Emergency Planning and Community Right-to-Know Programs; Amendments to Hazardous Chemical Reporting Thresholds, Streamlining Requirements

SUMMARY: EPA is proposing modifications to 40 CFR parts 355 and 370,

which are the regulations implementing sections 302, 303, 304, 311 and

312 of the Emergency Planning and Community Right-To-Know Act (EPCRA).

These rules cover requirements for emergency planning and release

notification, and hazardous chemical community right-to-know reporting

under EPCRA. The proposed changes are intended to reduce reporting

burdens, while preserving the important public health and safety

benefits of the hazardous chemical reporting requirements. EPA is

proposing to raise the reporting thresholds for gasoline and diesel

fuel in underground tanks at retail gas stations, and to set new

reporting thresholds for some additional hazardous chemicals, under

sections 311 and 312. EPA is also proposing to make clarifying changes

to the mixture requirements under sections 311 and 312. In addition,

EPA is publishing draft guidance as part of the preamble of this

document to provide States and local governments with more discretion

in implementing the federal requirements--this guidance would not be

binding and does not involve any regulatory changes, as discussed

further in this preamble. EPA believes the elimination of unnecessary

reporting will help focus emergency prevention and planning on more

significant hazards. EPA is also proposing to rewrite 40 CFR parts 355

and 370 to make them easier to understand and to use. (However, the

rewrite is not intended to make any substantive revision to the

existing rules; substantive changes are limited to the revisions

specifically proposed in this document.) Improving the clarity of

regulatory requirements will make the rules easier to understand and

improve compliance.

DATES: Comments must be submitted in writing and must be received at

the address specified below on or before September 8, 1998.

ADDRESSES: Please reference Docket Number 300RR-IF1. By Mail: Mail

original and three copies of comments (no facsimiles or tapes) to

Docket Coordinator, Headquarters; U.S. EPA; CERCLA Docket Office; (Mail

Code 5201G); 401 M Street, SW; Washington, DC 20460; 703/603-9232.

By Federal Express: Send original and three copies of comments (no

facsimiles or tapes) to Docket Coordinator, Headquarters; U.S. EPA;

CERCLA Docket Office; 1235 Jefferson Davis Highway; Crystal Gateway #1,

First Floor; Arlington, VA 22202.

By E-Mail: Comments in ASCII format only may be mailed directly to

[email protected] EPAMAIL.EPA.GOV. E-mailed comments must be followed-

up by an original and three copies sent by mail or Federal Express.

Don't submit confidential business information through e-mail.

The docket, which is the administrative record for parts 355 and

370, is available for inspection between the hours of 9 a.m. and 4

p.m., Monday through Friday, excluding Federal holidays. You can make

an appointment to review the docket by calling 703/603-9232. You may

copy a maximum of 266 pages from any regulatory docket at no cost. If

the number of pages copied exceeds 266, however, you will be charged an

administrative fee of $25 and a charge of $0.15 per page for each page

after 266. The docket will mail copies of materials to you if you are

outside of the Washington, DC metropolitan area.

FOR FURTHER INFORMATION CONTACT: Meg Victor or John Ferris, Chemical

Emergency Preparedness and Prevention Office, MC 5104, U.S. EPA, 401 M

Street SW, Washington, DC 20460, 202/260-1379 or 202/260-4043. Also

contact the RCRA/UST, Superfund, and EPCRA Hotline (the Hotline) at

800/424-9346 (in the Washington, DC metropolitan area, contact 703/412-

9810). The Telecommunications Device for the Deaf (TDD) Hotline number

is 800/535-7672 (in the Washington, DC metropolitan area, 703/412-

3323). You may wish to visit the Chemical Emergency Preparedness and

Prevention Office (CEPPO) Internet site, at www.epa.gov/ceppo.

SUPPLEMENTARY INFORMATION: The contents of the SUPPLEMENTARY

INFORMATION section of today's preamble are listed in the following

outline:

I. Who is Affected by This Rule?

II. What is the Statutory Authority for This Rule?

III. What is the Background of This Rulemaking?

IV. What Regulatory Changes is EPA Proposing in This Rule?

A. Principal Regulatory Changes

1. Higher Threshold Levels for Gasoline and Diesel Fuel at

Retail Gas Stations When Stored in Tanks Entirely Underground and in

Compliance With Underground Storage Tank Regulations

2. Relief From Routine Reporting for Substances With Minimal

Hazards and Minimal Risks Under EPCRA Sections 311 and 312

3. Relief From Routine Reporting for Sand, Gravel and Rock Salt

Under EPCRA Sections 311 and 312

B. Other Regulatory Changes

1. Reporting of Mixtures Under EPCRA Sections 311 and 312

2. Tier I and Tier II Inventory Forms and Instructions

3. Penalties for Noncompliance

4. Facility Identifier as a Tier I and Tier II Information

Requirement

5. Additional Changes to the Parts 355 and 370 Regulations

6. Definitions

V. What Draft Guidance is EPA Publishing in This Preamble?

A. Increased Flexibility for States and Local Governments With

Respect to Reporting Under EPCRA Sections 311 and 312

1. UST Forms to Fulfill the Requirements for Tier I Information

Under EPCRA Section 312

2. Partnership Programs for Joint Access to Information and

Streamlined Submission of EPCRA Sections 311 and 312 Reporting

3. Electronic Submittal for EPCRA Sections 311 and 312 Reporting

4. Incorporation of Previous Submissions Into EPCRA Section 312

Reporting

B. Electronic Access to Facilities' Databases of MSDSs

C. Interpretation of the Hazardous Chemical Exemption for Solids

Under EPCRA Section 311(e)(2)

D. EPCRA Section 312 Reporting to Fulfill Reporting Requirements

Under Section 311

E. Emergency Planning Notification

F. Emergency Release Notification

VI. What Else is Different About This Rule?

A. Plain English Format

B. Conversion Table

VII. Where are SERCs and LEPCs Listed?

VIII. Regulatory Analyses

A. Executive Order No. 12866

B. Regulatory Flexibility Act

C. Paperwork Reduction Act

D. Unfunded Mandates Reform Act

E. Environmental Justice

F. National Technology Transfer and Advancement Act

G. Executive Order No. 13045

I. Who Is Affected by This Rule?

Three general categories of entities are affected by this rule.

These three categories are industry, Federal government, and State and

local governments. Numerous entities within each general category are

regulated by

[[Page 31269]]

this rule. Regulated categories and entities include:

------------------------------------------------------------------------

Category Regulated entities

------------------------------------------------------------------------

Industry..................... Retail gasoline service stations,

Chemical storage and processing.

Federal Government........... Executive Order 12856 requires all

Federal agencies to comply with EPCRA.

State and Local Governments.. State Emergency Response Commissions

(SERCs) and Local Emergency Planning

Committees (LEPCs) receive the

information provided under EPCRA

sections 302, 304, 311 and 312. LEPCs

receive information provided under EPCRA

section 303. Fire departments receive

the information provided under EPCRA

sections 311 and 312. State/local

government facilities handling chemicals

may be subject to this regulation.

------------------------------------------------------------------------

This table is not intended to be exhaustive, but rather to provide

a guide for readers regulated by this action. To determine whether or

not your facility is regulated by this action, you should carefully

examine the sections in today's proposed rule explaining who must

comply with the rule. If you have questions regarding the applicability

of this action to a particular entity, consult one of the persons

listed in the preceding FOR FURTHER INFORMATION CONTACT section.

II. What Is the Statutory Authority for This Rule?

This proposed rule is issued under the Emergency Planning and

Community Right-To-Know Act of 1986 (EPCRA), which was enacted by Title

III of the Superfund Amendments and Reauthorization Act of 1986, (Pub.

L. 99-499). EPCRA established a program to encourage state and local

planning and preparedness for releases of extremely hazardous

substances, and to provide the public, local governments, fire

departments and other emergency officials with information concerning

chemical releases and the potential chemical risks in their

communities.

III. What Is the Background of This Rulemaking?

In 1986, EPCRA created requirements regarding planning and

preparedness for chemical emergencies, and public access to information

concerning potential chemical hazards. EPA established implementing

regulations at 40 CFR parts 355 and 370. Today EPA is proposing

modifications to several of the regulations that implement the

emergency planning, emergency release notification, and the hazardous

chemical community right-to-know portions of the EPCRA program (this

rulemaking does not effect the implementation of EPCRA section 313, 40

CFR part 372, in any way). The proposed revisions are intended to

reduce costs to individuals, businesses and other levels of government,

while continuing to achieve EPCRA's environmental goals. These changes

are proposed as part of EPA's ongoing efforts to streamline regulatory

requirements. In addition, EPA is proposing draft guidance that does

not involve regulatory revisions but explores flexible options to meet

the existing regulations. EPA also is proposing to rewrite the

emergency planning and hazardous chemical community right-to-know

portions of the EPCRA regulations in plain English, in order to reduce

regulatory burdens and improve compliance. Only the regulatory

revisions specifically discussed in part IV below involve substantive

changes to the existing rule. The rewrite of the existing regulations

in plain English is intended merely to restate the existing regulations

in a format that makes them easier to understand.

In 1990, section 112(r) of the amended Clean Air Act (CAA)

established requirements regarding the prevention and detection of

accidental releases of hazardous chemicals. The Risk Management Program

(RMP) established under those requirements, codified at 40 CFR part 68,

is an extension of the planning and preparedness programs established

under EPCRA. A specific facility may be subject to the RMP requirements

under CAA section 112(r) as well as the planning and preparedness

programs under EPCRA. EPA has considered the relationship between these

programs while developing today's proposed rule.

IV. What Regulatory Changes Is EPA Proposing in This Rule?

EPA seeks public comment on the specific regulatory revisions

addressed below. However, EPA is not reconsidering and is not seeking

public input on any other aspects of the existing regulations that are

not subject to substantive revision.

A. Principal Regulatory Changes

In today's proposed rulemaking, EPA is exploring innovative ways to

improve the efficiency of the reporting requirements under sections 311

and 312 of EPCRA, and provide regulatory relief, while continuing to

protect public health and the environment. This action is proposed as

part of EPA's ongoing efforts at regulatory reinvention. EPA based the

following proposed changes to the regulatory requirements on input from

various stakeholders including States and local emergency planning

committees (LEPCs), and on the experience gained through implementing

the EPCRA program at the Federal, State and local levels over the past

ten years.

The proposed regulatory changes are discussed below:

1. Higher Threshold Levels for Gasoline and Diesel Fuel at Retail Gas

Stations When Stored in Tanks Entirely Underground and in Compliance

With Underground Storage Tank Regulations

The reporting requirements under sections 311 and 312 of EPCRA are

intended to enhance communities' and emergency response officials'

awareness of chemical hazards, and to facilitate the development of

State and local emergency response plans, thereby aiding communities

and emergency response officials in preparing for and responding to

emergencies safely and effectively. EPA would like to achieve a sound

balance between the amount of information generated for the public

under sections 311 and 312, and the value of that information. In an

effort to streamline reporting requirements, EPA assessed the

usefulness and benefit of the information reported under sections 311

and 312 for various industries. EPA considered the input from

stakeholders in making this evaluation.

As described in more detail below, EPA is proposing to establish

higher reporting thresholds for gasoline and diesel fuel stored

underground at retail gas stations. Both sections 311(b) and 312(b) of

EPCRA give EPA general authority to establish threshold quantities for

hazardous chemicals below which reporting is not required. Both

statutory provisions also state that, in EPA's discretion, the

thresholds may be based on classes of chemicals or categories of

facilities. Thus, under the

[[Page 31270]]

statute, EPA's authority to establish thresholds includes but is not

limited to thresholds that are based on classes of chemicals or

categories of facilities. Congress broadly empowered EPA to establish

thresholds so that EPA could ``provide for the development of a

manageable program.'' H.R. Rep. No. 962, 99th Cong., 2d Sess. 1986

(Conf. Rpt.) reprinted in Senate Comm. on Environment and Public Works,

101st Cong., 2d Sess., A Legislative History of the Superfund

Amendments and Reauthorization Act of 1986 (Pub. L. 99-499), vol. 6 at

5104 (hereinafter ``Conference Report''). The legislative history also

calls for EPA, in establishing thresholds under section 312(b), to

``consider the degree to which the hazardous chemical, if released at

the facility, would endanger the health of individuals in the

community, including emergency response personnel.'' Conference Report

at 5104-5105.

EPA believes that gasoline and diesel fuel, when stored entirely

underground at retail gas stations, and in compliance with the

Underground Storage Tank (UST) regulations under 40 CFR part 280,

present a unique situation for which separate reporting thresholds

under EPCRA sections 311 and 312 are warranted. Factors contributing to

the uniqueness of this situation, and which EPA considered in

establishing the higher reporting thresholds, include the following.

(1) Community Right-to-Know

The public and local emergency officials are generally familiar

with the location of retail gas stations, are aware that these

facilities have gasoline and diesel fuel, and can typically discern the

general storage location of the gasoline and diesel fuel at the

facility. In fact, retail gas stations prominently advertise the

presence of gasoline and diesel fuel at their facilities, encourage the

public to come on site, and often permit the public to dispense the

gasoline and diesel fuel themselves. For example, the public can

readily determine the location of a retail gasoline station by looking

in the telephone books. Because the primary business of retail gasoline

stations includes the sale of gasoline and diesel fuel, the public can

be certain that a facility stores these substances without the need for

reporting under sections 311 and 312 of EPCRA. Thus, the community's

right-to-know about the presence of gasoline and diesel fuel at retail

gas stations is largely satisfied without routine reporting.

(2) Public Knowledge of Hazards

The public and local emergency officials generally are aware of the

hazards associated with gasoline and diesel fuel, so the community's

right-to-know about the hazards of those substances is also addressed

independent of routine reporting.

(3) Storage Entirely Underground

Retail gas stations typically store gasoline and diesel fuel in

tanks that are entirely underground, which generally mitigates the risk

of catastrophic release.

(4) Subject to UST Regulations

Underground storage tanks are regulated under the Resource

Conservation and Recovery Act (RCRA), so a comprehensive regulatory

program is in place that establishes standards for the safe performance

and operation of USTs. Additionally, retail gas stations provide

notification of their gasoline and diesel fuel under the UST program.

EPA believes that each of these four factors alone wouldn't

necessarily warrant separate reporting thresholds, but that in

combination these factors present a unique situation for gasoline and

diesel fuel in this industry category. Considering these factors

together, EPA believes that excluding retail gas stations from the

requirement to report material safety data sheets (MSDSs) and annual

Tier I information for gasoline and diesel fuel (when held in typical

amounts in tanks that are entirely underground, and in compliance with

the UST regulations) will promote a more manageable EPCRA program while

still protecting the public health and safety of individuals in the

community and emergency response officials. EPA acknowledges that

gasoline and diesel fuel are flammable and toxic, and that they have

the potential to pose a hazard to the community including emergency

responders. However, for the reasons stated above, EPA believes that

these substances need not be routinely reported under EPCRA when stored

in tanks entirely underground in typical amounts and in compliance with

the UST regulations, at retail gas stations.

Consequently, in today's rule EPA is proposing to raise the

reporting threshold with respect to sections 311 and 312 of EPCRA, for

gasoline and diesel fuel when stored entirely underground and in

compliance with the UST regulations, at retail gas stations in typical

amounts. EPA's intent is to establish new thresholds corresponding to

amounts just higher than the typical total amounts of gasoline and

diesel fuel held at retail gas stations, so that facilities with

typical capacities would be relieved from reporting. EPA's intent is to

set the thresholds at the upper bound of the amounts typically stored

at retail gas stations, so that facilities with greater than typical

capacities would not be relieved from routine reporting. EPA believes

that the public and emergency officials would generally be aware of the

quantity stored at typical gas stations, but might not be aware of the

amount stored at facilities with above normal inventories.

