Chemical Safety Information, Site Security and Fuels Regulatory Relief Act

(PL 106-40)

Frequently Asked Questions

4/20/00

I. Flammable Fuels:

1. Do I have to submit an RMP for my facility if the only listed substances I have on-site are flammable fuels?

A. It depends. If your facility uses the flammable substance as a fuel on site, or your facility is a retail facility that holds the flammable substance for sale as a fuel, you do not have to submit an RMP. However, if you hold regulated flammable substances that are not used as fuel and your facility does not meet the definition of a retail facility, then the flammable substances are still subject to the RMP program if you have more than a threshold amount in a process.

2. What qualifies as a retail facility?

A. The law defines a retail facility as, "a stationary source at which more than one-half of the income is obtained from direct sales to end users or at which more than one-half of the fuel sold, by volume, is sold through a cylinder exchange program".

3. Will flammable fuels be removed from the list of covered substances under Section 112(r) of the Clean Air Act?

A. EPA will soon issue a rule conforming the list of covered substances to the new law. The rule will revise the list to exclude flammable substances that are used as a fuel or held for sale as a fuel at a retail facility. (Note that it is not necessary for EPA to complete this rule for flammable fuels to be removed from the RMP program. The effect of the new law was to remove fuels from the program.) Flammable substances used for non-fuel purposes (e.g., as a feedstock in chemical manufacturing operations), or held for sale by a nonretail facility, will continue to be covered.

4. How does the law affect the judicial stay on propane issued by the U.S. Court of Appeals or the administrative stay on flammable hydrocarbon fuels published by EPA?

A. The law does not directly affect the judicial stay on propane. The law and judicial stay are generally consistent as both provide relief to propane facilities. However, there are differences between the two. First, the law is permanent while the judicial stays is temporary and can be lifted by the court at any time. Second, the law applies to all listed flammable substances that are used as a fuel or held for sale as a fuel at a retail facility, while the judicial stay applies only to propane facilities (regardless of type).

The law essentially makes the administrative stay moot. The purpose of the administrative stay was to relieve certain fuel facilities from RMP coverage while EPA completed the work necessary to create a permanent exemption for facilities having up to 67,000 pounds of flammable fuel in a process. The law reaches farther than the scope of the administrative stay, since it 1) removes from RMP coverage all listed flammable substances when used as a fuel or held for sale as a fuel at a retail facility, and 2) has no eligibility threshold. Therefore, EPA will issue a notice in the Federal Register withdrawing the administrative stay and the accompanying proposed rule.

5. Is propane the only flammable fuel that is affected by the law?

A. No. The law applies to any listed flammable substance when it is used as a fuel or held for sale as a fuel at a retail facility.

6. Will EPA issue a list of flammable fuels that could be affected?

A. Yes. As part of the rule revising the list to conform to the new law, EPA will include a list of the flammable substances that are commonly used as fuel. However, EPA will not attempt to include on the list every flammable substance that might be used a fuel. The law removes flammable substances from the RMP program based on use as a fuel, so any flammable substance could be affected if it is used as a fuel.

7. Am I still covered if I am storing the substance for future use as a fuel?

A. No. If you are storing the substance for future use as a fuel on-site, or you are a retail facility and you are storing it for sale as a fuel, you no longer have to comply with the risk management program.

8. If I no longer have to report my flammable fuel, am I still covered by the CAA General Duty Clause?

A. Yes. The law does not affect a source's standing in relation to the General Duty Clause. The General Duty Clause of CAA Section 112(r) requires facilities handling extremely hazardous substances, whether listed under Section 112(r) or not, to--among other things--design and maintain a safe facility.

II. Public Access to Off-Site Consequence Analysis Data (OCA)

There are currently no questions in this section.

III. Restrictions For OCA Data

1. Exactly what materials are subject to the restriction?

A. The following materials are subject to restriction under the Chemical Safety Information, Site Security and Fuels Regulatory Relief Act (PL 106-40):

• Sections 2 through 5 (concerning the off-site consequences of "worst case" and "alternative releases" of toxic and flammable substances) of the RMPs that facilities have submitted to EPA under 40 CFR part 68;
• The portions of EPA's electronic database created from those sections; and
• Any statewide or national ranking of identified facilities derived from those sections.

