Thursday
 July 26, 1990
Part III


Environmental

Protection Agency

40 CFR Parts 350, 355, 370 and 372
Community Right-to-Know Reporting
Requirements; Final Rule
             Printed oh Recycled Paper

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S0632      Federal Register / Vol. 55. No. 144 / Thursday. July 26. 1990 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY

40 CFR Parti 350,355,370, and 372

lFRL-3716-S]
RIN2050-AB88

Community RIght-to-Know Reporting
Requirements

AGENCY: Environmental Protection
Agency (EPA).
ACTION; Final rule.	

SUMMARY: Section 311 of the Emergency
Planning and Community Right-to-Know
Act (EPCRA) or title HI of the Superfund
Amendments and Reauthorization 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 of SARA.
EPA previously established reporting
thresholds for the first two years of
reporting at 10,000 pounds for hazardous
chemicals and at 500 pounds or the
threshold planning quantity fTPQ).
whichever is lower, for extremely
hazardous substances (EHSs) (52 FR
38344; October 15,1987). EPA also
promulgated zero thresholds in that
rulemaking to become effective in the
 third year of reporting, but stated in the
preamble that it would conduct further
studies of all reporting threshold
alternatives and would propose final
reporting thresholds before the
beginning of the third year of reporting.
   After completing its study of
 alternative thresholds, EPA published a
 Notice of Proposed Rulemaking (NPRM)
 proposing final reporting thresholds (54
 FR 12992; March 29,1989). Subsequently,
 because of the time.required to address
 the comments received on the NPRM
 and to promulgate a final rule, EPA
 published an Interim Final Rule
 extending, for manufacturing facilities,
 the reporting thresholds established for
 the first two years of reporting under the
 October 15,1987  rule (54 FR 41904;
 October 12,1989). Also on October 12.
 1989, EPA published a Supplemental
 Notice explaining its  intention to
 establish uniform deadlines in the final
 rule on thresholds (54 FR 41907).'
    In today's final rule, EPA is
 promulgating final reporting thresholds
 under sections 311 and 312 at the current
 levels, 10,000 pounds for non-EHS
 hazardous chemicals that must be
 reported and 500 pounds or the TPQ,
 whichever is lower, for EHSs. In
accordance with the October 12,1989 '
Supplemental Notice, today's final rule
also establishes uniform effective dates  „
for all facilities subject to reporting
requirements under sections 311 and
312. Thus, all facilities from all industry
sectors will be subject to the final
thresholds oh the same dates.
  Today, EPA is also finalizing several
other provisions proposed in the March
29,1989 NPRM, including the revision of
the definition of the term "facility" to  ,
include  subsurface operations, the
treatment of mixtures in threshold
calculations, and the implementation of
all sections of title III by Indian Tribes
on Indian lands (including section 313 of
title HI). EPA previously'published a ,
final rule correcting the discrepancy in
the reportable quantities for hydrogen
chloride and methacrylonitrile (54 FR
43164; October 20,1989).
EFFECTIVE DATE: August 27,1990.
ADDRESSES: Copies of materials
relevant to this rulemaking are
contained in the Superfund Docket—
Docket  Number 300RR-IF, room 2427,
401M Street SW., Washington, DC
20460. The docket may be inspected by
appointment between the hours of 9 a.m.
and 4 p.m., Monday through Friday,
excluding Federal holidays. The docket
phone number is (202) 382-3046. As
provided hi 40 CFR part 2, a reasonable
fee may be charged for copying services.
FOR FURTHER INFORMATION CONTACT:
Kathleen Jones, Project Officer,
Chemical Emergency Preparedness and
Prevention Office. Office of Solid Waste
and Emergency Response, OS-120,  U.S.
Environmental Protection Agency, 401M
Street SW., Washington, DC 20460, or
 the Emergency Planning and Community
Right-to-Know Information Hotline at   -
 (800) 535-0202, or in the Washington, DC
 metro area and Alaska at (202) 479-2449.
 SUPPLEMENTARY INFORMATION: The
 contents  of today's preamble are listed
 in the following outline. •
 I. Introduction
  , A. Statutory Authority   •       .
   B. Statutory Background               :
   C. Background of This Rulemaking     -'
   D. Organization of the Final Rule
 It. Final Reporting Thresholds
 HI. Analytical Approach  ,   ,            ,
 iy. Other Issues    '     .            ;
   A. MultirEstablishment Facility Reporting
   'B. Tier I and Tier II Forms           '  •  '
   C. Subsurface Operations
  ?D.'Treatment of EHS Mixtures in Reporting'
    Threshold Calculations
   E.The Implementation of Title m by Indian
    Tribes on Indian Lands          ." '•  .
   F. Miscellaneous Issues  , '      ,  .  '• •
 V. Regulatory Analyses       '
   A. Regulatory Impact Analysis
   B. Regulatory Flexibility Analysis
 List of Subjects
I. 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 et seq.).
Title III is the Emergency Planning and
Community Right-to-Know Act of 1986
(EPCRA).


B. Statutory Background


I.SARA
   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 a threat of release of a
 hazardous substance.

 2. Title III of SARA
   Title in of SARA 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 in 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; at present, there are 360
  designated EHSs listed at 40 CFR part
  355, Every facility where an EHS is
.  present at or above the TPQ is required
  to notify the SERC and to ''cooperate
  with the LEPC in the planning process
  specified under section 303 of title III of •
,  SARA.      ,         '.•:•!.'
    Section 304 of title III requires the
  owners or operators of facilities to
  notify the local emergency
  coordmator(s) and State(s) likely to be
  affected as soon as the^owner or
  operator has knowledge of a release of
  an EHS or a CERCLA hazardous
  substance affecting persons beyond the

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             Federal Register / Vol. 55, No. 144 / Thursday, July 26, 1990  /  Rules and Regulations
                                                                      30633
 facility boundaries, if the release equals
 of exceeds a reportable quantity (RQj or
 one pound if an RQ has not been
 established by regulation.
   Subtitle B of title in provides a
 mechanism for public awareness of
 hazardous chemicals present in the
 community. Sections 311 and 312 of title
 III are discussed hi detail in the next
 section of the preamble. Section 313,
 requires facilities in SIC codes 20
 through 39 (i.e., manufacturing facilities)
 to report total annual emissions of
 designated toxic chemicals that are
 manufactured, processed, or otherwise
 used at the facilities in quantities at or
 above certain thresholds. Subtitle C of
 title III contains general provisions
 concerning citizen suits and public
 availability of information.

 C. Background of This Rulemaking
   Section 311 of title HI of SARA applies
 to the owner or operator of a facility
 where there are hazardous chemicals
 present for which the owner or operator
• must prepare or have available a
 Material Safety Data Sheet (MSDS)
 under Hazard Communication
 Standards (HCS) (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
 MSDSs, to the appropriate SERC, LEPC,
 and local fire department The HCS does
 not list specific chemicals; a "hazardous
 chemical," as defined in the HCS, is one
 that poses either a physical or health
 hazard.1 The tens of thousands of
 products covered by the HCS include
 petroleum products, explosives, and
 carcinogens.
   The HCS regulations were restricted
 initially to facilities in Standard
 Industrial Classification (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
 to cover facilities hi the non-
 manufacturing sector as well as'
 facilities in the manufacturing sector (52
 FR 51852). A challenge to the revised
 standards by several industrial groups
 resulted in a temporary stay for non-
 manufacturing facilities. On July 22,
 1988, OSHA clarified that the HCS was
 hi effect for non-manufacturing facilities
 as of June 24,1988, except for the
 construction industry (53 FR 27679). On
 February 15,1989, OSHA notified EPA
 that all provisions of the HCS were in
  * The procedures for determining whether a
 particular chemical is a hazardous chemical are set
 forth In 29 CFR 1910.1200 and appendices.
effect for all segments of industry,
including the construction industry, as of
January 30,1989 (54 FR 8888).
  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 of 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, as specified
in 40 CFR 370.20(b)). Facilities in the
construction'industry were required to
submit their MSDSs or lists by April 30,
1989. Thereafter, if a facility begins to
use a chemical subject to the HCS 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 correct
information within three months to the
appropriate SERC, LEPC, and local fire
department (40 CFR 370.21(c)).
  Under section 312 of title III, owners
or operators covered by section 311 of
title III are required to'submit additional
information on the presence and
location of hazardous chemicals at their
facilities. Beginning March 1,1991, under
the uniform deadlines in today's rule,
and  annually thereafter, all facilities
affected by the HCS that have
hazardous chemicals at or above the
reporting thresholds must submit a "Tier
I" inventory form and may be required
to submit a "Tier n" inventory form to
SERCs, LEPCs, and fire departments.
  Tier I forms require general
information on the amount and location
of hazardous  chemicals by hazard
category; Tier I forms must be submitted
annually. Tier II forms require more
detailed information on individual
chemicals and must be submitted on
request Facilities may submit Tier II
forms in lieu of Tier I forms.
  Title HI of SARA (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
automatically report the presence of that
chemical under the provisions of
sections 311 and 312 of title III. On
October 15,1987, EPA promulgated
regulations (52 FR 38334) establishing
reporting thresholds under section
311(b) of title  m for facilities subject to
the OSHA HCS. 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. Access to
 information below these thresholds was
 preserved in that facilities must provide
 any such information when requested in
 accordance with 40 CFR 370.20(b)(3).
   The October 15,1987 rule also
 established a threshold of zero pounds
' for the third year of reporting; that is, no
 threshold as of the third year. For
 manufacturers, the third year begins on
 September 24,1990; and for the
 construction industry, the thjrd year
 begins on April 30,1991.
   EPA stated in the October 15,1987
 final rule that because of the  substantial
 number and variety of comments
 received on the final threshold issue and
 uncertainty over the impact of the
 requirements on  the recipients of the
 reports and ultimately on the
 effectiveness of the program, it would
 conduct further studies of alternative
 thresholds and propose final  reporting
 thresholds before the beginning of the
 third year of reporting. On March 29,
 1989 (54 FR 12992), EPA published an
 NPRM proposing final reporting
 thresholds based on analyses conducted
 since  the promulgation of the October
 15.1987 final rule. In that NPRM, EPA
 proposed to maintain the current
 reporting thresholds (i.e., 10,000 pounds
 for non-EHS hazardous chemicals and
 500 pounds or the TPQ, whichever is
 lower, for EHSs). Many commenters
 supported selection of the current
 thresholds, and some suggested
 alternative thresholds. Because it was
 not feasible to consider properly and
 respond thoroughly to all the  comments,
 and to finalize and promulgate final
 reporting thresholds before the zero
 pound threshold for manufacturers
 automatically went into effect on
 October 17,1989, and because EPA
 believed that it was not in the public
 interest to allow the zero threshold to go
 into effect for the short time required to
 promulgate final reporting thresholds
 that may differ from the zero threshold,
 EPA promulgated an Interim Final Rule
 extending the current thresholds under
 sections 311 and 312 for one additional
 year for manufacturing facilities (54 FR
 41904; October 12,1989). At the same
 time, EPA published a Supplemental
 Notice explaining its intention to
 establish uniform deadlines in the final
 rule on thresholds.
   EPA received seventeen letters on the
 Supplemental Notice and the Interim
 Final Rule. All commenters supported
 the one-year extension of the  current
 reporting thresholds, as well as the
 proposal to establish uniform  effective
 dates for the final thresholds in today's
 rule. Accordingly, today's final rule on
 thresholds eliminates the different
 effective dates for various industry

