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Part III

EnvironmentalProtection Agency40 CFR Parts 350, 355, 370 and 372Community Right-to-Know ReportingRequirements; Final Rule

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30832 Federal Register I Vol. 55, No. 144 / Thursday, July 26, 1990 I Rules and RegulationsENVIRONMENTAL PROTECTIONAGENCY

40 CFR Parts 350, 355, 370, and 372

[FRL-3716-5l

RIN 2050-ABS8

Community Right-to-Know ReportingRequirements

AGENCY: Environmental ProtectionAgency (EPA).ACTION: Final rule.

SUMMARY: Section 311 of the EmergencyPlanning and Community Right-to-KnowAct (EPCRA) or title III of the SuperfundAmendments and Reauthorization Actof 1986 (SARA) authorizes theAdministrator of the U.S. EnvironmentalProtection Agency (EPA) to establishreporting thresholds (i.e., quantities) for'hazardous chemicals present at afacility below which facilities would notroutinely have to comply with thereporting requirements specified insections 311 and 312 of title III of SARA.EPA previously established reportingthresholds for the first two years ofreporting at 10,000 pounds for hazardouschemicals and at 500 pounds or thethreshold planning quantity (TPQ),whichever is lower, for extremelyhazardous substances (EHSs} (52 FR38344; October 15, 1987). EPA alsopromulgated zero thresholds in thatrulemaking to become effective in thethird year of reporting, but stated in thepreamble that it would conduct furtherstudies of all reporting thresholdalternatives and would propose finalreporting thresholds before thebeginning of the third year of reporting.

After completing its study ofalternative thresholds, EPA published aNotice of Proposed Rulemaking (NPRM)proposing final reporting thresholds (54FR 12992; March 29, 1989). Subsequently,because of the time required to addressthe comments received on the NPRMand to promulgate a final rule, EPApublished an Interim Final Ruleextending, for manufacturing facilities,the reporting thresholds established forthe first two years of reporting under theOctober 15, 1987 rule (54 FR 41904;October 12, 1989). Also on October 12,1989, EPA published a SupplementalNotice explaining its intention toestablish uniform deadlines in the finalrule on thresholds (54 FR 41907).

In today's final rule, EPA ispromulgating final reporting thresholdsunder sections 311 and 312 at the currentlevels, 10,000 pounds for non-EHShazardous chemicals that must bereported and 500 pounds or the TPQ,whichever is lower, for EHSs. In

accordance with the October 12. 1989Supplemental Notice, today's final rulealso establishes uniform effective datesfor all facilities subject to reportingrequirements under sections 311 and312. Thus, all facilities from all industry,sectors will be subject to the finalthresholds on the same dates.

Today, EPA is also finalizing severalother provisions proposed in the March29, 1989 NPRM, including the revision ofthe definition of the term "facility" toinclude subsurface operations, thetreatment of mixtures in thresholdcalculations, and the implementation ofall sections of title III by Indian Tribeson Indian lands (including section 313 oftitle III). EPA previously published afinal rule correcting the discrepancy inthe reportable quantities for hydrogenchloride and methacrylonitrile (54 FR43164; October 20. 1989).EFFECTIVE DATE: August 27, 1990.ADDRESSES: Copies of materialsrelevant to this rulemaking arecontained in the Superfund Docket-Docket Number 300RR-IF, room 2427,401 M Street SW., Washington, DC20460. The docket may be inspected byappointment between the hours of 9 aim.and 4 p.m., Monday through Friday,excluding Federal holidays. The docketphone number is (202) 382-3046. Asprovided in 40 CFR part 2, a reasonablefee may be charged for copying services.FOR FURTHER INFORMATION CONTACT:Kathleen Jones, Project Officer,Chemical Emergency Preparedness andPrevention Office, Office of Solid Wasteand Emergency Response, OS-120, U.S.Environmental Protection Agency, 401 MStreet SW., Washington, DC 20460, orthe Emergency Planning and CommunityRight-to-Know Information Hotline at(800) 535-0202, or in the Washington, DCmetro area and Alaska at (202) 479-2449.SUPPLEMENTARY INFORMATION: Thecontents of today's preamble are listedin the following outline.I. Introduction

A. Statutory AuthorityB. Statutory BackgroundC. Background of This RulemakingD. Organization of the Final Rule

I. Final Reporting ThresholdsIII. Analytical ApproachIV. Other Issues

A. Multi-Establishment Facility ReportingB. Tier I and Tier II FormsC. Subsurface OperationsD. Treatment of EHS Mixtures in Reporting

Threshold CalculationsE. The Implementation of Title III by Indian

Tribes on Indian LandsF. Miscellaneous Issues

V. Regulatory AnalysesA. Regulatory Impact AnalysisB. Regulatory Flexibility Analysis

List of Subjects

1. IntroductionA. Statutory Authority

These regulations are issued undersections 302, 304, 311, 312, 313, and 328of title III of the Superfund Amendmentsand Reauthorization Act of 1986 (SARA)(Pub. L. 99-499; 42 U.S.C. 11001 et seq.).Title Ill is the Emergency Planning andCommunity Right-to-Know Act of 1986(EPCRA).

B. Statutory Background

1. SARA

SARA revises and extends theauthorities established under theComprehensive EnvironmentalResponse, Compensation, and LiabilityAct of 1980 (CERCLA). Commonlyknown as "Superfund," CERCLAprovides authority for Federal responseaction at certain sites where there is arelease or a threat of release of ahazardous substance.2. Title Ill of SARA

Title III of SARA establishesauthorities for emergency planning andpreparedness, emergency notificationreporting, Community Right-to-Knowreporting, and toxic chemical releasereporting. Title III is intended toencourage and support State and localplanning for emergencies caused by therelease of hazardous chemicals and toprovide citizens and governments withinformation concerning potentialchemical hazards present in theircommunities. Title III is organized intothree subtitles. Subtitle A establishes aframework for State and localemergency planning. Under section 301of subtitle A, States have establishedState emergency response commissions(SERCs), which have, in turn, appointedlocal emergency planning committees(LEPCs). Section 302 requires EPA todesignate Extremely HazardousSubstances (EHSs) and to establishthreshold planning quantities (TPQs) foreach EHS; at present, there are 360designated EHSs listed at 40 CFR part355. Every facility where an EHS ispresent at or above the TPQ is requiredto notify the SERC and to cooperatewith the LEPC in the planning processspecified under section 303 of title Ill ofSARA.

Section 304 of title III requires theowners or operators of facilities tonotify the local emergencycoordinator(s) and State(s) likely to beaffected as soon as the owner oroperator has knowledge of a release ofan EHS or a CERCLA hazardoussubstance affecting persons beyond the

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Federal Register / Vol. 55, No. 144 / Thursday, July 26, 1990 / Rules and Regulations

facility boundaries, if the release equalsor exceeds a reportable quantity (RQ) orone pound if an RQ has not beenestablished by regulation.

Subtitle B of title III provides amechanism for public awareness ofhazardous chemicals present in thecommunity. Sections 311 and 312 of titleIll are discussed in detail in the nextsection of the preamble. Section 313requires facilities in SIC codes 20through 39 (i.e., manufacturing facilities)to report total annual emissions ofdesignated toxic chemicals that aremanufactured, processed, or otherwiseused at the facilities in quantities at orabove certain thresholds. Subtitle C oftitle I[ contains general provisionsconcerning citizen suits and publicavailability of information.C. Background of This Rulemaking

Section 311 of title I[ of SARA appliesto the owner or operator of a facilitywhere there are hazardous chemicalspresent for which the owner or operatormust prepare or have available aMaterial Safety Data Sheet (MSDS)under Hazard CommunicationStandards (HCS) (29 CFR part 1910)promulgated under the OccupationalSafety and Health Act of 1970. Undersection 311 of title III, the owner oroperator of a facility must submitindividual MSDSs, or a list of chemicalsfor which the facility is required to haveMSDSs, to the appropriate SERC, LEPC,and local fire department. The HCS doesnot list specific chemicals; a "hazardouschemical," as defined in the HCS, is onethat poses either a physical or healthhazard.I The tens of thousands ofproducts covered by the HCS includepetroleum products, explosives, andcarcinogens.

The HCS regulations were restrictedinitially to facilities in StandardIndustrial Classification (SIC) codes 20through 39, that is, the manufacturingsector. On August 24, 1987, however, theOccupational Safety and HealthAdministration (OSHA) revised the HCSto cover facilities in the non-manufacturing sqctor as well asfacilities in the manufacturing sector (52FR 51852). A challenge to the revisedstandards by several industrial groupsresulted in a temporary stay for non-manufacturing facilities. On July 22,1988, OSHA clarified that the HCS wasin effect for non-manufacturing facilitiesas of June 24, 1988, except for theconstruction industry (53 FR 27679). OnFebruary 15, 1989, OSHA notified EPAthat all provisions of the HCS were in

I The procedures for determining whether aparticular chemical is a hazardous chemical are setforth in 29 CFR 1910.1200 and appendices.

effect for all segments of industry,including the construction industry, as ofJanuary 30, 1989 (54 FR 6886).

For facilities in SIC codes 20 through39, the initial MSDSs or lists wererequired to be submitted to theappropriate SERC, LEPC, and firedepartment of October 17, 1987. Non-manufacturers were required to submittheir MSDSs or lists by September 24,1988 (i.e., three months after theybecame subject to the HCS, as specifiedin 40 CFR 370.20(bi). Facilities in theconstruction industry were required tosubmit their MSDSs or lists by April 30,1989. Thereafter, if a facility begins touse a chemical subject to the HCS in aquantity at or above the reportingthreshold, or if a facility learns that itspreviously submitted MSDS isinaccurate for any reason, the facilitymust submit the new or correctinformation within three months to theappropriate SERC, LEPC, and local firedepartment (40 CFR 370.21(c)).

Under section 312 of title III, ownersor operators covered by section 311 oftitle III are required to submit additionalinformation on the presence andlocation of hazardous chemicals at theirfacilities. Beginning March 1, 1991, underthe uniform deadlines in today's rule,and annually thereafter, all facilitiesaffected by the HCS that havehazardous chemicals at or above thereporting thresholds must submit a 'TierI" inventory form and may be requiredto submit a "Tier II" inventory form toSERCs, LEPCs, and fire departments.

Tier I forms require generalinformation on the amount and locationof hazardous chemicals by hazardcategory; Tier I forms must be submittedannually. Tier II forms require moredetailed information on individualchemicals and must be submitted onrequest. Facilities may submit Tier IIforms in lieu of Tier I forms.

Title III of SARA (section 311(b))states that the EPA Administrator mayestablish reporting thresholds (i.e.,quantities of hazardous chemicals) suchthat if the Hazardous chemical subjectto the HCS is present at a facility in aquantity that is below the reportingthreshold, the facility is not required toautomatically report the presence of thatchemical under the provisions ofsections 311 and 312 of title III. OnOctober 15, 1987, EPA promulgatedregulations (52 FR 38334) establishingreporting thresholds under section311(b) of title III for facilities subject tothe OSHA HCS. The reporting thresholdestablished for the first.two years was10,000 pounds, except for EHSs, whichmust be reported at the lower of 500pounds or the TPQ. Access to

information below these thresholds waspreserved in that facilities must provideany such information when requested inaccordance with 40 CFR 370.20(b)(3).

The October 15, 1987 rule alsoestablished a threshold of zero poundsfor the third year of reporting; that is, nothreshold as of the third year. Formanufacturers, the third year begins onSeptember 24, 1990; and for theconstruction industry, the third yearbegins on April 30, 1991.

EPA stated in the October 15, 1987final rule that because of the substantialnumber and variety of commentsreceived on the final threshold issue anduncertainty over the impact of therequirements on the recipients of thereports and ultimately on theeffectiveness of the program, it wouldconduct further studies of alternativethresholds and propose final reportingthresholds before the beginning of thethird year of reporting. On March 29,1989 (54 FR 12992), EPA published anNPRM proposing final reportingthresholds based on analyses conductedsince the promulgation of the October15, 1987 final rule. In that NPRM, EPAproposed to maintain the currentreporting thresholds (i.e., 10,000 poundsfor non-El-IS hazardous chemicals and500 pounds or the TPQ, whichever islower, for EHSs). Many commenterssupported selection of the currentthresholds, and some suggestedalternative thresholds. Because it wasnot feasible to consider properly andrespond thoroughly to all the comments,and to finalize and promulgate finalreporting thresholds before the zeropound threshold for manufacturersautomatically went into effect onOctober 17, 1989, and because EPAbelieved that it was not in the publicinterest to allow the zero threshold to gointo effect for the short hime required topromulgate final reporting thresholdsthat may differ from the zero threshold,EPA promulgated an Interim Final Ruleextending the current thresholds undersections 311 and 312 for one additionalyear for manufacturing facilities (54 FR41904; October 12, 1989). At the sametime, EPA published a SupplementalNotice explaining its intention toestablish uniform deadlines in the finalrule on thresholds.

EPA received seventeen letters on theSupplemental Notice and the InterimFinal Rule. All commenters supportedthe one-year extension of the currentreporting thresholds, as well as theproposal to establish uniform effectivedates for the final thresholds in today'srule. Accordingly, today's final rule onthresholds eliminates the differenteffective dates for various industry

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sectors and establishes uniformeffective dates for all facilities subject toreporting requirements under sections311 and 312. Under today's rule for allfacilities subject to reporting undersections 311 and 312, including facilitiesin the construction industry andfacilities newly subject to the reportingrequirements, October 17, 1990 will bethe effective date for final reportingthresholds for reports submitted undersection 311; March 1, 1991 will be theeffective date for final reportingthresholds for reports submittedannually under section 312.

Today, EPA is promulgating the finalthresholds at the current levels; that is,beginning October 17, 1990, the reportingthreshold is 10,000 pounds for non-EHShazardous chemicals and 500 pounds orthe TPQ, whichever is lower, for EHSs.

In the March 29, 1989 NPRM, EPAproposed a clarification to the reportingrequirements for multi-establishmentfacilities. EPA has decided not topromulgate a final rule on this issue atthis time.

EPA is also finalizing a number ofother provisions proposed in the March29, 1989 NPRM, including the revision ofthe definition of the term "facility" toinclude subsurface operations, thetreatment of mixtures in thresholdcalculations for § § 311 and 312, theimplementation of title III by IndianTribes on Indian lands, and severalmiscellaneous issues.

Finally, in the March 29, 1969 NPRM,EPA proposed to correct a discrepancyin the listing of RQs for two EHSs,hydrogen chloride andmethacrylonitrile, between appendicesA and B to 40 CFR part 355 (EHS list)and 40 CFR 302.4 (list of hazardoussubstances under CERCLA). On October20, 1989 (54 FR 43164), EPA publishedthe corrected RQs for hydrogen chlorideat 5,000 pounds and formethacrylonitrile at 1,000 pounds,thereby resolving the discrepancy.