2. How are these materials restricted?

A. Disclosure and distribution of the OCA materials is limited at least until Aug. 5, 2000. The federal government must conduct an assessment and issue regulations by that date to govern the distribution of the OCA materials. Prior to Aug. 5, 2000, OCA materials are to be distributed only to "covered persons" (as defined in the law) with certain geographic restrictions. Covered persons may not disclose to the public the OCA materials in any form (electronic or paper), except as authorized by the law and regulations issued under the law.

3. Who is a "covered person"?

A. There are three categories of "covered persons":

• Federal covered person: An officer or employee of the United States or of an agent or contractor of the federal government;
• State or local covered person: An officer of employee of a State or local government or of an agent or contractor of a State or local government, or an individual affiliated with an entity that has been given, by a State or local government, responsibility for preventing, planning for, or responding to accidental releases (for example, a volunteer firefighter or a member of a State Emergency Response Commission (SERC) or Local Emergency Planning Committee (LEPC) established under the federal Emergency Planning and Community Right-To-Know Act, or an officer and employee of an agent or contractor of such an entity; and
• Covered researcher: A researcher as identified by EPA under the qualified researcher provision of the law.

4. Are private individuals of companies prohibited from distributing OCA materials?

A. Restrictions only apply to "covered persons". A private individual or entity is not prohibited from distributing OCA materials. Because a facility may choose to distribute the OCA sections of its RMP, covered persons may disclose to the public the OCA sections of an RMP that has been released to the public "without restriction" by the facility that submitted the RMP.

5. What can "covered persons" share with the public?

A. Covered persons are forbidden from publicly disclosing Sections 2 through 5 of an RMP because those sections could be compiled fairly easily into a large OCA database that could be posted on the Internet. Consequently, a covered person may not show or distribute duplicate copies of those RMP sections. However, a covered person is not prohibited from communicating the information in these sections orally or in writing as long as the format does not replicate Sections 2 through 5 of an RMP. A covered person may, for example, answer questions from the public about the potential off-site consequences of an accident at a particular facility using the information reported in that facility's RMP. A covered person also may disclose or distribute information contained in the executive summary of the RMP.

6. What does "official use" mean?

"Official use" means "an action of a Federal, State, or local government agency or an entity [such as a SERC, LEPC or volunteer fire department] intended to carry out a function relevant to preventing, planning for, or responding to accidental releases."

Following are examples of what would constitute "official use" of OCA materials by a covered person:

• Discussing with other covered persons and/or the public the information in sections 2 through 5 of a facility's RMP as it relates to emergency planning, prevention or response, so long as you do not disclose or distribute the OCA materials to the public or to other covered persons with whom you are not authorized to share the materials.

• Analyzing the information in sections 2 through 5 of facilities' RMPs, or EPA's database created from those sections, to determine which facilities in your jurisdiction present the greatest risk to the public in case of an accidental release, so that you can focus your emergency planning, prevention or response efforts accordingly.

• Communicating the results of the analysis described above to other covered persons and/or the public, so long as the results do not rank facilities either nationally or statewide, or, if the results do take such a form, so long as they are communicated only to covered persons with whom you are authorized to share such materials.

• Comparing the information in sections 2 through 5 of RMPs for facilities in your jurisdiction with those for facilities in other jurisdictions to gain insight into whether the facilities in your jurisdiction have appropriate accident prevention programs.

• Communicating the results of the comparison described above with other covered persons and/or the public, so long as you do not disclose or distribute the OCA materials to the public or to other covered persons with whom you are not authorized to share the materials.

• Considering the information in sections 2 through 5 of the RMPs submitted by facilities in your jurisdiction in making decisions about zoning or land use planning.

Following are examples of what would not constitute "official use" of the OCA materials by a covered person:

• Disclosing (for example, by means of an overhead projector) or distributing (in paper or electronic form) the OCA materials as part of a public information or education campaign, even if one of the functions of your agency or entity is to inform or educate the public about chemical emergency risks.

• Disclosing or distributing the OCA materials to a private party in a court suit involving a chemical accident at a facility (note that disclosure to court personnel may be permissible since they are covered persons).

7. As a "covered person," to whom can I distribute the OCA materials?

You are prohibited from disclosing or distributing the OCA materials to the public until at least August 5, 2000, but you may share the OCA materials with certain categories of covered persons only as described below. If you distribute the OCA materials to another covered person, you should send a copy of this notice with the materials so that the recipient will be informed of the applicable restrictions.