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30634      Federal Register / Vol. 55. No. 144 / Thursday, July 26. 1990 / Rules and Regulations
sectors and establishes uniform
effective dates for all facilities subject to
reporting requirements under sections
311 and 312, Under today's rule for all
facilities subject to reporting under
sections 311 and 312, including facilities
in the construction industry and
facilities newly subject to the reporting
requirements, October 17.1990 will be
the effective date for final reporting
thresholds for reports submitted under
section 311; March*!, 1991 will be the
effective date for final reporting
thresholds for reports submitted
annually under section 312.
  Today, EPA is promulgating the final
thresholds at the current levels; that is,
beginning October 17,1990. the reporting
threshold is 10,000 pounds for non-EHS
hazardous chemicals and BOO pounds or
tho TPQ, whichever Is lower, for EHSs.
  In the March 29,1989 NPRM, EPA
proposed a clarification to the reporting
requirements for multi-establishment
facilities. EPA has decided not to
promulgate a final rule on this issue at
this time.
  EPA is also finalizing a number of
other provisions proposed in the March
29,1989 NPRM, including the revision of
the definition of the term "facility" to   '
include subsurface operations, the
treatment of mixtures in threshold
calculations for §§ 311 and 312, the
implementation of title HI by Indian
Tribes on Indian lands, and several
miscellaneous issues.
  Finally, in the March 29.1989 NPRM,
EPA proposed to correct a discrepancy
in the listing of RQs for two EHSs,
hydrogen chloride and
methacrylonitrile, between appendices
A and B to 40 CFR part 355 (EHS list)
and 40 CFR 302.4  (listof hazardous
substances under CERCLA). On October
20,1989 (54 FR 43164), EPA published
the corrected RQs for hydrogen chloride
at 5,000 pounds and for
methacrylonitrile at 1,000 pounds,
thereby resolving the discrepancy.
   EPA received 167 comments letters
addressing issues raised in the NPRM.
The comments received, together with
EPA's responses, are contained in the
 document, Responses to Comments
 Received on the Notice of Proposed
 Rulemaking under §§ 311 and 312'of title
 III of the Sup erf and Amendments and
 Reauthorization Act of 1988—March 29,
 1989 (Comment Response Document),
 which is available in the docket
 supporting this rulemaking. In preparing
 today's rule, EPA considered all of the
 public comments submitted on the
 March 29,1989 NPRM, with the
 exception of comments on the RQ.
 discrepancy which were addressed in
 the October 20,1989 final rule on that
 issue. Comments are addressed in
 sections II and M of this preamble.
 Section IV provides a summary of the
 analyses supporting today's rule.
 D. Organization of the Final Rule
   Today's final rule amends 40 CFR part
 350-1 by adding definitions of "chief
 executive officer of the Trib'e," .
 "commission," "Indian country," "Indian
 Tribe," "local emergency planning
 committee," and "State," thereby
 codifying the definitions implementing
 EPA's designation of Indian Tribes as
 the implementing authorities for title HI
 on Indian lands. Also, the definition of
 facility, including man-made or natural
 subsurface structures into which
 hazardous chemicals are purposefully
 placed or from which they are removed
 by human means such that the
 structures function as containment  ,
 structures, is added to § 350.1. Similarly,
 § 355.20 is amended by adding the
 definitions necessary to authorize
 Indian Tribe implementation of
 reporting requirements. In addition, the
 definition of "commission" in § 355.20 is
 revised to add Indian tribal emergency
 response commissions aind the definition
 of "facility" is revised to include man-
 made or natural subsurface'structures.
   In today's final rule, 40 CFR part 370 is
 also amended by adding the definitions
 pertaining to Indian tribal
 implementation and by revising the
 definitions of "facility," "commission,"
 end "State." Section 370.20 is revised to
 incorporate the final thresholds for
 reporting under title III, sections 311 and
 312. Section 370.28 is amended by
 revising paragraph (b)(l) and adding
 new paragraph (c) to clarify the
 requirement to aggregate EHSs in
 mixtures. The Tier I and Tier II reporting
 forms in § 370.40 have been modified in
 response to commenter's suggestions.
 The certification block on the Tier II
 form has also been changed to allow the
. owner or operator to place an original
 signature only on the first page of the
 submission.
   ' In today's final rule, 40 CFR part 372 is
 amended by adding the definitions
 pertaining to Indian Tribes. These  -
 definitions have been added to § 372.3.
 In addition, ,5 372.30 has been revised to
 indicate that if a facility is located in
 Indian country, EPA Form R must be
 submitted to the office designated by the
 Chief Executive Officer of the Tribe.
    Finally, the Burden Box has been
 eliminated from the Tier I and Tier II
 instructions because of the 'recent
 Supreme Court decision regarding the
 inapplicability of the Paperwork  ,
 Reduction Act to regulations that
 require submission of health, safety, and
  other consumer information only to non-
  Federal (i.e., State aud 5ocal) entities.
 n. Final Reporting Thresholds

   EPA considered six options in
 analyzing potential reporting thresholds
 for the March 29,1989 NPRM. The
 options represented the full range of
 possible thresholds and were chosen
 because they allowed EPA to'isolate the
 effects of varying threshold levels on -
 each of three factors: (1) The number
 and types 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 faqtors are
 possible. For reasons of practicality,
 EPA analyzed six threshold options
 because they set bounds on the    -
 reasonable possibilities.
   Option 1 would set a 50,000 pound
 reporting threshold for hazardous
 chemicals except EHSs, which would
 have a reporting threshold of 500 pounds
 or the TPQ, whichever is lower.
   Option 2 would adopt the current
 reporting thresholds—10,000 pounds for
 hazardous  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 hazardous
 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 hazardous
  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.
    In the March 29,1989 NPRM, EPA
  proposed Option 2,  that is, to retain the
  reporting thresholds that have been
  applied -in the 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). In today's

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            Federal Register /  Vol. 55,  No. 144  /  Thursday,  July 26. 1990 / Rules and Regulations
                                                                     30635
final rule, EPA- is promulgating final
reporting thresholds at these same
levels proposed under Option 2.
  EPA received 138 letters containing
comments on the selection of final
threshold levels, some agreeing, with the
proposed thresholds, others endorsing
options for higher or lower thresholds,
and others suggesting that lower
thresholds be imposed after an interim
period at the proposed levels. EPA
believes the final reporting threshold of
10,000 pounds for non-EHS hazardous
chemicals  and 500 pounds, or the TPQ,
whichever is lower, for EHSs is
appropriate.
  In establishing today's final reporting
threshold,  EPA attempted to strike the
best balance between the amount of
information generated for the public and
the value of that information, and the
cost to SERCs, LEPCs, and facilities of
managing and providing the information;
In estimating the current value of the
information that would be provided
below the current threshold of 10,000
pounds, EPA considered several factors:
(1) The small number of requests from
the public for information on hazardous
chemicals present  at facilities below the
current threshold levels; (2) the limited
current use of Tier I and Tier II
information during emergencies and
planning exercises; and (3) the fact that
only twelve States have established
thresholds below the 10,000 pound level
for all covered hazardous chemicals.
  EPA understands that the amount of
resources devoted to data management
and the ability of SERCs, LEPCs, and
fire departments to manage information
vary considerably  across the nation. The
data management survey conducted by
EPA prior to the NPRM showed that in
some States and communities, however,
resources are extremely limited, and
LEPCs are having difficulties managing
the information currently being
submitted. EPA believes it is important
for these LEPCs hi particular to focus on
hazardous chemicals of known concern.
(i.e., those hazardous chemicals stored
in large quantities  and EHSs). The
Regulatory Impact Analysis supporting
the NPRM estimated there would be a
four-fold increase in the number of
hazardous chemicals that would be
reported at 500 pounds compared to the
10,000 pound threshold (from 976
thousand to 4.3 million), and almost a
two-fold increase (from 291,000 to
488,000) in the number of facilities
required to report.  Such a large increase
in reports could divert limited resources
and prevent proper evaluation and
planning around facilities with the most
hazardous situations.
  It .is not EPA's intent to restrict public
access to important information. Any
SERC or LEPC capable of managing the
additional information that would be
submitted at lower thresholds has the
authority to request such information
either on a facility-specific basis or may
obtain such information across the
board by establishing lower thresholds
hi its State or jurisdiction under State
law. EPA's primary concern is with the-
ability of many SERCs and LEPCs to
manage the additional information-that
would be submitted at lower thresholds.
By maintaining the 10,000 pound
threshold for hazardous chemicals other
than EHSs, and maintaining the 500
pound or TPQ threshold, whichever is
lower, for EHSs, EPA is ensuring that
the LEPCs that have limited resources
will focus those resources on the most
hazardous situations. That is not to say
that facilities that store hazardous
qhemicals in smaller quantities do not
pose a hazard to the community. Rather,
it acknowledges that with limited
resources, priorities must be established
to ensure the maximum level of
protection of human health and welfare
and the environment. The final
thresholds, identical to these currently
in effect, will not place any.additional
burden on SERCs and LEPCs and will
allow them to improve quality control
and use of the information in the
preparation of emergency plans.
  A number of commenters stated that
the threshold for all hazardous
chemicals should be 500 pounds because
higher thresholds would exempt many
facilities from reporting, depriving
communities of valuable information.
EPA believes that although EHSs
warrant special attention and lower
reporting thresholds, all hazardous
chemicals do not present an equal risk.
A lower threshold for EHSs, along with
the 10,000 pound threshold for other
hazardous chemicals, will provide
SERCs and LEPCs with information on
facilities that are likely to present the
greatest hazard to the community.
Today's thresholds do not deprive
communities of valuable information;
rather, they provide communities with
the most valuable information. If a
SERC or LEPC wants information not
automatically submitted under today's
final rule, a State or locality may
establish lower reporting thresholds
under State law.
  Although some States currently
require reporting at lower thresholds,
most do not, and many do not devote
sufficient resources to managing the
information that would be generated by
such a requirement The reporting
thresholds that EPA is promulgating in
today's final rule will provide a ceiling
threshold throughout the nation, without
placing a burden on SERCs, LEPCs, and
 fire departments that are not yet
 prepared to deal with the large volume
 of additional information that would be
 submitted at lower thresholds. In
 addition, facilities are required to
 provide information on chemicals
 present hi quantities below the reporting
 threshold if the SERC, LEPC, or fire
 department requests such information.
•This provision applies to all facilities,
 even those not subject to routine
 reporting under §5 311 and 312. Thus,
 facilities that use significant amounts of
 hazardous chemicals will not be
 excluded from reporting if the State and
 local agencies have the resources to
 process additional information and want
 to receive the information.
  The cost to SERCs and LEPCs and
 their ability to carry out requirements
-were carefully studied. EPA surveyed
 representatives from 12 SERCs, 32
 LEPCs, and 15 fire departments thought
 to have implemented effective
 information management systems or
 procedures under § § 311 and 312. The
 results of this survey are documented hi
 "Information Management by State and
 Local Governments under § § 311 and
 312 of the Emergency Planning and
 Community Right-to-Know Act",,
 December 1988. A copy of this document
 is in the docket supporting this
 rulemaking. Further, costs that would be
 incurred by SERCs, LEPCs, and fire
 departments under each threshold
 option were estimated in the
 "Regulatory Impact Analysis in Support
 of a Permanent Reporting Threshold
 under § 5 311 and 312 of the Emergency
 Planning and Community Right-to-Know
 Act of 1988", also found  in the
 rulemaking docket.
  Option 5 (a 500-pound threshold
 applied to all hazardous chemicals), for
 example, would result in almost twice
 the annual costs to SERCs, LEPCs, and
 fire departments as compared to the
 costs imposed by the 10,000 pound
 threshold. Based on current levels of
 resources available to LEPCs for all
 their planning and community right-to-
 know activities, EPA concluded that for
 many LEPCs, such a low threshold
 would create a substantial burden, and
 would tie up many of the necessary
 resources used for gathering, evaluating,
 and utilizing information received under
 current reporting thresholds. Given
 these increases in the information
 manageme'nt burden and in costs, EPA
 decided that a lower threshold was not
 feasible on a nationwide basis.
  Some commenters suggested that EPA
 reconsider a threshold of 50,000 pounds
 because this threshold would represent
 a cost-effective storage quantit,'-, and it
 is large quantity chemical stora je that is