The reporting thresholds that EPA is proposing are 75,000 gallons

for all grades of gasoline combined, and 100,000 gallons for diesel

fuel, when held in tanks that are entirely underground and in

compliance with the UST regulations, at retail gas stations. EPA based

these proposed thresholds on information provided by the Service

Station Dealers of America, the Society of Independent Gas Marketers of

America, and the Petroleum Equipment Institute. A discussion of the

basis for these proposed thresholds is found in a technical memo that

you can review at the CERCLA Docket Office, in docket number 300RR-IF1

(for the address of the docket office, see the ADDRESSES section in

this preamble). For the minority of retail gas stations where gasoline

or diesel fuel are not stored entirely underground, the existing

reporting threshold of 10,000 pounds would still apply. When gasoline

and diesel fuel are not stored entirely underground, the risk of

catastrophic release is not mitigated as it generally is when these

substances are stored entirely underground. Also, when not stored in

underground storage tanks, these substances aren't regulated under the

RCRA UST program.

The reporting thresholds that EPA is proposing today are intended

to provide relief from reporting gasoline and diesel fuel stored at the

great majority of retail gas stations, including truck stops. Retail

gas stations with unusually large inventories of gasoline or diesel

fuel would still be required to report. EPA is not intending to relieve

gasoline and diesel fuel from reporting when stored at facilities other

than retail gas stations, or when stored above ground at retail gas

stations, or when stored in amounts in excess of an amount typically

found at retail gas stations.

Under this proposal, retail gas stations using underground tank

systems that do not comply with EPA's UST regulations under 40 CFR part

280 (53 FR 37082) would be subject to the current threshold of 10,000

pounds for gasoline and diesel fuel. Part 280 includes requirements for

UST system design,

[[Page 31271]]

construction, installation, operation, release detection, release

reporting, corrective action and financial responsibility. As of

December 23, 1998, part 280 will also require all UST systems to meet

certain requirements for corrosion protection and spill and overfill

prevention. Gasoline and diesel fuel stored in underground tank systems

that are not in compliance with the UST regulations would not be

eligible for the higher threshold proposed today, because the Agency

believes that they continue to pose a significant risk of release,

contamination of soil and ground water, seepage of vapors into

underground areas, and even fire and explosions. The Agency believes

that the large majority of retail facilities will be subject to the

higher thresholds in today's proposed rule, because they meet the

current UST system requirements and will meet those in effect as of

December 23, 1998.

The proposed thresholds are presented in gallons, instead of pounds

like the existing reporting thresholds under current 40 CFR part 370.

The existing reporting thresholds apply to solids, liquids and gases,

therefore the reporting threshold is in pounds in order to provide a

consistent measure for all three phases. However, because gasoline and

diesel fuel are liquids, EPA believes that facilities measure their

stock of gasoline and diesel fuel in gallons, not in pounds. In

addition, the densities of gasoline and diesel fuel vary with

temperature, grade, and time of year, so volume is a more reasonable

measure for establishing threshold quantities for these substances. EPA

requests public comment on setting the proposed thresholds in gallons

instead of pounds, and whether this would create confusion because the

other thresholds under part 370 are in pounds.

EPA also seeks public comment on its rationale for proposing to

raise the reporting thresholds for gasoline and diesel fuel stored

entirely underground, and in compliance with the UST regulations, at

retail gas stations. Additionally, EPA requests comments on the

suitability of the proposed thresholds. As noted, EPA's intent is to

establish thresholds corresponding to amounts just higher than the

typical total amounts of gasoline and diesel fuel held at retail gas

stations. EPA seeks comment on whether this approach is appropriate for

this rule, and whether the proposed amounts accurately reflect this

approach.

While this proposed regulatory change is intended to generally

provide relief from reporting MSDSs under EPCRA section 311 and annual

Tier I inventory information under EPCRA section 312, public access to

MSDSs and Tier II inventory information regarding gasoline and diesel

fuel of any quantity would be preserved in specific circumstances

because the threshold for reporting in response to a request for

information (by State or local officials) would remain zero. Section

370.21(d) of the existing rule requires that MSDSs be provided upon

request of the LEPC, and section 370.25(c) requires that Tier II

information be provided upon request of the SERC, LEPC, or fire

department with jurisdiction over a facility. Section 370.20(b)(3) in

the existing rule provides that the minimum reporting threshold for

reporting in response to a request is zero. In other words, a facility

with gasoline or diesel fuel of any quantity would continue to be

required to provide this information upon request. However, under EPCRA

section 312(e)(3)(C), and section 370.61(a) of today's proposed

regulations, if a person submits a request to a SERC or LEPC for Tier

II information regarding a hazardous chemical that a facility doesn't

store in excess of 10,000 pounds, and the SERC or LEPC does not have

the Tier II information in its possession, then the person making the

request must indicate the general need for the information; the SERC or

LEPC, as the case may be, has discretion in deciding whether to request

that information from the facility. In today's proposed rule the zero

reporting threshold for reporting in response to requests for an MSDS

or Tier II information is retained, and is found in proposed section

370.10(b). In addition, States and local governments always may choose

to establish lower thresholds under State or local law.

The terms ``gasoline'' and ``diesel fuel'' have been used without

definition in today's proposed rulemaking, because EPA believes that

the meanings of these terms are understood by the general public. It is

EPA's intention to raise the reporting thresholds under sections 311

and 312 of EPCRA for gasoline and diesel fuel, but not for any other

hydrocarbon mixtures (e.g., aviation fuel). Comments are requested

concerning whether EPA should define gasoline and diesel fuel, in order

to clarify that other types of hydrocarbon mixtures aren't subject to

the higher thresholds. EPA also seeks suggestions for technical

definitions of gasoline and diesel fuel.

The proposed regulatory text reflecting the establishment of higher

thresholds for gasoline and diesel fuel when stored entirely

underground at retail gas stations is located in section 370.10(a)(2)

of today's rulemaking. Within that proposed section, the term ``retail

gas station'' has been defined as a retail gasoline facility

principally engaged in selling gasoline to the public, and convenience

stores engaged in selling gasoline to the public, for purposes of 40

CFR part 370 regulations implementing EPCRA sections 311 and 312.

EPA proposes to raise the reporting threshold for gasoline and

diesel fuel at retail gas stations when held in tanks that are entirely

underground. EPA has chosen to use the phrase ``entirely underground''

instead of ``underground storage tank'' (UST) to establish

applicability of the proposed thresholds because, under RCRA, UST has a

specific meaning that includes tanks with a significant portion of

their volume above ground. USTs include tanks, the volume of which

(including the volume of underground pipes connected thereto) is 10

percent or more beneath the surface of the ground. In today's proposal,

EPA intends the proposed reporting thresholds to apply only to storage

in tanks that are entirely underground, which generally mitigates the

risk of catastrophic release.

EPA has had discussions with various stakeholders regarding the

establishment of a higher reporting threshold for gasoline at retail

gas stations. During those discussions, some State and local entities

expressed a desire to continue to receive information on gasoline at

retail gas stations, and a concern that they would not be able to get

the information if it were not required under Federal regulations. EPA

would like to know if these concerns are widespread among State and

local governments. In addition, EPA seeks comments from SERCs, LEPCs

and fire departments on whether the information on gasoline and diesel

fuel at retail gas stations received under sections 311 and 312 is

useful to them, and if so, how it is used. Some State entities have

also expressed concern that raising the reporting threshold for

gasoline and diesel fuel at retail gas stations may trigger other

industries to request higher thresholds. As discussed above, EPA

believes that gasoline and diesel fuel, when stored entirely

underground and in compliance with the UST regulations, at retail gas

stations, present a unique situation for which a higher reporting

threshold is warranted.

EPA understands that some States generate funds for support of

their EPCRA programs through fees collected from facilities that comply

with section 312. Such States may oppose raising the thresholds for

gasoline and diesel fuel, as proposed in today's rulemaking,

[[Page 31272]]

because of the potential for loss of revenue. EPCRA does not provide

for annual Federal funds for State implementation of the EPCRA program.

However, some Federal funds are available through EPA grants, or

through other Federal agencies, to support emergency planning and

community right-to-know programs (e.g., Hazardous Materials Emergency

Preparedness Grants administered through the Department of

Transportation). In addition, States that want to retain a fee system

that includes retail gasoline stations could choose to establish lower

thresholds for gasoline and diesel fuel under State law. EPA currently

believes that routine reporting of gasoline and diesel fuel at retail

gas stations, when stored entirely underground and in compliance with

the UST regulations, is not necessary nationwide. The Agency further

believes that the generation of fees is not sufficient justification

for requiring such reporting, and will not consider State fee

generation in its decision on whether or not to raise the reporting

threshold for gasoline and diesel fuel at retail gas stations.

EPA is soliciting comments on these proposed regulatory changes,

and on EPA's rationale for the changes. The idea of relieving retail

gas stations from routinely reporting gasoline and diesel fuel under

EPCRA sections 311 and 312 came from the suggestions of stakeholders,

including the U.S. Small Business Administration (SBA). EPA would like

to know whether there is general support among stakeholders and the

public regarding this issue. EPA has included a June 18, 1995 letter

from the Chief Counsel for Advocacy at SBA, related letters, and a

contractor report prepared for the Office of Advocacy that discusses

various regulatory alternatives for providing paperwork relief to

retail gas stations, in the CERCLA Docket Office (Docket No. 300RR-IF-

1).

EPA also seeks comment on whether or not it would be useful to

provide a specific industry classification code (or codes) to help

describe the universe of facilities to which the proposed higher

threshold for gasoline and diesel fuel would apply. In addition, EPA

seeks comments regarding whether it would be more helpful to provide a

Standard Industrial Classification (SIC) code, or a North American

Industry Classification System (NAICS) code, or both types of codes.

NAICS is a new economic classification system that replaces the 1987

SIC system. On April 9, 1997, the Office of Management and Budget

published a document in the Federal Register (62 FR 17288) regarding

the replacement of the 1987 SIC by the 1997 NAICS.

EPA believes that it can best serve the public by requiring a

manageable quantity of reporting data, which can be supplemented by

requests for additional information and the imposition of lower State

or local thresholds when appropriate. EPA's objective is to find a

sound balance between the amount of information collected, and the

public benefit served by the information. In developing this proposal,

EPA considered whether any chemicals or facilities, in addition to

gasoline and diesel fuel at retail gas stations, should be relieved of

routine reporting under sections 311 and 312 of EPCRA. EPA applied the

same four factors discussed earlier in this section to other chemicals

and facilities. For example, EPA applied the four factors to propane

retailers and determined that these entities do not meet the factors

necessary to warrant higher thresholds:

Propane--EPA considered whether the reporting threshold

for propane at propane retailers should be raised in a similar manner

as for gasoline and diesel fuel at retail gas stations. From the

perspective of community right-to-know (factor 1), the Agency believes

the public and emergency officials are less familiar with the locations

of propane retailers, and with propane itself and the associated

hazards (factor 2), than the public and emergency officials are with

gasoline and diesel fuel. EPA believes that propane is not generally

stored entirely underground (factor 3), and also is not regulated by

the UST program under RCRA (factor 4). Based on the application of the

four factors to propane retailers, EPA believes that raising the

reporting threshold under sections 311 and 312 for propane at propane

retailers would not be protective of public health and the environment,

and would not be consistent with the fundamental purposes of EPCRA.

EPA found that several other types of facilities presented

situations similar to retail gasoline stations. At this time, however,

the Agency does not believe the following facilities meet the community

right-to-know criteria (factor 1) for inclusion into this higher

reporting threshold because the public and emergency officials are

generally less familiar with the location of these facilities, and may

not know whether and where any particular facility stores gasoline and

diesel fuel. Based on this belief, EPA is not proposing to raise the

reporting threshold for the following entities. However, the Agency is

requesting comment on whether communities nationwide are in fact aware

of the location of these facilities and whether they store gasoline and

diesel fuel, and whether or not it would be appropriate to raise the

threshold for the following types of facilities.

Motor pools, van and bus lines, rental car facilities and

other vehicle fleets--EPA considered whether the proposed higher

reporting thresholds for gasoline and diesel fuel should apply to other

facilities that store gasoline or diesel fuel, such as motor pools, van

and bus lines, rental car facilities and other vehicle fleets. These

types of facilities don't retail gasoline or diesel fuel, and not all

of them have gasoline and diesel fuel. The public and local emergency

officials may not be aware of the presence of gasoline or diesel fuel

at these types of facilities and may not readily recognize these

facilities as potentially containing hazardous chemicals (factor 1). As

with retail gasoline stations, however, the public and emergency

officials are generally aware of the hazards of gasoline and diesel

(factor 2). Also, these types of facilities generally store the

chemicals entirely underground (factor 3) and the underground tanks are

subject to UST (factor 4). Nonetheless, these facilities do not

distribute gasoline and diesel fuel in a retail manner, the public may

not have access to these facilities, and the public is less likely to

know the location of these chemicals at these facilities. Because EPA

does not currently believe that these facilities meet factor 1, EPA is

not proposing to raise the reporting thresholds for gasoline and diesel

fuel at motor pools, van and bus lines, rental car facilities and other

vehicle fleets at this time.

Marinas--EPA also applied the factors to determine whether

the proposed higher reporting thresholds for gasoline and diesel fuel

should apply to marinas. Unlike retail gasoline stations, not all

marinas have gasoline. Therefore, as with the other types of facilities

discussed above, the public and local emergency officials may not be

aware of the presence of gasoline or diesel fuel at these types of

facilities or as readily recognize them as potentially containing

hazardous chemicals (factor 1). However, like gas stations, marinas

that store gasoline generally retail it to boat owners at pumps

accessible to the public. As with retail gasoline stations, the public

and emergency officials are generally aware of the hazards of gasoline

and diesel fuel (factor 2). Also, like retail gasoline stations,

marinas can store the gasoline and diesel fuel underground (factor 3)

and would be subject to UST regulations (factor 4). The Agency however,

is not proposing to raise the reporting threshold for

[[Page 31273]]

gasoline and diesel fuel when stored at marinas, at this time. Because

the public and emergency officials may not be aware of whether or not a

marina stores gasoline, the Agency believes continued reporting is

warranted.

EPA will consider all comments received regarding alternate

reporting thresholds for marinas, motor pools, van and bus lines, and

rental car facilities. EPA believes that public comment could reveal

that the public and emergency officials nationwide are aware of the

presence and location of gasoline and diesel at some or all of these

types of facilities, as at retail gas stations. If the public comments

are conclusive that such types of facilities meet the community right-

to-know criteria (factor 1), EPA may decide to add these facilities to

the final rule or issue a supplementary notice with additional

information and opportunity for public comment before making a final

decision.

Should EPA find, based on public comment, that the public and

emergency officials are aware of the presence of gasoline and diesel

fuel at these other facilities discussed here, and decide to raise

reporting thresholds for such facilities, the Agency would list the

specific types of facilities in the regulation, with appropriate

threshold levels. If EPA were to raise the reporting thresholds for

such facilities, the threshold levels would be based upon the

quantities of gasoline and diesel fuel that are routinely stored at

these facilities, so that facilities with typical capacities would be

relieved from reporting. EPA believes that the public and emergency

officials would not be aware of the amount stored at facilities with

above normal inventories, even if they were aware of the presence of

gasoline and diesel fuel at such facilities. EPA seeks data that would

assist it to determine the quantities routinely stored at such

facilities, and also on whether quantities routinely stored would be

the appropriate standards for use in establishing alternate thresholds.