EPA received 167 comments lettersaddressing issues raised in the NPRM.The comments received, together withEPA's responses, are contained in thedocument, Responses to CommentsReceived on the Notice of ProposedRulemaking under § § 311 and 31.2 of titleIII of the Superfund Amendments andReauthorization Act of 1986--March 29,1989 (Comment Response Document,which is available in the docketsupporting this rulemaking. In preparingtoday's rule, EPA considered all of thepublic comments submitted on theMarch 29, 1989 NPRM, with theexception of comments on the RQdiscrepancy which were addressed inthe October 20, 1989 final rule on thatissue. Comments are addressed in

sections II and III of this preamble.Section IV provides a summary of theanalyses supporting today's rule.D. Organization of the Final Rule

Today's final rule amends 40 CFR part350.1 by adding definitions of "chiefexecutive officer of the Tribe,""commission," "Indian country," "IndianTribe," "local emergency planningcommittee," and "State," therebycodifying the definitions implementingEPA's designation of Indian Tribes asthe implementing authorities for title IIIon Indian lands. Also, the definition offacility, including man-made or naturalsubsurface structures into whichhazardous chemicals are purposefullyplaced or from which they are removedby human means such that thestructures function as containmentstructures, is added to § 350.1. Similarly,§ 355.20 is amended by adding the.definitions necessary to authorizeIndian Tribe implementation ofreporting requirements. In addition, thedefinition of "commission" in § 355.20 isrevised to add Indian tribal emergencyresponse commissions and the definitionof "facility" is revised to include man-made or natural subsurface structures.

In today's final rule, 40 CFR part 370 isalso amended by adding the definitionspertaining to Indian tribalimplementation and by revising thedefinitions of "facility," "commission,"and "State." Section 370.20 is revised toincorporate the final thresholds forreporting under title III, sections 311 and312. Section 370.28 is amended byrevising paragraph (b)(1) and addingnew paragraph (c) to clarify therequirement to aggregate FHSs inmixtures. The Tier I and Tier 11 reportingforms in § 370.40 have been modified inresponse to commenter's suggestions.The certification block on the Tier IIform has also been changed to allow theowner or operator to place an originalsignature only on the first page of thesubmission.

In today's final rule, 40 CFR part 372 isamended by adding the definitionspertaining to Indian Tribes. Thesedefinitions have been added to § 372.3.In addition, § 372.30 has been revised toindicate that if a facility is located inIndian country, EPA Form R must besubmitted to the office designated by theChief Executive Officer of the Tribe.

Finally, the Burden Box has beeneliminated from the Tier I and Tier IIinstructions because of the recentSupreme Court decision regarding theinapplicability of the PaperworkReduction Act to regulations thatrequire submission of health, safety, andother consumer information only to non-Federal (i.e., State and local) entities.

II. Final Reporting Thresholds

EPA considered six options inanalyzing potential reporting thresholdsfor the March 29, 1989 NPRM. Theoptions represented the full range ofpossible thresholds and were chosenbecause they allowed EPA to isolate theeffects of varying threshold levels oneach of three factors: (1) The numberand types of chemicals that would bereported; (2) the number of facilities thatwould be required to report; and (3) thevolume of chemicals that would becovered. Because different thresholdscould be set for different classes ofchemicals or even. for individualchemicals, a large number ofcombinations of these factors arepossible. For reasons of practicality,EPA analyzed six threshold optionsbecause they set bounds on thereasonable possibilities.

Option I would set a 50,000 poundreporting threshold for hazardouschemicals except EHSs, which wouldhave a reporting threshold of 500 poundsor the TPQ, whichever is lower.

Option 2 would adopt the currentreporting thresholds--10,000 pounds forhazardous chemicals except EHSs,which would have a reporting thresholdof 500 pounds or the TPQ, whichever islower.

Option 3 would set a 10,000 poundreporting threshold for hazardouschemicals, except for hazardoussubstances defined under section101(14) of CERCLA and toxic chemicalsdesignated under section 313 of title IlI,which would have a reporting thresholdof 500 pounds, and EHSs, which wouldhave a reporting threshold of 500 poundsor the TPQ, whichever is lower.

Option 4 would set a 2,000 poundreporting threshold for hazardouschemicals, except for hazardoussubstances designated under section101(14) of CERCLA and toxic chemicalsdesignated under section 313 of title III,which would have a reporting thresholdof 500 pounds, and EHSs, which wouldhave a reporting threshold of 500 poundsor the TPQ, whichever is lower.

Option 5 would set the reportingthreshold at 500 pounds for all coveredchemicals.

Option 6 would set the reportingthreshold at zero pounds for all coveredchemicals.

In the March' 29, 1989 NPRM, EPAproposed Option 2, that is, to retain thereporting thresholds that have beenapplied in the first two reporting years(a 10,000 pound reporting threshold formost hazardous chemicals; the reportingthreshold for EHSs at 500 pounds or theTPQ, whichever is lower). In today's


'final rule, EPA is promulgating finalreporting thresholds at these samelevels proposed under Option 2.

EPA received 138 letters containingcomments on the selection of finalthreshold levels, some agreeing with theproposed thresholds, others endorsingoptions for higher or lower thresholds,and others suggesting that lowerthresholds be imposed after an interimperiod at the proposed levels. EPAbelieves the final reporting threshold of10,000 pounds for non-EHS hazardouschemicals and 500 pounds, or the TPQ,whichever is lower, for EISs isappropriate.

In establishing today's final reportingthreshold, EPA attempted to strike thebest balance between the amount ofinformation generated for the public andthe value of that information, and thecost to SERCs, LEPCs, and facilities ofmanaging and providing the information.In estimating the current value of theinformation that would be providedbelow the current threshold of 10,000pounds, EPA considered several factors:(1) The small number of requests fromthe public for information on hazardouschemicals present at facilities below thecurrent threshold levels; (2) the limitedcurrent use of Tier I and Tier IIinformation during emergencies andplanning exercises; and (3) the fact thatonly twelve States have establishedthresholds below the 10,000 pound levelfor all covered hazardous chemicals.

EPA understands that the amount ofresources devoted to data managementand the ability of SERCs, LEPCs, andfire departments to manage informationvary considerably across the nation. Thedata management survey conducted byEPA prior to the NPRM showed that insome States and communities, however,resources are extremely limited, andLEPCs are having difficulties managingthe information currently beingsubmitted. EPA believes it is importantfor these LEPCs in particular to focus onhazardous chemicals of known concern(i.e., those hazardous chemicals storedIn large quantities and EHSs). TheRegulatory Impact Analysis supportingthe NPRM estimated there would be afour-fold increase In the number ofhazardous chemicals that would bereported at 500 pounds compared to the10,000 pound threshold (from 976thousand to 4.3 million), and almost atwo-fold increase (from 291,000 to488,000) in the number of facilitiesrequired to report. Such a large increasein reports could divert limited resourcesand prevent proper evaluation andplanning around facilities with the mosthazardous situations.

It is not EPA's intent to restrict publicaccess to important information. Any

SERC or LEPC capable of managing theadditional information that would besubmitted at lower thresholds has theauthority to request such informationeither on a facility-specific basis or mayobtain such information across theboard by establishing lower thresholdsin its State or jurisdiction .under Statelaw. EPA's primary concern is with theability of many SERCs and LEPCs tomanage the additional information thatwould be submitted at lower thresholds.By maintaining the 10,000 poundthreshold for hazardous chemicals otherthan EHSs, and maintaining the 500pound or TPQ threshold, whichever islower, for EHSs, EPA is ensuring thatthe LEPCs that have limited resourceswill focus those resources on the mosthazardous situations. That is not to saythat facilities that store hazardouschemicals in smaller quantities do notpose a hazard to the community. Rather,it acknowledges that with limitedresources, priorities must be establishedto ensure the maximum level ofprotection of human health and welfareand the environment. The finalthresholds, identical to those currentlyin effect, will not place any additionalburden on SERCs and LEPCs and willallow them to improve quality controland use of the information in thepreparation of emergency plans.

A number of commenters stated thatthe threshold for all hazardouschemicals should be 500 pounds becausehigher thresholds would exempt manyfacilities from reporting, deprivingcommunities of valuable information.EPA believes that although EHSswarrant special attention and lowerreporting thresholds, all hazardouschemicals do not present an equal risk.A lower threshold for EHSs, along withthe 10,000 pound threshold for otherhazardous chemicals, will provideSERCs and LEPCs with information onfacilities that are likely to present thegreatest hazard to the community.Today's thresholds do not deprivecommunities of valuable information;rather, they provide communities withthe most valuable information. If aSERC or LEPC wants information notautomatically submitted under today'sfinal rule, a State or locality mayestablish lower reporting thresholdsunder State law.

Although some States currentlyrequire reporting at lower thresholds,most do not. and many do not devotesufficient resources to managing theinformation that would be generated bysuch a requirement. The reportingthresholds that EPA is promulgating intoday's final rule will provide a ceilingthreshold throughout the nation, withoutplacing a burden on SERCe, LEPCs, and

fire departments that are not yetprepared to deal with the large volumeof additional information that would besubmitted at lower thresholds. Inaddition, facilities are required toprovide information on chemicalspresent in quantities below the reportingthreshold if the SERC, LEPC, or firedepartment requests such information.This provision applies to all facilities,even those not subject to routinereporting under § § 311 and 312. Thus,facilities that use significant amounts ofhazardous chemicals will not beexcluded from reporting if the State andlocal agencies have the resources toprocess additional Information and wantto receive the information.

The cost to SERCs and LEPCs andtheir ability to carry out requirementswere carefully studied. EPA surveyedrepresentatives from 12 SERCs, 32LEPCs, and 15 fire departments thoughtto have implemented effectiveinformation management systems orprocedures under § § 311 and 312. Theresults of this survey are documented in"Information Management by State andLocal Governments under § § 311 and312 of the Emergency Planning andCommunity Right-to-Know Act",December 1988. A copy of this documentis in the docket supporting thisrulemaking. Further, costs that would beincurred by SERCs, LEPCs, and firedepartments under each thresholdoption were estimated in the"Regulatory Impact Analysis in Supportof a Permanent Reporting Thresholdunder § § 311 and 312 of the EmergencyPlanning and Community Right-to-KnowAct of 1986", also found in therulemaking docket.

Option 5 (a 500-pound thresholdapplied to all hazardous chemicals], forexample, would result in almost twicethe annual costs to SERCs, LEPCs. andfire departments as compared to thecosts imposed by the 10,000 poundthreshold. Based on current levels ofresources available to LEPCs for alltheir planning and community right-to-know activities, EPA concluded that formany LEPCs, such a low thresholdwould create a substantial burden, andwould tie up many of the necessaryresources used for gathering, evaluating,and utilizing information received undercurrent reporting thresholds. Giventhese increases in the informationmanagement burden and in costs, EPAdecided that a lower threshold was notfeasible on a nationwide basis.

Some commenters suggested that EPAreconsider a threshold of 50,000 poundsbecause this threshold would representa cost-effective storage quantity, and itis large quantity chemical storage that is

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of most concern to emergency planners.EPA does not agree that 50,000 poundsis the quantity of hazardous chemicalsof most concern to emergency planners.LEPCs, under title III, in fact, arefocusing their planning efforts on EHSsand other hazardous chemicals stored inquantities ranging from one to 10,000pounds. Several LEPCs are currentlyusing the Tier II Information In theirplanning process. Furthermore, facilitiesare familiar with the 10,000 poundthreshold; only three of the 138commenters on the threshold issuefavored raising the threshold abovecurrent levels.

Several commenters stated that it isinappropriate to consider costs toindustry in establishing threshold levels,and that EPA's primary concern shouldbe maximizing the information availableto State and local authorities. In supportof their statement, these commenterscited a passage in the legislative historyof §§ 311 and 312 in whichRepresentative Edgar addressed theHouse floor. (Statement ofRepresentative Robert Edgar,Congressional record, October 8, 1986.)

EPA does not agree that costs toindustry cannot be considered as onefactor in setting reporting thresholds.There is no evidence thatRepresentative Edgar was speaking forthe entire Congress. The remarks of asingle representative in a House debatewhich is nowhere repeated or endorsedby other legislators in other floordebates or in the Conference Reportcannot be interpreted to prevent EPAfrom considering the factor of costs insetting a final threshold. See, e.g.Consumer Product Safety Commissionv. GTE Sylvania Inc., 447 U.S. 102, 118-19 (1980); Chrysler Corp. v. Brown, 441U.S. 281, 311 (1979); In re Kelly, 841 F.2d908, 912 n.3 (9th Cir. 1988). Neither thetext of the statute nor the ConferenceReport preclude the Administrator fromconsidering costs to industry indetermining thresholds. Considerationof costs to facilities is relevant toCongress' goal of developing amanageable program for the collectionand dissemination by localities ofinformation on hazardous chemicals.The Conference Report specificallyindicates that the two-tier reporting wasadopted in section 312 "[t]o minimizethe burden of this reporting." It wouldbe inconsistent with the purpose of thetwo-tier reporting format for EPA to beprohibited from considering costs toindustry in setting thresholds.

EPA does not believe that it placed anundue amount of emphasis on costs toindustry or on cost effectiveness. EPAdoes believe that some consideration of

costs to the SERCs, LEPCs, firedepartments, and industry is importantwhen evaluating the pros and cons ofdifferent final thresholds, because costestimates give EPA some measurementof the impacts of the different thresholdsupon government entities that must runa variety of public programs 2 and onfacilities that face many requests forinformation and demands forenvironmental control.

Nonetheless, EPA agrees that theprimary purpose of the reportingrequirements under sections 311 and 312is to provide information to thecommunity. EPA's selection of the finalreporting thresholds was not basedprimarily on cost 'Considerations, but onthe extent of which a more stringentstandard could subvert the intent ofsections 311 and 312 by overwhelmingthe capability of SERCs, LEPCs, and firedepartments or manage and analyzesubmitted information. EPA believesthat a manageable quantity of data thatcan be supplemented by requests foradditional information and theImposition of lower State or localthresholds when appropriate, betterserves the community's right-to-know.

Several commenters suggested thatEPA use the proposed levels for aninterim period and then Impose a lowerreporting threshold determined afterfurther study. EPA consideredestablishing reporting thresholds intoday's final rule for another interimperiod, similar to the approach taken inOctober 1987. EPA concluded, however,that it was best to minimize theuncertainty surrounding future reportingobligations. Uncertainty tends toencourage indecision and EPA isanxious for SERCs, LEPCs, and firedepartments to have full informationregarding the parameters of their datamanagement obligations so that theymay optimally plan for equipmentpurchases and labor needs, It is alsoimportant to minimize uncertainties forfacilities so that they may developoptimal inventory tracking systems. Toestablish reporting thresholds undersections 311 and 312 for another interimperiod would not minimize uncertaintyand, therefore, would slow complianceand data management decisions andinvestments.

a A frequently repeated concern during theCongressional debate was the necessity to takeaccount of the burden of a particular threshold uponState and local government so that useful andimportant information would not be "buried in anavalanche" of paperwork. See statements ofRepresentatives Norman Lent (H9564). Gene Snyder(H9564), Con gressionalRecord, October 8, 1986; seealso statements of Representatives Al Swift(H9607), John Hammerschmidt (H9568),Congressional Record, October 8. 1986.