• A Federal covered person may distribute to

• another Federal covered person, for that person's official use, any or all of the OCA materials; and

• a State or local covered person, for that person's official use, the OCA materials only for the facilities located in that person's State.

• In addition, a Federal covered person who works for the EPA office designated to transmit OCA materials may distribute to

• a State or local covered person, at that person's request and for that person's official use, the OCA materials for facilities located in States other than that person's State; and
• a covered researcher, any or all of the OCA materials.

• A State or local covered person may distribute the OCA materials for only the facilities located in his or her State to:

• a Federal covered person;
• a State or local covered person in his or her State; and
• a State or local covered person in a State contiguous to his or her State, for that person's official use.

• A covered researcher may not disseminate any portion of the OCA materials received from EPA under the qualified researcher provision of the Act or any statewide or national ranking of identified facilities derived from those materials.

8. Are there any exceptions to these distribution restrictions?

A. Yes. The restrictions described above do not apply to sections 2 through 5 of RMPs for facilities that have released those sections of their RMPs to the public without restriction. The Act requires any facility that releases those sections of its RMP to the public without restriction to notify EPA that it has done so. The Act further requires EPA to make publicly available a list of facilities that have so notified EPA. EPA will post that list on its RMP*Info website at [address]. You may also get a copy of the list by calling [Hotline number].

9. What are the penalties for violating these restrictions?

A. A covered person who willfully violates a restriction or prohibition of the law, including any issued regulations, is subject to a fine of not more than $5,000; for organizations, the fine is not more than $10,000. If unauthorized disclosure relates to more than one facility, disclosure of each facility's OCA information is a separate offense. The total of all penalties that may be imposed on a single person or organization cannot exceed $1,000,000 for violations committed during any one calendar year.

10. My facility distributed diskettes and paper copies of the Risk Management Plan that I submitted to EPA by June 21, 1999, at an LEPC meeting on Oct. 21, 1999. The public was in attendance and the company did not restrict the meeting participants’ use or distribution of the information. These copies included my OCA data (Sections 2-5). Does this constitute “unrestricted access”? Do I need to tell EPA?

A. Your facility may choose to share your OCA data with the public. Distributing duplicates of the RMP you sent to EPA at a public meeting- whether on paper or on diskette - means you have given “unrestricted access” to the data. Giving “unrestricted access” allows government officials to share your OCA data with the public as well. If you make OCA portions of your RMP available to the public without restriction, then you must notify EPA that you have done so. You can mail your notification to: RMP Reporting Center, PO Box 3346, Merrifield, VA 22116-3346.

IV. Facility Distribution of OCA data

1. Are facilities required to distribute OCA data to the public?

A. Facilities are not required to distribute the OCA sections of their RMPs to the public. However, virtually all covered facilities are required to hold a public meeting to summarize the information in those sections or, if they are small businesses, to publicly post such a summary. Facilities that have only Program 1 processes are exempt from this requirement. Facilities subject to the requirement must hold their public meeting or post their summary by Feb. 1, 2000, or have already done so between Aug. 5, 1998, and Aug. 5, 1999. A facility is also free to release the OCA sections of its RMP or a document providing the information in those sections, if it so chooses.

2. If a facility distributed the OCA sections of its RMP to the community prior to passage of P.L. 106-40 without restrictions, must they notify EPA?

A. Facilities that distributed OCA sections of its RMP to the public without restriction prior to Aug. 5, 1999, are not required to notify EPA that they have done so.

3. If a facility has released OCA sections of its RMP to the public, may covered persons distribute the data, too?

If a facility releases the OCA sections of its RMP to the public without restriction on or after Aug. 5, 1999, covered persons may distribute those sections to the public, too. Facilities that have released the OCA sections of their RMPs must notify EPA that they have done so.

EPA will compile a list of facilities that have provided unrestricted public access to their OCA section.

V. State OCA Data Collection/Dissemination

1. If a State collects OCA data directly from facilities under a State law and creates a database, is the data or the database covered by the new law?

A. No.

2. If a State collects RMP data, including OCA data, under State law, must it notify EPA and the FBI?

A. There are no requirements for such notification in the law.

3. If a State collects OCA data under State law, may the State post the OCA data electronically?

A. Yes.

4. If a State posts the entire RMP, including the OCA data, on the Internet, does that eliminate the need for covered facilities to hold a public meeting?

