Thursday
October 15, 1987
Part IV
40 CFR Part 370
Emergency and Hazardous Chemical
Inventory Forms and Community Right-
to-Know Reporting Requirements; Final
Rufe
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38344 Federal Register /Vol. 52. No. 199 / Thursday, October 15, 1987
Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 370
[FRL 3251-9]
Emergency and Hazardous Chemical
Inventory Forms and Community
Right-to-Know Reporting
Requirements
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: Section 312 of the Superfund
Amendments and Reauthorization Act
of 1988 (SARA), signed into law on
October 17,1986, required the
Administrator to publish a uniform
format for emergency and hazardous
chemical inventory forms within three
months. Under sections 311 and 312 of
SARA, facilities required to prepare or
have available a material safety data
sheet (MSDS) under the Occupational
Safety and Health Act (OSHA) and its
Implementing regulations must submit
the MSDS and the inventory forms to
local and State officials. These reporting
provisions give public access to
information on hazardous chemicals
present in the local community for a
wide variety of uses including
emergency response and environmental
and public health planning priorities.
Today, EPA publishes a revision of the
form for inventory reporting based on
public comment received on the January
27,1987, proposal and the July 14,1987,
notice reopening the comment period on
several issues. EPA is also publishing
the final rules for reporting under
sections 311 and 312.
EFFECTIVE DATES: This rule becomes
effective on October 15,1987. Other
dates relevant to this rule include the
following:
1. Initial submission of material safety
data sheets or alternative list: October
17,1987 (or 90 days after the owner or
operator of a facility is required to
prepare or have available an MSDS for
a hazardous chemical under OSHA
regulations, whichever is later: For
facilities newly subject to OSHA MSDS
requirements in May 1988, MSDS or
alternative lists will be due in August
1988).
2. Initial submission of the inventory
form containing Tier I information:
March 1,1988 (or March 1 of the first
year after a facility is required to
prepare or have available an MSDS for
that hazardous chemical under OSHA
regulations, whichever is laten For
facilities newly subject to OSHA MSDS
requirements in May 1988, Tier I
information must be submitted annually
beginning March 1,1989).
ADDRESS: The record supporting this
rulemaking is contained in the
Superfund Docket located in Room
Lower Garage at the U.S. Environmental
Protection Agency, 401 M Street SW.,
Washington, DC 20460. The docket is
available for inspection by appointment
only between the hours of 9:00 a.m. and
4:00 p.m., Monday through Friday,
excluding federal holidays. The docket
phone number is (202) 382-3046. As
provided in 40 CFR Part 2, a reasonable
fee may be charged for copying services.
FOR FURTHER INFORMATION CONTACT:
Kathleen Brody, Program Analyst,
Preparedness Staff, Office of Solid
Waste and Emergency Response, WH-
562A, U.S. Environmental Protection
Agency, 401M Street SW., Washington,
DC 20460, or the Chemical Emergency
Preparedeness Program Hotline at 1-
(800) 535-0202, or in Washington, DC at
(202) 479-2449.
SUPPLEMENTARY INFORMATION: The
contents of today's preamble are listed
in the following outline.
I. Introduction
A. Statutory Authority
B. Background
1. Superfund Amendments and
Reauthorization Act of 1986 (SARA.)
2. Title HI
3. Subtitle B
II. Summary of the Public Comments on the
Proposed Rule
III. Summary of Revisions to the Proposed
Rule
IV. Response to Major Public Comments
A. Definitions
B. Reporting Thresholds
C. Submission of Material Safety Data
Sheets
D. Hazard Categories
E. Mixtures
F. Public Access to Information
G. Trade Secrets and Confidentiality
H. Design and Content of Forms
I. Integration of Title III Federal
Requirements with State and Local
Programs
J. Information Management
K. Regulatory Impact Analysis
L. Miscellaneous
V. Relationship to Other EPA Programs
A. Other Title III Programs
1. Subtitle A — Emergency Planning
2. Subtitle B — Section 313 Emissions
Inventory
3. Trade Secrets
B. CERCLA Reporting Requirements
VI. Effective Date
VII. Regulatory Analyses
A. Regulatory Impact Analysis
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
VIII. Submission of Reports
I. Introduction
A. Statutory Authority
These regulations are issued under
Title III of the Superfund Amendments
and Reauthorization Act of 1986 (Pub. L.
99-499), ("SARA" or "the Act"). Title HI
of SARA is known as the Emergency
Planning and Community Right-to-Know
Act of 1986.
B. Background
1. Superfund Amendments and
Reauthorization Act of 1986 (SARA)
On October 17,1986, the President
signed into law the Superfund
Amendments and Reauthorization Act
of 1986 (SARA), which revises and
extends the authorities established
under the Comprehensive
Environmental Response, Compensation
and Libility Act of 1980 (CERCLA).
Commonly known as "Superfund,"
CERCLA provides authority for federal
clean-up of sites where hazardous
materials have been deposited or
released and for response to releases of
hazardous substances or other
contaminants. Title III of SARA
establishes new authorities for
emergency planning and preparedness,
community right-to-know reporting, and
toxic chemical release reporting.
2. Title III
Title HI of SARA, also known as the
Emergency Planning and Community
Right-to-Know Act of 1986, is intended
to encourage and support emergency
planning efforts at the State and local
levels and to provide citizens and local
governments with information
concerning potential chemical hazards
present in their communities.
Title III is organized into three
subtitles. Subtitle A establishes the
framework for State and local
emergency planning. Final rules for
facilities subject to Subtitle A
requirements were published on April
22,1987. 52 FR 13378. Subtitle B provides
the mechanism for community
awareness concerning hazardous
chemicals present in the locality. This
information is critical for effective local
contingency planning. Subtitle B
includes requirements for the
submission of material safety data
sheets and emergency and hazardous
chemical inventory forms to State and
local governments as well as the
submission of toxic chemical release
forms, to the States and EPA. Subtitle C
contains general provisions concerning
trade secret protection, enforcement,
citizen suits, and public availability of
information.
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Federal Register /Vol. 52. No. 199./ Thursday, October 15, 1037 / Rules and Regulations 38345
3. Subtitle B
Subtitle B of Title III is primarily
concerned with providing information to
appropriate local, State, and federal
officials on the type, amount, location,
uae, disposal, and release of chemicals
at certain facilities.
Subtitle B contains three reporting
provisions. Section 311 requires the
owner or operator of facilities subject to
the Occupational Safety and Health Act
of 1970 (OSHA) and regulations
promulgated under that Act (15 U.S.C.
851 et seq. as amended, 52 FR 31852
(August 24,1987)) to submit material
safety data sheets (MSDS), or a list of
the chemicals for which the facility is
raquired to have an MSDS, to the local
emergency planning committees, State
emergency response commissions, and
local fire departments. The facilities are
required to submit the MSDS or
alternative list by October 17,1987, or
three months after the facility is
required to prepare or have an MSDS for
a hazardous chemical under OSHA
regulations, whichever is later.
Information collection requirements are
approved by Office of Management and
Budget under control number 2050-
0072.)
Under section 312, owners and
operators of facilities that must submit
sn MSDS under section 311 are also
required to submit additional
i.-iformalion on the hazardous chemicals
present at the facility. Beginning March
1,1988, and annually thereafter, the
owner or operator of such a facility must
submit an inventory form containing an
estimate of the maximum amount of
hazardous chemicals present at the
facility during the preceding year, an
estimate of the average daily amount of
hazardous chemicals at the facility, and
the location of these chemicals at the
facility. Section 312(a) requires owners
or operators of such facilities to submit
the inventory form to the appropriate
local emergency planning committee,
State emergency response commission,
and local fire department on or before
March 1,1988 (or March 1 of the first
year after the facility first becomes
subject to the OSHA MSDS
requirements for a hazardous chemical)
and annually thereafter on March 1.
Section 312 specifies that there be two
reporting "tiers" containing information
on hazardous chemicals at the facility in
different levels of detail. "Tier I,"
containing general information on the
amount and location of hazardous
chemicals by category, is submitted
annually. "Tier II," containing more
detailed information on individual
chemicals, is submitted upon request.
A proposed rule setting forth sections
311 and 312 reporting requirements and
forms for inventory reporting under
snctioa 312 was published on January
27,1987. 52 FR 2836. Additionally, on
July 14,1987, EPA announced reopening
of the comment period on three issues
raised during the initial rulemaking and
held a public meeting on those issues. 52
FR 26357 (July 14,1987). Today's rule
finalizes the reporting requirements and
the inventory forms, which have been
revised based on public comment.
Section 313 requires that certain
facilities with ten or more employees
that manufacture, process, or use a
"toxic chemical" in excess of a
statutorily-prescribed quantity submit
annual information on the chemical and
releases of the chemical into the
environment. This information must be
submitted to EPA and to the appropriate
State offices annually beginning on July
1,1988. EPA is required under section
313(i) to establish a national toxic
chemical inventory database for the
management of these data. A proposed
rule setting forth section 313 reporting
requirements and a form for submission
of such reports was published on June 4,
1987, 52 FR 21152.
The public has access to most Title III
information at locations designated by
the Administrator, the State emergency
response commission, or local
emergency planning committee, as
appropriate.
II. Summary of the Public Comments on
the Proposed Rule
A total of 241 letters was received on
the proposed rule setting forth sections
311 and 312 requirements and an
additional 94 letters following the notice
of the reopening of the comment period
on July 14,1987. There were a number of
comments requesting clarification of
terms and exemptions provided in the
rule. Specific comments focused on the
definition of "facility" and the need for
clarification of the exemptions that are
opplicable to the definition of
"hazardous chemical," particularly the
exemptions related to research
laboratories, household products, and
solids.
There were numerous comments on
the proposed reporting threshold; these
focused on the appropriate length of
phase-in, appropriate reporting
threshold quantities in each year, and
the threshold for the extremely
hazardous substance list. Many related
comments identified the need for funds
to implement these reporting
requirements.
Another issue commonly addressed
by commenters was the need to reduce
the number of physical and health
hazard categories by which the MSDS
list and Tier I and Tier II submissions
are compiled. There were also
comments on the design and content of
the reporting forms.
Other major issues were the need for
integration of the federal reporting
requirements into existing State and
local programs and flexibility for
effective implementation by State and
local governments.
Other comments addressed
information management, the economic
analysis and small business analysis,
confidentiality of information, and
enforcement and penalties.
HI. Summary of Revisions to the
Proposed Rule
This section describes the significant
changes that EPA has made to sections
311 and 312 reporting regulations based
upon the public comments on the
proposed rule. The following summary,
which is organized according to the
sections of the rule, describes each of
the changes.
Section 370,2 Definitions
Under section 311, an alternative to
submitting the actual MSDS for each
"hazardous chemical" at a facility is the
submission of a list of such chemicals,
grouped in "categories of health and
physical hazards" as set forth under
OSHA or its implementing regulations.
Section 312 specifies that these
categories should also be used in Tier I
inventory reporting. EPA is authorized
under these sections to alter these
hazard categories.
The proposed rule required use of the
OSHA hazard classification but
solicited comment on several other
options for establishing hazard
categories. Based on the numerous
comments requesting modifications of
the categories in the proposed rule, EPA
has consolidated the 23 OSHA hazard
categories into five categories, as
discussed in more detail in Section IV.D.
of this preamble.
A definition for "hazard category" has
been added to indicate the hazard
classification to be used for Tier I and
Tier II reporting and when the
alternative list of chemicals rather than
MSDS is submitted under § 370.21 of the
rule.
Definitions of "extremely hazardous
substance" and "threshold planning
quantity" (TPQ) have also been added
because of the reference to these terms
in the minimum threshold regulation.
Additionally, "present in the same form
and concentration as a product
packaged for distribution and use by the
general public" is defined to help clarify
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38346 Federal Register / Vol. 52, No. 199 / Thursday, October 15, 1987 / Rules and Regulations
the "household product" exemption.
EPA also eliminated the reference to 40
CFR Part 300 for additional definition of
terms, since all necessary terms are now
defined in Parts 350 and 370. Finally,
EPA eliminated the definition on "Act"
because that term does not appear
elsewhere in the regulations.
Section 370.20 Applicability
Several changes were made to this
section based on public comment. First,
EPA has revised the threshold levels for
reporting, as discussed in more detail in
Section IV.B. of this preamble. EPA has
revised the rule to raise the threshold in
the second year and to establish a
threshold of 500 pounds or the TPQ,
whichever is less, for extremely
hazardous substances. (For list of
extremely hazardous substances, see 52
FR13378 (April 22,1987), to be codified
at 49 CFR Part 355.) Section 370.20 of the
final rule has been revised to reflect
these changes.
Several commenters requested
clarification on whether the threshold
applies to the calendar year or to the
year preceding October 17. The final
rule was modified to delete reference to
year in order to make clear that MSDS
reporting on October 17,1987, is to be
made for chemicals present at or above
the threshold on that date. With regard
lo inventory reporting, § 370.25 has been
modified to make clear that reporting is
for the preceding calendar year as
specified under Section 312. In addition,
the rule lias been clarified by setting out
the threshold as they apply to MSDS
reporting, inventory reporting, and
facilities that become subject to these
requirements after October 17,1987.
Section 370.21 MSDS Reporting
In response to a request for
clarification regarding reporting of
mixtures under the MSDS list reporting,
§ 370.21(b)(iii) has been modified to
indicate that the hazardous components
of mixtures do not need to be reported
on the list if the mixture itself is
reported.
The title of subsection (c) of § 370.21
has been changed from "update
reporting" to "supplemental reporting"
to reflect more accurately the content.
This paragraph has also been modified
to require that revised MSDS be
submitted not only to the committee as
indicated in the proposed rule, but also
to the commission and the fire
department. This change was made to
ensure accuracy of the files held by
these entities.
Section 370.21(d) has been revised to
clarify that facilities must respond to all
requests for MSDS, including requests
for MSDS below the threshold and
MSDS for listed chemicals.
Section 370.25(c) of the final rule
indicates that the Tier II form must be
submitted to the commission, the
committee, and the fire department upon
the request of such entities. In the
proposed rule, the commission was
omitted erroneously.
Section 370.28 Mixtures
Section (a) has been modified to
indicate that reporting of mixtures under
§§ 370.21 and 370.25 should be
consistent "where practicable." This
was done because one commenter
pointed out that consistency in reporting
may not always be possible; e.g., the
percentage of the hazardous
components may not be known.
A new section (b) was added to
describe the calculation of the quantity
of mixtures. If the reporting is on each
component that is a hazardous chemical,
then the concentration of the hazardous
chemical, in weight percent (greater
than 1% or 0.1% if carcinogenic) must be
multiplied by the mass (in pounds) of
the mixture to determine the quantity of
the hazardous chemical therein. If the
reporting is on the mixture itself, the
total quantity of the mixture must be
reported.
Sections 370.40 and 370.41 In ventory
Forms
As discussed in Section IV.I. of this
preamble, several commenters sought
clarification on the extent to which State
or local forms similar in purpose and
content could be used in lieu of the form
published under section 312. Because
facilities will need some certainty in
meeting their reporting obligations, EPA
is clarifying the rule to indicate that the
forms published today are to be
considered uniform formats for
reporting. However, State or local
governments may add supplemental
questions. New § § 370.40(a) and
370.41(a) address this issue in the final
rule. This section has also been revised
to correct an error in the proposed
rulemaking that indicated that the Tier II
form must be submitted to EPA. Section
370.41 in today's rule correctly indicates
that the Tier II form must be submitted
to the SERC, LEPC, and fire department
as required in § 370.25(c).
In response to several comments
concerning the average daily amount,
EPA has changed the method of
calculating this figure. The commenters'
primary concern was the EPA's
proposed method of calculation would
create misleadingly low figures for
chemicals that are present on-site for
only short periods of time. On the final
form, average daily amount is to be
calculated by dividing the total of all
daily weights by the number of days and
chemical was present on the site. To
reflect the amount more accurately,
however, EPA will require facilities to
report the number of days used in the
calculation.
Although several commenters
requested that EPA eliminate the
requirement for a 24-hour emergency
contact, the Agency has retained this
requirement with minor changes, as
discussed in Section IV.H. of this
preamble. The final forms for both Tier I
and Tier II have space for two
emergency contacts and contain
amended instructions that allow; the
naming of an office, instead of an
individual, as a contact.
After considering numerous comments
about the certification statement, EPA
has deleted the word "immediately"
from the proposed Tier I and Tier II
certification statements. In its present
form, the statement indicates that the
person signing has read all the
information in the inventory and has
been responsible in a supervisory
capacity—directly or indirectly—for the
gathering of the information.
EPA made several other minor
changes in both the Tier I and Tier II
forms. The revised forms include the
correct 6-2-1 block format for CAS
numbers and a 4-block format for SIC
codes. The revised instructions include
an explanation of where a facility can
find its Dun & Bradstreet number, a
clarification of the reporting of CAS
numbers of mixtures, a statement of the
thresholds promulgated by the '
regulations, and a clarification that
those thresholds apply to the calendar
year preceding the reporting deadline.
Additionally, the instructions for the
forms have been modified to
differentiate between Title III and
OSHA exemption, including the
supplementary OSHA exemptions that
apply under the newly revised hazard
communication standard.
In response to numerous comments
regarding the location identification
system on the Tier II form, the Agency
has clarified that the building and lot be
indicated, at a minimum, and has added
the option of providing a brief narrative
statement of location to the site plan
and site co-ordinates options. EPA has
removed the 3-space site co-ordinate
abbreviation and added a blank line to
provide more space for this narrative
description. Minor changes made to the
Tier II form also include more space for
the chemical name. In addition, code 6
of the temperature and pressure codes
("less than ambient temperature") was
revised slightly to avoid overlap
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38347
between code 6 and code 7 ("cryogenic
conditions").
IV. Reponses to Major Public Comments
A document summarizing the
comments and providing EPA's
responses to all the public comments is
available in the public docket to this
final rule. The major issues raised by the
commenters and the Agency's response
to them are described below.
A. Definitions
1. "Facility"
Several commenters requested a
clarification of the general definition of
"facility" for purposes of Title III.
Commenters requested that the term be
limited to manufacturing, distribution,
and storage facilities, or to operations
required to prepare or have available an
MSDS rather than the whole site. Other
commenters asked the Agency to clarify
whether the term excludes motor
vehicles, rolling stock, and aircraft.
Additional comments questioned
whether the term "facility" includes
non-adjacent warehouses and
contractors who bring hazardous
materials onto a plant site.
In both the proposed and final rules,
EPA has codified the definition of
"facility" provided in section 329 of
SARA. Section 370.2 provides that, for
the purposes of these regulations,
"facility" means all buildings and other
stationary items located on contiguous
property under common ownership or
control. Certain non-stationary items
(motor vehicles, rolling stock, and
aircraft) are also considered facilities,
but only for the purposes of emergency
release notification under section 304 of
the Act (codified at 40 CFR 355.40).
Thus, transportation vehicles are not
"facilities" for purposes of this rule.
("Transportation-related facilities"
under Title III are further defined in 40
CFR 355.20.)
In response to comments requesting
EPA to limit "facility" to manufacturing,
distribution, and storage, under Section
329, the term "facility" is not limited to
manufacturing, distribution, and storage
facilities, or operations required to
prepare or have available an MSDS.
However, sections 311 and 312
requirements are applicable only to
facilities required to comply with the
OSHA hazard communication standard,
which is currently limited to facilities in
SIC codes 20-39. OSHA has recently
expanded'the application of the hazard
communication standard to facilities in
the non-manufacturing sector, to be
effective over the next nine months. 52
FR 51852 (August 24,1987). With respect
to the non-adjacent.warehouses, any
offsite storage would be considered a
separate facility because the definition
of "facility" includes only adjacent or
contiguous property.
With respect to contractors bringing
hazardous material on-site, the
hazardous material brought to a facility
is subject to sections 311 and 312
requirements if the facility is required to
prepare or have available an MSDS for
the material. Off-site contractors, if
subject to OSHA MSDS requirements,
will be required to submit MSDS and
inventory forms for the material.
2. "Hazardous Chemical" Issues
Several commenters believed that
federal agencies should develop a
common definition of "hazardous
substance" and "hazardous chemical."
Title HI uses several different terms to
describe related groups of substances.
"Hazardous substances" are substances
subject to CERCLA provisions and are
defined in section 101(14) of that Act.
"Extremely hazardous substances" are
substances subject to the emergency
planning provisions of Title III and are
defined in section 302 of SARA.
