Wednesday
March 29, 1989
Part S!
Environmental
Protection
40 CFR Parts 350, 355, 370, and 372
Emergency and Hazardous Chemical
Inventory Forms and Community Right-
to-Know Reporting Requirements;
Implementation of Reporting
Requirements for Indian Lands; Proposed
Rule
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12992 Federal Register / Vo'lit 54, No. 59 / Wednesday, March 29, 1989 / Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 350, 355, 370, and 372
(3491-7)
Emergency and Hazardous Chemical
Inventory Forms and Community
Htght-to-Know Reporting
Requirements; implementation of
Reporting Requirements for Indian
Lands
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Notice of proposed rulemaking
SUMMARY: Section 311 of the Emergency
Planning and Community Right-to-Know
Act (EPCRA or Title HI) of the
Superfund Amendments and
Rcauthorization Act of 1986 (SARA)
authorizes the Administrator of the U.S.
Environmental Protection Agency (EPA)
to establish reporting thresholds (i.e.,
quantities) for hazardous chemicals
present at a facility below which
facilities would not routinely have to
comply with the reporting requirements
specified in sections 311 and 312 of Title
III. EPA previously established reporting
thresholds for the first two years of
reporting. EPA is today proposing
reporting thresholds that would apply on
or befora October 17, 1989, for
manufacturing facilities and September
24, 1990, for non-manufacturing
facilities. These thresholds are as
follows: For extremely hazardous
substances (EHSs) designated under
section 302 of Title HI, the reporting
threshold would be 500 pounds or the
threshold planning quantity (TPQ),
whichever is lower; for all other
hazardous chemicals for which facilities
are required to have or prepare a
Material Safety Data Sheet. EPA is
proposing a reporting threshold of 10,000
pounds. Reporting in accordance with
these proposed thresholds would
provide State and local governments
with information on the hazardous
chemicals EPA considers to be of
particular concern, without
overwhelming State and local agencies
with excessive information. EPA is also
clarifying the definition of "facility,"
proposing a minor change to the Tier I
and Tier II forms, and proposing minor
corrections and clarifications to the
instructions that accompany the
reporting forms under sections 311 and
312. In addition, EPA is correcting the
listing for reportable quantities for two
extremely hazardous substances under
section 304, and clarifying the treatment
of extremely hazardous substances in
niixrures under sections 311 and 312.
EPA is also proposing to clarify the
implementation of Title III on Indian
liands and specifying the emergency
planning obligations under section 302
of tribal emergency response agencies,
as well as the reporting obligations
under sections 304,311,312, and 313 of
owners and operators of facilities
located on Indian lands.
DATES: Comments may be submitted on
or before May 30,1989.
ADDRESSES: Comments may be mailed
or delivered to the Superfund Docket
clerk. Attn: Docket Number 300RR-IF,
Superfund Docket Room 2427 (OS-240),
U.S. Environmental Protection Agency,
401M Street SW., Washington, DC
20460. Please send four copies of
comments. The docket is available for
inspection by appointment between the
hours of 9:00 am and 4:00 pm, 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, Project Officer,
Preparedness Staff, Office of Solid
Waste and Emergency Response, OS-
120, U.S. Environmental Protection
Agency, 401M Street SW., Washington,
DC 20460, or Emergency Planning and
Community Right-to-Know Information
Hotline at 1-800-535-0202; in
Washington, DC, metro area and
Alaska, (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. SARA
2. Title III
C. Background to this Rulemaking
IL Criteria for Selecting a Permanent Report-
ing Threshold
A. Information Potential
B. Hazard Identification
C. Information Management and Cost-Ef-
fectiveness
HI. EPA's Approach
A. Analysis of Threshold Effects
B. Information Management Study
IV. Discussion of the Proposed Rule
A. Reporting Thresholds
B. Other changes
1. Multi-Establishment Facility Reporting
2. Subsurface Operations
3. Treatment of Mixtures in Reporting
Threshold Calculations
4. Reportable Quantities for Hydrogen
Chloride and Methacrylonitrile
5. Clarification of the Reporting Forms
6. The Implementation of Title III by
Indian Tribes on Indian Lands
V. Regulatory Analyses
A. Regulatory Impact Analysis
B. Regulatory Flexibility Analysis
C. Paperwork Reduction Act
L Introduction
A. Statutory Authority
These regulations are issued under
sections 302, 304, 311, 312, 313, and 328
of Title III of the Superfund
Amendments and Reauthorization Act
of 1986 (SARA) (Pub. L. 99.499; 42 U.S.C.
11001 etseq.). Title III is the Emergency
Planning and Community Right-to-Know
Act of 1986. ;
B. Background
I.SARA
. The Superfund Amendments and
Reauthorization Act of 1986 (SARA)
revises and extends the authorities
established under the Comprehensive
Environmental Response,
Compensation, and Liability Act of 1980
(CERCLA). Commonly known as
"Superfund," CERCLA provides
authority for Federal response action at
certain sites where there is a release or
threat of release of hazardous
substances.
2. Title III :
Title HI establishes authorities for-
emergency planning and preparedness,
emergency notification reporting,
Community Right-to-Know reporting,
and toxic chemical release reporting.
Title III is intended to encourage and
support State and local planning for
emergencies caused by the release of
hazardous chemicals and to provide
citizens and governments with
information concerning potential
chemical hazards present hi their
communities. Title III is organized into
three subtitles. Subtitle A establishes a
framework for State and local
emergency planning. Under section 301
of Subtitle A, States have established
State Emergency Response
Commissions (SERCs), which have, in
turn, appointed Local Emergency
Planning Committees (LEPCs). Section
302 requires EPA to designate Extremely
Hazardous Substances (EHSs) and to
establish threshold planning quantities
(TPQs) for each EHS; to date, there are
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12S93
366 designated EHSa Ksted in 40 CFR
Part 355. Every facility where an EHS is
present at or above its TPQ is required
to notify the SERC and to cooperate
with the LEPC hi the planning process
specified under section 303. of Title III.
Section 304 of Title ffl requires the
owners or operators of facilities to
notify the local emergency coordinator ,
and any potentially affected State as
soon as the-owner or operator has
knowledge of a release of an EHS or a
CERCLA hazardous substance, if the
release equals or exceeds a reportable
quantity (RQ), or for. those EHSs that
have not been assigned an RQ, one
pound.
Subtitle B of Title III provides a
mechanism for public awareness of
hazardous chemicals present in the
community. Sections 311 and 312 of Title
m are discussed in detail in the next
section of this preamble. Section 313
requires facilities in Standard Industrial
Classification (SIC) codes 20 through 39
(i.e., manufacturing facilities) to report
total annual emissions of designated
toxic chemicals that are manufactured, •
processed, or used at the facilities in
quantities at or above certain
thresholds. Subtitle C of Title HI
contains general provisions concerning
trade secret protection, enforcement,
citizen suits, and public availability of
information.
C. Background of This Rulemaking
Section 311 of Title HI applies to the
owner or operator of a facility that has
present hazardous chemicals for which
the owner or operator must prepare or
have available a Material Safety Data
Sheet (MSDS) under the Hazard
Communication Standard (HCS)'
regulations [29 CFR Part 1910)
promulgated under the Occupational
Safety and Health Act of 1970. Under .
section 311 of Title III, the owner or
operator of a facility must submit
individual MSDSs, or a list of chemicals
for which the facility is required to have
an MSDS, to the SERC, LEPC, and local
fire department The HCS does not list
specific chemicals; a "hazardous
chemical," as defined hi the HCS
regulations, is one that poses either a
physical or health hazard. The tens of
thousands of chemicals covered by the
HCS include petroleum products,
explosives, and carcinogens.
Title HI (section 311(b)) states that the
EPA Administrator may establish
reporting thresholds (i.e., quantities of
hazardous chemicals) such that if the
hazardous chemical subject to the HCS
is present at a facility in a quantity that
is below the reporting threshold, the
- facility is not required to report the
presence of that chemical under the
provisions of sections 311 and 312 of
Title ffl. On October 15,1987, EPA
promulgated regulations (52 FR 38334)
establishing reporting thresholds under
section 311(b) of Title III for facilities
subject to the OSHA HCS regulations.
The reporting threshold established for
the first two years was 10,000 pounds,
except for EHSs, which must be
reported at the lower of 500 pounds or
the TPQ. A threshold of zero is currently
in effect for the third year of reporting,
but EPA stated in 1987 that it intended
to promulgate a non-zero threshold
before the beginning of the third year of
reporting. EPA also stated that facilities
must provide information on chemicals
present in quantities below the reporting
threshold if the SERC, LEPC, or fire
department requests such information.
This provision applied to all facilities,
even those not subject to routine •
reporting.
The HCS regulations were initially
restricted to facilities in SIC codes 20
through 39, that is, the manufacturing
sector. On August 24,1987, however, the
Occupational Safety and Health
Administration (OSHA) revised the HCS
rules to cover facilities in the non-
manufacturing sector as well as
facilities in the manufacturing sector (52
FR 51852). Several industrial groups
challenged the revised standards,
resulting hi a temporary stay for non-
manufacturing facilities. On July 22,
1988, OSHA clarified that the HCS was
in effect for non-manufacturing facilities
as of June 24,1988, except for the
construction industry (53 FR 27679). On
February 15,1989, OSHA advised that
all provisions of the HCS were in effect
for all segments of industry, including
the construction industry, as of January
30,1989 (54 FR 6886).
. For facilities in SIC codes 20 through
39, the initial MSDSs or lists were
required to be submitted to the
appropriate SERC, LEPC, and fire
department by October 17,1987. Non-
manufacturers were required to submit
their MSDSs or lists by September 24,
1988 (i.e., three months after they
became subject to the HCS rules, as
specified in 40 CFR 370.20(b)). Facilities
in the construction industry will be
required to submit their MSDSs or lists
by April 30,1989. Thereafter, if a facility
begins to use a chemical subject to the
HCS regulations, in a quantity at or
above the reporting threshold, or if a
facility learns that its previously '
submitted MSDS is inaccurate for any
reason, the facility must submit the new
or corrected information within three
months to the appropriate SERC, LEPC,
and local fire department (40 CFR
370.21(c)).
Under section 312 of Title HI, owners
and operators covered by section 311 of
Title ID are required to submit
additional information on the presence
and location of hazardous chemicals at
their facilities. Beginning March 1,1988
for manufacturers, March 1,1989 for
non-manufacturers, March 1,1990 for
the construction industry, and annually
thereafter, all facilities affected by the
HCS regulations that have hazardous
chemicals at or above the reporting
thresholds must submit an inventory
form containing an estimate of the
maximum amount of the hazardous
chemicals present at the facility during
the preceding year, an estimate of the
average daily amount of hazardous
chemicals present at the facility, and the
location of these chemicals. The
inventory forms must be submitted to
the SERC, LEPC, and fire department.
Section 312 provides two "tiers" of
information. All covered facilities must
submit Tier I forms, which contain
general information on the amount and
location of hazardous chemicals by
category; Tier I forms must be submitted
annually. Tier II forms contain more
detailed information on individual
chemicals and must be submitted on
request. Facilities may submit Tier II
forms hi lieu of Tier I forms.
As stated above, a threshold of zero
pounds is currently in effect for the third
year of reporting; that is, there would be
no threshold as of the third year. For
manufacturers, the third year of
reporting begins on October 17,1989; for
non-manufacturers, the third year begins
on September 24,1990. EPA stated in the
October 15', 1987 final rule, however,
that it believed the balance of concerns
about the information management
burden on local communities "weighs in
favor of a non-zero threshold," arid that
it would conduct further studies of
alternative thresholds and propose a
new final reporting threshold before the
beginning of the third year of reporting.
EPA is today proposing final reporting
thresholds based on analyses conducted
since the promulgation of the October
15,1987 final rule. The analyses
compared the effects of varying
thresholds with criteria selected to
address the intent of Congress when it
enacted Title III.
On December 27,1988 (53 FR 52273),
the Office of Management arid Budget
(OMB) requested comment on whether
the Underground Storage Tank (UST)
notification form could be used as a
substitute for section 311 and/or section
312 requirements by respondents with
underground storage tanks. OMB is
particularly interested in comments from
the recipients of this information, i.e.,
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Federal Register / Vol. 54. No. 5ST / Wednesday, March 29, 1989 / Proposed Rules
^^^^^^i^a,^^^^••••^•^••^••••^•'l' ~™—•""•^"••••^•'^^•^^••'••••••••M'*
SERCa, lEPCsi and local fire
departments. Commenters may continue
to submit comments on this issue to
OMB at the address listed in the
December 27,1988 Federal Register
notice or comments.may be included
with the submission on this proposed
rulemaking.
n. Criteria for Selecting a Permanent
Reporting Threshold
Congress enacted Title m to provide
the public with information on
hazardous chemicals present in their
communities, thereby helping
communities prepare for and respond to
chemical emergencies. In addition,
Congress clearly believed that the
provision of information would lead to
reductions of hazards in a community by
creating public awareness and a
community-industry dialogue. Early
reports from SERCs and LEPCs indicate
that both of these benefits of Title m are
being realized.
Although LEPCs technically are
required to plan only for emergencies at
facilities with one or more of the 366
EHSs, rather than facilities handling any
of the thousands of other chemicals'
identified through the sections 311 and
312 submissions, the inventory
information provided under sections 311
and 312 plays an important role in a
community's overall awareness of
hazards and in its ability to respond
appropriately and safely because of
increased information about the
hazardous chemicals present at a
facility. Ideally, EPA would have liked
to establish risk-based reporting
thresholds that take into consideration
the hazards posed by the chemicals, the
potential for a significant release, and
the potential exposure of surrounding
populations. Given the tens of thousands
of hazardous chemicals covered under
sections 311 and 312, however, EPA
determined that a chemical-specific
'approach simply was not feasible. In
addition, EPA considered evaluating
facility locations and potential
population exposures around facilities
that would be affected by different
reporting thresholds. In this way, EPA
hoped to understand how different
thresholds might help to reduce risk in a
community. EPA concluded, however,
that because of the diverse locations of
facilities in similar industries and the
changing demographic distribution, such
a risk-based approach was not feasible.