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30633
Federal Register / Vc . 55. No.  144 / Thursday, Jiily 26. 1990 / Rules and Regulations
of most concern to emergency planners
EPA does not agree that 50.000 pounds
is the quantity of hazardous chemicals -
of most concern to emergency planner
LEPCs, under title IH, in fact, are
focusing their planning efforts on EHS.
and other hazardous chemicals stored i
quantities ranging from one to 10,000
pounds. Several LEPCs are currently
using the Tier H information in their
planning process. Furthermore, faciliti
are familiar with the 10.000 pound
threshold; only three of the 138
commenters on the threshold issue
favored raising the threshold above
current levels.
  Several commenters stated that it is
inappropriate to consider costs to
Industry in establishing threshold leve  ,
and that EPA's primary concern shoul
be maximizing the information availal „>
to State  and local authorities. In suppi
of their statement, these commenters
 cited a passage in the legislative histo
 of 5 § 311 and 312 in which
Representative Edgar addressed the
House floor. (Statement of
Representative Robert Edgar,
 Congressional record, October 8,198(
   EPA does not agree that costs to
 industry cannot be considered as one
 factor in selling reporting thresholds.
 There is no evidence that
 Representative Edgar was speaking ft
 the entire Congress. The remarks of a
 single representative in a House deba
 which is nowhere repeated or endorse
 by other legislators in olher floor
 debates or in the Conference Report
 cannot be interpreted to prevent EPA
 from considering the factor of costs in
 setting a final threshold. See, e.g.
 Consumer Product Safety Commissio.
 v. GTESylvania Inc., 447 U.S. 102. lie
 19 (1980); Chrysler Corp. V. Brown, 44':
 U.S. 281,311 (1979); In re Kelly, 841F.:
 908,912 n.3 (9th Cir. 1988). Neither the
  text of the statute nor the Conference
 Report  preclude the Administrator fro
  considering costs to Industry in
  determining thresholds. Consideratior
  of costs to facilities is relevant to
  Congress' goal of developing a
  manageable program for the collectio'
  and dissemination by localities of •
  information on hazardous chemicals.
  The Conference Report specifically
  indicates that the two-tier reporting v
  adopted in section 312 "[t]o minimize
  the burden of this reporting." It woul*
  be inconsistent with the purpose of tl
  two-tier reporting format for EPA to !
  prohibited from considering costs to
  industry In setting thresholds.
    EPA does not believe that it placet
  undue  amount of emphasis on costs
  industry or on cost effectiveness. EP<
  does believe that some consideratioi
                           costs to the SERCs, LEPCs, fire
                           departments, and industry is important
                           when evaluating the pros and cons of
                           different final thresholds, because, cost
                           estimates give EPA some measurement
                           of the impacts of the different thresholds.
                           upon government entities'that must run  • c
                           a variety of public programs a and t>n
                           facilities that face many requests for
                           information and demands for    ,
                           environmental control.
                             Nonetheless, EPA agrees that the
                           primary purpose of the reporting
                           requirements under sections 311 and 312
                           is to provide information to the
                           community. EPA's selection of the final
                           reporting thresholds was not based
                           primarily on cost considerations, but on ,
                           the extent of which a more, stringent  t'
                           standard could subvert the intent Of
                           sections 311 and 312 by overwhelming
                           the capability of SERCs, LEPCs, and fire
                           departments or manage and analyze
                           submitted information. EPA believes
                            that a manageable quantity of data that
                            can be supplemented by requests for
                          ,  additional information and the
                            imposition of lower State or local
                            thresholds when appropriate, better
                            serves the community's .right-to-know.
                              Several commenters suggested that
                            EPA use the proposed levels for  an
                            interim period and then impose a lower
                            reporting threshold determined after
                            further study. EPA considered
                          .  establishing reporting thresholds in
                            today's final rule for another interim
                            period, similar to the approach taken in ,
                            October 1987. EPA concluded, however,
                            that it was best to minimize the
                            uncertainty surrounding future reporting
                             obligations. Uncertainty tends to
                             entourage indecision and EPA is
                             anxious for SERCs, LEPCs, and fire
                             departments to have full information
                             regarding the parameters of their data
                             management obligations so that they
                          .   may optimally plan for equipment
                             purchases and labor needs. It is also
                             important to minimize uncertainties  for
                             facilities so that they may develop
                             optimal inventory tracking systems.  To
                             establish reporting thresholds under
                             sections 311 and 312 for another interim
                             period would not minimize uncertainty
                             and, therefore, would slow compliance
                             and data management decisions and
                             investments.                i
                               1A frequently repeated concern during the
                             Congressional debate was the necessity to take
                             account of the burden of a particular threshold upon
                             State and local government so that useful and
                             important information would not be "buried in an
                             avalanche" of paperwork. See statements of
                             Representatives Norman Lent (H9564), Gene Snyder
                             (H9564), Congressional Record, October 8,1988; see
                             also statements of Representatives Al Swift
                             (H9607), John Hammerschmidt (H9588),
                             Congressional Record, October 8,1986.
  An interim approach would only be
useful if EPA were to again study the
appropriate final threshold after that
interim period. At the present time, EPA
is not able to predict what the best
threshold will be several years in the
future. Although EPA recognizes that   •
data management capabilities may    . •"-'
improve over time as States and
localities devote greater resources to.
this program and data management
experience improves. EPA cannot
predict that this wi}l happen, nor what
thresholds-would be appropriate if it
does happen. Thus, EPA believes it is in
the public interest to choose a final    '
tlireshold at this time, based upon all
relevant information about the
capabilities of SERCs and LEPCs to data
and the usefulness of the information.
EPA will continue to analyze data
available from observations, reviews,
reports, and comments received bom
SERCs, LEPcsd, fire departments, the
community, and others responsible for
carrying out portions of this program. As
'these data indicate that change is
warantedi EPA will revise this rule
including the threshold provision.
   In the NPRM, EPA requested comment
 on whether the final threshold for EHSs
 should be 500 pounds or the TPQ, or
 simply the TPQ. EPA received
 comments supporting both options. In
 today's final rule, EPA is establishing ,,
 the final reporting threshold for EHSs at
 500 pounds or the TPQ, whichever is
 lower. That is, in today's final rule, EPA
 is maintaining the 500 pound cap as a
 reporting threshold for EHSs. Although
 EPA understands that there are some
 advantages to maintaining the TPQ as
 the sole reporting  trigger for EHSs (i.e.,
 consistency with the emergency.
 planning provisions of title III), EPA
 believes that  the different purposes of
 TPQs under sections 302 and 303 and
  reporting tlireshold under sections 311
  and 312 support having different
  relevant quantities. Under sections 302
  and 303, the presence at a facility of an
'  EHS above its TPQ leads to certain
  required emergency planning steps for
  facilities and LEPCs. Thus, the TPQ is
  set at a level that is appropriate for
  mandatory emergency planning in all
  cases across  the nation. On the other
  hand, the purpose of sections 311 and
  312 is more directly related to
  community right-to-know. In
  establishing final reporting thresholds
  under sections 311 and 312, EPA
  endeavored to provide as much
  information as possible to the
  community without overwhelming the
  information management systems used
  by SERCs, LEPCs, and fire departments.
  Because EHSs generally represent

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               Federal Register /  VoL 55.  No. 144  / Thursday. July 26.  1990 / Rule8 andRegulations
                                                                        30637
  chemicals of highest concern to the
  community, EPA wanted to ensure that
  communities receive a substantial
  amount of information on EHSs, even
  when planning is not statutorily
  mandated. SERCs and LEPCs can use
  section 311 and 312 data to determine
  whether,, due to site-specific factors,
,  emergency planning under section
  302(b)(2) would be appropriate. EPA
  believes it is most prudent to maintain
  the 500 pound cap on the reporting
  threshold for EHSs under sections 311
  and 312, to ensure that information on
  these hazardous chemicals is readily
  available to communities and
  emergency planners.

    EPA also considered establishing
  lower  thresholds for hazardous
  chemicals on the title HI section 313 list
  or on the CERCLA hazardous
  substances list. EPA decided not to
  impose these lower thresholds because
  the additional information that would be
  provided is generally available through
  other provisions of title in  and,
  therefore, the additional burden that
  would  be imposed on both industry and
  government was not warranted. For
  example, the section 311 and 312
  reporting requirements focus upon the
  presence of hazardous chemicals at the  '
  facility, requiring the owner or operator
  to submit lists of chemicals or MSDSs
  and, on an annual basis, an inventory of
'  those chemicals. Under section 313, title
 III already imposes inventory
 requirements upon owners  and
 operators of facilities that manufacture,
 process, or use designated quantities of
 the toxic chemicals on the section 313
 list.

   Similarly, title III already has •
reporting requirements that directly
employ the CERCLA hazardous
substances list. Under section 304,
facilities that release an RQ of any
CERCLA hazardous substance or EHS
must report the release to any SERC or
LEPC affected by the release. Detailed
follow-up reports must be submitted to' '
the affected SERC(s) and LEPC(s) by
any owner or operator required to report
section 304. The nature of the
information required in the initial and
follow-up reports bears some similarity
to the information required on an MSDS.
For example, the report must include the
chemical name or identity of any
substance involved in a release, any
known or anticipated acute or chronic
health risks associated with the
emergency, and where appropriate,
advice regarding medical attention
necessary for exposed individuals.
Therefore, establishing lower thresholds
for the section 313 chemicals or the list  .
of CERCLA hazardous substances did
  not appear to provide communities with
  enough new, necessary, or useful.
  information to justify the additional
  burden and the potential for confusion.
  III. Analytical Approach
    To determine the potential effects of
  the six options, EPA estimated the
  number of facilities in the U.S. that
  would be affected by each threshold, the
  average number of chemicals that would
  be reported per facility, the total number
  of reports that would be filed, the
  average pounds of chemicals reported
  per facility, and the total pounds of
  chemicals that would be reported in the
  U.S. The national estimates were
  developed by extrapolating from data on
  the amounts of hazardous chemicals
  that are present in specific localities. A
  Los Angeles, California database and
  the data from reports filed under the
  State and Federal Right-to-Know
  programs in New Jersey best satisified
  the criteria EPA identified for the study.
  The Los Angeles and New Jersey
  databases were well-suited to the
  threshold analysis because they include
  information submitted by. both
  manufacturing and non-manufacturing
  facilities, represent all sizes of facilities,
  and contain information'on the quantity
  of hazardous chemicals at facilities
  covered by the HCS regulations. (For a
  full discussion of the selection of
  databases, see chapter 2 of the
  Regulatory Impact Analysis in Support
  of a Reporting Threshold under sections
 311 and 312 of the Emergency Planning
 and Community Right-to-Know Act
 (RIA) in the docket supporting this
 rulemaking).
   Some commenters stated that the
 selected databases do not represent the
 national and do not accurately capture
 all necessary information. EPA
 acknowledges that the data from several
 States cannot capture all relevant
 national information. Nonetheless, EPA
 believes that the New Jersey and Los
 Angeles databases are the best readily
 available information, and that the
 methodology used in the  analysis
 adequately adjusts the data for the
 national population; EPA extrapolated
 from the selected databases to the U.S.
 population on'the basis of SIC codes.
 Also, EPA assessed the effects of the
 selection of the New Jersey and Los
Angeles databases by comparing
the extrapolated results with
 national statistics on chemical and
 petroleum production and use. Estimates
 of the number of pounds that would be
 reported as extrapolated from the two
 databases are reasonably close to
national statistics. Moreover, the
estimated number of affected facilities
and estimated costs of the rule
generated through independent analyses
   of the two databases are similar,
   notwithstanding the differences in the
 •  industrial facilities represented and in
   the area covered (a State versus a
   metropolitan area) by each database.
   EPA believes, therefore, that the two
   databases used to estimate the potential
   effects of different threshold options
   provided adequate information and
   generated accurate results.

    Several commenters stated that EPA
   should establish different threshold
   levels for different hazard categories.
   EPA considered establishing risk-based
   reporting thresholds for all the
   hazardous 'chemicals subject to sections
   311 and 312, taking into consideration
   the hazards posed by each chemical or
  group of chemicals, the potential for a
  significant release, and the potential
  exposure of surrounding populations. As
  EPA stated in its October 15,1987 final
  rule and again in the March 29,1989
  proposed rule, such as hazard-based
  approach was.not feasible, given the
  tens of thousands of hazardous
  chemicals covered under sections 311
  and 312 and the variety of locations and
  situations in which hazardous chemicals
  may be stored. Existing methodologies
  that can be used to evaluate risk
  associated with specific hazards are not
  appropriate approaches for this
  rulemaking because they are site or
  chemical specific. For example, use of
  the,CERCLA Hazard Ranking System
  (HRS) was recommended by one
 commenter. The HRS is innappropriate
 for determining reporting threshold
 levels under sections 311 and 312
 because it is site-specific, and site-
 specific exposure pathways must be
 known to estimate risk levels/Although
 chemical-specific or site-specific
 information cannot be considered across
 all the chemicals covered under sections
 311 and 312, it can be considered by
 local authorities on a site-specific basis.
 EPA believes, therefore, that exposure
 potential and site characteristics are
 more appropriately considered by
 LEPCs in their planning processes  than
 by EPA in establishing reporting
 thresholds.

   One commenter suggested that the
 analytical approach should consider the
 synergistic and cumulative effects of
 hazardous chemicals. EPA agrees that
 ideally such effects, as well as chemical-
 specific hazards, should be considered
 in establishing reporting thresholds.
 There is, however! no existing analytical
 model that can be used to evaluate these
 effects over the number of hazardous
 chemicals for which MSDSs must be
prepared. EPA believes that the
analytical approach used to eval jate the
reporting threshold options in to; lay's

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30638
Federal  Register / VoL 55, No. 144  / Thursday. July 26. 1990 / Rules and Regulations
final rule resulted in final reporting
thresholds that will provide information
to local communities about hazardous
chemjcals most likely to pose the
greatest hazard, without overwhelming
their ability to manage and use the
Information.  »
  One commenter questioned EPA's use
of the Acute Hazardous Events (AHE)
database because it does not include
incidents that result in chronic effects or
environmental damage. EPA would like '
to clarify that the AHE data were used
primarily to estimate how data that
would be received at alternative
threshold levels relate to facilities
involved in accidental releases that led
to serious acute effects. The data show
that most events sufficiently severe to
cause human casualties would be at
sites subject to reporting under the
threshold levels being promulgated
today. The accident data in the AHE
database provide information primarily
on acute effects, but relatively little
Information on chronic effects or
environmental damage associated with
the different reporting thresholds. EPA,
however, recognizes the importance of
chronic effects and environmental
damage and, therefore, requires   -
notification of a release of a hazardous
substance  or EHS that equals or exceeds
an RQ. When the National Response
Center, SERC, and LEPC are notified of
a hazardous substance release, the
responsible government authority
evaluates the risks associated with the
release, considering acute as well as
 chronic and environmental effects.
   A number of commenters challenged
EPA's comparison of the costs and
 benefits of the alternative reporting
 thresholds. Because EPA could not
 quantify the benefits attributable to
 each threshold option, the commenters
 claimed that EPA's conclusions  were  ,
 unsupported. EPA does not agree. Based
 on its survey of SERCs, LEPCs, and fife
 departments with relatively advanced
 data management systems, EPA
'believes that many of these State and
 local authorities, do not have the present
 rapability to use the additional
 information that would be generated at
 thresholds lower than those established
 by today's final rule. For each given
 community, however, the cost benefit
 comparison will vary. EPA believes it is;
 most prudent, therefore, to establish
 Federal thresholds at a level that will
 maximize the net benefits for most
 communities, while preserving the rights
 of States and local governments to
 develop more stringent reporting
 requirements if they believe that the
 benefits of receiving more information
 than that submitted under the thresholds
                           in today's rule are greater than the
                           incremental costs.'  •     :        :.
                             Several commenters stated that EPA
                           did not consider or properly value
                           certain/benefits, such as accident
                           prevention. EPA is aware that accident
                           prevention can be a direct outgrowth of
                           reporting, due to a'consequent increased
                           awareness on the part of industry and
                           the local community' of the presence of
                           reported hazardous chemicals. Such
                           benefits, however, are difficult to ,
                           quantify and "could be considered only
                           in a qualitative sense.
                             Two commenters stated that costs
                           were not accurately considered because
                           the projections of'the number of affected
                           non-manufacturers are underestimated.
                           Although the  number of affected
                           facilities and chemical reports jn
                           specific industry categories or sectors
                           (such as non-manufacturing) may be
                           under or overstated in the Regulatory
                           Impact Analysis, the sensitivity analysis
                           supporting today's rulemaking indicates,
                           that the aggregate quantity of chemicals
                           covered under the zero threshold,
                           including petroleum, is reasonably close
                           , to national-projections' of chemical and
                           1 petroleum use derived from Census
                           data. In addition, the Los Angeles and
                           New Jersey databases yield comparable
                           total cost estimates despite significant
                           differences in the underlying numbers of
                           manufacturing and non-manufacturing
                           facilities. ConsequentlyrEPA believes
                           that the potential inaccuracies in the
                           analysis caused by extrapolation are'not
                           significant enough to affecjtthe decision
                           to select today's final reporting
                           thresholds.
                           IV. Other Issues   '      ,-'.,       .
                           A. Multi-establishment Facility
                           Reporting ~            »
                              In the March 29,1989 NPRM, EPA
                           proposed a clarification to the reporting
                           requirements for multi:establishment  ,
                           facilities. In particular, in response  to a
                            concern that owners of certain multi-
                           , establishment facilities, such as  • .  >'"
                            industrial parks, do not have sufficient
                            knowledge about specific hazardous
                            chemicals located at their facility to
                            comply-with the title in reporting
                           ' requirements, EPA proposed a
                            regulatory provision that would have
                            clarified how establishments at such
                            facilities may report as facilities.'The  ,
                            Agency has decided not to promulgate a
                            final rule on multi-establishment
                            reporting at this time. After deceiving
                            substantial public comment on this
                            provision, EPA needs additional time to
                            consider and develop th6 appropriate
                            regulatory approach to various issues
                            connected with multi-establishment
                            reporting. EPA does not, however,
 believe it is appropriate to delay the
 promulgation of final thresholds while
 the Agency .considers multi-
 establishment issues. For this reason,
 today's final rule does not include a
 provision addressing multi-
. establishment facilities. .