Were EPA to set an alternative threshold for such facilities for

reporting of MSDSs under EPCRA section 311 and annual Tier I

information under EPCRA section 312, EPA would still preserve public

access to MSDSs and Tier II information in specific circumstances by

retaining a reporting threshold of zero for response to a request for

information by state or local officials, just as it is currently

proposing to do for retail gas stations.

2. Relief From Routine Reporting Requirements for Substances With

Minimal Hazards and Minimal Risks Under EPCRA Sections 311 and 312

A substance is subject to reporting under EPCRA sections 311 and

312 if OSHA's hazard communication standard, codified at 29 CFR

1910.1200, requires the owner or operator of a facility to prepare or

have available an MSDS for that substance. See EPCRA sections 311(a)(1)

and 312(a)(1). OSHA's hazard communication standard is designed to

promote worker safety and health; the requirements of that standard are

applicable to any hazardous chemical that is known to be present in the

workplace in such a manner that employees may be exposed under normal

conditions of use or in a foreseeable emergency. The definition of

hazardous chemical under OSHA's hazard communication standard is very

broad, and includes any chemical which is a physical hazard or a health

hazard (29 CFR 1910.1200(c)).

EPA believes that certain substances that may present a physical or

health risk to employees in the workplace, and are therefore considered

to be hazardous chemicals and subject to OSHA's hazard communication

standard, may have minimal inherent hazards and may not, depending upon

the circumstances, present a significant risk to the health of

individuals in the community, to emergency responders on-site, or to

the environment. Such substances, although important under OSHA, are

not generally of regulatory significance under EPCRA sections 311 and

312. The reporting requirements under sections 311 and 312 are intended

to enhance communities' and emergency response officials' awareness of

chemical hazards, to facilitate the development of State and local

emergency response plans, and to aid communities and emergency response

officials in preparing for and responding to emergencies safely and

effectively. Although hazardous chemical reporting under EPCRA sections

311 and 312 is not intended to duplicate the role that OSHA's hazard

communication standard has of protecting worker safety, it is intended

to extend the worker safety protection provided under OSHA to emergency

response officials. As described below, EPA proposes to provide

reporting relief for substances that are not of regulatory significance

under EPCRA, using the Agency's authority to establish reporting

thresholds. Under this proposal, relief from routine reporting means

that facilities would not need to report MSDS and inventory

information, except for reporting in response to requests for

information (the requirements for reporting in response to requests are

discussed further below). EPA intends to accomplish relief from routine

reporting by establishing infinite threshold levels for these

substances.

The current threshold levels for reporting under EPCRA sections 311

and 312 are 500 pounds (or the threshold planning quantity (TPQ),

whichever is lower) for extremely hazardous substances (EHSs), and

10,000 pounds for other hazardous chemicals. In the preamble to the

proposed rule to set these threshold levels, EPA stated that the Agency

``would have liked to establish risk-based reporting thresholds that

take into consideration the hazards posed by the chemicals, the

potential for a significant release, and the potential exposure of

surrounding populations'' (54 FR 12994, March 29, 1989). However,

because of the tens of thousands of hazardous chemicals covered under

sections 311 and 312, ``a chemical-specific approach simply was not

feasible.'' In today's proposed rule, EPA is reconsidering this

approach for chemicals that are OSHA hazardous chemicals because of the

way they are used in the workplace (and their potential for worker

exposure) but have minimal inherent hazards and present minimal

physical or health risks to individuals in the community and emergency

response personnel on-site, and present minimal risks to the

environment. EPA is seeking public comment on potential approaches to

raise the reporting threshold or otherwise reduce the reporting burden

for these chemicals that have minimal inherent hazards and pose minimal

risks under the EPCRA sections 311 and 312 program.

EPCRA empowers EPA to establish reporting thresholds under sections

311 and 312 of EPCRA. Both sections 311(b) and 312(b) of EPCRA give EPA

broad authority to establish threshold quantities for hazardous

chemicals below which reporting is not required. Both statutory

provisions also state that, in EPA's discretion, the thresholds may be

based on classes of chemicals or categories of facilities. Thus, under

the statute EPA's authority to establish thresholds includes, but is

not limited to, thresholds that are based on classes of chemicals or

categories of facilities. As noted previously, Congress broadly

empowered EPA to establish thresholds so that EPA could ``provide for

the development of a manageable program.'' Conference Report at 5104.

The legislative history also calls for EPA, in establishing thresholds

under section 312(b) to ``consider the degree to which the hazardous

chemical, if released at

[[Page 31274]]

the facility, would endanger the health of individuals in the

community, including emergency response personnel.'' Conference Report

at 5104-5105.

EPA is proposing to establish an infinite threshold level for the

class of chemicals with minimal inherent hazards, and presenting

minimal risks, under the EPCRA sections 311 and 312 program (an

infinite threshold level means a threshold level so great that, no

matter what amount is present at a facility, the amount present is less

than the threshold level). At the same time, the Agency believes that

the local community is best situated to make judgments about the level

of risk presented in site-specific circumstances. Thus, EPA is

proposing to establish specific criteria governing the class of

substances that may qualify for an infinite threshold. With this

approach, EPA is endeavoring to promote decision-making about

information routinely reported under EPCRA sections 311 and 312, based

on community specific concerns. EPA seeks public comment on this

proposal, and also requests other suggestions for ways to bridge

community-based judgments about the level of risk presented by

substances in specific circumstances, with EPA's authority to establish

thresholds.

EPA proposes the establishment of an infinite threshold level for

the class of chemicals with minimal inherent hazards and presenting

minimal risks under the EPCRA sections 311 and 312 program. The

criteria for determining whether a substance may, under certain

circumstances, be included within this class of chemicals would govern

whether individual substances are assigned an infinite threshold level

and therefore not subject to routine reporting under EPCRA sections 311

and 312. EPA proposes to relieve this class of substances from routine

reporting under EPCRA sections 311 and 312 in only those cases where

the specific conditions warrant such relief.

The proposed threshold is as follows. A hazardous chemical would be

deemed to have a minimal hazard and present a minimal risk under the

EPCRA sections 311 and 312 program, and the owner or operator would be

relieved from the routine reporting requirements under these

provisions, if the chemical meets each of the following criteria:

(1) The chemical has a minimal inherent hazard and presents a

minimal physical or health risk, to individuals in the community beyond

the site or sites on which the facility is located, and to emergency

responders on-site, under normal conditions of production, use, or

storage, or in a foreseeable emergency.

(2) The chemical has a minimal inherent hazard and presents a

minimal risk, to the environment beyond the site or sites on which the

facility containing the chemical is located.

(3) The SERC, the LEPC and the fire department with jurisdiction

over the facility have been notified of the facility's assessment

regarding a chemical that has a minimal inherent hazard and presents a

minimal risk. (The proposed requirements for notification are discussed

further below.)

In today's proposed regulation, paragraph 370.10(a)(2)(v) provides

that, for any chemical meeting the specific criteria for minimal

inherent hazards and minimal risks under proposed section 370.11, the

threshold level is infinite. Proposed section 370.11 provides the

criteria that must be met for a hazardous chemical to qualify for the

proposed infinite threshold level, including the proposed requirements

for notification to the SERC, the LEPC and the fire department.

It is important to note that, under today's proposed rule, the

following substances do not qualify for the infinite threshold level:

substances that are listed as Extremely Hazardous Substances (EHSs)

under EPCRA section 302 (40 CFR part 355); regulated substances under

the Clean Air Act (CAA) Risk Management Program (RMP) (40 CFR part 68);

hazardous substances under the Comprehensive Environmental Response,

Compensation, and Liability Act of 1980 (CERCLA) (40 CFR part 302);

toxic chemicals under the toxic chemical release reporting requirements

of EPCRA section 313 (40 CFR part 372). See proposed paragraph

370.11(a). Substances that are covered under these other programs are

regulated because of the significant hazards they present; so such

substances could not meet the proposed criteria for minimal hazards.

EPA seeks public comment on these or any other lists of regulated

substances that should be categorically excluded from the proposed

class of chemicals with minimal inherent hazards and presenting minimal

risks, under the EPCRA sections 311 and 312 program.

The application of the proposed infinite threshold depends on the

conditions of a particular substance at a particular facility. The

level of risk associated with a substance depends on a variety of

chemical and facility-specific factors, including the identity of the

substance involved and the nature of the facility. A substance may meet

the proposed criteria for an infinite threshold at a particular

facility, due to the relevant circumstances at that facility, but may

not meet the criteria at a different facility.

The infinite threshold level proposed today could only apply to

substances that have a minimal inherent hazard. EPA doesn't intend the

proposed threshold to apply to any substance that, because of its

inherent hazards, could present a significant risk to emergency

responders at a facility (or to the surrounding community or

environment) in the event of a release. Examples of substances which

might be covered by the proposed infinite threshold may include

substances that are OSHA hazardous chemicals solely because of an

irritation hazard only to employees regularly exposed in the workplace,

but for which there is no other acute health hazard.

Implementation of the proposed infinite threshold would be

optional--any facility owner or operator would have a choice whether to

make an assessment regarding a hazardous chemical present at their

facility. Upon making an assessment that a hazardous chemical met the

criteria for the infinite threshold level, a facility owner or operator

would notify the SERC, the LEPC and the local fire department of such

assessment, the name of the chemical, and any conditions relevant to

the assessment. Any facility owner or operator may choose not to make

use of the proposed threshold for any hazardous chemicals at their

facility, in which case they would continue to routinely report all

covered hazardous chemicals present at their facility above threshold

levels.

EPA is considering several options regarding the notification

requirements associated with this relief from routine reporting

requirements. In weighing each option, EPA will need to consider the

requirements associated with each notification option, any burden to

government entities and industry associated with each option, and the

government entities' ability to ensure that they continue to receive

information that they believe is necessary. While the proposed

regulatory text includes only one of these options, based on this

document and opportunity for public comment, EPA may, in the final

rulemaking action, choose to promulgate any combination of the proposed

options discussed below. EPA seeks comments on all of the notification

options discussed below.

In today's document, EPA proposes that any facility owner or

operator that makes an assessment that a specific substance meets the

infinite threshold

[[Page 31275]]

criteria notify the SERC, the LEPC, and the local fire department with

jurisdiction over the facility (see proposed section 370.11(b)(1)). The

SERC, the LEPC or the local fire department may request additional

information on the basis of the assessment or otherwise question the

assessment. The required notification must include the name of the

chemical for which an assessment has been made and any conditions

relevant to that assessment. EPA recommends, but does not require, this

notification be in writing. If a facility owner or operator makes an

assessment, but fails to follow the required notification procedures,

the substance in question would not qualify for the proposed infinite

threshold--such a substance would continue to be subject to routine

reporting. The notification need only be made once (not annually),

provided that there are no changes in the conditions of that substance

at the facility that might affect whether the substance continues to

meet the proposed criteria. Requirements for re-notification due to a

change in conditions are discussed further below.

In the paragraph above, EPA has stated that the notification of a

facility's assessment regarding a hazardous chemical would not have to

be in writing. Another option would be to require that such

notification be in writing. EPA could also require, as part of the

notification, that the facility provide a brief description of why a

chemical meets the criteria for minimal hazard/minimal risk chemicals.

EPA requests comment on the contents of the notification, as well as on

whether or not EPA should require the notification be in writing.

The proposed notification requirement imposes a minimal burden to

qualify for relief from routine reporting. This option does not require

EPA, the SERC, the LEPC or the fire department to review the facility's

assessment. However, EPA, the SERC, the LEPC or the fire department may

evaluate the assessment and may contact the facility to discuss the

assessment at any time. In addition, EPA and these three other

governmental entities may bring enforcement and/or civil actions if a

facility uses the infinite threshold for a hazardous chemical that does

not meet the proposed criteria.

Another option would include requiring a notice of acceptance from

the SERC, the LEPC and local fire department before a facility could

apply the proposed infinite threshold level. In this case, the infinite

threshold would apply only for reporting to an entity that has accepted

the assessment. Therefore, if a facility owner or operator does not

receive notice of acceptance from the SERC, the LEPC or the fire

department, the facility's assessment has effectively been rejected,

and the infinite threshold level does not apply to the hazardous

chemical in question (for purposes of reporting to any entity that has

not accepted the determination). If a SERC, LEPC, or fire department

did not notify a facility that its assessment regarding a specific

substance had been accepted, but the facility owner or operator failed

to report the substance as required under sections 311 and 312 and the

implementing regulations (that is, they failed to comply with the

routine reporting requirements and did their reporting as if that

substance was subject to an infinite threshold level), such a facility

could be subject to an enforcement action.

SERCs, LEPCs and local fire departments each evaluate, and set

priorities for, emergency planning and hazardous chemical community

right-to-know under EPCRA sections 311 and 312, and may have their own

information needs. Thus, one entity may agree with the facility owner

or operator that the threshold properly applies, and another entity may

disagree. Because each SERC, LEPC or local fire department would have

discretion concerning the acceptance or rejection of facilities'

assessments regarding specific OSHA hazardous chemicals, a particular

quantity of a specific substance might be reportable at one facility,

and not reportable at another facility.

In addition, the SERC, the LEPC or the local fire department might

choose to accept the facility's assessment, but only under specific

conditions. Thus, the facility owner or operator, the SERC, the LEPC,

or the local fire department might each establish conditions under

which a specific substance is covered by the proposed infinite

threshold. Some examples of conditions on the use of the proposed

infinite threshold could include: type of storage vessel, or whether

stored aboveground or underground.

Another option would be to allow the SERC, the LEPC, and the local

fire department to reject the facility's assessment. In this case, the

SERC, the LEPC, or the fire department would notify the facility only

if its assessment had not been accepted. The substance in question

would not be covered by the proposed infinite threshold for purposes of

reporting to that specific entity that rejected the assessment.

An additional option would require the facility to maintain the

records that served as the basis for the assessment. Under this option,

the facility would not have to notify the SERC, the LEPC and the local

fire department of its assessment. The facility, however, would need to

be able to produce the assessment records upon request.

The Agency is seeking comments on all of these notification

options. In the final rulemaking action, the Agency may promulgate any

option or combination of options proposed above.

A hazardous chemical would no longer qualify for the proposed

infinite threshold level if a change occurred that could affect whether

the chemical continued to meet the specific criteria under proposed

section 370.11. Such a substance would instead be subject to the usual

hazardous chemical reporting threshold (generally 10,000 pounds), and

would be routinely reported in accordance with EPCRA sections 311 and

312 and the implementing regulations. If the facility owner or operator

made an assessment that, under the changed conditions, the substance

met the specific criteria for minimal hazards and minimal risks, it

would be necessary to repeat the proposed notification procedures (see

proposed section 370.11(b)(3)). Until the notification requirements

were met, the chemical would need be routinely reported, based on the

applicable threshold level (generally 10,000 pounds).

While EPA intends, in this proposal, to provide relief from

reporting material safety data sheets (MSDSs) under EPCRA section 311

and annual Tier I inventory information under EPCRA section 312, public

access to MSDSs and Tier II inventory information regarding substances

fitting the proposed criteria would be preserved in specific

circumstances because the threshold for reporting in response to a

request for information (by a State or local official) would remain

zero. In other words, EPA is not proposing any changes to the existing

requirements under EPCRA regarding public access to hazardous chemical

information. These requirements are discussed in detail in part IV.A.1.

of this document. In addition, State and local governments always may

choose to establish lower thresholds under State or local law, if

appropriate.

