA disagrees that there is no evidence that increasing information
disclosure will increase security risks to regulated facilities. As a
result of CSISSFRRA, the DOJ performed an assessment of the increased
risk of terrorist or other criminal activity associated with posting
off-site consequence analysis information on the internet. In that
assessment, DOJ found that the increased availability of information
would increase the risk of the misuse of information by criminals or
terrorists, that criminals and terrorists had already sought to target
U.S. chemical facilities, and that such threats were likely to increase
in the future. EPA agrees that the community has a right to know what
chemicals are being used in their community and that this information
is useful to emergency personnel. The identity of the chemical involved
in the accident triggering the public meeting must be disclosed during
that meeting, as this is required to be reported in the facility's
accident history under Sec.  68.42(b)(2). However, EPA does not believe
the owner or operator should be required to discuss other chemical
hazards during public meetings, because the purpose of the meeting is
to discuss the recent accident, not to hold a comprehensive discussion
about all chemical hazards at the source. Both the RMP rule and EPCRA
provide other means for members of the public to obtain information
about the chemical hazards present at facilities in their community.
The final rule also retains the enhanced local coordination provisions
of the Amendments rule, so local emergency response personnel will have
more opportunities to meet with the owner or operator beyond post-
accident public meetings. At annual coordination meetings required
under Sec.  68.93, local emergency response authorities may request
information about other chemical hazards at the facility, and the owner
or operator must provide such information to the extent it is necessary
for developing and implementing the local emergency response plan.
5. Other Comments on Information Availability and Public Meeting
Provisions
a. Retention of Classified Information Provision in Sec.  68.210
    An industry trade association commented that the rule should make
clear that classified information limitations still apply to any
information that would otherwise be required to be disclosed. Another
industry trade association commented that information limitations
should be expanded to clearly include information protected by other
Federal laws, especially Sensitive Security Information (SSI). It
recommended that new language be added to the rule, protecting CVI,
SSI, information classified by Federal agencies, and a catchall for all
other information protected by law. Two industry trade associations
stated that retaining the classified information provisions will help
facilities remain in compliance with CFATS.
    EPA Response: In the proposed rule, EPA had proposed to retain the
Amendments rule's classified information provision within Sec.  68.210.
The final rule includes a modified version of this provision which
addresses both classified and restricted information (EPA is making the
same modification to the classified information provision proposed to
be added to the emergency coordination provisions in Sec.  68.93).
Since the original RMP rule was published, DHS has developed new
categories of security-sensitive information that potentially affect
some RMP facilities. These include Sensitive Security Information
(SSI), Protected Critical Infrastructure Information (PCII), and
Chemical-terrorism Vulnerability Information (CVI). Certain facilities
regulated under the RMP regulation may possess any or all of these
categories of information, and EPA agrees with commenters who indicated
these categories of information should be addressed in the rule. By
referring to the DHS's restricted information regimes in the final
rule, EPA intends to make clear that such information should be
controlled via the applicable laws, regulations, and executive orders.
EPA's reference to the DHS's regulations does not imply an absolute
prohibition on the sharing of information controlled under these
regulations, as some local emergency response officials may be
authorized to receive SSI, PCII, or CVI. However, EPA expects that
there will be few cases where local emergency coordination activities
will require exchanges of such restricted information, and it should
never be disclosed during public meetings.
    Regarding classified National Security Information (NSI), very few
RMP-regulated facilities possess such information (i.e., information
controlled under NSI laws as confidential, secret, or top-secret
information), and applicable laws prohibit its disclosure to the
public. Nevertheless, EPA has retained a modified form of the
classified information provision in the final rule to emphasize the
importance of adhering to all laws relating to control of NSI, which
generally prohibit its disclosure to any persons who do not have an
appropriate clearance for NSI and a need to know the information.
b. Requirement To Provide to Public a List of Scheduled Exercises
    A state agency and two industry trade associations argued that
disclosing exercise schedules to the public created security risks. One
of these trade associations also commented that EPA's concern that the
public could be alarmed by exercises is unfounded, and that facilities
have hitherto successfully notified the public of drills without
confusion. Another industry trade association commented that, because
the public does not participate in emergency response activities, it
has no significant interest in their details. A tribal government
commented that the proposal was too vague. The commenter also stated
that the discussion on this subject provided no reference to potential
impacts to human health or the environment.
    EPA Response: In the final rule, EPA is not requiring facilities to
disclose exercise schedules. Although information on upcoming facility
exercises is the one information element provided under the Amendments
rule that is not already available from another source, as EPA
indicated in the proposal, there is no easy way to restrict this
information to only members of the local public, and wider distribution
of this information could carry security risks. Most comments received
by EPA that addressed the issue agreed with EPA's proposal not to
require disclosure of this information.