 B. Tier I and Tier II Forms

   EPA has made several small
 modifications to the Tier I and Tier H
 forms and instructions in response to
 commenters' suggestions and concerns.
 Some suggestions were not accepted for •
 reasons stated in the Response to
 Comments Document. The modifications
 in today's final rule include adding
 check boxes to indicate that the
 information is, identical to that,
 submitted in the previous year; lines on
 the T}er II form for listing the EHS
 chemical name(s} present in a mixture;
 optional check boxes for each
 hazardous chemical reported to
 facilitate data management at the Stale
 and local level; andiseveral other small
 changes.
    Another change made in today's final '
 rule involves the certification statements
 on the Tier I arid Tier II forms. EPA has
 received several requests that the Tier II
 form  be modified to allow owners and
 operators of facilities to place an •'
 original signature only on the first page
 of a multi-page submission. EPA agrees
" that an original signature need not be"
 placed on every page of the Tier II ,
'• submission so long as the owner or
 operator certifies.that he or she has
 reviewed every page of the submission.
 Therefore, the instructions for the
 certification on the Tier II form have
  been modified to allow the owner or
  operator to place an original signature
  only  on the first page of the submission,
  provided that (1) submissions to the
  SERC, LEPC, and fire department each
  contain an original signature on at least
  the.first page, [2] the total number of
 i 'pages in the submission is inserted in
  the space provided in the certification
•  statement, including all confidential and
'  non-confidential sheets and all       l
  attachments, and (3) subsequent pages
  in the submission contain a photocopy
  of the original signature or a signature
  stamp, as well as the date that the
  original signature was affixed to the first
  page and the total number of pages in
  the submission. Similarly, the Tier I
 .•certification instructions have'been
  modified to state that the owner or
  operator certifies that all information in
  the submission, including all
  attachments, is true, accurate, and
  complete; the total number of pages in
  the submission must be indicated in the
                                                                                                                           _

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            Federal Register / Vol. 55, No. 144 / Thursday. July 26, 1990  / Rules and Regulations      30639
space provided in the certification
statement.
  Three commenters stated the EPA
should retain OSHA's Hazard
Communication Standard (HCS) list of
exemptions from coverage in the
instructions, along with the comparison
of EPA's hazard categories with OSHA's
HCS hazard categories to reduce the
time necessary to comply with sections
311 and 312. EPA does not agree that
including the list of OSHA's HCS
exemptions shortens the time required
for compliance. By including HCS
exemptions on previous Tier I and Tier
II forms, EPA believes that it might have
appeared to the regulated community
that EPA, SERCs, and LEPCs were the
appropriate authority for interpreting the
scope of the HCS. The most appropriate
authority for interpreting the HCS is
OSHA. Reporting time for both title III
and the HCS can best be shortened  by .
the  method set forth in the instructions
to the title III reporting forms, which
refers parties to the OSHA HCS. EPA,
however, does agree that it is necessary
to retain the OSHA—EPA hazard
category comparison because MSDSs
are  prepared based on OSHA's HCS
hazard categories.
  Two commenters suggested that EPA
reconsider the use of the Tier I forms
because they are too general an they
place an undue burden on industry and
local government authorities. Although
EPA agrees that the information
submitted on the Tier II form is more
useful, the statute allows owners and
operators of facilities the option of
submitting Tier I or Tier II forms, unless
the  Tier II form is specifically requested
by a SERC or LEPC. See section
312(e)(l) of title HI; H.R. Conf. Rep. No.
962, 99th Congress, 2d Sess., 290
("Conference Report"). States, however,
may develop legislation requiring
submission of Tier II forms, and some
have already done so. Also, EPA
continues to encourage submissions of
Tier II forms unless SERCs, LEPCs, or. .
fire departments have indicated a
preference for Tier I forms.
  Another commenter stated that EPA
should discourage States from creating
their own special report forms which
add to the costs of industry compliance,
especially if changes to the form make
the  computer software used to prepare
the  form obsolete. EPA does not agree
that it should discourage States from
developing their own forms or tailoring
Tier I and/or Tier II to meet particular
needs or to avoid overlapping Federal
requirements. EPA, however, does
encourage States to consider industry
concerns in modifying the inventory
forms. When EPA makes format
changes, it generally considers the
burdens such revisions impose. The
changes made to the Tier I and Tier II
forms in today's final rule have been
determined to be necessary,
notwithstanding potential costs to
industry.

C. Subsurface Operations
  In response to many questions about
the applicability of title III regulations to
subsurface operations, EPA proposed in
the March 29,1989 NPRM to revise the
regulatory definition of facility to clarify
that subsurface structures that are part
of man-made operations, including open
surface mines, are included within the
statutory definition of facility and,
therefore, are subject to title III reporting
requirements.
  Twenty commenters opposed and
three commenters supported the
proposed revision to the definition of
facility to include subsurface structures.
A number of the commenters stated that
the revision would improperly expand
the definition to include facilities and
substances exempt from the
requirements of some sections of title III.
EPA does not agree that the revised
regulatory definition of "facility"
changes reporting requirements or
negates exemptions contained in title in
statutory provisions. The regulatory
definition is revised today to include
only those subsurface  structures that are
man-made or natural structures into
which hazardous chemicals are
purposefully placed or removed through
human means such that the structures
function as a containment structure. If
an activity or facility is exempt from
certain tide III requirements, today's
regulatory definition does not alter that
exemption. For example, the revised
regulatory definition of "facility" does
not alter the applicability of the
transportation exemption. If natural gas
is stored at a production facility, the
product, is subject to title III
requirements; if natural gas is being
stored incident to transportation, then it
comes within the title III exemption and
is not subject to title III reporting
requirements.
  As a second example, one commenter
noted that because subsurface mining
operations are not subject to OSHA's
HCS, they are also not subject to
sections 311 and 312 of title IE. EPA
agrees  that, although a mining operation
may come within the definition of the
term "facility," it is not necessarily
within the scope of the OSHA HCS. If
the operation is not subject to the OSHA
HCS, it is not subject to the
requirements of sections 311 and 312.
The fact that a facility  does not come
within the scope of the OSHA HCS is
  not relevant, however, to the emergency
  planning and release notification
  requirements of sections 302,303, and
  304. Thus, if there are EHSs at a mining
  facility in underground containment
  structures hi quantities equal to or
  exceeding TPQs, the owner or operator
  is required to report them under section
  302 and to participate in the community
  planning process as required under
  section 303. Also, if the facility
  produces, uses, or stores a CERCLA
  •hazardous substance or an EHS, and
  releases the hazardous substance or
  EHS in a quantity that equals or exceeds
  the applicable RQ, the release must be
  reported to the SERC(s) and LEPC(s)
  likely to be affected by the release, and
  to the National Response Center in the
  case of'a CERCLA hazardous substance.
  One commenter stated that the revised
  definition could result in daily reporting
" of releases from mining operations. If
  releases of hazardous substances or
  EHSs from mining operations at or
  above reporting levels occur daily, they
  must be reported daily. The commenter
  should note, however, that recurring
  releases may qualify for reduced
  reporting under CERCLA section
  103(f)(2) if they are "continuous" and
  "stable in quantity'and rate," or they
  may be exempt from reporting
  requirements if they are federally
  permitted under CERCLA section
  101(10). (See the NPRM on reporting of
'  continuous releases (53 FR12868; April
  19,1988) and the NPRM on federally
  permitted releases (53 FR 27268; July 19,
  1988)).
   Three commenters opposed including
  naturally occurring materials such as
  natural gas in the calculation of a
  facility's inventory for comparison with
  the TPQ under section 302 because
  natural gas production is already
  governed by regulations under other
  authorities, storage and withdrawal  .
  operations do not impose a hazard to
  nearby populations, and it would be
  difficult to estimate quantities of natural
  gas "present" at a facility. EPA does not
  agree. Any substance placed in, or being
  removed from, a subsurface location by
  human intervention, such as mining, is
  subject to title III requirements and,
  therefore, must be included in a facility's
 inventory. EPA understands that many
 industries must comply with regulations
 and safety standards under other
 authorities. Nevertheless, compliance
 with such requirements does not fulfill
 the purpose of title III which is to
 provide the public with information on
 the chemicals present at facilities in
 order to prepare the community to
 respond when hazards are not
 controlled. Compliance with c *Jier

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30640      Federal Register / Vol. 55, No. 144 / Thursday, July 26,  1990 / Rules and Regulations
regulations, therefore, does not relieve
the regulated community from the
responsibility to comply with the
requirements of title ffl. Further, each
owner or operator must use the best
information available, knowledge of the
operating processes of the facility, and
engineering Judgment to estimate the
quantities of hazardous chemicals
present in subsurface containment
structures. Reporting facilities should be
aware that estimates need not be  exact;
facilities are only required to estimate
which among many broad ranges
indicated on the Tier I and Tier n forms
match their inventories.
D. Treatment of EHS Mixtures in
Reporting Threshold Calculations
  In the March 29.1989 NPRM, EPA
proposed new regulatory language   .
addressing when and how facilities
must report EHSs that exceed their
applicable reporting threshold under
sections 311 and 312 when the EHSs are
present in different mixtures.
  Section 311(a)(3) of title III provides
facilities with the option of reporting on
a mixture as a whole or reporting on
each hazardous component of the
mixture. In some instances, reporting by
component could result in the filing of
fewer reports. Where components of a
mixture are not present at a facility in
threshold quantities, a facility would not
be required to submit a report under
sections 311 or 312 even though the
quantity of the mixture itself is present
in a threshold amount. Similarly,
reporting by mixture could occasionally
result in fewer reports when the
mixtures are below threshold quantities.
In the March 29,1989 NPRM. EPA  '
proposed a new provision, 5 370.28(b)(3),
related to reporting of EHSs in mixtures.
This provision was designed to ensure
that EHSs would be reported regardless
of the option of reporting by mixture or
by component EPA believed that the .
importance of EHSs to emergency
planning and community right-to-knbw ".
warranted a requirement that these
chemicals be reported, in some fashion,
whenever they are present at facilities
fn above-threshold quantities. (See 54
FR12899).
   In proposing regulatory language to
address the special question of reporting
EHSs even when* EHSs are present in
mixtures, the Agency did not take away
or in any way alter the option provided
in the statute of reporting on mixtures as
a whole or by hazardous component.
Proposed f 370.28(b) required facilities
to report the presence of EHSs at their
facility if they were present in above-
threshold quantities, but provided
facilities with the option of reporting
those EHSs either as components of
 mixtures or reporting the mixture as a
 whole. Proposed § 370.28(b) stated:
   (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.
 To supplement this regulatory language,
 EPA proposed the addition of a box on
 the Tier n form whereby facilities that
 chose to report a mixture as a mixture
 (rather than by component) would be
 required to check whether the mixture
 contained an EHS.
   Some 'commenters did not understand
 EPA's intent in proposing these
 amendments, others stated that the
 proposed regulatory language was
 confusing,  and others questioned the
 utility of the information received. As a
 consequence, EPA is promulgating
 language in 5 370.28(c) to clarify the
 reporting requirements in § 370.28. None
 of the comments received led the
 Agency to  change the reporting
 requirements as propdsed.
   Stated as simply as possible, § 370.28
 requires facilities to aggregate each
 EHS, whether it is present as a mixture
 component or in its pure form.
 Aggregation of non-EHS hazardous
 chemicals present in mixtures and in
 their pure form is not required, but may
 be done if a facility is reporting ell
 hazardous chemicals in mixtures by , ,
 component If a facility has an EHS, and
 Jts quantities within mixtures and in its
 pure form equal or exceed its applicable
 threshold,  the facility must report that,
 EHS. Once the necessity of reporting
 that EHS is established, the facility has-
 two primary choices in the manner in'
- which it reports this EHS. The facility
' may either report the EHS separately as
 '' a-component of one or several different
.' mixtures,'or may report the EHS by
 reporting the mixture of which the EHS
 is a part. For example, if five mixtures
 each contained lOttpounds pf methyl
 mercaptan (an EHS), reporting could be
 accomplished by reporting 500 pounds
 of m,ethyl mercaptan (reporting by
 component) or'by reporting the five
 mixtures separately.
    EPA Is requiring that only EHSs be
 aggregated; aggregation of non-EHS
 hazardous chemicals in different
 mixtures at a facility is not required.
  Congress* intent that aggregation be
 permitted in setting thresholds is clear
 .from the Conference Report. The
 requirement to aggregate EHSs under
  section 311 is  consistent with the
 requirements under section 302 of title
•  III. EPA views EHSs to be a special
  class of hazardous chemicals. EPA
  anticipates that LEPCs will request
  information on EHSs present at,a
  facility, and routine reporting of that
  information under sections 311 and 312
  should facilitate the planning process.
  EPA is not requiring the aggregation of
  non-EHS hazardous chemicals at
  facilities because of the potential burden
  that would impose on facilities, because
  EPA has determined that data on EHSs
  generally have greater emergency
  planning and right-to-know value to
  communities than do data on other
  chemicals, and because information on
  those hazardous chemicals is not
 1 required under section 302 of title III.
  The aggregation requirement of this rule
  maintains the option granted in the title
  III statute that owners or operators of
  facilities be able to report either by
  component or by mixture. The
  requirement that only EHSs be
  aggregated across mixtures in order to
  determine whether a threshold is met
  maximizes the information about one
  group of hazardous chemicals (i.e.,
  EHSs), while maintaining a
  manageable program.
    The following describes how to report
  above-threshold EHSs on a Tier II form
  where the facility is reporting sonie.
  mixtures as a mixture and some
  mixtures by component. When filling out
  a Tier n form and reporting some
  mixtures as mixtures and .some by
  component, the facility must do two
  thingSi First, for any mixture containing
  the above-threshold EHS that the
  facility is reporting by component, the
  •facility must report the above-threshold
  EHS separately by chemical description,
  physical and health hazard, inventory
  and storage code and location. When
  reporting inventory information
  (maximum and average daily amount
;  and number of days on-site), the facility
  .should calculate, or refer to those   (
•  quantities of the EHS that are present
  only hi the mixtures that the facility is
  reporting by component; the1 facility •
  need not include within these
  'calculations'the'amounts of the above-  .
  threshold EHS that are contained within
  mixtures that the facility is reporting as
  a mixture. Similarly, when reporting the
  storage code and location for the above^
'  threshold EHS, the facility should list all
  storage codes and locations of any
  mixture containing the above-threshold
  EHS that the facility is reporting by
  component; the facility need not refer to
  the location or storage code of any
  mixture containing the EHS that the
  facility is reporting as a mixture.
     Second, for any mixture containing an
  EHS that the facility is reporting as a