"Hazardous chemical" comprises the
group of substances subject to sections
311 and 312 and is defined as all
"hazardous chemicals" as defined under
OSHA and its implementing regulations,
but with five additional exclusions
under section 311(e) of Title III. Because
all of these groups of substances are
specifically defined by statute. EPA is
not able to revise the definitions to
eliminate all differences among them.
However, EPA is attempting to clarify
the requirements pertaining to these
different types of substances both
through the Title HI rulemakings and in
future rulemakings concerning CERCLA
hazardous substances so that any
confusion generated by the different
definitions is minimized.
EPA received numerous requests for
clarification of the OSHA definition of
"hazardous chemical."
Under OSHA's hazard communication
standard, "hazardous chemical" is
defined as any element, chemical
compound, or mixture of elements and
compounds that is a physical or health
hazard. 29 CFR 1910.1200(c). OSHA does
not specifically list all of the substances
that may be "hazardous chemicals" but
provides definitions of hazards, criteria
for evaluating hazard information, and
sources of information to determine the
physical and health hazards of each
chemical. Section 311(e) provides five
exclusions from this definition. These
exclusions are listed under the'
definition of "hazardous chemical"
under § 370.2 of this regulation.
OSHA regulations also exempt other
substances and products from the MSDS
requirements, including Resource
Conservation and Recovery Act (RCRA)
hazardous wastes, tobacco products,
wood, and manufactured articles.
Because these are not exclusions from •
the definition of "hazardous chemical"
but rather from the applicability of the
MSDS requirements, these exclusions
are not listed under § 370.2 of the final
rule, as requested by a commenter, but
are provided in the instructions on the
Tier I and Tier II forms.
3. "Research Laboratory"
The Agency received numerous
comments requesting clarification of the
exemption under section 311(e) for
chemicals used in research or medical
facilities. '
Section 311(e)(4) of SARA and § 370.2
of the regulations exclude from the
definition of "hazardous chemical" any
substance to the extent it is used in a
research laboratory or a hospital or
other medical facility under the direct
supervision of a technically qualified
individual. EPA believes that this
exclusion is designed to exempt
facilities where small amounts of many
types of chemicals are used, or stored
for short periods, that are not hazardous
to the general public when administered
or used under appropriate supervision.
• In addition, it is important to
recognize that the exemption applies to
the substance used, rather than to the
entire facility. Thus, research and
medical facilities are not exempted from
reporting requirements under sections
311 and 312; rather, they will not need to
provide information on many of their
chemicals.
With respect to research laboratories,
EPA interprets the exclusion to apply to
research facilities as well as quality
control laboratory operations located
within manufacturing facilities.
However, laboratories that produce
chemical specialty products or full-scale
pilot plant operations are considered to
be part of manufacturing rather than
research operations and would not be a
"research laboratory." EPA has adopted
this interpretation of "research
laboratories" because it is consistent
with the interpretation of "laboratory
operations" used by OSHA in enforcing
its limited requirements under the
hazard communication standard for
such facilities. In addition, the Agency
believes this definition is consistent
with the purpose of this exemption
because it confines the exclusion to
operations where small quantities of
hazardous substances are used for short
periods of time under the supervision of
highly trained individuals.
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38348 Federal Register / Vol. 52. No. 199 / Thursday, October 15, 1987 / Ru^s and Regulations
With respect to medical facilities,
commenters requested that EPA exempt
veterinary and dental operations and
portions of facilities dedicated to
medical or first-aid purposes. In
contrast, one commenter requested that
EPA eliminate the exclusion for medical
facilities.
EPA does not believe that it has the
authority to expand the definition of
"hazardous chemical" beyond that
provided by Congress in section 311(e)
and therefore cannot eliminate the
exclusion for substances used in
medical facilities. However, as noted
earlier, the exclusion is not for medical
facilities but is limited to substances
used in the facility for medical purposes.
In addition, such substances must be
used under the direct supervision of a
technically qualified individual. A
medical facility might also use or store
hazardous chemicals that are not used
for medical purposes under the
supervision of a "technically qualified
individual." Such chemicals would be
subject to sections 311 and 312
requirements unless excluded under
another exemption under section 311 or
OSHA.
With respect to the scope of the
definition of "medical facility," EPA
believes that the term includes
veterinary and dental operations and
any portion of a facility devoted to
medical treatment, including first-aid.
4. "Household Products"
Several commenters requested
clarification of the household product
exemption. One commenter specifically
requested clarification about petroleum
products.
Section 311(e) exempts from the
definition of "hazardous chemical" any
substance to the extent it is used for
personal, family, or household purposes,
or is present in the same form and
concentration as a product packaged for
distribution and use by the general
public. EPA interprets this exclusion to
apply to household or consumer
products, either in use by the general
public or in commercial or industrial use
when in the same form and
concentration as the product intended
for use by the public. Because the public
is generally familiar with such
substances, their hazards, and their
likely locations, the disclosure of such
substances is unnecessary for right-to-
know purposes.
This exemption is for general
household and domestic products, and
thus the clearest example of its
application is ordinary household
products stored in a home or located on
a retailer's shelf. However, EPA believes
that this exemption also applies to such
products prior to distribution to the
consumer when in the same form and
concentration, and to such products
when not intended for use by the
general public. Thus, the exemption also
applies to any substance packaged in
the same form and concentration as a
consumer product whether or not it is
used for the same purpose as the
consumer product. In addition, the
exemption applies to such products
when purchased in larger quantities by
industrial facilities if packaged in
substantially the same form as the
consumer product and present in the
same concentration. The exemption will
not apply to substances present in
different concentrations from the
consumer products even if the substance
is only used in small quantities.
In the July 14,1987, notice, EPA
requested comment on the scope of the
exemption from the definition of
"hazardous chemical" under section
311(e) for consumer or household
products. EPA specifically requested
comment on whether the term "form" in
the phrase "present in the same form
and concentration as a product
packaged for distribution and use by the
general public" should refer to the
packaging of the product or .only the
physical state.
Most commenters on the notice
supported EPA's interpretation that this
exemption would apply to a substance
in the same concentration as the
analogous consumer product whether or
not it is used for the same purpose or
intended for use or distribution to the
general public. Thus, a product labelled
"for industrial use only" would qualify
for this exemption if it was in the same
form and concentration as the analogous
product used by the general public.
However, several commenters
disagreed with EPA's proposed
interpretation that the term "form" refer
to the packaging, rather than the
physical state, of the substance. One
commenter argued that the packaging of
a product does not usually affect its
hazardous properties. EPA disagrees;
the packaging of the product not only
may affect the hazard presented by a
particular substance but also will affect
the degree to which the public will be
generally familiar with the substance, its
hazards, and its likely locations. For
instance, if "form" refers only to
physical state, then the amount of the
product present in a container is
irrelevant. Thus, a substance may be
packaged in small containers when
distributed as a household product but
transported or stored in bulk quantities
when used for other purposes. Even
though in the same concentration as the
household product, a substance may
pose much greater hazards when
present in significantly larger quantities.
In addition, while the general public
may be familiar with the hazards posed
by small packages of hazardous
materials, they may not be as aware of
the hazards posed by or likely locations
of the same substances when
transported or stored in bulk. As a
result, EPA has retained the proposed
interpretation of the consumer product
exemption as more consistent with the
community right-to-know purpose of
section 311 and the section 311(e)
exemptions. EPA has also added a
definition of this exemption to the
regulation.
One commenter stated that the
reference to this exemption as the
"household product exemption" implies
that products used for personal or family
purposes but that would not normally be
considered "household products" are
not exempted. However, section 311(e)
explicitly refers to substances used for
"personal, family, or household
purposes," and EPA did not intend t.o
imply any limitation on this exemption
that would exclude only substances
used for household purposes.
Concerning the effect of the
exemption, EPA agrees with
commenters who suggested that the
exemption for consumer products
applies even if the owner or operator of
the facility must prepare or have
available an MSDS for the substance.
The requirements for MSDS submission,
both in the statute and under the
regulation, apply only to a facility that is
required to prepare or have available an
MSDS for a hazardous chemical.
Because Title III contains exemptions
from the definition of hazardous
chemical that do not occur under the
OSHA hazard communication standard,
not all MSDS are subject to the MSDS
reporting requirement under Title III.
This is true of all exemptions under
section 311(e), not just the household
product exemption.
With respect to petroleum products, a
petroleum product is excluded from the
definition of hazardous chemical only
when used for personal, family, or
household purposes, such as gasoline in
a family motor vehicle, or when the
petroleum product is packaged in the
same manner as a product available to
the general public, such as a can of
motor oil. Certain petroleum products or
petroleum-derived materials may also
be excluded under section 311(e)(5)
when they are used as part of routine
agricultural operations or are fertilizers
held for sale by retailers,
5. Other Exemptions'
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Federal Register / Vol. 52, No. 199 / Thursday, October 15, 1987 / Rules and Regulations 38349
A number of comments dealt with
exemptions of specific substances or
facility types.
With respect to questions concerning
the exemption of radioactive sources,
non-isolated intermediates, and scrap
steel or steel and metal components,
MSDS for these substances are required
under Title III only if MSDS are
necessary for them under OSHA and
they meet the definition of "hazardous
chemical" under section 311(e). For
example, OSHA requires MSDS for non-
isolated intermediates, and EPA does
not see the need to exempt these
substances from reporting.
OSHA has not included radioactivity
as a hazard to be covered under the
HCS. Such hazards would generally be
covered under rules of the Nuclear
Regulatory Commission or OSHA's
radiation rule. Thus, radioactive
substances are not subject to reporting
under sections 311 and 312.
Steel and other similar non-reactive
solids are gejnera'ly exempt from MSDS
requirement under OSHA (and thus
from sections 311 and 312) when they
are articles shaped during manufacture
whose end use depends upon that
shape. (See 29 CFR 1910.1200(b).} Even if
subject to the OSHA MSDS
requirements, steel and other
manufactured solids are excluded from
sections 311 and 312 reporting under
section 311(e)(2).
Other comments concerning
exemptions touched on the applicability
of these requirements to newspaper
producers, general merchandise
retailers, and suppliers, dealers, or
wholesalers who are not involved in the
manufacture, repackaging, or use of
hazardous chemicals.
Contrary to the commenters'
suggestions that reporting by such
facilities would be unnecessary, the
Agency does not believe that
exemptions for these facilities would be
justified at this time. The basis of
community right-toTknow is not simply
the risk that the specific facility may
pose to a community by virtue of its
manufacture, processing, or direct use of
a chemical, but rather, the availability of
information to the surrounding
community concerning the amounts and
location of certain substances that are.
present at a facility. Thus, if newspaper
producers or merchandise suppliers,
retailers, or dealers use, handle, or store
"hazardous chemicals" for which an
MSDS is required under OSHA, the
public should have access to that
information.
One commenter sought clarification of
whether "storage" includes materials in
pipelines and similar transportation
systems.
Pipelines are part of the
transportation exclusion under section
327, which excludes transportation-
related facilities from all requirements
under Title III except Section 304 release
notification. Thus, materials on pipelines
are not subject to the Section 311 and
312 reporting requirements.
Several commenters offered
recommendations on exemptions in the
agricultural area. Section 311(e)(5) is a 2-
part exemption that excludes retailers of
fertilizer from reporting requirements for
the fertilizer and also excludes any
substance when used in routine
agricultural operations. EPA believes
that this exemption is designed to
eliminate reporting of fertilizers,
pesticides, and other chemical
substances when applied, administered,
or otherwise used as part of routine
agricultural activities. Fertilizers
handled by retailers, even though not
directly utilized by such persons for
agricultural purposes, are also excluded.
Because the general public is familiar
with the application of agricultural
chemicals as part of common farm,
nursery, or livestock production
activities, and the retail sale of
fertilizers, there is no community need
for reporting of the presence of these
chemicals.
EPA agrees with the commenter who
requested that the agricultural
exemption be applied to horticultural
growers. The term "agricultural" is a
broad term encompassing a wide range
of growing operations, not just farms,
and includes nurseries and other
horticultural operations. In addition, the
general public is likely to expect
pesticides and fertilizers to be used in
such operations.
Another commenter would exempt
farm supply co-operatives and other
retail distributors of agricultural
chemicals.
Under section 311(e](5), substances
sold as fertilizers would not need to be
reported under sections 311 and 312 by
retail sellers because such substances
are not "hazardous chemicals."
However, other agricultural chemicals,
such as pesticides, would need to be
reported by retailers and suppliers of
such chemicals if and when they
become subject to the OSHA hazard
communication standard. The
exemption for substances used in
routine agricultural operations applies
only to substances stored or used by the
agricultural user.
Thus, agricultural chemical retail and
storage operations not now covered by
the OSHA hazard communication
standard will also become subject to
reporting under sections 311 and 312 of
Title III when the OSHA MSDS
requirements for such businesses
become effective.
B. Thresholds
1. Threshold Quantities for the
Hazardous Chemicals in Each Year and
the Appropriate Phase-in
Section 370.20 of the proposed rule
was designed to allow facilities and
State and local governments to phase in
the receipt and submission of reports
under sections 311 and 312 over three
years. In the first year, only chemicals
stored in excess of 10,000 pounds were
to be reported; in the second year, the
threshold was to drop to 500 pounds*
triggering reporting on chemicals stored
between 500 and 10,000 pounds; in the
third year, there was no threshold, so
that all remaining hazardous chemicals
were to be reported. EPA solicited
comments in the proposed rule on the
appropriate length of the phase-in period
and threshold levels for each year. After
receiving and considering the comments
concerning the phase-in threshold, EPA
reopened the comment period on those
issues in the July 14,1987, notice. EPA
requested comment on an option under
which the first-year threshold would be
10,000 pounds, maintained at 10,000
pounds in the second year, and dropped
to 500 pounds in the third and final year
of the phase-in.
a. Length of phase-in. Numerous
commenters addressed the issues of the
number of years for phase-in of
reporting and the appropriate threshold
levels for each year. By far, most
comments on the phase-in approach
viewed it favorably, either stating"
specifically that the commenter was in
favor of a phase-in approach, or
suggesting alternative phase-in schemes
ranging from two to ten years in length.
The general reasons given in favor of
phasing-in the reporting were:
alleviating the administrative burden on
government and industry and allowing
time for information management
planning and for the development of
information management systems.
Fewer than ten of the more than 90
comments dealing with the phase-in
opposed the approach. Some of these
comments questioned whether or not
EPA had statutory authority to use the
phase-in approach; others said that the
information should be immediately
available or suggested that a phase-in
would not alleviate the burdens on
government and industry but simply
spread the burdens put over time.
Most of the commenters who favored
the phase-in approach supported a 3-
year phase-in schedule. Some
commenters, however, suggested that
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33350 Federal Register / Vol. 52. No. 199 / Thursday, October 15, 1987 / Rules and Regulations
the phase-in be lengthened, in order to
provide more time for proper evaluation
and management of incoming data, as
well as to give industry,time to set up
appropriate data management systems.
Comments suggesting a phase-in
longer than three years fell into three
categorios. About half of these used
LPA's proposed initial threshold but
maintained at least one initial or
intermediate threshold for two or more
years, allowing for more gradual
adjustment to the final threshold level.
Approximately one-quarter of the
comments requested higher initial
threshold quantities (ranging from 20,000
up to 100,000 pounds) and suggested
reasonable extension to the phase-in
period. The third group requested a
longer phase-in, without specific
quantity suggestions. Several
individuals favored a "wait and see"
approach, suggesting that EPA should
re-evaluate the final threshold decision
in the second or third year. Nearly all
commenters on the July 14 notice
supported the 3-year phase-in.
EPA disagrees with commenters who
questioned EPA's statutory authority to
establish phase-in thresholds. Section
311(b) provides very broad authority to
the Administrator to establish threshold
quantities below which a facility may be
exempted from reporting under sections
311 and 312. Given the serious concerns
raised in the legislative history over the
paperwork burden that may be created
fur State and local governments under
these provisions, EPA believes that
Congress intended EPA to use this
b.-oad authority to establish thresholds
that would appropriately balance the
public right-to-know with the potentially
overwhelming flood of information to
State and local governments, especially
in the first years of the program. EPA
has thus used its authority to fashion the
thresholds to meet this Congressional
objective. EPA has found no indication
in the statutory language or legislative
history that the establishment of
thresholds based on time as well as
amounts of chemicals would be
inconsistent with Congressional intent.
EPA agrees with the majority of
commenters, who stressed the
importance of providing time for local
and State governments to set up data
management systems by reducing the
volume of information being processed
initially. Because EPA continues to
believe that the phase-in of information
is crucial to the development of effective
Title HI right-lo-know programs and that
there Is no specific limitation on the type
of threshold EPA may establish under
the statute, EPA has decided to retain
the 3-year phase-in approach in the final
rule with some modifications.
EPA recognizes the concern expressed
by some commenters over the
immediate need to have access to
valuable information on chemicals
stored below the threshold level. In
response, EPA believes that the rule
reduces the potential loss of important
information due to the threshold in
several ways. First, as discussed below,
§ 370.20 provides no phase-in of
thresholds for extremely hazardous
substances, which are substances
identified by Title III as significant for
emergency planning. Second, the public
retains access, by request, to MSDS for
chemicals stored below the threshold.
Third, EPA has retained a relatively
short, 3-year phase-in schedule so that
the baseline threshold is achieved
quickly.
EPA recognizes that extending the
phase-in beyond three years would
provide government and industry with
additional time to adjust and thus might
be beneficial. There is, however, some
burden potentially associated with
extending the phase-in period, since it
delays the date at which full reporting
above the permanent threshold is
mandatory. In doing so, it prolongs the .
uncertainty over how much and what
information may be generated and may
increase the number of requests during,
that time. In addition, as discussed
below, EPA is not raising the initial
threshold above the proposed threshold
level (10,000 pounds), thus obviating the
need to prolong the phase-in on that
ground.
b. Threshold Quantities—i. Final
Threshold Level. One of the most
significant issues in the rulemaking was
the issue of whether or not EPA should
establish a non-zero threshold in the last
year of the phase-in.
Approximately 100 commenters
addressed the issue of whether or not
zero was an appropriate permanent
reporting threshold, with or without the
phase-in approach. Of these, few
favored the proposed reduction of the
threshold to zero in the final year.
Arguments made by those favoring
the zero threshold emphasized (a) the
volume of information that would be
lost through establishment of a non-zero
threshold, (b) the difficulty of requesting
desired information below the threshold .
without the chemical-specific
information in section 311 for all
volumes of chemicals, and (c) the
potential hazards posed by small
quantities of chemicals.
The points raised by proponents of
non-zero thresholds fall into several
general groups. First, because there are
numerous chemicals stored in very small
quantities, .the data management burden
created by zero thresholds could be
overwhelming for the recipients of the
data, thus jeopardizing public access to
the information. Second, they argued
that non-zero threshold levels could be
established that would capture all
substances of concern to the community
or emergency response personnel and
fire departments. Finally, a large
majority of those arguing for non-zero
thresholds also suggested that the same
threshold should not apply to the
extremely hazardous substance list;
thus, they argued that information on
chemicals of concern at lower levels
could be made available without
requiring reporting at those levels for all
chemicals.
Although several commenters
requested that the final threshold be
non-zero without specifying the amount,
the majority of comments contained
suggestions for a final threshold, ranging
from de minimis or one-pound quantities
up to 50,000 pounds. However, few
commenters provided a justification for
the numbers they suggested.
EPA believes that there are several
competing concerns that, must be
weighed in determining an appropriate
final threshold level. First, information
On chemicals of most concern to
planners and communities must be
readily available. In addition, enough
information should be available for
members of the public and public
officials to be able to ascertain what
additional information they want to
request. Third, the burden generated for
government recipients of the reports
should be manageable.
After considering the arguments both
supporting and opposing the
establishment of a non-zero threshold in
the final year of the phase-in, and after
considering the comments on the 500-
pound permanent threshold that EPA
suggested in the July 14 notice, EPA
believes that the balance of these
concerns weighs in favor of a non-zero
threshold.
However, at this time the Agency is
not setting a final threshold, but will
propose one after conducting a study of
alternative thresholds. The Agency has
considered 500 pounds (approximately
the weight of a 55-gallon drum) 'as the
final threshold beginning in the third
year of reporting. Five hundred pounds
thus will be the point of departure for
discussion of a final threshold. This ,
threshold would eliminate automatic
reporting of numerous chemicals that
are stored in smaller quantities. As
discussed in more detail below,
estimates based on available evidence
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Federal Register / Vol. S2. No. 199 / Thursday, October 15, 1987 / Rules and Regulations 38351
suggest that 35 to 57 percent of MSDS
would be subject to sections 311 and 312
reporting, except upon request, as a
result of the 500-pound threshold.