EPA requests comments concerning the proposed infinite threshold

described here. EPA also requests comments regarding whether the

specific criteria proposed will achieve the goal of establishing a

class of substances that can be relieved from routine reporting burdens

without significant risk to the community including emergency response

[[Page 31276]]

personnel, and seeks suggestions regarding additional or different

criteria to achieve that goal.

EPA seeks comments on a number of issues regarding the

implementation and administration of the proposed threshold described

here. The one-time notification described above (with re-notification

if warranted by changes in conditions) is, in EPA's view, a less

burdensome requirement than the annual submission of information--EPA

requests public comment on whether such a notification would, in fact,

be less burdensome than annual reporting. EPA would also like to know

if SERCs, LEPCs and local fire departments would be concerned that the

burden placed on them to review and respond to such notifications would

be significant. EPA also seeks comment on imposing conditions on the

use of the proposed infinite threshold level. Additionally, EPA is

interested in public comment on whether there are any concerns over the

inconsistencies that may develop in reporting, since a specific

substance might be reportable at one facility, and not be reportable at

another facility, under this proposal.

In today's rulemaking, EPA is proposing the above approach to

provide relief for facilities from routinely reporting substances that

have minimal hazards, and present minimal risks to the community and to

emergency response personnel, and present minimal risks to the

environment. EPA is also exploring an alternative approach to achieve

that goal, and is seeking feedback on that alternative approach. Under

the alternative approach, any substance which was determined to have

minimal hazards and present minimal risks, using the proposed criteria

described above, would be put into a newly created subset of OSHA

hazardous chemicals that would be called Type 2 hazardous chemicals

under EPCRA. Type 2 hazardous chemicals would be subject to the same

reporting thresholds (generally 10,000 pounds), and reporting

deadlines, as all hazardous chemicals that are reportable under EPCRA

sections 311 and 312, but the information requirements under section

312 would be reduced. Under section 312 and the implementing

regulations, the maximum amount and average daily amount of hazardous

chemicals are to be reported in ranges. For Type 2 hazardous chemicals,

the reporting ranges would be much broader than the usual ranges. The

ranges would be so broad that, each year, the range reported for a Type

2 hazardous chemical would not likely change. In addition, a facility

owner or operator would be able to incorporate by reference information

previously reported on a Type 2 hazardous chemical, in the manner

described in part V.A.4 of this document. In other words, if the

information regarding a Type 2 hazardous chemical did not change from

year to year, it would not be necessary to report any new information

for that specific hazardous chemical. It would, however, be necessary

to report that the information submitted the prior year for that

hazardous chemical was incorporated by reference into the current

report. A detailed discussion on the concept of incorporation by

reference, including issues and concerns, is found in part V.A.4 of

this preamble. In order to report a Type 2 hazardous chemical, a

facility owner or operator would need to provide notice to the SERC,

the LEPC and the local fire department of their assessment that a

hazardous chemical was of Type 2. The notice requirement might be

satisfied by providing a brief explanation, when submitting inventory

information under section 312, of the minimal inherent hazards

associated with a specific substance, and of the conditions under which

that substance presents minimal risks. EPA will review the public

comments received regarding this alternative approach, and may consider

publishing a supplemental proposal if this approach is feasible.

In today's document, EPA seeks to relieve facilities from routine

reporting of substances that are not generally relevant for the

hazardous chemical community right-to-know and emergency planning

purposes of EPCRA sections 311 and 312, but that are considered

hazardous chemicals under OSHA because of the way they are used in the

workplace. While EPA's goal is to relieve facilities from routine

reporting of information that is not useful to the community, EPA does

not intend to compromise communities' right-to-know. EPA intends, in

this proposal, to achieve this goal in a manner that is reasonable and

also consistent with the requirements under the EPCRA statute. EPA

seeks public comments on the feasibility of the various alternatives

discussed here, and also seeks suggestions on any other ways that this

goal may be achieved.

3. Relief From Routine Reporting for Sand, Gravel and Rock Salt Under

EPCRA Sections 311 and 312

As discussed above, a substance is subject to EPCRA sections 311

and 312 if OSHA's hazard communication standard, codified at 29 CFR

1910.1200, requires the owner or operator of a facility to prepare or

have available an MSDS for that substance. OSHA's hazard communication

standard is designed to protect worker safety, and the requirements of

that section are applicable to any hazardous chemical that is known to

be present in the workplace in such a manner that employees may be

exposed under normal conditions of use or in a foreseeable emergency.

The definition of hazardous chemical under OSHA is very broad. EPA

believes that certain substances that may present a physical or health

hazard to employees in the workplace (and are therefore considered to

be hazardous chemicals and subject to OSHA's hazard communication

standard) have minimal inherent hazards, and present minimal

environmental risks and minimal physical or health risks to the

community or to emergency responders on-site; therefore these

substances are not generally of regulatory significance under EPCRA

sections 311 and 312. Also, as discussed in the previous part of the

document, sections 311(b) and 312(b) of EPCRA allow EPA to establish

threshold quantities for hazardous chemicals below which no facility

needs to report (except in response to a request for information).

EPA believes that sand, gravel and rock salt, which may be

considered hazardous chemicals under OSHA's hazard communication

standard, have minimal inherent hazards and generally would not have

the potential to present significant risks to the community or to

emergency responders on-site, regardless of site-specific

circumstances, and are therefore not of regulatory significance under

EPCRA sections 311 and 312. Specifically, EPA believes that sand,

gravel and rock salt meet the following two criteria:

(1) Sand, gravel and rock salt have a minimal inherent hazard and

present a minimal physical or health risk, to individuals in the

community beyond the site or sites on which the facility is located,

and to emergency responders on-site, under normal conditions of

production, use, or storage, or in a foreseeable emergency.

(2) Sand, gravel and rock salt have a minimal inherent hazard and

present minimal risks, to the environment beyond the site or sites on

which the facility containing the chemical is located.

The threshold for reporting hazardous chemicals under EPCRA

sections 311 and 312 is currently 10,000 pounds for the majority of

substances. In today's rulemaking, EPA is proposing to establish an

infinite threshold level for sand, gravel and rock salt. An infinite

threshold level means that, regardless of

[[Page 31277]]

the amount of sand, gravel or rock salt present at a facility at any

one time, the amount would not trigger routine reporting under sections

311 and 312. Section 370.10(a)(2)(iv) in today's proposed rule contains

the proposed infinite threshold level for sand, gravel and rock salt.

Setting this infinite threshold level would not create an exemption

from reporting, however, because reporting would still be required in

response to a request. While EPA intends, in this proposal, to provide

relief from reporting material safety data sheets (MSDSs) under EPCRA

section 311 and annual Tier I inventory information under EPCRA section

312, public access to MSDSs and Tier II inventory information regarding

sand, gravel and rock salt would be preserved in specific circumstances

because the threshold for reporting in response to a request for

information (by a State or local official) would remain zero. In other

words, EPA is not proposing any changes to the existing requirements

under EPCRA regarding public access to hazardous chemical information.

The existing requirements are discussed in detail in part IV.A.1. of

this preamble, above. In addition, States and local governments always

may choose to establish lower thresholds under State or local law, if

appropriate.

A substance such as gravel or sand may be subject to OSHA's hazard

communication standard because, for example, of the hazard posed by

respirable dust. EPA understands that such dust may present a health

hazard to employees who are regularly exposed to it in the workplace.

However, EPA believes such dust would not pose an acute hazard to

emergency responders or to the surrounding community, so it is not of

regulatory significance under EPCRA sections 311 and 312. EPA would

like to achieve a sound balance between the amount of information

generated under sections 311 and 312, and the value of that

information. EPA believes that, although sand, gravel and rock salt may

fit OSHA's broad criteria for hazardous chemicals, they are not

generally relevant for the hazardous chemical community right-to-know

and emergency planning purposes of EPCRA.

EPA is interested in public comments addressing its belief that

sand, gravel and rock salt warrant infinite threshold levels to exclude

these substances from routine reporting under EPCRA sections 311 and

312. EPA seeks public input on any emergency situations in which any of

these three substances threatened the health or safety of emergency

response officials or the surrounding community. Additionally, EPA

requests public input regarding any other specific hazardous chemicals

that may also generally not warrant routine reporting under sections

311 and 312.

While EPA is proposing to generally relieve sand, gravel and rock

salt from being routinely reported under EPCRA sections 311 and 312,

EPA is also proposing in today's document to relieve other hazardous

chemicals from routine reporting in specific cases where the conditions

warrant such relief (see part IV.A.2 of this document, which is headed

``Relief From Routine Reporting Requirements for Substances With

Minimal Hazards and Minimal Risks Under EPCRA sections 311 and 312'').

EPA seeks public comment on whether sand, gravel and rock salt should,

in fact, be absolutely excluded from routine reporting as discussed

here, or whether these three substances should be treated on a case-by-

case basis, in the manner described in part IV.A.2 of this document.

B. Other Regulatory Changes

1. Reporting of Mixtures Under EPCRA Sections 311 and 312

In today's document, EPA is rewriting in plain English format the

current regulation for applying threshold quantities to mixtures and

reporting mixtures under EPCRA sections 311 and 312, and reorganizing

the regulation to improve understanding of the requirements (a detailed

discussion on plain English format is provided in part VI.A. of this

document). In the preamble discussion below, EPA also generally

explains the mixture requirements. Although the proposed regulation has

been rewritten and reorganized, the only substantive changes proposed

today to the existing mixture regulations are the four specific

regulatory revisions explained below. EPA seeks public comment on those

particular proposed regulatory revisions. EPA is not re-opening for

public comment any other provisions of the mixtures regulation

contained in today's document, as the regulation is a restatement of

the existing regulation in plain English format. However, EPA will

consider public comment on the limited issue of whether EPA, in

restating and reorganizing the existing regulatory requirements, has

inadvertently changed the meaning.

A facility is subject to sections 311 and 312 of EPCRA if the

facility must prepare or have available an MSDS for a hazardous

chemical under the Occupational Safety and Health Act (OSHA) and

regulations issued under that Act. The OSHA regulations allow that

MSDSs may provide hazard information on a mixture that contains

hazardous chemicals, or provide hazard information on the individual

hazardous chemical components of that mixture. For this reason,

facilities subject to EPCRA sections 311 and 312 might have MSDSs for

mixtures, or for individual hazardous chemical components of mixtures.

Therefore, the reporting requirements under sections 311 and 312 permit

the choice of reporting a mixture as the mixture itself or by its

hazardous chemical components.

EPCRA sections 311(a)(3) and 312(a)(3) contain the statutory

provisions for reporting on mixtures containing hazardous chemicals.

These provisions state that for a mixture of hazardous chemicals, a

facility may meet the reporting requirements of section 311 of EPCRA by

submitting an MSDS (or a list) for the mixture itself, or for each

hazardous chemical component in the mixture. Similarly, a facility may

meet the reporting requirements of section 312 by providing inventory

information for the mixture itself, or for each hazardous chemical

component of the mixture. If an MSDS (or listing) and inventory form

are submitted for a hazardous chemical which is a component of a

mixture (instead of for the mixture itself), and if more than one

mixture at a facility contains the same hazardous chemical, only one

MSDS (or one listing) and one entry on the inventory form is necessary

for that hazardous chemical.

In the current regulation, section 370.28 contains the requirements

for applying the reporting threshold to mixtures containing hazardous

chemicals, and for reporting such mixtures, under EPCRA sections 311

and 312. Section 370.14 in today's proposed regulation provides the

requirements for mixtures containing hazardous chemicals. The

regulatory language in proposed section 370.14 generally reiterates the

current regulation. However, four regulatory revisions are proposed,

and are discussed below.

In today's document, EPA proposes to present some of the more

complex aspects of the mixture requirements in table format (see

proposed section 370.14(b)). With the four exceptions identified below,

EPA is merely restating the existing regulatory requirements in an

improved format and is not re-opening the underlying regulations for

public comment (although EPA will consider public comment on the narrow

issue of whether it has accurately rewritten the existing regulations).

A detailed

[[Page 31278]]

comparison between the current regulation (existing section 370.28) and

the proposed regulation (proposed section 370.14) follows:

Section 370.28(a) in the current regulation provides that

the owner or operator of a facility may meet the requirements for MSDS

and Tier I information reporting for mixtures containing hazardous

chemicals by either (1) reporting with respect to each component in the

mixture that is a hazardous chemical, or (2) reporting with respect to

the mixture itself. In today's proposed regulation, section 370.14(a)

and the table in section 370.14(b) repeat this basic reporting option,

without substantive revision.

Section 370.28(a) in the existing regulation also provides

that, where practicable, the reporting of mixtures by a facility be

consistent for inventory reporting and MSDS reporting. The requirement

for consistent reporting is provided, without substantive change, in

proposed section 370.14(d) and is also reflected in the reporting

requirements in the proposed table at section 370.14(b). (The

requirements for consistent reporting are discussed below.)

Section 370.28(b)(1) in the current regulation provides

the requirements for calculating the quantity of a hazardous chemical

component present in a mixture, and proposed section 370.14(c) repeats

those requirements without substantive change.

Section 370.28(b)(2) in the existing regulation provides

that, if the reporting is on the mixture itself, the total quantity of

the mixture shall be reported. This is the first provision where EPA is

proposing a substantive regulatory revision for public comment.

Proposed section 370.14(a)(2) and the table in proposed section

370.14(b) in today's regulation provide the requirements for reporting

mixtures. Those proposed sections do not include reference to reporting

``the total quantity of the mixture,'' but instead cross-reference the

EPCRA sections 311 and 312 information requirements for reporting

elsewhere within the proposed regulation. The table in proposed section

370.14(b) directs the reader to proposed sections 370.30 and 370.40,

which provide the information requirements. EPA therefore believes it

is not necessary to retain the current regulatory language in section

370.28(b)(2) and requests public comment on the proposed deletion of

this provision.

Section 370.28(c)(1) in the existing regulation provides

EPA's requirements for applying threshold quantities to hazardous

chemicals that are EHSs, when they are components in mixtures. That

section provides that all quantities of an EHS present at a facility be

added together to determine if the reporting threshold has been equaled

or exceeded-- including the quantity present as a component in all

mixtures and all other quantities of the EHS at the facility. In

today's proposed regulation, the requirement to add together all

quantities of an EHS present at the facility when applying the

reporting threshold is provided in the table in proposed section

370.14(b) without substantive revision. However, one limited

substantive change is proposed to that requirement--language has been

added to clarify that, when determining the total quantity of an EHS

present at a facility, the quantity present in a mixture must be

included even if that particular mixture is also being applied as a

whole toward the threshold level for that mixture. This is the second

substantive regulatory revision that EPA is proposing to the mixture

regulations. EPA requests public comment on the substance of this

clarification.

Section 370.28(c)(2) in the existing regulation provides

that, when reporting an EHS that is a component of a mixture, the owner

or operator of a facility has the basic option to report either with

respect to each component in the mixture that is a hazardous chemical,

or with respect to the mixture itself. As noted, this option is

provided (for all hazardous chemicals including EHSs) without

substantive revision in proposed section 370.14(a) and the table in

proposed section 370.14(b).

Note that section 370.21(b) in the existing regulation

(which provides that facility owners or operators have the option to

submit a list of hazardous chemicals instead of submitting MSDSs), also

contains a provision on reporting of mixtures. Proposed section

370.30(a)(2), which contains the same provision that owners or

operators have the option to submit a list instead of MSDSs, does not

contain any provisions on reporting of mixtures because in today's

proposed rule the requirements for reporting mixtures are consolidated

in proposed section 370.14.