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               Federal Register / Vol. 55. No. 144 / Thursday. July 26. 1990 / Rules and Regulations       3Q641
   mixture, the facility must check the box
   labelled "EHS" to indicate that the
   mixture contains an above-threshold
   EHS, and must also write the name of
   the above-threshold EHS(s) contained
   within the mixture on the line provided.
   When filling out the inventory
   information, the facility should include
   in the calculation only those quantities
   of the same mixture and should follow a
.   similar procedure when filling out the
   storage code and location information.
    One commenter stated that EPA
   should establish a minimum percentage
   of a mixture below which EHS
   components would not have to be
   aggregated for reporting. EPA agrees
   and directs the commenter to the  section
   on "calculation of quantity" at 40 CFR
  part 370.28, which states that only
  components greater than 1 percent, or
  0.1 percent for carcinogenic components,
  are reportable. Nevertheless, if the
  owner or operator of a facility suspects
  that an EHS ia present in a mixture, the
 • entire mixture should be reported
  because the identity and quantity of the
  EHS is unknown and, therefore, cannot
  be aggregated with any accuracy with
  other quantities of EHSs present at the
  facility.
    One commenter stated that the
  requirement to aggregate EHSs in
  mixtures should only be applied when
  the EHS retains some of its
  characteristics in the mixture. EPA does
  not agree with this comment because
  determining whether an EHS retains its
  characteristics hi a mixture cannot be
  easily done. Also, EPA believes that
  only rarely would an EHS be a
  component of a mixture in a
  concentration greater than 1 percent or
  0.1 percent if carcinogenic and not retain
  its characteristics. Thus, if a mixture
  requires an MSDS, the owner or
  operator should consider the component
 EHSs in making threshold calculations.
   One commenter suggested that section
 370.28 be redrafted to provide that only
 those hazardous chemicals or "extra- • •
 hazardous" substances in the same kind
 of mixture be aggregated to determine
 whether the reporting threshold is
 exceeded. EPA disagrees. The
 aggregation requirement applies to
 emergency planning notification under
 section 302 as well as to the inventory
 reporting requirements of sections 311
 and 312. EPA does not believe that
 modifying the aggregation requirement
 as the commenter suggests would
 adequately support planning for
 emergencies  involving EHSs. Also.
 hazardous chemicals found in different
 mixtures can have synergistic reactions.
 EPA believes that it is especially
 important, therefore, that EHSs present
  at a facility be aggregated across all
  mixtures.
    Another commenter urged that, for
  purposes of determining reporting
  thresholds, the hazardous components
  of crude oil be excluded. EPA sees no
  reason to exclude components of crude
  oil from the requirement to aggregate
  EHSs for purposes of determining
  whether reporting thresholds have been
  reached. Any EHS component of crude
  oil must be aggregated unless the crude
  oil is reported as a mixture. Non-EHS
  components of a mixture, including
  crude oil, need not be aggregated.

  E. Implementation of Title III by Indian
  Tribes on Indian Lands

   In today's rule EPA is promulgating its
  proposal in the March 29,1989 NPRM, to
  designate Indian Tribes  as the
  implementing authority for title ffl on all
  lands within "Indian Country."
  Accordingly, the chief executive officer
  of the Tribe irresponsible for the
  functions of the State governor under
  SARA section 301, including the
  appointment of an emergency response
  commission for the Tribe. This tribal
  commission would then be responsible
  for carrying out the duties of the SERC,
 including the designation of local
 emergency planning districts and the
 appointment of an emergency planning
 committee for each district. The district
 emergency planning committee will
 carry out the same functions as a LEPC
 in the local emergency planning districts
 designated by a SERC. Also, for
 facilities located within Indian country,
 the fire department run by the Tribe will
 be the fire department designated to
 receive section 311 and 312 reports.
 Finally, section 313 of title HI requires
 that the State governor 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
 Indian Tribe.
  Several commenters endorsed EPA's
 proposal to recognize tribal sovereignty
 over environmental protection on Indian
 lands and to provide for tribal  '
 implementation of title III in a manner
 equivalent to implementation by State
 and local governments within their
 respective jurisdictions.
  One commenter stated that Congress
 did not intend title in to be implemented '
 separately on Indian lands by Indian
 Tribes because title III lacks any
 reference to Indian Tribes or lands and
 the title HI definition of the term "State"
 does not include Indian Tribes. Two
 commenters asserted that the Indian
Tribes activities in implementing title IH
should be similar to the activities of the
  LEPCs and come under the authority of
  a SERC.
    EPA does not agree that
  implementation of title in on Indian
  lands should be under the authority of a
  State or SERC. Although title III lacks an
  explicit reference to Indian Tribes or to
  the implementation of the Act on Indian
  lands, EPA believes, based on the
  legislative history of SARA, that
  Congress clearly intended that the
  protection pf title III apply to all persons
  inhabiting Indian lands. Title in
  emphasizes emergency response
  planning and chemical awareness at'the
  local level. When applied to Indian
  lands, this supports implementation of
  the Act by tribal authorities. EPA
  believes that in the absence of clear
  legislative intent ofl who should
  implement the statute on Indian lands,
  EPA has the discretion to designate the
  Indian Tribes as the implementing
  authority. Also, under applicable law on
  Indian jurisdiction. States are generally
  precluded from exercising jurisdiction
  over Indians in Indian country absent a
  clear expression of congressional intent
  to the contrary. Nothing in the language
  or legislative history of title III suggests
  that Congress intended to subject Indian
  Tribes to State regulation on Indian
  lands, especially in an area of such
  importance to the health, safety, and
  welfare of the Indian community as
  chemical emergency response planning.
   One commenter stated that owners or
  operators of facilities on Indian lands
  should report to State and local officials
 to avoid hindering effective emergency
 planning and response. EPA does not
 believe that Indian tribal jurisdiction
 over Indian lands will hinder effective
 implementation of title III. Effective
 emergency response planning requires
 that no more than one entity be
 responsible for implementing the
 program in a given area. While States
 may be unable to exercise jurisdiction
 over Indian-owned facilities in Indian
 country, Indian Tribes generally can
 exercise civil regulatory authority over
 Indians and non-Indians on Indian lands
 with regard to matters affecting the
 health and welfare of the Tribe. (See
Montana v. United States, 450 U.S. 544,
 566 (1981).) This authority is sufficient to
 fully implement the requirements  of title
ra.
  One commenter expressed concern
that releases from facilities located on
Indian lands may affect areas outside
Indian jurisdiction, thereby requiring a
State or local response. EPA believes
this problem is endemic to any
emergency response scheme that relies
on reporting to local officials. Bv
definition, any release has the p itential

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30642      Federal Register / Vol.  55. No. 144 / Thursday, July 26, 1990 / Rules and Regulations
to affect areas outside the boundaries of
the local jurisdiction and, therefore, to
affect more than one local jurisdiction or
more than one State. This concern was
recognized in the legislation under
section 304(b](l] which requires that
notice be provided to all SERC{s) and
LEPC(s) likely to be affected by the
release. Response to such releases can
be handled in the same way that cross-
jurisdictional releases from facilities
outside Indian lands are handled, by
cooperation between the authorities of
the affected jurisdictions. EPA
encourages Indian Tribes, SERCs, and
LEPCs to participate in joint planning
and cooperative efforts  to prepare for
such potential emergencies.
  Four commenters urged EPA to
promulgate regulations to protect Indian
Tribes that choose not to develop title ffl
program capabilities and to ensure that
there are no gaps in the health and
environmental protection program
established by title m. Under title m,
the Federal government is not
responsible for implementation prior to
delegating responsibility to respective
State, local, or Tribal authorities. The
statute requires State and local
authorities to carry out the
recordkeeping and emergency planning
functions of title III. EPA's responsibility
is to establish the program by
promulgating necessary regulations, and
by providing guidance, training, and
technical assistance. EPA believes that
Indian Tribes are the appropriate
government authority for implementing
title III in Indian country and, therefore,
Tribes have the same obligations as
States and local authorities under the
law. EPA, however, does recognize its
obligation, consistent with EPA policy,
to help Tribes carry out their.
responsibilities, and intends to provide
guidance] training, and technical
assistance tailored to the needs and
_capabilities of Indian Tribes.
   Although endorsing EPA's approach,
several commenters questioned whether
Tribes have sufficient resources, to carry
out the implementation of title HI.' EPA
recognizes that resources are limited on
Indian lands, but believes that basic
emergency planning can be
accomplished with minimal resources.
To satisfy basic requirements, tribal
authorities must develop emergency
plans and establish a mechanism to
disseminate to the public information
submitted by facilities under the
reporting requirements of the plan. The
Tribe is not required to develop the
 capability to respond to all releases of
 hazardous material. In  many cases,
Tribes, like rural or small communities,
 will not be able to equip, train, and
maintain a hazardous material response
capability for significant releases.
Nonetheless, Tribes can determine how
they will deal with releases until
assistance can be obtained.
  One commenter asked whether EPA
would phase in title m implementation
on Indian lands and establish new
deadlines for submitting MSDSs and
emergency inventory forms and for
preparing emergency plans. EPA is not
establishing new regulatory deadlines in
today's final rule. EPA does not believe
that there is an apparent programmatic
benefit to establishing new deadlines. It
is imperative that facilities on Indian
lands that have not complied with
reporting provisions begin as soon as
possible so that Tribes can assess their
readiness to respond to chemical
mishaps and to work with owners and
operators of facilities to reduce the
potential of their occurrence.
Communities, including Indian Tribes,
therefore, should not delay in identifying
and addressing these risks.
  In the March 29,1989 NPRM, EPA
noted that any Tribe may enter into a
cooperative agreement with another
Tribe, or with the State(s) within which
its lands are located to achieve a
workable title ni program. EPA also
solicited comment on whether it should
institute a formal procedural mechanism
for such cooperative agreements. Nine
commenters supported instituting a
mechanism for cooperative agreements
and recommended that public notice of
such agreements be  published. EPA
agrees that a formal procedural
mechanism for cooperative agreements
would be useful to facilitate the
exchange of information. The final rule,
therefore, requires any Tribe that has
entered into a cooperative'agreement
with a State, to submit a copy of the
signed agreement to the EPA Regional
office in the EPA Region where the Tribe
end State are located, within 60 days of
signing the agreement. EPA will
annually publish a list of any new
agreements and copies of the
agreements will be available from EPA
Regional offices.
   Another commenter requested that
EPA define "cooperative agreement"
and provide specific guidance for the
development of such agreements. For
purposes of title III,  cooperative
agreement is any formal arrangement
reached by States and Tribes that meets
 the needs of the  parties to the agreement
 and is entered into with full knowledge
 and consent. Each agreement is
 expected to be unique and to address
 the specific needs of the parties. Tribes
 may  tailor cooperative agreements to
 authorize a State to implement
provisions of the title ID program that
the Tribe is not prepared to undertake.
EPA will endeavor to provide technical
assistance on developing cooperative
agreements to Tribes and States, but
neither this assistance nor the
publication of lists of parties to
cooperative agreements should be
considered an approval process. Tribes,
like States, may enter into cooperative
agreements without Federal oversight.