VI. Modified Local Coordination Amendments

A. Summary of Proposed Rulemaking

    In the RMP Amendments rule, EPA required owners or operators of
``responding'' and ``non-responding'' stationary sources to perform
emergency

response coordination activities required under new Sec.  68.93. These
activities included coordinating response needs at least annually with
local emergency planning and response organizations, as well as
documenting these coordination activities. The RMP Amendments rule
required coordination to include providing to the local emergency
planning and response organizations the stationary source's emergency
response plan (if one exists), emergency action plan, updated emergency
contact information, and any other information that local responders
identify as relevant to local emergency response planning. For
responding stationary sources, coordination must also include
consulting with local emergency response officials to establish
appropriate schedules and plans for field and tabletop exercises
required under Sec.  68.96(b). Owners or operators of responding and
nonresponding sources are required to request an opportunity to meet
with the local emergency planning committee (or equivalent) and/or
local fire department as appropriate to review and discuss these
materials.
    In the proposed Reconsideration rule, EPA proposed to modify the
local coordination amendments by deleting the requirement in Sec.
68.93(b), for the owner or operator to provide other information that
local responders identify as relevant to local emergency response
planning. Alternatively, EPA proposed to change this phrase to require
the owner or operator to provide other information needed for
developing and implementing the local emergency response plan, which is
virtually identical to that used in EPCRA Sec.  303(d)(3) [42 U.S.C.
11003(d)(3)]. Under both alternatives, EPA also proposed to incorporate
appropriate classified information and CBI protections to regulated
substance and stationary source information required to be provided
under Sec.  68.93.
    EPA proposed to retain the requirement in Sec.  68.95(a)(4) for
responding facilities to update their facility emergency response plans
to include appropriate changes based on information obtained from
coordination activities, emergency response exercises, incident
investigations or other information. In addition, EPA proposed to
retain the requirement in Sec.  68.95(a)(i) that emergency response
plan notification procedures must inform appropriate Federal and state
emergency response agencies, as well as local agencies and the public.
    EPA proposed to retain language in Sec.  68.93(b) referring to
field and tabletop exercise schedules and plans with a proposal to
retain some form of field and tabletop exercise requirement.
Alternatively, in conjunction with an alternative proposal to rescind
field and tabletop exercise requirements (see section VII. ``Modified
Exercise Amendments'' below), the Agency also proposed to rescind this
language.
    EPA did not propose any other changes to the local coordination
requirements of the RMP Amendments rule. Under either proposed
alternative described above, the following provisions would have
remained unchanged: The provisions of paragraph (b) requiring
coordination to include providing to the local emergency planning and
response organizations the stationary source's emergency response plan
if one exists, emergency action plan, and updated emergency contact
information, as well as the requirement for the owner or operator to
request an opportunity to meet with the local emergency planning
committee (or equivalent) and/or local fire department as appropriate
to review and discuss these materials. For provisions of the RMP
Amendments that EPA proposed to retain, EPA continued to rely on the
rationale and responses provided when the Agency promulgated the
Amendments rule. See 81 FR 13671-74 (proposed RMP Amendments rule),
March 14, 2016, 82 FR 4653-58 (final RMP Amendments rule), January 13,
2017.

B. Summary of Final Rule

    After review and consideration of public comments, EPA is
finalizing the local emergency response coordination requirements
related changes, as proposed, with some modifications. This rule
modifies the local emergency response coordination amendments by
replacing the requirement in Sec.  68.93(b) for the owner or operator
to provide any other information that local response organizations
identify as relevant to local emergency response planning with the
requirement to provide ``other information necessary for developing and
implementing the local emergency response plan.'' Also, the final rule
includes a modified form of the proposed provision for protection of
classified information in Sec.  68.93(d) but does not include the
proposed CBI provision in Sec.  68.93(e).

C. Discussion of Comments and Basis for Final Rule Provisions

1. Overview of Basis for Final Rule Provisions
    The modifications we adopt today to the emergency coordination
requirements of the 2017 rule primarily ensure that the coordination
occurs in a more secure manner than the 2017 requirements. We have
substituted the open-ended and somewhat vague ability of emergency
response organizations to obtain any information ``relevant to'' local
emergency response planning for a requirement to provide information
``necessary for'' the development and implantation of the local
emergency plan. ``Necessary for'' tracks more closely the terms of
EPCRA 303(d)(3) and 40 CFR 68.95(c) of the pre-2017 RMP rule. We
slightly expand the applicability of this language to include non-
responding sources subject to RMP Programs 2 and 3 and to sources not
otherwise subject to EPCRA and retain the 2017 rule's provision that
allows local emergency response organizations rather than just LEPCs to
use this EPCRA-like language.
    As commenters pointed out, the EPCRA provision has been
successfully implemented for many years with no known security
breaches. While local emergency response organizations that may use
this authority would include entities other than LEPCs, LEPCs would
have broader membership than fire and other public safety authorities
that would be allowed to use the information gathering authority and
therefore these additional entities present even less of a security
risk. The provision we adopt is consistent with the National Incident
Management System (NIMS) and facilitates the functioning of the NIMS
and the Incident Command System (ICS) by promoting preplanning in
advance of an incident.
    We have previously noted that US SOC identified response plans as
important targeting information for criminals or terrorists seeking to
cause harm to chemical facilities. Therefore, we believe the less open-
ended provision adopted today that mirrors language that has not led to
known security breaches is a more reasonable and practicable approach
to emergency coordination than the provision we adopted in 2017.
2. Comments on Local Coordination Provisions
a. Information Disclosure During Local Emergency Coordination
    EPA received various comments on the proposed deletion of the
requirement to provide any other information that local planning and
response organizations identify as relevant to local emergency response
planning during annual coordination activities, and the alternative
proposed language, which replaces the provision with a requirement for
the owner or