Therefore, in considering possible final
thresholds, EPA looked at three criteria
for selecting a final reporting threshold
or thresholds: (1) Information potential.
(2) hazard identification, and (3)
information management burden and
cost. *
A. Information Potential
In general, all else being equal,,the
optimal reporting threshold should
provide information on as many
facilities as possible. In this way, even if
the responders lack information on the
specific facility involved in an incident,
information may be available on similar
facilities or on the chemical of concern.
This information may help responders
determine the kinds of hazardous
chemicals likely to be present at a
facility and to identify the appropriate
response to a specific chemical hazard.
If emergency responders lack
information on the chemicals present at
a facility, they may not be able to
respond appropriately should a
hazardous chemical incident occur. For
example, when a fire started at a
Springfield. Massachusetts warehouse
containing chemicals used in swimming
pools, the fire fighters were unsure of
the chemicals and quantities present at
the facility and, therefore, could not
identify the appropriate chemicals to
apply to the fire. The incident lasted
three days and more than 25,000 people
had to be evacuated from their homes.
B. Hazard Identification
One goal in selecting a final reporting
threshold under sections 311 and 312 of
Title ni is to succeed in generating
reports that can be used to identify
hazards present in a community so that
the public and industry can work
together to reduce those hazards.
Hazard reduction can take place through
a number of mechanisms; for example,
inventories can be reduced, safety
practices at a facility can be improved.
routing of vehicles carrying hazardous
chemicals can be altered to avoid
populated areas, and siting and zoning
decisions can be modified to require and
maintain buffer zones around facilities.
All other factors being equal, a
reporting threshold should result in the
submission of reports on the most toxic
chemicals present'in a community.
When EPA adopted the 10,000 pound
interim reporting threshold under
.sections 311 and 312, the Agency set a
lower reporting threshold for EHSs
because of their acute mammalian
. toxicity, that is, their ability to cause
significant adverse effects on health
with a brief one-time exposure. EPA
explained: "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" (52 FR 38334,
October 15,1987].
The hazardous chemicals covered
under the OSHA HCS (and, therefore.
under Title III sections 311 and 312} pose
a broad range of health and physical
hazards. Some of the chemicals are
life-threatening—for example, OSHA
hazardous chemicals that are also EHSs
and carcinogens—while other chemicals
may cause relatively minor health
problems. The HCS, however, does not
distinguish among these different
degrees of hazard.
C. Information Management and Cost
Effectiveness
With every reduction in the reporting
threshold; the number of facilities and
the number of chemicals covered
increases, as does the cost to both
government and industry. Similarly,'.
every increase in the threshold level
reduces the number of reports filed, and
thereby reduces the amount of
information government and Indus try
must manage. In its October 15,1987
final rule, EPA stated that its primary
concern was to "prevent State and :
local governments from being so
overwhelmed with submissions under
this program that effective public access
and government use of information are
not possible" (52 FR 38334). If the
.amount of information submitted is too
great for the staff available in a
community to organize into easily
accessible files, the utility of all the
information will be undercut. In
adopting final reporting thresholds,
therefore, EPA must balance,the data
management and cost burdens against
the value of the information that would
be. lost or gained with a particular
reporting threshold.
III. EPA's Approach
EPA undertook a two-phase study to
determine appropriate thresholds: (1) An
analysis of threshold effects, and (2) a
study of the techniques SERCs, LEPCs,
and fire departments are using to
manage the data submitted under
«sections 311 and 312. This section
describes both of these phases.
A. Analysis of Threshold Effects \
EPA analyzed the potential effects of
six threshold options that represent the
range of reporting quantities EPA
wanted to consider, as well as options
, for lowering reporting thresholds for
chemicals included on certain lists {see
section IV of this preamble for a
discussion of the rationale for selecting
the six options). For each option, EPA
estimated the number of facilities in the
U.S. that would be affected by a
particular reporting threshold, the
average number of chemicals that would
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Federal Register / Vol. 54, No. 59 / Wednesday. March 29, 1989 /Proposed Rules 12995
jbe reported per facility, the total number
of reports that would be filed, the
{average pounds of chemicals reported
i£)er facility, and the total pounds of
-chemicals that would be reported in the
/U.S. The analysis also considered the
.; 'number of chemicals EPA has
, ,j designated as hazardous that would be
/ reported under each -threshold option,
the incremental number of facilities and
chemicals relative to the incremental'
cost at each lower threshold, and the
total cost to facilities and to
government. (For a discussion of the
methods EPA used to evaluate the costs
and cost increments, see section V of
' this preamble and the Regulatory Impact
Analysis in Support of a Permanent
Reporting Threshold under sections 311
and 312 of the Emergency Planning and
Community Right-to-Know Act (RIA),
available in the docket.)
These national estimates were
developed by extrapolating from data
bases on the amounts of hazardous
chemicals present at facilities in specific
localities. The following criteria were
used to select data bases from which to
extrapolate: (1) The data base should
include manufacturing and non-
manufacturing industry groups
potentially affected by sections 311 and
312; (2) the data base should not be
biased toward facilities that differ
significantly in size from the national
norms; (3) the data base should contain
enough information to determine
threshold effects, including SIC codes,
chemical identity, storage quantity of
chemicals, and number of employees;
and (4) the data should reflect reports of
chemicals defined in a manner similar to
the OSHA rules, without limit on
quantity or toxicity.
EPA evaluated six data bases against
these criteria, one each from Maryland,
Michigan, New York, and Los Angeles,
California, and two from New Jersey.
Data bases from Los Angeles and from
New Jersey (specifically, the New Jersey
data based on reports filed under both
the State and.Federal Right-to-Know
programs) best satisfied the criteria
• specified above. The other data bases
covered only a limited number of the
chemicals subject to section 311 and 312 .
requirements and represented non-
manufacturers poorly. The lack of .
uniformity in covered chemicals and
reporting thresholds among the data
bases, as well as less than full
compliance with the relevant reporting
requirements, made it infeasible to
consider combining their data. The Los
Angeles and New Jersey Right-to-Know
data bases, in contrast, were well-suited
for the threshold analysis because they
include information submitted by both
manufacturing and non-manufacturing
facilities, represent all size categories,
and contain quantity information on
hazardous chemicals at facilities
covered by the HCS regulations. The Los
Angeles data base, however, was not
used to evaluate the zero pound
threshold option because there did not .
appear, to be an adequate representation
of facilities reporting below the 500-
pound California Right-to-Know
reporting threshold. The New Jersey
Right-to-Know data base did provide
data on facilities at a zero threshold.
Only the New Jersey data, therefore,
were used in evaluating the effects of a
zero reporting threshold. (For a full
description of the selection of the data
bases, see Chapter 2 in the RIA in
support of this proposed rulemaking,
available in the docket.)
B. Information Management Study
To analyze the impacts of the
alternative thresholds on the
information management capabilities of
the recipients of section 311 and 312
reports, EPA conducted telephone
interviews with 32 LEPCs, 12 SERCs,
and 15 fire departments thought to have
implemented effective information
management systems or procedures, as
well as with representatives of three
environmental organizations. Through
the interviews, EPA addressed topics
identified in the preamble to the
October 15,1987, final rule as pertinent
to the effectiveness of Federal reporting
thresholds. These topics include
compliance experience with both State
and Federal Right-to-Know programs,
the completeness of information
generated under tljese programs, the
ability 6f State and local officials to
manage and provide public access to
this information, and the number and
source of requests for additional facility
information. The study was not designed
to yield statistically valid findings and,
therefore, the conclusions cannot be
extended in any formal way to
government entities as a whole.
Nevertheless, a number of useful
insights were obtained. (The full report
on the information management study,:
"Information Management by State and
Local Government Entities under
sections 311 and 312 of the Emergency
Planning and Community Right-to-Know
Act," is available in the public docket.)
Among the key observations were
that all of the SERCs and most of the
LEPCs that have taken the lead in
information management either have, or
soon will have, adequate computer
capabilities to store and retrieve
electronically data from Right-to-Know
submissions. Fewer fire departments
have computer capabilities, but many
have access to LEPC resources through
their capacity as lead agencies for
LEPCs. Nevertheless, even government
entities with computers use only a
fraction of their technological
capabilities at present. The most
common computer application is a log
identifying facilities that have submitted
information and the type of chemical
information submitted (i.e., MSDSs,
chemical list, Tier I form, or Tier II
form). Although many LEPCs are
beginning to use Right-to-Know
information in the preparation of
emergency plans or are making the
information available to emergency
responders, few such LEPCs have
achieved .their goals. Almost none of the
government entities that were studied
exercise quality control over the data
submitted by facilities. Many facility
reports, therefore1, are filed or
computerized with incomplete or
obviously inaccurate information, such
as improper chemical identifications or
improbable inventory quantities.
Staffing, not technology, is the
important constraint on the information
management capabilities of government
entities. Some government entities are,
using temporary employees or college'
interns to perform data entry. Others
already have a data management staff
to manage information submitted under
State or local Right-to-Know laws
similar to sections 311 and 312; however,
few employees have the necessary
background to review submissions for
technical accuracy. Absence of qualified
personnel, more than any other factor,
accounts for the lack of quality control.
One reason that the data management
burden has not overwhelmed most
government entities to date is that rates
of compliance with current Federal and
State reporting requirements are
estimated to be between 5 and 30
percent. In addition, non-manufacturing
facilities, which far outnumber
manufacturing facilities, will not submit
section 312 reports until March 1989.
Because the information management
burden will increase as compliance
rates improve and as the non-
manufacturers begin submitting reports,
many interview subjects expressed
concern over the possibility that EPA
would lower the reporting threshold and
thus further increase the number of
reports that must be handled; almost
none felt confident that they could
augment their staffs in response to a
reduced Federal threshold.
LEPCs generally indicated that very
few requests for information had been
received from the general public, and
that they have made very few requests
of facilities for information below the
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current threshold. Telephoned requests
to SERCs and LEPCs for-Right-to-Know.
information revealed that, although
there are difficulties in handling
requests for information from the public,
many of the difficulties can be attributed
to the newness of the program. For
example, some State and local agencies
cannot readily direct callers to the
correct source of Right-to-Know
information, either because lines of
authority among Jurisdictions are
unclear or because the agency does not
have an up-to-date roster of LEPC
members. In a few LEPCs, time-
consuming procedures have been
implemented to protect the security of
reporting facilities.
' Several trends were noted that could
imply improved information
management in the future. First,
increasing numbers of LEPCs and fire
departments are negotiating cooperative
agreements with neighboring
jurisdictions or with the SERC to share
information or information management
responsibilities. Second, fee systems are
being established in some States to raise
funds for Title in implementation
through fees on reporting facilities.
Third, computer systems to aid in
emergency planning are being used
increasingly and could contribute to
staff awareness and understanding of
chemical hazards. To date, however,
many SERCs, LEPCs, and fire
departments are only beginning to
tackle the information management *
challenges presented by Title III and, at
best, have only an efficient system of
logging information that enables them to
locate information should a request be
made. Most government entities do not
have a system that enables them to '
retrieve information efficiently for use in
emergency responses or to organize
information for emergency planning
purposes.
IV. Discussion of the Proposed Rule
A, Reporting Thresholds
EPA considered six options in
analyzing potential reporting thresholds.
The options selected for analysis are
representative of the full range of
possible thresholds; they represent
points along a continuum of possibilities
from less inclusive to very inclusive. The
six particular options were chosen
because they allowed EPA to isolate the
effects of varying threshold levels on
each of three factors: (1) The number
and type -of chemicals that would be
reported; (2} the number of'facilities that
would be required to report; and (3) the
volume of chemicals that would be
covered. Because different thresholds
could be set for different classes of
chemicals or even for individual
chemicals, a large number of
combinations of these factors are
possible; for reasons of practicality, EPA
analyzed six options because they set
bounds on the reasonable possibilities.
Option 1 would-set a 50,000 pound
reporting threshold for HCS chemicals
except EHSs, which would have a
reporting threshold of SCO pounds or the
TPQ, whichever is lower.
Option 2 would adopt the current
reporting thresholds—10,000 pounds for
HCS chemicals except EHSs, which
would have a reporting threshold of 500'
pounds or the TPQ; whichever is lower.
Option 3 would set a 10,000 pound
reporting threshold for HCS chemicals,
except for hazardous substances defined
under section 101(14) of CERCLA and
toxic chemicals designated under
section 313 of Title III, which would
have a reporting threshold of 500
pounds, and EHSs, which would have a
reporting threshold of 500 pounds or the
TPQ, whichever is lower.
Option 4 would set a 2,000 pound
reporting threshold for HCS chemicals,
except for hazardous substances
designated under section 101(14) of
CERCLA and toxic chemicals
designated under section 313 of Title III,
which would have a reporting threshold
of 500 pounds, and EHSs, which would
have a reporting threshold of 500 pounds
or the TPQ, whichever is lower.
Option 5 would set the reporting
threshold at 500 pounds for all covered
chemicals.
Option 6 would set the reporting
threshold at zero pounds for all covered
chemicals.
EPA is proposing Option 2, that is, to
retain the reporting thresholds that have
been applied urthe first two reporting
years (a 10,000 pound reporting
threshold for most hazardous chemicals;
the reporting threshold for EHSs at 500
pounds or the TPQ, whichever is lower).
As noted above, in evaluating the
effects of the options. EPA was ;
particularly concerned about the
possibility that the information provided
might be so voluminous that SERCs,
LEPCs, and fire departments would be
overwhelmed. The extension of the HCS
rules to facilities in the
nonmanufacturing sector has greatly
increased the number of facilities
reporting under the current thresholds.
In addition, as facilities become familiar
with Title IH and, therefore, compliance
rates increase, the amount of
information submitted is likely to rise,
Any option that results in further
substantial increases in the amount of
information could be counterproductive.
A second important consideration in
evaluating the effects of the options was
costs and the value of additional
information provided under each of the
alternative thresholds. The table below
shows the estimated number of facilities
that would be affected, the estimated
number of reports that would be filed,
the pounds of chemicals that would be
reported, and the annual costs (in 1987
dollars) that would be incurred
nationally under each of the six .
threshold options. Because the data
were derived from two data bases,
ranges are given for each option except
Option 6; only the New Jersey Right-to-
Know data were used to estimate the
zero option figures and, therefore, only, a
single estimate is given for Option 6. The
ranges represent the estimates derived
from the Los Angeles and New Jersey
data bases; because one data base was
not consistently higher than the
the source of the higher and lower
estimates varies.