While a 500-pound threshold would
eliminate numerous reports of de
minimis levels of hazardous chemicals,
a substantial volume of information
would still be provided to State and
local governments. The 500-pound level
is also the most common non-zero
threshold in effect in States with
community right-to-know laws. Over
half of all States have community right-
to-know laws. Almost one-third of these
have a threshold of 500 pounds; the
remaining States have thresholds
ranging from zero to 500 pounds. This is
important since EPA's primary concern
in establishing thresholds under sections
311 and 312 is to prevent State and local
governments from being so
overwhelmed with submissions under
this program that effective public access
and government use of the information
are not possible. A significant number of
commenters also supported the 500-
pound threshold.
Finally, the expansion of OSHA's
hazard communication standard to non-
manufacturing employers and the
consequent changes in both the number
of MSDS and the number of facilities
covered by Title III magnify the
difficulties associated with a lower, or
zero threshold. Because the community
right-to-know laws in some of the States
described above provide broader
coverage than is currently provided
under sections 311 and 312 (i.e., they
include non-manufacturing facilities that
will not be subject to sections 311 and
312 requirements until May, 1988), they
provide a significant measure of the
continued appropriateness of this
threshold when these requirements
become applicable concurrently with the
expanded hazard communication
standard.
Even if EPA were to establish such a
500-pound threshold, this would not
suggest that no chemicals of interest to
emergency responders, planners, fire
departments, or the public are stored in
quantities less than 500 pounds, or that
all chemicals stored above 500 pounds
pose a hazard to the community. Rather,
this threshold would attempt to
establish a balance between setting the
level high enough to avoid an
overwhelming paper burden for State
and local governments and low enough
to avoid a loss of substantial amounts of
information. Similarly, a threshold less
than 500 pounds would likely present an
unmanageable administrative burden.
Thus, States or local governments could
request information on substances
below the threshold, or a State could
require reporting at lower thresholds
under State law.
EPA has also considered higher final
threshold levels. As part of the
Regulatory Impact Analysis (RIA) in
support of the proposed rulemaking,
EPA estimated the percentage of
chemicals and facilities that would be
covered at different threshold levels.
This analysis was revised and expanded
for the RIA in support of final
rulemaking. The analysis is the final RIA
of the effects of thresholds on reporting
is based on data sets provided by three
States (New Jersey, New York, and
Michigan) on the quantity of chemicals
stored at a substantial number of
manufacturing facilities, for limited lists
of hazardous substances. Although the
data from each State were adjusted so
that the results would be representative
of the effects of thresholds nationwide,
the limited numbers of facilities
reporting, the restrictive chemical lists,
and other limitations of the data suggest
that the results be viewed with caution.
EPA analyzed four alternatives for the
final threshold. Estimates indicate that a
500-pound threshold would lead lo
reporting by between 50 and 82 percent
of the facilities covered by current
OSHA requirements, and submissions of
between 35 and 57 percent of. the MSDS
for these chemicals. At this level, the
cost to industry in the third year is
estimated to be $348 million. At higher
thresholds, reporting would be further
reduced; a 2,000-pound threshold could
result in between 35 and 47 percent of
facilities reporting and 22 to 32 percent
of chemicals being reported. At the 2,000
pound level, the cost to industry in the
third year is estimated to be $225
million. In addition, a threshold that
reduces reporting significantly could
place substantial burdens on all parties
by increasing the numbers of requests
made by government and the public for
additional information from facilities.
On the other hand, a 50-pound threshold
could result in between 77 and 90
percent of facilities reporting and
between 64 and 79 percent of chemicals
reported. At this level, the cost to
industry in the third year is estimated to
be $387 million. At a zero threshold
level, the cost to industry in the third
year is estimated to be $500 million.
Although information indicates that the
500-pound threshold may represent the
most appropriate balance between the
broad right-to-know information
submission objectives of these
provisions and the need to avoid
overwhelming State and local
governments with the submission of
vast amounts of information on de
minimis amounts of chemicals, EPA is
deferring the establishment of a
threshold in the third year of the phase-
in. The substantial number and
variation of comments received on this
issue and the great uncertainty over the
impact of these requirements on the
recipients of this information, and
ultimately on the effectiveness of this
program, create a need for further study
prior to establishing a permanent
threshold level.
After the initial submission of the
Section 312 inventory forms in March,
1988, EPA will have more information
about the effectiveness of the regulatory
thresholds under the federal right-to-
know program. During this evaluation,
EPA will, examine compliance
experience with both State and federal
right-to-know programs, the
completeness of information generated
under these programs, the ability of
State and local officials to manage and
provide public access to this
information, the number and source of
requests for additional facility
information, and volumes of hazardous
chemicals covered at a range of
thresholds. As stated above. Following
such review, EPA will initiate another
rulemaking to establish the final year
thresholds.
ii. Initial Threshold Levels.
Approximately 50 comments on the
proposal addressed the issue of the
threshold level in the initial year of a
phase-in, either by proposing a specific
phase-in schedule of quantities or by
registering support of the EPA proposal
but suggesting a modification for the
final year. Over half of these comments
favored 10,000 pounds. The remaining
suggestions ranged between 15,000 and
100,000 pounds (one comment suggested
up to 500,000 pounds for some
chemicals), with a substantial number
favoring 50,000 pounds.
In general, arguments that supported
raising the first-year threshold
emphasized the consequent decrease in
the reporting burden and the belief that
adequate information on large volume
chemicals would still be available with
a higher threshold.
After considering comments on the
proposal and the July 14 notice, EPA has
decided to retain 10,000 pounds as the
initial threshold because that level
provides the appropriate balance
between ensuring that the public has
access to information on large volume
chemicals and reducing the number of
reports to manageable levels in the first
years of the program. EPA has rejected
establishing higher initial thresholds
because it believes that a threshold
greater than 10,000 pounds might not
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38352 Federal Register / Vol. 52,Ijo. 199 /Thursday, October 15. 1987 /' Rulesj^d Regulations
provide sufficient information in the first
year of reporting; the best estimates
available to EPA indicate that a
threshold equal to 10,000 pounds may
reduce reporting to less than 13 to 22
percent of facilities or 8 to 13 percent of
chemicals. EPA believes that a reduction
in reporting below these levels would
not be consistent with the community
right-to-know purpose of these
provisions and would provide marginal
benefits in terms of information
management, in comparison with a
10,000-pound reporting threshold.
iii. Thresholds for Non-manufacturing
Facilities. As indicated in the January 27
proposal and in the July 14 notice, EPA
believes that section 311 and 312
reporting requirements apply to any
facilities subject to OSHA's MSDS
requirements for any Title III
"hazardous chemical." Because these
requirements are self-implementing
under the statute, EPA does not need to
promulgate a rule in order for these
reporting requirements to become
effective. Under section 311(d), facilities
must submit an MSDS for each
hazardous chemical (or a list of such
chemicals) to the appropriate State and
lucal authorities by October 17,1987, or
•within three months after they are
I -quired to have or prepare such an
MSDS. Thus, under the statute, facilities
r ewly covered by the OSHA MSDS
ruquirements must submit those MSDS
v.ithin three months after they are
required to comply with the MSDS
requirements. Because OSHA's MSDS
requirements will become effective for
t!te non-manufacturing sector in May,
1088 (see 52 FR 31852, (August 24,1987)),
sach facilities will be required to submit
these MSDS under section 311 in
August, 1988. Similarly, inventory forms
under section 312 for these facilities
must be submitted annually beginning
March 1,1989.
However, although the section 311
and 312 requirements take effect without
any regulatory action on the part of
EPA, the Agency may, by exercising its
discretion under the statute to establish
minimum thresholds for reporting, limit
the facilities or number of MSDS to be
submitted under these provisions. EPA
has, under this rule, established such
thresholds and amended the proposed
threshold regulation specifically to
provide analogous thresholds to
facilities newly subject to these
requirements after October 17,1987.
Some commenters have suggested that
EPA limit this rule to facilities currently
subject to the OSHA MSDS
requirements, i.e., facilities in SIC codes
20-39. However, the effect of such
limitation would not be to limit the
- scope of the section 311 and 312
reporting requirements since such
requirements are effective without
regulation, but rather to limit the
thresholds established by this rule to
manufacturing facilities. A zero
threshold would thus be in effect for
facilities in the non-manufacturing
sector that become subject to the MSDS
requirements in May, 1988, and would
result in precisely the paperwork burden
that the thresholds in this rule are
intended to avoid.
Moreover, EPA solicited comment on
the appropriateness of the thresholds in
today's rule as they would apply to the
expected OSHA expansion universe.
Based on information currently
available, EPA believes that the
thresholds applicable to the
manufacturing sector currently subject
to sections 311 and 312 would be equally
applicable to the non-manufacturing
facilities that will soon be subject to the
MSDS requirements. However, as a
result of concerns raised over the
possible need to provide different
thresholds for the facilities newly
subject to these requirements as a result
of OSHA's expanded MSDS
requirements, EPA is undertaking
additional analysis of the universe
newly-covered by the OSHA MSDS
requirements. This analysis will include
a more detailed analysis of small
business impacts, a review of some
current Stats right-to-know programs
that cover non-manufacturing, and the
need for different thresholds for such
facilities. Following such review and
prior to the time that this rule requires •
actions by the newly covered non-
manufacturing universe, EPA will make
the analysis public, receive comment,
and, if appropriate, revise the relevant
thresholds.
2. Thresholds for the Extremely
Hazardous Substances and Other
Chemical Lists
In the proposed rule, EPA provided an
exeception to the phase-in for
substances on the list of extremely
hazardous substances under section 302
of Title III. The threshold for reporting of
such substances was zero in the first
year. EPA requested comments on
whether the threshold provision should
contain this exception and whether
there should be additional exceptions
for other special chemical lists.
A majority of the over 60 comments
on this issue suggested that thresholds
should be lower for some classes of
hazardous chemicals (than for
hazardous chemicals in general), but
that the threshold for such substance
should still be non-zero. Several
comments requested that there be no
"special chemical exception" to the
reporting thresholds on the basis that it
complicated the process. A few
commenters suggested zero or very low
thresholds for varying lists of chemicals
(e.g., SARA section 302 Extremely
Hazardous Substances (EHS),
carcinogens on the IARC list, other
known human carcinogens, or SARA
section 313 chemicals). Those comments
that addressed the EHS list were split
between suggesting thresholds equal to
the "reportable quantities" (RQs) and
thresholds equal to the "threshold
planning quantities" (TPQs) for the EHS.
(See the April 22,1987, final rule for
further discussion of RQs and TPQs. 52
FR 13378.)
Of the comments favoring thresholds
that are lower for the EHS than for
hazardous substances in general, most
favored a non-zero threshold and argued
that the burden of accounting for and
reporting de minimis quantities far
outweighs the risk posed by the EHS in
very small quantities. Several
commenters argued that reporting of
minute quantities of these chemicals
creates an unnecessary burden on local
and State governments and on
emergency response groups who receive
the information.
Several arguments were made
concerning the appropriateness of the
TPQs or the RQs for EHS thresholds.
The risk of off-site hazard posed by
these chemicals either for emergency
planning or for emergency response
purposes has already beon explicitly
taken into account in determining the
TPQs and RQs. Thus, several comments
argued, quantities stored-below these
amounts are unimportant for planning,
response, or other purposes of sections
311 and 312.
After consideration of the several
arguments and approaches suggested by
commenters, EPA suggested a one-
pound de minimis threshold for the EHS
list in the July 14 notice. Based on the
additional comments received on the
notice, EPA has decided to revise the
rule to establish a reporting threshold
for each EHS of 500 pounds or the TPQ,
whichever is less. This threshold will be
effective from the first year of reporting
onward.
There are several reasons for
establishing these thresholds. First, EPA
continues to believe that reporting on
the EHS should not be subject to the
phase-in. Because, based on the
information available to date, EPA
believes that the 500-pound level
represents an appropriate permanent
threshold, the Agency is requiring
reporting of EHS at a 500-pound
threshold during the first year of
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reporting, so that information on these
chemicals can be made available to the
community, while initial planning efforts
under section 303 are underway.
In addition, the EHS list represents
chemicals that are of particular interest
to the community; the TPQs have been
established as representing quantities of
these chemicals that may pose risks to
the community and, thus, are of interest
to emergency planners. The Agency has
decided, therefore, that for each EHS for'
which the TPQ is less than 500 pounds,
the threshold in the first year and in
subsequent years should be the TPQ.
This will ensure that information
concerning these chemicals will be
available not only to emergency
planners, but to emergency responders
and the general community as well.
EPA is not expanding the list of
chemicals subject to the "special
chemical threshold" beyond the EHS
list. EPA has singled out the EHS list as
an exception to the phase-in for several
reasons. Although there are numerous
chemical lists referenced in Title III, the
Agency believes that information
concerning EHS will be critical for
States and local governments during the
next year when emergency planning
efforts are under way. Under section 303
of Title III, local committees must
prepare an emergency response plan by
October, 1988. Because the EHS list
developed under section 302 of Title III
is intended to be the basis of initial
emergency planning efforts under
section 303, information concerning all
EHS present at facilities will be critical
in the first year of section 311 reporting.
EPA believes that such information
should be made easily accessible to the
local planning committee through
mandatory reporting under sections 311
and 312, rather than burdening the
committee in the first year of its
organization with the need to request
information on EHS from each facility
under section 303(d) or section 311(c).
C. Submission of Material Safety Data
Sheets
1. Material Safety Data Sheet (MSDS) or
List Option
A facility may meet the requirements
of section 311 either through submission
of MSDS or a list of chemicals for which
an MSDS is required. In the preamble
to the proposed rule, the Agency
encouraged facilities to exercise the list
option whenever possible.
With one exception,.the commenters
indicated unqualified support of the list
option. In addition, many commenters
inquired whether use of MSDS for
routine reporting of potential community
hazards is actually productive and cost-
effective. However, numerous
commenters indicated that the lists
would be difficult to prepare because of
the difficulty in using the 23 hazard
categories.
As discussed in more detail in Section
III. D. EPA has reduced the number of
hazard categories in this final
rulemaking in order to facilitate list
reporting. EPA is continuing to
encourage list reporting because it
reduces the information management
burden on recipients of the information
without substantially reducing the
amount of information provided.
One commenter requested
clarification regarding the right of a
State emergency response commission
or local emergency planning committee
to mandate the submission of a list
rather than the actual MSDS. Because
the federal law expressly provides that
facilities may choose whether to submit
a chemical list or each MSDS, EPA has
also provided this option in today's final
rule. However, State or local
governments may effectively limit this
choice by establishing reporting
requirements pursuant to their own
authority.
2. Format and Content of Material Data
Sheets
Several commenters requested
various changes to the MSDS format,
such as the inclusion of the hazard
categories on the MSDS.
EPA agrees that the addition of
hazard categories on the MSDS would
be useful and encourages chemical
manufacturers to include this
information. However, EPA does not
believe that modification of the MSDS
can be required in this rule; the content
of the MSDS is subject to the regulatory
authority of OSHA, not EPA.
A number of commenters raised
concerns about the responsibility for
accuracy of MSDS information on the
part of manufacturers and chemical
users who pass on an MSDS received
from other manufacturers.
"Downstream" recipients of an MSDS
are not generally responsible for its
content. However, EPA believes that if
an owner or operator is aware of
inaccurate or inconsistent information,
he should take reasonable steps to
clarify the information or alert the
recipients of the information when it is
distributed that it may be inaccurate.
3. Revisions and Updates
Two commenters requested
clarification of the requirement to
submit revised material safety data
sheets as applied to a facility that had
exercised the list option. Further
clarification was also requested
regarding any obligation to submit a
revised MSDS if the original was
submitted as a result of a public request.
Section 311{d) requires a facility to
submit an MSDS or list by October 17,
1987, or within three months after the
owner or operator is required to prepare
or have available an MSDS for the
chemical, whichever is later. An owner
or operator is also required to submit a
revised MSDS within three months of
the discovery of significant new
information concerning a chemical for
which an MSDS was submitted. If a
facility has submitted only a list of
chemicals rather than the actual MSDS,
the facility does not need to file a
revised MSDS upon discovery of new
information. However, after October 17,
1987, if additional hazardous chemicals
become present at such facility, a list of
these (or the MSDS) must be submitted
to the State commission, local
committee, and fire department within
three months.
Once an MSDS is submitted, even as
a result of a request, a revised MSDS
must be submitted if the owner or
operator receives significant new
information concerning the substance.
Because the OSHA regulations require
MSDS to be revised within three months
after a chemical manufacturer or
employer becomes aware of significant
new information concerning the hazards
of a chemical, the Title III regulations
merely require that such revised MSDS
also be submitted to the agencies that
have the original MSDS.
D, Categories for Reporting
Section 311 list reporting and section
312 Tier I reporting requirements were
initially based on the 23 physical and
health hazards identified under OSHA
regulations. To facilitate reporting under
sections 311 and 312, Title HI permits the
Administrator to modify the categories
of health and physical hazards set forth
under OSHA regulations by requiring
information to be reported in terms of
"groups of hazardous chemicals which
present similar hazards in an
emergency." Additionally, for Tier I
reporting, the Administrator may require
reporting on individual hazardous
chemicals of special concern to
emergency response personnel.
In the January 27 proposal, the
Agency proposed the use of the 23
OSHA categories for reporting but
solicited comments on approaches for
modification of the reporting categories.
EPA recognized that a smaller number
of reporting categories might facilitate
the manageability of the information
and enhance its usefulness, particularly
since information on chemicals that
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38354 Federal Register / Vol. 52, No. 199 / Thursday, October 15, 1987 / Rules and Regulations
present more than one hazard must be
provided in all applicable categories.
EPA specifically requested comment on
two approaches for modification: Use of
the eight DOT hazard labeling
categories and use of a 5-category
scheme with two health hazard
categories and three physical hazard
categories. The July 14,1987, Federal
Register notice specifically requested
comment on the proposed use of the 5-
category scheme.
In response to the January 27
proposed rule, EPA received over 100
comments that disagreed with the use of
the 23 OHSA categories, while only four
commenters supported their use. Many
of those commenters that disagreed
provided alternative categorization
schemes. Many comments supported the
Department of Transportation (DOT)
categorization scheme in combination
with additional health hazard
categories. The main advantage to using
the DOT categorization would be that
emergency response personnel are
already familiar with these categories.
However, it was designed for hazardous
material transportation and reflects an
emphasis primarily on immediate health
and physical hazards. Thus, the Agency
believes that the DOT categories would
have to be revised to address delayed
(chronic) hazards adequately before this
option could be used for Sections 311
and 312. EPA believes that altering the
DOT categorization scheme would result
in some confusion and reduce the
effectiveness of this option.
EPA received several additional
proposals for the modification of the
reporting categories. However, all of
these alternatives were rejected because
they either did not adequately
encompass the OSHA hazard classes,
did not sufficiently reduce multiple
reporting, or did not sufficiently reduce
the burden of reporting and interpreting
data by decreasing the number of
reporting categories.
After consideration of these
comments, the suggested alternatives,
and the burden of using the proposed 23
categories, EPA has revised the rule to
reduce the number of reporting
categories. Today's rule contains the 5-
category scheme described by EPA in
the Preamble to the proposal and in the
July 14 notice: two health hazard
categories (immediate or acute hazards
and delayed or chronic hazards) and
three physical hazard categories (fire
hazards, sudden release of pressure
hazards, and reactivity hazards). This
scheme was supported by a substantial
number of commenters.
A number of other commenters
disagreed with the use of the 5-category
scheme because they thought the
categories were too general and did not
represent groups of hazardous chemicals
that present similar hazards in an
emergency. EPA disagrees with these
commenters. Although the categories
could be subdivided further, the Agency
believes this could complicate the
categorization process and could result
in inconsistencies in reporting. EPA
believes the 5-category scheme will be
useful to emergency response personnel
by conveying general information on the
types of hazards a chemical may present
in an emergency response situation and
by supplementing other sources, of
information commonly used by
emergency response personnel.
