23834 Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations

ENVIRONMENTAL PROTECTION Know Information Hotline, including the annual quantities of the AGENCY Environmental Protection Agency, Mail chemicals entering each environmental Stop 5101, 401 M St., SW., Washington, medium. Beginning with the 1991 40 CFR Part 372 DC 20460, Toll free: 1-800-535-0202, in reporting year, such facilities also must [OPPTS±400104D; FRL±5578±3] Virginia and Alaska: 703-412-9877 or report source reduction and recycling Toll free TDD: 1-800-553-7672. data for such chemicals, pursuant to RIN 2070±AC71 SUPPLEMENTARY INFORMATION: section 6607 of the Pollution Prevention Act (PPA), 42 U.S.C 13106. The Addition of Facilities in Certain I. Introduction information reported under section 313 Industry Sectors; Revised of EPCRA and section 6607 of PPA Interpretation of Otherwise Use; Toxic A. Regulated Entities provides the input for a publicly Release Inventory Reporting; Entities regulated by this final action Community Right-to-Know are those facilities within the Standard available data base, the Toxics Release Industrial Classification (SIC) codes Inventory (TRI). Section 313(b)(1)(A) AGENCY: Environmental Protection being added by this rule and certain specifically applied these reporting Agency (EPA). facilities in SIC codes 20 through 39, requirements to owners and operators of ACTION: Final rule. which manufacture, process, or facilities that have 10 or more full time otherwise use chemicals listed at 40 employees (FTEs) and that are in SIC SUMMARY: EPA is adding seven industry CFR 372.65 and meet the reporting codes 20 through 39. EPCRA section groups to the list of facilities subject to requirements of section 313 of the 313(b) authorizes EPA to add facilities the reporting requirements of section Emergency Planning and Community and industry groups to the EPCRA 313 of the Emergency Planning and Right-to-Know Act of 1986 (EPCRA), 42 section 313 list. The purpose of this Community Right-to-Know Act of 1986 U.S.C. 13106. The potentially regulated final rule is to expand the universe of (EPCRA) and section 6607 of the categories and entities include: facilities that are subject to reporting Pollution Prevention Act of 1990 (PPA). under EPCRA section 313 and PPA These industry groups are metal mining, section 6607. coal mining, electric utilities, II. Background of this Rulemaking commercial hazardous waste treatment, Examples of regu- chemicals and allied products- Category lated entities A. General Background wholesale, petroleum bulk terminals Industry; facilities that Metal mining, Coal On June 27, 1996 (61 FR 33588) (FRL– and plants-wholesale, and solvent 5379–3), EPA issued a proposal in the recovery services. EPA believes that the manufacture, proc- mining, Electric util- ess, or otherwise ities, Commercial Federal Register to add seven industry addition of these industry groups to the use certain chemi- hazardous waste groups to the list of facilities subject to EPCRA section 313 list will significantly cals treatment, Chemi- the reporting requirements of section enhance the public’s knowledge about cals and allied 313 of EPCRA and section 6607 of PPA releases, transfers, and other waste products-wholesale, (hereafter collectively referred to as management of toxic chemicals. EPA is Petroleum bulk ter- ‘‘EPCRA section 313 reporting taking this action pursuant to its minals and plants- requirements’’). Those industry groups wholesale, Solvent authority to add to the list those are metal mining, coal mining, electric facilities that meet the standard of recovery services, Manufacturing. utilities, commercial hazardous waste EPCRA section 313(b)(1)(B). Reporting treatment, chemicals and allied for facilities within these industry This table is not intended to be products-wholesale, petroleum bulk groups will be effective beginning with exhaustive, but rather provides a guide plants and terminals-wholesale, and the 1998 reporting year. The first reports for readers regarding entities likely to be solvent recovery services. As discussed from the added facilities must be regulated by this action. This table lists in the proposed rule (at 61 FR 33592), submitted to EPA and the States by July the types of entities that EPA is now Congress gave EPA clear authority to 1, 1999. EPA is also revising its aware could potentially be regulated by expand TRI, both in terms of the interpretation of the threshold activity, this action. Other types of entities not chemicals reported and the facilities ‘‘otherwise use’’ and this interpretation listed in the table could also be required to report. The initial list of is reflected in the revised definition. regulated. To determine whether your chemicals and facilities identified in the This change is effective beginning with facility is regulated by this action, you original legislation was meant as a the 1998 reporting year. The first reports should carefully examine this final rule starting point. Congress recognized that from any covered facilities using the and the applicability criteria in part 372 the TRI program would need to evolve revised interpretation must be subpart B of Title 40 of the Code of to meet the information needs of a better submitted on or before July 1, 1999. Federal Regulations. informed public and to fill information Finally, EPA is announcing it will gaps that would become more apparent initiate an intensive stakeholder process B. Statutory Authority over time. The information EPA is to comprehensively evaluate the current This final rule is issued under seeking to provide to the public through reporting forms and reporting practices. sections 313(b) and 328 of EPCRA, 42 this action is generally unavailable at