•
" .
Effects of alternate reporting thresholds
1,,,, , , , ,, , „ , ^
n
^lrll>llTIIMI(lll».M..I.HMIIItMI1l,«tMlltl>. «u 1...... 1.,
Option
Estimat-
ed
number
of
facilities
affected
(thou-
sands)
248-30S
291-391
374-487
435-555
Estimat-
ed
number
of
chemi-
cals
reported
(millions)
0 8—1 3
1.9-3.2
2.7-4.5
Estimat-
ed
quantity
,of
chemi-
cals
repre-
sented
(billion
pounds)
315-520
320-525
Total
annual
costs
(million
dollars)
83-111
-inp-irw
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Federal Register / Vol. 54, No. 59 / Wednesday. March 29, 1989- / Proposed Rules
12997
Effects of alternative reporting thresholds.
5
a» „„,„„,, , ,
• — — — . — — j
Option
Estimat-
ed
number
of
facilities
affected
(thou-
sands)
488-653
589
Estimat-
ed
number
of
chemi-
cals
reported
(millions)
4.3-6.6
11.3
Estimat-
ed
quantity
of
chemi-
cals
reore-
semed
(billion
pounds)
320-523
321
Total
annual
costs
(million
dollars)
116-166
153
Option 2, the proposed reporting
threshold, is estimated to affect between
291,000 and 391,000 facilities at an
annual cost that ranges from $54 million
to $76 million. Selection of Option 2 is
expected to result in between 1.0 million
to 2.2 million reports on hazardous
chemicals. The difference between
Option 2 and Option 5, in terms of
percentage of the total pounds of
hazardous chemicals covered, is only
two percentage points, but Option 5 (a
500 pound reporting threshold for all.
hazardous chemicals) would cost more
than twice as much as Option 2.
It should be noted that at any of the
thresholds considered, petroleum
products form a substantial majority of
the pounds of substances subject to
reporting, and facilities involved in the
production, distribution, and use of such
products would be a sizeable fraction of
the reporting facilities. No reporting
threshold considered would change the
emphasis on reports from facilities with
petroleum products. EPA welcomes
comments on this issue and on the
analytical approach used, with the aim
of focusing attention on chemicals of
higher toxicity rather than substances
(such as petroleum) that are of concern
principally because they represent fire
and explosion hazards.
EPA.examined how likely the
threshold options would require reports
from facilities similar to those
associated with a sample of 281 serious
accidental releases [i.e., those releases
resulting in reported human casualties
and with estimates of quantities
released). EPA estimated whether a
facility involved in such a release would
have been likely to have exceeded the
•inventory thresholds under Options 1
through 5 for the substances released.
(At Option 8, the zero threshold would
cover 100 percent of fixed faculties.) At
Option 2, facilities and chemicals
subject to reporting would account for
about two-thirds of this sample of
events, and about three-quarters of the
number of people reported injured.
Facilities and chemicals subject to
HIW wul.ruu?,? tw» wyuvllO I UIIUU^Il 3, Cfrt 1133 FIIO
im the NJ data base alone.
reporting under Option 1 would account
for about 60 percent of these serious
events and two-thirds of the number
reported injured. Options 3, 4, and 5
each had about the same coverage—
about 80 percent of the serious events
and 90 percent of the reported injuries.
EPA believes that the proposed
reporting thresholds represented by
Option 2 will provide State and local
governments with information on the
most hazardous chemicals present in
their communities without
• overwhelming communities with
information and without imposing
unreasonable costs on facilities affected
by the reporting requirements. The
information management study
conducted in support of this rulemaking
and other contacts with SERCs and
LEPCs indicate that many communities
already have chosen to focus their
efforts on EHSs rather than on the full
range of hazardous chemicals. The
proposed thresholds would help
communities manage the data by
providing information on the EHSs and
limiting information on the other HCS
chemicals to those that are present in
bulk. In addition, facilities and
communities are familiar with the
proposed reporting thresholds because
they are the same as those currently in
effect. They have conducted analyses
based on these thresholds and know
what hazardous chemicals are covered
by the reporting requirements. Finally,
communities always retain the right to
request MSDSs and inventory forms'on
chemicals present at levels below the
reporting thresholds. Having a simple
reporting trigger at the national level
and retaining flexibility at the State and
local level imposes no additional burden
nationally, but allows State and local
governments to respond to their own
local needs.
Although Option 1 would create less
of a data management burden on
industry and communities and still
would identify most of the hazardous
chemicals present in bulk. EPA rejected
Option 1 because it would decrease the
- the estates for those five opttons than in
amount of information available to local
communities. Between 45,000 and 85.000
facilities covered under the current
reporting thresholds would not be
required to report routinely under
Option 1. Further, the first-year costs
under Option 1 are greater than under
Option 2 because facilities would have
to reexamine their chemical inventories
to determine if they would be affected
by the higher reporting thresholds; such
an extensive reexamination would not
be required under Option 2 because it is
identical to the current reporting
thresholds. EPA assumes maximum
inventory levels are relatively stable.
Options 3 and 4 were developed to
reflect special treatment for chemicals
other than EHSs on lists referenced by
Title ni because EPA and communities
are also concerned about hazards other
than acute toxicity, which is currently
the principal basis for designating EHSs
Under section 304 of Title III, facilities
must report releases of the 719 CERCLA
hazardous substances when the releases
exceed the reportable quantity (RQJ;
information on these substances may be
of interest to the community for '
planning purposes. Manufacturers are
required to report total annual releases
of over 300 toxic chemicals under
section 313 of Title HI. RQs are generally
lower than 500 pounds; the section 313
thresholds are at least 10,000 pounds.
EPA selected a 500-pound reporting
threshold for the CERCLA hazardous
substances and section 313 toxic
chemicals in Options 3 and 4 because it
allowed the Agency to isolate the effects
of extending lower reporting thresholds
to these chemical lists. Option 3, in
particular, focuses attention on the
effects of applying a lower threshold to
those hazardous chemicals specifically
referenced under Title in because that
option retains the current reporting
thresholds for HCS chemicals not
specifically listed.
EPA rejected Options 3,4, and 5
because they would result in a
significant increase in the cost to
-------
r ..._. ..„.,..„ / Vol.
y, March^l^i^gi^
i.
" BSRSSEsL SSSSSSfeBSS
esumai -..ij VIP reauireu to rejjui1- than 10,000 pouuuoiv.
lt facilities would oe req roximately of less tnau EHS hst
, under this option, versus app on hsts other tnan
.f —«1 t^onnHtS OH nflSSTGO"3 tllTB6 XWXiBr ulc p f . rln^e tO tllI66
UOn^i jrcpw*.^* w »i.-— Q*l fiOO u«.** . rn«?t WOUlu. DC uiuo^ w
£aSS&Kis|fop«o" sStSSJ-.-.^gnL 5
?s%.},"jasss:- -*•-o-"-^'"-jr—• - ?
er
uKlcicnt to
-L t?n A believes that Option 3
he regulation. & Options 4
—« * ^*«rtrtniT.f»S UlUl. UU" ,. \
or
change
thresho o h
than 500 pounds [th
greater
is
""'
tion! 311
'V that 500
Lday proposing >
355.20, 355.30, ^^' S8veral of these
370.25 that would ^J^JJmwnts for
afinl*QXilH51l*® B'iJU* -»*smmOTl »"-JT ~ "5 rnV»rt AOPYICV UCi*1-""-""
rfe*sssss^ ass^^sa^a^
,tora£f««fn^nro)dmateequivalent^ ne^rep o EHSssnom^^
be subject to P^se-^SZt«. of ^
"W^^d^rfOP*"12?01* «
proposed 3ciecu"" threshold, however,
permanent r^PorTJ.? „ st)ecial treatment
EPA reconsiderea m^p^g EPA decided
0f,EHSsw^ higher ^^ ^^jd,
st Ukely
«pply
a tailed n«mb»
classes
result in more
costs taposc
and the f
rep0rts, «
the annual
.
ases
6.6 million
over the
COniuaiu" •.« —--
urocess. Second,
?Sported in the ^^K"Sita.
^'^sas.t-sss.*1
res
decide
threshold was M
to Impose
threshold
reporting
g teg ana
&e r.ght
threshold or any
. Jurisdiction.
un
,, EPA found separate Pepo m sections 302,
,...-. P10^0113'??!! Today the Agency is
304' 3"' o^hat £is be permissible as
proposing fe^e1Sfa°cilfty as a single unit
-------
Federal Register / Vol. 54. No. 39 / Wednesday, March 29, 1989 / Proposed Rules
12999
occur regardless of whethe.r certain
individual establishments do not have
present the threshold amount of certain
chemicals that trigger the reporting
requirements. Two check boxes have
been added to tha tier I and Tier II
forms to indicate whether the form
represents the chemicals present at the
entire facility or only those chemicals
present at^ne establishment within a
facility owned and operated by a parent
company.
Unlike a multi-establishment facility
that is owned or operated by a single
parent company, in the second situation,
a multi-establishment facility, such as
an industrial park, may contain •
establishments with no common
corporate or business interest. In such a
situation, no one person may be hi a
position to know all of the information
necessary to make a determination of
whether the facility as a whole is
subject to reporting under sections 302,
304, 311, and 312, or to file the actual
reports required by these provisions and
the implementing regulations.
Accordingly, in conformity with the
reporting requirements under section 313
of Title IH, EPA has determined that
each owner or operator of an
establishment in a multi-establishment
facility that is not owned or operated by
a single parent company should treat the
establishment(s) that it operates as a
separate facility for the purposes of
reporting. Therefore, under section 302
and its implementing regulations (40
CFR Part 355), each such establishment"
should determine whether it has present
a threshold planning quantity of an EHS
to determine whether it should notify
the SERC or LEPC that it is subject to
the planning provisions of the Act. To
determine whether it should comply
with the reporting requirements under
sections 311 and 312 and their
implementing regulations (40 CFR Part
370], each such establishment should
determine whether it has present a
threshold reporting quantity, of a
hazardous chemical for which the owner
or operator of such establishment has an
MSDS. Appropriate provisions would be
added to the rule in §§ 355.30,355.40,
370.21, and 370.25 and to the Tier I and
Tier II form and instructions to provide
for this approach. To ensure that related
companies do not avoid reporting under
this provision, EPA is proposing that this
reporting approach be limited to
operators of separate establishments in
the same facility that do not have any
common corporate or business interest,
i.e., they are not engaged in
partnerships, joint ventures, ownership
of a controlling interest in one by the
other, or ownership of a controlling
interest in both by a third person.
2. Subsurface Operations.
Since the Agency promulgated
regulations under Title HI, many
questions have arisen concerning the
applicability of those regulations to
subsurface operations. The questions
relate to the meaning of the phrase
"present at a facility" in the emergency
planning notification provisions in
section 302 of Title III and 40 CFR
355.40, and the phrases used in the
emergency release notification
provisions, that is, "occur from a
facility" in section 304 of Title III, and
any facility * * * at which there is a
release" in 40 CFR 355.40. The confusion
surrounds the reporting requirements
that would apply to owners and
operators of facilities that extract
subsurface., minerals or conduct other
subsurface operations (e.g., mines or
wells), if EHSs or other hazardous
chemicals are present in their natural
state in quantities that equal or exceed
the threshold reporting quantities. EPA
does not interpret Title III to require
notification of EHSs or other hazardous
chemicals that are present in their
natural state in subsurface locations, so
long as they are.not being used or ,
disturbed by human activity as
discussed below.
Title III requires notification for EHSs
and other hazardous chemicals
"present" at a "facility" above certain
reporting quantities. The Agency
proposes to interpret the definition of
"facility" to include all man-made
structures (e.g., buildings, equipment), as
well as all natural structures (e.g.,
underground salt domes, caverns,
geological strata), into which an EHS or
other hazardous chemical has been
purposefully introduced or placed, or
from which it is being removed, through
man-made equipment or other human
means, such that it functions as a
containment structure for human uses.
EPA is proposing changes to the
definition of "facility" in §§ 350.1,
355.20, 370.2, and 372.3 to reflect this
interpretation.
Under this interpretation, hazardous
chemicals occurring naturally in situ
would not be "present at the facility"
provided they are not being used (e.g.,
mined). If, however, a hazardous
chemical in an amount that equals or
exceeds the reporting threshold (e.g., a
TPQ of an EHS) is being used or
removed, the substance must be
reported under section 302 of Title III
and 40 CFR 355.30. In addition, if a
hazardous chemical is located beneath
the surface of a site having been at one
time placed there through human means
(e.g., in a natural structure such as a salt
dome) where it was held for human use.
the chemical must be reported under
section 302 of Title III and 40 CFR
355.30.
The Agency is also today clarifying
when a release of an EHS or a.CERCLA
hazardous substance from a subsurface
location must be reported under Title III
section 304 and 40 CFR 355.40. A release
of a reportable quantity (RQ) of an EHS
or CERCLA hazardous substance from a
location where it exists in its natural
state need not be reported. If, however.
the same substance was placed in the
subsurface location through man-made
means or is Being removed by human
intervention, a release of that substance
(purposefully or accidentally) is subject
to the reporting requirements of Title III.
. 3, Treatment of Mixtures in Reporting
Threshold Calculations
Since the Agency promulgated the
final rule on sections 311 and 312,
questions have arisen concerning the
relationship between thresholds and the
policy of allowing a facility to report on
either the hazardous components of a
mixture or en the-mixture as a whole'for
purposes of section 311 and 312
reporting. In some instances, reporting
by hazardous components would
decrease the amount of reporting
because the components may not be
present in threshold quantities while the
amount of the mixture may reach the
applicable threshold. EPA is proposino
to add § 370.28(b)(3) to clarify that if
mixtures at a facility contain EHSs, the
mixture(s) or the EHS component must
be reported when the threshold value
for that EHS is reached. Quantities of
each EHS must be aggregated to
determine if the quantity at the facility
exceeds the reporting threshold.