An interim approach would only beuseful if EPA were to again study theappropriate final threshold after thatinterim period. At the present time, EPAis not able to predict what the bestthreshold will be several years in thefuture. Although EPA recognizes thatdata management capabilities mayimprove over time as States andlocalities devote greater resources tothis program and data managementexperience improves. EPA cannotpredict that this will happen, nor whatthresholds would be appropriate if itdoes happen. Thus, EPA believes it is inthe public interest to choose a final

-threshold at this time, based upon allrelevant information about thecapabilities of SERCs and LEPCs to dataand the usefulness of the information.EPA will continue to analyze dataavailable from observations, reviews,reports, and comments received fromSERCs, LEPcsd, fire departments, thecommunity, and others responsible forcarrying out portions of this program. Asthese data indicate that change iswaranted, EPA will revise this ruleincluding the threshold provision.

In the NPRM, EPA requested commenton whether the final threshold for EHSsshould be 500 pounds or the TPQ, orsimply the TPQ. EPA receivedcomments supporting both options. Intoday's final rule, EPA is establishingthe final reporting threshold for EHSs at500 pounds or the TPQ, whichever Islower. That is, in today's final rule, EPAis maintaining the 500 pound cap as areporting threshold for EHSs. AlthoughEPA understands that there are some

* advantages to maintaining the TPQ asthe sole reporting trigger for EHSs (i.e.,consistency with the emergencyplanning provisions of title III), EPAbelieves that the different purposes ofTPQs under sections 302 and 303 andreporting threshold under sections 311and 312 support having differentrelevant quantities. Under sections 302and 303, the presence at a facility of anEHS above its TPQ leads to certainrequired emergency planning steps forfacilities and LEPCs. Thus, the TPQ isset at a level that is appropriate formandatory emergency planning in allcases across the nation. On the otherhand, the purpose of sections 311 and312 is more directly related tocommunity right-to-know. Inestablishing final reporting thresholdsunder sections 311 and 312, EPAendeavored to provide as muchinformation as possible to thecommunity without overwhelming theinformation management systems usedby SERCs, LEPCs, and fire departments.Because EHSs generally represent


chemicals of highest concern to thecommunity, EPA wanted to ensure thatcommunities receive a substantialamount of information on EHSs, evenwhen planning is not statutorilymandated. SERCs and LEPCs can usesection 311 and 312 data to determinewhether, due to site-specific factors,emergency planning under section302(b)(2) would be appropriate. EPAbelieves it is most prudent to maintainthe 500 pound cap on the reportingthreshold for EHSs under sections 311and 312, to ensure that information onthese hazardous chemicals is readilyavailable to communities andemergency planners.

EPA also considered establishinglower thresholds for hazardouschemicals on the title III section 313 listor on the CERCLA hazardoussubstances list. EPA decided not toimpose these lower thresholds becausethe additional information that would beprovided is generally available throughother provisions of title III and,therefore, the additional burden thatwould be imposed on both industry andgovernment was not warranted. Forexample, the section 311 and 312reporting requirements focus upon thepresence of hazardous chemicals at thefacility, requiring the owner or operatorto submit lists of chemicals or MSDSsand, on an annual basis, an inventory of

'those chemicals. Under section 313, titleIll already imposes inventoryrequirements upon owners andoperators of facilities that manufacture,process, or use designated quantities ofthe toxic chemicals on the section 313list.

Similarly, title III already hasreporting requirements that directlyemploy the CERCLA hazardoussubstances list. Under section 304,facilities that release an RQ of anyCERCLA hazardous substance or EHSmust report the release to any SERC orLEPC affected by the release. Detailedfollow-up reports must be submitted tothe affected SERC(s) and LEPC(s) byany owner or operator required to reportsection 304. The nature of theinformation required in the initial andfollow-up reports bears some similarityto the information required on an MSDS.For example, the report must include thechemical name or identity of anysubstance involved in a release, anyknown or anticipated acute or chronichealth risks associated with theemergency, and where appropriate,advice regarding medical attentionnecessary for exposed individuals.Therefore, establishing lower thresholdsfor the section 313 chemicals or the listof CERCLA hazardous substances did

not appear to provide communities withenough new, necessary, or usefulinformation to justify the additionalburden and the potential for confusion..II. Analytical Approach

To determine the potential effects ofthe six options, EPA estimated thenumber of facilities in the U.S. thatwould be affected by each threshold, theaverage number of chemicals that wouldbe reported per facility, the total numberof reports that would be filed, theaverage pounds of chemicals reportedper facility, and the total pounds ofchemicals that would be reported in theU.S. The national estimates weredeveloped by extrapolating from data onthe amounts of hazardous chemicalsthat are present in specific localities. ALos Angeles, California database andthe data from reports filed under theState and Federal Right-to-Knowprograms in New Jersey best satisifiedthe criteria EPA identified for the study.The Los Angeles and New Jerseydatabases were well-suited to thethreshold analysis because they includeinformation submitted by bothmanufacturing and non-manufacturingfacilities, represent all sizes of facilities,and contain information on the quantityof hazardous chemicals at facilitiescovered by the HCS regulations. (For afull discussion of the selection ofdatabases, see chapter 2 of theRegulatory Impact Analysis in Supportof a Reporting Threshold under sections311 and 312 of the Emergency Planningand Community Right-to-Know Act(RIA) in the docket supporting thisrulemaking).

Some commenters stated that theselected databases do not represent thenational and do not accurately captureall necessary information. EPAacknowledges that the data from severalStates cannot capture all relevantnational information. Nonetheless, EPAbelieves that the New Jersey and LosAngeles databases are the best readilyavailable information, and that themethodology used in the analysisadequately adjusts the data for thenational population. EPA extrapolatedfrom the selected databases to the U.S.population on the basis of SIC codes.Also, EPA assessed the effects of theselection of the New Jersey and LosAngeles databases by comparingthe extrapolated results withnational statistics on chemical andpetroleum production and use. Estimatesof the number of pounds that would bereported as extrapolated from the twodatabases are reasonably close tonational statistics. Moreover, theestimated number of affected facilitiesand estimated costs of the rulegenerated through independent analyses

of the two databases are similar,notwithstanding the differences in theindustrial facilities represented and inthe area covered (a State versus ametropolitan area) by each database.EPA believes, therefore, that the twodatabases used to estimate the potentialeffects of different threshold optionsprovided adequate information andgenerated accurate results.

Several commenters stated that EPAshould establish different thresholdlevels for different hazard categories.EPA considered establishing risk-basedreporting thresholds for all thehazardous chemicals subject to sections311 and 312, taking into considerationthe hazards posed by each chemical orgroup of chemicals, the potential for asignificant release, and the potentialexposure of surrounding populations. AsEPA stated in its October 15, 19b7 finalrule and again in the March 29, 1989proposed rule, such as hazard-basedapproach was not feasible, given thetens of thousands of hazardouschemicals covered under sections 311and 312 and the variety of locations andsituations in which hazardous chemicalsmay be stored. Existing methodologiesthat can be used to evaluate riskassociated with specific hazards are notappropriate approaches for thisrulemaking because they are site orchemical specific. For example, use ofthe CERCLA Hazard Ranking System(HRS) was recommended by onecommenter. The FIRS is innappropriatefor determining reporting thresholdlevels under sections 311 and 312because it is site-specific, and site-specific exposure pathways must beknown to estimate risk levels. Althoughchemical-specific or site-specificinformation cannot be considered acrossall the chemicals covered under sections311 and 312, it can be considered bylocal authorities on a site-specific basis.EPA believes, therefore, that exposurepotential and site characteristics aremore appropriately considered byLEPCs in their planning processes thanby EPA in establishing reportingthresholds.

One commenter suggested that theanalytical approach should consider thesynergistic and cumulative effects ofhazardous chemicals. EPA agrees thatideally such effects, as well as chemical-specific hazards, should be consideredin establishing reporting thresholds.There is, however, no existing analyticalmodel that can be used to evaluate theseeffects over the number of hazardouschemicals for which MSDSs must beprepared. EPA believes that theanalytical approach used to evaluate thereporting threshold options in today's

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final rule resulted in final reportingthresholds that will provide informationto local communities about hazardouschemicals most likely to pose thegreatest hazard, without overwhelmingtheir ability to manage and use theinformation.

One commenter questioned EPA's useof the Acute Hazardous Events (AHE)database because it does not includeincidents that result in chronic effects orenvironmental damage. EPA would liketo clarify that the AHE data were usedprimarily to estimate how data thatwould be received at alternativethreshold levels relate to facilitiesinvolved in accidental releases that ledto serious acute effects. The data showthat most events sufficiently severe tocause human casualties would be atsites subject to reporting under thethreshold levels being promulgatedtoday. The accident data in the AHEdatabase provide information primarilyon acute effects, but relatively littleinformation on chronic effects orenvironmental damage associated withthe different reporting thresholds. EPA,however, recognizes the importance ofchronic effects and environmentaldamage and, therefore, requiresnotification of a release of a hazardoussubstance or EHS that equals or exceedsan RQ. When the National ResponseCenter, SERC, and LEPC are notified ofa hazardous substance release, theresponsible government authorityevaluates the risks associated with therelease, considering acute as well aschronic and environmental effects.

A number of commenters challengedEPA's comparison of the costs andbenefits of the alternative reportingthresholds. Because EPA could notquantify the benefits attributable toeach threshold option, the commentersclaimed that EPA's conclusions wereunsupported. EPA does not agree. Basedon its survey of SERCs, LEPCs, and firedepartments with relatively advanceddata management systems, EPAbelieves that many of these State andlocal authorities do not have the presentcapability to use the additionalinformation that would be generated atthresholds lower than those establishedby today's final rule. For each givencommunity, however, the cost benefitcomparison will vary. EPA believes It ismost prudent, therefore, to establishFederal thresholds at a level that willmaximize the net benefits for mostcommunities, while preserving the rightsof States and local governments todevelop more stringent reportingrequirements if they believe that thebenefits of receiving more informationthan that submitted under the thresholds

in today's rule are greater than theincremental costs.

Several commenters stated that EPAdid not consider or properly valuecertain benefits, such as accidentprevention. EPA is aware that accidentprevention can be a direct outgrowth ofreporting, due to a consequent increasedawareness on the part of industry andthe local community of the presence ofreported hazardous chemicals. Suchbenefits, however, are difficult toquantify and could be considered onlyin a qualitative sense.

Two commenters stated that costswere not accurately considered becausethe projections of the number of affectednon-manufacturers are underestimated.Although the number of affectedfacilities and chemical reports inspecific industry categories or sectors(such as non-manufacturing) may beunder or overstated in the RegulatoryImpact Analysis, the sensitivity analysissupporting today's rulemaking indicatesthat the aggregate quantity of chemicalscovered under the zero threshold,including petroleum, is reasonably closeto national projections of chemical andpetroleum use derived from Censusdata. In addition, the Los Angeles andNew Jersey databases yield comparabletotal cost estimates despite significantdifferences in the underlying numbers ofmanufacturing and non-manufacturingfacilities. Consequently, EPA believesthat the potential inaccuracies in theanalysis caused by extrapolation are notsignificant enough to affect the decisionto select today's final reportingthresholds.IV. Other IssuesA. Multi-establishment FacilityReporting

In the March 29, 1989 NPRM, EPAproposed a clarification to the reportingrequirements for multi-establishmentfacilities. In particular, in response to aconcern that owners of certain multi-establishment facilities, such asindustrial parks, do not have sufficientknowledge about specific hazardouschemicals located at their facility tocomply with the title III reportingrequirements, EPA proposed aregulatory provision that would have,clarified how establishments at suchfacilities may report as facilities. TheAgency has decided not to promulgate afinal rule on multi-establishmentreporting at this time. After receivingsubstantial public comment on thisprovision, EPA needs additional time toconsider and develop the appropriateregulatory approach to various issuesconnected with multi-establishmentreporting. EPA does not, however,

believe it is appropriate to delay thepromulgation of final thresholds whilethe Agency considers multi-establishment issues. For this reason,today's final rule does not include aprovision addressing multi-establishment facilities.

B. Tier I and Tier II Forms

EPA has made several smallmodifications to the Tier I and Tier Hforms and instructions in response tocommenters' suggestions and concerns.Some suggestions were not accepted forreasons stated in the Response toComments Document. The modificationsin today's final rule include addingcheck boxes to indicate that theinformation is identical to thatsubmitted in the previous year, lines onthe Tier II form for listing the EHSchemical name(s) present in a mixture;optional check boxes for eachhazardous chemical reported tofacilitate data management at the Stateand local level; and several other smallchanges.

Another change made in today's finalrule involves the certification statementson the Tier I and Tier II forms. EPA hasreceived several requests that the Tier IIform be modified to allow owners andoperators of facilities to place anoriginal signature only on the first pageof a multi-page submission. EPA agreesthat an original signature need not beplaced on every page of the Tier IIsubmission so long as the owner oroperator certifies that he or she hasreviewed every page of the submission.Therefore, the instructions for thecertification on the Tier II form havebeen modified to allow the owner oroperator to place an original signatureonly on the first page of the submission,provided that (1) submissions to theSERC, LEPC, and fire department eachcontain an original signature on at leastthe first page, (2) the total number ofpages in the submission is inserted inthe space provided in the certificationstatement, including all confidential andnon-confidential sheets and allattachments, and (3) subsequent pagesin the submission contain a photocopyof the original signature or a signaturestamp, as well as the date that theoriginal signature was affixed to the firstpage and the total number of pages inthe submission. Similarly, the Tier Icertification instructions have beenmodified to state that the owner oroperator certifies that all information inthe submission, including allattachments, is true, accurate, andcomplete; the total number of pages inthe submission must be indicated in the


space provided in the certificationstatement.

Three commenters stated the EPAshould retain OSHA's HazardCommunication Standard (HCS) list ofexemptions from coverage in theinstructions, along with the comparisonof EPA's hazard categories with OSHA'sHCS hazard categories to reduce thetime necessary to comply with sections311 and 312. EPA does not agree thatincluding the list of OSHA's HCSexemptions shortens the time requiredfor compliance. By including HCSexemptions on previous Tier I and TierII forms, EPA believes that it might haveappeared to the regulated communitythat EPA. SERCs, and LEPCs were theappropriate authority for interpreting thescope of the HCS. The most appropriateauthority for interpreting the HCS isOSHA. Reporting time for both title IIIand the HCS can best be shortened bythe method set forth in the instructionsto the title III reporting forms, whichrefers parties to the OSHA HCS. EPA,however, does agree that it is necessaryto retain the OSHA-EPA hazardcategory comparison because MSDSsare prepared based on OSHA's HCShazard categories.