operator to provide other information necessary for developing and
implementing the local emergency response plan. Many commenters,
including industry trade associations, facilities, and State elected
officials, expressed support for the proposed deletion of the language,
commenting that it created an open-ended provision that could allow
third parties to obtain security-sensitive or classified information
about highly protected processes, threatening public health and
heightening national security risks. Some of these commenters also
provided additional reasons for deleting the phrase, stating that the
language created an inconsistency with the OSHA PSM standard, that
LEPCs have no capability to maintain the security of the information,
that the provision was overly burdensome, and that it is not supported
by the CAA.
    Many other commenters, including private citizens, advocacy groups,
and State elected officials, opposed deleting the provision because of
general concerns about the availability of needed information for
emergency planners and first responders. An association of government
agencies commented that first responders should be entitled to all
information they need to understand the risk of a release and respond.
The commenter stated that EPA's proposed change to Sec.  68.93(b)
regarding requests for information is inadequate, short-sighted, and
suggests that the facility information available in an RMP is
materially different than the facility information provided under
EPCRA. The commenter stated that the majority of RMP regulated
facilities are subject to EPCRA, under provisions of which LEPCs
routinely receive information from facilities relevant to emergency
preparedness planning, and there is no evidence that any LEPC or first
responder organization cavalierly released information obtained from a
facility obtained under EPCRA or through any other mechanism. This
commenter and others stated that EPA's proposed alternative language
for the information disclosure requirement would be acceptable because
it is virtually identical to the EPCRA language and would allow LEPCs
and responders to work with regulated facilities to obtain the
information and cooperation they need. Another commenter stated that
EPA had failed to justify its proposal to delete the requirement and
that EPA's attempt to argue that the proposed deletion will result in
security benefits is erroneous and unjustified. However, this commenter
also expressed a preference for the proposed alternative language to
EPA's proposed deletion. An industry trade association also expressed
support for EPA's proposed alternative language, which it stated would
address the ambiguous, open-ended nature of the Amendments rule
language and mirror the [EPCRA] statutory language.
    Other commenters, including advocacy groups and State elected
officials, expressed opposition to the proposed alternative language,
reasoning that the alternative language would create the same or
similar security risks as the language included in the Amendments rule.
One of these commenters stated that local emergency planning and
response organizations lack any uniform capability to keep and
safeguard sensitive chemical hazard information and the proposed
alternative language does nothing to address this problem. Multiple
state elected officials commented that EPA did not explain the material
difference between the proposed alternative language and the existing
language of Sec.  68.95(c) of the pre-Amendments rule. Another
commenter stated that EPA incorrectly asserted that the alternative
provision is consistent with EPCRA. The commenter stated that the
fundamental distinction is that, under EPCRA, facilities must disclose
certain information to LEPCs established under 42 U.S.C Sec.  11001,
whereas the RMP provision would allow or disclosure of information to
local emergency planning and response organizations, local response
organizations, and local authorities. The commenter concluded that
because it is unknown exactly who might be able to access this
information additional security risks may be created. The commenter
also expressed concern about the potential burden this could place on
industry without a specified mechanism for requesting review of
unreasonable requests. Another trade association opposed the proposed
alternative and instead recommended that EPA should adopt a rule that
removes the requirement to submit any classified/confidential
information and confines the information that would be provided to the
basic, publicly available information that local responders need to do
their job effectively. The commenter argued that their suggested
approach would reduce the burdens on the regulated community and also
avoid overwhelming the limited resources of the local officials. A
joint submission from multiple advocacy groups and other commenters
stated that the proposed alternative language would deny first
responders additional information relevant to their planning activities
that they cannot already receive pursuant to EPCRA. These commenters
also stated that EPA has not explained how the proposed alternative
language would address its finding in the Amendments rule that chemical
facility information and data-sharing efforts need significant
improvement and that LEPCs and first responders need more information
to do their jobs. The commenters also stated that EPA has cited no
evidence connecting any national security threats to sharing
information with first responders and that firefighters, EMTs, and
first responders are trained to protect the public and required to keep
sensitive information secure.
    EPA Response: In the final rule, EPA is adopting the alternative
proposed language, which replaces the requirement to provide any other
information that local planning and response organizations identify as
relevant to local emergency response planning with the requirement to
provide other information necessary for developing and implementing the
local emergency response plan. As EPA explained in the proposed
rule,\99\ this language is virtually identical to that used in EPCRA
section 303(d)(3), [42 U.S.C. 11003(d)(3)], and also appears in Sec.
68.95(c) of the original RMP rule, which applies to facilities with
Program 2 and Program 3 processes whose employees respond to accidental
releases of regulated substances. Therefore, because of either the
EPCRA section 303(d)(3) provision or the provision in Sec.  68.95(c),
most RMP facilities have long been subject to this requirement and
applying it to the relatively few RMP facilities that are not already
subject to it under EPCRA section 303(d)(3) or Sec.  68.95(c) should
not create any security vulnerabilities. EPA believes that the
alternative proposed language will address security concerns with the
Amendments rule provision while still allowing local responders to
obtain information needed for emergency response planning. EPA notes
that the final rule language is not open-ended, and restricts other
information provided to that necessary for developing and implementing
the local emergency response plan. EPA recognizes that a class of
information--information that local response organizations deem
``relevant,'' but which is not ``necessary'' for the emergency plan--
would be unavailable under the amended language adopted today. We view
the narrowing as a compromise that helps emergency planning but