F. Miscellaneous Issues

  Two commenters urged EPA to
evaluate ways to minimize the
paperwork burden. One commenter
suggested that the timeframe for
reporting status changes at facilities be
changed from 90 to 180 days. Another
commenter suggested that the option
under section 311 to submit MSDSs
instead of a list of chemicals should be
eliminated. Section 311(d)(2) of SARA
tide III specifies the timeframe for
reporting updates under section 311. The
option to submit MSDSs or chemical
lists is also specified in the statute.
States and localities, however, are not
prohibited from acting under authority
of local law and developing
requirements stipulating the submission
of lists.
  Several commenters requested  -
exemptions from reporting requirements.
One commenter requested an exemption
from a hazardous chemical that remains
on-site less than 90 days* Another
commenter stated that a remote facility
served solely by a volunteer fire
department should be exempt from
reporting requirements. EPA is not
granting any additional reporting
exemptions in today's final rule. EPA
does not agree that a hazardous
chemical on site for less than 90 days
should be exempt from section 311 and
312 reporting requirements. It was the
intent of Congress to provide the public
with access, to information on all
hazardous chemicals present at
facilities, without regard to the length of
time they are on site. Similarly, EPA
believes that facilities should be subject
to reporting requirements regardless of
location. Information about such
facilities could be very useful in
emergency response situations.
   One commenter stated that the .
exemption from reporting for "articles"
in sections 311 and 312 should also
apply to section 302 reporting. EPA does
not believe that Congress intended that
 there be such an exemption from the
planning notification requirements"
 under section 302.
   Another commenter stated that small
 laboratories  used for process analysis
 should be exempt from the reporting

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            Federal Register / Vol. 55, No. 144 / Thursday,  July 26. 1990 / Rules  and Regulation      30643
requirements under sections 311 and
312. EPA agrees that such laboratories
are exempt from section 311 and 312
reporting so long as they are exempt
from the OSHA Hazard Communication
Standards (see 52 FR 38347; October 15,
1987).
  One commenter asserted that the rule
should state that transporters should
report releases to the National Response
Center (NRC), which would notify the
appropriate SERC, which would, in turn,
notify the appropriate LEPC, Thus,
transporters would not be required to
notify SERCs and LEPCs directly. EPA
does not agree that the NRC should
make such notifications for transporters.
The statute requires transporters to
notify SERCs and LEPCs directly. The
NRC is developing a computer link,
however, that would facilitate direct
notification of SERCs as well as EPA
Regional offices of a release notification.
When a link is fully operational, EPA
will consider modifying today's
regulation to allow the NRC's
notification of the SERC to partially
satisfy the reporting requirements under
title HI, section 304. Until such time,
however, facilities and transporters
must notify SERCs and LEPCs directly
of a reportable release.
  Several commenters requested that
EPA consider using the metric
designations required in the Omnibus
Trade Act of 1988 because all
government agencies will be required to
use the metric system in 1992. EPA
agrees with the commenters that metric
designations are important and has
included metric units in today's final
rule.
  Five commenters asked EPA to
require that States adopt uniform
reporting thresholds. EPA cannot require
States to adopt uniform reporting
thresholds because title in does not
preempt State and local laws. EPA'
considered State laws in making its
decision on final thresholds and
encourages States to consider the '  . .   •
burden imposed on industry when
developing their laws. Nonetheless,
States are free to tailor their reporting
requirements to their unique concerns.
  One commenter requested that, for
purposes of section 304 reporting, the
term facility should include vessels. EPA
cannot agree because to the extent that
vessels are not "stationary items" or
"motor vehicles, rolling stock [or]
aircraft," vessels are outside the
statutory scope of the title III definition
of facility. Releases of hazardous
substances from vessels, however, may
require notification under CERCLA
section 103 and/or the Clean Water Act.
 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.O. 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 major increase 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 enterprise to
 compete in domestic or export markets.
   The RIA hi support of this rulemaking-
 shows that today's regulation is non-
 major because it results in an annual
 cost to the economy of between $58 and
 $72 million and does not cause any of
 the  other adverse effects listed above.
 The RIA, formally entitled "Regulatory
^Impact Analysis in Support of a Final
 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 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 the RIA.
 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 databases 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 faculties, the number of
 chemicals, and the number of pounds of
 chemicals that would be reported under
 the  different reporting threshold options.
 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 ot the OSHA HCS regulations.
   EPA 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 databases 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 be likely
to report at each threshold level and the
number of chemicals likely to be
reported. When the analysis was
performed on an individual SIC code
basis, the national estimates were
derived separately for each database by
aggregating the individual SIC code
estimates. The 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 hi 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 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, faculties 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 facility size,
reflecting the greater number of
hazardous chemicals present at larger
facilities and the potential for more
elaborate decision-making processes.
Unit costs for non-manufacturers are
assumed to be the same as those for
small manufacturers (employment of
less than 20). This assumption is based
on the preponderance of small facilities
in the non-manufacturing sector (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 such facilities.
  Total costs are estimated in each year.
using cost estimates expressed in 1987
dollars (that is, the analysis does not
include inflation). The table below
shows  the total estimated expenditure in
each year (in 1987 dollars), is well as

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

SUMMARY OF ESTIMATED TOTAL COSTS. FISCAL YEARS 1930-2000
                       [Million dollars]


Option
Sh 10,000/500 of TPQ ,«._.-.«........«™~— —•««••—•— 	 •• 	 * 	 "" 	 '
3: 10.000/500/600 or TPO 	 	 	
«: 2,000/500/500 or TPQ 	 	
5: 600 tor tK chemicals 	 . 	 	 - 	 	 	
6; z«ro lot «S chemicals 	 : 	 * 	 — - 	 - 	 • 	 : 	 .' 	


Fiscal
1990 costs
16-23
3-14
61-62
81-97
113-136
149


year
1991 costs
67-87
55-74
144-184
188-247
294-336
. 303

	 f- 	 -r
Present .
costs
419-505
457-606
706-891
800-1,066
905-1,326
1,295


Equivalent
costs
49-80
54-72
83-107
102-128
116-158
153

  The final reporting threshold will be hi
 effect beginning on October 17,1930 for
 all sectors of industry. Because initial
 compliance with the requirements of
'section 311 was completed by April 1,
 19S9, 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 II forms.

 B. negulatory Flexibility Act,

 1. Purpose
   Under the Regulatory Flexibility Act,
 whenever an agency issues 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. Chapters 5 of the RIA
 supporting tills rule addresses the
 impact of this rule on small businesses.

 2, 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.

 list of Subjects

 40 CFR Part 350
    Chemicals, Confidential business
  information,  Hazardous substances,
  Supcrfund, Intergovernmental relations.

  40 CFR Part 355
    Chemicals, Hazardous substances,
  Reporting and recordkeeping
  requirements.
           40 CFR Part 370
             Chemicals, Hazardous substances,
           Superfund, Reporting and recordkeeping
           requirements.
           40 CFR Part 372
             Chemicals, Reporting, and
           recordkeeping requirements.
             Dated: [uly 9,1990.
           William K.ReUly.
           Administrator.
             For the reasons set out in the
           Preamble, parts 350, 355, 370, and 372 of
           subtitle J of title 40 of the Code of
           Federal Regulations are 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
            elected 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
under 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.
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 not 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 committee
  or committee means the local emergency

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             federal Register / Vol. 55, No. 144 / Thursday. July 26,  1990 / Rules and Regulations  ^30645
 planning committee appointed by the
 emergency response commission.
 *    *    *     *    * .
   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.
 PART 355—EMERGENCY PLANNING
 AND NOTIFICATION

   3. The authority citation for part 355
1 continues to read as follows:
   Authority: 42 U.S.C. 11002,11003,11004.
 11045,11048,11049.
   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, Indian Country,
 Indian tribe, and state to read as
 follows:

 §355.20  Definitions.
 *****
   Chief Executive Officer of the tribe
 means the person who is recognized by
 the Bureau of Indian Affairs as the chief
 elected 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.
 ******
   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 manmade
 structures in which chemicals are
 purposefully placed or removed through
 human means' such that it functions as a
containment structure for human use.
For purposes of emergency release
notification, the term includes motor
vehicles, rolling stock,' and aiftraft.
*    *    *   *     *
  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 thereiBf,
and whether within or without the limits
of a State; and
  (c) All Indian allotments, the Indian
titles to which have not 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, any other territory or
possession over which the United States
has jurisdictions and Indian Country.
PART 370—HAZARDOUS CHEMICAL
REPORTING: COMMUNITY RIGHT-TO-
KNOW

  5. The authority citation for part 370
continues to read as follows:
  Authority: 42 U.S.C. 11011,11012,11024,
11025,11028,11029.
  6. 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, 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
elected  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.
 *    *    *    *     *
   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 manmade
 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.
 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 border of the United States
 whether within the original r>r    •  •
 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 not been
 extinguished, including rights-of-way '
 running through the same.
   Indian tribe means those tribes
 federally recognized by the Secretary o»
 the Interior.
 *****
   State means any State of 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 $tau;j
 has jurisdiction and Indian Country.

   7. Section 370.20 is revised to read as
. follows:

-------
 §370.20  AppKcabBtty.
   (a) General. The requirements of tliis
• aubpart 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
 1070 and regulations promulgated under
 that Act.
   (b) Minimum threshold levels. Except
 as provide'd 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 17,1990 (or
 within three months after the facility
 first becomes subject to this subpart),
 for all hazardous chemicals present at
 the facility at any one time in amounts
 equal to or greater than 10,000 pounds
 (or 4.S40 kgs.) and for all extremely
 hazardous substances present  at the
 facility in an amount greater than or
 equal to 600 pounds (or 227 kgs.—
 approximately 55 gallons) or the TPQ,
 whichever is lower.
   (2) The owner or operator of a facility
 subject to this subpart shall submit the
 Tier I form (or Tier H form) on  or before
 March 1,1991 (or March 1 of the first
 year after the facility first becomes a
 subject to this subpart), and annually
  thereafter, covering all hazardous
 chemicals present at a facility at any
  ono time during the preceding  calendar
 year in amounts equal to or greater than
  10,000 pounds (or 4,540 kgs.) and
  extremely hazardous substances present
  at the facility in an amount greater than
or equal to 500 pounds (or 227 kgs.—
approximately 55 gallons) or the TPQ,
whichever is lower.
   (3) The minimum threshold for
reporting in response to requests for
submission of an MSDS or a Tier II form
under §§ 370.21(d) and 370.25(c) of this
part shall be zero.
   8. Section 370.28 is revised to read as
follows:

§370.28 Mixtures.
  "(a) Basic reporting. The owner or
 operator of a facility may meet the
 reporting requirements of §§ 370.21
 (MSDS reporting) and 370.25 (inventory
 form reporting) of this subpart for a
 hazardous chemical that is a mixture of
 hazardous chemicals by:
   (1) Providing the required information
 on each component in the mixture which
 is a hazardous chemical; or
   (2) Providing the required information
 on the mixture itself, so long as the
 reporting of mixtures by a facility under
 § 370.25 is in the same manner as under
 § 370.21, where practicable.
   (b) Calculation of the quantity. (1) If
 the reporting is on each component of
 the mixture which is a hazardous
 chemical, then the concentration of the
 hazardous chemical, in weight percent
 (greater than 1% or 0.1% if carcinogenic)
 shall be multiplied by the mass (in
 pounds) of the mixture to determine the
 quantity of the hazardous chemical in
 the mixture.
    (2) If the reporting is on the mixture
 itself, the total quantity of the mixture
•  shall be reported.
    (c) Aggregation of extremely
 hazardous substances. (1) To determine
whether the reporting threshold for an
extremely hazardous substance has
been equaled or exceeded, the owner or
operator of a facility shall aggregate the
following:
  (i) The quantity of the extremely
hazardous substance present as a
component in all mixtures at the facility.
and
  (ii) All other quantities of the
extremely hazardous substance present
at the facility.
If the aggregate quantity of an extremely
hazardous substance equals or exceeds
the reporting threshold, the substance
shall be reported.
   (2) If extremely hazardous substances
are being reported and are components
of a mixture at a facility, the owner or
operator of a facility may report either:
   (i) The mixture, as a whole, even if (he
total quantity of the mixture is below its
reporting threshold; or
   (ii) The extremely hazardous
 substance component(s) of the mixture.
   9. Section-370.40 is revised to read as
 follows:
 § 370.40   Tier I 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 856O-50-M

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                 Federal Register / VoL 55. No. 144 / Thursday. July 26,1990 / Rules and Regulations
                                                                                                         30647
Revised June 1990
Tier One
Page 	 	 of 	 pages
EMERGENCY AND HAZARDOUS {&&
CHEMICAL INVENTORY OfT^At
Aggregate Information by Hazard Type ONLV
i o. r


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             (acute) LJLJ  >   I   I   
-------
30618      Federal Register / Vol. 55, No. 144 / Thursday. July 26. 1990 / Rulea and Regulations
Tier Ona Instructions

General Information

  Submission of this form la required by
Titla ffl of the Superfund Amendments
andReauthorization Act of 1986, Title
UI. Section 312, Public Law 99-499,
codified at 42 U.S.C. § 11022.