Two commenters suggested that EPAreconsider the use of the Tier I formsbecause they are too general an theyplace an undue burden on industry andlocal government authorities. AlthoughEPA agrees that the informationsubmitted on the Tier II form is moreuseful, the statute allows owners andoperators of facilities the option ofsubmitting Tier I or Tier II forms, unlessthe Tier I1 form is specifically requestedby a SERC or LEPC. See section312(e)(1) of title III; H.R. Conf. Rep. No:962, 99th Congress, 2d Sess., 290("Conference Report"). States, however,may develop legislation requiringsubmission of Tier II forms, and somehave already done so. Also, EPAcontinues to encourage submissions ofTier II forms unless SERCs, LEPCs, orfire departments have indicated apreference for Tier I forms.

Another commenter stated that EPAshould discourage States from creatingtheir own special report forms whichadd to the costs of industry compliance,especially if changes to the form makethe computer software used to preparethe form obsolete. EPA does not agreethat it should discourage States fromdeveloping their own forms or tailoringTier I and/or Tier II to meet particularneeds or to avoid overlapping Federalrequirements. EPA, however, doesencourage States to consider industryconcerns in modifying the inventoryforms. When EPA makes format

changes, it generally considers theburdens such revisions impose. Thechanges made to the Tier I and Tier I1forms in today's final rule have beendetermined to be necessary,notwithstanding potential costs toindustry.C. Subsurface Operations

In response to many questions aboutthe applicability of title III regulations tosubsurface operations, EPA proposed inthe March 29, 1989 NPRM to revise theregulatory definition of facility to clarifythat subsurface structures that are partof man-made operations, including opensurface mines, are included within thestatutory definition of facility and,therefore, are subject to title IlI reportingrequirements.

Twenty commenters opposed andthree commenters supported theproposed revision to the definition offacility to include subsurface structures.A number of the commenters stated thatthe revision would improperly expandthe definition to include facilities andsubstances exempt from therequirements of some sections of title III.EPA does not agree that the revisedregulatory definition of "facility"changes reporting requirements ornegates exemptions contained in title IIIstatutory provisions. The regulatorydefinition is revised today to includeonly those subsurface structures that areman-made or natural structures intowhich hazardous chemicals arepurposefully placed or removed throughhuman means such that the structuresfunction as a containment structure. Ifan activity or facility is exempt fromcertain title III requirements, today'sregulatory definition does not alter thatexemption. For example, the revisedregulatory definition of "facility" doesnot alter the applicability of thetransportation exemption. If natural gasis stored at a production facility, theproduct is subject to title IIIrequirements; if natural gas is beingstored incident to transportation, then itcomes within the title III exemption andis not subject to title III reportingrequirements.

As a second example, one commenternoted that because subsurface miningoperations are not subject to OSHA'sHCS, they are also not subject tosections 311 and 312 of title III. EPAagrees that, although a mining operationmay come within the definition of theterm "facility," it is not necessarilywithin the scope of the OSHA HCS. Ifthe operation is not subject to the OSHAHCS, it is not subject to therequirements of sections 311 and 312.The fact that a facility does not comewithin the scope of the OSHA HCS is

not relevant, however, to the emergencyplanning and release notificationrequirements of sections 302, 303. and304. Thus, if there are EHSs at a miningfacility in underground containmentstructures in quantities equal to orexceeding TPQs, the owner or operatoris required to report them under section302 and to participate in the communityplanning process as required undersection 303. Also, if the facilityproduces, uses, or stores a CERCLAhazardous substance or an EHS, andreleases the hazardous substance orEHS in a quantify that equals or exceedsthe applicable RQ, the release must bereported to the SERC[s) and LEPC(s)likely to be affected by the release, andto the National Response Center in thecase of a CERCLA hazardous substance.One commenter stated that the reviseddefinition could result in daily reportingof releases from mining operations. Ifreleases of hazardous substances orEHSs from mining operations at orabove reporting levels occur daily, theymust be reported daily. The commentershould note, however, that recurringreleases may qualify for reducedreporting under CERCLA section103(f)(2) if they are "continuous" and"stable in quantity and rate," or theymay be exempt from reportingrequirements if they are federallypermitted under CERCLA section101(10). (See the NPRM on reporting ofcontinuous releases (53 FR 12868; April19, 1988) and the NPRM on federallypermitted releases (53 FR 27268; July 19,1988)).

Three commenters opposed includingnaturally occurring materials such asnatural gas in the calculation of afacility's inventory for comparison withthe TPQ under section 302 becausenatural gas production is alreadygoverned by regulations under otherauthorities, storage and withdrawaloperations do not impose a hazard tonearby populations, and it would bedifficult to estimate quantities of naturalgas "present" at a facility. EPA does notagree. Any substance placed in, or beingremoved from, a subsurface location byhuman intervention, such as mining, issubject to title III requirements and,therefore, must be included in a facility'sinventory. EPA understands that manyindustries must comply with regulationsand safety standards under otherauthorities. Nevertheless, compliancewith such requirements does not fulfillthe purpose of title III which is toprovide the public with information onthe chemicals present at facilities inorder to prepare the community torespond when hazards are notcontrolled. Compliance with other

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regulations, therefore, does not relievethe regulated community from theresponsibility to comply with therequirements of title III. Further, eachowner or operator must use the bestinformation available, knowledge of theoperating processes of the facility, andengineering judgment to estimate thequantities of hazardous chemicalspresent In subsurface containmentstructures. Reporting facilities should beaware that estimates need not be exact;facilities are only required to estimatewhich among many broad rangesindicated on the Tier I and Tier H formsmatch their inventories.D. Treatment of EHS Mixtures inReporting Threshold Calculations

In the March 29, 1989 NPRM, EPAproposed new regulatory languageaddressing when and how facilitiesmust report EHSs that exceed theirapplicable reporting threshold undersections 311 and 312 when the EHSs arepresent in different mixtures.

Section 311(a)(3) of title M providesfacilities with the option of reporting ona mixture as a whole or reporting oneach hazardous component of themixture. In some instances, reporting bycomponent could result in the filing offewer reports. Where components of amixture are not present at a facility inthreshold quantities, a facility would notbe required to submit a report undersections 311 or 312 even though thequantity of the mixture itself is presentin a threshold amount. Similarly,reporting by mixture could occasionallyresult in fewer reports when themixtures are below threshold quantities.In the March 29,1989 NPRM, EPAproposed a new provision, § 370.28(b)(3),related to reporting of EHSs in mixtures.This provision was designed to ensurethat EHSs would be reported regardlessof the option of reporting by mixture orby component. EPA believed that theimportance of EHSs to emergencyplanning and community right-to-knowwarranted a requirement that thesechemicals be reported, in some fashion,whenever they are present at facilitiesin above-threshold quantities. (See 54FR 12999).

In proposing regulatory language toaddress the special question of reportingEHSs even when EHSs are present inmixtures, the Agency did not take awayor in any way alter the option providedin the statute of reporting on mixtures asa whole or by hazardous component.Proposed § 370.28(b) required facilitiesto report the presence of EHSs at theirfacility if they were present in above-threshold quantities, but provided.facilities with the option of reportingthose EHSs either as components of

mixtures or reporting the mixture as awhole. Proposed § 370.28(b) stated:

(3) If extremely hazardous substances arehazardous components of a mixture, thequantity of the extremely hazardoussubstance in each mixture shall beaggregated to determine if the thresholdvalue has been reached for the facility.Reporting may be accomplished by reportingon the component or the mixture even if theamount of the mixture(s) is below thereporting threshold.To supplement this regulatory language,EPA proposed the addition of a box onthe Tier H form whereby facilities thatchose to report a mixture as a mixture(rather than by component) would berequired to check whether the mixturecontained an EHS.

Some commenters did not understandEPA's intent in proposing theseamendments, others stated that theproposed regulatory language wasconfusing, and others questioned theutility of the information received. As aconsequence, EPA is promulgatinglanguage In I 370.28(c) to clarify thereporting requirements in § 370.28. Noneof the comments received led theAgency to change the reportingrequirements as proposed.

Stated as simply as possible, § 370.28requires facilities to aggregate eachEHS, whetherit is present as a mixturecomponent or in its pure form.Aggregation of non-EHS hazardouschemicals present in mixtures and intheir pure form is not required, but maybe done if a facility is reporting allhazardous chemicals in mixtures bycomponent. If a facility has an EHS, andits quantities within mixtures and in itspure form equal or exceed its applicablethreshold, the facility must report thatEl-IS. Once the necessity of reportingthat EHS is established, the facility hastwo primary choices in the manner inwhich it reports this EHS. The facilitymay either report the EHS separately asa component of one or several differentmixtures, or may report the EHS byreporting the mixture of which the EHSis a part. For example, if five mixtureseach contained 100 pounds of methylmercaptan (an Fl-IS), reporting could beaccomplished by reporting 500 poundsof methyl mercaptan (reporting bycomponent) or by reporting the fivemixtures separately.

EPA is requiring that only EHSs beaggregated; aggregation of non-El-IShazardous chemicals in differentmixtures at a facility is not required.Congress' intent that aggregation bepermitted in setting thresholds is clearfrom the Conference Report. Therequirement to aggregate EHSs undersection 311 Is consistent with therequirements under section 302 of title

III. EPA views EHSs to be a specialclass of hazardous chemicals. EPAanticipates that LEPCs will requestinformation on EHSs present at afacility, and routine reporting of thatinformation under sections 311 and 312should facilitate the planning process.EPA is not requiring the aggregation ofnon-EHS hazardous chemicals atfacilities because of the potential burdenthat would impose on facilities, becauseEPA has determined that data on EHSsgenerally have greater emergencyplanning and right-to-know value tocommunities than do data on otherchemicals, and because information onthose hazardous chemicals is notrequired under section 302 of title III.The aggregation requirement of this rulemaintains the option granted in the titleIII statute that owners or operators offacilities be able to report either bycomponent or by mixture. Therequirement that only EHSs beaggregated across mixtures In order todetermine whether a threshold is metmaximizes the information about onegroup of hazardous chemicals (i.e.,EHSs), while maintaining amanageable program.

The following describes how to reportabove-threshold EHSs on a Tier 11 formwhere the facility is reporting somemixtures as a mixture and somemixtures by component. When filling outa Tier H form and reporting somemixtures as mixtures and some bycomponent, the facility must do twothings. First, for any mixture containingthe above-threshold EHS that thefacility is reporting by component, thefacility must report the above-thresholdEHS separately by chemical description,physical and health hazard, inventoryand storage code and location. Whenreporting inventory information(maximum and average daily amountand number of days on-site), the facilityshould calculate or refer to thosequantities of the EHS that are presentonly in the mixtures that the facility isreporting by component; the facilityneed not include within thesecalculations the amounts of the above-threshold EHS that are contained withinmixtures that the facility is reporting asa mixture. Similarly, when reporting thestorage code and location for the above-threshold EHS, the facility should list allstorage codes and locations of anymixture containing the above-thresholdEHS that the facility is reporting bycomponent; the facility need not refer tothe location or storage code of anymixture containing the E-IS that thefacility is reporting as a mixture.

Second. for any mixture containing anEHS that the facility is reporting as a


mixture, the facility must check the boxlabelled "EHS" to indicate that themixture contains an above-thresholdEHS, and must also write the name ofthe above-threshold EHS(s) containedwithin the mixture on the line provided.When filling out the inventoryinformation, the facility should includein the calculation only those quantitiesof the same mixture and should follow asimilar procedure when filling out thestorage code and location information.

One commenter stated that EPAshould establish a minimum percentageof a mixture below which EHScomponents would not have to beaggregated for reporting. EPA agreesand directs the commenter to the sectionon "calculation of quantity" at 40 CFRpart 370.28, which states that onlycomponents greater than I percent or0.1 percent for carcinogenic components,are reportable. Nevertheless, if theowner or operator of a facility suspectsthat an EHS is present in a mixture, theentire mixture should be reportedbecause the identity and quantity of theEHS is unknown and, therefore, cannotbe aggregated with any accuracy withother quantities of EHSs present at thefacility.

One commenter stated that therequirement to aggregate EHSs inmixtures should only be applied whenthe El-IS retains some of itscharacteristics in the mixture. EPA doesnot agree with this comment becausedetermining whether an EHS retains itscharacteristics in a mixture cannot beeasily done. Also, EPA believes thatonly rarely would an El-IS be acomponent of a mixture in aconcentration greater than 1 percent or0.1 percent if carcinogenic and not retainits characteristics. Thus, if a mixturerequires an MSDS, the owner oroperator should consider the componentEHSs in making threshold calculations.. One commenter suggested that section370.28 be redrafted to provide that onlythose hazardous chemicals or "extra-hazardous" substances in the same kindof mixture be aggregated to determinewhether the reporting threshold isexceeded. EPA disagrees. Theaggregation requirement applies toemergency planning notification undersection 302 as well as to the inventoryreporting requirements of sections 311and 312. EPA does not believe thatmodifying the aggregation requirementas the commenter suggests wouldadequately support planning foremergencies involving EHSs. Also.hazardous chemicals found in differentmixtures can have synergistic reactions.EPA believes that it is especiallyimportant, therefore, that EHSs present

at a facility be aggregated across allmixtures.

Another commenter urged that, forpurposes of determining reportingthresholds, the hazardous componentsof crude oil be excluded. EPA sees noreason to exclude components of crudeoil from the requirement to aggregateEHSs for purposes of determiningwhether reporting thresholds have beenreached. Any EHS component of crudeoil must be aggregated unless the crudeoil is reported as a mixture. Non-EHScomponents of a mixture, includingcrude oil, need not be aggregated.E. Implementation of Title III by IndianTribes on Indian Lands

In today's rule EPA is promulgating itsproposal in the March 29, 1989 NPRM, todesignate Indian Tribes as theimplementing authority for title III on alllands within "Indian Country."Accordingly, the chief executive officerof the Tribe is responsible for thefunctions of the State governor underSARA section 301, including theappointment of an emergency responsecommission for the Tribe. This tribalcommission would then be responsiblefor carrying out the duties of the SERC,including the designation of localemergency planning districts and theappointment of an emergency planningcommittee for each district. The districtemergency planning committee willcarry out the same functions as a LEPCin the local emergency planning districtsdesignated by a SERC. Also, forfacilities located within Indian country,the fire department run by the Tribe willbe the fire department designated toreceive section 311 and 312 reports.Finally, section 313 of title III requiresthat the State governor designate anentity to be responsible for managingtoxic release inventory data. In Indiancountry, this entity would be designatedby the chief executive officer of theIndian Tribe.

Several commenters endorsed EPA'sproposal to recognize tribal sovereigntyover environmental protection on Indianlands and to provide for tribalimplementation of title III in a mannerequivalent to implementation by Stateand local governments within theirrespective jurisdictions.

One commenter stated that Congressdid not intend title III to be implementedseparately on Indian lands by IndianTribes because title III lacks anyreference to Indian Tribes or lands andthe title III definition of the term "State"does not include Indian Tribes. Twocommenters asserted that the IndianTribes activities in implementing title IIIshould be similar to the activities of the

LEPCs and come under the authority ofa SERC.