In today's regulation, the table in proposed section

370.14(b) specifies EPA's requirements for applying the threshold

quantity to a hazardous chemical component in a mixture, when the

hazardous chemical is not an EHS. Proposed section 370.14(b) provides

that the owner or operator of a facility may choose to either (1)

determine the total quantity of a (non-EHS) hazardous chemical

component present throughout the facility, by adding together the

quantity present as a component in all mixtures and all other

quantities of that hazardous chemical (including the quantity present

in a mixture even if that particular mixture is also being applied as a

whole toward the threshold level for that mixture), or (2) determine

the total quantity of the mixture itself present throughout the

facility. EPA proposes today to adopt regulatory revisions to clarify

these requirements for applying threshold quantities for mixtures

containing non-EHS hazardous chemicals, and requests comments on the

substance of this proposed regulatory revision. This is the third

substantive regulatory revision that EPA is proposing to the mixture

requirements today. This proposal is discussed further below.

EPA is also proposing to add regulatory language to

specify requirements for determining if a threshold amount of a non-EHS

hazardous chemical is present, when that chemical is present both by

itself and as a component in mixture(s). Proposed section 370.14(e)

provides that, if a non-EHS hazardous chemical is present at a facility

both by itself and as a component in mixture(s), the facility must

determine the total amount present to apply the threshold level. To

calculate this quantity, you must add together all quantities of the

hazardous chemical present at the facility, including the quantity

present in all mixtures. EPA proposes today to adopt this regulatory

revision, and requests comments on the substance of the revision. This

is the fourth substantive regulatory revision that EPA is proposing to

the mixture regulations today. This proposal is discussed further

below.

As discussed above, EPA is proposing regulatory revisions to

clarify the requirements for applying threshold quantities to mixtures

containing hazardous chemical components that are not EHSs, by adding

regulatory language in proposed section 370.14(b) that provides the

choice of either (1) determining the total quantity of a hazardous

chemical component present, or (2) determining the total quantity of

the mixture itself. Whenever you must apply a threshold to the total

quantity of a non-EHS hazardous chemical present at any one time, this

proposed revision clarifies that you can calculate either the total

quantity of the hazardous chemical component, or the total quantity of

the mixture (considering the mixture itself as the ``hazardous

chemical''). Both of these options to determine the quantity of a

hazardous chemical will result in a reasonably accurate reflection of

the total quantity of a non-EHS hazardous

[[Page 31279]]

chemical present at a facility at any one time--which is the amount to

which the threshold levels should be compared. The two options for

applying threshold quantities to mixtures containing non-EHS hazardous

chemical components are explained below:

Option (1) In this case, the total quantity of a non-EHS

hazardous chemical component is determined. To establish whether the

reporting threshold for that hazardous chemical component has been

exceeded, calculate the total quantity of that hazardous chemical

present throughout the facility at any one time, including as a

component in all mixtures (even in a mixture that will be separately

applied toward the threshold level for that mixture), and all other

quantities present. See Conference Report at 5105. Section 370.14(c)

in today's proposed regulation provides instructions for determining

the quantity of a non-EHS hazardous chemical component present in a

mixture. Compare the total quantity of that hazardous chemical to

the hazardous chemical reporting threshold (the reporting threshold

for all non-EHS hazardous chemicals is currently 10,000 pounds--

today EPA is proposing to change the thresholds for certain

circumstances, as discussed elsewhere in this preamble).

Option (2) In this case, the total quantity of the mixture

itself is determined. To establish whether the reporting threshold

for that mixture has been exceeded, calculate the total quantity of

that particular mixture present throughout the facility at any one

time. Compare the total quantity of that mixture to the hazardous

chemical reporting threshold.

As discussed above, EPA is also proposing regulatory revisions to

clearly establish that, if a particular non-EHS hazardous chemical is

present both by itself and as a component in mixture(s) at your

facility, you must determine the total quantity of the hazardous

chemical to see if it meets or exceeds the threshold. To determine the

total quantity of a hazardous chemical present, you must add together

all quantities of the hazardous chemical, including the quantity

present in all mixtures (even in a particular mixture that is being

applied separately toward the threshold level for that mixture). For

example, in the case of a manufacturer that produces or obtains benzene

and formulates 200 mixtures with the benzene, the threshold level would

apply to the total quantity of benzene at the facility, where some

benzene is still in bulk storage and some has been formulated into

mixtures. EPA understands that there has been confusion in the past

about EPA's requirements for applying threshold quantities when a non-

EHS hazardous chemical is present both by itself and as a component in

mixture(s). This regulatory revision clearly establishes a method of

calculating the quantity that will result in an accurate reflection of

the total quantity present at any one time--which is the amount to

which the threshold levels should be compared. Applying the threshold

to a non-EHS hazardous chemical component by itself without considering

its presence in mixtures will not completely reflect the amount of the

hazardous chemical present. Because you must already apply the

threshold to the hazardous chemical itself (when the hazardous chemical

is present both by itself and in mixtures), you can only do so

accurately by adding together all quantities of that hazardous chemical

present.

EPA has required that, where practicable, reporting for mixtures be

done consistently for both sections 311 and 312 of EPCRA (this

requirement is in section 370.28(a)(2) in the existing regulation). In

today's proposed regulation, section 370.14(d) similarly states,

without substantive revisions, that for each specific mixture,

reporting must be done consistently for both sections 311 and 312, ``*

* * unless impracticable.'' In other words, if a facility reports a

specific mixture as a whole under section 311, the facility is also

required to report that mixture as a whole under section 312, unless

the facility can show that it is impracticable to do so. Similarly, if

a facility reports a specific mixture by its hazardous chemical

components under section 311, the facility is also required to report

that mixture by its hazardous chemical components under section 312,

unless the facility can show that it is impracticable to do so.

EPA's intention is to be reasonable in establishing reporting

requirements. Consistent with the existing regulation, the phrase

``unless impracticable'' has been included to account for specific

cases where the owner or operator of a regulated facility can

demonstrate that it wouldn't be practicable to report consistently

under sections 311 and 312. EPA believes that in all but a few unique

cases, consistent reporting for sections 311 and 312 is practicable. It

is important for the MSDS information to correspond with the inventory

information to ensure consistency in the qualitative and quantitative

information received about the hazards of covered chemicals. The MSDS

information and inventory information are intended to be used together

to determine the chemical hazards present at a facility--the MSDS

provides information on the hazards associated with the types of

chemicals that are reported with the inventory information. See

Conference Report at 5105.

As discussed above, EPCRA sections 311(a)(3) and 312(a)(3) provide

that, when reporting mixtures containing hazardous chemicals, facility

owners or operators have a choice to report in reference to the mixture

itself, or in reference to each hazardous chemical component of the

mixture. EPA, of course, recognizes this basic choice for reporting

mixtures. However, EPA recommends that whichever way a facility owner

or operator chooses to report for one mixture, the same choice should

be made for every mixture at the facility. In other words, if a

facility reports a specific mixture as a whole under sections 311 and

312, then EPA suggests that each mixture at the facility be reported as

a whole under sections 311 and 312. Similarly, if a facility reports a

specific mixture by its hazardous chemical components, then EPA

suggests that each mixture at the facility be reported by its hazardous

chemical components. EPA encourages consistent reporting throughout a

facility because of various programmatic reasons. Consistent reporting

throughout a facility facilitates the calculations necessary for

reporting, improves the clarity of the reported information consistent

with the emergency planning and response purposes of EPCRA, and reduces

duplicative reporting. However, EPA understands that it may not always

be reasonable to report consistently throughout a facility and

recognizes that the owner or operator of the facility has discretion to

determine whether to report based on the mixture or the hazardous

chemical components of the mixture.

While the plain English format proposed today is intended to

improve the public's understanding of EPA's regulations, it is not

intended to change the substantive requirements in EPA's existing

regulations. As discussed in detail above, EPA has proposed four

specific substantive regulatory revisions regarding mixtures including

(1) the removal of reference to reporting ``the total quantity of the

mixture'' from the section containing the mixture requirements (see

existing section 370.28(b)(2) and proposed section 370.14); (2) the

additional language in proposed section 370.14(b) to make the

clarification that, when determining the total quantity of an EHS

present at a facility, the quantity present in a mixture must be

included even if that particular mixture is also being applied as a

whole toward the threshold level for that mixture; (3) the additional

language in proposed section 370.14(b) to clarify how to apply

threshold levels

[[Page 31280]]

for mixtures containing hazardous chemical components that are not

EHSs; and (4) the additional language in proposed section 370.14(e) to

clearly establish how to determine the total quantity of a hazardous

chemical present, when the chemical is present both by itself and as a

component in mixture(s).

EPA requests public comment on the specific substantive proposed

regulatory revisions in today's document. EPA also seeks public comment

on the plain English format in which the proposed regulation is

written, but only on the limited issue of whether any unintended

substantive changes have been made to the mixture requirements as a

result of re-writing and reorganizing the regulation. Except for the

four specific substantive regulatory revisions listed above, EPA is not

intending any other substantive changes to the mixture requirements

under sections 311 and 312 today. The mixture requirements have been in

effect for several years, and EPA is not re-opening for public comment

any other substantive aspects of those requirements in this document.

EPA is seeking public comments on ways to improve the plain English

format to make the mixture requirements clearer and less confusing

without changing the substantive requirements. EPA similarly requests

public comment on the adequacy and usefulness of the table in proposed

section 370.14(b), as well as suggestions for improving the table's

clarity.

2. Tier I and Tier II Inventory Forms and Instructions

In today's rulemaking, EPA is proposing to remove the Tier I and

Tier II inventory forms from the body of the regulation. Section 312(g)

of EPCRA requires the EPA to publish a ``uniform format for inventory

forms.'' However, the forms are not required by the statute to be

published in regulations. Removing the forms from the regulation would

shorten and simplify the regulations, and allow EPA to change the forms

more easily to reflect new information and experience. (Note that any

change to the forms would still require Office of Management and Budget

(OMB) approval under the Paperwork Reduction Act, including public

notice and comment when required.) EPA would continue to publish the

uniform Tier I and Tier II forms, which would be readily available on

the CEPPO Internet site (www.epa.gov/ceppo), or by contacting the

National Center for Environmental Publications and Information (NCEPI)

at 800/490-9198. The Tier II form is currently available on the CEPPO

Internet site.

EPA is proposing today to remove both the forms and corresponding

instructions from the regulation. The Tier I form and instructions are

in section 370.40 in the existing regulation, and the Tier II form and

instructions are currently in section 370.41. Neither the forms

themselves, nor the instructions, are included in today's proposed

rule. However, EPA will continue to make the forms and instructions

available to the public, as indicated above.

At the same time, EPA's proposed rule would continue to contain a

narrative description of the Tier I and Tier II informational

requirements. Specifically, sections 370.41 and 370.42 in the proposed

rule set forth the required Tier I and Tier II information,

respectively.

Today EPA is proposing two changes to the Tier I and Tier II

information requirements. The first proposed change is to require

facilities to report a Facility Identification Number with their Tier I

(or Tier II) information. The Facility Identification Number is part of

a standardized facility identification scheme the Agency is currently

undertaking, and is discussed further in part IV.B.4. of this document.

The second proposed change to the information requirements is to

require facilities to report the NAICS code for their facility instead

of the SIC code, as currently required. Replacement of the SIC codes by

the NAICS codes is discussed below. The Tier I and Tier II information

requirements in today's proposed rule are the same as the existing

information requirements, with the exception of these two proposed

changes. EPA is not seeking public comment on any other aspect of the

existing information requirements.

The facility identification portions of the existing Tier I and

Tier II forms require reporting of the primary SIC code for the

facility. However, the SIC system is currently being replaced by the

NAICS system, which is a new economic classification system that has

been developed to provide common industry definitions for Canada,

Mexico, and the United States. OMB published a document in the Federal

Register regarding the replacement of the 1987 SIC by the 1997 NAICS,

on April 9, 1997. In today's proposed rule, the sections that list the

Tier I and Tier II information requirements (proposed sections 370.41

and 370.42, respectively) require the NAICS code instead of the SIC

code.

EPA seeks comment on requiring facilities to report the NAICS code

instead of the SIC code. In particular, EPA seeks comment on whether it

is premature or otherwise inappropriate to adopt NAICS codes at this

time, and whether EPA should therefore retain usage of the SIC codes

for the time being. EPA also invites comment on whether it would be

sensible to allow reporting of either the SIC code or the NAICS code

(and an indication of which code was being reported), or to require

reporting of both codes, during a period of transition from use of the

SIC to the NAICS. EPA understands that different agencies may begin

using the NAICS codes for regulatory purposes at different times. If

EPA transitions to using the NAICS codes in today's proposed rule, this

change may not be consistent with the timing of some other agencies'

use of the new codes. EPA seeks comment on the appropriate time to

transition to the NAICS codes for purposes of the reporting

requirements under today's proposed rule. EPA also seeks public input

on making a corresponding change to use NAICS codes instead of SIC

codes on the Tier I and Tier II forms themselves.

In addition to setting forth the uniform inventory forms and

instructions, existing sections 370.40 and 370.41 reiterate many of the

reporting requirements that are codified in other sections in the

regulation. EPA doesn't believe it is necessary for these requirements

to be stated twice within the same regulation, and the proposed Tier I

and Tier II information sections (sections 370.41 and 370.42) don't

reiterate requirements codified elsewhere in the regulation. EPA

requests public comments on this proposed change.

The Tier I and Tier II instructions, which are in existing sections

370.40 and 370.41, contain some general explanatory information about

the reporting requirements and some examples and suggestions to ease

compliance. This instructional information is not included in the body

of the proposed regulation, but would still be included with the forms

and instructions that are readily available to the public. While EPA is

proposing to remove this instructional information from the proposed

regulation, the Tier I and Tier II information requirements in today's

proposed rule are the same as the existing Tier I and Tier II

information requirements (except for the two specific proposed changes

described above). EPA requests public comments regarding removal of

this instructional information.

Hazardous chemicals are classified into five hazard categories for

purposes of reporting under EPCRA sections 311 and 312. These five

categories are a

[[Page 31281]]

consolidation of the 23 hazard categories defined under OSHA, at 29 CFR

1910.1200. Sections 370.40 and 370.41 in the existing rule, which

contain the Tier I and Tier II inventory forms and instructions, each

contain a chart that compares EPA's hazard categories under EPCRA with

OSHA's hazard categories. Although today's proposed rule does not

include the Tier I and Tier II forms and instructions, the five EPCRA

hazard categories are defined in proposed section 355.62 and the

corresponding OSHA hazard categories are identified for each EPCRA

hazard category.

Section 370.41 in the existing regulation, which contains the Tier

II form and instructions, also sets forth the requirements pertaining

to trade secret information and confidential location information for

specific chemicals. These requirements aren't found elsewhere in the

existing regulation. Section 370.64 in today's proposed rule contains

the trade secret requirements and the requirements for confidential

location information.

The instructions for the Tier II form (currently found in section

370.41) indicate the requirement to report the ``chemical name or

common name'' for each chemical being reported. Section 370.42 in

today's proposed rule, which contains the Tier II information

requirements, indicates the requirement to report the ``chemical name

or common name of the chemical as provided on the material safety data

sheet.'' EPA isn't proposing any change to this requirement, but rather

reiterating the full requirement, consistent with the statutory

language in EPCRA section 312(d)(2)(A).

The Tier I and Tier II forms that EPA publishes aren't the only

formats that are acceptable for inventory reporting under the EPCRA

program. The existing regulations (40 CFR 370.40 and 370.41) provide

that the facility owner or operator may submit a State or local form

that contains the identical content of the published uniform federal

format (the Tier I or Tier II information). Such State or local forms

are adequate for section 312 reporting of Tier I and Tier II

information, provided the entities to whom the forms must be submitted

receive the information by the reporting deadline. The proposed

regulations specify the requirements for Tier I and II information (see

proposed sections 370.41 and 370.42) and similarly provide that State

or local formats for reporting may be used so long as they contain the

required information. See proposed section 370.40(b). Many States have

developed their own format for reporting, which often contains

additional requirements beyond what is required by the Tier I or Tier

II forms. Electronic inventory forms are available from various

sources, including the CEPPO homepage and some States.