EFFECTIVE DATE: This rule is effective U.S.C. 11023(b) and 11048. EPCRA is present. While many of these non- December 31, 1997, for the reporting also referred to as Title III of the manufacturing facilities may be subject year beginning on January 1, 1998. Superfund Amendments and to various reporting requirements at the FOR FURTHER INFORMATION CONTACT: Tim Reauthorization Act of 1986 (SARA) Federal, State, and local levels, none of Crawford at 202-260-1715, e-mail: (Pub. L. 99-499). these reporting systems are comparable [email protected] for Section 313 of EPCRA requires certain to TRI. specific information regarding this final facilities manufacturing, processing, or EPA first announced its intention to rule. For further information on EPCRA otherwise using listed toxic chemicals consider the expansion of TRI to section 313, contact the Emergency to report certain facility-specific include facilities in additional industry Planning and Community Right-to- information about such chemicals, groups at a public meeting held on May Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations 23835

29, 1992 (57 FR 19126). EPA’s initiative routinely met with interested parties. screening process compared the types of to expand the coverage of TRI to include EPA also provided considerable activities they perform to the EPCRA additional industry groups was information regarding its intentions to section 313 threshold activities and the undertaken to more completely account expand EPCRA section 313 reporting services these industry groups provide for the use, management, and requirements through the annual TRI to the manufacturing sector. To further disposition of EPCRA section 313 toxic Data Release, notices in the Federal refine the analysis, EPA collected and chemicals in the U.S., and to provide Register, public statements by EPA assessed data reported in EPA data the public, all levels of government, and officials, media coverage, data and systems at the more specific 4-digit SIC the regulated community with analytical analyses provided to code level. These data were then information that will improve decision industry, and significantly, a incorporated into a ranking model that making, measurement of pollution, and Presidential address on August 8, 1995, allowed the analysis of large volumes of the understanding of the environmental that set out very clearly the information, further increasing the level and health consequences of toxic Administration’s commitment to the of specificity and detail of this analysis. chemical releases and other waste expansion of community right-to-know. The last stage in the screening process management activities. EPA’s proposal EPA received substantial public overlayed regulatory definitions, was intended to address this issue. The comment prior to the proposal, and existing program guidance, and any industry groups being finalized today considered these comments in its exemptions pertinent to activities are responsible for the ‘‘manufacture,’’ deliberations to develop the proposal. identified for the primary candidates. ‘‘process,’’ ‘‘otherwise use,’’ release and Additional information regarding EPA’s This stage of the analysis allowed EPA other waste management of substantial outreach may be found at Unit II.B. of to evaluate the degree to which EPCRA quantities of EPCRA section 313 the proposal (61 FR 33590) and in section 313 reporting would be expected chemicals, and are engaged in activities supporting documents included in the to occur for these ‘‘candidate industry similar to or related to activities Public Docket. groups.’’ Additional detail regarding the conducted at facilities within the screening process is provided in Unit C. Development of Industry Group manufacturing sector that currently II.C. of the proposal (see 61 FR 33591). Candidates report. EPA did not include certain industry Prior to the proposed rule, EPA groups for consideration in the proposal B. Outreach designed and executed a screening based on a number of unresolved issues, Prior to the proposed rule, EPA process intended to identify those which were referred to as ‘‘additional engaged in a significant and industry groups potentially most considerations’’ in the proposal. Among comprehensive outreach effort. This relevant to the purposes of EPCRA these issues included significant outreach served to inform interested section 313. EPA began its screening intergovernmental impacts; economic parties, including industry groups under process by analyzing what limited considerations; non-listed primary consideration, state regulatory officials, chemical use, release and waste chemical association (i.e., questions environmental organizations, labor management information was already remain regarding the industry’s routine unions, community groups, and the available for those industries. EPA involvement with EPCRA section 313 general public of EPA’s intention to reviewed several existing EPA data listed toxic chemicals); and the propose adding industry groups to the systems, including the Aerometric definition of a standard facility unit. EPCRA section 313 list. The outreach Information Retreival System (AIRS), Discussion of these issues is found at effort also allowed EPA to gather the Biennial Report System (BRS), and Unit II.D. of the proposal (see 61 FR additional information that assisted in the Permit Compliance System (PCS). 