EPA does not agree thatimplementation of title III on Indianlands should be under the authority of aState or SERC. Although title III lacks anexplicit reference to Indian Tribes or tothe implementation of the Act on Indianlands, EPA believes, based on thelegislative history of SARA, thatCongress clearly intended that theprotection of title III apply to all personsinhabiting Indian lands. Title IIIemphasizes emergency responseplanning and chemical awareness at thelocal level. When applied to Indianlands, this supports implementation ofthe Act by tribal authorities. EPAbelieves that in the absence of clearlegislative intent on who shouldimplement the statute on Indian lands,EPA has the discretion to designate theIndian Tribes as the implementingauthority. Also, under applicable law onIndian jurisdiction, States are generallyprecluded from exercising jurisdictionover Indians in Indian country absent aclear expression of congressional intentto the contrary. Nothing in the languageor legislative history of title III suggeststhat Congress intended to subject IndianTribes to State regulation on Indianlands, especially in an area of suchimportance to the health, safety, andwelfare of the Indian community aschemical emergency response planning.

One commenter stated that owners oroperators of facilities on Indian landsshould report to State and local officialsto avoid hindering effective emergencyplanning and response. EPA does notbelieve that Indian tribal jurisdictionover Indian lands will hinder effectiveimplementation of title III. Effectiveemergency response planning requiresthat no more than one entity beresponsible for implementing theprogram in a given area. While Statesmay be unable to exercise jurisdictionover Indian-owned facilities in Indiancountry, Indian Tribes generally canexercise civil regulatory authority overIndians and non-Indians on Indian landswith regard to matters affecting thehealth and welfare of the Tribe. (SeeMontana v. United States, 450 U.S. 544,566 (1981).) This authority is sufficient tofully implement the requirements of titleIII.

One commenter expressed concernthat releases from facilities located onIndian lands may affect areas outsideIndian jurisdiction, thereby requiring aState or local response. EPA believesthis problem is endemic to anyemergency response scheme that relieson reporting to local officials. Bydefinition, any release has the potential

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to affect areas outside the boundaries ofthe local jurisdiction and, therefore, toaffect more than one local jurisdiction ormore than one State. This concern wasrecognized in the legislation undersection 304(b](1) which requires thatnotice be provided to all SERC(s) andI.EPC(sJ likely to be affected by therelease. Response to such releases canbe handled in the same way that cross-jurisdictional releases from facilitiesoutside Indian lands are handled, bycooperation between the authorities ofthe affected jurisdictions. EPAencourages Indian Tribes, SERCs, andLEPCs to participate in joint planningand cooperative efforts to prepare forsuch potential emergencies.

Four commenters urged EPA topromulgate regulations to protect IndianTribes that choose not to develop title IIIprogram capabilities and to ensure thatthere are no gaps in the health andenvironmental protection programestablished by title lII. Under title III,the Federal government is notresponsible for implementation prior todelegating responsibility to respectiveState, local, or Tribal authorities. Thestatute requires State and localauthorities to carry out therecordkeeping and emergency planningfunctions of title III. EPA's responsibilityi3 to establish the program bypromulgating necessary regulations, andby providing guidance, training, andtechnical assistance. EPA believes thatIndian Tribes are the appropriategovernment authority for implementingtitle III in Indian country and, therefore,Tribes have the same obligations asStates and local authorities under thelaw. EPA, however, does recognize itsobligation, consistent with EPA policy,to help Tribes carry out theirresponsibilities, and intends to provideguidance, training, and technicalassistance tailored to the needs andcapabilihies of Indian Tribes.

Although endorsing EPA's approach,several commenters questioned whetherTribes have sufficient resources to carryout the implementation of title II. EPArecognizes that resources are limited onIndian lands, but believes that basicemergency planning can beaccomplished with minimal resources.To satisfy basic requirements, tribalauthorities must develop emergencyplans and establish a mechanism todisseminate to the public informationsubmitted by facilities under thereporting requirements of the plan. TheTribe is not required! to develop thecapability to respond to all releases ofhazardous material. In many cases,Tribes, like rural or small communities.will not be able to equip, train, and

maintain a hazardous material responsecapability for significant releases.Nonetheless, Tribes can determine howthey will deal with releases untilassistance can be obtained.. One commenter asked whether EPA

would phase in title Ill implementationon Indian lands and establish newdeadlines for submitting MSbSs andemergency inventory forms and forpreparing emergency plans. EPA is not'establishing new regulatory deadlines intoday's final rule. EPA does not believethat there is an apparent programmaticbenefit to establishing new deadlines. Itis imperative that facilities on Indianlands that have not complied withreporting provisions begin as soon aspossible so that Tribes can assess theirreadiness to respond to chemicalmishaps and to work with owners andoperators of facilities to reduce thepotential of their occurrence.Communities, including Indian Tribes,therefore, should not delay in identifyingand addressing these risks.

In the March 29, 1989 NPRM, EPAnoted that any Tribe may enter into acooperative agreement with anotherTribe, or with the State(s) within whichits lands are located to achieve aworkable title IlI program. EPA alsosolicited comment on whether it shouldinstitute a formal procedural mechanismfor such cooperative agreements. Ninecommenters supported instituting amechanism for cooperative agreementsand recommended that public notice ofsuch agreements be published. EPAagrees that a formal proceduralmechanism for cooperative agreementswould be useful to facilitate theexchange of information. The final rule,therefore, requires any Tribe that hasentered into a cooperative agreementWith a State, to submit a copy of thesigned agreement to the EPA Regionaloffice in the EPA R3gion where the Tribeand State are located, within 60 days ofsigning the agreement. EPA willannually publish a list of any newagreements and copies of theagreements will be available from EPARegional offices.

Another commenter requested thatEPA define "cooperative agreement"and provide specific guidance for thedevelopment of such agreements; Forpurposes of title III, cooperativeagreement is any formal arrangementreached by States and Tribes that meetsthe needs of the parties to the agreementand is entered into with full knowledgeand consent. Each agreement isexpected to be unique and to addressthe specific needs of the parties. Tribesmay tailor cooperative agreements toauthorize a State to implement

provisions of the title III program thatthe Tribe is not prepared to undertake.EPA will endeavor to provide technicalassistance on developing cooperativeagreements to Tribes and States, butneither this assistance nor thepublication of lists of parties tocooperative agreements should beconsidered an approval process. Tribes,like States, may enter into cooperativeagreements without Federal oversight.

F. Miscellaneous Issues

Two commenters urged EPA toevaluate ways to minimize thppaperwork burden. One commentersuggested that the timeframe forreporting status changes at facilities bechanged from 90 to 180 days. Anothercommenter suggested that the optionunder section 311 to submit MSDSsInstead of a list of chemicals should beeliminated. Section 311(d)(2) of SARAtitle III specifies the timeframe forreporting updates under section 311. Theoption to submit MSDSs or chemicallists is also specified in the statute.States and localities, however, are notprohibited from acting under authorityof local law and developingrequirements stipulating the submissionof lists.

Several commenters requestedexemptions from reporting requirements.One commenter requested an exemptionfrom a hazardous chemical that remainson-site less than 90 days. Anothercommenter stated that a remote facilityserved solely by a volunteer firedepartment should be exempt fromreporting requirements. EPA is notgranting any additional reportingexemptions in today's -final rule. EPAdoes not agree that a hazdrdouschemical on site for less than 90 daysshould be exempt from section 311 and312 reporting requirements. It was theintent of Congress to provide the publicwith access to information on allhazardous chemicals present atfacilities, without regard to the length oftime they are on site. Similarly, EPAbelieves that facilities should be subjectto reporting requirements regardless oflocation. Information about suchfacilities could be very useful inemergency response situations.

One commenter stated that theexemption from reporting for "articles"in sections 311 and 312 should alsoapply to section 302 reporting. EPA doesnot believe that Congress intended thatthere be such an exemption from theplanning notification requirement,under section 302.

Another commenter stated that smalllaboratories used for process analysi,should be exempt from the reporting

Federal Register / Vol. 55, No. 144 1 Thursday, July 26, 1990 / Rules and Regulations

requirements under sections 311 and312. EPA agrees that such laboratoriesare exempt from section 311 and 312reporting so long as they are exemptfrom the OSHA Hazard CommunicationStandards (see 52 FR 38347; October 15,1987).

One commenter asserted that the ruleshould state that transporters shouldreport releases to the National ResponseCenter (NRC), which would notify theappropriate SERC, which would, in turn,notify the appropriate LEPC. Thus,transporters would not be required tonotify SERCs and LEPCs directly. EPAdoes not agree that the NRC shouldmake such notifications for transporters.The statute requires transporters tonotify SERCs and LEPCs directly. TheNRC is developing a computer link,however, that would facilitate directnotification of SERCs as well as EPARegional offices of a release notification.When a link is fully operational, EPAwill consider modifying today'sregulation to allow the NRC'snotification of the SERC to partiallysatisfy the reporting requirements undertitle I1, section 304. Until such time,however, facilities and transportersmust notify SERCs and LEPCs directlyof a reportable release.

Several commenters requested thatEPA consider using the metricdesignations required in the OmnibusTrade Act of 1988 because allgovernment agencies will be required touse the metric system in 1992. EPAagrees with the commenters that metricdesignations are important and hasincluded metric units in today's finalrule.

Five commenters asked EPA torequire that States adopt uniformreporting thresholds. EPA cannot requireStates to adopt uniform reportingthresholds because title M does notpreempt State and local laws. EPAconsidered State laws in making itsdecision on final thresholds andencourages States to consider theburden imposed on industry whendeveloping their laws. Nonetheless,States are free to tailor their reportingrequirements to their unique concerns.

One commenter requested that, forpurposes of section 304 reporting, theterm facility should include vessels. EPAcannot agree because to the extent thatvessels are not "stationary items" or"motor vehicles, rolling stock [or]aircraft," vessels are outside thestatutory scope of the title III definitionof facility. Releases of hazardoussubstances from vessels, however, mayrequire notification under CERCLAsection 103 and/or the Clean Water Act.

V. Regulatory AnalysesA. Regulatory Impact Analysis

Executive Order (E.O.) 12291 requireseach Federal agency to determine if aregulation is a "major" rule as definedby the order and to prepare andconsider a Regulatory Impact Analysis(RIA) in connection with every majorrule. Under E.O. 12291, a "major" rule isone that is likely to result in (1) anannual cost to the economy of $100million or more, (2) a major increase incosts or prices for consumers, individualIndustries, Federal, State, or localgovernments, or geographical regions, or(3) significant adverse effects oncompetition, employment, investment,productivity, innovation, or the ability ofUnited States-based enterprise tocompete In domestic or export markets.

The RIA in support of this rulemakingshows that today's regulation is non-major because It results in an annualcost to the economy of between $58 and$72 million and does not cause any ofthe other adverse effects listed above.The RIA, formally entitled "RegulatoryImpact Analysis in Support of a FinalReporting Threshold under sections 311and 312 of the Emergency Planning andCommunity Right-to-Know Act," isavailable for inspection in the docketsupporting this rulemaking. The RIAdescribes the steps used to estimate thetotal number of facilities affected by theregulation, the cost of the regulation ona per-facility and national basis, theestimated benefits of the regulation, andany potential economic impacts of theregulation. This section briefly discussesthe findings of the RIA.

1. Number of Affected Facilities andCovered Chemicals

As discussed above, EPA revieweddata on chemical usage and storageavailable from several States and cities.The databases developed by the LosAngeles City Fire Department and byNew Jersey's Right-to-Know programwere used in the RIA to estimate thenumber of facilities, the number ofchemicals, and the number of pounds ofchemicals that would be reported underthe different reporting threshold options.The data include information on a cross-section of facilities representing a largenumber of industries in both themanufacturing and non-manufacturingsectors, contain the largest number ofindividual observations relative to otheravailable data, and are representative ofa broad list of chemicals similar to thosesubject ot the OSHA HCS regulations.

EPA acknowledges that there is acertain degree of imprecision associatedwith extrapolations from regional data.For example, facilities in the City of Los

Angeles may not be representative offacilities in other parts of the nation. Tohelp compensate for this limitation, twoseparate regional databases wereevaluated. The Agency extrapolatedboth data sets on an SIC code basis.That is, facilities in each SIC code wereexamined separately to estimate thenumber of facilities that would be likelyto report at each threshold level and thenumber of chemicals likely to bereported. When the analysis wasperformed on an individual SIC codebasis, the national estimates werederived separately for each database byaggregating the individual SIC codeestimates. The extrapolationmethodology, however, does assumethat facilities in the City of Los Angelesand New Jersey in a particular SIC codeare similar to facilities in other parts ofthe nation In that SIC code.

2. Estimated National Cost of theAlternative Thresholds

EPA has estimated the potential costof each of the alternative reportingthresholds. The methodology follows thesame general procedures that were usedin support of the October 15, 1987 finalrule, and uses the same unit costestimates developed under thatrulemaking. Only two adaptations havebeen made in the analysis. First, SERCs.LEPCs, and fire departments areassumed to have taken the steps tofamiliarize themselves with thereporting requirements, to haveestablished recordkeeping systems, andto have developed any required publicnotices about the availability of data.Second, facilities currently subject to therule are assumed to have developed thenecessary recordkeeping and reportingsystems.

The unit costs for manufacturers areassumed to vary by facility size,reflecting the greater number ofhazardous chemicals present at largerfacilities and the potential for moreelaborate decision-making processes.Unit costs for non-manufacturers areassumed to be the same as those forsmall manufacturers (employment ofless than 20). This assumption is basedon the preponderance of small facilitiesin the non-manufacturing sector (about80 percent of all non-manufacturingfacilities employ fever than 20employees), as well as the small averagenumber of hazardous chemicals locatedat such facilities.

Total costs are estimated in each year,using cost estimates expressed in 1987dollars (that is, the analysis does notinclude inflation). The table belowshows the total estimated expenditure ineach year (in 1987 dollars), as well as

30643

30644 Federal Register / Vol. 55, No. 144 1 Thursday, July 26, 1990 / Rules and Regulations

the present value costs and the equivalent annual cost for each of thesix options. _

SUMMARY OF ESTIMATED TOTAL COSTS, FISCAL YEARS 1990-2000

[Million dollars]

Fiscal year Present EquivalentOption value annual

1990 costs 1991 costs costs costs

1: 50,000 lbs. ........................................................................................................................................................................... 16-23 67-87 41%-505 49-802: 10,0001500 or IPO ............................................................................................................................................................ 3-14 55-74 457-606 54-723:10,000/500/500 or TPQ ................................................................................................................................................... 61-62 144-184 706-891 83-1074: 2,000500/500 or TPQ ...................................................................................................................................................... 81-97 188-247 800-1,066 102-1265: 500 for all I chemicals .......................................................................................................................................................... 113-136 294-336 905-1,326 116-1586: zero for all chem ilca ls ......................................................................................................................................................... 149 303 1,295 153

The final reporting threshold will be ineffect beginning on October 17, 1990 forall sectors of industry. Because initialcompliance with the requirements ofsection 311 was completed by April 1,1989, only ongoing activities undersection 311, such as submittal of revisedor new MSDSs, are included in the costcalculations. Most of the costs presentedin the table, therefore, are attributableto filing and processing the section 312Tier I and Tier II forms.