removes some information that is unnecessary for the emergency plan but
which may pose a security risk. EPA is aware of no security
vulnerabilities associated with language that tracks EPCRA in the past,
and no commenters provided any such examples.
---------------------------------------------------------------------------

    \99\ 83 FR 24866, May 30, 2018.
---------------------------------------------------------------------------

    EPA disagrees that the Agency failed to explain the material
difference between the language of Sec.  68.95(c) in the pre-Amendments
rule and the proposed alternative revision to Sec.  68.93(b). While the
pre-Amendments rule language in 68.95(c) is almost the same as the
proposed alternative revision to Sec.  68.93(b), its applicability is
different. As EPA explained in the proposed rule, some RMP facilities
that are subject to the final rule's requirement to provide other
information needed for developing the local emergency response plan in
Sec.  68.93(b) were not already subject to it under either the pre-
Amendments RMP rule provision at Sec.  68.95(c), which applied only to
responding facilities, or under EPCRA section 303(d)(3), which would
generally apply only to RMP facilities that hold an EPCRA extremely
hazardous substance above a threshold planning quantity. Under the
Amendments and Reconsideration rules, all facilities with Program 2
and/or Program 3 processes are subject to the emergency response
coordination requirements of Sec.  68.93, whether or not the source's
employees will respond to accidental releases of regulated substances.
Therefore, EPA's inclusion of the alternative proposed language in
Sec.  68.93(b) applies the requirement to more RMP facilities than were
subject to it under Sec.  68.95(c) of the pre-Amendments rule.
    EPA disagrees with commenters' claims that additional security
risks may be created because it is unknown exactly who might be able to
access information provided during local coordination activities. In
the proposed rule, EPA specifically asked commenters to explain how the
alternative language presents new security concerns if it has not
caused such concerns in relation to its presence in EPCRA section
303(d)(3) or in Sec.  68.95(c) of the pre-Amendments RMP rule. On this
issue, one commenter attempted to draw a fundamental distinction
between the EPCRA requirement, which requires disclosing certain
information to LEPCs, and the proposed alternative provision, which
would require disclosure of information to ``local emergency planning
and response organizations.'' According to this commenter, additional
security risks may be created because it is unknown exactly who might
be able to access this information within the broader realm of ``local
emergency planning and response organizations,'' which would include
but not be limited to LEPCs. But while it is true that the term ``local
emergency planning and response organizations'' encompasses LEPCs and
other organizations, such as fire departments and emergency management
agencies, LEPCs likely include the most diverse membership of any local
response organization. If disclosure of other information related to
development of the local emergency plan to LEPCs has not resulted in
security risks to date, it is unlikely that disclosing the same
information to fire departments or emergency management agencies will
cause such problems. Also, EPA notes again that Sec.  68.95(c) already
required responding facilities to provide this information to ``local
emergency response officials,'' a term that includes, but is not
limited to, LEPCs. Therefore, the Agency believes it is implausible
that using the previously-existing language of Sec.  68.95(c) within
Sec.  68.93(b) would create security risks.
    EPA also sees no reason to specify a mechanism for requesting
review of unreasonable information requests. Since nearly all RMP
facilities have been subject to this requirement for many years, with
no such review mechanism in place, and without any apparent problem,
EPA does not expect the Sec.  68.93 provision to cause any
proliferation of unreasonable information requests. EPA encourages
local responders and owners or operators of regulated facilities to
discuss the need for other emergency planning information and come to a
reasonable agreement on what additional information, if any, should be
provided, without the need for intervention by external arbitrators.
The final rule does not require disclosure of classified information or
CBI during annual coordination activities--this topic is further
discussed below.
b. CBI and Classified Information Protections for Local Coordination
    Several commenters agreed with EPA's proposal to include classified
information and CBI protection provisions in the local coordination
provisions. An industry trade association commented that EPA needs to
specifically address SSI and CVI in the provision, not just classified
information, a term which is too narrow to reflect current information
protection regimes. Another industry trade association also recommended
that EPA specifically include SSI, in addition to classified
information or CBI. Another industry trade association commented that
the proposed protection only addresses the disclosure of CBI to EPA and
fails to consider such a disclosure to non-government entities, such as
LEPCs. The commenter recommended that EPA should revise its CBI and
classified information disclosure provisions to more clearly articulate
how covered process facilities may address these concerns. Similarly,
an industry trade association encouraged EPA to revise the proposed
revision to identify how a facility can protect CBI or classified
information potentially subject to a release to a non-governmental
entity. An industry trade association recommended that the CBI and
classified information provisions be clarified to provide that public
version of the specific items identified in the regulation should be
provided. Specifically, the commenter recommended that EPA clarify that
regulated entities are under no obligation to provide to LEPCs or other
emergency responders any information that is not already publicly
available. An industry trade association encouraged EPA to specify that
a ``sanitized'' version of requested materials, as referenced in Sec.
68.93(e), means that companies may redact CBI from information provided
under this provision.
    Several other commenters indicated that allowing companies to claim
CBI as a way of avoiding the responsibility to provide emergency
planners and first responders access to essential information needed to
respond to a chemical release is not acceptable.
    EPA Response: EPA agrees with commenters who indicated that the
classified information provision included in the proposed rule was too
narrow. The final rule's modified form of the proposed rule's
classified information protection provision should address these
commenters' concerns regarding information restricted under DHS
regulations.
    Regarding CBI, EPA is not finalizing the proposed provision of
Sec.  68.93(e) because under the final rule, the Agency no longer
believes it is necessary. With the changes EPA has made in the final
rule--most notably replacing the open-ended requirement to provide any
other information that local planning and response organizations
identify as relevant to local emergency response planning with the
requirement to provide other information needed for developing and
implementing the local emergency response plan, which replicates
previously existing rule language from Sec.  68.95(c)--EPA no longer
sees any need for a CBI provision in this section of the rule.