EPA agrees with the numerous
commenters who noted that this
categorization scheme should
significantly reduce the paperwork
burden of reporting, minimize multiple
reporting and double counting, and
enhance the clarity and usefulness of
the information reported. The five
categories have several advantages over
the other proposed alternatives because
they encompass all of the OSHA
categories as well as all of the DOT
categories, and they address delayed
(chronic) health hazards as well as
immediate (acute) health hazards. The
Agency plans to provide written
guidance to help facilitiate reporting so
that this categorization scheme can be
easily used by both large and small
reporting entities.
E. Mixtures
EPA received several comments
regarding the reporting of mixtures. One
commenter requested clarification of the
term "mixture." Another desired
guidance in applying threshold levels to
mixtures. Several commenters stated
their belief that reporting of mixtures
would be difficult since many mixtures
have unknown compositions.
In response to the request for
clarification of the term "mixture," EPA
has revised § 370.28 of the rule to
include the definition of mixture used by
OSHA in the hazard communications
standard. 29 CFR 1910.1200. In addition,
§ 370.28 has been revised to indicate
how the threshold levels apply to
mixtures. The rule now states that if the
reporting is on each component of the
mixture that is a hazardous chemical,
then the concentration of the hazardous
chemical, in weight percent (greater
than 1% or 0.1% if carcinogenic) should
be multiplied by the mass (in pounds) of
the mixture to determine the quantity of
the hazardous chemical in the mixture.
If a mixture is reported as whole, the
threshold applies to the total weight of
the mixture.
Finally, where mixtures have
unknown composition, facilities should
report the mixture as a whole.
F. Public Access to Information
Title III contains a number of
provisions relating to public access to
information submitted under sections
311 and 312, many of which were
codified in today's final rule. Section 324
of Title III, which is not codified in the
final rule, requires SERCs and LEPC& to
make all MSDS, lists, and inventory
forms that are submitted under sections
311 and 312 available to the public
during normal working hours. This is the
only source of Tier I information for the
general public, and there is no access to
Tier I below the regulatory threshold.
Section 370.30(a) of the regulation
codifies section 311(c) of Title III and
provides that any person may request
an MSDS through the LEPC. If the MSDS
is not in the possession of the LEPC
(because a facility had the hazardous
chemical only in amounts below the
threshold or a facility had submitted
only the list of chemicals), the LEPC
must request the MSDS from the facility
and the facility must, under § 370.21(d),
submit the MSDS within 30 days. Under
§ 370.31, the LEPC must provide the
requested information to the requester.
Section 370.30(b) codifies section
312(e) of Title HI and provides that any
person may request Tier II information
concerning a specific chemical at a
facility through the LEPC or SERC. If the
Tier II information is not in their
possession, the SERC or LEPC must
request it from the facility if the
chemical is stored at the facility in
quantities above 10,000 pounds or if the
requester is a public official. If the
chemical is present in quantities below
10,000 pounds, the response by the
SERC or LEPC is discretionary. Under
§ 370.25{c) of the final rule, a facility
must submit requested Tier II
information within 30 days. Under
§ 370.31, the LEPC or SERC must then
provide the Tier II information to the
requester.
1. Information below Thresholds
In the proposed rule EPA established
temporary thresholds below which
facilities would not be required to report
under sections 311 and 312. However,
those thresholds were not applicable to
public requests for information on
hazardous chemicals. Thus, facilities
would need to report on hazardous
chemicals below the thresholds, but
only upon request. Although EPA
codified the requirement that below-
threshold requests be justified for Tier II
information under section 312, no such
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justification was proposed for below-
threshold requests for MSDS. EPA
solicited comment on its approach to
thresholds and public access.
Commenters were split over the issue
of public access to information below
thresholds through the LEPC. In
addition, some commenters believed
that requests for below-threshold MSDS
information should be justified, and
some asked EPA to set guidelines for
demonstrating adequate justification.
With respect to issues concerning
request justification, section 312 is
explicit about the justification of need
required in public requests for Tier II
information below 10,000 pounds if such
information is not already in the
possession of the SERC or LEPC but is
silent on the issue of what should be
included in the statement of need. EPA
believes that the task of defining
appropriate criteria for the justification
of need should be left to the SERCs and
LEPCs; who must ultimately decide
whether to remit such a request. With
regard to MSDS information below the
threshold, neither the statute nor this
regulation requires- that fne need
underlying a recpwst be justified.
Congress specified in section 311(c)(2)
that MSDS be submitted' upon request
by any person. The Agency thus
believes that the preservation- of access
to all MSDS> information by the public is
most consistent with the intent of
section 311.
2. Justification of Need
A number of commenters posed more
specific questions on the necessity of
justifying requests for Tier II
information. One feh "need" should
relate to the potential of a hazardous
chemical directly to affect either person
or property. Others noted that facilities
should be able to review requests for
Tier II information and be allowed to
comment on sensitivity of information.
As indicated above, however, the
LEPC and SERC have ultimate
responsibility for setting guidelines in
this area since the statute and today's
final rule give them- the decision-making
authority in granting requests for Tier II
information. Therefore, EPA believes
that issues concerning the statement of
need should be left to local and State
officials.
A few commenters requested that a
strategy be developed to assist the
SERC and LEPC in fulfilling their
responsibilities for public availability.
Several other commenters felt programs
should be developed to help the general
public interpret and use the information.
EPA intends to provide such guidance in
the form of brochures and pamphlets to
be published and distributed through the
regional offices to SERCs and LEPCs at
a later date. EPA recently used a series
of workshops and other presentations to
provide information on Title III to the
public.
3. Other Clarification
Several commenters requested
changes in the time frames for providing
information to the public. Some
commenters had general questions
about how the public would have access
to MSDS and inventory information. The
public may request Tier II information
through either the SERC or the LEPC.
For quantities below 10,000 pounds, the
SERC or LEPC may exercise discretion
in forwarding these requests to a
specific facility. Concerning MSDS
requests, section 311 and today's final
rule place the responsibility for handling
requests only hi the LEPC- States may,
however, under their own authority, also
require provision of such MSDS to the
SERC.
One commenter requested that the
rule clarify that any person may request
Tier II information. Although the rule
explicitly states that any person may
request Tier II information, there are
certain instances in which it is not
automatically provided. For instance, a
facility may opt to withhold chemical
location information from the Tier II
form, and the public would not have
access to this location information. A
person may request Tier II information
for chemicals stored at a facility hi
quantities- less than 10,000 pounds, but if
the SERC or LEPC does not already
possess the information, the requester
would be required to give a written
statement of need. Based on the
statement, the LEPC or SERC may,
where appropriate, request the
information from the facility. A facility
may also- withhold chemical identity
from disclosure by submitting a trade
secret claim under section 322. Where a
facility withholds chemical identity by
virtue of trade secret provisions, the
public may challenge the withholding by
submitting a petition to EPA pursuant to
section 322.
G. Trade Secrets and Confidentiality
EPA received several comments in
support of the provision for withholding
location information from the public at
the facility's request. While a few
commenters indicated a need for criteria
for determining a confidential location,
EPA agreed with other commenters that
a request on the part of a facility owner
or operator is sufficient. Section 324
allows a- facility to request withholding
of location information without any
determination that such location would
• be confidential.
The Agency also received numerous
comments regarding the protection of
trade secret information under sections
322 and 323 of SARA. These will be
addressed as part of EPA's rulemaking
on trade secrets under sections 322 and
323, to be proposed later this year. It
should be noted, though, that if a facility
wishes to make a trade secret claim, it is
required to submit the federal Tier II
inventory form to EPA, rather than any
alternative State form, with appropriate
substantiation. Such trade secret claims
should be sent to: U.S. Environmental
Protection Agency, Emergency Planning
and Community Right-to-Know, P.O.
Box 70266, Washington, DC 20024-0266.
H. Design and Content of Forms
The most significant comments on the
design and content of the Tier I and Tier
II forms concerned the calculation of the
average daily amount and the reporting
format for storage location. Other
significant comments concerned the
emergency contact, the certification
statement, and the Dun & Bradstreet
number. In response to these comments,
as well as comments on the general
layout and graphic design of the forms,
EPA has revised the section 312
reporting forms. Following is a
discussion of these comments and EPA's
response.
On the proposed Tier I and Tier II
forms, EPA required facilities to report
maximum daily amount and average
daily amount in prescribed ranges.
Several commenters approved of the
proposed reporting ranges on the Tier I
and Tier n forms, but several more
believed the ranges were too broad. EPA
received suggestions to narrow the
ranges, add a range category of 0-9
pounds, combine the two lowest ranges,
or devise ranges that correspond to
powers of ten. A few commenters
favored broader ranges.
Upon consideration of these
comments, EPA has chosen to retain the
ranges set forth in the proposed rule.
The Agency believes that the ranges
adequately balance the trade-off
between protection of confidential
information and provision of useful
data. In addition, the present ranges are
consistent with those proposed for use
on the section 313 reporting form and
those used on the Toxic Substances
Control Act (TSCA) inventory form.
Several commenters favored EPA's
proposed method of calculating average
daily amount; that is, by totaling all
daily weights and dividing by 365, or
totaling all monthly weights and
dividing by 12. Several other
commenters, however were concerned
that the results obtained by the
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38356 Federal Register / Vol. 52. No. 199 / Thursday, October 15. 1987 / Rules and
proposed method would be misleading
because it would produce artificially
low amounts for those chemicals
present on site during only short periods
of time throughout the year.
The Agency has decided to revise the
method of calculating average daily
amount so that the figure is based upon
the number of days the chemical is
actually on site. Thus, facilities should
total all daily weights and divide by the
number of days the chemical was on
site. This method of calculation
produces a more accurate figure for
average daily amount, particularly for
those chemicals that are on site for only
a short time each year. To reflect the
amount more accurately, however, EPA
believes that it will be necessary to
report the number of days used in the
calculation and has revised the form to
require reporting of this information.
The Agency received several
comments concerning the maximum
daily amount. As many commenters
favored the method of calculation as
expressed doubts concerning its
ultimate usefulness. One commenter
suggested that EPA require facilities to
report maximum storage capacity
instead of maximum daily amount.
Because the maximum daily amount
describes a "worst case" scenario, it is
useful to both emergency planners and
emergency responders. It is important
for them to know the maximum amount
of hazardous chemicals that, they might
actually encounter at any time. Because
storage capacity may not be an accurate
reflection of the amount of hazardous
chemicals actually on site at any one
time, EPA believes that the reporting of
maximum storage capacity is not an
appropriate substitute for the maximum
daily amount. Thus, EPA has not
required reporting of maximum storage
capacity instead of maximum daily
amount. However, EPA is aware that
maximum storage capacity may be the
best information available to some
facilities in calculating the maximum
daily amount.
EPA received numerous comments
regarding the "location" section of the
Tier II form. Several commenters
requested the use of any site
identification procedure acceptable to
local emergency response agencies;
others suggested that EPA design the
location coding system solely for ease of
data entry. Several commenters gave
specific suggestions for revision of the
location identification system—namely,
grid or quadrant systems. Several other
commenters suggested that EPA allow
facilities to report that chemicals are
unbiquitous at the plant. Based on these
comments, EPA has revised the Tier II
form to provide for reporting of the
building or lot, at a minimum, and to
allow facilities to describe briefly on the
form itself the location of hazardous
chemicals, rather than requiring them to
provide a site plan or site co-ordinates,
EPA believes that the narrative
approach will provide more flexibility
for a facility, in conjunction with its
SERC, LEPC, and fire department, to
identify the method of providing the
most useful chemical location
information for specific emergency
response and information management
needs and capabilities of the community
in which the facility is located.
EPA believes that additional
requirements for location information,
such as site plans or quadrants or grid
systems, may be useful on a site-by-site
basis, but are not necessary for each
facility. If a State or local government
desires such additional information, it
may require it to be submitted under
State or local law as a supplement to the
federal form. However, the Agency
encourages State and local governments
.to co-ordinate reporting formats so that
facilities are not subject to duplicate or
inconsistent reporting requirements.
Some commenters requested EPA to
state the exceptions to reporting on the
inventory forms. Another inquired about
the correct number of exemptions.
The exemptions from reporting under
both the OSHA hazard communication
standard and section 311 of Title III are
set out in the instructions to the form.
The instructions on the proposed forms
included eight reporting exemptions
because EPA merged the OSHA and
Title III exemptions where there
appeared to be substantial overlap. In
this final rule, the instructions to the
inventory forms state the OSHA and
Title III exemptions separately for
clarity and accuracy.
EPA received numerous comments
regarding the certification statement on
the Tier I and Tier II forms. Several
commenters raised concerns that the
statement implied the owner's or
operator's first-hand knowledge of the
conditions at the facility relevant to
Title III. In response to these concerns,
EPA has modified the certification on
the final form by deleting the word
"immediately," to make clear that the
signatory is responsible for the data on
the form but has not personally
interviewed those principally
responsible for performing the
calculations. The certification on the
final form now reads: "I certify under
penalty of law that I have personally
examined and am familiar with the
information submitted in this and all
attached documents, and that based on
my inquiry of those individuals
responsible for obtaining the
information, I believe that the submitted
information is true, accurate and
complete."
A number of commenters wanted EPA
to eliminate or revise the requirement
for a 24-hour contact and telephone
number. One commenter suggested that
EPA require the same number of
emergency contacts on Tier II as on Tier
I.
The emergency contact is a person, or
office at which persons will be
available, who can aid responders in the
event of an emergency at the facility.
The emergency contact need not be a
person with expertise concerning the
chemical hazards at the facility, but he
or she must be available to act as a
referral if emergency responders need
assistance in responding to a chemical
accident at the facility. Although .the
Agency requires facilities to supply the
name of only one emergency contact,
both the Tier I and Tier II forms will
have space for two. A facility may
supply two emergency contacts as
necessary to ensure 24-hour availability.
Numerous commenters inquired about
the extent to which they could use their
computers for reporting. The majority of
the comments focused on the
acceptability of computer-generated
facsimiles of the forms; others dealt with
electronic transmittal of data.
To the extent possible, EPA has
designed the Tier I and Tier II forms to
accommodate computer output. Since
EPA will not receive the information,
however, the issues regarding computer
facsimiles and electronic transmittal are
more appropriately addressed to the
recipients of the information at the State
and local levels. However, EPA does not
believe that any provisions of section
312 would prohibit computer generated
facsimile forms or electronic transmittal
of data.
Several commenters stated that EPA
should not require hazard category
information on the Tier II form.
Although the legislation requires hazard
category information only on the Tier I
form, EPA has designed Tier II as a
worksheet for the preparation of Tier I.
For this reason, and because the
hazards may provide helpful data to the
users of chemical-specific information,
EPA believes that hazard categories are
an essential element of the Tier II form
and has retained this requirement in the
final form.
Although several commenters
questioned the necessity for the Dun &
Bradstreet identification number, the
Agency has opted to retain this
requirement because of its general
usefulness as a widely known and
accessible identifier, unique for each
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38957
facility. In response to commenters who
stated that Dun & Bradstreet numbers
should not be required because they did
not have such a number,, EPA has
revised the instructions to the form to
indicate where facilities can obtain the
number. (Information collection
requirements are approved by Office of
Management and Budget under control
number 2050-0072.)
/. Integration of Title III Federal
Requirements With State and Local
Programs
A large number of commenters
registered concern about the potential
for duplication in data collection, since
Title III requirements overlap with
reporting provisions under some State
and/or local laws. Some commenters
would prefer to comply with Title III
through equivalent State programs;
others suggested that the reporting rules
be flexible enough to allow integration
with existing programs.
Although section 321 states that Title
III generally does not pre-empt State or
local laws, including similar community
right-to-know reporting, the Agency
strongly discourages duplicative
reporting systems that would increase
the community right-to-know paperwork
burden and thus potentially reduce the
effectiveness of the program and of
public access to information. EPA
encourages States to modify their
community right-to-know requirements
to accommodate Title III without
eliminating additional requirements that
are beneficial to State or local needs.
The Agency also advises States to
consider reporting requirements that are
applicable to local emergency planning
committees and fire departments. To the
extent possible in this final rule, the
Agency has attempted to provide
flexibility for State and local
implementation and integration with
their existing programs.
Several commenters recommended
that State and local jurisdictions be
allowed to determine the method of
reporting.
In the final rule, EPA has tried to
provide as much flexibility as possible
to the local and State officials who must
implement this program, while at the
same time provide a degree of
standardization to the regulated
community and ensure that statutory
requirements are met. EPA has thus
revised the regulations to specify the
circumstances under which a State or
local form can be used in lieu of the Tier
I and Tier II forms published today.
Revised § § 370.40 and 370.41 of the final
rule state that facilities will meet the
Section 312 requirements if they submit
the published form,, or any State or local
form that contains identical content.
"Identical content" means that, at a
minimum, the same information
requested on the form published in
today's final rule must be requested in
some portion of the State form. States
may, in addition, use the form as
published today but add supplemental
questions, either interspersed
throughout the form or attached at the
end.
/. Information Management
With respect to data management
issues, commenters focused on two
principal points. First, the majority of
commenters on this issue strongly
expressed the conviction that the entire
program can be made workable only if
the information is handled by computer
systems. The second principal issue
raised by commenters was the need for
assistance in organizing the material;
designing and selecting systems; co-
ordinating the use of the material among
SERGs, LEPCs, and fire departments;
and ultimately making the information
available to the general public.
Specific comments concerned the
need to allow information submission in
computer-readable media and for
guidance from the federal government to
aid information management at the
State and local levels. A recurring
message in- the comments was the need
for the federal government to play an
active role in solving the extensive data
management problems triggered by Title
III. Suggestions were for EPA, alone or
with OSHA, to develop model MSDS
databases, to design or develop effective
data management and communications
techniques for information systems, to
convene a high level workgroup to draft
a plan for solving the problems, and to
provide seed money to each SERC for
development of its own MSDS
information system. Commenters also
raised general concerns about the
sources for financial support to
implement the legislation and the time
necessary to prepare for
implementation.
In response to the general information
management concerna raised by
commenters, the Agency agrees that the
data resulting from Title III compliance
would best be managed through a
computerized system. EPA recommends
that the LEPCs and fire departments
work closely with the SERCs to develop
flexible systems that address the
particular requirements of each planning
district. However, because most of Title
Hits carried out through State and local
organizations, it is not appropriate for
the Agency itself to recommend or
design data management systems, to
establish a national database under
sections 311 and 312, to specify data
collection points, or to make any other
information management decisions that
belong to the State and local authorities
implementing the community right-to-
know program. Thus, although EPA
shares commentera' concerns over the
critical data management needs
generated by Title III, EPA believes that
the most appropriate role for the Agency
in information management under
sections 311 and 312 will be one of
technical assistance to State and local
entities in developing effective
information management systems. The
Agency is reviewing such systems in an
effort to identify useful systems that
could meet State and local needs and
also intends to publish technical
guidance regarding the development of
such systems by States.
EPA acknowledges that the provisions
of Title III concerning hazardous
chemicals and community right-to-know
present information management
problems that are difficult to implement,
given the statutory time-frames and
governmental budget constraints. Of all
the sections of Title III, sections 311 and
312 present fay far the largest
information management burden for
State and local governments. EPA's
concern over this issue has been the
principal basis for several key
regulatory decisions during this
rulemaking. For instance, to permit time
to work out information management
systems and to ensure that State and
local capabilities are not overwhelmed
during initial implementation, EPA is
establishing a 3-year phase-in schedule
with high initial reporting thresholds for
both sections 311 and 312.
State and local governments also need
time to obtain funding, and to establish
the organizations and processes to
implement this legislation-. In order to
provide as much flexibility as possible
to State and local governments in
establishing their Title III programs, EPA.
is leaving decision-making concerning
the medium to be used in reporting (e.g.,
paper, magnetic tape,
telecommunication lines) to States and
local governments.
Some State and local governments
already receive information required
under sections 311 and 312 from
facilities in their jurisdictions, and some
make this information available to the
public. To the extent that these
submissions under State or local law
meet the requirements of sections 311
and 312 regarding the content of
submission, timing, and recipients of the
information, facilities submitting such
information will be in compliance with
the federal requirements. Duplicate
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38358 Federal Register / Vol. 52. No. 199 / Thursday. October 15. 1987 / Rules and Regulations
submissions under the federal
community righl-to-know program are
unnecessary. Also, in some instances, it
may be permissible for fire departments
to designate such State systems as the
address for their MSDS submissions,
provided that these systems will support
the emergency response needs.
K. Regulatory Impact Analysis
A number of comments addressed
various aspects of the Regulatory Impact
Analysis. Comments ranged from
general concerns that estimated costs
for industry or government were too low
to specific comments on the time,
personnel, or equipment attributed to
individual compliance activities. The
comments also addressed the
methodology used in the RIA, including
compliance activities they felt had been
omitted by government, the inclusion of
costs for requests and trade secrets in
Aggregate costs, estimating costs for
facilities covered by the OSHA
expansion, and expanding the treatment
of small business costs.