33592). the development of the proposed rule. The initial screening activity ranked EPA held two formal public meetings in industries at the 2-digit SIC code level D. Statutory Construction 1992 and 1995 prior to the proposed by the volume of EPCRA section 313 Congress provided EPA with explicit rule (57 FR 19126 and 60 FR 21190), chemicals identified in these systems statutory authority to expand the and held three public meetings during which could be estimated for each of the categories of facilities required to report the comment period for the proposal (61 data reporting systems (see 61 FR to TRI beyond those specified in section FR 33619 and 61 FR 40637). In addition, 33591). Those 2-digit SIC codes that 313(b)(1)(A), which applies EPCRA EPA used the regularly-held public made up 99 percent of the matched section 313 to facilities that are in SIC meetings of the Forum on State and EPCRA section 313 chemical release codes 20 through 39. The seven Tribal Toxics Action (FOSTTA), which volumes for non-manufacturing additional industry groups were represents state environmental agencies, facilities were selected from each proposed based on the authority and the National Advisory Council on reporting system. This list of 25 2-digit provided in EPCRA section 313(b)(1)(B), Environmental Policy and Technology, SIC codes was referred to as the ‘‘Tier which states: which includes members from industry, I’’ list for further consideration. The Administrator may add or delete environmental organizations, states, and The Tier I list represented an Standard Industrial Classification Codes for academia, to discuss the expansion of extremely large number of diverse purposes of subparagraph (A), but only to the EPCRA section 313 reporting individual industries. EPA collected extent necessary to provide that each requirements to new industry groups. and compiled information detailing the Standard Industrial Classification Code to EPA used a number of other specific activities conducted by which this section applies is relevant to the approaches to gather and share facilities within each of the 2-digit SIC purposes of this section. information regarding the expansion of codes, identified on the Tier I list with EPA believes that this provision grants EPCRA section 313 reporting emphasis on those activities that may the Agency broad, but not unlimited, requirements prior to publication of its involve section 313 chemicals. This discretion to add industry groups to the proposal. Beginning in 1994, EPA held industry-specific information for each 2- facilities subject to EPCRA section 313 a considerable number of meetings with digit SIC code, as well as chemical- reporting requirements where EPA finds interested parties regarding this specific data were integrated into that reporting by these industries would initiative, including what were referred documents referred to as ‘‘industry be relevant to the purposes of EPCRA to as ‘‘focus group meetings,’’ and profiles.’’ The next phase in the section 313. Thus, the statute directs 23836 Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations

EPA, when adding industry groups, to statutory standard may be found at Unit Conservation and Recovery Act (RCRA) consider and be guided by the III.B. of the proposal (see 61 FR 33593). program. For purposes of EPCRA ‘‘purposes’’ of EPCRA section 313. section 313, the definition would be B. Clarification of Threshold Activities EPCRA section 313(h) states that: interpreted to apply to any EPCRA EPA proposed to modify its The release forms required under this section 313 listed toxic chemical or section are intended to provide information interpretation of activities considered waste containing any EPCRA section to the Federal, State, and local governments ‘‘otherwise used’’ as it applies to 313 listed toxic chemical. Also, for and the public, including citizens of activity thresholds under EPCRA purposes of the EPCRA section 313 communities surrounding covered facilities. section 313(f). In 1988, EPA ‘‘otherwise use’’ reporting threshold, The release form shall be available... to promulgated a definition of ‘‘otherwise EPA proposed to interpret disposal to inform persons about releases of toxic use’’ that recognized the purposes of the include underground injection, chemicals to the environment; to assist statute and the statutory definitions of placement in landfills/surface governmental agencies, researchers, and ‘‘manufacture’’ and ‘‘process.’’ The impoundments, land treatment, or other other persons in the conduct of research and definition of ‘‘otherwise use’’ included data gathering; to aid in the development of intentional land disposal. A more appropriate regulations, guidelines, and certain activities that were not thorough discussion of this clarification standards; and for other similar purposes. ‘‘manufacturing’’ or ‘‘processing.’’ See of threshold activities is found at Unit Based on the Agency’s reading of the 40 CFR 372.3. IV. of the proposal (see 61 FR 33595). However, given that section 313 statute, pertinent legislative history, and C. Technical Review a General Accounting Office (GAO) originally applied to those facilities report critically analyzing the TRI which principally operate in the For each industry group proposed for program, the proposal identified several manufacturing sector, past reporting addition to EPCRA section 313, EPA purposes of the EPCRA section 313 guidance was tailored to address the conducted an extensive assessment. The program, as envisioned by Congress, principal activities conducted by information summarized in the including: (1) Providing a complete manufacturing facilities. That guidance proposed rule for each industry group profile of toxic chemical releases and instructed facilities not to include the describes the key data elements upon other waste management activities; (2) amounts treated (including treatment for which EPA relied to determine that the compiling a broad-based national data destruction and waste stabilization) or addition of facilities in the