EPA believes that it is appropriate for the Tier I and Tier II

forms to be published and readily available, but not to be published in

the regulations. EPA is interested in comments concerning the removal

of these forms from the body of the regulation, and suggestions about

how the forms can be made readily available. EPA is especially

interested in comments on whether the public actually uses the Code of

Federal Regulations (CFR) as a source of the Tier I or Tier II forms,

in which case it might be helpful to retain the forms and instructions

in the regulations.

3. Penalties for Noncompliance

Sections 355.50 and 370.5 in the existing rules describe potential

penalties for noncompliance with EPCRA's emergency release notification

requirements and hazardous chemical reporting requirements,

respectively. The Tier I and Tier II form instructions also describe

potential penalties for noncompliance with the hazardous chemical

reporting requirements. In today's rulemaking, EPA is proposing to

remove these provisions from the body of the regulations because it is

not necessary to repeat them in the regulations. The potential

penalties for all EPCRA violations are established in the statute

itself, which is self-implementing. The absence of the penalty

discussions in the rule won't change any requirements with respect to

enforcement. EPA seeks comment on whether this is a useful change to

streamline the regulations.

4. Facility Identifier as a Tier I and Tier II Information Requirement

EPA is currently undertaking an agency-wide initiative to

streamline and consolidate the Agency's collection and maintenance of

environmental data. EPA, in cooperation with States, is seeking to

establish information management procedures for the identification of

facilities that are subject to Federal environmental reporting and

permitting requirements. This initiative is intended to improve EPA's

management and use of such information, as well as to provide improved

public access to such information, by creating links between major data

sources. This initiative is known as the Facility Identification

Initiative. Through this initiative, EPA intends to establish a

standardized facility identification scheme, including a unique

Facility Identification Number, for facilities that submit

environmental data to EPA under various regulatory programs. EPA would

then be able to establish links among records of environmental data

relative to a specific facility, and also establish means for the

public to access the Agency's data via computer telecommunications and

other means. The aim is to enable facility-related environmental

information in multiple databases to be easily linked. EPA, in

cooperation with the States, is currently developing a non-regulatory

process for assigning the Facility Identification Numbers. For the

latest information regarding the Facility Identifiers Initiative,

please see the memorandum ``Announcing the Facility Identification

Interim Data Standard'' in the CERCLA Docket Office, in docket number

300RR-IF1 (for the address of the docket office, see the ADDRESSES

section of this preamble).

In today's document, EPA is seeking public comment on whether or

not to require facilities to report their Facility Identification

Number when reporting under EPCRA section 312, if such number has been

assigned under another State or Federal environmental program. This

document does not contain proposed regulatory language establishing the

Facility Identifier Number as part of the Tier I and Tier II

information requirements. However, EPA wants to ensure that the public

understands that based on this document and opportunity for public

comment, EPA may, in the final rulemaking action on this proposal,

revise the regulatory requirements for Tier I and Tier II information

by adding regulatory language that requires submission of the Facility

Identification Number. See existing sections 370.40 and 370.41, and

proposed sections 370.41 and 370.42, for Tier I and Tier II information

requirements generally. The Tier I and Tier II information regulations

would also be revised to provide that only those facilities that are

subject to other State and Federal environmental programs, and have

been assigned a Facility Identification Number by their State or EPA,

would need to submit such Number with their Tier I and Tier II

information. The public is hereby informed that EPA may also take final

action to include the Facility Identification Number as part of the

Tier I and Tier II information requirements, separate from the final

action on other aspects of this proposal. This could occur, for

example, if EPA determines that the status of the Facility Identifiers

Initiative warrants either more expeditious or later regulatory action.

Finally, EPA could also

[[Page 31282]]

conclude, based on the public input from this document or other

considerations, that it will not add Facility Identification Number to

the Tier I and Tier II information requirements. All three of these

outcomes may occur without providing opportunity for public comment

beyond that provided in this document.

Information reported under EPCRA section 312 is submitted to SERCs,

LEPCs and local fire departments; it is not reported directly to EPA.

However, the Facility Identifiers Initiative is a cooperative data

management effort between EPA and the States. States participating in

the initiative would include the Facility Identification Numbers in

their records, which may eventually be linked to EPA data. Although EPA

does not maintain EPCRA section 312 data, EPA may be able to provide

data users with links to State data systems. Having the Facility

Identification Number present in the data that the SERCs, LEPCs and

local fire departments receive from a facility under EPCRA section 312

may allow Federal, State and local governments as well as the public to

coordinate that data with other State and Federal data maintained about

the same facility. Persons viewing the Tier I or Tier II information

for a facility would then know whether the facility is subject to other

environmental laws in addition to EPCRA, and would have a link to find

additional information about that facility.

EPA seeks comment on whether it would be useful to require that

facilities provide their Facility Identification Number, if assigned,

when reporting Tier I or Tier II information under EPCRA section 312.

EPA would like to know if SERCs, LEPCs, local fire departments and the

public would benefit by the Identification Numbers being reported under

section 312.

5. Additional Changes to the Parts 355 and 370 Regulations

In today's rule EPA is proposing some changes to the regulations at

40 CFR parts 355 and 370 that are intended to make the rules clearer

and easier to use. While rewriting these regulations, EPA took the

opportunity to ``clean-up'' the rules--by clarifying requirements,

codifying policy, and in some cases restating statutory language. The

proposed regulatory revisions are as follows:

SERC and LEPC instead of commission and committee. In

today's proposed rule, SERC and LEPC are used to abbreviate State

emergency response commission and local emergency response committee,

respectively. Commission and committee (rather than SERC and LEPC) have

been used as abbreviations in the existing rule, but EPA believes that

the public is generally more familiar with the terms SERC and LEPC. The

definitions for key words used in parts 355 and 370, which are found in

section 355.62 in today's proposed rule, reflect the use of the terms

SERC and LEPC instead of commission and committee.

Quantity of an extremely hazardous substance in a mixture.

Instructions for calculating the quantity of an extremely hazardous

substance (EHS) present in a mixture, for purposes of emergency

planning, are in section 355.30(e)(1) of the existing regulation. The

terms ``mixture'' and ``solution'' are both used in these instructions.

In the proposed regulation the term ``solution'' has been removed

because ``mixture'' includes ``solution,'' so it is redundant to use

both terms. The term ``mass'' in the existing instructions is replaced

by ``weight'' in the proposed instructions. For the purposes of this

regulation the two terms are synonymous, and ``weight'' is a more

familiar term to the general public. Further, in order to improve the

understanding of these instructions, an example is provided in the

proposed instructions, which are in section 355.13 of today's proposed

rule.

Extremely hazardous substances in solid form. Instructions

for determining which threshold planning quantity (TPQ) to use for

extremely hazardous substances (EHSs) in solid form are in section

355.30(e)(2)(i) of the existing regulation. In that section solids are

described as ``existing in'' or ``being handled in'' various forms. In

the proposed rule, the phrases ``exists in'' and ``is handled in'' have

been replaced by ``is in.'' This is simpler and easier to understand,

but doesn't affect the requirements in any way. These instructions are

in section 355.15 of today's proposed rule.

Facility emergency coordinator.

--Section 355.30(c) in the existing regulation requires the owner or

operator of a facility to notify the LEPC (or the Governor if there is

no LEPC) of the facility emergency coordinator. In today's proposed

rule, section 355.20 requires this notification be made to the SERC if

there is no LEPC, or to the Governor if there is no SERC. EPA believes

that most States have functioning SERCs now, and this notification

should be given to the SERC rather than the Governor, if there is no

LEPC.

--The existing rule requires that this notification be made on or

before September 17, 1987, or 30 days after establishment of an LEPC,

whichever is earlier. The notification deadlines in the existing rule

correspond to the statutory deadlines found in EPCRA section 303(d)(1).

Neither the statute nor the current regulation establish a deadline for

providing this notice in the case of a facility that later becomes

subject to the emergency planning requirements (that is, an EHS first

becomes present at the facility in excess of its TPQ, or the EHS list

is revised and an EHS on the revised list is present at the facility in

excess of its TPQ). EPCRA section 302(c) does, however, require that,

within 60 days after becoming subject to the emergency planning

requirements, a facility provide notice that it is subject to such

requirements. EPA believes that notice of the facility emergency

coordinator is an integral part of the emergency planning notification

requirements, and should therefore be provided at the same time as the

emergency planning notice. Accordingly, section 355.20 in today's

proposed rule requires that notice of the facility emergency

coordinator be provided by September 17, 1987, or within 30 days of

establishment of the LEPC (in accordance with the statutory deadlines

at EPCRA section 303(d)(1)), or within 60 days after a facility becomes

subject to EPCRA's emergency planning requirements (consistent with

EPCRA section 302(c)). In today's proposed rule, the deadlines for a

facility to provide notice of its facility emergency coordinator are

consistent with the deadlines for a facility to provide notice that it

is subject to the emergency planning requirements (see proposed section

355.20). (The deadlines for notification that a facility is subject to

the emergency planning requirements are discussed further below.)

Proposed section 355.20 presents a summary, in table format, of the

information that is required under EPCRA's emergency planning

requirements; including types of information to be reported, required

recipients of information, and deadlines for reporting. The proposed

table is intended to present the requirements in a clear, easy to

understand format.

Emergency planning notification.

--Section 355.30(b) in the existing regulation requires notification to

the SERC that a facility is subject to the emergency planning

requirements under EPCRA. In today's proposed rule, section 355.20

requires this notification be provided to both the SERC and the LEPC.

This is consistent

[[Page 31283]]

with section 302(c) of EPCRA, which provides for owners or operators to

notify the SERC and LEPC when their facility becomes subject to the

emergency planning requirements.

--Section 355.30(b) in the existing regulation requires that

notification be provided on or before May 17, 1987 or within 60 days

after a facility first becomes subject to the requirements. The

notification deadlines in the existing regulation correspond to the

statutory deadlines at EPCRA section 302(c). Section 355.20 in today's

proposed rule requires that emergency planning notification be provided

by May 17, 1987 or within 60 days after a facility first becomes

subject to the requirements (in accordance with the statutory deadlines

at EPCRA section 302(c)) or within 30 days after establishment of an

LEPC. EPA is proposing to add ``within 30 days after establishment of

an LEPC'' in section 355.20 of today's proposed rule to provide for

consistency with the statutory requirement at EPCRA section 303(d)(1)

to provide notice of the facility emergency coordinator within 30 days

of establishment of an LEPC. EPA believes that notification that a

facility is subject to EPCRA's emergency planning requirements, and

notification of a facility's emergency coordinator, which are the two

basic components of emergency planning notification, should be provided

according to consistent reporting deadlines. EPA does not believe that

it is reasonable to require a facility to provide notice of the

facility emergency coordinator in advance of the deadline for providing

notice that they are, in fact, subject to EPCRA's emergency planning

requirements. (The deadlines for providing notification of the facility

emergency coordinator are discussed in detail above.) EPA seeks, in

today's document, to provide for consistency between these two basic

components of EPCRA's emergency planning requirements.

Changes relevant to emergency planning. Section 355.30(d)

in the current regulation requires that facility owners or operators

inform the LEPC of any changes occurring at the facility which may be

relevant to emergency planning. The table in proposed section 355.20 in

today's rule contains this same requirement, and also indicates that

the information be provided promptly--EPA is proposing to add

``promptly'' to be consistent with EPCRA section 303(d)(2).

Format for notifications. In today's proposed rule, EPA

has added sections that discuss the format to be used for emergency

planning and emergency release notification (sections 355.21 and

355.41, respectively). EPA is not intending to change the existing

requirements for format of notifications, or to impose new

requirements. Sections 355.21 and 355.41 are intended simply to clarify

the existing requirements. Although the current regulation does not

state the required format for emergency planning notification, it long

has been EPA policy to recommend that the emergency planning

notification be made in writing. In the preamble to the final rule

establishing the emergency planning requirements (52 FR 13379, April

22, 1987), EPA stated that, ``Any facility where an extremely hazardous

substance is present in an amount in excess of the threshold planning

quantity is required to notify the State commission * * * Such

notification should be in writing * * * '' (emphasis added). Proposed

section 355.21 in today's rule is intended to reflect EPA's policy of

recommending (but not requiring) written emergency planning

notification.

24-hour time period for release. The emergency release

notification requirements in the existing regulation, found in section

355.40, don't indicate over what time period a release of a reportable

quantity must occur to trigger emergency release notification

requirements. Under EPCRA section 304(a), releases are reportable if

they occur in a manner that requires, or would require, notification

under CERCLA section 103(a). Thus, EPA's interpretation has been that

the 24-hour policy applicable under CERCLA also applies under EPCRA.

This interpretation, which long has been EPA policy, is being codified

in today's proposed rule. Accordingly, section 355.33 in this proposed

rule indicates that the ``release of a reportable quantity * * * within

any 24-hour period'' triggers emergency release notification

requirements.

Releases during transportation. The emergency release

notification requirements that apply to release of a substance during

transportation (or storage incident to transportation) are in section

355.40(b)(4)(ii) in the existing regulation. The term ``transportation-

related release'' is used in that section, and is also defined there.

Section 304(b)(1) of EPCRA, which provides the statutory requirements

for releases during transportation or storage incident to

transportation, doesn't use the term ``transportation-related

release.'' In today's proposed rule, the requirements for releases

during transportation or storage incident to transportation are in

section 355.42(b). In that section the term ``transportation-related

release,'' and its definition, have been removed because EPA believes

that the use of that term adds to the confusion about these

requirements. In addition, the language of that section has been

modified to generally track the statutory language in EPCRA 304(b)(1).

EPA requests comments as to whether additional guidance should be

provided concerning notification of releases during transportation (or

storage incident to transportation). EPA also requests suggestions as

to what type of additional guidance would be helpful.

Releases that are continuous. A release that is continuous

and stable in quantity and rate, under the definitions in 40 CFR

302.8(b), qualifies for reduced reporting requirements under EPCRA. The

requirements for reporting continuous releases are in section

355.40(a)(2)(iii) in the current regulation, and in section 355.32 in

today's proposed regulation. Continuous releases are subject to four

specific reporting requirements. These requirements have been

reorganized in today's proposed rule, to clarify that each of the four

notifications must be made to the community emergency coordinator for

the LEPC for any area likely to be affected by the release and to the

SERC of any State likely to be affected by the release (in addition to

the notifications required under 40 CFR 302.8). The Agency stated that

these four notifications are to be made to the SERC and the LEPC (in

addition to the NRC) in the final rule establishing the requirements

for reporting continuous releases of hazardous substances published on

July 24, 1990 (55 FR 30179).

State or local format for reporting inventory information.

--One of the purposes of today's proposal is to insure that SERCs and

LEPCs have flexibility with respect to the manner in which information

is reported under EPCRA sections 311 and 312. Sections 370.40 and

370.41 in EPA's existing rule allow for flexibility by providing that a

State or local form may be used for reporting inventory information, as

long as the State or local form contains identical content to the

uniform federal forms (Tier I of Tier II forms). To further clarify

this flexibility, EPA proposes today to revise those provisions such

that the use of a State or local format is allowed (see proposed

section 370.40). These proposed revisions would clearly encompass

submittal of inventory information in any number

[[Page 31284]]

or potential manners, including electronic submittal, so long as all

information required under the statute and its implementing regulations

were provided.