A number of commenters stated that
the time estimated for industry to fill out
the forms, or the estimates of the time
and space required by government to
maintain MSDS, were too low. Other
commenters argued generally that
estimates of industry costs were too low
and gave estimates ranging from one
and one-half to ten times the EPA
estimates.
EPA has revised the analysis to reflect
variations in costs for sections 311 and
312 by facility size and number of
MSDS. EPA has also modified the
section 312 inventory forms and clarified
the instructions in this final rulemaking,
which should reduce the amount of time
it will take industry to comply with
these requirements. Wage rates used in
the RIA have also been increased to
reflect growth in wages and the
technical personnel being used to
comply with regulations. EPA believes
that the costs imputed to the final rule
reasonably estimate, on average, the
time and other costs that will be
incurred by facilities complying with the
requirements of the regulation.
Several commenters addressed
government costs, stating that estimated
coats were too low, that not all
necessary government activities were
considered, or that additional personnel
would be required to comply with
sections 311 and 312. One commenter
stated that EPA's estimated costs were
too low by as much as an order of
magnitude.
In response to these comments, EPA
has revised the time requirements to
include additional time spent,
particularly by State and local
government, on several activities. Wage
rates in the government are assumed
equal to those in the private sector; thus,
government wage rates have also been
revised to reflect the estimated change
in private sector wages. It should be
noted that the RIA has assumed that
government agencies do the minimum
activities necessary to comply with the
regulations. Costs are intended to
reflect, on average, the costs that will be
incurred by representative government
entities undertaking these activities.
I lowever, community right-to-know is
essentially a State and local program,
and the costs of implementing its
provisions will depend on the activities
undertaken by each entity. Thus, the
costs presented in the RIA may
underestimate the actual costs to
individual government entities with
sufficient funding and the ability, need,
or constituency to be proactive in
implementing Title III.
Several commenters said that EPA
has not included in the RIA the costs of
requesting information, responding to
requests, or making trade secret claims.
EPA has modified its approach and
provides additional sensitivity analysis
on the possible magnitude of some of
the costs associated with information
requests. However, it should, again, be
stressed that community right-to-know
is a State and local program; the number
of requests is highly dependent on the
extent and nature of the uses to which
data are put, both by public officials and
by private citizens and organizations.
These uses, in turn, depend on the
manner and breadth of the
implementation and outreach plans of
State and local governments, which
makes the costs associated with
requests for information difficult to
predict. Thus, while a" sensitivity
analysis is provided, the costs of
requests are not aggregated into total
costs. The costs associated with trade
secrets are being addressed in a
separate rulemaking that is under way
for the Title III trade secret provisions,
sections 322 and 323 of SARA.
Numerous comments point out that
EPA did not address the costs that may
be associated with any forthcoming
expansion of the OSHA hazard
communication standard. These costs
are included in a supplemental analysis,
which is part of the final RIA. These
costs are not aggregated into total costs
of sections 311 and 312; total costs
reflect the costs to facilities and
government of complying with sections
311 and 312, given the current scope of
the OSHA hazard communication
standard.
Other commenters said that the costs
estimated for small business were too
low or that the regulation constituted a
significant impact on small business. An
additional group of commenters
submitted a form letter saying that the
regulations would be an immense
burden on small business.
EPA has expanded its small business
analysis considerably for the final.
rulemaking! In particular, per facility
costs are varied to reflect both facility
size and the estimated number of
hazardous chemicals that- are present,
on average, at a facility in a particular
SIC code and size class. To determine
whether the regulation will, have an
impact on small business, a small
facility is defined as one with fewer
than 20 employees. This group is more
likely to show an impact than the
broader group (50-150 employees)
suggested in the comments. The analysis
then looks at the impact on small
business using several criteria, including
the ratio of costs per facility to sales.
After consideration of this additional
analysis, EPA reached the same
conclusion as in the proposed
rulemaking; a substantial number'of
small businesses will.be affected, but
the impact will not be significant. Thus,
the Agency is not performing a
Regulatory Flexibility Analysis.
L. Miscellaneous
1. Enforcement/Penalties
The Agency received numerous
comments and queries on the subject of
enforcement. Some eommenters stated
that a violation should be treated as a
one-time occurrence and not a
continuous violation as specified in the
proposed rule. Others requested
flexibility in determining violations and
assessing penalties, especially where
the owner or operator makes good faith
efforts toward compliance. Still another
commenter asked how enforcement
would be accomplished.
With regard to one-time versus
continuous violations, section 325(c)(3)
of Title III provides that each day a
violation of section 311 and 312
continues shall constitute a separate
violation. EPA has therefore retained
this provision in the final rule. With
respect to issues concerning how EPA
will enforce compliance with these
provisions, EPA is preparing a
compliance strategy for Title HI that will
address these issues. Criteria for
determining penalties will also be set
out in that document.
2. Compliance/Timing
Two dozen commenters addressed
questions concerning compliance and
scheduling. Their statements ranged
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38 '359
from a view that the 45-day response
period for Tier II requests is unrealistic,
to a request that EPA stipulate a 15-day
period for a SERC or LEPC to respond to
a public request for MSDS or Tier II
forms and that the same 15-day deadline
be placed on the facility.
EPA has retained the 45-day schedule
for response to Tier II public requests as
specifically provided under section 312.
In the regulation, EPA establishes a 30-
day schedule for response by an owner
or operator to SERC or LEPC requests
for MSDS and Tier II information. EPA
believes that the 30-day timetable for
Tier II information is necessary to
ensure adequate time for the SERC and
LEPC to meet the statutorily-established
response time. The same period was
estalished for MSDS responses to avoid
confusion over applicable time periods
under this rule. However, the Agency
has also rejected the establishment of
other time limitations in order to
preserve flexibility at the State and local
levels with respect to timing of
responses.
3. Use of Tier I and Tier II Forms
Numerous comments were received
indicating that Tier II information is
more useful than Tier I information. EPA
agrees with these commenters. For this
reason, the Tier II form has been
designed for potential use as a
worksheet and guide for gathering
information ultimately to be used in the
Tier I aggregate data. Section 312 and
§ 370.25(b) of the regulations allow
facilities to submit the Tier II form in
lieu of Tier I.
Several commenters asked whether
the Tier II inventory form could be
submitted instead of the MSDS or list;
others favored the option of submitting
the MSDS instead of Tier I and Tier II.
Under today's rule, the Tier II inventory
form cannot be submitted in lieu of the
MSDS; nor can the MSDS submission
constitute compliance with inventory
form reporting. Title HI establishes
several distinct reporting requirements
under community right-to-know that
serve different purposes. The MSDS
submission under section 311 allows the
public to find out what chemicals are-
present at facilities and the types of
hazards they present. The 312 inventory
forms provide more specific location,
storage, and quantity information. These
requirements are not alternative.
4. Need for Funds
A dozen commenters indicated a need
for funding in order to carry out the Title
III requirements.
No federal funding has been provided
in support of Title III community right-
to-know remiirements at State and local
levels. However, EPA intends to provide
technical support to States in carrying
out their responsibilities.
The Agency received a number of .
comments regarding the burden that
Title III places on both industry and
State and local agencies in terms of
costs, manpower, and record-keeping.
EPA has made every effort in this
rulemaking to minimize this burden,
while effectively satisfying the
legislative intent of Title HI, The Agency
has instituted a 3-year phase-in period,
encouraged the use of the list option as
opposed to the MSDS option, and
reduced the number of reporting
categories for physical and health
hazards. Additionally, the Agency as
conducted outreach activities such has
teleconferences and workshops targeted
at overall Title III implementation.
5. Responsibility for and
Appropriateness of Data
EPA received many comments
requesting clarification of the
submitter's responsibility for the
accuracy and completeness of submitted
data,
. Several commenters felt that only
producers, importers, and distributors
should be responsible for the accuracy
of chemical hazard assessments and
that users should not be responsible for
initiation or verification of data.
While producers, importers, and
distributors are responsible for
providing accurate MSDS information,
downstream users who submit, or rely
upon, such MSDS should make
reasonable efforts to correct information
that they know to be inaccurate or to
inform the recipients of the information
of its inaccuracies.
A number of commenters noted that
many workplace substances classified
as hazardous chemicals under OSHA
regulations do not present a danger to
communities. Others mentioned cleaning
and maintenance products as examples
and asked that they be excluded.
Many work-place substances do not,
in fact, constitute a hazard to the
community. Sections 311 and.312 focus
primarily on the presence of hazardous
chemicals within the community and the
need for public access to information
about their existence whether or not
they pose a present hazard to the "
community. However, many cleaning
and maintenance products are excluded
from the definition of hazardous
chemical as consumer products, or need
be reported only on request if they are
present in quantities below the
threshold.
One commenter asked for a
clarification of the obligations of facility
owners or operators who voluntarily
provide MSDS to customers and
employees.
If an owner or operator chooses to
provide MSDS to customers and
employees even though he is not
required to do so under OSHA, the
owner or operator does not need to
submit the MSDS or Tier I and Tier II
forms under Title III since these
requirements only apply to persons
required to prepare or have available
MSDS for hazardous chemicals under
OSHA regulations.
6. Scope of the Section 311 and 312
Requirements
Several commenters remarked on the
transitory nature of some of the
information and the necessity of
frequent revisions.
Under section 312, the reporting
requirement is annual and thus will
automatically capture new or revised
information. Facilities may, and in most
cases should, inform their local or State
government or fire department
immediately if there is a change in the
emergency contact number or other
significant information on the inventory
forms. Facilities subject to section 303
must provide information on relevant
changes at the facility to the LEPC for
planning purposes. With respect to
MSDS submission under section 311,
under today's rule, a revised MSDS must
be filed with the LEPC, the SERC, and
the local fire department within three
months after significant new information
is discovered.
EPA received a number of comments .
on the scope of the reporting
requirements. According to one
commenter, reporting on all chemicals
required to have an MSDS is too broad,
because chemical suppliers have
interpreted the OSHA hazard
communication standard to include the
broadest range of chemicals in order to
avoid future'liability. Another
commenter felt that the reporting
requirements would be too narrow if
only SIC codes 20-39 were covered.
Title III requires that MSDS be
submitted for each hazardous chemical
for which an MSDS is required under
OSHA except where EPA establishes a
threshold for reporting. EPA does not
believe that sections 311 and 312
requirements can or should be applied
to facilities not required to have MSDS
under OSHA regulations. However,
when OSHA's expansion of the hazard
communication standard to non-
manufacturing facilities becomes
effective, the reporting requirements
under sections 311 and 312 will
automatically apply to the facilities
newly covered by the OSHA
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38380 Federal Register / Vol. 52, No. 199 / Thursday, October 15, 1987 /Rules and Regulations
requirements. Also, EPA does not
believe that the expansive interpretation
of the OSHA hazard communication
standard given by members of the
regulated community provides a
sufficient basis for limiting the scope of
section 311 and 312 requirements,
especially in light of explicit statutory
coverage and specific statutory
exclusions.
To the extent possible, EPA has taken
into consideration the expansion of the
311 and 312 universe. EPA has limited
authority to revise sections 311 and 312
requirements and has in this rule
exercised its full authority to ensure an
effective community right-to-know
program. In this rule, EPA has mitigated
impact by setting high initial thresholds
to avoid undue burden in early
implementation stages, reducing hazard
categories, developing outreach
programs, and retaining flexibility for
local and State governments as much as
possible. However, as discussed earlier,
EPA will review the minimum
thresholds established in this rule when
OSHA's expansion of its hazard
communication standard becomes
effective and will undertake a
nilemaking, if necessary, to revise those
thresholds to avoid overwhelming
MSDS and Tier I submissions to State
and local officials as a result of the
expansion.
One commenter recommended that all
required information, including updates,
be submitted to both the State and local
organizations to maintain consistency in
reporting.
EPA agrees and has exercised its
general nilemaking authority under
Section 328 to require submission of the
updated MSDS to all entities receiving
the original MSDS. Otherwise, under the
proposed rule, only the LEPC would
receive updated information and thus
have current information on a facility. A
new MSDS at the facility must also be
submitted to all three entities (as
indicated in § 370.21(c)(2)).
V. Relationship to Other EPA Programs
A. Other Title III Programs
I. Subtitle A—Emergency Planning
Title III of SARA establishes several
reporting and notification requirements
in addition to sections 311 and 312.
Subtitle A of Title III contains several
notification provisions that are critical
to local emergency planning. In order to
facilitate local emergency planning,
under section 302 facilities that have
present an amount of an extremely
hazardous substance in excess of the
corresponding threshold planning
quantity were required to notify the
Slate emergency response commission
by May 17,1987, or within 60 days of
acquisition of such a substance. Section
303 requires that such facilities
designate a representative to work with
the local emergency planning
committees in the Title III planning
process and provide information
concerning the facility that may be
relevant to emergency planning. Section
304 establishes immediate release
reporting requirements to enable timely
and effective local response to releases
of extremely hazardous substances and
CERCLA hazardous substances. These
emergency planning requirements are
set forth in a final rule published on
April 22,1987. 52 FR 13380. These
requirements are unaffected by today's
rule.
Today's rule sets out the reporting
requirements under sections 311 and
312, Subtitle B of Title III. The focus of
Subtitle B is public access to
information concerning chemicals in
their communities rather than
emergency response, and thus reporting
requirements under Subtitle B are both
broader in scope than Subtitle A and,
under section 312, continuing in nature.
However, the information obtained or
made available under sections 311 and
312 of Subtitle B may also be of
significant value to emergency
responders.
Subtitle B will make available to the
local and State emergency planners
information on other chemicals and
facilities, beyond those identified under
Subtitle A, that, they may wish to
include in their emergency planning
efforts. Tier II information under section
312 will provide specific information on
the quantities and locations of
hazardous chemicals. Thus, sections 311
and 312 provide information beneficial
to the emergency planning required
under Subtitle A. As discussed in the
April 22,1987, final rule, the facilities
identified as a result of that rule are
only a "first cut" of the facilities and
potential chemical hazards for which
emergency planning may be necessary.
2. Subtitle B—Section 313 Toxic
Chemical Release Inventory
Subtitle B also establishes reporting
requirements under Section 313.
Beginning July 1,1988, certain
manufacturing facilities at which there
is a "toxic chemical" manufactured,
processed, or otherwise used in excess
of a statutory quantity must annually
report to EPA and the State, with
respect to each substance, the maximum
amount present at the facility, the
treatment or disposal methods used, and
the annual quantity released into the
environment. These requirements are
the subject of a separate nilemaking.
proposed for public comment on June 4,
1987. 52 FR 21152.
3. Trade Secrets
Title III also establishes provisions for
the'protection of trade secrets. Section
322 of Title III entitles persons required
to submit information under sections
303, 311, 312, and 313 to withhold the
specific chemical identity from
disclosure under certain conditions. In
order to withhold such information,
however, a person must submit the
withheld information and an
explanation to EPA. Under section
322(c), EPA is required to publish
regulations to implement the trade
secret provisions as soon as practicable
after the enactment of SARA. EPA
intends to propose trade secret
regulations under Section 322 later this
year.
B. CERCLA Reporting Requirements
CERCLA section 103 establishes
notification requirements for facilities at
which there is a release of a reportable
quantity (RQ) of a CERCLA hazardous
substance. Such releases must be
immediately reported to the National
Response Center (800-424-8802, or in the
Washington, DC metropolitan area at
202-426-2875). These reporting
requirements and the list of hazardous
substances and RQs are found in 40 CFR
Part 302 and are for the purpose of
alerting federal responders to a
potentially dangerous release of a
hazardous substance so that any
necessary response can be made in a
timely fashion. These notification
requirements are similar to the release
notification requirements under section
304 of Title III that must ba made to
local and State response personnel and
are unaffected by today's rule.
VI. Effective Date
Section 553(d) of the Administrative
Procedure Act (APA) generally requires
that the effective date of substantive
rules be no earlier than 30 days after
publication in the Federal Register.
However, section 553(d) also provides
exceptions to the 30-day effective date
requirement for rules that grant an
exemption or relieve a restriction and
for other "good cause."
EPA has made this rule immediately
effective upon publication for several
reasons. First, the submission of MSDS
or alternative lists is required under
section 311 by October 17,1987.
Providing a 30-day effective date would
make this regulation, which implements
those requirements, effective after
October 17 and thus may cause serious
confusion within the regulated
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community over how to comply with
statutory and regulatory reporting
requirements. In addition, this- final rule
reduces the categories for reporting and
establishes minimum thresholds, which
relieves the impact of the statutory
requirements otherwise effective on
October 17,1987. Finally, the other
requirements implemented by this rule
relate to section 312 reporting, which is
not required until March 1,1988. Thus,
those requirements would not be
affected by the 30-day effective date
requirement under section 553(d) of the
APA.
Because EPA believes that it thus has
"good cause" to suspend the 30-day
effective date requirement and this rule
relieves reporting otherwise required by
statute, the Agency has made this rule
immediately effective in accordance
with section 553(d) of the APA.
VII. Regulatory Analyses
A. Regulatory Impact Analysis
1. Purpose
Executive Order No. 12291 requires
each federal agency to determine if a
regulation is a "major" rule as defined
by the Order and to prepare and
consider a Regulatory Impact Analysis
(RIA) in connection with each major
rule. Because EPA has determined that
the reporting requirements for
hazardous chemicals in this rulemaking
constitute a major rule under Executive
Order No. 12291, the Agency has
prepared an RIA to assess the economic
impact on the final regulation on
affected industry and State and local
government entities. The following
results are presented in detail in the
analysis documented in Regulatory
Impact Analysis in Support of Final
Rulemaking Under Sections 311 and 312
of the Superfund Amendments and
R.eauthorization Act of 1986, which is
available for review in the public docket
for this rulemaking.
This rule was submitted to the Office
of Management and Budget for review
as required by E.O. No. 12291.
2. Methodology and Data Sources
EPA conducted an assessment of the
costs, benefits, and economic impacts
associated with the final rule and the
primary regulatory alternatives. The
regulation affects employers covered by
some provisions of OSHA's hazard
communication standard and three
types of government entities—State
emergency response commissions, local
emergency planning committees, and
fire departments. Both industry and
government are required by sections 311
and 312 of SARA to undertake certain
activities, and, thus, both types of
entities incur costs to comply with these
regulations.
Benefits for both industry and
government may also arise in
conjunction with compliance activities.
In addition, industry, government, and
other groups may, as a result of these
regulations, undertake additional
voluntary activities that generate
benefits both for these groups as well as
for the general community. The
intentelationships among the activities
undertaken by these diverse groups, the
provisions of Title III, and the potential
consequences for health and the
environment are complex. Thus, time
constraints did not permit EPA to
perform a quantitative evaluation of the
benefits of these provisions; a
qualitative discussion of the benefits is
provided in the RIA.
Costs of complying with sections 311
and 312 of SARA are incurred by
covered facilities, State emergency
response commissions, local emergency
planning committees, and fire
departments. Total costs depend on the
number of faciiites reporting, the total
number of MSDS, and the number of
government entities receiving the data.
For the industry analysis, EPA
analyzed the activities that each facility
would have to undertake to comply with.
sections 311 and 312 and the unit costs
associated with each activity. It was
assumed that the cost incurred by a
facility varied in different years
depending on the regulatory alternative
being considered, the size of the facility,
and the number of chemicals at the
facility. Total costs to industry, thus,
depend on the number of facilities
affected or reporting, the number of
chemicals for which MSDS are
maintained at these facilities, and the
unit costs associated with each of the
compliance activities.
OSHA's hazard communication
standard (FIGS) currently covers
facilities in the manufacturing sector
(Standard Industrial Classification (SIC)
codes 20 through 39), although OSHA
has recently expanded the HCS to the
non-manufacturing sector, to be
effective in May, 1988. The number of
facilities in each two-digit
manufacturing SIC code nationwide was
obtained from the Bureau of the Census
(County Business Patterns, U.S.
Department of Commerce, 1984) for four
facility sizes: (1) 1-19 employees, (2) 20-
99 employees, (3) 100-249 employees,
and (4) more than 249 employees. Based
on census data, there are an estimated
350,740 manufacturing facilities that
could potentially be affected by this
rule.