Facilities have the option, however, of
reporting on the component or the
mixture itself, even if the amount of the
mixture is below 10,000 pounds. If the
hazardous chemical involved is not an
EHSi the facility need not aggregate the
amounts in mixtures. This will allow
State and local entities to receive
necessary information on EHSs, those
hazardous chemicals that are integral to
the emergency planning process.
4. Reportable Quantities for Hydrogen
Chloride and Methacrylonitrile
There is presently a discrepancy
between Appendices A and B to 40 CFR
Part 355 (EHS list) and 40 CFR 302.4
(CERCLA list) with respect to the
reportable quantities (RQs) for hydrogen
chloride and hydrochloric acid (both of
which have CAS #7647-01-0) as well as
the RQs for methacrylonitrile. The EHS
-------
13000 • Federal Register / Vol. 54. No. 59 / Wednesday, March 29, 1989 / Proposed Rules
list indicates that the RQ for hydrogen
cMorids (gas only) is one pound. The
CERCLA list sets the RQ for
hydrochloric acid as 5,000 pounds.
Because the substances have the same
CAS number, they should have the same
RQ of 5,000 pounds. Similarly, the RQ
for melhacrylonitrile on the EHS list is
one pound and on the CERCLA list is
1,000 pounds. EPA is proposing to
correct the EHS list to show RQs of
5,000 pounds and 1,000 pounds for
hydrogen chloride and
methacrylonitrile, respectively. EPA has
proposed (54 FR 3388, January 23,1989)
to designate all EHSs as CERCLA
hazardous substances and is scheduled
to propose adjustments to'the RQs for
thoss substances in the spring of 1989.
The RQs for hydrogen chloride and
methacrylonitrile are subject to
adjustment in that rulemaking.
5. Clarifications of the Reporting Forms
EPA is proposing editorial corrections
and clarifications to the Tier I and Tier
II reporting forms and instructions. The
change to the forms v/ould provide a
box for a facility to check if the form
was identical to information provided in
the previous reporting year and two
boxes to indicate whether the form
represents the chemicals present at the
entire facility or only those present at
one establishment. This information will
help LEPCs and SERCs to manage the
information submitted.
6. Tho Implementation of Title III by
Indian Tribes on Indian Lands
Although Title III lacks an explicit
reference to Indian tribes or to the
implementation of the Act on Indian
lands. Congress clearly intended that
the protections of Title HI apply to all
persons inhabiting Indian lands. This
intent is demonstrated in the language
and legislative history of the statute, in
which members of Congress voiced their
understanding that Title HI would apply
to all persons in all areas of the nation.
Section 329 of the Act makes clear that
Title III applies to the entire geographic
extent of the nation. In addition,
congressional proceedings make plain
Congress' intent that Title Ill's
protections apply to all United States
citizens living hi every community
within the United States. For example,
during floor debate in the House of
Representatives, the Act was described
as "[establishing a program to ensure
citizens have access to information
about chemical substances.that are
being used in their communities." 132
Cong. Rec.H9563 (daily ed. Oct. 8.1986)
(statement of Rep. Dingell). More
explicit were the statements of one
legislator that SARA has "an extensive
community right-to-know provision that
guarantees the Federal right-to-know in
every community * * * . Furthermore, it
also guarantees that every community in
this country will have emergency
response plans that will help them
should there ever be a toxic emergency."
Id. at H9569 (statement of Rep. Wise).
See also id. at H9S93 (statement of Rep.
Sikorski that Title in would apply to all '
"Americans"). Title III was intended to
provide needed information on
hazardous chemicals as well as how to
respond to a chemical emergency. Thus,
Title III applies to Indians and on Indian
lands. This interpretation of the statute
is furthermore consistent with the
general presumption that when
Congress enacts a general statute "
applying to all persons, it intends that
the Act apply to Indians and their
property interests.
—While clearly meaning to apply to
persons located on Indian lands, the
statute designates bodies of State
officials, namely the Governor-
appointed State emergency response
commission (SERC) and the SERC-
appointed local emergency planning
committees (LEF,Cs), as the authorities
responsible for implementing the Act.2
Thus under section 303 of Title HI,
LEPCs must prepare comprehensive
emergency response plans for each local
emergency planning district. LEPCs,
SERCs and local fire departments must
collect and make publicly available
notifications and reports under sections
302, 304.311 and 312. Finally, an entity
designated by the Governor must
receive toxic chemical release inventory
forms under section 313 of the statute. It
is important to note that while the
federal government retains an oversight
role in the administration of the statute
(e.g., designating the hazardous
chemicals to be reported, setting
chemical reporting thresholds,
determining claims of trade secrecy), the
law is primarily implemented at the
State and local level. It is State and
local authorities who receive •
notifications and reports that inform
local emergency response planning
efforts and the public exchange of
information, and it is the local
authorities that actually develop the
contingency plans.
States, however, are generally
precluded from exercising jurisdiction !
over Indians in Indian country unless
Congress has clearly expressed an
1 Section 323(9) of SARA Title HI defines the term
"State" to mean "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."
intention to permit it. Bryan v. Itasca
County, 426 U.S. 373, 376 n.2 (1976);
Washington v. Environmental
Protection Agency 752 F.2d 1465,1469-70
(9th Cir. 1985). This rule is derived from •
the plenary authority of Congress in the
area of Indian affairs, the Federal trust
responsibility toward Indian tribes, and
tribal sovereignty and self-government.
Washington v. Environmental
Protection Agency, 752 F.2d at 1470. This
respect is based upon a recognition that
Indian tribes retain " 'attributes of
sovereignty over both their members
and their territory,' " which are
"reflected and encouraged in a number
of congressional enactments
demonstrating a firm Federal policy ol
promoting tribal self-sufficiency and
economic development." White
Mountain Apache Tribe vBracker, 44<3
U.S. 136,142-44 (1980). The Supreme
Court has stated that "[a]mbiguities in
Federal law have been construed
generously in order to comport with
these traditional notions of sovereignty
and with the Federal policy of
encouraging tribal independence." Id.
See also California v. Caba^on Band of
Mission Indians, 107 S.Ct, 1D33,1092
' (1987). The EPA Policy for the
Administration of Environmental
Programs on Indian Reservations ..
recognizes this sovereignty by
committing the Agency to working with
tribes on a "government-to-government"
basis for purposes of regulating the
reservation environment.
Nothing in the language or legislative
history of Title III would suggest
Congress intended to subject Indian
tribes to state regulation on Indian
lands, especially in an area of such
extreme importance to the health, safety
and welfare of the"Indian community as
chemical emergency response planning.
See Nance v. Environmental Protection
Agency, 645 F.2d 701,714 (9th Cir. 1S31).
In Nance, the United States Court of
Appeals for the Ninth Circuit upheld
EPA's decision that, under the Clean Air
Act Tribes, not states, should regulate
air quality on Indian lands,
notwithstanding that the Act provided
only for state, and not for tribal,
regulation of air quality. The court
.rejected the Petitioner's argument that
section 107(a) of the Clean Air Act,
delegating to each State "the primary
responsibility for assuring air quality
within the entire geographic area
comprising such State" prevented EPA
from authorizing Indian, tribes to control
air quality standards within their Indian
reservations. The court stated that the
Clean Air Act did not constitute the '
requisite clear expression of '.
Congressional inten* to subordinate
-------
Federal Register / Vol. 54, No. 59 / Wednesday, March 29, 1989 / Proposed Rules
13001
tribes to state decisionmaking on
reservation air quality. Nance, 645 F.2d
at 714.
This presumption against State
jurisdiction over Indians on Indian lands
constitutes an obstacle not only to
recognizing States as the relevant Title
HI implementing authority for Indians on
Indian lands, but as the relevant Title HI
implementing authority on Indian lands
generally. The requirements of an
effective Title ffl program indicate that
Congress intended that only one
governing authority implement the
program within a given area."
'Implementation of Title III by more than
one governing authority would be
unwieldy and contrary to the dictates of
local emergency response planning. For
example, under section 303 of the Act,
LEPCs must prepare a plan for their •
emergency planning district that, among
other things, identifies the facilities
subject to Title Ill's planning
requirements, the routes used for
transportation of extremely hazardous
substances, and provisions for
precautionary evacuation and
alternative traffic routes. The
preparation of two emergency response
plans, one for Indian facilities and one
for non-Indian facilities would present
obvious problems. Without knowledge
of which neighboring non-Indian
facilities were subject to the Title HI
planning provisions or the routes-used to
transport extremely hazardous '
substances to those facilities, the
authorities to which the Indian facilities
would report could not choose
appropriate evacuation procedures or
alternative traffic routes in case of an
emergency. Even in situations where
Indian and Indian facilities are located
in separate areas of the reservation,
implementation of Title III by two"
governing entities would hinder
effective planning. Under section 303(e)-
of Title III, the'SERG must review the
plan prepared by each LEPC "to ensure
coordination of such plan with
emergency response plans of other
emergency planning districts." Where
implementation on a given reservation is
split between two authorities, such
coordination could not be assured. In
summary, because Congress envisioned
effective and comprehensive emergency
response planning under Title III, it is
reasonable to interpret the statute to as
contemplating only one governing
authority implementing the Act within a
single geographic area.
On the other hand, Indian Tribes
generally appear to have sufficient civil -
regulatory authority over Indians and
non-Indians on Indian lands to fully
implement the requirements of Title HI.
Tribal governing bodies clearly possess
the powers necessary to carry out Title
Hi's .authorities with regard to their own
tribal members. Furthermore, the
Agency believes that Tribes generally
possess the requisite authority to
implement Title in over non-Indians
located on Indian lands. This is because
Title HI addresses the threat of
hazardous chemical accidents on Indian
lands, an issue of fundamental
importance to the health and welfare of
the tribe and over which the tribe
retains inherent power to exercise civil
authority with'regard to the conduct of
non-Indians on fee lands within its
reservation. Montana v. United States,
450 U.S. 544, 566 (1981). It is important to
keep in mind that Title III is not a
rigorous regulatory program. Federally
recognized Indian tribes have the
requisite authority necessary to
implement an effective Title III program.
These are basically the authority to
receive and disseminate information on
hazardous chemicals submitted to tribal
authorities arid the authority to plan for
emergency response measures in the
. case of an accidental release of
hazardous chemicals.
The nature of effective local
emergency response planning suggests
that the tribe is the preferable authority
to implement the statute on Indian
lands. Title ffl requires the development
of a decentralized infrastructure to
increase local awareness of the
hazardous substances present in the
community and to foster attempts to
plan, also at the community level, to
avert the risks posed by those
hazardous substances. To be consistent
with these overall purposes, the
governing authority implementing Title
III should be that governing body
responsible for the health, safety and
welfare of the jurisdiction on a day-to-
- day basis. On Indian lands, that
responsibility lies with the tribal
government.
Thus, because the statute does not
evince a clear intent that States
implement the Act's requirements on
Indian lands, EPA believes that the
question of who should implement the "'
statute is one left to its own sound
judgment. Therefore, EPA is today
proposing that Indian tribes be the
designated 'implementing authority for
Title in on all lands within "Indian
country" as specifically defined below.3
3 In interpreting Title III not to authorize states to
administer the statute for Indians on Indian lands, it
is important to note that the Agency is taking no
position as to whether a state may have
independent grounds for subjecting Indians on
Indian lands to State emergency response planning
laws similar to Title HI. Compare Bracker, 448 U.S.
at 144.
EPA proposes that the tribes be subject
to the same Title III requirements in
Indian country as the State governor,
SERC and LEPC within States generally.
EPA is thus proposing regulatory
amendments to the definitions
contained in 40 CFR § § 350.1, 355.20,
370.2, 372.3 to clarify that where the
facility is located within Indian country,
the state emergency response
commission and local emergency
planning committee shall be that entity
designated by the Chief Executive
Officer of the Tribe or, where the tribe
and the State have entered into a
cooperative agreement, the entity
designated in the cooperative
agreement. The regulations have also
been amended to add a definition of
"Indian Tribe," "Chief Executive Officer
of the Tribe" and "Indian Country." The
definition of "Indian Country" is that
currently found in 18 U.S.C. 1151.
Finally, the language of § 372.30 has
been amended to clarify that a covered
facility located in Indian country must
submit a completed EPA Form R to the
official designated by the Chief
Executive Officer of the Tribe, or where
a cooperative agreement exists, the
official designated in the cooperative
agreement.
Under these proposed regulatory
amendments, the tribe will have the sole
authority to implement Title IH within
Indian Country, regardless of whether
the faculties there located are owned or
operated by Indians or non-Indians.
Under the Federal statutory definition of
"Indian Country," included in today's
regulations, lands falling under the
proposed tribal Title in jurisdiction
include all lands within the limits of any
Indian reservation, all dependent Indian
communities, and all Indian allotments.
Accordingly, the Chief Executive Officer
of the Tribe would be responsible for the
functions of the State Governor under
section 301 of the Act, which includes
appointing an emergency response
commission for the tribe. This tribal
commission would then be responsible
for carrying out the duties of the SERC,
among them being the designation of
local emergency planning districts and
the appointment of an emergency
planning committee for each district.
This committee would carry out the
same functions as does an LEPC in the
local emergency planning districts
designated by the SERC. Finally, EPA is
proposing that for facilities located
within Indian Country the fire
department run by the tribe be the fire
department designated under the statute
for the purposes of receiving section 311
and 312 reports. Section 313 of Title HI
requires that the State governor
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13002 Federal Register / Vol. 54. No. 59 / .Wednesday, March 29, 1989 / -Proposed Rules
designate an entity to be responsible for
managing toxic release inventory data.
In Indian country, this entity would be
designated by the chief executive officer
of the applicable Indian tribe.
EPA notes that any tribe may enter
into a cooperative agreement with the
State(s) within which its lands are
located to allow the State to carry out
the statute. Indian tribes may also enter
into cooperative agreements with each
other to achieve a workable Title HI
program. The Agency wishes to
emphasize that tribes and States may
tailor any cooperative agreement to
which they are a party to their particular
needs. Thus, a tribe might arrange for a
State to implement some, but not all, of
Title Hi's requirements. For example, a
tribe might not have the current capacity
to manage toxic chemical release
inventory data. Further, a State might be
very interested in managing such data
from all facilities within its boundaries,
including facilities located within Indian
Country. Thus, a tribe and a State might
enter into a cooperative agreement
under which the State receives the toxic
chemical release inventory forms filed
by facilities under section 313 of the law
and EPA's implementing regulations.