    Owners and operators of regulated facilities are not required to
provide CBI to local response officials. EPA agrees with commenters
that companies should not claim CBI merely as a way to avoid providing
essential planning information to local responders, but EPA is not
aware of any cases where this has occurred, and commenters provided no
such examples. EPA expects that little, if any, confidential business
information will be requested during coordination activities conducted
under Sec.  68.93. However, for information elements such as the names
of chemicals, where facilities have made valid CBI claims in their RMP
submission, where those elements are exchanged with local response
officials during coordination activities, the owner or operator should
provide the same sanitized information to local response officials that
they provided to EPA in their RMP submission. For information requested
by local response officials other than that reported in an RMP, if a
local response official requests an element of information that the
owner or operator judges to be CBI, the owner or operator is not
required to provide the information but is encouraged to provide a non-
confidential version of the information to local response officials
(i.e., a version with confidential business information redacted) if
possible.
    The reason that EPA had proposed adding a CBI provision to the
local coordination provisions of Sec.  68.93 is because the proposed
Amendments rule had included a CBI provision to cover potential CBI in
the itemized list of chemical hazard information that EPA proposed to
require be provided to local emergency response officials upon request
(see 81 FR 13711, March 14, 2016--proposed new Sec.  68.205--
Availability of information to the LEPC or emergency response
officials). That list of items included information potentially
containing CBI beyond the items already contained in an RMP, such as
compliance audit reports, incident investigation reports, and IST
information. In the final Amendments rule, EPA did not finalize the
proposed Sec.  68.205, instead finalizing a provision in Sec.  68.93
requiring certain information to be provided during coordination
activities. That information included the stationary source's emergency
response plan (if one exists); emergency action plan; updated emergency
contact information, and any other information that local planning and
response organizations identify as relevant to local emergency response
planning. In petitions submitted to EPA after publication of the final
Amendments rule, petitioners objected to inclusion of the requirement
to provide any other information that local planning and response
organizations identify as relevant to local emergency response
planning, noting that this requirement placed no limits on what could
be requested under the provision, provided no protection for CBI, and
provided no safeguards for security-sensitive information.\100\ To
address this concern, in the proposed rule, EPA proposed adding CBI and
classified information provisions to Sec.  68.93. However, with EPA's
final rule option to replace the requirement to provide any other
information that local planning and response organizations identify as
relevant to local emergency response planning with the requirement to
provide other information necessary for developing and implementing the
local emergency response plan, which was already in Sec.  68.95(c), and
limiting the other specific information elements to be provided during
coordination activities to emergency planning items that generally do
not contain CBI, EPA no longer sees any need for a CBI provision in
subpart E. Emergency coordination information generally is made up of
information not entitled to CBI protection under RMP subpart G or
information that would have extremely limited protection under the
EPCRA trade secret provisions covering EPCRA's emergency planning
subchapter. Under the final rule, the only information that Subpart E
had not already required to be available to local response officials is
information on responding facilities' schedules and plans for field and
tabletop exercises, which should not require disclosure of any CBI.
---------------------------------------------------------------------------