industry base for determining the success of disposed toward the ‘‘manufacture,’’ group was relevant to the purposes of environmental regulations; and (3) ‘‘process,’’ or ‘‘otherwise use’’ EPCRA section 313. This information ensuring that the public has easy access threshold. However, as EPA considered may be found at Units V.A through V.G. to these data on releases of toxic its interpretive guidance on ‘‘otherwise in the proposed rule (see 61 FR 33598). chemicals to the environment. EPA use’’ for purposes of its industry EPA’s assessment of these industries is expansion initiative, EPA was considered these purposes when based on the Office of Management and concerned that, as a result of its past exercising its discretion to add Budget Standard Industrial guidance, the public may not have particular industries to EPCRA section Classification (OMB SIC) Manual, 1987 access to information relating to the use 313. Additional discussion of EPA’s (Ref. 4). EPA is aware that OMB has and releases and other waste statutory authority for its proposed recently revised the classification management activities of toxic action can be found at Unit III.A. of the system (see 62 FR 17288). EPA will chemicals by facilities within SIC codes proposal (see 61 FR 33592). issue a notice in the Federal Register 20 through 39 that are receiving that will cross reference the OMB SIC III. Summary of Proposal materials for purposes of treatment for Manual 1987 and OMB’s recent destruction, stabilization, or disposal. revisions to identify manufacturing A. Interpretation of Statutory Standard This guidance would also result in sector groups and industry groups For purposes of the proposed rule, information gaps relating to the use and added to today’s rule. The following is which was EPA’s first use of section releases and other waste management a brief summary for each of the 313(b)(1)(B), EPA identified three activities of toxic chemicals by facilities proposed industry groups: primary factors to consider in within the candidate industry groups. EPA proposed to require that facilities determining whether the statutory Therefore, EPA proposed modifying operating in SIC code 5169, Wholesale standard would be met by addition of its interpretation of activities considered Nondurable Goods—Chemicals and the candidate facilities in industry ‘‘otherwise used’’ to include treatment Allied Products, Not Elsewhere groups under EPCRA section for destruction, disposal, and waste Classified (hereafter ‘‘Chemicals and 313(b)(1)(B). The three primary factors stabilization when the EPCRA section Allied Products’’), be subject to the identified by EPA are the following: (1) 313 facility engaged in these activities EPCRA section 313 reporting Whether one or more toxic chemicals receives materials containing any requirements. Facilities within this are reasonably anticipated to be present chemical (not limited to EPCRA section industry group receive EPCRA section at facilities within the candidate 313 listed toxic chemicals) from one or 313 chemicals in bulk, take possession industry group (‘‘chemical’’ factor); (2) more other facilities (regardless of of those chemicals and reformulate, whether facilities within the candidate whether the generating and receiving blend, and repackage materials industry group ‘‘manufacture,’’ facilities have common ownership) for containing section 313 chemicals for ‘‘process,’’ or ‘‘otherwise use’’ these purposes of further waste management. further distribution in commerce. toxic chemicals (‘‘activity’’ factor); and EPA proposed to define ‘‘treatment for EPA proposed to require that (3) whether facilities within the destruction’’ to mean the destruction of petroleum facilities in SIC code 5171 be candidate industry group can the toxic chemical such that the subject to the EPCRA section 313 reasonably be anticipated to increase the substance is no longer a toxic chemical reporting requirements. This industry information made available pursuant to subject to EPCRA section 313 reporting group includes facilities that receive EPCRA section 313, or otherwise further requirements. EPA proposed to define petroleum products and petroleum the purposes of EPCRA section 313 ‘‘waste stabilization’’ consistent with additives that contain EPCRA section (‘‘information’’ factor). Additional the definition at 40 CFR 265.1081, the 313 chemicals, take possession of those discussion of this interpretation of definition that is used in the Resource chemicals and reformulate, blend, and Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations 23837 repackage petroleum products prior to section 313 threshold activities and Services, Not Elsewhere Classified, and distribution in commerce. would result in reports relevant to the are primarily engaged in solvent EPA proposed to require that coal and purposes of EPCRA section 313. As a recovery activities involving EPCRA oil-fired electric utility plants in SIC result of EPA’s evaluation of coal section 313 chemicals. code 49 be subject to the EPCRA section mining, the Agency believes, based on D. Comment Period 313 reporting requirements. These currently available data, that facilities in facilities are classified in SIC code 4911- this industry which conduct only Upon publication of the proposed Electric Services, SIC code 4931-Electric extraction are unlikely to submit rule, EPA initially provided a 60–day and Other Services Combined, and SIC reporting information. EPA based this comment period. EPA then granted an code 4939-Combination Utilities, Not conclusion on its belief that EPCRA additional 30 days to allow interested Elsewhere Classified. EPA requested section 313 chemicals are not present parties further time for preparation of additional