Similarly, a tribe might limit the life of a
cooperative agreement to one year such
that it must be renewed annually in
order for the State to continue
implementing the various Title m tasks
to which it has agreed to implement
Finally, EPA wishes to emphasize that
cooperation and open communication
between the tribal and the State and
local authorities is crucial to effective
regional emergency response planning.
EPA encourages such cooperation and
communication through voluntary
efforts "by all three entities. To foster
such efforts and to ensure that the
public is adequately notified of State/
Tribal arrangements that might affect
reporting obligations, EPA is soliciting
comment on whether the Agency should
institute a formal procedural mechanism
relating to such cooperative efforts
between Tribes and States. Such a
mechanism might include notifying the
public how Title m is being
implemented on Indian lands and/or
arranging meetings between States and
Tribal authorities on regional emergency
response planning.
V. Regulatory Analyses
A, Regulatory Impact Analysis
Executive Order (E.O.) 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 every major
rule. Under E.Q. 12291, a "major" rule is
one that is likely to result in (1) an
annual cost to the economy of $100
million or more, (2) a majorincrease in
costs or prices for consumers, individual
industries, Federal, State, or local
governments, or geographical regions, or
(3) significant adverse effects on
competition, employment, investment,
productivity, innovation, or the ability of
United States-based enterprises to
compete in domestic or export markets.
The RIA in support of this proposed
rulemaking shows that today's proposed
regulation is non-major because it
results in an annual cost to the economy
of between $58 and $72 million and does
not impose any of the other adverse '
effects stipulated above. The RIA,
formally entitled "Regulatory Impact
Analysis in Support of a Permanent
Reporting Threshold under sections 311
and 312 of the Emergency Planning and
Community Right-to-Know Act," is
available for inspection in the docket
supporting this proposed rulemaking.
The RIA describes the steps used to
estimate the total number of facilities
affected by the regulation, the cost of
the regulation on a per-facility and
national basis, the estimated benefits of
the regulation, and any potential
economic impacts of the regulation. This
section briefly discusses the findings of
theRIA.
1. Number of Affected Facilities and
Covered Chemicals
As discussed above, EPA reviewed
data on chemical usage and storage
available from several States and cities.
The data bases developed by the Los
Angeles City Fire Department and by
New Jersey's Right-to-Know program
were used in the RIA to estimate the
number of facilities, the number of
chemicals, and the number of pounds of
chemicals that would be reported under
the different reporting threshold options
under consideration by the Agency. The
data include information on a cross-
section of facilities representing a large
number of industries in both the
manufacturing and non-manufacturing
sectors, contain the largest number of
individual observations relative to other
available data, and are representative of
a broad list of chemicals similar to those
subject to the OSHA HCS regulations. ,
The Agency acknowledges that there
is a certain degree of imprecision
associated with extrapolations from
regional data. For example, facilities in
the City of Los Angeles may not be
representative of facilities in other parts-
of the nation. To help compensate for
this limitation, two separate regional
data bases were evaluated. The Agency
extrapolated both data sets on an SIC
code basis. That is, facilities in each SIC
code were examined separately to
estimate the number of facilities that
would likely be reporting at each
threshold level and the number of
chemicals likely to be reported. Once
the analysis was performed on an
individual SIC code basis, the national
estimates were derived separately for
each data base by aggregating the
individual SIC code estimates. This
extrapolation methodology, however,
does assume that facilities in the City of
Los Angeles and New Jersey in a
particular SIC code are similar to
facilities in other parts of the nation in
that SIC code.
2. Estimated National Cost of the
Alternative Thresholds
EPA has estimated the potential cost
of each of the alternative reporting
thresholds. The methodology follows the
same general procedures that were used
in support of the October 15,1987 final
rule, and uses the same unit cost
estimates developed under that
rulemaking. Only two adaptations have
been made in the analysis. First, SERCs,
LEPCs, and fire departments are
assumed already to have, taken the steps
to familiarize themselves with the
reporting requirements, to have
established recordkeeping systems, and
to have developed any required public
notices about the availability of data.
Second, facilities currently subject to the
rule are assumed to have developed the
necessary recordkeeping and reporting
systems.
The unit costs for manufacturers are
assumed to vary by size, reflecting
generally the larger number of
hazardous chemicals and the potentially
more elaborate decision-making process
in larger establishments. Unit costs for
non-manufacturers are assumed to be
the same as those for small
manufacturers (employment of less than
20). This assumption reflects the '
preponderance of small facilities in non-
manufacturing (about 80 percent of all
non-manufacturing facilities employ
fewer than 20 employees), as well as the
small average number of hazardous
chemicals located at non-manufacturing
facilities.
Total costs are estimated in each year,
using cost estimates expressed in 1987
dollars (that is, the analysis does hot
include inflation). The costs are ,
summarized in two ways. First, the
present value cost is estimated by
discounting the costs through Fiscal
Year (FY) FY 2000 back to FY1990, the
first year of the permanent threshold for
the manufacturing sector. (The Federal
fiscal year begins on October 1 of the
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13003
previous calendar year.) Second, the
equivalent annual coat is estimated for
the period FY1990 to FY 2000. The
present value cost represents the
amount that, if borrowed hi FY 1990 at 4
percent interest after inflation, .would be
sufficient to cover all costs incurred
through FY 2000. The equivalent annual
cost is the amount of the uniform
annuity payment that would be needed
in each year to repay a loan equal to the
present value cost, using a rate of return
of 4 percent. The table below shows the
total estimated expenditure in each year
(in 1987 dollars), as well as the present
value costs and the equivalent annual
cost for each of the six options.
SUMMARY OF ESTIMATED TOTAL COSTS,
FISCAL YEARS 1990-2000
tmillion dollars]
Option
3
4^
5 _ „..._
6 ...._.-
Fiscal year
1990
costs
16-23
13-14
61-62
81-97
113-130
14J9 !
1991
costs
67-87
55-74
144-184
186-247
204-335
303
Present
value
costs
419-505
457-606
706-891
869-1,066
985-1,326
1,295
Equiva-
lent
annual
costs
49-60
54-72
83-107
102-128
116-159
153
The ranges of costs presented above
represent costs attributable to the
different reporting threshold options;
they do not include costs of compliance
with the phase-in thresholds used in the
first two years of reporting. The
permanent reporting threshold will be in
effect for the third reporting year,
beginning on October 17,1989 for
manufacturers (for the purposes of the
analysis assumed to be day one of FY
1990) and for non-manufacturers on
September 24,1990 (assumed to be day
one of FY 1991). Because it is assumed
that initial compliance with the
requirements of section 311 will have
been completed by October 1,1989,. only
ongoing activities under section 311,
such as submittal of revised or new
MSDSs, are included in the cost
calculations. Most of the costs presented
in the table, therefore, are attributable
to filing and processing the section 312
Tier I and Tier H forms.
. The largest yearly costs are expected
to be incurred in FY 1991, when non-
manufacturers are required to comply
with the permanent threshold standards.
FY 1991 costs, therefore, reflect the on-
going costs for facilities in the
manufacturing sector, plus first-year
costs of compliance with the permanent
reporting threshold for non-
manufacturing facilities. One anomaly in
the costs is apparent—costs in the first
year are higher under Option 1 than
under Option 2, even though. Option 1
represents a less stringent reporting
requirement The reason for this finding
is that changing the threshold reporting
requirement to a less stringent standard
would require all affected facilities to
reevaluate chemical usage patterns for
all currently reported chemicals,
whereas maintaining the status quo is
assumed not to require such an
extensive review.
3. Accidental Releases
EPA has looked at reports of
accidental releases as indications of
how well the different options would
cover serious chemical mishaps. Readily
available data (derived from the
National Response Center and other
sources and captured hi EPA's Acute
Hazardous Events Data Base) contain
summaries of 281 releases from fixed
sites with records of human casualties
and quantities of substances released.
Unfortunately, most reports of releases
do not provide information on quantities
of the substances on hand at the facility.
Sometimes allof the substance on hand
will be released in an accident, but more
often only a small fraction is released. It
is known, for example, that for a few
- well-studied serious releases (e.g., -
Bhopal, the Ashland oil spill in western
Pennsylvania), the amount on hand at
the facility was many times higher than
the amount released. EPA used the
available data to estimate whether a
particular facility was likely to have
exceeded the reporting thresholds being
analyzed for sections 311 and 312. The
quantity reported hi the data base,
therefore, was multiplied by factors
ranging from 1.5 to 10 to estimate
inventories .at these-facilities.
EPA estimates, based on the 281
events in the Acute Hazardous Events
Data Base, and adjusting the quantities
to reflect likely inventory amounts, that
at Option 2, facilities and chemicals
subject to reporting would account for
65 to 69 percent of these serious
releases. The higher threshold at Option
1 would lower this coverage to 59 to 63
percent. The lower thresholds of
Options 3,4, and 5 would have
approximately equal coverage of 75 to
83 percent of these serious events. At
Options 6 (zero threshold), 100 percent
of events would be covered. The
proportion of injuries at facilities likely
to be covered under Options 1 through 5
is greater than the proportion of events
covered—74 to 77 percent for Option 2,
64 to 71 percent for Option 1, and 88 to
92 percent for Options 3, 4, and 5.
This analysis, "Application of Acute
Hazardous Events Data Base to 311/312
Threshold Options," is available for
inspection in the public docket.
B. Regulatory Flexibility-Act
1. Purpose
Under the Regulatory Flexibility Act,
whenever an agency issue's a proposed
or final rule, 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 government jurisdictions), unless
the agency's administrator certifies that
the rule will not have a significant
impact on a substantial number of small
entities. Chapter 5 of the RIA supporting
this proposed rule addresses the impact
of this rule on small businesses. Based
on this analysis, EPA has concluded
that, while the rule affects a substantial
number of small entities, the impact on
each is not significant. \\
2. Methodology and' Result'p
To examine the impacts; bn small
businesses, EPA compared,'average
costs for small facilities (dinned to be
those with 1 to 19 employees) to average
and median sales for those-facilities, by
two-digit SIC codes. There ,'are
approximately 183,000 small businesses
that would be affected byj&e propdsed
rule, representing less thaii five perfcent
of the total number of small businesses
hi affected SIC codes in tHe U.S. '
In order to assess the impacts on
small businesses, several guidelines
were used. The primary criterion, •
however, is the ratio of annual before-
tax costs to average and median sales.
Under Option 2, the selected option,
first-year and annualized costs that
would be incurred by very small
facilities (1.9 employees) are estimated
to be $97 and $125, respectively. As a
percentage of median sales, the cost to
sales ratio (expressed as a percentage)
for these small facilities under Option 2
ranges from 0.01 percent to 0.33 percent.
This is 'Well within EPA's guidelines that
costs remain below five percent of sales
in order to avoid significant impacts.
3. Certification
On the basis of the analysis 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 substantial
number of small entities. This rule,
therefore, does not require a Regulatory
Flexibility Analysis.
C. Paperwork Reduction Act
The Office of Management and Budget
(OMB) has approved the information
collection requirements in this proposed
rule under the provisions of the
Paperwork Reduction Act, 44 U.S.C.
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Federal Register / Vol. 54, No. 59 / Wednesday, March 29, 1989 /Proposed Rules
3501 et seq., and assigned OMB control
number 2050-0072.
The public reporting burden for this
collection of information is estimated at
about 29 hours per response, including
time for reviewing instructions,
searching existing data sources,
gathering and maintaining the data
needed, and completing and reviewing
the collection of information.
Send comments regarding the burden
estimate or any other aspect of this
collection of information, including
suggestions for reducing this burden to:
Chief, Information Policy Branch, PM-
223, U.S. EPA, 401M Street SW.,
Washington, DC 20460; and to the Office
of Information and Regulatory Affairs,
OMB, Washington, DC 20503, marked
"Attention: Desk Officer for EPA." The
final rule will respond to any OMB or
public comments on the information
collection requirements contained in this
proposal.
List of Subjects
40 CFR Part 350
Chemicals, Hazardous substances.
Extremely hazardous substances, Toxic
chemicals, Community right-to-know,
Superfund Amendments and
Reaulhorization Act, Trade secrets.
Trade secrecy claims. Intergovernmental
relations.
40 CFR Part 35S
Chemicals, Hazardous substances,
Extremely hazardous substances,
Community right-to-know, Chemical
accident prevention, Chemical
emergency preparedness, Threshold
planning quantity, Reportable quantity,
Community emergency response plan.
Contingency planning, Reporting and
recordkeeping requirements.
40 CFR Part 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
planning, Reporting and recordkeeping
requirements.
40 CFR Part 372
Environmental protection,
Recordkeeping, reporting, and
certification requirements. Toxic
chemicals.
Dated: March 22,1989.
William K.Reilly,
Administrator.
For the reasons set out in the
Preamble. Parts 350,355, and 370 of
Subtitle J of Title 40 of the Code of
Federal Regulations is proposed to be
amended as follows:
PART 350—TRADE SECRECY CLAIMS
FOR EMERGENCY PLANNING AND
COMMUNITY RIGHT-TO-KNOW
INFORMATION AND TRADE SECRET
DISCLOSURE TO HEALTH
PROFESSIONALS
1. The authority citation for Part 350
continues to read as follows:
Authority: 42 U.S.C. 11042,11043. and
11048.
2. Section 350.1 is amended by adding
the following definitions:
§ 350.1
Definitions.
* *
"Chief Executive Officer of the tribe" '
means the person who is recognized by
the Bureau of Indian Affairs as the chief
administrative officer of the tribe.
*****
"Commission" means the emergency
response commission for the State in
which the facility is located except
where the facility is located in Indian
Country, in which case, "commission"
means the emergency response
commission for the tribe under whose
jurisdiction the facility is located. In the
absence of an emergency response
commission, the Governor and the chief
executive officer, respectively, shall be
the commission. Where there is a •
cooperative agreement between a State
and a Tribe, the commission shall be the
entity identified in the agreement.