    \100\ See CSAG petition, pp 5 EPA-HQ-OEM-2015-0725-0766 and RMP
Coalition petition, pp 7. EPA-HQ-OEM-2015-0725-0759.
---------------------------------------------------------------------------

    Regarding classified and restricted information, for the same
reasons previously explained in section V.C.5.a--``Retention of
classified information provision in Sec.  68.210'', the final rule
includes a modified form of the proposed rule's classified information
provision in Sec.  68.93. As with Sec.  68.210, the new provision in
Sec.  68.93 addresses both classified information (i.e., NSI) and
restricted information (i.e., CVI, SSI, and PCII). EPA's reference to
DHS regulations for restricted information in this section does not
imply an absolute prohibition on the sharing of such information during
coordination activities, as some local emergency response officials may
be authorized to receive SSI, PCII, or CVI. However, EPA expects that
there will be few cases where local emergency coordination activities
will require exchanges of such restricted information. Regarding NSI,
very few RMP-regulated facilities possess such information, and EPA
does not expect that coordination activities involving facilities that
possess NSI would typically involve such information. As previously
stated, laws relating to control of NSI generally prohibit its
disclosure to any persons who do not have an appropriate clearance for
NSI and a need to know the information.
c. Conflicts With Other Federal Coordination Requirements
    Most commenters supported EPA's proposal to retain the Amendments
rule requirement for the owner or operator to annually coordinate with
local responders and provide emergency response plans, emergency action
plans, and updated contact information during coordination activities.
A comment submitted by multiple state elected officials stated that the
provisions in the proposed Reconsideration rule obliging local
emergency planning and response organizations to coordinate annually on
emergency response should be deleted from the final rule and should not
be retained. The commenter argued that a determination of the necessity
and effectiveness of emergency response coordination in the post-9/11
era requires consideration, among other things, of the existing
incident command structure the Federal government has worked to develop
through the NIMS, coordinated through the DHS and the Federal Emergency
Management Agency. The commenter asserted that when an incident occurs,
State and local emergency responders operate through an established
incident command structure. The commenter argued that it is essential
that when promulgating rules relating to emergency response
coordination EPA consider the numerous overlapping emergency response
coordination and preparedness requirements in other regulations and
statutes. The commenter concluded that the Amendments rule failed to
adequately consider these other provisions, resulting in the potential
to create confusion among responders, thereby reducing the
effectiveness of their response efforts in the event of a chemical
facility accident. Furthermore, the commenter argued that creating an
uncoordinated overlay to an existing incident command structure would
result in incident response scenarios rife with potential for confusion
at the precise time any such confusion could be most hazardous. The
commenter also

asserted that duplication of existing incident response and incident
command structure makes emergency response and the organization of
incident response less effective. Finally, the commenter stated that
EPA should not engage in rulemaking to establish separate criteria for
coordination that only frustrate the broader objective of cohesive and
effective emergency response and serve to overburden already limited
State and local emergency response financial resources.
    EPA Response: EPA disagrees that the final rule creates any
conflict with the NIMS.\101\ The NIMS establishes a set of emergency
management concepts, principles, and methods with the objective of
producing a standardized but flexible approach to incident management
at all levels. EPA supports the NIMS and these objectives and believes
nothing in the RMP rule conflicts with them--commenters presented no
evidence or examples of where the RMP emergency response coordination
provisions were incompatible with the NIMS. For the most part, RMP
emergency response coordination activities take place outside of the
context of an actual incident; they are intended to be routine, annual
activities that involve the sharing of information in advance of any
incident. However, such sharing can and should include collaborating on
incident planning, incident command, and incident resource and
information management. Advanced coordination regarding chemical
releases facilitates the functioning of the NIMS. During exercises and
actual incidents, EPA encourages owners and operators and local
response officials to employ NIMS doctrine, such as use of the ICS.
---------------------------------------------------------------------------

