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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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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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
-------
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
-------
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
Important: Read instructions before completing form Reporting Period Framj«nu«yiiaOK«nbw3i is
Facility ld*oiltt• A%% ,, ^^ , ,s^" ^s ;,'-^ \ \
N«ir>»
THV_ ' ,,' .
W<~- _J » .
MUeurPlyn. ( _ _],
TW.
tn^. I )
9tUoufPlv«. _( , ;-, )
fT&iidil teXmsSssittMeHltHvrtatiiiTKt "" ""
l^:WMt«6Bn»tteB«itijii«)5Bf. T.- ••
Average Number |-=|
Max Daily of Days \ J Ch»cki(«l!»pt»nli«iuct»cl
mount* Amount? On-Site General Location
TI m rm
i i i i
J_J LI 1 III!
-
-
Immedlata i i . i i i i i i i i
(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
-------
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
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Pag*
Tier Two
EMERGENCY
AND
HAZARDOUS
CHEMICAL
INVENTORY
Specifa ;
Infomallok
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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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