A. No. Facilities that are required to do so under the law still must hold public meetings.

VI. Public Meetings

1. Who has to hold a public meeting?

A. All facilities, except those with only Program 1 processes, must hold a public meeting, although facilities that meet the definition of "small business stationary source" in the CAA may opt to publicly post a summary of their OCA data instead. Facilities must hold their public meeting or post their summary by Feb. 1, 2000, or have already done so between Aug. 5, 1998, and Aug. 5, 1999. The CAA definition of "small business stationary source" follows:

• is owned or operated by a person that employs 100 or fewer individuals;

• is a small business concern as defined in the Small Business Act (for a definition of small business concern, see Question 5 under Public Meetings below);

• is not a major stationary source;
• does not emit 50 tons or more per year of any regulated pollutant; and

• emits less than 75 tons per year of all regulated pollutants.

2. If a company did a "rollout," does that qualify as a public meeting? How many members of the public had to be present for the meeting to qualify?

A. Rollouts that occurred between Aug. 5, 1998, and Aug. 5, 1999, and that met reasonable requirements for public meetings (for example, they were open to the public, held after giving reasonable public notice, and had an agenda that included a discussion of OCA) qualify as a public meeting. The new law does not require that any particular number of persons must have attended for the meeting to qualify as a public meeting.

3. Do small companies that opt to post an OCA summary instead of hold a public meeting need to notify the FBI that they have provided the public with their OCA summary?

A. Yes. By June 5, 2000, the owner or operator must send a certification stating that the public meeting has been held, or the OCA summary posted the certification should be sent to:

Director, FBI
Attn: RMP Program/Room 1B327
935 Pennsylvania Ave. N.W.
Washington, D.C. 20535-0001

4. Can a small business use its RMP Executive Summary as the public notice?

A. Yes, provided that the business included in its Executive Summary a summary of the OCA information in its RMP.

5. How do I determine if my facility qualifies as a “small business concern” under the Small Business Act (15 USC 631 et seq.)?

A. The Small Business Act “small business concern” definition is based on many factors, such as annual gross receipts, Standard Industrial Classification and other items. You should contact EPCRA hotline at 800-424-9346 and ask them to direct you to the Small Business Assistance Program in your State. That individual will help you determine whether your facility meets the definition of “small business concern.”

6. My facility was not subject to the Risk Management Program requirements on June 21, 1999. However, in September 1999 we received a Section 112(r) listed chemical above the threshold amount and now must comply with the RMP regulations. Does my facility have to hold a public meeting by Feb. 1, 2000?

A: Facilities that became subject to the Risk Management Program regulations after June 21, 1999, are not required to hold public meetings. However, all facilities that were subject to the RMP regulations by June 21, 1999, must have a public meeting by Feb. 1, 2000. Facilities that were required to submit an RMP by June 21, 1999, and failed to do so, would be out of compliance with CAA Section 112(r) as well as the public meeting requirements of PL 106-40 if they failed to hold a public meeting by Feb. 1, 2000. While it is not required, facilities that are covered by the Risk Management Program after June 21, 1999, should talk with their LEPC and the public about the local implications of their RMP. By communicating RMP information, the community and emergency planners will better understand the chemical hazards and work with you to reduce the risk of an accident occurring.

7. My facility submitted an RMP by June 21, 1999, for the propane we use as fuel onsite. On Aug. 5, 1999, President Clinton signed the Chemical Safety Information, Site Security and Fuels Regulatory Relief Act that removed from coverage by the RMP program any flammable substance when used as fuel or held for sale as fuel by a retail facility. Does my facility have to hold a public meeting?

A. No. Your facility is not required to hold a public meeting.

8. My facility has stopped using the CAA section 112(r) listed substance that required us to submit an RMP. We have de-registered from the RMP database. Does my facility have to hold a public meeting?

A. No. Your facility is not required to hold a public meeting.

9. How will EPA determine if facilities have conducted the proper "roll-out" or public presentation of their RMP? Is there a timetable?

A. Facilities must certify to the FBI by June 5, 2000 that they have presented their RMPs to the public. If the operator of a facility fails to conduct the required public presentation, EPA can request that a U.S. District Court issue an order requiring the operator to hold a public meeting. If you are aware of any facility operator who has not conducted the required public meeting, you can contact your EPA Regional Office. A list of EPA Regional offices is located on the CEPPO website at http://www.epa.gov/ceppo/sta-loc.htm

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