comment on whether to add above de minimis concentration levels their comments. During the comment SIC code 4960-Steam and Air during coal extraction, and the use of period, EPA held three public meetings: Conditioning Supply.1 Nuclear, EPCRA section 313 chemicals in coal August 7, 1996, in San Francisco; hydroelectric, gas and other non coal/ extraction activities in concentrations August 14, 1996, in Washington, DC (61 oil-fired electric generating stations above de minimis is unlikely to occur. FR 33619) (FRL–5382–3); and August typically do not generate power for Therefore, EPA proposed to exempt 19, 1996, in Chicago (61 FR 40637) distribution in commerce by combusting extraction activities conducted by (FRL–5390–9). While the meetings held fuel containing EPCRA section 313 facilities in SIC code 12 from all EPCRA in San Francisco and Washington, DC listed toxic chemicals. EPA proposed to section 313 reporting requirements. EPA were intended to solicit comment from add only those facilities within this proposed to interpret ‘‘extraction’’ for all interested parties, the meeting held industry group which combust fuels purposes of EPCRA section 313 to mean in Chicago was primarily intended to containing EPCRA section 313 listed the physical removal or exposure of ore, provide an opportunity for comment on toxic chemicals. While EPA recognized coal, minerals, waste rock, or the potential impacts on small entities that non coal/oil-fired electric overburden prior to beneficiation, and of the proposed action. The public generating stations may otherwise use encompasses all activities related to docket includes summaries of these EPCRA section 313 chemicals in extraction prior to beneficiation. public meetings, unedited transcripts, maintenance, cleaning, and purifying EPA also requested comment and copies of written statements operations, and that information on regarding whether a similar exemption provided by speakers. In addition, at the releases and other waste management should be applied to metal mining request of some interested parties, EPA data from these activities may have extraction as well. Based on existing staff met with representatives of several some value, these support activities are data, EPA believed that metal mining firms, trade associations, and non- not the primary function of the facility. extraction and coal mining extraction governmental organizations to discuss Thus, EPA chose, at this time, to limit are similar types of operations, and that the proposed rule. Summaries of these its proposal to the addition of coal and the use of EPCRA section 313 chemicals meetings are also included in the public oil-fired plants in the proposed in concentrations above de minimis docket. rulemaking. during extraction is unlikely in both IV. Summary of Final Rule EPA also proposed to require that industries. However, EPA recognized In this action, EPA is adding seven facilities engaged in metal mining be that the composition of extracted material is different in metal mining and industry groups to the list of facilities subject to the EPCRA section 313 subject to the EPCRA section 313 reporting requirements. The proposed coal mining and EPA believed that EPCRA section 313 chemicals can be reporting requirements. These industry addition was limited to facilities in SIC groups are metal mining ((SIC code 10 code 10-Metal Mining except SIC code present above de minimis concentrations in metal ore. (except 1011, 1081, and 1094)), coal 1081-Metal Mining Services. Facilities mining ((SIC code 12 (except 1241)), in SIC code 1081 generally do not EPA proposed to require that facilities classified within SIC code 4953, which electric utilities (SIC codes 4911 conduct threshold activities; activities (limited to facilities that combust coal performed by facilities in SIC code 1081 are also regulated under the RCRA Subtitle C program, be subject to the and/or oil for the purpose of generating primarily consist of contracted services electricity for distribution in for mining operations in the other SIC EPCRA section 313 reporting requirements. Facilities operating in SIC commerce), 4931 (limited to facilities codes. that combust coal and/or oil for the EPA also proposed to require that code 4953 that are regulated under purpose of generating electricity for facilities engaged in coal mining be RCRA (the primary federal law distribution in commerce), 4939 subject to the EPCRA section 313 addressing waste management) subtitle (limited to facilities that combust coal reporting requirements. The proposed C, are engaged primarily in the and/or oil for the purpose of generating addition was limited to facilities in SIC collection, transportation, treatment for electricity for distribution in code 12-Coal Mining except SIC code destruction, stabilization, and/or commerce)), commercial hazardous 1241-Coal Mining Services. EPA does disposal of hazardous waste containing waste treatment (SIC code 4953 (limited not believe that SIC code 1241 includes EPCRA section 313 toxic chemicals and include incinerators, underground to facilities regulated under the RCRA facilities which conduct threshold injection facilities, waste treatment Subtitle C, 42 U.S.C. section 6921 et activities or routinely handle large plants, hazaradous waste landfills, and seq.)), chemical and allied products- volumes of EPCRA section 313 other facilities designed for the wholesale (SIC code 5169), petroleum chemicals. bulk terminals and plants (also known EPA believed that activities associated treatment for destruction, stabilization, as stations)-wholesale (SIC code 5171), with beneficiation in both metal and and disposal of hazardous waste. EPA proposed to require that facilities and solvent recovery services (SIC code coal mining operations include EPCRA engaged in solvent recovery operations 7389 (limited to facilities primarily 1This SIC code was misnumbered although be subject to the EPCRA section 313 engaged in solvents recovery services on correctly described in the proposal; the correct SIC reporting requirements. These facilities a contract or fee basis)). EPA finds that code is 4961. are classified in SIC code 7389 Business each of these industry groups meets the 23838 Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations

EPCRA section 313(b)(1)(B) standard. affected facilities to become familiar applies is relevant to the purposes of [section EPA believes that the addition of these with the rule. 313]. industry groups will further the goals of V. Summary of Public Comments EPA believes that this provision gives EPCRA section 313 and significantly authority to the Agency to add industry add to the public’s knowledge about the The public comment period for the groups and provides guidance for the use and disposition of toxic chemicals proposed rule (61 FR 33588) closed identification of the new sectors--i.e., in their communities. September 25, 1996. EPA received 2,715 where EPA finds that reporting by The proposed rule and the record comments, including 470 from industry, facilities within those groups would be 86 from trade associations, 60 from supporting the rulemaking contain relevant to the purposes of EPCRA environmental groups, 1,875 from information on EPA’s review of these section 313. Although the statute does private citizens, 5 from Federal industry groups. That background use the term ‘‘to the extent necessary’’ agencies, 43 from State agencies, 108 information will not be repeated here. in describing EPA’s authority, the use of from public interest groups, 18 from However, to the extent that comments the phrase ‘‘relevant to the purposes’’ of labor groups, 14 from universities, and were received on these issues, those section 313 indicates that rather than 36 from associations. Detailed responses comments are briefly addressed in this having to find that it is somehow to these comments are contained in the document. In addition to general ‘‘necessary’’ to add an industrial group Response to Comments document (Ref. comments and comments pertaining to to those reporting under EPCRA section a number of the proposed industry 15). In addition to comments supporting 313, it is ‘‘necessary’’ for EPA to find groups, EPA received specific technical that potential reporting by that group comments on each of the industry the proposed expansion of industry would be relevant to the purposes of groups. Detailed responses to comment groups, EPA received comments in the EPCRA section 313 in order to exercise are contained in Response to Comments following major areas: EPA’s screening its authority to add that group. Received on the June 27, 1996 Proposed process used to identify potential The legislative history of section Rule to Expand the EPCRA Section 313 candidates; EPA’s interpretation of 313(b)(1)(B) confirms EPA’s List of Industry Groups (hereinafter authority under EPCRA section 313; interpretation of the statutory text. The Response to Comments document, Ref. application of the statutory criteria; Senate-passed bill encompassed 15). compliance with existing laws and EPA is not including SIC code 1011 policies; EPA’s interpretation of release; reporting by only those facilities within (Metal Mining: Iron Ores) in this reporting exemptions; duplicative SIC codes 20 through 39, whereas the rulemaking based on the information reporting; general technical comments; House legislation contemplated that any available to EPA as discussed in Unit and industry-specific comments. facilities handling above-threshold amounts of reportable chemicals would V.H.2. of this preamble. EPA received A. Statutory Authority comments requesting that EPA be subject to the reporting requirements. specifically exclude SIC Code 1011 Iron While many commenters support The Conference Committee that Ore Mining. EPA may reconsider the EPA’s exercise of its authority to add developed the language eventually addition of this industry segment at a industry groups to EPCRA section 313, enacted into law stated as follows: future date in light of additional a number of commenters argue that The conference substitute combines information. EPA’s authority to add industry groups elements of the Senate and House In addition, EPA is deferring final to the TRI program is severely restricted. amendments. Coverage of facilities is based action on SIC code 1094 (Metal Mining: Some of these commenters argue that on SIC Codes 20-39, except that [EPA] may Uranium-Radium-Vanadium Ores) until language in EPCRA section 313(b)(1)(B) add or delete SIC Codes to the extent a later date. EPA received comments limits EPA to adding industry groups necessary to achieve the purposes of this during the inter-agency review process only to the extent it is ‘‘necessary’’ section. . . . under Executive Order (E.O.) 12866 for under that provision. Others state that Subparagraph 313(b)(1)(B) of the this expansion initiative that raised EPA may add or delete only those conference substitute provides that: difficult technical and policy issues industries within the traditional [EPA] may add or delete SIC codes which will require additional time to manufacturing sector SIC codes 20 specified for coverage in the legislation. This address. The Agency does not believe through 39, which were made subject to authority is limited, however, to adding SIC that it would be in the spirit of the TRI program by Congress pursuant codes for facilities which, like facilities community right-to-know to delay final