B. Regulatory Flexibility Act

1. PurposeUnder the Regulatory Flexibility Act,

whenever an-agency issues a proposedor final rule, it must prepare and makeavailable a Regulatory FlexibilityAnalysis that describes the impact ofthe rule on small entities (i.e., smallbusinesses, small organizations, andsmall government jurisdictions), unlessthe agency's administrator certifies thatthe rule will not have a significantimpact on a substantial number of smallentities. Chapters 5 of the RIAsupporting this rule addresses theimpact of this rule on small businesses.2. Certification

On the basis of the analysis containedin the RIA with respect to the impact ofthis rule on small entities, I herebycertify that this rule will not have asignificant impact on a substantialnumber of small entities. This rule,therefore, does not require a RegulatoryFlexibility Analysis.

List of Subjects40 CFR Part 350

Chemicals, Confidential businessinformation, Hazardous substances,Superfund, Intergovernmental relations.40 CFR Part 355

Chemicals, Hazardous substances,Reporting and recordkeepingrequirements.

40 CFR Part 370

Chemicals, Hazardous substances,Superfund, Reporting and recordkeepingrequirements.40 CFR Part 372

Chemicals, Reporting, andrecordkeeping requirements.

Dated: July 9, 1990.William K. Reilly,Administrator.

For the reasons set out in thePreamble, parts 350, 355, 370, and 372 ofsubtitle J of title 40 of the Code ofFederal Regulations are amended asfollows:

PART 350-TRADE SECRECY CLAIMSFOR EMERGENCY PLANNING ANDCOMMUNITY RIGHT-TO-KNOWINFORMATION AND TRADE SECRETDISCLOSURE TO HEALTHPROFESSIONALS

1. The authority citation for part 350continues to read as follows:

Authority: 42 U.S.C. 11042, 11043, and11048.

2. Section 350.1 is amended by addingthe following definitions:

§ 350.1 Definition.* * * *t

Chief Executive Officer of the tribemeans the person who is recognized bythe Bureau of Indian Affairs as the chiefelected administrative officer of thetribe.* * * * *

Commission means the emergencyresponse commission for the State inwhich the facility is located exceptwhere the facility is located in IndianCountry, in which case, commissionmeans the emergency responsecommission for the tribe under whosejurisdiction the facility is located. In theabsence of an emergency responsecommission, the Governor and the chiefexecutive officer, respectively, shall be

the commission. Where there is acooperative agreement between a Stateand a Tribe, the commission shall be theentity identified in the agreement.* * * * *r

Facility means all buildings,equipment, structure, and otherstationary items that are located on asingle site or on contiguous or adjacentsites and which are owned or operatedby the same person (or by any personwhich controls, is controlled by, orunder common control with, suchperson). Facility shall include man-made structures as well as all naturalstructures in which chemicals arepurposefully placed or removed throughhuman means such that it functions as acontainment structure for human use.For purposes of emergency releasenotification, the term includes motorvehicles, rolling stock, and aircraft.

Indian Country means Indian countryas defined in 18 U.S.C. 1151. Thatsection defines Indian country as:

(a) All land within the limits of anyIndian reservation under the jurisdictionof the United States government,notwithstanding the issuance of anypatent, and including rights-of-wayrunning through the reservation;

(b) All dependent Indian communitieswithin the borders of the United Stateswhether within the original orsubsequently acquired territory thereof,and whether within or without the limitsof a State; and

(c) All Indian allotments, the Indiantitles to which have not beenextinguished, including rights-of-wayrunning through the same.

Indian tribe means those tribesfederally recognized by the Secretary ofthe Interior.

Local emergency planning committeeor committee means the local emergency

Federal Resister I Vol. 55, No. 144 I Thursday, luly 26, 1990 I Rules and Regulations 30645planning committee appointed by theemergency response commission.

State means any State of the UnitedStates, the District of Columbia, theCommonwealth of Puerto Rico, Guam,American Samoa, the United StatesVirgin Islands, the Northern MarianaIslands, and any other territory-orpossession over which the United Stateshas jurisdiction and Indian Country.* * * * *t

PART 355-EMERGENCY PLANNING'AND NOTIFICATION


Authority: 42 U.S.C. 11002, 11003, 11004,11045. 11048, 11049.

4. Section 355.20 is amended byrevising the definitions of commissionand facility and by adding thedefinitions, Chief Executive Officer ofthe tribe, committee, Indian Country,Indian tribe, and state to read asfollows:

§ 355.20 Definitions.

Chief Executive Officer of the tribemeans the person who is recognized bythe Bureau of Indian Affairs as the chiefelected administrative officer of thetribe.

Commission means the emergencyresponse commission for the State inwhich the facility is located exceptwhere the facility is located in IndianCountry, in which case, commissionmeans the emergency responsecommission for the tribe under whosejurisdiction the facility is located. Inabsence of an emergency responsecommission, the Governor and the chiefexecutive officer, respectively, shall bethe commission. Where there is acooperative agreement between a Stateand a Tribe, the commission shall be theentity identified in the agreement.

Committee or Local emergencyplanning committee means the localemergency planning committeeappointed by the emergency responsecommission.* * * *r *

Facility means all buildings,equipment, structure, and otherstationary items that are located on asingle site or on contiguous or adjacentsites and which are owned or operatedby the same person (or by any personwhich controls, is controlled by, orunder common control with, suchperson). Facility shall include manmadestructures in which chemicals arepurposefully placed or removed throughhuman means such that it functions as a

containment structure for human use.For purposes of emergency releasenotification, the term includes motorvehicles, rolling stock, and aircraft.



(b) All dependent Indian communitieswithin the borders of the United Stateswhether within the original orsubsequently acquired territory thereof,and whether within or without the limitsof a State; and



State means any State of the UnitedStates, the District of Columbia, theCommonwealth of Puerto Rico, Guam,American Samoa, the United StatesVirgin Islands, the Northern MarianaIslands, any other territory orpossession over which the United Stateshas jurisdictions and Indian Country.

PART 370-HAZARDOUS CHEMICALREPORTING: COMMUNITY RIGHT-TO-KNOW


Authority: 42 U.S.C. 11011, 11012,11024,11025, 11028, 11029.

6. Section 370.2 is amended byrevising the definitions of facility,commission, Committee, and State andby adding the definitions, chiefExecutive Officer of the tribe, IndianCountry, and Indian tribe to read asfollows:

§ 370.2 Definitions.Chief Executive Officer of the tribe

means the person who is recognized bythe Bureau of Indian Affairs as the chiefelected administrative officer of thetribe.

Commission means the emergencyresponse commission for the State inwhich the facility is located exceptwhere the facility is located in IndianCountry, in which case, commissionmeans the emergency responsecommission for the Tribe under whosejurisdiction the facility is located. In

absence of an emergency responsecommission, the Governor and the chiefexecutive officer, respectively, shall bethe commission. Where there is acooperative agreement between a Stateand a Tribe, the commission shall be theentity identified in the agreement.

Committee or local emergencyplanning committee means the localemergency planning committeeappointed by the emergency responsecommission.* * t *t *

Facility means all buildings,equipment, structure, and otherstationary items that are located on asingle site or on contiguous or adjacentsites and which are owned or operatedby the same person (or by any personwhich controls, is controlled by, orunder common control with, suchperson). Facility shall include manmadestructures as well as all naturalstructures in which chemicals arepurposefully placed or removed throughhuman means such that it functions as acontainment structure for human use.For purposes of emergency releasenotificatiori, the term includes motorvehicles, rolling stock, and aircraft.



(b) All dependent Indian communitieswithin the border of the United Stateswhether within the original orsubsequently acquired territory thereof,and whether within or without th6 limitsof a State; and


Indian tribe means those tribesfederally recognized by the Secretary o,the Interior.

State means any State of UnitedStates, the District of Columbia, theCommonwealth of Puerto Rico, Guam,American Samoa, the United StatesVirgin Islands, the Northern MarianaIslands, and any other territory orpossession over which the United Sta, ehas jurisdiction and Indian Country.

7. Section 370,20 is revised to read asfollows:

/Rules and Regulations 30645Federal Register / Vol. 55, No. 144 / Thursday, July 26, 1990


§ 370.20 Applicability.(a) General. The requirements of this

subpart apply to any facility that isrequired to prepare or have available amaterial safety data sheet (MSDS] for ahazardous chemical under the,Occupational Safety and Health Act of1970 and regulations promulgated underthat Act.

(b) Minimum threshold levels. Exceptas provided in paragraph (b)(3) of thissection, the minimum threshold level forreporting under this subpart shall be asspecified in paragraphs (b](1) and (b][2)of this section.

(1) The owner or operator of a facilitysubject to this subpart shall submit anMSDS on or before October 17, 1990 (orwithin three months after the facilityfirst becomes subject to this subpart),for all'hazardous chemicals present atthe facility at any one time in amountsequal to or greater than 10,000 pounds(or 4,540 kgs.) and for all extremelyhazardous substances present at thefacility in an amount greater than orequal to 500 pounds (or 227 kg.-approximately 55 gallons) or the TPQ,whichever is lower.

(2) The owner or operator of a facilitysubject to this subpart shall submit theTier I form (or Tier II form) on or beforeMarch 1, 1991 (or March I of the firstyear after the facility first becomes asubject to this subpart), and annuallythereafter, covering all hazardouschemicals present at a facility at anyone time during the preceding calendaryear in amounts equal to or greater than10,000 pounds (or 4,540 kgs.) andextremely hazardous substances presentat the facility in an amount greater than

or equal to 500 pounds (or 227 kgs.-approximately 55 gallons) or the TPQ,whichever is lower.

(3) The minimum threshold forreporting in response to requests forsubmission of an MSDS or a Tier II formunder §§ 370.21(d) and 370.25(c) of thispart shall be zero.

8. Section 370.28 is revised to read asfollows:

§ 370.28 Mixtures.(a) Basic reporting. The owner or

operator of a facility may meet thereporting requirements of § § 370.21(MSDS reporting) and 370.25 (inventoryform reporting) of this subpart for ahazardous chemical that is a mixture ofhazardous chemicals by:

(1) Providing the required informationon each component in the mixture whichis a hazardous chemical; or

(2) Providing the required informationon the mixture itself, so long as thereporting of mixtures by a facility under§ 370.25 is in the same manner as under§ 370.21, where practicable.

(b) Calculation of the quantity. (1) Ifthe reporting is on each component ofthe mixture which is a hazardouschemical, then the concentration of thehazardous chemical, in weight percent(greater than 1% or 0.1% if carcinogenic)shall be multiplied by the mass (inpounds) of the mixture to determine thequantity of the hazardous chemical inthe mixture.

(2) If the reporting is on the mixtureitself, the total quantity of the mixtureshall be reported.

(c) Aggregation of extremelyhazardous substances. (1) To determine

whether the reporting threshold for anextremely hazardous substance hasbeen equaled or exceeded, the owner oroperator of a facility shall aggregate thefollowing:

(il The quantity of the extremelyhazardous substance present as acomponent in all mixtures at the facility,and

(ii) All other quantities of theextremely hazardous substance presentat the facility.If the aggregate quantity of an extremelyhazardous substance equals or exceedsthe reporting threshold, the substanceshall be reported.

(2) If extremely hazardous substancesare being reported and are componentsof a mixture at a facility, the owner oroperator of a facility may report either:

(i) The mixture, as a whole, even if thetotal quantity of the mixture is below itsreporting threshold; or

(ii) The extremely hazardoussubstance component(s) of the mixture.. 9. Section 370.40 is revised to read asfollows:

§ 370.40 Tier I emergency and hazardouschemical Inventory form.

(a) The form set out in paragraph (b)of this section shall be completed andsubmitted as required in § 370.25(a) ofthis part. In lieu of the form set out inparagraph (b) of this section, the facilityowner or operator may submit a State orlocal form that contains identicalcontent.

(b) Tier I Emergency and HazardousChemical Inventory Form.8ILLIWG CODE G56--U

Federal Register / Vol. 55, No. 144 / Thursday, July 26, 1990 / Rules and Regulations 30647

Page - of pagesRevised June 1990 Form Approved OMB No. 2050-0072EMERGENCY AND HAZARDOUS iiii iiiii:©,;: !' i!

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Tier One InstructionsGeneral Information

Submission of this form is required byTitle III of the Superfund AmendmentsandReauthorization Act of 1986, Title

I. Section 312. Public Law 99-499,codified at 42 U.S.C. § 11022.

CertificationThe owner or operator or the officially

designated representative of the owneror operator must certify that allinformation included in the Tier Isubmission is true, accurate, andcomplete. On the Tier I form, enter yourfull name and official title. Sign yourname and enter the current date. Also,enter the total number of pages in thesubmission, including all attachments.

The purpose of this form is to provideState and local officials and the publicwith information on the general typesand locations of hazardous chemicalspresent at your facility during the pastyear.You must provide all informationrequested on this form.

You may substitute the Tier Two formfor this Tier One form. (The Tier Twoform provides detailed information andmust be submitted in response to aspecific request from State or localofficials.)Who Must Submit This Form

Section 312 of Title III requires thatthe owner or operator of a facilitysubmit this form if, under regulationsimplementing the Occupational Safetyand Health Act of 1970, the owner oroperator is required to prepare or haveavailable Material Safety Data Sheets(MSDS] for hazardous chemicals presentat the facility. MSDS requirements arespecified in the Occupational Safety andHealth Administration (OSHA) HazardCommunication Standard, found in Title29 of the Code of Federal Regulations at§ 1910.1200.

This form does not have to besubmitted if all of the chemicals locatedat your facility are excluded underSection 311(e) of Title III or if the weightof each covered hazardous chemicalnever equals or exceeds the minimumthreshold listed in Title III Section 312during the reporting year.What Chemicals Are Included

You must report the informationrequired on this form for everyhazardous chemical for which you arerequired to prepare or have available anMSDS under the Hazard CommunicationStandard, unless the chemicals areexcluded ulder Section 311 (e) of Title III

or they are.below the minimumreporting thresholds.What Chemicals Are Excluded

Section 311(e) of Title III excludes thefollowing substances:

(i) Any food, food additive, coloradditive, drug, or cosmetic regulated bythe Food and Drug Administration;

(ii) Any substance present as a solidin any manufactured item to the extentexposure to the substance does notoccur under normal conditions of use;

(iii) Any substance to the exent it isused for personal, family, or householdpurposes, or is present in the same formand concentration as a productpackaged for distribution and use by thegeneral public.