Certification
  The owrier or operator or the officially
designated representative of the owner
or operator must certify that all
information Included In the Tier I
submission is true, accurate, and
complete. On the Tier I form, enter your
full name and official title. Sign your
name and enter the current date. Also,
enter the total number of pages in the
submission, including all attachments.
  The purpose of this form is to provide
State and local officials and the public
with informstion 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.)
Who Must Submit This Form
   Section 312 of Titie HI requires that
 the owner or operator of a facility
 submit this form if, under regulations
 implementing 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 requirements are
 specified In the Occupational Safety and
 Health Administration (OSHA) Hazard
 Communication Standard, found in Title
 29 of the Code of Federal Regulations at
 § 1910.1200.
   This form does not have to be
 submitted if all of the chemicals located
 at your facility are excluded under
 Section 311(e) of Title III or if the weight
 of each covered hazardous chemical
 never equals or exceeds the minimum
 threshold listed in Title HI Section 312
 during the reporting year.
 What Chemicals Are Included

   You must report the information
 required on this form for every
 hazardous chemical Tor which you are
 required to prepare or have available an
 MSDS under the Hazard Communication
 Standard, unless the chemicals are
 excluded-under Section Sll(e) of Title ffl
or they are below the minimum
reporting thresholds.

What Chemicals Are Excluded
  Section 311(e) of Tide in excludes the
following substances:
  (i) Any food, food additive, color
additive, drug, or cosmetic regulated by
the Food and Drug Administration;
  (ii) Any substance present as a solid
hi any manufactured item to the extent
exposure to the substance does not
occur under normal conditions of use;
  (iii) Any substance to the exent it is
used for personal, family, or household
purposes, or is present in the same form
and concentration as a product
packaged for distribution and use by the
general public.
  (iv) Any substance to the extent it is
used in a research laboratory or a
hospital or other medical facility under
the direct supervision of a technically
qualified individual;
  (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),
stipulate exemptions from the
requirement to prepare or have
available an MSDS.

Reporting Thresholds
  Minimum thresholds have been
established for Tier One/Tier Two
reporting under Title HI, Section 312.
These thresholds are 'as follows:
  For Extremely Hazardous Substances
 (EHSs) designated under section 302 of
Title III, the reporting threshold is 500
pounds (or 227 kg.) 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
 reporting threshold is 10,000 pounds (or
 4,540kg.).
   You need to report hazardous
 chemicals that were present at your
 facility at any time during the previous
 calendar year at levels that equal or
 exceed these thresholds. For
 instructions on threshold determinations
 for components of mixtures, see "What
 About Mixtures?" on page 3 of these
 instructions.

 When To Submit This Form
   Owners or operators of facilities 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 by March 1.

 Where to Submit This Form
    Send one completed inventory form to
 each of the following organizations:
  1. Your State emergency response
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 bs liable to the
United States for a civil penalty of up to
$25,000 for each such violation. Each
day a violation continues shall
constitute a separate violation. 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 information.

Instructions
Please Read 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
assemble your Tier One responses.
   If your responses require more than
one page, fill in the page number at the
top of the form.
Reporting Period
   Enter the appropriate calendar year,
beginning January 1 and ending  •
December 31.
Facility Identification
   Enter the complete name of your
facility (and company identifier where
appropriate).
   Enter the full street address or state
road. If a street address is not available,
 enter other appropriate identifiers that
 described the physical location of your
 facility (e.g., longitude and latitude).
 Include city, county, state, and zip code.
   Enter the primary Standard Industrial
 Classification (SIC) code and the Dun &
 Bradstreet number of your facility. The
 financial officer of your facility should
 be able to provide 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 address, 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

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              Federal Register  / Vol. 55,  No. 144  / Thursday. July 26, 1990 / Rules and Regulations      306-13
- in responding to a chemical accident at
 the facility.
   Provide an emergency phone number
 where such emergency information will
 b§ available 24 hours a day, every day.
 This requirement is mandatory. The
 f acility must make some arrangement to
 ensure that a 24 hour, contact is
 available.

 Identical Information

   Check the box indicating identical
 information, located below the
 emergency contacts on the Tier One
 form, if the current information being
 reported is identical to that submitted
 last year. Chemical descriptions,
 amounts, and locations must be
 provided in this year's form, even if the
 information is identical to that
 submitted last year.

 Physical and Health Hazards

   Descriptions, Amounts, and Locations
 This section requires aggregate
 information on chemicals by hazard
 categories as  defined in 40 CFR 370.2.
 The two health hazard 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. For each hazard type, indicate
 the total amounts and general locations
 of all applicable chemicals present at;
.your facility during the past year.

 HAZARD  CATEGORY  COMPARISON  FOR
   REPORTING  UNDER SECTIONS 311 and
   312
 EPA's hazard categories
 Fire Hazard,A	_..'....;....
 Sudden Release of
  Pressure.     .
 Reactive	...
 Immediate (Acute)
 , Health Hazards.
 Delayed (Chronic) Health
  Hazard.
    OSHA's. hazard
     categories
Flammable
Combustion Liquid
Pyrbphoric '  '
Oxidizer  ,  •  .
Explosive  .      ;
Compressed Gas   "
Unstable Reactive
Organic Peroxide.
Water Reactive ' '.
Highly Toxic
Toxic    ,•-','
Irritant1      •' '.
Sensitizer ,
Corrosive 1
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 factor.
  Instructions

  Please Read These Instructions
  Carefully. Print or Type all Responses
    •What about mixtures?
    If a chemical is part of a mixture, you
  have the option of reporting either the
  weight of the entire 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 of 5 Ibs. of
  the hazardous chemical}.
    The option used for each mixture must
  be consistent with the option used to
  your Section 311 reporting.
    Because EHSs are important to
  Section 303 planning, EHSs have lower
  thresholds. The amount of an EHS at a
  facility [both pure EHS substances and
  EHSs in mixtures) must be aggregated
  for purposes of threshold determination.
  It is suggested that the aggregation •
  calculation be done as a first step to
  making the threshold determination.
  Once you determine whether a
  threshold has been reached for an EHS,
  you shquld.report either the total weight'
  of the EHS at your facility, or the weight
  of each mixture containing the EHs.
    •Where do I count a chemical that is a
  fire and reactive physical hazard and an
  immediate (acute) health hazard?
    Add the chemical's weight to your
„  totals for all three hazard categories and
  include its location in all three
 'categories. Many  chemicals fall into'-  .
  more than one hazard category. •

  Maximum Amount.-       ,
    The amounts of chemicals you have
  on hand may vary throughout the year.
 . The peak weights-—greatest-single-day
  weights during the year—are added
 •'together to 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.artifieially'  v
  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 reportable
 'hazardous chemicals individually.
    2. For each chemical...
    a. Indicate all physical and health
 hazards that the chemical presents.
 Include all chemicals, even if they are
 present for only a  short period of time
 during the year.
   b.- Estimate the maximum weight to   '
 pounds that was present at your facility
  on any single day of the reporting
  period.
    3. For each hazard type—beginning
  with Fire and repeating 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 code.
    c. Enter this range value aa the
  Maximum Amount.
    Example: Yon are using the Tier Two
  form as a worksheet and have listed raw
  weights to pounds for each of your
  hazardous chemicals. You have marked
  an X to the immediate (acute) hazard
  column for phenol and sulfuric acid. The
  maximum amount raw weight yon 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 04 corresponds to 10,500 Ibs.
  Enter 04 as your Maximum Amount for
  Immediate (acure) hazards materials.
    You also marked an X to 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
  average daily amount of chemicals of
 , each hazard type that were present at or
  above  applicable thresholds at your
  facility at any point during the year.  •
    To determine this amount:
    1. List all of your reportable
  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 Maximum Amount).
   b. Estimate the average weight ui
  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—rbeginning
 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.

-------
Instructions
Pleasa Read These Instructions
Carefully- Print or Type all Responses
  Example: You are using the Tier Two
form, and have marked an X in the
Immediate (acute) hazard column for
nicotine and phenol. Nicotine is present
at your facility 100 days during the year,
and the sum of the daily weights is
100,000 Ibs. By dividing 100,000 Ibs. by
100 days on-site, you calculate an
Average Daily Amount of 1,000 Ibs. for
nicotine. Phenol is present at your
facility 50 days during the year, and the
aum of the daily weights is 10,000 Ibs. By
dividing 10,000 Ibs. by 50 days on-site,
you calculate an Average Daily Amount
of 200 Ibs. for phenol. You then add the
 two average daily amounts together to
reach a total of 1,200 Ibs. Then you look
 at tho Reporting Range on your Tier One
 form and find that the value 03
 corresponds to 1,200 Ibs. Enter 03 as
 your Average Daily Amount for
 immediate (acute) Hazard.
   You also marked an X in the Fire
 hazard column for phenol. When you
 calculate your Average Daily Amount
 for fire hazards, USB the 200 Ib. weight
 again.
Number of Days On-Site
  Enter the greatest number of days that
a single chemical within that hazard
category was present on-site.
  Example: At your facility, nicotine is
present for 100 days and phosgene is
present for 150 days. Enter 150 in the
space provided.

General Location
  Enter the general location within your
facility where each hazard may be
found. General locations should include
the names or identifications of buildings,
tank Fields, lots, sheds, or other such
areas.
  For each hazard type, list the
locations of all applicable chemicals. As
an alternative you may also attach a site
plan and list the site coordinates related
to the appropriate locations. If you do
 so, check the Site Plan box.
   Example: On your worksheet you
have marked an X in the Fire hazard
 column for acetone and butane. You
 noted that these are kept in steel drums
 to Room C of the Main Building, and in
 pressurized cylinders in Storage Shed
 13, respectively. You could enter Main
 Building and Storage Shed 13 as the
 General Locations of your fire hazards.
However, you choose to attach a site
plan and list coordinates. Check the Site
Plan box at the top of the column and
enter site coordinates for the Main
Building and Storage Shed 13 under
General Locations.
  If you need more space to list
locations, attach an additional Tier One
form and continue your list on the
proper line. Number all pages.

Certification
  Instructions for this section are
included on page one of these
instructions.
  10. Section 370.41 is revised to read as
follows:

5 370.41 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 5 370.25 of this
 part. In lieu of the form set out hi
 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 65BO-SO-M

-------
                                                                                                   Pag*

Tier Two

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

-. General Information
   .Submission of this Tier Two form
 (when requested) is required by Title III
7of the Superfurid Amendments and
 Reauthorization Act of 1S86, Section 312,
 Public Law 09*499, codified at 42 U.S.C.
 Section 11022. The purpose of this Tier
'Two form is to provide State and local
 officials and the public with specific' .
 information on hazardous chemicals
 present at your facility during the-past
 year.

 Certification'
   The owner or" operator or the officially
 designated representative of the owner
• or operator must certify that all
 information included in the Tier Two
 submission is true, accurate,-and
 complete. On the first page of the Tier
 Two report, enter your full name and
 official title. Sign your name and enter
 the current date. Also, enter the total ,
 number of pages included in the
 Confidential and Non-Confidential
 Information Sheets as well as all _.
 attachments.. An original signature is
 required on at least the first page of the
 submission. Submissions to the SERC,
 LEPC, and  fire department must each
 contain an original signature on at least
, the first page. Subsequent pages must
 contain either an original signature, a
 photocopy of the original signature, or a
 signature stamp. Each page must contain
 the date  on which the original signature
 was affixed to the first page of the
 submission" and the total number of
 pages in the submission.

 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 hi place of the
 Tier One form.
 Who Must Submit This Form
   Section 312 of Title III requires that
  the owner  or operator of a facility
  submit this Tier Two form if so
 requested by a State emergency
 response commission, a local emergency
 planning committee, or a fire department
  with jurisdiction over the facility.
   This request may apply to the pwner
  or operator of any facility that is
  required, under regulations
  implementing the Occupational Safety
  and Health Act of 1970, to prepare 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
 Communication Standard, found In Title
 29 of the Code of Federal Regulations at
 §1910,1200.         ;-,.'•'•••_
   This form does not have to,be
 submitted if all of the chemicals located
 at your facility are excluded under ' ••  .
 Section 311(e) of'Title ffl.
 What Chemicals are Included.     .
   If you are submitting Tier Two forms .
 in lieu of .Tier One', you must report the
 required information on this Tier Two
 form for each hazardous chemical
 present at your facility in quantities
 equal to or greater than established
 threshold amounts (discussed below),
 unless the chemicals are excluded under
, Section 311(e) of Title ffl Hazardous
 chemicals are any substance for which
 your facility must maintain an MSDS
 under OSHA's Hazard Communication
 Standard.      -
   If you elect to submit Tier One rather
 than Tier Two, you may still be required
 to .submit Tier Two information upon
 request.     '                   '
 What Chemicals are Excluded
   Section 311(e) of .Title ffl excludes the
 following substances:     '
   (i) Any food, food additive, color
 additive, drug, or cosmetic regulated by
 the Food and Drug Administration;     ;
   (ii)  Any substance present as a  solid
 in any manufactured item to the extent
 exposure to the substance does not.
 occur under normal conditions of use;
   (in) Any substance to the extent it is
 used for personal, family, or household
 purposes, or is present in the same form
 and concentration as a product
 packaged for distribution and use by the
 general public;
   (iv) Any substance to the extent it is
 used  in a research laboratory or a
 hospital or other medical facility under
 the direct supervision of a technically
 • qualified individual;
   (v)  Any substance to the extent ills
 used  in routine agricultural operations .
 or is a fertilizer held for sale by a
 retailer to the ultimate customer.
   OSHA regulations, § 1910.1200(b),
 stipulate exemptions from the
 requirement to prepare or have available
 an MSDS.
 Reporting Thresholds
   Minimum thresholds have been
 established for Tier One/Tier Two
 reporting under Title ffl, Section 312.
 These thresholds are as follows:
   For Extremely Hazardous Substances
 (EHSs) designated under section 302 .of
 Title  III, the reporting threshold is 500
 pounds (or 227 kg.) .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
 reporting threshold is 10,000 pounds (or
 4,540kg.).
   You need to report hazardous
 chemicals that were present at your
 facility at any time during the previous
 calendar year at level's that equal or
 exceed these thresholds. For
. instructions on threshold determinations
 for components of mixtures, see "What
 About Mixtures?" on page 2 of these
 instructions.^
   A requesting official may limit .the
.responses required under Tier Two by
 specifying particular chemicals or
 groups of chemicals. Such requests
 apply to hazardous chemicals regardless
 of established thresholds.