--Section 370.43 in today's proposed rule provides weight range codes,

and codes for storage types and conditions, that are used when

reporting Tier I and Tier II information (the same codes are in

sections 370.40 and 370.41 in the current regulation). These codes must

be used when reporting inventory information using the federal Tier I

and Tier II forms. However, when State or local formats are used for

reporting Tier I and Tier II information (as discussed above), EPA

allows the use of State or local codes for weight ranges and storage

types and conditions. State or local codes may be used for reporting

weight ranges, provided that the weight ranges are no broader than

those in proposed section 370.43. State or local codes may be used for

reporting storage types and conditions, provided that the codes specify

the same or more detailed information as that specified in proposed

section 370.43. Paragraph (d) in proposed section 370.43 has been added

to clarify this flexibility regarding the use of EPA's codes. For

example, a State or local government might choose to specify ranges in

gallons instead of in pounds--such ranges may be used when reporting

amounts, provided that weight ranges corresponding to the given ranges

in gallons are not broader than the ranges in proposed section 370.43

(and provided that a format other than the federal Tier I or Tier II

forms are used).

SERC or LEPC response to a request for Tier II information

within 45 days. Section 370.61 in today's proposed rule states that ``A

SERC or LEPC must respond to a request for Tier II information * * *

within 45 days of receiving such a request.'' This requirement isn't

found in the existing regulation. However, this requirement is

specified under EPCRA section 312(e)(3)(D), and EPA is proposing to

codify the statutory requirement at this time for clarity. Codifying

this requirement will not create any new substantive requirement, since

it was already provided by the statute.

EPA requests public comment on all aspects of the proposed

regulatory revisions described above.

6. Definitions

In today's proposed rulemaking, the definitions for parts 355 and

370 (that currently are found in sections 355.20 and 370.2,

respectively) have been combined into one section and placed at the end

of part 355. See proposed section 355.62. This was done because parts

355 and 370 are closely related and are published together, and the

defined words used in both parts are generally the same.

Placing the consolidated definitions section at the end of part 355

relieves the reader of having to read through all of the definitions

before seeing how they are used in the text. A short statement at the

beginning of each part in today's proposed rule tells the reader where

to find the definitions. Words that are defined in the consolidated

definitions section are printed with the initial letter capitalized the

first time they are used in each part, to highlight them. EPA is

seeking comments concerning whether or not these changes improve the

readability of the rule.

Some minor revisions to the contents of the definitions are

proposed in today's rulemaking. EPA intends these changes to make the

definitions clearer and easier to use. Some of these changes were

necessary to consolidate the two existing definitions sections into one

section. EPA requests public comment on the proposed changes to the

definitions, which are as follows:

Act. The term ``act'' is defined in the existing

definition section for part 355 as ``the Superfund Amendments and

Reauthorization Act of 1986.'' This definition has been removed from

the proposed definitions section, which applies to both parts 355 and

370. The Emergency Planning and Community-To-Know Act (EPCRA), the

Occupational Safety and Health Act (OSHA), the Comprehensive

Environmental Response, Compensation and Liability Act (CERCLA), and

the Clean Air Act (CAA) are each referenced in today's proposed rule.

The term ``act'' is not used in today's rule without the name of the

``act'' it is referencing, so it is unnecessary to give it a specific

meaning.

SERC and LEPC. As discussed above, the terms

``commission'' and ``committee'' have been replaced with ``SERC'' and

``LEPC,'' respectively, throughout today's proposed rule. Accordingly,

the terms ``commission'' and ``committee'' have been replaced with

``SERC'' and ``LEPC'' in the proposed definitions section, which is

section 355.62 in today's rule. No changes are proposed to the

definitions themselves in today's rule, the terms ``commission'' and

``committee'' have simply been replaced by ``SERC'' and ``LEPC.''

EPCRA and OSHA. Definitions of ``EPCRA'' and ``OSHA'' have

been added in the consolidated definitions section proposed in today's

rulemaking. These acronyms frequently are used throughout the rule.

Placing them in the definitions section should make it easier for the

reader to find their meanings.

Facility. The term ``facility'' is defined in both parts

355 and 370 in the existing rule. The two definitions are identical,

except that in part 370 the definition of ``facility'' includes ``all

natural structures in which chemicals are purposefully placed or

removed through human means such that it functions as a containment

structure for human use.'' EPA intends for the definition of

``facility'' under part 355 to be identical to the definition under

part 370 (see 55 FR 30634, July 26, 1990; and 54 FR 12999, March 29,

1989). This is being clarified in today's proposed rulemaking by

including ``all natural structures in which chemicals are purposefully

placed or removed through human means such that it functions as a

containment structure for human use'' in the definition of ``facility''

under the consolidated definitions section (see proposed section

355.62).

Hazardous substances. The term ``CERCLA hazardous

substance'' is defined in the existing definitions for part 355, but

not in the definitions for part 370. This term is defined in the

proposed combined definitions section. The terms have been reorganized

such that ``CERCLA hazardous substance'' and ``extremely hazardous

substance'' appear together under the heading ``hazardous substances.''

EPA believes that putting the definitions of the two terms together

under a common heading will help clarify the difference between these

closely related terms. In addition, these terms now appear immediately

after the definition of ``hazardous chemical,'' which is the third

category of substances regulated by today's rulemaking. Placing

together the definitions of each of the categories of substances that

this rule regulates should help the reader to compare and understand

their meanings.

Hazardous chemical. No change is proposed to the meaning

of the term ``hazardous chemical.'' However, two organizational changes

are proposed that should improve the clarity of the definition. The

first is that the list of exceptions to the term has been reformatted.

The second involves the definition of the phrase ``present in the same

form and concentration as a product packaged for distribution and use

by the general public,'' which is used within the definition of

``hazardous chemical'' (in the list of

[[Page 31285]]

exceptions to the term). This phrase is defined in the existing

definitions section for part 370, in a separate paragraph from the

definition of ``hazardous chemical.'' In the consolidated definitions

section in today's rulemaking (proposed section 355.62), the definition

of this phrase has been relocated to appear within the definition of

``hazardous chemical.'' The list of exceptions to the definition of

``hazardous chemical'' is reiterated in section 370.13 in today's

proposed rule, and the definition of ``present in the same form and

concentration as a product packaged for distribution and use by the

general public'' is placed within that list.

Inventory form. The Tier I and Tier II ``inventory forms''

have been removed from the regulation, as discussed above. The

definition of ``inventory form'' has been modified to reflect that,

under the proposed rule, the Tier I and Tier II forms no longer are set

forth in part 370.

Mixture. In the existing rule, the term ``mixture'' is

defined in part 355 but not in part 370, although the term is used in

both parts. In today's proposed rulemaking, ``mixture'' is defined in

the consolidated definitions section. For the purposes of part 355, the

proposed meaning of ``mixture'' is the same as the existing meaning,

except that the existing definition includes the term ``compounds'' and

the proposed definition does not. EPA believes that this term shouldn't

be included--in a ``compound'' the various constituents don't retain

their individual identities, so a ``compound'' shouldn't be treated as

a mixture for the purposes of part 355. For the purposes of part 370,

the proposed definition of ``mixture'' is ``mixture'' as defined under

29 CFR 1910.1200(c). Applicability for the part 370 requirements is

based on OSHA's hazard communication standard (29 CFR 1910.1200), and

today EPA is proposing this regulatory revision to clarify the Agency's

policy that the definition of ``mixture'' at 29 CFR 1910.1200(c)

applies to 40 CFR part 370.

Reportable quantity. In section 355.20 in the current

regulation, ``reportable quantity'' means, ``for any CERCLA hazardous

substance, the reportable quantity established in Table 302.4 of 40 CFR

part 302, for such substance, for any other substance, the reportable

quantity is one pound.'' In section 355.62 in today's proposed rule,

however, ``reportable quantity'' is defined as, ``for any CERCLA

hazardous substance, the reportable quantity established in Table 302.4

of 40 CFR part 302, for such substance. For any extremely hazardous

substance, reportable quantity means the reportable quantity

established in appendices A and B of this part, for such substance.

Unless and until superseded by regulations establishing a reportable

quantity for newly listed EHSs or CERCLA hazardous substances, a weight

of 1 pound shall be the reportable quantity.'' EPA seeks to make clear

that the phrase ``any other substance'' in the current definition

refers only to EHSs (that are not also CERCLA hazardous substances).

``Reportable quantities'' currently have been established by EPA for

all EHSs, so the proposed definition directs the reader to appendices A

and B of part 355, where the ``reportable quantities'' are published.

The language, ``Unless and until superseded by regulations establishing

a reportable quantity for newly listed EHSs or CERCLA hazardous

substances, a weight of 1 pound shall be the reportable quantity'' has

been added to clarify that the statutory default reportable quantity is

one pound for EHSs and CERCLA hazardous substances (see EPCRA section

304(a) and CERCLA section 102(b), respectively).

Threshold planning quantity. The definition of ``threshold

planning quantity (TPQ)'' has been changed to make it clear where in

the existing regulations the TPQs are found, in order to avoid any

confusion that may arise due to the consolidation of the definitions

for parts 355 and 370.

Tribe. The term ``Tribe'' was placed together with the

definition of ``Indian Tribe,'' because these terms have the same

meaning in the regulation and the term ``Tribe'' isn't defined in the

existing rule.

V. What Draft Guidance Is EPA Publishing in This Preamble?

The discussion below addresses a number of issues for which EPA is

considering providing guidance, to facilitate understanding and

flexibility in complying with the existing regulatory requirements.

Although the draft guidance explored below does not involve any

revision to the existing regulatory requirements, EPA seeks public

comment in developing this guidance.

A. Increased Flexibility for States and Local Governments With Respect

to Reporting Under EPCRA Sections 311 and 312

In order to streamline compliance with the existing regulatory

requirements, EPA is developing guidance discussing certain reporting

options that SERCs, LEPCs and fire departments may wish to consider in

implementing EPCRA sections 311 and 312. This effort is part of the

President's program for reinventing government and reforming regulatory

policy. Several different options under sections 311 and 312 are

discussed below. EPA does not believe any of these options would entail

regulatory changes. EPA's intention is to generate discussion of

different options at this time. While EPA's objective is to identify

opportunities for flexibility in implementing EPCRA sections 311 and

312, SERCs, LEPCs, fire departments, and facility owners and operators

would not have to follow any of the draft options. Further, SERCs and

LEPCs could implement the options discussed in section A(1), (2), (3)

and (4) regardless of whether EPA issues final guidance, provided the

implementation of the option meets the statutory and regulatory

requirements.

Numerous stakeholders have asked EPA to provide greater flexibility

with respect to reporting under section 312 of EPCRA, in order to

facilitate their use of the reporting information. EPA agrees that

enhanced flexibility would allow SERCs and LEPCs greater discretion in

implementing the EPCRA program; however, an increase in flexibility may

compromise the existing national consistency within the EPCRA program.

Also, if the EPCRA programs become less consistent nationally, Federal

guidance may become obsolete. This could increase the burden on State

and local entities to provide guidance to their regulated community.

EPA is also concerned that increased State and local flexibility may

compromise Federal, State and local compliance efforts. EPA is

presenting several options that would clarify State and local

flexibility with respect to reporting under sections 311 and 312, and

is seeking public comment on those options. EPA is especially

interested in comments from SERCs, LEPCs and local fire departments,

and will consider all public comments in developing this guidance under

the EPCRA program.

Section 311 of EPCRA requires facilities to submit MSDSs (or a list

of hazardous chemicals subject to the requirements) to the SERC, the

LEPC, and the fire department with jurisdiction over the facility.

Likewise, section 312 requires facilities to submit an emergency and

hazardous chemical inventory form (containing at a minimum the Tier I

information) by March 1 of every year to the same three entities.

Sections 370.40 and 370.41 in the existing rule allow facilities to use

State and local forms instead of the federal forms, provided the State

or local form contains the information required by the statute and its

implementing regulations. In today's

[[Page 31286]]

proposed rule, section 370.40 similarly provides that a State or local

format may be used if the State or local format contains at least the

Tier I information.

Throughout the implementation of EPCRA, States have suggested

alternatives to the federal reporting format. EPA has considered these

suggestions, and is presenting suggested alternatives below for public

comment. Every SERC, LEPC and fire department would have the choice of

adopting any, or none, of the alternatives explored below--EPA would

not require the adoption of any of these options. EPA would like to

provide flexibility in implementing EPCRA sections 311 and 312,

provided that the statutory and regulatory standards regarding

information reported (at a minimum the Tier I information), recipients

of information (the SERC, the LEPC, and local fire department), and

timing of submission (March 1 annually under section 312, and within 3

months after becoming subject under section 311), are met. EPA believes

it is important for the SERC, the LEPC, and the local fire department

to have the information provided under sections 311 and 312 and the

implementing regulations, at the required time. Each entity has a

unique use and need for this information. EPA seeks comments on the

following alternatives for reporting under sections 311 and 312 of

EPCRA.

1. UST Forms to Fulfill the Requirements for Tier I Information Under

EPCRA Section 312

EPA is aware that many facilities that are subject to the

underground storage tank (UST) regulations under section 9002 of RCRA

are also subject to the reporting requirements under EPCRA sections 311

and 312. Some, but not all, of the reporting information that is

currently required under section 312 of EPCRA and under the Federal UST

program, is duplicative. In keeping with EPA's efforts to provide

flexibility with respect to meeting the reporting requirements, EPA is

considering developing guidance which would clarify that States, if

they so choose, have the option to allow the UST form required under

RCRA to be used to comply with the reporting requirements under section

312 of EPCRA, provided that all of the statutory and regulatory

reporting requirements under section 312 are met. The statutory and

regulatory reporting requirements are discussed in detail below.

EPCRA section 312 requires submission of an inventory form

containing, at a minimum, Tier I information, and also requires that

the EPA publish a uniform format for inventory forms. However, neither

the statute nor the implementing regulations require that the uniform

federal format be used for submission of information under section 312.

Sections 370.40 and 370.41 in the existing rule provide that a State or

local form that includes content identical to that of the Tier I or

Tier II forms, respectively, may be used instead of the Tier I or Tier

II forms. It long has been EPA policy that alternative State and local

formats are acceptable for reporting under section 312. Today, EPA is

proposing to remove the forms themselves from the regulation, as

discussed above, in part IV.B.2. of this document.

Some States have suggested to EPA that the UST form and submittal

procedures under their State UST programs are similar to the EPCRA

section 312 reporting requirements, and have asked for guidance on

whether their State UST form could fulfill the requirements under EPCRA

section 312. By clarifying the conditions under which a single form (or

forms) would fulfill the reporting requirements under a UST program and

under EPCRA section 312 and its implementing regulations, EPA intends

to provide States with flexibility in implementing the EPCRA program

and also seeks to reduce the reporting burden on regulated facilities,

while preserving the goals of the two programs. The issue of using UST

forms to substitute for the Tier I information was also addressed in a

December 27, 1988 Federal Register Request for Comments (53 FR 52273).

In order for the UST form to address section 312 of EPCRA, all of

the statutory and regulatory reporting requirements under section 312

must be met. The statute and regulations contain requirements for the

information reported, the recipients of the information, and the timing

of the submission. A comparison of those requirements with the Federal

UST program follows:

Information Reported: Tier I information is the minimum

information required under EPCRA section 312 and the implementing

regulations. In addition, Tier II information must be reported upon

request. Note that some States or LEPCs require more than the minimum

data that EPA requires. In order for the UST form to meet the routine

reporting requirements under EPCRA section 312, it must contain at

least the information required for the Tier I information.