The number of MSDS present, on
average, at a facility in each SIC code
and facility size class was provided by
updating OSHA's 1980 estimates of the
number of "regulated chemicals" (i.e.,
MSDS) in each SIC code and size class
to 1986. The total number of MSDS'
maintained at all manufacturing
facilities is estimated to-be 35,004,503,
which implies that an average facility
maintains 100 MSDS. On average, the
smallest facilities (those with 1-19
employees) are estimated to have 74
MSDS, and the largest facilities (more
than 250 employees) have 308 MSDS.
The costs to industry of complying
with each of the regulatory alternatives
have been estimated as have the costs
of complying with the default legislative
requirements if EPA had promulgated no
regulations. Five regulatory alternatives
are identified for analysis in this report
The regulatory options differ from each
other with regard to the threshold that is
in effect in each year. Raising the
threshold in a given year reduces
industry costs in that year by reducing
the number of chemicals that facilities
report under both Sections 311 and 312
and by reducing the number of facilities
that report,
Estimates of the numbers of covered
facilities and reportable chemicals for
each threshold level were obtained from
a data set that was compiled as part of
an industrial survey conducted by the
State of New Jersey in 1979. To perform
this analysis, the chemical reports in the
New Jersey data set were weighted to
make the mix of facilities by SIC code
more representative of the mix of
facilities nationwide. The effects of
different thresholds on the numbers of
facilities and chemicals covered were
then calculated. The cost methodology
assumed that the effect of thresholds on
the percent of facilities or chemicals
covered is unaffected by SIC code or the
size of the facility. At 10,000 pounds, it is
estimated that 22 percent of the facilities
(78,000) will be required to report, and
that 13 percent of the chemicals (4.5
million) will be reported. At 500 pounds,
it is estimated that 82 percent of the
facilities (288,000) and 57 percent of the
chemicals (19.9 million) will be covered-
Similar weighting procedures were
followed for data sets obtained from
two other stales, Michigan and New
York. The data from these states did not
contradict the New Jersey data; the
latter were used in the analysis since
they were more complete in several
variables and also provided a more
. conservative view of the extent to which
thresholds reduce costs.
In addition to differences in the
reporting thresholds, the regulatory
alternatives differ from the default
statutory requirements in two respects.
First, the statutory default for hazard
categorization is the OSHA categories,
which were defined as 23 categories of
health and physical hazards for the
proposed rule. EPA is promulgating five
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38362 Federal Register / Vol. 52, No. 199- / Thursday. October 15, 1987 / Rules and Regulations
hazard categories; performing hazard
categorization should be less costly for
industry than under the 23 OSHA
categories. Second, EPA is publishing
inventory forms for reporting; if no forms
exist, the legislation requires that
facilities submit section 312 information
by letter. Both these factors reduce the
estimated cost of the regulatory
alternatives in comparison with the
legislation.
The analysis of costs to government
proceeded along lines similar to the
industry analysis. The analysis
estimated costs for a representative
State commission, local committee, and
fire department It was assumed that the
costs incurred by each entity in each
year depended on the number of reports
received, on the number of facilities
reporting, and on the number of
government entities. EPA assumed that
thnre would be only one commission per
Slate and estimated the number of local
committees and fire departments.
Both the industry and government
analyses assume that reporting and
receiving entities undertake the
minimum activities that they must
perform to comply with SARA. The
analysis, therefore, does not take into
account the costs associated with
voluntary activities, such as designing
and vising computer systems to store and
access the data, alterations in chemical
usngc patterns that may arise at
facilities as a result of these sections of
SARA, or other activities or effects.
Several supplemental analyses were
performed to provide evidence on the
sensitivity of the results to changes in
various assumptions of the
methodology. In particular, present •
value total costs were computed (a) for
two discount rates, 4% and 10%, (b)
using an alternative set of results on the
effects of thresholds, (c) for the 23
OSHA categories as well as the five
categories in the rule, and (d) for the
non-manufacturing facilities that will be
covered by the OSHA expansion of the
HCS.
An analysis of some of the costs
potentially associated with requests is
also presented. In particular, a
sensilivily analysis of the aggregate cost
to government of responding to requests
for MSDS or Tier I information when the
information is already in the files is
included. The cost to a facility of
responding to an individual request for
MSDS or Tier I information is provided
as is the cost to a government entity of
requesting MSDS or Tier I information if
it Is not in the files. The cost to a facility
of responding to Tier II requests, under
alternative assumptions on the number
of chemicals for which Tier I!
information is requested, is also
provided.
3. Results
The RIA analyzes five regulatory
alternatives as well as the statutory or
default baseline. In addition, two
alternative hazard categorization
schemes are considered. The five
threshold options considered are:
Alternative I: No threshold
Alternative II: (Proposed)
10,000 pounds in year 1
500 pounds in year 2
No threshold in year 3 and subsequent
years
Alternative III:
10,000 pounds in year 1
10,000 pounds in year 2
SOO pounds in year 3 and beyond
Alternative IV:
10,000 pounds in year 1
10,000 pounds in year 2
50 pounds in year 3 and beyond
Alternative V:
10,000 pounds in year 1
10,000 pounds in year 2
2,000 pounds in year 3 and beyond.
In present value (PV) terms, the cost
of each of the regulatory alternatives is
lower than the cost associated with the
statutory requirements. Present value
costs for each of these threshold
alternatives were computed by
discounting annual costs over the first
ten years of reporting at ten percent.
Assuming the five hazard categories
promulgated in the final rule, the PV
costs to industry for the five alternatives
range between $520 million and just
over $1 billion, in comparison with $1.6
billion for the statutory requirements
(the baseline). .
For government, present value costs
range between $120 million and $260
million; the costs of the no-threshold
option are the greatest and are identical
with the costs of the baseline under the
assumptions of the analysis. For both
industry and government, Alternative V,
which has the highest permanent
threshold, has the lowest continuing
costs and the lowest present value costs.
Alternative I, the no-threshold option,
has the highest costs. Alternative III, the
preferred alternative for this rulemaking,
is towards the low end: $708 million for
industry and $178 million for
government.
For Alternative III, first-year industry
costs equal approximately $162 million.
second-year costs drop to $24 million
since the threshold is unchanged, third
year costs rise to $348 million, since the
reduction in the threshold requires many
more facilities to report on additional
chemicals. Costs level off at $59 million
in the fourth and subsequent years.
Costs for the other alternatives in the
fourth and subsequent years range
between $39 million and $66 million,
depending on the threshold level in
those years.
In the first year of reporting, all
system set-up and design costs are
attributed to section 311; thus, the costs
to industry of complying with section
311 slightly outweight those associated.
with section 312 for all regulatory
alternatives except Alternative I, the no-
threshold option. For year.three onward,
section 312 costs outweigh section 311
costs; for Alternative HI in year four, the
costs associated with section 312 are
approximately 64 percent of the
combined costs to industry of sections
311 and 312.
In general, annual government costs
for sections 311 and 312 combined are
much smaller than those estimated for
industry. This reflects the assumption in
the analysis that many costs, such as
rule familiarization and system design,
are incurred by each individual facility
or government entity and are not
directly related to the number of forms
being handled. First-year costs equal $43
million for all alternatives except the no-
threshold option; second-year costs drop
substantially; third-, fourth- (and
subsequent) year costs level off at
between $15 million and $32 million.
Although costs to an individual State
commission far exceed those to a local
committee or fire department, there are
many more fire departments than
commissions or committees so that, in
aggregate, costs to fire departments may
account for as much as one-third to
more than one-half of government costs
in any given year.
The above costs do not reflect the
costs of the regulatory alternatives if
OSHA's 23 hazard categories had been
used in the final rule. In present value
terms, using the original 23 categories
rather than five leads to a 28% to 38%
increase in costs over 10 years,
depending on the alternative.
Both industry and government will
incur costs in conjunction with requests.
SERCs, LEPCs and fire departments, as
well as other government officials, may
have access to the information reported
under these sections and may request
additional information. In addition,
SERCs and LEPCs will, under certain
circumstances, have to make available
MSDS and inventory forms that they
have received from facilities. They will
also have to request information that
either was not reported or that concerns
chemicals below the threshold, arid they
will need to make determinations on,
and possibly request, Tier II
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38363
information. Similarly, facilities will
need to respond to requests by
government. It is difficult to estimate the
aggregate costs associated with
requests, since the magnitude of these
costs depends crucially on the behavior
of the public and government and the
types of programs that are set up on the
threshold level in effect, and on the
government's implementation of the Tier
II provisions.
An estimate of the potential costs to
government of responding to requests
for MSDS was obtained assuming that
requests for between five and 25 percent
of facilities are received by government.
If government agencies provide copies
of all MSDS that a facility has
submitted, estimated costs to
government of handling these requests
range between less than $400,000 to over
$1.8 million.
The number of Tier II requests to
which industry must respond will
depend on the criteria used by local
committees to evaluate public requests,
the number of public requests made, the
distribution of these requests across
chemical volumes, and the number of
requests originating with the
government. It is thus difficult to
estimate the aggregate costs associated
with Tier II information; however, the
costs to an individual facility of
responding to a Tier II request may
range between approximately $800 and
$6,500, depending on the number of
chemicals for which the request is
received and the size of the facility.
Similarly, the number of requests that
government will make to industry for
MSDS stored below the threshold will
depend on the number of requests that
governments receive, which, in turn,
depends on the size of the threshold and
the outreach program and policies of
government. Further, if facilities choose
to submit lists, additional requests for
MSDS will be generated.
No aggregate estimates of the costs of
complying with requests below the
threshold are presented. However, the-
cost to government of requesting all
MSDS from a facility, photocopying, and
mailing the information to the requester
when the information is not on file is
estimated to be $52 per request; the cost
to industry of complying with the
request is $31.. Those activities and
associated costs are intended ta
represent one reasonable method of
making information available to the
public and may not be used by all
government entities.
The analysis also examined the
effects of OSHA's expansion of its HCS
on industry and government costs. This
expansion may affect as many as 3,5-
million non-manufacturing facilities with
approximately 67 million MSDS. Very
rough cost estimates suggest that, for the
chosen alternative, present value costs
to non-manufacturing facilities of
complying with sections 311 and 312
combined may be as high as $3.7 billion;
this is approximately five times the
costs estimated for manufacturing. For
government, incremental costs
associated with the expansion are
approximately $1.1 billion, which is over
six times the costs associated with the
current scope of the HCS.
Benefits arise in conjunction with
several parts of the reporting
requirements of this rule. Potential
benefits arise in conjunction with this
rule primarily because the information
that is reported is used (e.g., more
effective planning occurs, which reduces
the probability of accidents or chronic
exposures). Thus, the provisions of the
regulation affect the benefits generated,
in comparison with those generated by
the statutory requirements, in several
ways. First, the reporting thresholds
affect the volume of information
submitted. Reducing the number of
submissions generates benefits if the
information is more manageable.
However, raising thresholds may reduce
benefits if public access to complete
information on chemical hazards in the
community is reduced or impeded.
Second, simplifying the hazard
classification system affects benefits.
On the one hand, it promotes efficient
use of the information; conversely, it
reduces the level of detail available to
the government and the public.
Benefits also raise in conjunction with
two public access provisions that have
been incorporated info the final rule:
reporting on the list of EHS at 500
pounds or the TPQ and access by the
public, on request, to information on
chemicals stored below the threshold.
Both these provisions provide benefits
to communities, with specific needs for
complete information.
Finally, use of the published form by
industry for Section 312 reporting may
provide benefits. Consistently formatted
information is easier to process,
manage, and use and thus may
encourage utilization of the information
. by the general public and government
entities.
B. Regulatory Flexibility Act
1. Purpose
Under the Regulatory Flexibility Act,
whenever an agency is required to issue
any proposed; or final rule for
publication in the Federal Register, it
must prepare and make available a
Regulatory Flexibility Analysis that
describes the impact of the rule on small
entities (i.e., small businesses, small
organizations, and small governmental
jurisdictions], unless the agency's
Administrator certifies that the rule will
not have a significant impact on a
substantial number of small entitles. The
analyses contained in the RIA address
the impact of this rule on small entities.
Based on these analyses, EPA has
concluded that, while the rule affects a
substantial number of small entities, the
impact on each is not significant.
2. Methodology and Results
To examine the impacts on small
businesses, EPA compared average
costs for small facilities (defined to be
those with 1-19 employees), to average
and median sales for those facilities, by
two-digit ,SIC code.
There are a substantial number of
small businesses under this definition;
225,423 facilities—84 percent of total
manufacturing—are estimated to be
small. All of these facilities must, at
least, incur the cost of becoming familiar
with the requirements of these Sections,
and thus, incur some costs of complying
with sections 311 and 312.
In order to assess the impacts on
small businesses, several guidelines
were used. The primary criterion,
however, is the ratio of annual costs to
average or median sales. A worst-case
scenario is provided by examining the
first year of Alternative I, no threshold.
Average costs to industry for small
businesses, by SIC code, range between
$1,400 and $2,100. As a percentage of
average sales, the range is .12 to .71
percent. The range as a percentage of
median sales is narrower—.20 to .64
percent. This is well within EPA's
guidelines that cost remain below 5
percentage of sales in order to avoid
significant impacts.
However, EPA is concerned that it has
been unable to provide a complete
assessment of the impact of this rule on
small businesses in all business sectors
that will in the future become subject to
these requirements due to OSHA's
expanded hazard communication
standard. As indicated earlier, EPA is
understanding a more detailed review of
the appropriateness of these thresholds
in this rule as they apply to the
expanded coverage of the OSHA MSDS
requirements. EPA will also be
conducting a further analysis of small
businesses newly subject to OSHA and
Title III requirements.
3. Certification
On the basis of the analyses
contained in the RIA with respect to the
impact of this rule on small entities, I
hereby certify that this rule will not
have a significant impact on a
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38364 Federal Register / Vol. 52. No. 199 / 'Thursday. October 15, 1987 / Rules and Regulations^
substantial number of small entities.
This rule, therefore, does not require a
Regulatory Flexibility Analysis.
C. Paperwork Reduction Act
The information collection
requirements contained in this rule have
been approved by the Office of
Management and Budget (OMB) under
the provisions of the Paperwork
Reduction Act of 1980,44 U.S.C. 3501 et
seq. and have been assigned OMB
control number 2050.0072.
VIII. Submission of Reports
If necessary to obtain reporting forms,
facilities should contact their State
emergency response commission.
Although EPA intends to provide
camera-ready copy of the federal form
for use by the SERCs, the commission
will be responsible for co-ordinating
with the LEPCs and fire departments
regarding the printing and distribution of
the inventory forms.
To obtain the address of a SERC, an
individual or facility should contact
their Governor's office or the Chemical
Emergency Preparedness Hotline at
(800) 535-0202 or (202) 479-2449 (DC and
Alaska). The SERC should be able to
provide information concerning the
LEPCs within the State.
List of Subjects in 40 CFR Fart 370
Chemicals, Hazardous substances.
Extremely hazardous substances,
Intergovernmental relations, Community
right-to-know, Superfund Amendments
and Reauthorization Act, Chemical
accident prevention, Chemical
emergency preparedness. Community
emergency response plan, Contingency
planningi Reporting and recordkeeping
requirements.
Date: October 8,1987.
Lee M. Thomas,
Administrator.,
For the reasons set out in the
Preamble, Subchapter J of Title 40 of the
Code of Federal Regulations is amended
by adding Part 370 to read as follows:
PART 370—HAZARDOUS CHEMICAL
REPORTING: COMMUNITY RIGHT-TO-
KNOW
Subpart A—General Provisions
Sec.
370.1 Purpose
370.2 Definitions
370.5 Penalties
Subpart B—Reporting Requirements
Sec.
370.20 Applicability
370.21 MSDS Reporting
370.25 Inventory Form Reporting
370.28 Mixtures
Subpart C—Public Access and Availability
of Information
Sec.
370.30 Requests for Information
370.31 Provision of Information
Subpart D—Inventory Forms
Sec.
370.40 Tier I Emergency and Hazardous
Chemical Inventory Form
370.41 Tier II Emergency and Hazardous
Chemical Inventory Form
Authority: Sees. 311. 312, 324, 325, 328, 329
of Pub. L. 99-499,100 Stat. 1613, 42 U.S.C.
11011.11012,11024,11025,11028,11029,
Subpart A—General Provisions
§ 370.1 Purpose.
These regulations establish reporting
requirements which provide the public
with important information on the
hazardous chemicals in their
communities for the purpose of
enhancing community awareness of
chemical hazards and facilitating
development of State and local
emergency response plans.
§370.2 Definitions.
"Commission" means the State
emergency response commission, or the
Governor if there is no commission, for
the State in which the facility is located.
"Committee" means the local
emergency planning committee for the
emergency planning district in which the
facility is located.
"Environment" includes water, air,
and land and the interrelationship that
exists among and between water, air,
and land and all living things.
"Extremely hazardous substance"
means a substance listed in the
Appendices to 40 CFR Part 355,
Emergency Planning and Notification.
"Facility" means all buildings,
equipment, structures, and other
stationary items that are located on a
single site or on contiguous or adjacent
sites and that are owned or operated by
the same person (or by any person
which controls, is controlled by, or
under common control with, such
person). For purposes of emergency
release notification, the term includes
motor vehicles, rolling stock, and
aircraft.
"Hazard Category" means any of the
following:
(1) "Immediate (acute) health hazard."
including "highly toxic," "toxic,"
"irritant," "sensitizer," "corrosive," (as
defined under § 1910.1200 of Title 29 of
the Code of Federal Regulations) and
other hazardous chemicals that cause an
adverse effect to a target organ and
which effect usually occurs rapidly as a
result of short term exposure and is of
short duration;
(2) "Delayed (chronic) health hazard,"
including "carcinogens" (as defined
under § 1910.1200 of Title 29 of the Code
of Federal Regulations) and other
hazardous chemicals that cause an
adverse effect to a target organ and
which effect generally occurs as a result
of long term exposure and is of long
duration;
(3) "Fire hazard," including
"flammable," combustible liquid,"
"pyrophoric," and "oxidizer" (as defined
under § 1910.1200 of Title 29 of the Code
of Federal Regulations);
(4) "Sudden release of pressure,"
including "explosive" and "compressed
gas" (as defined under § 1910.1200 of
Title 29 of the Code of Federal
Regulations); and
(5) "Reactive," including "unstable
reactive," "organic peroxide," and
"water reactive" (as defined under
§ 1910.1200 of Title 29 of the Code of
Federal Regulations).
"Hazardous chemical" means any
hazardous chemical as defined under
§ 1910.1200(6) of Title 29 of the Code of
Federal Regulations, except that such
term does not include the following
substances:
(1) Any food, food additive, color
additive, drug, or cosmetic regulated by
the Food and Drug Administration.
(2) Any substance present as a solid
in any manufactured item to the extent
exposure to the substance does not
occur under normal conditions of use.
(3) Any substance to the extent it is
used for personal, family, or household
purposes, or is present in the same form
and concentration as a product
packaged for distribution and use by the
general public.
(4) Any substance to the extent it is
used in a research laboratory or a
hospital or other medical facility under
the direct supervision of a technically
qualified individual.
(5) Any substance to the extent it is
used in routine agricultural operations
or is a fertilizer held for sale by a
retailer to the Ultimate customer.
"Inventory form" means the Tier I and
Tier II emergency and'hazardous
chemical inventory forms set forth in
Subpart D of this Part
"Material Safety Data Sheet" or
"MSDS" means the sheet required to be
developed under § 1910.1200(g) of Title
29 of the Code of Federal Regulations.
"Person" means any individual, trust,
firm, joint stock company, corporation
(including a government corporation),
partnership, association, State,
municipality, commission, political
subdivision of State, or interstate body.
"Present in the same form and
concentration as a product packaged for
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38365
distribution and use by the general
public" means a substance packaged in
a similar manner and present in the
same concentration as the substance
when packaged for use by the general
public, whether or not it is intended for
distribution to the general public or used
for the same purpose as when it is
packaged for use by the general public.
"State" means any State of the United
States, the District of Columbia, the
Commonwealth of Puerto Rico, Guam,
American Samoa, the United States
Virgin Islands, the Northern Mariana
Islands, and any other territory or
possession over which the United States
has jurisdiction.
"TPQ" means the threshold planning
quantity for an extremely hazardous
substance as defined in 40 CFR Part 355.
§370.5 Penalties
(a] MSDA reporting. Any person other
than a governmental entity who violates
any requirement of § 370.21 shall be
liable for civil and administrative
penalties of not more than $10,000 for
each violation.