to the statute at EPCRA section withing the manufacturing sector SIC codes action on all of the remaining industry 313(b)(1)(A). On similar reasoning, still 20 through 39, manufacture, process or use groups, pending completion of work on other commenters argue that EPA’s toxic chemicals in a manner such that SIC code 1094. EPA will make a final authority to add industrial reporting by these facilities is relevant to the purposes of [section 313]. determination as to whether this classifications is limited to those that industry group should be added to are in some manner ‘‘like’’ or ‘‘akin’’ to Conf. Rep. 99-962 at 292. Thus, the EPCRA section 313. If EPA’s final those within the traditional Conference Report clearly indicates that decision is to add this industry group, manufacturing sector. where EPA finds that the addition of an EPA will accomplish this through a EPA believes that in EPCRA section industry group to the TRI program future rulemaking. The public comment 313(b)(1)(B), Congress gave EPA the would be relevant to the purposes of that has been received specific to this authority to add industry groups to the that program, section 313(b)(1)(B) deferred industry segment will be TRI program, whenever the Agency authorizes EPA to add that group to addressed as part of the future reasonably finds that reporting by those subject to EPCRA section 313 rulemaking discussed above. facilities within those groups would be reporting. These additions are effective relevant to the purposes of the TRI EPA does not agree with comments beginning on January 1, 1998, as program. EPCRA section 313(b)(1)(B) that the additional industry groups must discussed in Unit V.D. of this preamble. provides that: be within the traditional manufacturing EPA believes that this schedule permits The [EPA] may add or delete [SIC] Codes. sector, or must be like or akin to that the preparation of sector-specific . .but only to the extent necessary to provide sector in the way they ‘‘manufacture,’’ guidance and sufficient time for newly that each [SIC code] to which [section 313] ‘‘process,’’ or ‘‘otherwise use’’ toxic Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations 23839 chemicals. The question under section facilities is relevant to the purposes of this facilities likely to report releases of 313(b)(1)(B) is whether potential section. [S]imilarly, the authority to delete EPCRA section 313 toxic chemicals reporting by an additional group would SIC codes from within SIC codes 20 through resulting in immediate human be relevant to the purposes of the TRI 39 is limited to deleting SIC codes for exposures or significant risks to public facilities which, while within the program. While the Conference Report manufacturing sector SIC codes, health. These commenters apparently did refer to adding SIC codes for manufacture, process or use toxic chemicals believe that reporting is only relevant to facilities which are ‘‘like facilities in a manner more similar to facilities outside the purposes of EPCRA section 313 if it within the manufacturing sector,’’ id., the manufacturing sector[,] communicates information about local EPA believes the relevant similarity is must be read in context. By prefacing risks to the local public. Commenters not the operational nature of the the sentence on deletion with argue that absent such a finding relative industry group, but in the informational ‘‘similarly,’’ Congress is connecting it to to a candidate industry group, reporting value of reporting on toxic chemical the prior sentence on addition, and by the group will mislead the public use, management, and disposition--i.e., directing EPA to use the same basic about the nature of the risks relative to the language in the statute and criterion--relevance to the purposes of the information on TRI. Conference Report communicates EPCRA section 313--for both addition EPA does not agree that the Agency Congress’ intent that EPA may expand and deletion of industry groups. The use must evaluate the potential for local, the SIC code coverage to include other of the manufacturing/non- human exposures, and risks to facilities that will contribute to the TRI manufacturing dichotomy in the determine whether a candidate industry data base information on the use and deletion sentence reflects the content of group may be added under EPCRA disposition of toxic chemicals in the section 313(b)(1)(B). As discussed United States. By including SIC Codes the EPCRA section 313 facility list at the time, rather than a congressional intent above, EPCRA section 313(b)(1)(B) 20 through 39, Congress made a authorizes the addition of industry judgment that reporting by those to limit for all time the authority to add non-manufacturing industry groups to groups where reporting by such industries would be relevant to the industry groups is relevant to the purposes of the TRI program; Congress the TRI program. At the time this statement was made, the only facilities purposes of EPCRA section 313, which then authorized EPA to include are described in EPCRA section 313(h) additional SIC codes, where EPA finds eligible for deletion were those in SIC to include informing ‘‘the public, that reporting by those industries would codes 20 through 39. Therefore, the only including citizens of communities also be relevant to the TRI program. frame of reference for the discussion surrounding covered facilities. . . about There is no indication that Congress was the manufacturing sector. Under releases of toxic chemicals to the intended TRI to forever remain only a those circumstances, it is reasonable for environment; to assist governmental Manufacturers’ Toxics Release Congress to have used the distinction agencies, researchers, and other persons Inventory. In this rule, even though EPA between manufacturing and non- in the conduct of research and data believes that EPCRA permits addition of manufacturing to describe EPA’s gathering; [and] to aid in the industry groups composed of facilities authority to delete facilities from the development of appropriate regulations, that ‘‘manufacture,’’ ‘‘process,’’ or EPCRA section 313 list. As discussed guidelines, and standards.’’ 