*****
"Facility" means all buildings,
equipment, structure, and other
stationary items that are located on a
single site or on contiguous or adjacent
sites and which are owned or operated
by the same person (or by any person
which controls, is controlled by, or
tinder common control with, such
person). "Facility" shall include man-
made structures as well as all natural
structures in which chemicals are •
purposefully placed or removed through
human means such that it functions as a
containment structure for human use. A
facility may contain more than one
establishment. For purposes of
emergency release notification, the term
includes motor vehicles, rolling stock,
and aircraft.
*****
"Indian Country" means "Indian
country" as defined in 18 U.S.C. 1151.
That section defines Indian country as:
(a) All land within the limits of any
Indian reservation under the jurisdiction
of the United States government,
notwithstanding the issuance of any
patent, and including righfs-of-way
running through the reservation;
(b) All dependent Indian communities
within the borders of the .United States
whether within the original or
subsequently acquired territory thereof,
and whether within or without the limits
of a State; and
1 (c] All Indian allotments, the Indian
titles to which have been extinguished,
including rights-of-way running through
the same.
*****
"Indian tribe" means those tribes
federally recognized by the Secretary of
the Interior.
*****
"Local emergency planning
comm'ittea" or "committee" means the
local emergency planning committee
appointed by the emergency response
commission. '•
4 * * * -I *
1 "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, thei^orthernj Mariana
Islands, and any.oiner territory or .
possession over wjiich the United States
has jurisdiction and Indian (Country.
i * * * / *
PART 355—EMERGENCY PLANNING
AND NOTIFICATION
. i
1 3. The authority citation for Part 355
continues to read as follows:
i Authority: 42 U.S.C. 11002,11003.11004.
11025,11028,11029. •
4. Section 355.20 is amended by
revising the definitions of "commission"
and "facility" and by adding the
definitions, "Chief Executive Officer of
the tribe," "committee,"
"Establishment," "Indian Country,"
"Indian tribe," and "state" to read as
follows:.
§ 355.20 Definitions.
*****
. i "Chief Executive Officer of the tribe"
means the person who is recognized by
the Bureau of Indian Affairs as the chief
administrative officer of the tribe.
"Commission" means the emergency
response commission for the State in
which the facility is located except
where the facility is located in Indian
Country, in which case, "commission"
means the emergency response
commission for the tribe under whose
jurisdiction the facility is located. In
absence of an emergency response
commission, the Governor and the chief
executive officer, respectively, shall be
the commission. Where there is a
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13GQ5
cooperative agreement between a State
and a Tribe, the commission shall be the
entity identified in the agreement.
"Committee" or "Local emergency
planning committee" means the local
emergency planning committee
appointed by the emergency response
commission.
*****
"Establishment" means an economic
unit, generally at a single physical
location, where business is conducted or
.- where services or industrial operations
are performed.
*****
"Facility" means all buildings,
equipment, structure, and other
stationary items that are located on a
single site or on contiguous or adjacent
sites and which are ownad or operated
by the same person (or by any person
which controls, is controlled by, or
under common control with, such
person). "Facility" shall include man-
made structures as well as ail natural
structures hi which chemicals are
purposefully placed or removed through
human means such that it functions as a
containment structure for human use. A
facility may contain more than one
establishment. For purposes of
emergency release notification, the term
includes motor vehicles, rolling stock,
and aircraft.
-* *' *. * *
"Indian Country" means "Indian
country" as defined in 18 U.S.C. 1151.
That section defines Indian country as:
(a) All land within the limits of any
Indian reservation under the jurisdiction
of the United States government,
notwithstanding the issuance of any
patent, and including rights-of-way
running through the reservation;
(b) All dependent Indian communities
within the borders of the United States
whether within the original or
subsequently acquired territory thereof,
and whether within or without the limits
of a State; and
(c) All Indian allotments, the Indian
titles to which have been extinguished,
including rights-of-way running through
the same.
"Indian tribe" means those tribes
federally recognized by the Secretary of
the Interior.
*****
"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, and Indian Country.
5. Section 355.3O is amended by |
adding a new paragraph (f) to read as
follows: . ;• •
§355.30 Emergency planning. ..'",'.:
***** •
(f) Emergency planning notification by
certain owners or establishments on-
leased property.
(1) If two or more persons, who do not
have any common corporate or business
interest (including common ownership
or control}, operate separate
establishments within a single facility,
each such person shall treat the
establishment it operates as a facility
for purposes of this section. The
determinations in paragraph [a) of this
section shall be made for those
establishments. If any such owner or
operator determines that there is present
at his establishment an amount of any
extremely hazardous substance equal to
or in excess of its threshold planning
quantity, or designated, after public
notice and opportunity for comment, by
the Commission or the Governor for the
State in which the establishment is
located, the operator shall make
notification in accordance with
paragraphs (b), (c), and (d).of this
section for the establishment. For the
purposes of this paragraph, a common
corporate or business interest includes
ownership, partnership, joint ventures,
ownership of a controlling interest in
one person by another, or ownership of
a controlling interest in both persons by
a third person.
(2) Persons operating separate
; establishments within a single facility
owned or operated by a single parent
company or having a common business
interest may submit separate emergency
notifications provided the determination
on that emergency planning notification
shall be made based on the chemicals
present at the facility as a whole (all
establishments-combined.)
6. Section 355.40 is amended by '
redesignating paragraph (b)[4)(ii) as
paragraph (c)(l) and revising it and by
adding new paragraphs (c) (2} and (3) to
read as follows:
§ 355.4O Emergency release notification.
*****
(c) Special notice requirements, (1) An
owner or operator of a facility from
which there is a transportation-related
release may meet-the requirements of
this section by providing the information
indicated in paragraph (b)(2) of this
section to the 911 operator, or in
absence of a 911 emergency telephone
number, to the operator. For the
purposes of this paragraph, a
"transportation-related release" means .
a release during transportation if the
stored substance is moving under active
shipping papers and has not reached the
ultimate consignee.
(2) If two or more persons, who do not
have any common corporate or business
interest (including common ownership
or control), operate separate
establishments within a single facility,
each such person shall treat the
establishment it operates as a facility
• for purposes of this section. The
determinations in paragraph (a) of this
section shall be made for those
establishments as if they were facilities.
If any such owner or operator
determines that his establishment
produces, uses, or-stores hazardous
chemicals and has released a reportable
quantity of any extremsly hazardous
substance or CERCLA hazardous
substance the operator shall make
notification in accordance with
. paragraph (b) of this section for the
establishment. For the purposes of this
paragraph, a common corporate or
business interest includes ownership,
partnership, joint ventures, ownership of
a controlling interest in-one person by
another, or ownership of a controlling
interest in both persons fay a third
person.
(3) Persons operating separate
establishments within a single facility
owned or operated by a single parent
company or having a common business
interest may submit separate emergency
release notifications provided the
determination on that emergency
release notification shall be made based
on the- chemicals released at the facility
as a whole (all establishments
combined.)
7. Appendix A to Part 355 is amended
by revising the Reportable Quantity
listed for Hydrogen Chloride and
Methacrylonitrile to read as follows:
Appendix A—List of Extremely Hazardous Substances and Their ThresholdPlanning
Quantities
CAIphabetical Order]
Reportable
quantity
(pounds)
7647^-01-0
126-96-7
Hydrogen Chloride (Gas Only)..
Metfiacryionttrite
5,000
1,000
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13006
Federal_Refflster /_VcL 54,jfo:\89 / Wednesday. March 29, 1989 /Proposed Rules
Appendix B—List of Extremely Hazardous Substances and Their ThresholdPlanning
Quantities
CCAS Number Order] .-.-
Reportable [
quantity
. (pounds)
28-96-7 MathaoytonitnTa.-
7B47-01-0 Hydrogen Chloride (Gas Only)....
1,000
5,000
PART 370—HAZARDOUS CHEMICAL
REPORTING: COMMUNITY RIGHT-TO-
KNOW
9. The authority citation for Part 370
continues to read as follows:
Authority: 42 U.S.C 11011,11012,11024,
11025,11028,11029.
10. Section 370.2 is amended by
revising the definitions of-facility,"
"commission," "committee", and "State"
and by adding the definitions, "chief •
Executive Officer of the tribe,"
"Establishment," "Indian Country," and
"Indian tribe" to read as follows:
§370.2 Definitions.
"Chief Executive Officer of the tribe"
means the person who is recognized by
the Bureau of Indian Affairs as the chief
administrative officer of the tribe.
"Commission" means the emergency
response commission for the State in
which the facility is located except
where the facility is located in Indian
Country, in which case, "commission"
means the emergency response
commission for the tribe under whose
jurisdiction the facility is located. In
absence of an emergency response
commission, the Governor and the chief
executive officer, respectively, shall be
the commission. Where there is a
cooperative agreement between a State
and a Tribe, the commission shall be the
entity identified in the agreement.
"Committee" or "local emergency
planning committee" means the local
emergency planning committee
appointed by the emergency response
commission.
*****
"Establishment" means an economic
unit, generally at a single physical
location, where business is conducted or
where services or industrial operations
are performed.
• « * * *
"Facility" means all buildings,
equipment, structure, and other
stationary items that are located on a
single site or on contiguous or adjacent
sites and which are owned or operated
by the same person (or by any person
which controls, is controlled by, or
under common control with, such
person). "Facility" shall include man-
made structures as well as ail natural '
structures in which chemicals are
purposefully placed or removed through
human means such that it functions as a
containment structure for human use. A
facility may contain more than one
establishment. For purposes of ;
emergency release notification, the term
includes motor vehicles, rolling stock, ;
and aircraft.
*****
"Indian Country" means "Indian
country" as defined in 18 U.S.C. 1151.
That section defines Indian country as:
(a) All land within the limits of any
Indian reservation under the jurisdiction
of the United States government,
notwithstanding the issuance ofany
patent, and including rights-of-way
running through the reservation;
(b) All dependent Indian communities
within the borders of the United States !
whether within the original or
subsequently acquired territory thereof, i
and whether within or without the limits
of a State; and
(c) All Indian allotments, the Indian '
titles to which have bean extinguished, :
including rights-of-way running through
the same.
"Indian tribe" means those tribes
federally recognized by the Secretary of ,
the Interior. '
*****
"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 and Indian Country.
*****
11. Section 370.20 is revised to read as
follows:
§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 (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 as
specified in paragraphs (b)(l) and (b)(2)
of this section.
(1) The owner or operator of a facility
subject to this subpart shall submit an
MSDS on or before October 17,1987 (or
within three months aftsr the facility
first becomes subject to this subpart),
for all hazardous chemicals present at
the facility in arnounts equal to or
greater than 10,000 pounds and for all
extremely hazardous substances present
at the facility in an amount greater than
or equal to 500 pounds (approximately
55 gallons) or the TPQ, whichever is
less.
(2) The owner or operator of a facility
subject to this subpart shall submit the
Tier I form on or before Msrch 1,1988
(or March 1 of the first year after the
facility first becomes subject to this
subpart), and annually thereafter,
covering all hazardous chemicals
present at a facility during the preceding
calendar year in amounts equal to or
greater than 10,000 pounds and
extremely hazardous substances present
at the facility in an amount greater than
or equal to 500 pounds (approximately
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
under §§ 370.21(d)'and 270.25(c) of this
part shall be zero.
12. Section 370.21 is amended by .
adding a new paragraph (e) to read as
follows: •
§ 370.21 MSDS reporting.
* * • * . * *
(e) Reporting by establishments. (1) If
two or more persons, who do not have '
any common corporate or business
interest (including common ownership
or control), operate separate
establishments within a single facility,
each such person shall treat the
establishment it operates as a facility
for purposes of this section.
Determinations of applicability under
§ 370.20 shall be made for those
establishments as if they were facilities.
An owner or operator of an
establishment subject to this subpart
under such a determination shall comply
with all applicable paragraphs of this
section. For the purposes of this
paragraph, a common corporate or
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Federal Register / Vol. 54, No. 59 / Wednesday, March 29, 1989 / Proposed Rules
13007
business interest includes ownership,
partnership, joint ventures, ownership of
a controlling interest in one person by
another, or ownership of a controlling
interest in both persons by a third
person.
(2) Persons operating separate
establishments owned or operated by a
single parent company or having a
common business interest may submit
separate MSDS or lists under this
section provided the determination that
the MSDSs or lists must be submitted is
based upon the total amount of
hazardous chemicals at the facility as a
whole (all establishments combined).
13. Section 370.25 is amended by
adding a new paragraph (e) to read as
follows:
§ 370.25 Inventory reporting.
* * * * *
(e) Reporting by establishments. (1) If
two or more persons, who do not have
any common corporate or business
interest (including common ownership
or control), operate separate
establishments within a single facility,
each such person shall treat the
establishment it operates as a facility
for purposes of this section.
Determinations of applicability under
§ 370.20 shall be made for those
establishments as if they were facilities.
An owner or operator of an
" establishment subject to this subpart -
under such a determination shall comply
" with all applicable.paragraphs of this
section. For the purposes of this
paragraph, a common corporate or
business interest includes ownership,
partnership, joint ventures, ownership of
a controlling interest in one person by
another, or ownership of a controlling
interest in both persons by a third
person.
(2) Persons operating separate
e.stablishmen;ts owned or operated by a
single parentfqompany or having a .
common business interest may submit
separate inventory repoiis under this
section provided the determination that
the inventory reports must be submitted"
is based upon! the total amount of
hazardous chemicals at the facility as a
whole (all establishments combined).
14. Section $70.28 is amended by
(b)(3) to read as
adding a new-paragrap
fnllntArd' ' '?
follows:
§370.28 Mixtures.
**-***
fb)
(3) If extremely hazardous substances
are hazardous components of a mixture,
the quantity of the extremely hazardous
substance in each mixture shall be
aggregated to determine if the threshold
value has been reached for the facility.
Reporting may be accomplished by
reporting on the component or the
mixture even if the amount of the
mixture(s) is below the reporting
threshold.
15. Section 370.40 is revised to read as
follows:
§ 370.40 Tier 1 emergency and hazardous
chemical Inventory form.