(iv) Any substance to the extent it isused in a research laboratory or ahospital or other medical facility underthe direct supervision of a technicallyqualified individual;"[v) Any substance to thd extent it is

used In routine agricultural operationsor is a fertilizer held for sale by aretailer to the ultimate customer.OSHA regulations, Section 1910.1200(b),stipulate exemptions from therequirement to prepare or haveavailable an MSDS.Reporting Thresholds

Minimum thresholds have beenestablished for Tier One/Tier Tworeporting under Title 111, Section 312.These thresholds are as follows:

For Extremely Hazardous Substances(EHSs) designated under section 302 ofTitle III, the reporting threshold is 500pounds (or 227 kg.) or the thresholdplanning quantity (TPQ], whichever islower:

For all other hazardous chemicals forwhich facilities are required to have orprepare an MSDS, the minimumreporting threshold is 10,000 pounds (or4,540 kg.).

You need to report hazardouschemicals that were present at yourfacility at any time during the previouscalendar year at levels that equal orexceed these thresholds. Forinstructions on threshold determinationsfor components of mixtures, see "WhatAbout Mixtures?" on page 3 of theseinstructions.When To Submit This Form

Owners or operators of facilities thathave hazardous chemicals on hand inquantities equal to or greater than setthreshold levels must submit either TierOne or Tier Two Forms by March 1.Where to Submit This Form

Send one completed inventory form toeach of the followLig organizations:

1. Your State emergency responsecommission.

2. Your local emergency planningcommittee.

3. The fire department withjurisdiction over your facility.

PenaltiesAny owner or operator of a facility

who fails to submit or supplies false TierOne information shall be liable to theUnited States for a civil penalty of up to$25,000 for each such violation. Eachday a violation continues shallconstitute a separate violation. Inaddition, any citizen may commence acivil action on his or her own behalfagainst any owner or operator who failsto submit Tier One information.

Instructions

Please Read These InstructionsCarefully. Print or Type all Responses

You may use the Tier Two form as aworksheet for completing Tier One.Filling in the Tier Two chemicalinformation section should help youassemble your Tier One responses.

If your responses require more thanone page, fill in the page number at thetop of the form.

Reporting PeriodEnter the appropriate calendar year.

beginning January 1 and endingDecember 31.

Facility IdentificationEnter the complete name of your

facility (and company identifier whereappropriate).

Enter the full street address or stateroad. If a street address is not available,enter other appropriate identifiers thatdescribed the physical location of yourfacility (e.g., longitude and latitude).Include city, county, state, and zip code.

Enter the primary Standard IndustrialClassification (SIC) code and the Dun &Bradstreet number of your facility. Thefinancial officer of your facility shouldbe able to provide the Dun & Bradstreetnumber. If your firm does not have thisinformation, contact the State orregional office of Dun & Bradstreet toobtain your facility number or have oneassigned.Owner/Operator

Enter the owner's or operator's fullname, mailing address, and phonenumber.Emergency Contact

Enter the name, title, and work phonenumber of at least one local person oroffice that can act as a referral Ifemergency responders need assistance

Federal Register / Vol. .55, No. 144 / Thursday, July. 26, 1990 / Rules and Regulations

in responding to a chemical accident atthe facility.

Provide an emergency phone numberwhere such emergency information willbe available 24 hours a day, every day.This requirement is mandatory. Thefacility must make some arrangement toensure that a 24 hour contact isavailable.Identical Information

Check the box indicating identicalinformation, located below theemergency contacts on the Tier Oneform, if the current information beingreported is identical to that submittedlast year. Chemical descriptions,amounts, and locations must beprovided in this year's form, even if theinformation is identical to thatsubmitted last year.Physical and Health Hazards

Descriptions, Amounts, and LocationsThis section requires aggregateinformation on chemicals by hazardcategories as defined in 40 CFR 370.2.The two health hazard categories andthree physical hazard categories are aconsolidation of the 23 hazardcategories defined in the OSHA HazardCommunication Standard, 29 CFR1910.1200. For each hazard type, indicatethe total amounts and general locationsof all applicable chemicals present atyour facility during the past year.

HAZARD CATEGORY COMPARISON FORREPORTING UNDER SECTIONS 311' and312

EPA's hazard categories OSHA's hazardcategories

Fire Hazard ....................... FlammableCombustion UquidPyrophoricOxidizer

Sudden Release of ExplosivePressure. Compressed Gas

Reactive ............. Unstable ReactiveOrganic PeroxideWater Reactive

Immediate (Acute) Highly ToxicHealth Hazards. Toxic

IrritantSensitizerCorrosive

.. ..... Other hazardouschemicals with anadverse effect withshort term exposure.

Delayed (Chronic) Health CarcinogensHazard.

..... Other hazardouschemicals with anadverse effect withlong term exposure.

* What units should I use?Calculate all amounts as weight in

pounds. To convert gas or liquid volume

to weight in pounds, multiply by anappropriate density factor.InstructionsPlease Read These InstructionsCarefully. Print or Type all Responses

*What about mixtures?If a chemical is part of a mixture, you

have the option of reporting either theweight of the entire mixture or only theportion of the mixture that is aparticular hazardous chemical (e.g., if ahazardous solution weighs 100 lbs. but iscomposed of only 5% of a particularhazardous chemical, you can indicateeither 100 lbs. of the mixture of 5 lbs. ofthe hazardous chemical).

The option used for each mixture mustbe consistent with the option used inyour Section 311 reporting.

Because E -HSs are important toSection 303 planning, EHSs have lowerthresholds. The amount of an EHS at afacility (both pure EHS substances andEHSs in mixtures) must be aggregatedfor purposes of threshold determination.It is suggested that the aggregationcalculation be done as a first step Inmaking the threshold determination.Once you determine whether athreshold has been reached for an ElIS,you should report either the total weightof the EHS at your facility, or the weightof each mixture containing the EHs.

*Where do I count a chemical that is afire and reactive physical hazard and animmediate (acute] health hazard?

Add the chemical's weight to yourtotals for all three hazard categories andinclude its location in all threecategories. Many chemicals fall intomore than one hazard category.Maximum Amount

The amounts of chemicals you haveon hand may vary throughout the year.The peak weights-greatest single-dayweights during the year-are addedtogether in this column to determine themaximum weight for each hazard type.Since the peaks for different chemicalsoften occur on different days, thismaximum amount will seem artificiallyhigh.

To complete this and the followingsections, you may choose to use the TierTwo form as a worksheet.

To determine the Maximum Amount:1. List all of your reportable

hazardous chemicals individually.2. For each chemical...a. Indicate all physical and health

hazards that the chemical presents.Include all chemicals, even if they arepresent for only a short period of timeduring the year.

b. Estimate the maximum weight inpounds that was present at your facility

on any single day of the reportingperiod.

3. For each hazard type-beginningwith Fire and repeating for all physicaland health hazard types...

a. Add the maximum weights of allchemicals you indicated as theparticular hazard type.

b. Look at the Reporting Ranges at thebottom of the Tier One form. Find theappropriate range value code.

c. Enter this range value as theMaximum AmounL

Example: You are using the Tier Twoform as a worksheet and have listed rawweights in pounds for each of yourhazardous chemicals. You have markedan X in the immediate (acute) hazardcolumn for phenol and sulfuric acid. Themaximum amount raw weight you listedwere 10,000 lbs. and 500 lbs.respectively. You add these together toreach a total of 10,500 lbs. Then you lookat the Reporting Range at the bottom ofyour Tier One form and find that thevalue of 04 corresponds to 10,500 lbs.Enter 04 as your Maximum Amount forImmediate (acure) hazards materials.

You also marked an X in the Firehazard box for phenol. When youcalculate your Maximum Amount totalsfor fire hazards, add the 10,000 lb.weight again.

Average Daily Amount

This column should represent theaverage daily amount of chemicals ofeach hazard type that were present at orabove applicable thresholds at yourfacility at any point during the year.

To determine this amount:1. List all of your reportable

hazardous chemicals individually (sameas for Maximum Amount.

2. For each chemical...a. Indicate all physical and health

hazards that the chemical presents(same as for Maximum Amount).

b. Estimate the average weight inpounds that was present at your facilitythroughout the year. To do this, total alldaily weights and divide by the numberof days the chemical was present on thesite.

3. For each hazard type-beginningwith Fire and repeating for all physicaland health hazards...

a. Add the average weights of allchemicals you indicated for theparticular hazard type. "

b. Look at the Reporting Ranges at thebottom of the Tier One form. Find theappropriate range value code.

c. Enter this range value as theAverage Daily Amount.

30649


InstructionsPlease Read These InstructionsCarefully. Print or Type all Responses

Example: You are using the Tier Twoform, and have marked an X in theimmediate (acute) hazard column fornicotine and phenol. Nicotine is presentat your facility 100 days during the year,and the sum of the daily weights is100,000 lbs. By dividing 100,000 lbs. by100 days on-site, you calculate anAverage Daily Amount of 1,000 lbs. fornicotine. Phenol is present at yourfacility 50 days during the year, and thesum of the daily weights is 10,000 lbs. Bydividing 10,000 lbs. by 50 days on-site,you calculate an Average Daily Amountof 200 lbs. for phenol. You then add thetwo average daily amounts together toreach a total of 1,200 lbs. Then you lookat the Reporting Range on your Tier Oneform and find that the value 03corresponds to 1,200 lbs. Enter 03 asyour Average Daily Amount forImmediate (acute) Hazard.

You also marked an X in the Firehazard column for phenol. When youcalculate your Average Daily Amountfor fire hazards, use the 200 lb. weightagain.

Number of Days On-SiteEnter the greatest number of days that

a single chemical within that hazardcategory was present on-site.

Example: At your facility, nicotine ispresent for 100 days and phosgene ispresent for 150 days. Enter 150 in thespace provided.General Location

Enter the general location within yourfacility where each hazard may befound. General locations should includethe names or identifications of buildings,tank fields, lots, sheds, or other suchareas.

For each hazard type, list thelocations of all applicable chemicals. Asan alternative you may also attach a siteplan and list the site coordinates relatedto the appropriate locations. If you doso, check the Site Plan box.

Example: On your worksheet youhave marked an X in the Fire hazardcolumn for acetone and butane. Younoted that these are kept in steel drumsin Room C of the Main Building, and inpressurized cylinders in Storage Shed13, respectively. You could enter MainBuilding and Storage Shed 13 as theGeneral Locations of your fire hazards.

However, you choose to attach a siteplan and list coordinates. Check the SitePlan box at the top of the Column andenter site coordinates for the MainBuilding and Storage Shed 13 underGeneral Locations.

If you need more space to listlocations, attach an additional Tier Oneform and continue your list on theproper line. Number all pages.Certification

Instructions for this section areIncluded on page one of theseinstructions.


§ 370.41 Tier II emergency and hazardouschemical Inventory form.

(a) The form set out in paragraph (b)of this section shall be completed andsubmitted as required in § 370.25 of thispart. In lieu of the form set out inparagraph (b) of this section, the facilityowner or operator may submit a State orlocal form that contains identicalcontent.

(b) Tier II Emergency and HazardousChemical Inventory Form.SBIWN CODE 65W5-so-U


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30652


Tier Two InstructionsGeneral Information

Submission of this Tier Two form(when requested) is required by Title IIIof the Superfund Amendments andReauthorization Act of 1986, Section 312,Public Law 99-499, codified at 42 U.S.C.Section 11022. The purpose of this TierTwo form is to provide State and localofficials and the public with specificinformation on hazardous chemicalspresent at your facility during the pastyear.Certification

The owner or operator or the officiallydesignated representative of the owneror operator must certify that allinformation included in the Tier Twosubmission is true, accurate, andcomplete. On the first page of the TierTwo report, enter your full name andofficial title. Sign your name and enterthe current date. Also, enter the totalnumber of pages included in theConfidential and Non-ConfidentialInformation Sheets as well as allattachments. An original signature isrequired on at least the first page of thesubmission. Submissions to the SERC,LEPC, and fire department must eachcontain an original signature on at leastthe first page. Subsequent pages mustcontain either an original signature, aphotocopy of the original signature, or asignature stamp. Each page must containthe date on which the original signaturewas affixed to the first page of thesubmission and the total number ofpages in the submission.You Must Provide All InformationRequested on This Form to Fulfill TierTwo Reporting Requirements

This form may also be used as aworksheet for completing the Tier Oneform or may be submitted in place of theTier One form.Who Must Submit This Form

Section 312 of Title III requires thatthe owner or operator of a facilitysubmit this Tier Two form if sorequested by a State emergencyresponse commission, a local emergencyplanning committee, or a fire departmentwith jurisdiction over the facility.

This' request may apply to the owneror operator of any facility that isrequired, under regulationsimplementing the Occupational Safetyand Health Act of 1970, to prepare orhave available a Material Safety DataSheet (MSDS) for a hazardous chemicalpresent at the facility. MSDSrequirements are specified in theOccupational Safety and HealthAdministration (OSHA) Hazard

Communication Standard, found in Title29 of the Code of Federal Regulations at§ 1910.1200.

This form does not have to besubmitted if all of the chemicals locatedat your facility are excluded underSection 311(e) of Title III.What Chemicals are Included

If you are submitting Tier Two formsin lieu of Tier One, you must report therequired information on this Tier Twoform for each hazardous chemicalpresent at your facility in quantitiesequal to or greater than establishedthreshold amounts (discussed below),unless the chemicals are excluded underSection 311(e) of Title I1. Hazardouschemicals are any substance for whichyour facility must maintain an MSDSunder OSHA's Hazard CommunicationStandard.

If you elect to submit Tier One ratherthan Tier Two, you may still be requiredto submit Tier Two information uponrequest.What Chemicals are Excluded

Section 311(e) of Title Ill excludes thefollowing substances:

(i) Any food, food additive, coloradditive, drug, or cosmetic regulated bythe Food and Drug Administration;

(ii) Any substance present as a solidin any manufactured item to the extentexposure to the substance does notoccur under normal conditions of use;

(iii) Any substance to the extent it isused for personal, family, or householdpurposes, or is present in the same formand concentration as a productpackaged for distribution and use by thegeneral public;

(iv) Any substance to the extent it isused in a research laboratory or ahospital or other medical facility underthe direct supervision of a technicallyqualified individual;

(v) Any substance to the extent it isused in routine agricultural operationsor is a fertilizer held for sale by aretailer to the ultimate customer.

OSHA regulations, § 1910.1200(b),stipulate exemptions from therequirement to prepare or have availablean MSDS.Reporting Thresholds

Minimum thresholds have beenestablished for Tier One/Tier Tworeporting under Title III, Section 312.These thresholds are as follows:

For Extremely Hazardous Substances:(EHSs) designated under section 302 ofTitle Ill, the reporting thresholdIs 500pounds (or 227 kg.) or the thresholdplanning quantity (TPQ), whichever islower,

For all other hazardous chemicals forwhich facilities are required to have orprepare an MSDS, the minimumreporting threshold Is 10,000 pounds (or4,54o kg.).

You need to report hazardouschemicals that were present at yourfacility at any time during the previouscalendar year at levels that equal orexceed these thresholds. Forinstructions on threshold determinationsfor components of mixtures, see "WhatAbout Mixtures?" on page 2 of theseinstructions.