(b) Inventory reporting. Any person
other than a governmental entity who
violates any requirement of § 370.25
shall be liable for civil and
administrative penalties of not more
than $25,000 for each violation.
(c) Continuing violations. Each day a
violation described in paragraphs (a) or
(b) of this section continues shall
constitute a separate violation.
Subpart B—Reporting Requirements
§370.20 Applicability.
(a) General The requirements of this
subpart apply to any facility that is
required to prepare or have available a
material safety data sheet (or MSDS) for
a hazardous chemical under the
Occupational Safety and Health Act of
1970 and regulations promulgated under
that Act.
(b) Minimum threshold levels. Except
as provided in paragraph (b)(3] of this
section, the minimum threshold level for
reporting under this subpart shall be
according to the following schedule.
(1) The owner or operator of a facility
subject to this Subpart shall submit an
MSDS:
(i) On or before October 17,1987 (or 3
months after the facility first becomes
subject to this subpart), for all
hazardous chemicals present at the
facility in amounts equal to or greater
than 10,000 pounds, or that are
extremely hazardous substances present
at the facility in an amount greater than
or equal to 500 pounds (or 55 gallons) or
the TPQ, whichever is less, and
(ii) On or before October 17,1989 (or 2
years and 3 months after the facility first
becomes subject to this Subpart), for all
hazardous chemicals present at the
facility between 10,000 and zero pounds
for which an MSDS has not yet been
submitted.
(2) The owner or operator of a facility
subject to this Subpart shall submit the
Tier I form:
(i) On or before March 1,1988 (or
March 1 of the first year after the facility
first becomes subject to this Subpart);
covering all hazardous chemicals
present at the facility during the
preceding calendar year in amounts
equal to or greater than 10,000 pounds,
or that are extremely hazardous
substances present at the facility in an
amount greater than or equal to 500
pounds (or 55 gallons) or the TPQ,
whichever is less, and
(ii) On or before March 1,1989 (or
March 1 of the second year after the
facility first becomes subject to this
Subpart), covering all hazardous
chemicals present at the facility during
the preceding calendar year in amounts
"equal to or greater than 10,000 pounds,
or that are extremely hazardous
substances present at the facility in an
amount greater than or equal to 500
pounds (or 55 gallons) or the TPQ,
whichever is less, and
(iii) On or before March 1990 (or
March 1 of the third year after the
facility first becomes subject to this
Subpart), and annually thereafter,
covering all hazardous chemicals
present at the facility during the
preceding calendar year in amounts
equal to or greater than zero pounds or
that are extremely hazardous
substances present at the facility in an
amount equal to or greater than 500
pounds (or 55 gallons) or the TPQ,
whichever is less.
(3) The minimum threshold for
reporting in response to requests for
submission of an MSDS or a Tier II form
pursuant to §§ 370.21(d) and 370.25(c) of
this Part shall be zero.
§ 370.21 MSDS reporting.
(a) Basic requirement. The owner or
operator of a facility subject to this
Subpart shall submit an MSDS for each
hazardous chemical present at the
facility according to the minimum
threshold schedule provided in
paragraph (b) of'§ 370.20 to the
committee, the commission, and the fire
department with jurisdiction over the
facility.
. (b) Alternative reporting. In lieu of the
submission of an MSDS for each
hazardous chemical under paragraph (a)
of this section, the owner or operator
may submit the following:
(1) a list of the hazardous chemicals
for which the MSDS is required, grouped
by hazard category as defined under
§ 370.2 of this Part;
(2) the chemical or common name of
each hazardous chemical as provided on
the MSDS; and
(3) except for reporting of mixtures
under § 370.28(a)(2), any hazardous
component of each hazardous chemical
as provided on the MSDS.
(c) Supplemental reporting. (1) The
owner or operator of a facility that has
submitted an MSDS under this section
shall provide a revised MSDS to the
committee, the commission, and the fire
department with jurisdiction over the
facility within three months after
discovery of significant new information
concerning the hazardous chemical for
which the MSDS was submitted.
(2) After October 17,1987, the owner
or operator of a facility subject to this
section shall submit an MSDS for a
hazardous chemical pursuant to
paragraph (a) of this section or a list
pursuant to paragraph (b) of this section
within three months after the owner or
operator is first required to prepare or
have available the MSDS or after a
hazardous chemical requiring an MSDS
becomes present in an amount
exceeding the threshold established in
§370.20(b).
(d) Submission of MSDS upon request.
The owner or operator of a facility that
has not submitted the MSDS for a
hazardous chemical present at the
facility shall submit the MSDS for any
such hazardous chemical to the
committee upon its request. The MSDS
shall be submitted within 30 days of the
receipt of such request.
§ 370.25 Inventory reporting.
(a) Basic requirement. The owner or
operator of a facility subject to this
Subpart shall submit an inventory form
to the commission, the committee, and
the fire department with jurisdiction
over the facility. The inventory form
containing Tier I information on
hazardous chemicals present at the
facility during the preceding calendar
year above the threshold levels
established in § 370.20(b) shall be
submitted on or before March 1 of each
year, beginning in 1988.
(b) Alternative reporting. With respect
to any specific hazardous chemical, at
the facility, the owner or operator may
submit a Tier II form in lieu of the Tier I
information.
(c) Submission of Tier II information.
The owner or operator of a facility
subject to this Section shall submit the
Tier II form-to the commission,
committee, or the fire department having
-------
38366 Federal Register / Vol. 52, No. 199 ,/ Thursday, October 15. 1987 / Rules and Regulations
jurisdiction over the facility upon
request of such persons. The Tier II form
shall be submitted within 30 days of the
receipt of each request.
(d) Fire department inspection. The
owner or operator of a facility that has
submitted an inventory form under this
section shall allow on-site inspection by
the fire department having jurisdiction
over the facility upon request of the
department, and shall provide to the
department specific location information
on hazardous chemicals at the facility.
§370.28 Mixtures.
(a) Basic reporting. The owner or
operator of a facility may meet the
reporting requirements of §§ 370.'21
(MSDS reporting) and 370.25 [inventory
form reporting) of this Subpart for a
hazardous chemical that is a mixture of
hazardous chemicals by:
(1) Providing the required information
on each component .in the mixture which
is a hazardous chemical, or
(2) Providing the required information
on the mixture itself, so long as the
reporting of mixtures by a facility under
§ 370.21 is in the same manner as
under § 370.25, where practicable.
(b) Calculation of the quantity. .{1} if
the reporting is on each component-of
the mixture which is a hazardous
chemical, then the concentration of the
hazardous chemical, in weight percent
(greater than 1% or 0.1% if carcinogenic)
shall be multiplied by the mass {in
pounds) of the mixture to determine the
quantity of the hazardous chemical in
the mixture.
(2) If the reporting is on the mixture
itself, the total quantity of the mixture
shall be reported.
Subpart C—Public Access and
Availability of Information
§ 370.30 Requests for Information.
(a) Request for MSDS information. (1}
Any person may obtain an MSDS with
respect to a specific facility by
submitting a written .request to the
committee.
(2) If the committee does not have in
its possession the MSDS requested in
paragraph {aXl) of this section, it shall
request a submission -of the MSDS from
the owner or operator of the facility 'that
is the subject of the request.
(b)Requests'/or TierIIinformation.
(1) Any person may request Tier II
information with respect to a specific
facility by submitting a written request
to the commission or committee in
accordance with the requirements of
this section.
(2.) If the committee or commission
does not have in its possession the Tier
II information requested in paragraph
(b)(l) of this section, it .shall request a
submission oi the Tier II form from the
owner or operator of the facility that is
the subject of the request, provided that
the request is from a .State >or local
official acting in his or her-official
capacity or the request is limited to
hazardous .chemicals 'stored at the
facility in an amount in excess of 10,000
pounds.
(3) If the request under paragraph
(b)(l) of this section does not meet the
requirements of paragraph '{b')(2) of this
section, the committee or commission
may request submission of the Tier II
form from the owner or operator of the
facility that is the subject of the request
if the request under paragraph fb)(l) of
this section includes a general •statement
of need.
§ 370.31 Provision of Information.
All information obtained from an
owner or .operator in response to a
request -under this subpart .and •any
requested Tier H form -or MSDS
otherwise in possession of the
commission ;or flie .committee shall foe
made available to the person submitting
the .request under this .Su'bpar.t; provided
upon request of the owner or operator,
the commission or committee s'hall
withhold from'disclosiiiire tfee k>ica;tion .of
any specific -chemical identified in the
Tier II form.
Subpart D—Inventory Forms
§ 370.40 Tier I emergency and hazardous.
chemical inventory'form.
(a) The form set out in paragraph (b")
of this-section shall be completed aird
submitted as required in •§ 370.'25(a). In
lieu of 'the form set >eut in paragraph fb}
of this section, the facility owner
-------
Federal Register / Vol. 52, No. 199 / Thursday, October 15, 1987 / Rules and Regulations . 38367"
Page
Of
pages
EMERG1
Tier One CHEM1C
Aggregate
=NCY AND HAZARDOUS FOR
AL INVENTORY OFFICIAL
USE
Information by Hazard Type v ONLY
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ID #
Date Received
1
1
Important: Read instructions before completing form Reporting Period From January 1 to December 31, 19
Facility Identification ' . ". - /
Mama ..., M , , „
f.lly , . , , ,
SIC Code | | i | I
Oun & Brad f 1 i I I I I I 111
Owner/Operator ' -
Mall Aririroce
Phono . ( >
.'Emergency 'Contacts ''••'••iv'^'''' : •'•':..• ;"•'•. '.' •
Mama „ '__
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Reactivity | | | | | |
Number | | Check 'f site plan Is attached
Un-Site General Location
|||]
1 1 1
III
-------
38368
Federal Register / Vol. 52, No. 199 / Thursday,, October 15,1987 / Rules and Regulations
TIER ONE INSTRUCTIONS
GENERAL INFORMATION
Submission of this form Is required by Title ,111 of the Superfund Amendments and Reauthorizatlon Act of
1986, Section 312, Public Law 99-499.
The purpose of this form Is to provide State and local
officials and the public with Information on the general
types and locations of hazardous chemicals present at
your facility during the past year.
YOU MUST PROVIDE ALL INFORMATION
REQUESTED ON THIS FORM.
You may-substitute the Tier Two form for this Tier
One form. (The Tler'Two form provlde's detailed
Information and must be submitted In response to
a specific request from State or local officials.)
WHO MUST SUBMIT THIS FORM
Section 312 of Title III requires that the owner or opera-
tor of a facility submit this form If, under regulations Im-
plementing the Occupational Safety and Health Act of .
1970, the owner or operator Is required to prepare or
have available Material Safety Data Sheets (MSDS) for
hazardous chemicals present at the facility. MSDS re-
quirements are specified In the Occupational Safety and
Health Administration (OSHA) Hazard Communication
Standard, -found In Title 29 of the Code of Federal Regu-
lations at §1910.1200.
WHAT CHEMICALS ARE INCLUDED
You must report the Information required on this form for
every hazardous chemical for which you are required to
prepare or have available an MSDS under the Hazard
Communication Standard. However, OSHA regulations
and Title'III exempt some chemicals from reporting.
Section 19t0.1200(b) of the OSHA regulations currently
provides the following exemptions:
(I) Any hazardous waste as such term Is defined by
the Solid Waste -Disposal Act, as amended (42
U.S.G. 6901 et seq.) when subject to regulations Is-
sued under that Act;
(II) Tobacco or tobacco products;
(III) Wood or wood products;
(Iv) "Articles'- defined under §1910.1200 (b) as a
manufactured Item;
• Which Is formed to a specific shape or design
during manufacture;
• Which has end use functlon(s) dependent In
whole or In part upon the shape or design during
end use; and
• Which-does not release, or otherwise result In
exposure to a hazardous chemical under nor-
mal conditions of use.
(v)' Food, drugs, cosmetics or alcoholic beverages
In a retail establishment which are packaged, for sale
to consumers;
(vl) Fooda, drugs, or cosmetics Intended for per-
sonal consumption by employees while In the
workplace;
(vli) Any consumer product or hazardous substance,
as those terms are defined In the Consumer Product
Safety Act (15 U.S.C. 1251 et seq.) respectively,
where the employer can demonstrate It Is used In the
workplace In the same manner as normal consumer
use, and which use results In a duration and fre-
quency of exposure which Is not greater than expo-
sures experienced by consumers; and
(vlll) Any drug, as that term Is defined In the Federal
Food, Drug, and Cosmetic Act (21 U.S.C. 301 et
seqr.), when It Is In solid, final form for direct admini-
stration to the patient (i.e., tablets or pills).
in addition, Section 311 (e) of Title III excludes the follow-
ing substances:
(I) Any food, food additive, color additive, drug, or
cosmetic regulated by the Food and Drug Admini-
stration;
(II) Any substance present as a solid In any manu-
factured Item to the extent exposure to the sub-
stance does not occur under normal conditions of
use;
(III) Any substance to the extent It Is used for per-
sonal, family, or household purposes, or Is present In
the same form and concentration as a product pack-
aged for distribution and use by the general public;
(Iv) Any substance to the extent It Is used In a re-
search laboratory or a hospital or other medical facil-
ity under the direct supervision of a technically quali-
fied Individual;
(v) Any substance to the extent ft Is used In routine
agricultural operations or Is a fertilizer held for sale
by a retailer to the ultimate customer.
Also, minimum reporting thresholds have been estab-
lished under Title III, Section 312. You need to report
only those hazardous chemicals that were present at
your facility at any time during the preceding calendar
year at or above the levels listed below:
• January to December 1987
(or first year of reporting) ...10,000 Ibs.
• January to December 1968
(or second year of reporting) ...10,000 Ibs.
« January to December 1989
(or third year of reporting) ...zero Ibs.*
* EPA will publish the final threshold, effective
In the third year, after additional analysis.
« For extremely hazardous substances...500 Ibs.
or the threshold planning quantity, whichever Is
less., from the first year of reporting and there-
after.
WHEN TO SUBMIT THIS FORM
Beginning March 1, 1988, owners or operators must sub-
mit the Tier One form (or substitute the Tier Two form)
on or before March 1 of every year.
-------
Federal Register / Vol. 52, No. 199 / Thursday, October 15, 1987 / Rules and Regulations
38369
INSTRUCTIONS
Please read these instructions carefully. Print or type all responses.
WHERE TO SUBMIT THIS FORM
Send one completed Inventory form to each of the fol-
lowing organizations:
1. Your State emergency planning commission
2. Your toca! emergency planning committee
3. The fire department with jurisdiction over your
facility.
PENALTIES
Any owner or operator of a facility who faifs to submit or
supplies false Tier One information shall be liable to the
United States for a civil penalty of up to $25,000 for each
such violation. Each day a violation continues shall con-
stitute a separate violation. In addition, any citizen may
commence a civil action on his or her own behalf against
any owner or operator who fails to submit Tier One infor-
mation.
•You may use the Tier Two form as a worksheet for
completing.Tier.One. Filling In the Tier Two;;. i': I
* chemtea! Information!section should help you:;•..• :':.•
'.'•. assemble your .Tier-. One .responses;..-.! •: V ;. :j; !s >•;•.;.
If your responses require more than one page, fill In the
page number at the top of the form.
REPORTING PERIOD
Enter the appropriate calendar year, beginning January 1
and ending December 31.
FACILITY IDENTIFICATION
Enter the complete name of your facility (and company
Identifier where appropriate).
Enter the full street address or state road. If a street
address Is not available, enter other appropriate identifi-
ers that describe the physical location of your facility
(e.g., longitude and latitude). Include city, state, and
zip code.
Enter the primary Standard Industrial Classification (SIC)
code and the Dun & Bradstreet number for your facility.
The financial officer of your facility should be able to pro-
vide the Dun & Bradstrset number. If your firm does not
have this Information, contact the state or regional office
of Dun & Bradstreet to obtain your facility number or
have one assigned.
OWNER/OPERATOR
Enter the owner's or operator's full name, mailing ad-
dress, and phone number.
EMERGENCY CONTACT
Enter the name, title, and work phone number of at least
one local person or office that can act as a referral If
emergency responders need assistance In responding to
a chemical accident at the facility
Provide an emergency phone number where such emer-
gency Information wBI be available 24 hours, a day. every
day.
PHYSICAL AND HEALTH HAZARDS
Descriptions, Amounts, and Locations
This section requires aggregate Information on chemi-
cals by hazard categories as defined In 40 CFR 370.3.
The two health hazard categories and three physical haz-
ard categories are a consolidation of the 23 hazard cate-
gories defined In the OSHA Hazard Communication Stan-
dard, 29 CFH 1910.1200. For each hazard type, Indi-
cate the total amounts and general locations of all appli-
cable chemicals present at your facility during the past
year.
• What units should I use?
Calculate all amounts as weight In pounds. To
convert gas or liquid volume to weight In
pounds, multiply by an appropriate density fac-
tor.
• What about mixtures?
if a chemical Is part of a mixture, you have the
option of reporting either the weight of the en-
tire mixture or only the portion of the mixture
that Is a particular hazardous chemical (e.g., t!
a hazardous solution weighs 100 ibs. but Is
composed of only 5% of a particular hazardous
chemical, you can Indicate either 100 ibs. of the
mixture or 5 Ibs. of the chemical).
Select the option consistent with your Section
311 reporting of the chemical on the MSDS or
list of MSDS chemicals.
• Where do I count a chemical that Is a fire reac-
tivity physical hazard and an immediate (acute)
health hazard?
Add the chemical's weight to your totals for all
three hazard categories and Include Its location
in all three categories. Many chemicals fall Into
more than one hazard category, which results
In double-counting.
MAXIMUM AMOUNT
The amounts of chemicals you have on hand may vary
throughout the year. The peak weights — greatest
single-day weights during the year — are added together
hi this column to determine the maximum weight for each
hazard type. Since the peaks for different chemicals
often occur on different days, this maximum amount wl»
seem artificially high
To complete tms and the following sections, you may
choose to use the Tier Two form as a worksheet.
To determine the Maximum Amount:
1. Ust aB of your hazardous chemicals Individually.
2. For each chemical...
a. Indicate all physical and health hazards that
the chemical presents. Include all chemicals,
even If they are present for only a short pe-
riod of time during the year.
-------
SB370 Federal Register / Vol. 52. No. 199 / Thursday. October 15,1987 / Rules and Regulations
b. Estimate the maximum weight In pounds that
wat present at your facility on any single
day of the reporting period.
For each hazard type — beginning with Fire and re-
peating for aH physical and health hazard types...
Add the maximum weights of all chemicals
you Indicated as the particular hazard type.
Look at the Reporting Ranges at the bottom
of the Tier One form. Find the appropriate
range value code.
Enter this range value as the Maximum
Amount.
a.
b.
EXAMPLE:
You are using the Tier Two form as a
worksheet and have listed raw weights In pounds
for each of your hazardous chemicals. You
have marked an X hi the Immediate (acute)
hazard column for phenol and sulfurlc acid.
The maximum amount raw weight you listed
were 10.000 Ibs. and SO Ibs. respectively. You
add these together to reach a total of 10.050 Ibs.
Then you look at the Reporting Range at the
bottom of your Tier One form and find that the
vakie of 03 corresponds to 10.050 Ibs. Enter
03 as your Maximum Amount for Immediate
(acute) hazards materials.
You also marked an X In the Fire hazard box
for phenol. When you calculate your
Maximum Amount totals for fire hazards,
add the 10.000 Ib. weight again.
EXAMPLE:
You are using the Tier Two form, and have
marked an X In the Immediate (acute) hazard
column for nicotine and phenol. Nicotine Is
present at your facility 100 days during the year,
and the sum of the dally weights Is 100,000 Ibs.
By dividing 100,000 Ibs. by 100 days on-slte,
you calculate an Average Dally Amount of
1.000 Ibs. for nicotine. Phenol Is present at
your facility 50 days during the year, and the
sum of the daily weights Is 10,000 Ibs. By
dividing 10.000 Ibs. by 50 days on-slte, you
calculate an Average Dally Amount of 200 Ibs.
for phenol. You then add the two average
dally amounts together to reach a total of
1,200 Ibs. Then you look at the Reporting
Range on your Tier One form and find that the
value 02 corresponds to 1,200 Ibs. Enter 02 as
your Average Dally Amount for Immediate -
(acute) Hazard.
You also marked an X In the Fire hazard column
for phenol. When you calculate your Average
,Dally Amount for fire hazards, use the 200 IB.
weight again.