    \101\ See National Incident Management System, https://www.fema.gov/national-incident-management-system and National
Incident Management System Third Edition October 2017, available in
the rulemaking docket.
---------------------------------------------------------------------------

d. Requirement for More Frequent Coordination Should Be Clarified
    An industry trade association, referring to the requirement for
coordination to occur at least annually, and more frequently if
necessary, commented that a determination as to whether more frequent
coordination is needed should be tied to some objectively knowable
change in circumstances, and notification to the source must occur.
    EPA Response: EPA intends the ``more frequently if necessary''
language to address situations where a significant change in either the
source or its surrounding community has made information exchanged
during the most recent coordination activity outdated, or where the
owner or operator and local response officials judge that additional
coordination should take place sooner than the next annual meeting or
more frequently than annually on an ongoing basis. In most cases,
sources and local authorities may have no need to conduct coordination
activities more frequently than annually. In others, ``more
frequently'' may mean a one-time additional coordination activity to
address a specific change at the source or in the community, whereas in
still others, the owner or operator and local authorities may elect to
establish an ongoing schedule for coordination activities that is more
frequent than annual. EPA's rule leaves flexibility for the source and
the community to determine when additional coordination is needed.
e. Claims That Rescinding Local Coordination Provisions Is Arbitrary
and Capricious
    A joint submission from multiple advocacy groups and other
commenters, and a comment submitted by multiple State elected officials
stated that EPA's proposal to rescind and weaken emergency coordination
requirements is arbitrary and capricious. These commenters stated that
according to the standard established in FCC v. Fox Television, EPA is
required to provide a more detailed rationale to justify the agency's
proposed changes when the Agency is contradicting prior fact-finding.
The commenters concluded that EPA did not provide the requisite more
detailed rationale.
    EPA Response: EPA disagrees with these comments. The final rule
does not rescind, eliminate, or weaken the Amendments rule's emergency
coordination requirements. The final rule makes a minor but important
change to the emergency coordination provisions of the Amendments rule
in order to not create new security vulnerabilities. In the final rule,
EPA is adopting the alternative proposed language for local
coordination, which replaces the requirement to provide any other
information that local responders identify as relevant to local
emergency response planning with the requirement to provide other
information necessary for developing and implementing the local
emergency response plan. As EPA explained in the proposed rule, this
requirement is virtually identical to the requirement in Emergency
Planning and Community Right-to-Know Act (EPCRA) section 303(d)(3), [42
U.S.C. 11003(d)(3)], and also appears in Sec.  68.95(c) of the original
RMP rule, which applies to facilities with Program 2 and Program 3
processes whose employees respond to accidental releases of regulated
substances. Therefore, as a result of either the EPCRA section
303(d)(3) provision or the provision in Sec.  68.95(c), most RMP
facilities have long been subject to this requirement, and the Agency
is applying it in the new requirement to the relatively few RMP
facilities that are not already subject to it under EPCRA section
303(d)(3) or Sec.  68.95(c), which should not create any security
vulnerabilities. We note that the RMP Amendments failed to address, or
even mention, the importance of information on a facility's and a
community's emergency response plan as a factor in targeting chemical
facilities.\102\ An open-ended provision would create new potential
vulnerabilities. EPA believes that adopting the alternative proposed
language in the final rule will address security concerns with the
Amendments rule provision while still allowing local responders to
obtain information needed for emergency response planning. EPA notes
that the final rule language is not open-ended, and restricts other
information provided to that needed for developing and implementing the
local emergency response plan. EPA disagrees that this rationale is
arbitrary or capricious--it is a rational and reasonable response to
addressing legitimate security concerns raised by petitioners and does
not weaken the emergency coordination provisions of the Amendments
rule.
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    \102\ Department of Justice. April 18, 2000. Assessment of the
Increased Risk of Terrorist or Other Criminal Activity Associated
with Posting Off-Site Consequence Analysis Information on the
internet. pp. 38-39. Available in the rulemaking docket.
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VII. Modified Exercise Amendments

A. Summary of Proposed Rulemaking

    In the RMP Amendments rule, EPA added a new section entitled Sec.
68.96 Emergency response exercises. This section contained several new
provisions, including:
     Notification exercises: At least once each calendar year,
the owner or operator of a stationary source with any Program 2 or
Program 3 process must conduct an exercise of the stationary source's
emergency response notification mechanisms.
     Owners or operators of responding stationary sources are
allowed to perform the notification exercise as part of the tabletop
and field exercises required in new Sec.  68.96(b).
     The owner/operator must maintain a written record of each
notification