Recipients of Information: EPCRA section 312 requires that

the reporting information be submitted to the SERC, the LEPC, and the

fire department with jurisdiction over the facility. The UST program

under RCRA requires that the UST forms be submitted to a State agency.

However, that State agency is not necessarily the SERC. If the UST

forms are to meet section 312 of EPCRA, then the SERC, the LEPC, and

the fire department must all receive the information.

Timing of Reporting: Under EPCRA section 312 and the

implementing regulations, the owner or operator of a regulated facility

must submit the required Tier I reporting information by March 1 of the

first year after the facility first becomes subject to reporting, and

by March 1 of each year afterwards (see EPCRA section 312(a)(2), and 40

CFR 370.20(b)(2) and 370.25(a)). In addition, the owner or operator of

a regulated facility must submit Tier II information within 30 days of

the receipt of such a request from the SERC, the LEPC, or the fire

department having jurisdiction over the facility (see EPCRA section

312(e)(1) and 40 CFR 370.25(c)). In contrast, the UST program requires

a one-time notification, not an annual notification. If the UST forms

are to meet section 312 of EPCRA, then they must contain Tier I

information and must be submitted annually by March 1, as required

under EPCRA. Additionally, the owner or operator would continue to be

subject to the requirement to submit Tier II information upon request.

The reporting requirements under the Federal UST program differ

from reporting requirements under EPCRA section 312 in terms of

content, recipients, and timing of submission. In order for the UST

form to fulfill the reporting requirements under EPCRA section 312, all

of the requirements for content, recipients and timing described above

must be met. If a facility submits its UST form in such a manner that

each of these requirements is met, EPA would consider that facility to

be in compliance with section 312 of EPCRA.

If an UST form is submitted to fulfill EPCRA section 312

requirements, under the conditions examined here, it might be advisable

to indicate on that form that it is being submitted for EPCRA section

312, so that the receiving entity will know why the UST form was

submitted. In addition, it is conceivable that a facility may submit

UST forms, as well as other inventory forms, together in one section

312 submission. In such a case, it may be advisable to indicate on both

sets of forms the total number of pages in the submission, and that

some of the information is reported on UST forms and some on other

inventory forms, to avoid any confusion for the receiving entity.

EPA requests comments on the draft guidance provided above, and on

any

[[Page 31287]]

other issues or concerns regarding the use of UST forms to fulfill

reporting requirements under EPCRA section 312.

2. Partnership Programs for Joint Access to Information and Streamlined

Submission of EPCRA Sections 311 and 312 Reporting

Sections 311(a)(1) and 312(a)(1) of EPCRA require the owner or

operator of covered facilities to submit an MSDS (or list of hazardous

chemicals) and Tier I inventory information. There are two key

requirements associated with the reporting of this information. First,

the information must be submitted to the following three entities: the

SERC, the appropriate LEPC, and the fire department with jurisdiction

over the facility. Second, there are specific compliance deadlines

governing submission of the information to the three entities. The

basic requirement to submit the EPCRA sections 311 and 312 information

to the SERC, the LEPC and fire department by specific deadlines is

implemented in 40 CFR sections 370.21 and 370.25 of the existing

regulations, and is proposed in today's document at sections 370.32,

370.33, 370.40, 370.44 and 370.45 without substantive revision.

EPA is interested in exploring how the statutory and regulatory

requirements to submit the MSDS and Tier I information to all three

entities, by the required deadlines, could be streamlined to reduce the

reporting burden on regulated facilities. Specifically, EPA is

exploring the conditions under which the SERC, LEPCs and fire

departments could establish partnerships for joint receipt of EPCRA

information. Under such partnerships, a submission timely reported

under EPCRA sections 311 or 312 to a central database that the SERC,

the LEPC and fire department have unrestricted access to, could jointly

be received by all three entities. In other words, timely submission to

the joint database could constitute timely submission to all three

entities in accordance with the statute and regulations. In the

discussion below, EPA examines a number of issues involved in

developing this guidance. EPA seeks public input on all of these

issues, to help design guidance to facilitate streamlined submission of

EPCRA information.

A critical consideration in designing any guidance on streamlined

submittal is to ensure that emergency response officials, State and

local officials, and other members of the community continue to have

timely access to information reported under EPCRA sections 311 and 312.

As discussed, to be in compliance with EPCRA, covered facilities need

to submit the required information by specific statutory and regulatory

deadlines. For example, the reporting for EPCRA section 312 Tier I

information is due each year by March 1st, to cover hazardous chemicals

present at the facility the preceding calendar year. See EPCRA section

312(a)(2). Thus, any partnership program for joint access to

information would need to ensure that the SERC, the LEPC and the fire

department receive Tier I information by March 1st. As noted, under the

partnership program concept, this could be accomplished by timely

submittal to a central database that all three entities have

unrestricted access to and thereby jointly receive. The critical point

is that the goal of the streamlined submittal policy is to reduce the

reporting burden on regulated facilities without diminishing timely and

full access to reported information.

A potential example of streamlined submission is a joint electronic

database. If, for example, covered facilities submitted the information

required under EPCRA sections 311 and 312 to a joint electronic

database to which the SERC, the LEPC and the fire department each have

unrestricted access, then timely submittal to the single electronic

database could constitute timely submittal to all three entities. The

obvious advantage of the electronic database example is that the

regulated community could provide the required information to all three

entities through a single streamlined submission. This could reduce the

reporting burden on the regulated community. EPA is interested in other

examples of systems through which a single submittal of EPCRA

information could similarly be jointly received by the SERC, the LEPC

and the fire department.

In part V.A.3 of this document (immediately below), EPA explores

the development of guidance on optional electronic submittal of

information required under EPCRA sections 311 and 312 and the

implementing regulations. If EPA establishes guidance for streamlined

submittal that relies on the use of a central electronic database for

joint receipt of EPCRA information, as suggested above, EPA would build

on the guidance for electronic submittal of EPCRA information discussed

in part V.A.3 of this document.

EPA notes that information partnerships could be structured to

reduce the overall information management burden on SERCs, LEPCs and

fire departments. By joining together to collectively access the EPCRA

information reported under sections 311 and 312, SERCs, LEPCs and fire

departments could conserve resources through economies of scale. For

instance, in the electronic submittal example, a single electronic

database would be more efficient than three separate databases. Thus,

the initial effort to establish partnership programs for joint access

to information could be offset by the resources saved from more

efficient program administration.

Regardless, EPA does not wish to create burden for the State and

local entities implementing EPCRA. Thus, an important principle of the

streamlined submittal guidance under development is that participation

by SERCs, LEPCs and fire departments would be entirely voluntary.

SERCs, LEPCs and fire departments would decide on their own accord

whether establishing partnership programs for joint access to

information is a sensible option for them.

To promote flexibility in the establishment of partnership

programs, EPA also wishes to explore how a variety of different

partnerships could be created based on the interests and capabilities

of the SERC, the LEPCs and the fire departments in any given State.

Partnerships could range from statewide to more limited partnerships as

SERCs, LEPCs and fire departments see fit. For example, a SERC could

form partnerships with all of the LEPCs and fire departments in the

State managing EPCRA information. If the SERC, the LEPCs and fire

departments had unrestricted access to a statewide electronic database,

then for any facility in the State, timely submission to the central

electronic database could constitute timely submission to each entity

under EPCRA.

Such a statewide EPCRA database could have several benefits in

addition to reducing the reporting burden for the regulated community.

For example, compilation of the information in a single database, such

as a statewide web site accessible from the Internet, could provide

greatly expanded public access to EPCRA information, advancing the

fundamental purpose of EPCRA-- community right-to-know. Further, if the

public has ready access to the information, there may be fewer requests

from the public for information, which could result in a decrease in

the overall administrative burden to process such requests. EPA also

recognizes that there may be technical information management issues to

explore further. EPA seeks comment about how broad partnerships, such

as statewide electronic databases, could best be implemented.

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In addition, EPA seeks input on the establishment of more limited

partnership programs for joint access to information. As an alternative

to a statewide database, limited partnerships might include two of the

three entities to which EPCRA information must be submitted. Such

partnerships would still reduce the reporting burden for the regulated

community. For example, the fire departments in a State that wishes to

establish a partnership may not presently have adequate tools to access

a central electronic database. A SERC and LEPC may nevertheless choose

to establish a limited partnership so that timely submission to their

joint database would constitute timely submission to both the SERC and

the LEPC. In this example, EPCRA would still require a covered facility

to make a separate submittal to the appropriate fire department, but

the reporting burden on the regulated community would still be reduced.

In a similar manner, limited partnerships could be formed between the

LEPCs and fire departments or the SERC and fire departments. Under any

such scenario, EPCRA would require a separate submission to the entity

not included in the partnership.

EPA seeks public input on how partnerships, whether broad or

limited, should be established by the partners. For example, EPA is

contemplating whether it should encourage SERCs, LEPCs and fire

departments to spell out partnerships through a Memorandum of

Understanding (MOU) or other written document. There are several

reasons to establish a partnership through a written document. First, a

written document describing the partnership will help delineate clearly

relative roles and responsibilities of the participating partners,

ensure that all partners participate willingly, and provide continuity

when there are changes in personnel. Further, a written document will

help ensure that the regulated community is aware of the governmental

partnership and, by making the partnership better known, will help

maximize the benefits of reducing the EPCRA reporting burden.

Additionally, formal delineation of partnerships will help ensure that

the community knows and understands how the information is handled,

promoting community involvement in the program. EPA seeks public

comment on whether the partnerships should be formally delineated

through MOUs or other written documents. EPA also seeks public input on

whether, once formed, it makes sense to notify the regulated community

and the public so that they are aware of, and can put to use, the

streamlined submittal option.

EPA would like to maintain reporting flexibility under this draft

guidance. State and local partnerships for streamlined submission of

information under EPCRA sections 311 and 312 should be structured to

allow facilities the option of submitting the information separately to

all three entities (SERC, LEPC and local fire department), instead of

submitting it to the joint database (or other appropriate system for

joint access to information). Some regulated facilities may not have

adequate electronic tools to submit information to an electronic

database or may have other concerns with the streamlined submittal

approach. The objective is to reduce the reporting burden on the

regulated community. Therefore, if a facility owner or operator decided

that, on balance, it is more sensible to submit separately instead of

jointly to all three entities, EPA would not want that reporting option

to be eliminated. Further, the SERC, the LEPC and the local fire

department would still have the option to receive Tier II information

separately from the facility by requesting it (see section 370.10(b) in

today's proposed regulation).

To summarize, the proposed core elements of the draft streamlined

submittal guidance are as follows:

Voluntary Participation. SERCs, LEPCs and fire departments

would voluntarily decide whether they wish to form partnership programs

for joint access to EPCRA sections 311 and 312 information, based upon

their own programmatic priorities.

Flexible Participation. Partnership programs for joint

access to information could include a range of potential partnerships;

from SERC and LEPC, or LEPC and fire departments for a particular

emergency planning district, to statewide partnerships that include the

SERC, and all LEPCs and fire departments.

Information Management Systems that Streamline Reporting

and Maintain Community Access. Whatever the scope of the partnership,

it should involve a system that allows for a single streamlined

submission of EPCRA MSDS and Tier I information, that must be jointly

and timely received by all members of the partnership, and that

provides all partners unrestricted access to the EPCRA information

(although a separate submission would need be made to an entity not

included in the partnership). An example is submission of EPCRA

information, by the compliance deadlines, to a joint, centralized

electronic database that all partners can access without restriction.

(Under EPCRA, the owner or operator of a covered facility would have to

make a separate submission to any SERC, LEPC or fire department not

included in the partnership.)

Written Formation and Public Notice of Partnership

Programs for Joint Access to Information. EPA believes there are clear

advantages for the formation of partnership programs through a written

instrument that describes relative roles and responsibilities under the

partnership. The formation of a partnership should be announced to the

public to promote awareness by regulated facilities and the affected

community.

Because EPA's draft guidance addresses reporting under EPCRA, EPA

is designing it to conform to the Federal requirements only. The draft

guidance does not address any additional State or local reporting

requirements. However, if desired, State and local officials could

incorporate or expand partnerships to address additional State or local

requirements. For example, where State law requires the routine

submittal of Tier II information (instead of Tier I information) to all

three entities, the partnership program could be designed to encompass

Tier II information. In this particular example, the annual submittal

of Tier II information could satisfy the EPCRA requirement for annual

submittal of Tier I information, in addition to addressing State and

local requirements, so long as the Tier II information is timely

received by the SERC, the LEPC and fire department.

EPA seeks public input on a number of issues related to this draft

guidance, including the following:

Whether SERCs, LEPCs and fire departments would be

interested in forming partnership programs for joint access to

information; whether these entities currently have the tools to form

such partnerships; what implementation obstacles are anticipated; and

how EPA could reduce any administrative burden associated with

developing and implementing such partnerships. EPA would also like to

know whether any State is interested in piloting a partnership program,

to promote streamlined submission of EPCRA information.

Whether the proposed core elements of the guidance are

sensible. Also, whether EPA has overlooked any specific concerns, and

any suggestions on ways the draft guidance should be revised.

How the draft streamlined submittal guidance described

here should be implemented in conjunction with the guidance for

electronic submittal of EPCRA sections 311 and 312

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information (see part V.A.3 in this document), and what potential

obstacles are presented by the use of electronic means to streamline

submittal of information.

EPA understands that some SERCs, LEPCs and fire

departments are currently using electronic means to obtain and store

reporting data that is required under EPCRA sections 311 and 312 and

the implementing regulations. EPA is interested in comments concerning

the various software programs used, and any pitfalls encountered. EPA

is interested in how State and local experience might inform EPA's

guidance.

What other information systems, in addition to electronic

databases, could be established through which a submission to a central

database could be timely and jointly received by the SERC, the LEPC and

fire department.

Whether the partnership programs for joint access to

information should be formed through an MOU or other written document.

Also, how EPA could minimize the burden on SERCs, LEPCs and fire

departments of developing MOUs. If MOUs or other written documents are

not used to establish partnerships, how should partnerships be created?

As discussed above, EPA suggests that partnerships may

vary in scope--that is, a partnership could be between a SERC and LEPC

for a single emergency planning district, or might encompass a

statewide database. EPA seeks comment on whether the Agency should in

any way restrict participation in partnerships.

What technical database management issues are raised by

the draft guidance, and how could such issues be addressed?

In addition, EPA seeks public input on any other suggestions and

concerns regarding the draft guidance.

3. Electronic Submittal for EPCRA Sections 311 and 312 Reporting

EPA is considering the development of guidance on electronic

submittal to satisfy sections 311 and 312 reporting. As noted, EPA's

existing regulations give State and locals broad discretion to

determine the reporting format for section 312 information. Likewise,

under EPA's draft guidance on electronic submittal, States would

continue to be able to develop their own format for electronically

submitted section 312 reporting data, as long as the information

includes the information required by the statute and its implementing

regulations. Tier I information is the minimum information required

under EPCRA section 312 and the regulations. Tier II information, which

is more detailed, is required under some State laws and must be

provided upon request under EPCRA. EPA's regulations require section

312 reporting information to be certified by the facility owner or

operator, or an official designated representative, as to its accuracy

and completeness. This requirement applies to section 312 reporting

information regardless of the format in which it is submitted, and

would apply to electronic submittal. Section 311 and the implementing

regulations require submission of an MSDS or a list of hazardous

chemicals. If an electronic MSDS is developed such that it fits the

requirements for MSDS development found at 29 CFR 1910.1200(g), that

MSDS could be submitted electronically. EPA's existing regulations

d

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