.A requesting official may limit theresponses required under Tier Two byspecifying particular chemicals orgroups of chemicals. Such requestsapply to hazardous chemicals regardlessof established thresholds.InstructionsPlesase read these instructionscarefully. Print or Type all Responses

When to Submit This FormOwners or operators of facilities that

have hazardous chemicals on hand inquantities equal to or greater than setthreshold levels must submit either TierOne or Tier Two forms by March 1.

If you choose to submit Tier One,rather than Tier Two, be aware that youmay have to submit Tier Twoinformation later, upon request of anauthorized official. You must submit theTier Two form within 30 days of receiptof a written request.Where to Submit This Form

Send either a completed Tier Oneform or Tier Two form(s) to each of thefollowing organizations:

1. Your State Emergency ResponseCommission.

2. Your Local Emergency PlanningCommittee.

3. The fire department withjurisdiction over your facility.

If a Tier Two form is submitted inresponse to a request, send thecompleted form to the requestingagency.

PenaltiesAny owner or operator who violates

any Tier Two reporting requirementsshall be liable to the United States for acivil penalty of up to $25,000 for eachsuch violation. Each day a violationcontinues shall constitute a separateviolation.

If your Tier Two responses requiremore than one page use additional formsand fill in the page number at the top ofthe form.

......... J ....... i .... ..... m30653m. ....

30654 Federal Register J Vol. 55, No. 144 / Thursday, July 26, 1990 / Rules and Regulations

Reporting PeriodEnter the appropriate calendar year,

beginning January 1 and endingDecember 31.

Facility IdentificationEnter the full name of your facility

(and company identifier whereappropriate).

Enter the full street address or stateroad. If a street address is not available,enter other appropriate identifiers thatdescribe the physical location, of yourfacility (e.g., longitude and latitude).Include city, county, state, and zip code.

Enter the primary Standard IndustrialClassification (SIC) code and the Dun &Bradstreet number for your facility. Thefinancial officer of your facility shouldbe able to provide the Dun & Bradstreetnumber. If your firm does not have thisinformation, contact the State orregional office of Dun & Bradstreet toobtain your facility number or have oneassigned.Owner/Operator

Enter the owner's or operator's fullname, mailing address, and phonenumber.Emergency Contact

Enter the name, title, and work phonenumber at least one local person oroffice who can act as a referral'ifemergency responders need assistancein responding to a chemical accident atthe facility.

Provide an emergency phone numberwhere such emergency information willbe available 24 hours a day, every day;The requirement is mandatory. Thefacility must make some arrangement toensure a 24 hour contact is. available.Identical Information

Check the box indicating Indenticalinformation, located below theemergency contacts on the Tier Twoform, if the current chemical informationbeing reported is identical to thatsubmitted last year. Chemicaldescriptions, hazards, amounts, andlocations must be provided in this year'sform, even if the information is identicalto that submitted last year.Chemical Information: Description,Hazards, Amounts, and Locations

The main section of the Tier Two formrequires specific Information onamounts and locations of hazardouschemicals, as defined in the OSHAHazard Communication Standard.

If you choose to indicate that all of theinformation on. a specific hazardouschemical Is identical to that submittedlast year. check the, appropriate optionalbox provided at the right side of the

storage codes and locations on the TierTwo form. Chemical descriptions,hazards, amounts, and locations must beprovided even if the information isidentical to that submitted last year.

e What units should I use?Calculated all amounts as weight in

pounds. To convert gas or liquid volumeto weight in pounds, multfply by anappropriate density factor.

* What about mixtures?If a chemical is part of a mixture, you

have the option of reporting either theweight of the entire mixture or only theportion of the mixuture. that is aparticular hazardous chemcial] (eg., if ahazardous solution weights 100 Ilbs. butis composed of only 5% of a particularhazardous chemcial, you can ndicateeither 100 lbs. of the mixture or 5 lbs. ofthe chemical].

The option used for each mixture mustbe consistentwith the option used inyour Section 311 reporting.

Because El ISs are important toSection 303 planning, EHSs have lowerthresholds. The amount of an EHS at afacility (both pure EHS substances andEHSs in mixtures) must be aggregatedand purposes of thresholddetermination. It is suggested .that theaggregation calculation be done as afirst step In making the thresholddetermination. Once you determinewhether a threshold for an MHS hasbeen reached, you should report eitherthe total weight of the EHS at yourfacility, or the weight of each mixturecontaining the EHS.Chemical Description

1. Enter the Chemical AbstractService registry number (CAS. Formixtures, enter the CAS number of themixture as a whole if it has beenassigned a- number distinct from itsconstituents. For a mixture that has noCAS number, leave this item blank orreport the CAS numbers of as manyconstituent chemicals as possible.

If you are withholding the name of achemical in accordance with criteriaspecified in Title IL Section, 322,, enterthe generic class or category that isstructurally descriptive of the, chemical(e.g., list toulene diisocyanate as organicisocyanate) and check the box markedTrade Secret. Trade secret informationshould be submitted to EPA and mustinclude a substantiation. Please refer toEPA's final regulation on trade secrecy(53 FR 28772. July 29, 1988) for detailedinformation on how to submit tradesecrecy claims.

2. Enter the chemical name orcommon name of each hazardouschemical.

3. Check box for ALL applicabledescriptors: pure or mixture; and solid,

liquid, or gas; and whether the chemicalis or contains an EHS.

4. If the chemical is a mixturecontaining an EHS, enter the chemicalname of each EHS in the mixture.

Example: You have pure chlorine ason hand, as well as two mixtures thatcontain liquid chlorine. You write"chlorine" and enter the CAS number.Then you check "pure" and "mix"-aswell as "liquid" and "gas".

Physical and Health HazardsFor each chemical you have listed,

check all the physical and health hazardboxes that apply. These hazardcategories are defined in 40 CFR 370.2.The two health hazard categories andthree physical hazard categories are aconsolidation of the 23 hazardcategories defined in the OSHA HazardCommunication Standard, 29 CFR191G.1200.

HAZARD CATEGORY COMPENSATION FORREPORTING UNDER SECTIONS 311 AND312

EPA's hazard categodes OSHA's hazardcategories

Fire Hazard........................ FlammableCombustion LiquidPyrophoncOxidizer

Sudden Release of ExplosivePressure. Compressed Gas

Reactive....._............. Unstable ReactiveOrganic PeroxideWater Reactive

Immediate (Acute) Highly ToxfcHealtt Hazards. Toxic

IrritantSensitizerCorrosiveOther hazardous

chemicals with, anadverse effect withshort term exposure

Delayed (Chronic) Health CarcinogensHazard. Other hazardous

chemicals with anadverse effect withlong term exposure

Maximum Amount1. For each hazardous chemical,

estimate the greatest amount present atyour facility on any single day duringthe reporting period.

2. Find the appropriate range valuecode in Table I.

3. Enter this range value as theMaximum Amount.

TABLE I-REPORTING, RANGES

Range Weight range In poundsvalue From F To

o1...........o.................. .. 02........ 100 __ __ 999


TABLE I-REPORTING RANGES-Continued

Range Weight range In poundsvalue From To

03 .............. 1,000 ........................... 9,99904 .............. 10,000 ........................ 99,99905 .............. 100,000 ...................... 999,99906 .............. 1,000.000 .................. 9,999,99907 .............. 10,000,000 ...... 49,999,99908 .............. 50,000,000 ................. 99,999,99909 .............. 100,000,000 ............... 499,999,99910 .............. 500,000,000............... 999,999,9991 ............. 1 billion ....................... higher than 1

billion

If you are using this form as aworksheet for completing Tier One,enter the actual weight in pounds in theshaded space below the responseblocks. Do this for both MaximumAmount and Average Daily Amount.

Example: You received one largeshipment of a solvent mixture last year.The shipment filled five 5,000-gallonstorage tanks. You know that thesolvent contains 10% benzene, which isa hazardous chemical.

You figure that 10% of 25,000 gallons is2,500 gallons. You also know that thedensity of benzene is 7.29 pounds pergallon, so you multiply 2,500 gallons by7.29 pounds per gallon to get a weight of18,225 pounds.

Then you look at Table I and find thatthe range value 04 corresponds to 18,225.You enter 04 as the Maximum Amount.

(If you are using the form as aworksheet for completing a Tier Oneform, you should write 18,255 in theshaded area.)

Average Daily Amount

1. For each hazardous chemical,estimate the average weight in poundsthat was present at your facility duringthe year.

To do this, total all daily weights anddivide by the number of days thechemical was present on the site.

2. Find the appropriate range value inTable I.

3. Enter this range value as theAverage Daily Amount.

Example: The 25,000-gallon shipmentof solvent you received last year wasgradually used up and completely gonein 315 days. The sum of the daily volumelevels in the tank is 4,536,000 gallons. Bydividing 4,536,000 gallons by 315 dayson-site, you calculate an average dailyamount of 14,400 gallons.

You already know that the solventcontains 10% benzene, which is ahazardous chemical. Since 10% of 14,400is 1,440, you figure that you had anaverage of 1,440 gallons of benzene. You

also know that the density of benzene is7.29 pounds per gallon, so you multiply1,440 by 7.29 to get a weight of 10,500pounds.

Then you look at Table I and find thatthe range value 04 corresponds to 10,500.You enter 04 as the Average DailyAmount.

(If you are using the form as aworksheet for completing a Tier Oneform, you should write 10,500 in theshaded area.)

Number of Days On-Site

Enter the number of days that thehazardous chemical was found on-site.

Example: The solvent composed of10% benzene was present for 315 days atyour facility. Enter 315 in the spaceprovided.

Storage Codes and Storage Locations

List all non-confidential chemicallocations in this column, along withstorage types/conditions associatedwith each location. Please note that aparticular chemical may be located inseveral places around the facility. Eachrow of boxes followed by a linerepresents a unique location for thesame chemical.

Storage Codes: Indicate the types andconditions of storage present.

a. Look at Table II. For each location,find the appropriate storage type andenter the corresponding code in the firstbox.

b. Look at Table IIl. For each location,find the appropriate storage types forpressure and temperature conditions.Enter the applicable pressure code in thesecond box. Enter the applicabletemperature code in the third box.

TABLE II-STORAGEtTYPES

Codes Types of storage

A Above ground tankB Below ground tankC Tank inside buildingD Steel drumE Plastic or non-metallic drumF CanG CarboyH SiloI Fiber drumJ BagK BoxL CylinderM Glass bottles or jugsN Plastic bottles or jugsO Tote binP Tank wagonO Rail carR Other

TABLE Ill-TEMPERATURE AND PRESSURECONDITIONS

Codes Storage conditions

(Pressure)1 Ambient pressure2 Greater than ambient pressure3 Less than ambient pressure

(Temperature)4 Ambient temperature6, Greater than ambient temperature6 Less than ambient temperature but not

cryogenic7 Cryogenic conditions

Example: The benzene in the mainbuilding is kept'in a tank inside thebuilding, at ambient pressure and lessthan ambient temperature.

Table II shows you that the code for atank inside a building is C. Table IIIshows you that.the code for-ambientpressure is 1, and the code for less thanambient temperature is 6.

You enter: C 1 6Storage Locations: Provide a brief

description of the precise location of thechemical, so that emergency responderscan locate the area easily You may findit advantageous to provide the optionalsite plan or site coordinates asexplained below.

For each chemical, indicate at aminimum the building or lot.Additionally, where practical, the roomor area may be indicated, You mayrespond in narrative form withappropriate site coordinates orabbreviations.

If the chemical is present in more thanone building, lot, or area location,continue your responses down the pageas needed. If the chemical existseverywhere at the plant sitesimultaneously, you may report that thechemical is ubiquitous at the site.

Optional attachments: If you chooseto attach one of the following, check theappropriate Attachments box at thebottom of the Tier Two form.

a. A site plan with site coordinatesindicated for buildings, lots, areas, etc.throughout your facility.

b. A list of site coordinateabbreviations that correspond tobuildings, lots, areas, etc. throughoutyour facility.

c. A description of dikes and othersafeguard measures for storagelocations throughout your facility.

Example: You have benzene in themain room of the main building, and intank 2 in tank field 10. You attach a siteplan with coordinates as follows: mainbuilding = G-2, tank field 10 = B-6. Fillin the Storage Location as follows:

B-6 [Tank 2] G-2 [Main room]

306553ooss


Confidential InformationUnder Title III. Section 324, you may

elect to withhold location informationon a specific chemical from disclosure tothe public. If you choose to do so:

* Enter the word "confidential" in theNon-Confidential Location section of theTier Two form on the first line of thestorage locations.

* On a separate Tier TwoConfidential Location Information Sheet,enter the name and CAS number of eachchemical for which you are keeping thelocation confidential.

* Enter the appropriate location andstorage information, as described abovefor non-confidential locations.

- Attach the Tier Two ConfidentialLocation Information Sheet to the TierTwo form. This separates confidentiallocations from other information thatwill be disclosed to the public.

CertificationInstructions for this section are

included on page one of theseinstructions.


§ 370.40 Tier I emergency and hazardouschemical Inventory form.

PART 372-TOXIC CHEMICALRELEASE REPORTING; COMMUNITYRIGHT-TO-KNOW


Authority: 42 U.S.C. 11013, 11028.

12. Section 372.3 is amended byadding definitions to read as follows:

§ 372.3 Definitions.

Chief Executive Officer of the tribemeans the person who is recognized bythe Bureau of Indian Affairs as the chiefelected administrative officer of thetribe.


(a) All land within the limits of anyIndian reservation under the jurisdictionof the United States government,notwithstanding the issuance of anypatent, and includng rights-of-wayrunning through the reservation;-(b) All dependent Indian communities

within the borders of the United Stateswhether within the original orsubsequently acquired territory thereof,and whether within or without the limitsof a State; and



State means any State of the UnitedStates, the District of Columbia, theCommonwealth of Puerto Rico, Guam,

American Samoa. the United States *Virgin Islands, the Commonwealth ofthe Northern Mariana Islands, and anyother territory or possession over whichthe United States has jurisdiction andIndian Country.* ft * * ft*

13. Section 372.30 is amended byrevising paragraph (a) to read asfollows:§ 372.30 Reporting requirements and.schedule for reporting.

(a) For each toxic chemical known bythe owner or operator to bemanufactured (including imported),processed, or otherwise used in excessof an applicable threshold quantity in§ 372.25 at its covered facility describedin § 372.22 for a calendar year, theowner or operator must submit to EPAand to the State in which the facility islocated a completed EPA Form R (EPAForm 9350-1) in accordance withsubpart E. If the covered facility islocated in Indian Country, the facilityshall submit a completed EPA Form R asdescribed above to EPA and the officialdesignated by the Chief ExecutiveOfficer of the applicable Indian tribe,unless the tribe has entered into acooperative agreement with a State, inwhich case, the facility shall submit thecompleted EPA Form R to the receivingentity designated in the cooperativeagreement.

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[FR Doc. 90-16759 Filed 7-25-90; 8:45 am]BILLING CODE 6560-60-"

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