NUMBER OF DAYS ON-SITE
Enter the greatest number of days that a single chemical
within that hazard category was present on-slte.
EXAMPLE:
; your facility, nicotine is present for 100 days
„, id phosgene Is present for 150 days. Enter
150 In the space provided.
At
an
AVERAGE DAILY AMOUNT
This column should represent the average dally amount
of chemicals of each hazard type that were present at
your facility at any point during the year.
To determine this amount:
1. Ust aH of your hazardous chemicals individually
(samo as for Maximum Amount).
2, For each chemical...
a. Indicate all physical and health hazards that
the chemical presents (same as for Maxi-
mum Amount).
b. Estimate the average weight In pounds that
was present at your facility throughout the
year. To do this, total all dally weights and
divide by the number of days the chemical
was present on the site.
3, For each hazard type — beginning with Fire and
repeating for all physical and health hazards...
a. Add the average weights of all chemicals
you Indicated for the particular hazard type.
b. Look at the Reporting Ranges at the bottom
of the Tier One form. Find the appropriate
range value code.
o. Enter this range valua as the Average Dally
Amount.
GENERAL LOCATION
Enter the general location within your facility where each
hazard may be found. General locations should Include
the names or Identifications of buildings, tank fields, lots,
sheds, or other such areas.
For each hazard type, list the locations of all applicable
chemicals. As an alternative you may also attach a site
plan and list the site coordinates related to the appropri-
ate locations. If you do so, check the Site Plan box.
EXAMPLE:
On your worksheet you have marked an X In
the Fire hazard column for acetone and
butane. You noted that these are kept In steel
drums In Room C of the Main Building, and In
pressurized cylinders In Storage Shed 13.
respectively. You could enter Main Building
and Storage Shed 13 as the General
Locations of your fire hazards. However,
you choose to attach a site plan and list
coordinates. Check the Site Plan box at
the top of the column and enter site coor-
dinates for the Main Building and Storage Shed
13 under General Locations.
If you need more space to list locations, attach an addi-
tional Tier One form and continue your list on the proper
line. Number all pages.
CERTIFICATION
This must be completed by the owner or operator or the
officially designated representative of the owner or op-
erator. Enter your full name and official title. Sign your
name and enter the current date.
-------
Federal Register / Vol. 52. No. 199 / Thursday. October 15. 1987 /Rules and Regulations
38371
§ 370.41 Tier I! emergency and hazardous
chemical inventory form.
(a) The form set out in paragraph (b)
of this Section must be completed and
submitted as required in § 370.25(c). In
lieu of the form set out in paragraph (b)
of this section, the facility owner or
operator may submit a State or local
form that contains identical content.
(b) Tier II Emergency and Hazardous
Chemical Inventory Form.
BILLING CODE 6S60-50-M
-------
Form AKXOVM OMB No, ZOSO-CC72
TJPI* Twrt
AND
HAZARDOUS
CHEMICAL
INVENTORY
Specific
Information
by Chemical
Facility Identification
Nnm- ..,
WrtttM'Vttt
ctty .. . st»i» zip
*°«*l 1 1 1 1 ""ttJSSI 1 M 1 1 l-l 1 II 1
FOR |,D, 1
ONLY 1 Date Received |
'Owner/Operator Namo
NPTt ,,, - Dtws. ( )
M.tl, ^IXA-...
Emergency Contact
M.rrv. Till.
Oh™. ( ) M Mr Bw- ( )
Nfn? T1""
Phnn. ( ) M Hf Bhnn. ( )
8
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CD
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Important:
Read all instructions before completing form Reporting Period From January 1 to December 31, 19
Chemical Description
CAsd
Chem. Nam
I I I II I II I SXSS\ I
o
check aii r~i n r~i n n
that apply: L-J U_J L_J L_J L_J
CAS| |
I 1 II 1 III Trade I I
1 1 1 1 1 1 1 1 Secret! 1
Chem. Name
CAecJfc si;
fAaf apply:
CAS
Chem. Nam
n n n n n
Pure Mix Solid Liquid Gas
1 1 1 1 1 1 1 1 T^dej 1
1 1 i 1 1 11,1 Socrotl 1
o
CAeciaH 1 1 1 II 1 [~~| 1 1
that aop/y ' — ' ' — ' 1 — ' ' — ' 1 — '
'** Pure Mix Solid Liquid Gas
Physical
and Health
Hazards
(chock ail that apply)
—
— .
Rr»
Sudden Releas*
of Prossur*
Reactivity
Immediate (acute)
Delayed (chronic)
Fir*
Sudden Release
of Pressure
Reactivity
Immediate (acute)
Delayed (chronic)
Fire
Sudden Release
of Pressure
Reactivity
Immediate (acute)
Delayed (chronic)
Inventory
Max. Avg. No» of
•Dally Dally Days
Amount Amount On-slts
(code) (code) (days)
nm cm, i.rj i
* V ' "- %
\ "• ' , "• v ' ' '
tn en MI i
nil on :rm
\ ?
Storage Codes and Locations
(Non-Confidential)
Storage Code Storage Locations "••.....-.'•'' - ''•
€iCertjflOiatlon , (Read and sign after completing alt sections) .. -.','*,->' - , Optional Attachmants t-^(?/iec/(;one;
1 certify under penalty of law that 1 have personally examined and am familiar with the Information submitted In this and all attached documents, and that based
on my Inquiry of those Individuals responsible for obtaining the Information, 1 believe that the submitted Information Is true, accurate, and complete. [ 1 | nave attached a site plan
1 1 1 have attached a .list of site
Name and official title of owner/operator OR owner/operator's authorized representative Signature Date signed
-------
Page r r of , . L,... pages
Form Approved OMB No. 2050-0072
Tier Two
EMERGENCY
AND
HAZARDOUS
CHEMICAL
INVENTORY
Specific
Information
by Chemical
Factlfty Identification
rJ^mt
Street Address .
City
SIC Code | |
. , FOR
- -OFFICIAL
,' , , USE ,
- ;- ONLY '-
1 1 I Dun & Brad 1 1 U 1 1 1-1 i 1 1 1
1 1 1 Number 1 1 H 1 1 1 1 1 1 1 1
ID* • jfcC
i. •'•-: -•--'•-.
Date Received !•'.?:#?.
Owner/Operator Name
tUfltrW t»v»M> ( )
Mall A'Mresff
s Emergencyjspntact -
M.m. Tltlo
Dh/™> ( 1 MUr Ctv™. ( )
fMftrfu* TItlft '
Dlv«. ( ) M Hf. Phnn« ( )
Important: Read all instructions before completing form
Reporting Period From January 1 to December 31, 19_
Confidential Location information Sheet
Storage Codes and Locations
'{Confidential)
Storage Codes
Storage -• Locations
CAS* i i i i i i i nu n sss;
MINI m n as
nun
Chem.
Name
"Cert.lflcatlort x {Read and sign after completing all sections) •. . - -
I certify under penalty of law that I hava personally examined and am familiar with the Information submitted In this and all attached documents, and that based
on my Inquiry of those Individuals responsible for obtaining tho Information, I believe that the submitted Information Is true, accurate, and complete.
Name and official title of owner/operator OR owner/oporator's authorized representative Signature
Date signed
B
I have attached a site plan
I have attached a list of site
coordinate abbreviations
-------
38374
Federal Register / Vol. 52, No. 199 / Thursday* October 15, 1987 / Rules and Regulations
TIER TWO INSTRUCTIONS
^
GENERAL INFORMATION
Submission of this Tier Two form {when requested) Is required by Title III of the Suparfurvd Amendments
and Ftaauthorlzatlon Act of 1986, Section 312, Public Law 99-499. The purpose of this Tier Two form Is to
provide State and local officials and the public with specific Information on hazardous chemicals present
at your facility during the past year.
YOU MUST PROVIDE ALL INFORMATION
REQUESTED ON THIS FORM TO FULFILL
TIER TWO REPORTING REQUIREMENTS.
This form may also be used as a worksheet for
completing the Tier One form or may be submitted
In place of the Tier One form.
WHO MUST SUBMIT THIS FORM
Section 312 of Title III requires that the owner or opera-
tor of a faculty submit this Tier Two form If so requested
by a Stata emergency planning commission, a local
emergency planning committee, or a fire department
with Jurisdiction over the facility.
This request may apply to the owner or operator of any
facWty that la required, under regulations Implementing
the Occupational Safety and Health Act of 1970, to pre-
pare or have available a Material Safety Data Sheet
(MSDS) for a hazardous chemical present at the facility.
MSDS requirements are specified In the Occupational
Safety and Health Administration (OSHA) Hazard Com-
munications Standard, found In Title 29 of the Code of
Federal Regulations at §1910.1200.
WHAT CHEMICALS ARE INCLUDED
You must report the Information required on this form for
each hazardous chemical for which Tier Two Information
Is requested. However, OSHA regulations and Title III
exempt some chemicals from reporting.
Section 1910.1200(b) of the OSHA regulations currently
provides the following exemptions:
(I) Any hazardous waste as such term Is defined
by the Solid Waste Disposal Act as amended (42
U.S.C. 6901 et seq.) when subject to regulations
Issued under that Act;
(H) Tobacco or tobacco products;
(M) Wood or wood products;
(Iv)-Articles"- defined under §1910.1200(b) as a
manufactured Item:
• Which Is formed to a specific shape or design
during manufacture;
• Which fcas end use functton(s) dependent In
whole or In part upon the shape or design dur-
ing end use; and
• Which does not release, or otherwise result In
exposure to a hazardous chemical under nor-
mal conditions of use.
-------
Federa\ Register / Vol. 52, No. 199 / Thursday, October 15, 1987 / Rules and Regulations
33373
.^:*>:^^X;X-X*»:AX*V.>:WWX::^^
INSTRUCTIONS
Please read these Instructions carefully. Print or type all responses.
WHEN TO SUBMIT THIS FORM
Owners or operators must submit the Tier Two form to
the requesting agency within 30 days of receipt of a writ-
ton request from an authorized official.
WHERE TO SUBMIT THIS FORM
Send the completed Tier Two form to the requesting
agency.
PENALTIES
Any owner or operator who violates any Tier Two report-
Ing requirements shall be liable to the United States for a
civil penalty of up to $25,000 for each such violation.
Each day a violation continues shall constitute a separate
violation.
You may Use the Tier Two form as a worksheet for
completing the Tier One form. Filling In the Tier
Two Chemical Information section should help you
assemble your Tier One responses.
If your responses require more than one page, fill In the
page number at the top of the form.
REPORTING PERIOD
Enter the appropriate calendar year, beginning January 1
and ending December 31.
FACILITY IDENTIFICATION
Enter the full name of your facility (and company Identi-
fier where appropriate).
Enter the full street address or state road. If a street
address Is not available, enter other appropriate identifi-
ers that describe the physical location of your facility
(e.g., longitude and latitude). Include city, state, and zip
code.
Enter the primary Standard Industrial Classification (SIC)
code and"the Dun & Bradstreet number for your facility.
The financial officer of your facility should be able to pro-
vide the Dun & Bradstreet number. If your firm does not
have this Information, contact the state or regional office
of Dun & Bradstreet to obtain your faculty number or
have one assigned.
OWNER/OPERATOR
Enter the owner's or operator's full name, mailing ad-
dress, and phone number.
EMERGENCY CONTACT
Enter the name, title, and work phone number of at least
one local person or office who can act as a referral If
emergency responders need assistance In responding to
a chemical accident at the facility.
Provide an emergency phone number where such emer-
gency chemical Information will be available 24 hours a
day, every day.
CHEMICAL INFORMATION: Description,
Hazards, Amounts, and Locations
The main section of the Tier Two form requires specific
Information on amounts and locations of hazardous
chemicals, as defined In the OSHA Hazard Communica-
tion Standard.
o What units should I use?
Calculate all amounts as weight In pounds. To
convert gas or liquid volume to weight In
pounds, multiply by an appropriate density fac- •
• tor.
• What about mixtures?
If a chemical Is part of a mixture, you have the
option of reporting either the weight of the en-
tire mixture or only the portion of the mixture
that Is a particular hazardous chemical (e.g.,
If a hazardous solution weighs 100 Ibs. but Is
composed of only 5% of a particular hazardous
chemical, you can Indicate either 100 Ibs. of
the mixture or 5 Ibs. of the chemical.
Select the option consistent with your Section
311 reporting of the chemical on the MSDS or
list of MSDS -chemicals.
CHEMICAL DESCRIPTION
1. Enter the Chemical Abstract Service number
(CAS#).
For mixtures, enter the CAS number of the mix-
ture as a whole if It has been assigned a number
distinct from Its components. For a mixture
that has no CAS number, leave this Item blank or
report the CAS numbers of as many constituent
chemicals as possible.
if you are withholding the name of a chemical In ac-
cordance with criteria specified In Title ill, Section
322, enter tha generic chemical class (e.g., Hst
toluene disocynate as organic Isocynate) and check
the box marked Trade Secret. Trade secret
•Information should be submitted'to EPA and must
Include a substantiation. Please refer to Section
322 of Title Hi for detailed Information on how to
comply with trade secret requests,
2. Enter the chemical name or common name of each
hazardous chemical.
3. Circle ALL applicable descriptors: pure or mixture,
and solid, liquid, or gas.
EXAMPLE:
You have pure chlorine gas on hand, as
well as two mixtures that contain liquid
chlorine. You write "chlorine" and enter the
CAS#. Then you circle "pure" and "mix" —
as well as "liq"and "gas".
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38376 Federal Register / Vol. 52. No. 199 / Thursday, October 15, 1987 / Rules and Regulations
PHYSICAL AND HEALTH HAZARDS
For each chemical you have listed, check all the physical
and health hazard boxes that apply. These hazard cate-
gories ars doflned In 40 CFR 370.3. The two health haz-
ard categories and three physical hazard categories are
a consolidation of the 23 hazard categories defined In the
OSHA Hazard Communication Standard. 29 CFR
1910.1200.
1. For each hazardous chemical, estimate the average
weight In pounds that was present at your facility dur-
ing the year.
To do this, total all daily weights and divide by the
number of days the chemical was present on the
site.
2. Find the appropriate range value in Table I.
3. Enter this range value as the Average Daily Amount.
MAXIMUM AMOUNT
1. For each hazardous chemical, estimate the greatest
amount present at your facility on any single day dur-
ing the reporting period.
2,= Find the appropriate range value code In Table I.
3. Enter this range value as the Maximum Amount.
Table I REPORTING RANGES
Range
Value
00
01
02
03
04
05
06
07
08
09
10
Weight Rang*
From...
0
100
1,000
10.000
100,000
1,000,000
10,000,000
50,000,000
100,000,000
500.000,000
1 billion
In Pounds
To...
99
999
9,999
99,999
999,999
9,999,999
49,999,999
99.999,999
499,999.999
999,999,999
higher than 1 billion
EXAMPLE:
The 5,000-gallon shipment of solvent you re-
ceived last year was gradually used up and
completely gone in 315 days. The sum of the
daily volume levels In the tank Is 929,250 gallons.
By dividing 929,250 gallons by 315 days on-site,
you calculate an average daily amount of 2,950
gallons.
You already know that the solvent contains 10%
benzene, which Is a hazardous chemical. Since
10% of 2,950 is 295, you figure that you had an
average of 295 gallons of benzene. You also
know that the density of benzene is 7.29 pounds
per gallon, so you multiply 295 by 7.29 to get
a weight of 2,150 pounds.
Then you look at Table I and find that the
range value 02 correponds to 2,150. You
enter 02 as the Average Daily Amount.
(If you are using the form as a worksheet for
completing a Tier One form, you should write
2,150 In the shaded area.)
If you are using this form as a worksheet for com-
pleting Tier One, enter the actual weight In pounds
In the shaded space below the response blocks. Do
this for both Maximum Amount and Average
Daily Amount.
EXAMPLE:
You received one large shipment of a solvent
mixture last year. The shipment fBled your 5.000- "-
gallon storage tank. You know that the solvent
contains 10% benzene, which te a hazardous
chemical. <
You figure that 10% of 5.000 gallons Is 500 <;
gallons. You also know that the density of
Sanztne Is 7.29pounds per gallon, so you
multiply 500 by 7.29 to get a weight of 3,645
pounds.
Thon you look at Table I and find that the
range value 02 corresponds to 3,645. You
onter 02 as the Maximum Amount,
{If you are using the form as a worksheet for
completing a Tter One form, you should write >
3.645 in the shaded area.)
NUMBER OF DAYS ON-SITE
Enter the number of days that the hazardous chemical
was found on-site.
EXAMPLE:
The solvent composed of 10% benzene was
present for 315 days at your facility. Enter 315
In the space provided.
STORAGE CODES AND STORAGE LOCATIONS
List an non-confidential chemical locations in this column,
along with storage types/conditions associated with each
location.
Storage Codes: Indicate the types and conditions of
storage present.
a. Look at Table II. For each location, find the
appropriate storage type(s). Enter the cor-
responding code(s) in front of the parenthe-
ses.
b. Look at Table III. For each storage type,
find the temperature and pressure condi-
tions. Enter the applicable pressure code 1n
the first space within the parentheses. Enter
the applicable temperature code in the test
space within the parentheses..
AVERAGE DAILY AMOUNT
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Federal Register / Vol. 52, No. 199 / Thursday, October 15, 1987 / Rules and Regulations 38377
Table II - STORAGE TYPES
CODES Types of Storage
A Above ground tank
B Below ground tank
C Tank Inside building
D Steel drum
E Plastic or non-metallic drum
f Can
Q Carboy
H Silo
I Fiber drum
J Bag
K Box
L Cylinder
M Glass bottles or jugs
N Plastic bottles or jugs
O Tote bin
P Tank wagon
Q Rail car
R Other
Optional attachments: If you choose to attach one of the
following, check the appropriate Attachments box at the
bottom of the Tier Two form.
a. A site plan with site coordinates Indicated for
buildings, lots, areas, etc. throughout your
facility.
b. A list of site coordinate abbreviations that
correspond to buildings, lots, areas, eto.
throughout your facility.
; ,''!,"' - , ' v '„'-, ,', , ', ''{ ''•>',',' ' v '-.
EXAMPLE: |
You have benzene In the main room of the |
main building, and in tank 2 In tank field 10. i
You attach a site plan with coordinates as %
follows: main building = G-2, tank field 10 = |
B-6. Fill In the Storage Location as follows: it
B-6 [ Tank 2 ] G-2 [Main Room]
Table III - TEMPERATURE AND PRESSURE
CONDITIONS
CODES Storage Conditions
(PRESSURE)
1 Ambient pressure
2 Greater than ambient pressure
3 Less than ambient pressure
(TEMPERATURE)
4 Ambient temperature
5 Greater than ambient temperature
6 Less than ambient temperature
but not cryogenic
7 Cryogenic conditions
EXAMPLE:
The benzene In the main building Is kept In a
tank inside the building, at ambient pressure
and less than ambient temperature.
Table II shows you that the code for a tank
Inside a building Is C. Table III shows you that
code for ambient pressure Is 1, and the coda
for less than ambient temperature is 6.
You enter: C(1,6)
Under Title III, Section 324, you may elect to withhold
location Information on a specific chemical from disclo-
sure to the public. If you choose to do so:
• Enter the word "confidential" In the Non-Con-
fidential Location section of the Tier Two form.
•» On a separate Tier Two Confidential Location
Information Sheet, enter the name and CAS#
of each chemical for which you are keeping
the location confidential.
• Enter the appropriate location and storage In-
formation, as described above for non-confi-
dential locations.
• Attach the Tier Two Confidential Location In-
formation Sheet to the Tier Two form. This
separates confidential locations from other In-
formation that will be disclosed to the public.
^
CERTIFICATION.
This must be completed by the owner or operator or the
officially designated representative of the owner or op-
erator. Enter your full name and official title. Sign your
name and enter the current date.
Storage Locations:
Provide a brief description of the precise location of the
chemical, so that emergency responders can locate the
area easily. You may find It advantageous to provide the
optional site plan or site coordinates as explained below.
For each chemical. Indicate at a minimum the building or
lot. Additionally, where practical, the room or area may
be Indicated. You may respond In narrative form with
appropriate site coordinates or abbreviations.
If the chemical Is present In more than one building, lot,
or area location, continue your responses down the page
as needed. If the chemical exists everywhere at the
plant site simultaneously, you may report that the chemi-
cal Is ubiquitous at the site.
•&U.S. GOVERNMENT PRINTING OFFICE: 1989 - 617-003/84316
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