 Instructions

 Plesase read these instructions
 carefully. Print or Type all Response?

 When to Submit This Form
   Owners or operators of facilities that
 have hazardous chemicals on ha id in
 quantities equal to or greater than set
 threshold levels must submit either Tier
 One or Tier Two forms by March 1.
 , If you choose to submit Tier One,
 rather than Tier Two, be aware that you .
 may have to, submit Tier Two
 information later, upon request of an
. .authorized official You must submit the
 Tier Two form within 30 days of receipt
 of a written request
 Where to Submit This Form
    Send either a completed Tier One
 form or Tier Two form(s) to each of the
 following organizations:
    1. Your State Emergency Response
 Commission.               •      .
   2. Your Local 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 reporting requirements   .
. shall be liable to the United States for a
 civil penalty of up to $25,000 for each
 such Violation. Each day a violation
 continues shall constitute a separate
 violation. '.                 ;  .-
    If yourTier Two responses require
 more than one page use'additionel forms
 arid fill in the page number at the top of
 the form.

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30654      Federal Register / Vol. 55. No. 144 / Thursday. July 26.  1990 / Rules and Regulations
Reporting Period ,
  Enter the appropriate calendar year, •
beginning January 1 and ending
December 31.
Facility Identification
  Enter the full name of your facility
(and company identifier where
appropriate).
  Enter the full sheet address  or state
road. If a street address is not available.
enter other appropriate identifiers that
describe the physical location of your •
facility (e.g., longitude and latitude).
Include city, county, state, and zip code.
  Enter the primary Standard  Industrial
Classification (SIC) code and the Dun &
Bradslreet number for your facility. The
financial officer of your facility should
be able to provide 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 address, and phone
number.
Emergency Contact
  Enter the name, title, and work phone
number 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 emergency information will
be available 24 hours  a day, every day.
The requirement is mandatory. The
facility must make some arrangement to
ensure a 24 hour contact is available.
Identical Information
   Check the box indicating indentical
information, located below the
emergency contacts on the Tier Two
form, if the current chemical information
being reported is identical to  that
 submitted last year. Chemical
 descriptions, hazards, amounts, and
 locations must be provided in this year's
 form, even if the information  is identical
 to that submitted last year.
 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 Communication Standard.
   If you choose to indicate that all of the
 information on a specific hazardous
 chemical is identical  to that submitted
 last year, chock the appropriate optional
 box provided at the right side of the
storage codes and locations on the Tier '
Two form. Chemical descriptions,.
hazards, amounts, and locations must be
provided even if the information is .
identical to that submitted last year.
  • Whafunits should I use?
  Calculated all amounts as weight in
pounds. To convert gas or liquid volume
to weight in pounds, multiply by an
appropriate density factor.
  • What about mixtures?
  If a chemical is part of a mixture, you
have the option of reporting either the
weight of the entire mixture or only the
portion of the mixuture that is a
particular hazardous chemcial (e.g., if a
hazardous solution weights 100 Ibs. but
is composed of only 5% of a particular
hazardous chemcial, you can indicate
either 100 Ibs. of the mixture or 5 Ibs. of
the chemical).
  The option used for each mixture must
be consistent .with the option used in
your Section 311 reporting.
  Because EHSs are important to
Section 303 planning, EHSs have lower
thresholds. The amount of an EHS at a
facility (both pure EHS substances and
EHSs in mixtures) must be aggregated
and purposes of threshold
determination. It is suggested that the
aggregation calculation be done as a
first step in making the threshold
determination. Once you determine
whether a threshold for an EHS has
been reached, you should report either
the total weight of the EHS at your
facility, or the weight of each mixture
containing the EHS.

Chemical Description
  1. Enter the Chemical Abstract
Service registry number (CAS). For
mixtures, enter the CAS number of the
mixture as a whole if it has been
 assigned a number distinct from its
 constituents. For a mixture that has no
 CAS number, leave this item blank or
 report the CAS numbers of as many
 constituent chemicals as possible.
   If you are withholding the name of a
 chemical in accordance with criteria
 specified in Title ffl, Section 322, enter
 the generic class or category that is
 structurally descriptive of the chemical
 (e.g., list toulene diisocyanate as organic
 isocyanate) 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 regulation on trade secrecy
 (53 FR 28772, July 29,1888) 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.
   4. If the chemical is a mixture
 containing an EHS, enter the chemical
 name of each EHS in the mixture.
   Example: You have pure chlorine as
' 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"-i-as
 well as ."liquid" and "gas".
 Physical and Health Hazards
   For each chemical you have listed,
 check all the physical and health hazard
 boxes that apply. These hazard
 categories are defined in 40 CFR 370.2.
 The  two health hazard 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 COMPENSATION FOR
   REPORTING UNDER SECTIONS 311 AND
   312
  EPA's hazard categories
  Fire Hazard	
  Sudden Release of
   Pi assure.
  Reactive	_	
  Immediate (Acute)
   Health Hazards.
  Delayed (Chronic) Health
   Hazard.  -
   OSHA's hazard
     categories
Flammable
Combustion Liquid
Pyrophoric
Oxidizer
Explosive
Compressed Gas
Unstable Reactive
Organic Peroxide
Water Reactive
Highly Toxic
Toxic
Irritant
Sensitizer
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 during
  the reporting period.
    2. Find the appropriate range value
  code in Table I.
    3. Enter this range value as the
  Maximum Amount.

       TABLE I—REPORTING RANGES
Range
value
01
02 	
Weight range in pounds
From
0 	
100_

_„......__ 	 «.-..
To
99
999

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               Federal Register / Vol. 55. No. 144 / Thursday. July 26. 1990 / Rides and Regulations
                                                                        3885S
       TABLE I—REPORTING RANGES-
                 Continued
Range
value
03 	 ;
04..;....,..-...
05 	
08 	 _.
07 	 ;.
08..... 	
09 	
10 	
11 	

Weight range In pounds
From
1,000..,.:.....; 	
10,000 	 .......:.„ 	 :
100,000 	 ;. 	 '•
1.000,000 	
10,000,000...; 	
50,000,000.: 	 	 ...
100,000,000 	 	 	
SOO.000,0'00™ 	 	
1 billion 	 	

To -,.
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
    If you are using this form as a
  worksheet for completing Tier One,
  enter the actual weight in pounds in the
  shaded space below the response
  blocks. Do this for both Maximum
  Amount and Average Daily Amount.
    Example: You received one large
  shipment of a solvent mixture last year.
  The shipment filled five 5,000-gallon
  storage tanks. You know that the
  solvent contains 10% benzene, 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, go you multiply 2,500 gallons by
  .7.29 pounds per gallon to get a weight  of
  13,225 pounds.
    Then you look at Table I and find that
  the range value 04 corresponds to 18,225.
  You enter 04 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. For each hazardous chemical,  •
  estimate the  average weight in pounds
  that was present at your facility during
  the year.
    To do this, total all daily weights and
  •divide by the number of days the
  chemical was present on the site.
    2. Find the appropriate ranga value in
  Tablet
    3. Enter this range value as the
  Average Daily Amount.               ;
   Example: The 25,000-gallon shipment,
.  of solvent you received last year was
  gradually used up and completely gone
  in 315 days. The sum of the daily volume
  levels in the tank is 4,536,000 gallons. By
  dividing 4,536,000 gallons by 315 days
  on-site, you calculate an average daily
  amount of 14,400 gallons.
   You already know that the s'olven t
  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'   aensity of benzene is
  7.29 pounds per gallon, so you multiply
  1,440 by 7.29 to get a weight of 10,500
  pounds.       -•        • ,i-   '•  " *  i ..''
    Then you look at Table I and find that
  the range value 04 corresponds to 10,500.
  You enter 04 as the Average Daily
  Amount.    .        ."  -  '
    (If you are using the form as a
  worksheet for completing a Tier One
  form, you should write 10,500 in the
  shaded area.)  ,

'Number of Days On-Site

  k Enter the number of days ^hat the  '
  hazardous chemical was found on-site.
   Example: The solvent composed of
  10% benzene was present for 315 days at
  your facility. Enter 315 En the space
  provided.

  Storage Codes and Storage Locations

   List all non-confidential chemical
 locations in this column, along with
 storage types/conditions associated
 with each location. Please note that a
 particular chemical may be located in
 several places around the 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 storage present.
  a. Look at Table II. For each location,
 find the appropriate storage type and
 enter the corresponding code in the first
box.
  b. Look at Table III. For each location,
find the appropriate storage types for
pressure and temperature conditions.
Enter the applicable pressure code in the
second box. Enter the applicable
'temperature code in the third box.
TABLE II— STORAGE TYPES
Codes
A
B
C
D
E
F
G
. ' H
. 1
J
K
L
• M
N
O
P
Q
R
Types of storage
Above ground tank
Below ground tank
• Tank inside building
Steel drum
Plastic . or non-metallic drum
Can
Carboy
Silo , - • . -. ;
Fiber drum
Bag
Box
Cylinder
Glass bottles or jugs
Plastic .bottles or jugs
Tote bin
Tank wagon
Rail car
Other
  TABLE III—TEMPERATURE AND PRESSURE
               CONDITIONS          ^
                                                                                  Codes
                                                                                                 Storage condition*
                                                                                         (Pressure)  -
                                                                                         Ambient pressure
                                                                                         Greater than ambient pressure       :
                                                                                         Less than ambient pressure .
                                                                                         (Temperature)  •          •
                                                                                         Ambient temperature
                                                                                         Greater than ambient temperature
                                                                                         Les» than ambient  temperature but not
                                                                                          cryogenic
                                                                                         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 H shows you that the code for a
  tank inside a building is C. Table III
  shows you that the code for ambient
  pressure is l, and the code for less than
  ambient temperature is 6.
    YouenterrC 16
    Storage Locations: Provide a brief '
  description of the precise location of the
  chemical,  so that emergency responders
  can locate the area easily. You ma  < find
  it advantageous to provide the optional
  site plan or site coordinates as
  explained below.            •.    •  •   .
   For each chemical, indicate at a
 minimum the building or lot  . •
 Additionally, where practical, the room
 or area may be indicated. You may
 respond in narrative form,with
 appropriate site coordinates or
 abbreviations.
   If the chemical is present in more than
 one building, lot, or area location,
 continue your responses down the page
 as needed. If the chemical exists
 everywhere at the plant site
 simultaneously, you may report that the
 chemical Is ubiquitous at the site.
   Optional attachments: If you choose
 to attach one of the following, check the
 appropriate Attachments box at the
 bottom of the Tier Two form.
  a. A site plan with site coordinates
 indicated for buildings, lots, areas, etc.
 throughout your facility.
  b. A list of site coordinate
 abbreviations that correspond to
 buildings, lots, areas, etc. throughout
 your facility.
  c. A description of dikes and other
 safeguard measures for storage
 locations throughout your facility.
  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 follows: main
building =  G-2, tank field 10 = B-6. Fill
in the Storage Location as follows:

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

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90656      Federal Register / Vol 55. No. 144 / Thursday. July 26. 1990 / Rules and Regulation*
Confidential Information
  Under Tllle HL Section 324, you may
elect to withhold location information
oa a «p&dflc chemical from disclosure-to
the public. If you choose to do so:
  • Enter the word, "confidential" in the
Non-Confidential Location section of the
"Her Two form on the first line of the
storage locations.
  • On a separate Her 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 Information, as described above
for non-confidential locations.
  • Attach the Tier Two Confidential
Location Information Sheet to the Tier
Two form. This separates confidential
locations from other information that
will be disclosed to the public.

Certification
  Instructions for this section are
included on page one of these
instructions.
  9. Section 370.40 is revised to read as
follows:

8 370.40  Tttr I emergency and hazardous
chtmteai Inventory form.

PART 372—TOXIC CHEMICAL
RELEASE REPORTING; COMMUNITY
 RIGHT-TO-KNOW

   11. The authority citation for part 372
 continue* to read as follows:
  Authority: 42 U.S.C. 11013,11028.  '
  1Z 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
elected 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 Slates government,
notwithstanding the issuance of any
patent, and includng 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 not 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.
*    *    *     *   *
  13; 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
subpart E. If the covered facility is
located in Indian Country, the facility
shall submit a completed EPA Form R as
described above to EPA and  the official
designated by die 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. 90-16759 Filed 7-25-90; 8:45 am]
 BILUNO CODE MCO-SO-M

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