exercise conducted over the last five years.
     Emergency response exercise program: The owner or operator
of a responding stationary source must develop and implement an
exercise program for its emergency response program.
     Exercises must involve facility emergency response
personnel and, as appropriate, emergency response contractors.
     The emergency response exercise program must include field
and tabletop exercises involving the simulated accidental release of a
regulated substance.
     Under the RMP Amendments rule, the owner or operator is
required to consult with local emergency response officials to
establish an appropriate frequency for exercises, but at a minimum, the
owner or operator must hold a tabletop exercise at least once every
three years, and a field exercise at least once every ten years.
     Field exercises must include tests of procedures to notify
the public and the appropriate Federal, state, and local emergency
response agencies about an accidental release; tests of procedures and
measures for emergency response actions including evacuations and
medical treatment; tests of communications systems; mobilization of
facility emergency response personnel, including contractors, as
appropriate; coordination with local emergency responders; emergency
response equipment deployment; and any other action identified in the
emergency response program, as appropriate.
     Tabletop exercises must include discussions of procedures
to notify the public and the appropriate Federal, state, and local
emergency response agencies; procedures and measures for emergency
response including evacuations and medical treatment; identification of
facility emergency response personnel and/or contractors and their
responsibilities; coordination with local emergency responders;
procedures for emergency response equipment deployment; and any other
action identified in the emergency response plan, as appropriate.
     For both field and tabletop exercises, the RMP Amendments
rule requires the owner or operator to prepare an evaluation report
within 90 days of each exercise. The report must include a description
of the exercise scenario, names and organizations of each participant,
an evaluation of the exercise results including lessons learned,
recommendations for improvement or revisions to the emergency response
exercise program and emergency response program, and a schedule to
promptly address and resolve recommendations.
     The RMP Amendments rule also contains a provision for
alternative means of meeting exercise requirements, which allows the
owner or operator to satisfy the requirement to conduct notification,
field and/or tabletop exercises through exercises conducted to meet
other Federal, state or local exercise requirements, or by responding
to an actual accidental release.
    EPA proposed to modify the exercise program provisions of Sec.
68.96(b), as requested by state and local response officials, by
removing the minimum frequency requirement for field exercises and
establishing more flexible scope and documentation provisions for both
field and tabletop exercises. Under the proposal, EPA would have
retained the final RMP Amendments rule requirement for the owner or
operator to attempt to consult with local response officials to
establish appropriate frequencies and plans for field and tabletop
exercises. The minimum frequency for tabletop exercises would have
remained at three years. However, there would have been no minimum
frequency specified for field exercises in order to reduce burden on
regulated facilities and local responders as explained in rationale in
section IV.D.5. ``Costs of Field and Tabletop Exercises'' in the
proposed rule. Documentation of both types of exercises would still
have been required, but the items specified for inclusion in exercises
and exercise evaluation reports under the RMP Amendments rule would
have been recommended, and not required. The content of exercise
evaluation reports would have been left to the reasonable judgement of
stationary source owners or operators and local emergency response
officials. As described in the RMP Amendments rule, if local emergency
response officials declined the owner or operator's request for
consultation on and/or participation in exercises, the owner or
operator would have been allowed to unilaterally establish appropriate
frequencies and plans for the exercises (provided that the frequency
for tabletop exercises does not exceed three years) and conduct
exercises without the participation of local emergency response
officials. Likewise, if local emergency response officials and the
facility owner or operator cannot agree on the appropriate frequency
and plan for an exercise, owners and operators must still ensure that
exercises occur and should establish plans to execute the exercises on
their own. The RMP Amendments rule does not require local responders to
participate in any of these activities, nor would the proposed
Reconsideration rule.
    The proposal would not have altered the notification exercise
requirement of Sec.  68.96(a) or the provision for alternative means of
meeting exercise requirements of Sec.  68.96(c). EPA proposed to
correct an error in Sec.  68.96(b)(2)(i) related to the frequency of
tabletop exercises by proposing to replace the phrase ``shall conduct a
field exercise every three years'' with ``shall conduct a tabletop
exercise every three years.'' For provisions of the RMP Amendments that
were proposed to be retained, the Agency continued to rely on the
rationale and responses provided when we promulgated the Amendments.
See 81 FR 13674-76 (proposed RMP Amendments rule), March 16, 2016 and
82 FR 4659-67 (final RMP Amendments rule), January 13, 2017. In
summary, EPA found that exercising an emergency response plan is
critical to ensure that response personnel understand their roles, that
local emergency responders are familiar with the hazards at the
facility, and that the emergency response plan is appropriate and up-to
date. Exercises also ensure that personnel are properly trained and
that lessons learned from exercises can be used to identify future
training needs. Poor emergency response procedures during some recent
accidents have highlighted the need for facilities to conduct periodic
emergency response exercises. Other EPA and federal agency programs and
some state and local regulations require emergency response exercises.
As an alternative, EPA considered whether to fully rescind the field
and tabletop exercise provisions of Sec.  68.96(b). Under that
alternative proposal, EPA would have retained the notification exercise
provision of Sec.  68.96(a) but revised it and Sec.  68.93(b) to remove
any reference to tabletop and field exercises, while also modifying the
provision in Sec.  68.96(c) for alternative means of meeting exercise
requirements so that it applies only to notification exercises.
    EPA also considered another alternative--to remove the minimum
frequency requirement for field exercises but retain all remaining
provisions of the RMP Amendments rule regarding field and tabletop
exercises, including the RMP Amendments rule requirements for exercise
scope and documentation.

B. Summary of Final Rule