(a) The form set out in paragraph (b)
of this section shall be completed and
submitted as required in § 370.25(a) of
this part. 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 I Emergency and Hazardous
Chemical Inventory Form.
BILLING CODE 6560-SO-M
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13000
Federal Register / Vol. 54, No. 59 / Wednesday, March 29, 1989 / Proposed Rules
EMERGENCY AND HAZARDOUS
Her On9 CHEMICAL INVENTORY
Aggregate Information by Hazard Type
Important: Read instructions before completing form
Pao« _ of _ pages
Form Approved OMB No. 2050-0072
FOR .
OFFICIAL I
Date Received
Facility Identification
Reporting Period From January i to
Name.
Street ACerett.
City.
A- 1 1 entire facility B. | [ establishment within a facility
StO Code
Dun & Brad I i I T
Nurroei- l__l_J~L
Ownor/Oporator
Name
MM Addreo
Phone I
)
,Q
Emergency Contacts
24
24
Tit|« ...
Phone .J.
Hour Phone <,.,.„
I
NarrtA . . ,
Tltlo .
Phono <
Hour Phone '
)
)
)
)
(Check If form 1* identical to form lubmittBd
Average Nurtber
W<,«r,/TUn> "* Dai'y Of Days
Hatartt Type Xmoun/* Amount* On-Site
General Location
I - 1
1 _ |
_. _ „ ,
Check H ilte plan Is attached-
r-cnz] nu c
Suddon Release
of
EHZ3 czu rm-
Reactivity | | | | | | [
1 Health Hazards |
Immediate t— — i — i i — i — i
(acute) 1 1 1 1 1 1
Delayed r~~] ~| 1 I I
(Chronic) 1— 1 — 1 I ' '
1 •! 1 1
1 1 1 1
, •
Certification (Reed and sign after completing all sections)
\ 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 thc-ie individual* responsible for ootaming the information. 1 boneve that
the submitted information it true, accurate and complete.
Name and official title of owner /operator OR owner/operator's authorizod representative
Si$n4tbre
Date signed ,
Range
Code
01
02
03
04
05
06
07
08
09
10
11
-.
Reporting Ranges
Weight Range in Pounds
From... To...
0
100
1000
10.000
100.000
1,000,000
10.000,000
50,000.000
100,000.000
500.000.000
1 billion
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
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Federal Register / Vol. 54, No. 59 / Wednesday, March 29, 1989 / Proposed Rules
13009
TIER ONE INSTRUCTIONS -
GENERAL INFORMATION
Submission of this form Is required by Title III 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 Tier Two form provides detailed
information and must be submitted in response to
a specific request from State or local officials.)
Public reporting burden for this collection of
information is estimated to average 29 hours.
Including time for reviewing instructions, searching
existing data sources, gathering and maintaining
data needed, and completing and reviewing the
collection of information. Send comments
regarding the burden estimates or any other aspects
of this collection of information, including
suggestions for reducing this burden, to Chief.
Information Policy Branch. FM-223. U.S..
Environmental Protection Agency. 401 M St.. S.W..
Washington, D.C. 20460; and to the Office of
Information and Regulatory Affairs. Office of
Management and Budget, Washington. D.C. 20S03.
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.
WHAT CHEMICALS ARE EXCLUDED
Section 311 (e) of Title lit excludes, the following sub-
stances:
(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-
... sonaJ. 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 quail-.
fied Individual:
(v) 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.
OSHA regulations. Section 1910.1200(b), provide addi-
tional exemptions that affect reporting under this rule.
REPORTING THRESHOLDS
Minimum thresholds have been established for Tier One/
Tier Two reporting under Title III. Section 312. Thase
thresholds are as follows:
For Extremely Hazardous Substances (EHSs) desig-
nated under section 302 of SARA, the reporting thresh-
old is 500 pounds or the threshold planning quantity
(TPQ). whichever Is lower:
For all other hazardous chemicals for which facilities are
required to have or prepare an MSDS. the minimum re-
porting threshold is 10,000 pounds.
You need to report hazardous chemicals that were pre-
sent at your facility at any'time during the previous cal-
endar year at levels that equal or exceed these thresh-
olds. ' •
WHEN TO SUBMIT THIS FORM
Beginning March 1, for manufacturing facilities, and
March 1, 1989 for non-manufacturing facilities, owners
or operators that have hazardous chemicals on hand in
quantities equal to or greater than set threshold levels
must submit either Tier One or Tier Two Forms.
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 local emergency planning committee
3. The fire department with Jurisdiction over your
facility. .
PENALTIES
Any owner or operator of a facility who fails to submit or
supplies false Tier One Information shall be liable to the
1 United States for a civil penalty of up to S2S.OOO 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.
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13010 Federal'Register / Vol. 54, No. 59 / Wednesday, March 29. 1989 / Proposed Rules
INSTRUCTIONS
Pte'aie rtad these instructions carefully. Print or type all responses.
You may use the Tier Two form as a worksheet for
completing Tier One. Filling In the Tier Two
chemical Information section should help you
assamblo your Tier One responses.
If your responses require more than one page, fill in the
number at the top of tha 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, tf 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
z!p code,
You must Indicate whether your report Is for the facility
as a whole or for an establishment(s) within the facility.
'Check box A if the report contains Information about a
chemical for an entire facility (including Industrial park
establishments which are reporting as an entire facility).
Check box B If the report contains Information about a
chemical but only for a particular establishment, or lim-
ited group of establishments, within a facility which have
tome form of common business Interest or are owned or
operated by the same parent company.'
Under section 370.25 of the reporting rule, you may
•choose to submit a separate Tier I or Tier II form for
each faculty. This allows you the option of reporting
separately on tha activities Involving a hazardous chemi-
cal at each establishment, or group of-establishments
(e.g.', only part of a covered facility), rather than sub-
mitting a single Tier l/ll for that chemical for the. entire
facility. You may do this provided that the total quantity
of the hazardous chemical from the entire covered facil-
ity Is uted as the reference point In determining the re-
porting threshold.
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 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 will be available 24 hours a day. every
day. This requirement Is mandatory. The facility must
make some arrangement to ensure that a 24 hour con-
tact Is available.
PHYSICAL AND HEALTH HAZARDS
Descriptions, Amounts, and Locations
This section requires aggregate Information on chemi-
cals by hazard categories as defined In 40 CFR 370.2.
Tha 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 CFR 1910.1200. For each hazard type. Indi-
cate the total amounts and general locations of all appli-
cable chemicals present at your facility during tha past
year.
Hazard Category Comparison
For Reporting Under Sections 311 and 312
EPA'8
Hazard 'Categories
Fire Hazard
Sudden Release of
; Pressure
>; Reactive
: Immediate (Acute)
::, Health Hazards
Delayed (Chronic)
Health Hazard
OSHA'8
Hazard Categories
Flammable
Combustion Liquid
Pyrophoric
Oxldizer
Explosive
Compressed Gas
Unstable Reactive
Organic Peroxide
Water Rsactlve
Highly Toxic
Toxic
Irritant
Sensltizer
Corrosive
Other hazardous
chemicals with an
adverse effect with
short term exposure
Carcinogens
Other hazardous
chemicals with an
adverse effect with
long term exposure
• What units should I use?
Calculate all amounts as weight in pounds. To
convert gas or liquid volume to weight In
pounds, multiply by 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'lndlcate either 100 Ibs. of the
mixture or 5 Ibs. of the chemical).
-------
Federal Register / Vol. 54. No. 59 / Wednesday, March 29, 1989 / Proposed Rules 13011
INSTRUCTIONS
Please read these instructions carefully. Print or type all responses.
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 alt
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 — ara added together
in 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 will
seem artificially high.
To complete this and the following sections, you may
choose to use the Tier Two form as a worksheet.
To determine the Maximum Amount:
1.| List all of your hazardous chemicals individually,
2-i For each chemical... '
a. Indicate aH physical and health hazards that
the chemical presents. Include aH chemicals.
even If they are present for only a short pe- .
riod of time during the year.
b. Estimate the maximum weight In pounds that
• was present at your facility on any single
day of the reporting period.
For each hazard type — beginning with Fire and re-
peating for all physical and health hazard types...
a. Add the maximum weights of all chemicals
you Indicated as the particular hazard type.
b. Look at the Reporting Ranges at the bottom
of the Tier One form. Find the appropriate
range value coda.
c. Enter this range value as the Maximum
Amount.
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 in the Immediate (acute)
hazard column for phenol and sulfurlc acid.
The maximum amount raw weight you listed ;
were 10,000 Ibs. and 500 Ibs. respectively. You
add these together to reach a total of 10.500 Ibs.
Then you look at the Reporting Range at the :
bottom of your Tier One form and find that the
value of 03 corresponds to 10.500 Ibs. Enter :
03 as your Maximum Amount for Irrjmediate
(acute) hazards materials.
You also markad 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.
AVERAGE DAILY AMOUNT
This column should represent the averaga daily amount
of chemicals of each -hazard type that were present at
your facility at any point during the year.
To determine this amount:
1. List all of your hazardous chemicals Individually
(same 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 daily 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.
c. Enter this range value as the Average Daily
Amount.
EXAMPLE:
•:.. You are using the Tier Two form, and have ;
S marked an X in the Immediate (acute) hazard &
S? column for nicotine and phenol. Nicotine Is .'..'•:
:»• present at your facility 100 days during the year, i*
•••••-. and the sum of the daily weights is 100.000 Ibs. &
:: By dividing 100.000 Ibs. by 100 days on-site, ••-.
v you calculate an Average Dally Amount of ;>?
'is 1.000 Ibs. for nicotine. Phenol Is present at =•«
:":•" your facility 50 days during the year, and the xi
: sum of the daily weights is 10.000 Ibs. By
£ dividing 10.000 ibs. by 50 days on-sits, you ;:
S calculate an Average Daily Amount of 200 !bs.
'•'•. for pnenol. You then add the two avsrag-s .-•;-.-
daily amounts together to reach a total of
"'•• 1,200 Ibs. Than 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 Daily Amount for Immediate '.'•:•,_
(acute) Hazard.
:: You- also marked an X in the Firs hazard column ;•:"•
- for phenol. When you calculate your Average
.:• Daily Amount for fire hazards, use the 200 ib.
I''- weight again. •"
NUMBER OF DAYS ON-SITE
Enter the greatest number of days that a single chemical
within that hazard category was present on-site.
EXAMPLE:
•> At your facility, nicotine is present for 100 days
,; and phosgana is present for 150 days. Enter
• 150 in the space provided.
GENERAL LOCATION
Enter the general location within your facility where each
hazard may ba found. General locations should include
the names or Identifications of buildings, tank fields, lots.
sheds, or other such areas.
BILLING CODE 6560-5O-C
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13012 Federal Register / Vol. 54," No. 59 / Wednesday, March 29, 1989 / Proposed Rules
INSTRUCTIONS
Pteate read these instructions carefully. Print or type all responses.
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
tha Fire hazard column for acetone and
butane. You noted that these are kept in steel
drums (n Room C of the Main Building, and In
pressurized cylinders In Storage Shed 13, ,
respectively. You cou'lci 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.
• 18. Section 370.41 is revised to read as
follows:
§"370.41 Tier II emergency and hazardous
chemical Inventory form.
(a) The form set out in paragraph (b)
of this section shall be completed and
submitted as required in § 370.25(c) of
this part. 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
-------
Federal Register / Vol. 54, No. 59 / Wednesday, March 29. 1989 / Proposed Rules
13013
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Tier Two
EMERGENCY
AND
HAZARDOUS
CHEMICAL
INVENTORY
Specific
Information
by Chemical
Facility Identification
"""• , ,
Stnut AAV...
c»y j.,,,t 7V
A. D «**. f.cll!ty B. D.«»bHthm«,t w.», . teHHy
SIC Cod. 1 1 1 1 1 Dun & 8r*d I 1 ll 1 1 ii 11 i i
1 ' ' ' ' • Ncimbor l—J I"L ' ' _l~i L. ' ' '
FOR
OFFICIAL
ONLY
i
Oil. Received |
Owner/Operator Nam*
WP*P* Pf>on* ^ )
..
Emergency Contact
Mama ..- TIIU
Ption. I 1 " 91 If Phnn. ( )
Mam« „... . T'H0
Phon. 1 .!_. 9AU, Phnn. ( 1
Important: Read all instructions before completing form
Confidential Location Information Sheet
CASH 1 1 1 1 1 II 1 II 1 «-«.
«•• i i i M I 1 1 i 1 1 i a-
--• - - - •- -- '- - '-..-- -: - -
°"'l MM Ml 1 II 1 SS3-
.
Storage Codes and Locations
(Confidential)
Storage Codex Storage Locations
•
(
' ,-.
Certification (Read and s,gn after completing ail lections) Optional Attachments (Chectone
1 certify under penalty of law that 1 have personally .axunlnod and am familiar with _tha Information submitted In thl» and all attached documents, and that based
on my Inquiry of those Individuals responsible for obtaining tha Infcrmailon, 1 bullava that tha submitted toformatlon ll true, accurate, and complete. | | | have attached a sit* plan
1 have attached a list of site
Name and of llclaltltla of owner/operator OR ownur/orwrator' i authorized rep,o=ontatlve Signature Date signed """ J" "'" '"" °'"'lU"f>*
-------
Federal Register / Vol. 54. No. 59 / Wednesday, March 29, 1989 / Proposed Rules
TIER TWO" INSTRUCTIONS
13015
..
GENERAL JNFORMAT1ON
.,.. .- .• •. '
TA^^A^
> *.*_ »*~'^ ' — — —* abMl-A. t*_t .j &t_ ' «_ti *. •»»»p"-Il*w*^ «"**•!» iiwi i vrw
officials and tn« public with specific information on hazardous cheml-
" past year.
If you elect to submit Tier One rather than Tier Two. you
may stilt be required to submit Tier Two Information upon
request.
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.
Public reporting burden for this collection of
Information Is estimated to average 29 hours.
Including time for reviewing Instructions, searching
existing data sources, gathering and maintaining
data needed, and completing and reviewing the
collection of Information. Send comments regarding
the burden estimate or any other aspect of this
collection of Information, Including suggestions for
reducing this burden, to Chief, Information Policy
Branch. PM-223, U.S. Environmental Protection
Agency, 401 M St.. S.W., Washington, D.C.
20460; and to the Office of Information and
Regulatory Affairs. Office of Management and
Budget. Washington, D.C. 20503.
WHO MUST SUBMIT THIS FORM
'Section 312 of Title III requires that the owner or opera-
tor of a facility 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
facility that \a 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-
munication Standard, found In Title 29 of the Code of
Federal Regulations at §1910.1200.
WHAT CHEMICALS ARE INCLUDED
If you are submitting Tier Two forms In Deu of Tier One.
you must report the required Information on this Tier Two
form for each chemicaJ present at your facility In quanti-
ties equal to or greater than established threshold
amounts (discussed below). Hazardous chemicals are
any substance for which your facility must maintain a
MSDS under OSHA's Hazard Communication Standard.
WHAT CHEMICALS ARE EXCLUDED
Section 311(e) of Title II! excludes the following sub-
stances:
(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 ft Is used In a re-
search laboratory or a hospital or other medical facil-
ity under the direct supervision of a technically cua»-
fied Individual;
(v) Any substance to the extent It Is used In routine
agrtouJtura) operations or Is a fertilizer held for sale by
a retailer to the ultimate customer.
OSHA regulations. Section 1910.1200(b). provide addi-
tional exemptions that affect reporting under this rule.
REPORTING. THRESHOLDS
Minimum thresholds have been established for T!ar Ons/
Tier Two reporting under Title lit. Section 312 These
thresholds are as follows:
For Extremely Hazardous Substances (EHSs) desig-
nated under section 302 of SARA, the reporting thresh-
old is SOO pounds or the threshold planning quantity
(TPQ). whichever Is lower;
For all other hazardous chemicals for which facilities are
required to have or prepare an MSDS. th« minimum re-
porting threshold Is 10,000 pounds.
You need to report hazardous chemicals that were pre-
sent at your facility at any time during the previous cal-
endar year at levels that equal or exceed these thresh-
olds.
A requesting official may limit the responses required un-
der Tier Two by specifying particular chemicals or
groups of chemicals. Such requests apply to hazardous
chemicals regardless of established thresholds.
-------
13016
Federal Register-^ Vol. 54, No. 59 / Wednesday, March 29, 1989 / Proposed Rules
•;•• v
INSTRUCTIONS
Please read these instructions carefully. Prim or type all responses.
WHEN TO SUBMIT THIS FORM
Beginning March 1. for manufacturing facilities.
and
March 1. 1939 for non-manufacturing facilities, owners
or operators that have hazardous chemicals on hand In'
quantities equal to or greater than set threshold levels
must submit either Tier One or Tier Two forms.
If you choose to submit Tier One. rather than Tier Two.
b» aware that you may have to submit Tier Two informa-
tion later, upon request of an authorized official. You
must submit the Tier Two form within 30 days of receipt
of « written request.
WHERETO SUBMIT THIS FORM
Sand either a completed Tier One form or Tier Two
form(s) to each of the following organizations:
1. Your State Emergency Planning Commission.
2. Your Locaf Emergency Planning Committee.
3. The fire department with Jurisdiction over your facility.
If a Tier Two form Is submitted In response to a request,
send the completed 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
cSv8 penalty of up to $25.000 for each such violation.
Each day a violation continues shall constitute a separate
violation.
You may us* the Tier Two form as « worksheet for
completing the Tier One form. Filling In the Tier
Two Chemical Information section should help you
assemble your Tier On* responses.
If your Tier Two responses require mor« than one paga
us* additional forms and 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 fuH 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.
You must Indicate whether your report Is for the facility
as a whole or for an establishment(s) within the facility.
Check box A If the report contains Information about a
chemical for an entire facility. Including multi-establish-
ment facilities owned by the same parent company.
Check box B If the report contains Information only about
a chemical for a particular establishment, or limited
group of establishments that do not have any common
corporate or business Interests.
Under section 370.25 of the reporting rule, you may
choose to submit a separate Tier I or Tier II form for
each facility. This allows you the option of reporting
separately on the activities Involving a hazardous chemi-
cal* at each establishment, cr group of establishments
(e.g.. only part of a covered facility), rather than sub-
mitting a single Tier l/ll for that chemical for the entire
facility. You may do this provided that the total quantity
of the hazardous chemical from the entire covered facil-
ity Is used as the reference point In determining the re-
porting threshold.
Enter the primary Standard Industrial Classification (SIC)
code and the Dun 4 Bradstreet number for your facility.
The financial officer of your facility should be able to pro-
vide the Dun & Bradstreet numbar. 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 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. This requirement Is mandatory. A facil-
ity must make some arrangement to ensure.that « 24
hour contact is available.
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 Cpmmunica-
tlon Standard.
What units should I use?
Calculato 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.
-------
Federal Register / Vol. 54. No. 59 / Wednesday, March 29. 1989 /Proposed Rules
13017
CHEMJCAL DESCRIPTION
1 .j Enter the Chemical Abstract Service registry number
i. (CAS). For mixtures, enter the CAS number of the
'' mixture as a whole If It has been assigned a number
;';* distinct from Its constitunnts. For a mixture that has
./. no CAS number, leave this Item blank or report the
. CAS numbers of as many constituent chemicals as
i possible.
..' If you are withholding th'e name of a chemical In ac-
cordance with criteria specified in Title III, Section'
322. enter the generic class or category that Is
structurally descriptive of the chemical (e.g., list
tpulene diisocynate as organic Isocynatel and check
the box marked Trade Secret. Trade secret
Information should be submitted to EPA and must
Include a substantiation. Please refer to EPA's final
!£S^at.lonf *rade secrecy (53 FR 28772, July 29.
1988) for detailed Information on how to submit
trade secrecy claims.
2. Enter the chemical name or common name of each
hazardous chemical.
3. Check box for ALL applicable descriptors: pure or
mixture: and solid, liquid, or gas: and whether the
chemical is or contains an EHS.
EXAMPLE:
You have pure chlorine gas on hand, as
well as two mixtures that contain liquid
chlorine. You write "chlorine" and enter the
CAS number. Then you check "pure" and
•mix" — as well as "liquid" and "gas".
PHYSICAL AND HEALTH HAZARDS
For each chemical you have listed, che.ck all the physical
and health hazard boxes that apply. These hazard cate-
gories are defined In 40 CFR 370.2. 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.
• Hazard Category Comparison
|i For Reporting Under Sections 311 and 312
I EPA's
; Hazard Categories
fFIre Hazard
> Sudden Release of
i Pressure
|
i: Reactive
|Immediate (Acute)
| Hearth Hazards
: Delayed (Chronic)
'Health Hazard
OSHA's
Hazard Categories
Flammable
Combustion Liquid
Pyrophorlc
Oxldizer
Explosive
Compressed Gas
Unstable Reactive
Organic Peroxide
Water Reactive
Highly Toxic
Toxic
Irritant
Sensitlzer
Corrosive
Other hazardous
chemicals with an
adverse effect with
short term exposure
Carcinogens
Other hazardous
chemicals with an
adverse effect with
long term exposure
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.
Tabla I REPORTING RANGES
Range
Value
01
02
03
04
OS
06
07
oa
09
10
11
Weight Range
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.S99.999
49.999.999
99.999.999
499.999.999
999.999,999
higher than 1 billion
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 Averaqa
Daily Amount.
EXAMPLE:
You received one large' shipment of a solvent
mixture last year. The shipment filled five 5,000 -
gallon storage tanks. You know that the solvent
contain* 10% benzena. which Is a hazardous
chemical.
You figure that 10% of 25.000 gallons Is 2,500
gallons. You also know that the density of
benzene Is 7.29 pounds per gallon, so you
multiply 2.500 by 7.29 to get a weight of 13,225
pounds.
Then you look at Table I and find that the
range value 03 corresponds to 18.225. You
enter 03 as the Maximum Amount.
(If you are using the form as a worksheet for
completing a Tier One form, you should write
18.255 In the shaded area.)
AVERAGE DAILY AMOUNT
1 - F°«" «ach hazardous chemical, estimate tha average
weight In pounds that was present at your facility dur-
ing th« year.
To do this, total all dally weights and divide by the
number of days the chemical was present on the
sit*.
2. Find the appropriate range value In Table I.
3. Enter this range value as the Average Daily Amount.
-------
13018
Federal Register / Vol. 54, No. 59 / Wednesday, March 29, 1989 / Proposed Rules
EXAMPLE:
Th* 25.000-galton shipment of solvent you re-
ceived last year was gradually used up and
completely gone In 315 days. The sum of the
d«8y volume levels tn the tank Is 4.536,000 gallons.
By dividing 4,536.000 gallons by 315 days on-slte.
you calculate an average dally amount of 14.400
gallons.
You already know that the solvent contains 10%
benzene, which Is a hazardous chemical. Since
10% of 14.400 Is 1.440. you figure that you had
an average of 1,440 gallons of benzene. You also
know that the density of benzene Is 7.29 pounds
p«r gallon, so you multiply 1.440 by 7.29 to gat
a weight of 10.500 pounds.
Then you look at Table I and find that the
rarge value 03 corresponds to 10.500. You
enter 03 as tha Average Dally Amount.
(tf you are using the form as a worksheet for
competing a Tier One form, you should write
10.500 In the shaded area.)
NUMBER OF DAYS ON-SITE
Enter the number of days that the hazardous chemical
was found on-sito.
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
Ust all non-conndentlal chemical locations In this column.
along with storage types/conditions associated with each
location. Please note that a partlcluar chemical may be
located tn aovoral places around tho facility. Each row of
boxes followed by a line represents a unique location for
the same chemical.
Storage Codes: Indicate the types and conditions of
ttoraoe present.
a. Look at Table If. For each location, find the-
appropriate storage type and enter the cor-
responding code In tha first box of the three.
b. loo* af Tab.'e ///. For each location, find
th* appropriate storage types for pressure
and temperature conditions. Enter the appli-
cable pressure code In the second box of the
three. Enter the applicable temperature
code In the third box of the three.
Table II - STORAGE TYPES
CODES Types of Storage
A Abovo ground tank
B Below ground tank
C Tank Inside bunding
D Steel drum
E Plastic or non-metallic drum
F Can
G 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
Table ill - TEMPERATURE AND PRESSURE
CONDITIONS
CODES Storage Conditions :
(PRESSURE)
1 Ambient pressure
2 Greater than ambient pressure
3 Lass than ambient pressure
(TEMPERATURE)
4 Ambient temperature
5 Greater than ambient temperature
8 Less than ambiant 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 coda for a tank
Inside a building Is C. Table III shows you that i
the code for ambient pressure Is 1, and the coda .
for less than ambient temperature Is 6. ;
You enter: IC11 I6I j
Storage Locations:
Provide a brief description of the precise location of the
chemical, so that emergency rosponders 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 tho building or
lot. Additionally, where practical, tha room or area may
be Indicated. You may respond In narrative form with
appropriate site coordinates.^ abbreviations,
If the chemical Is prasont 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 sits.
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 slta coordinates indicated for
buildings, tots, areas, etc. throughout your
facility.
b. A list of site coordinate abbreviations that
correspond to buildings, lots." areas, etc.
throughout your facility:
BJUJNCJ CODE 4SW-50-C
-------
Federal-Register / Vol. 54. No. 59 / Wednesday, March" 29, 1989 / Proposed Rules
13019
i
hav
EXAMPLE:
You have benzene in the main room of .the
main building, and In tank 2 In tank field 10.
You attach a site plan with coordinates as
follow^: main building = G-2. tank field 10
B-6.''Fillin the Storage Location as follows:
CERTIFICATION.
This statement must be completed by the owner or op-
erator or the officially designated representative of the
owner or operator. Enter your full name and official title.
Sign your name and enter the current date.
'B-6 [
Tank 2 ) G-'2 [Main Room]
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 the first line of the storage locations..
• 'On a separate Tier Two Confidential Location
Information Sheet, enter the name and CAS
number 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.
PART 372—TOXIC CHEMICAL
RELEASE REPORTING; COMMUNITY
RIGHT-TO-KNOW
, 17. The authority citation for Part 372
continues to read as follows:
Authority: 42 U.S.C. 11013,11028.
18. Section 372.3 is amended by
• adding definitions to read as follows:
§ 372.3 Definitions.
****,*
"Chief Executive Officer of the tribe"
means the person who is recognized by
the Bureau of Indian Affairs as the chief
administrative officer of the tribe.
*****
"Indian Country" means "Indian
.country" as defined in 18 U.S.C. 1151.
That section defines Indian country as:
[a) All land within the limits of any
Indian reservation under the jurisdiction
of the United States government,
notwithstanding the issuance of any
patent, and including rights-of-way
running through the reservation;
(b) All dependent Indian communities
within the borders of the'United States
whether within the original or
subsequently acquired territory thereof,
and whether within or without the limits
of a State; and
(c) All Indian allotments, the Indian
titles to which have been extinguished,
including rights-of-way running through
the same.
* * * * *
"Indian tribe" means those tribes
federally recognized by the Secretary of
the Interior.
******
"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 Commonwealth of
the Northern Mariana Islands, and any
other territory or possession over which
the United States has jurisdiction and
Indian Country.
19. Section 372.30 is amended by
revising paragraph (a) to read as
follows:
§ 372.30 Reporting requirements and
schedule for reporting.
(a) For each toxic chemical known by
the owner or operator to be
manufactured (including imported),
processed, or otherwise used in excess
of an applicable threshold quantity in
§ 372.25 at its covered facility described
in § 372.22 for a calendar year, the
owner or operator must submit to EPA
and to the State in which the facility is
located a completed EPA Form R (EPA
Form 9350-1) in accordance with the
instructions in Subpart E. If the covered
facility is located in Indian Country, the
facility shall submit a completed EPA
Form R as described above to the
official designated by the Chief
Executive Officer of the applicable
Indian tribe, unless the tribe has entered
into a cooperative agreement with a
State, in which case, the facility shall
submit the completed EPA Form R to the
receiving entity designated in the
cooperative agreement.
*****
' [FR Doc. 89-7321 Filed 3-28-89; 8:45 am]
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