42 U.S.C. ‘‘otherwise use’’ toxic chemicals in a above, EPA does not believe that this section 11023(h). Thus, as EPA manner different from facilities within distinction is controlling for purposes of explained in its proposal, the Agency the traditional manufacturing sector, the adding facilities to the section 313 list concludes from the language of the Agency has limited the addition to because EPA does not believe that statute and the legislative history that industry groups that have significant operational similarity to the there are three functional purposes for ties to the manufacturing sector. manufacturing sector is a necessary In addition to the general comments correlate of ‘‘relevant to the purposes’’ the EPCRA section 313 reporting regarding EPA’s authority to add of EPCRA section 313. program: (1) To provide a complete industry groups to the EPCRA 313 Other commenters argue that profile of the disposition of toxic facility list, commenters raise some Congress’ adoption of the PPA evinces chemicals through reporting of toxic more specific authority questions. a congressional intent to require chemical releases and waste These, along with EPA’s responses, are reporting only from industries that are management activities; (2) to compile summarized below. Further detail is capable of source reduction. EPA agrees such information into a broad-based provided in the Response to Comments that the reporting required under PPA national data base for use in document (Ref. 15). section 6607 is an extension of reporting determining the success of Several commenters read the statutory required under EPCRA section 313. environmental programs; and (3) to provision regarding addition of Thus, facilities required to report under ensure that the public has easy access, facilities, in conjunction with a EPCRA section 313 are also required to in an understandable format, to the data discussion in the Conference Report, to report for purposes of PPA section 6607. base and raw information (see 61 FR indicate that EPA may add industry However, EPA disagrees with 33593). Neither EPCRA section 313(h) groups only if those groups commenters’ conclusion that adoption nor its legislative history indicates that manufacture, process, or otherwise use of the PPA in 1990 characterizes the purpose of EPCRA section 313 is for listed chemicals in a manner similar to Congress’ intent in its previous adoption the federal government to collect only facilities in SIC codes 20 through 39. of EPCRA section 313. In fact, in that information from only that sector of EPA disagrees with the conclusion enacting the PPA, Congress specifically industry that releases EPCRA section drawn by the commenters. The provided that ‘‘[n]othing in [the PPA] 313 toxic chemicals such that, from the discussion at issue, shall be construed to modify or interfere federal government’s perspective, there with implementation’’ of EPCRA. PPA is significant local human exposure and [EPA’s] authority is limited, however, to human risk from those releases. adding SIC codes for facilities which, like section 6609(a), 42 U.S.C. section facilities within the manufacturing sector, 13108(a). Therefore, EPA does not believe that SIC codes 20 through 39, manufacture, Many commenters interpret EPA’s EPCRA section 313(b)(1)(B) requires a process or otherwise use toxic chemicals in authority to add industry groups to be determination of the potential for a manner such that reporting by these limited to those groups composed of significant exposures or risk to the local 23840 Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations human population from the release of programs, EPA believes that the public section 313 data can be used to toxic chemicals from facilities within should have the opportunity to disagree complement sections 311 and 312 data candidate industries. with the federal government’s to provide a more comprehensive Federal and local perspectives on assessments of its own environmental understanding, TRI was designed to what may be an acceptable risk are programs, or with the federal or state stand alone. The information reported likely to be very different. The roles of government’s standards established on TRI is available to the public, and local government and the federal under those programs. Information thus, is available to the local emergency government differ significantly in terms provided on TRI allows for broader officials. However, it is not directly of ensuring environmental quality. In public involvement on such issues. reported to such officials and therefore passing EPCRA, Congress determined Some commenters conclude that is not likely to overwhelm them with that it is for the public to take the where there is limited existing information not relevant to accidental information reported on the use and knowledge of the constituents of the releases. releases and other waste management of materials handled by facilities within a Finally, several commenters argue toxic chemicals, and to determine candidate industry group, and that unless a specific activity involving whether there is a need for any response estimation is infeasible or inconsistently a toxic chemical by the candidate given other factors, such as economic applied, reporting by the candidate industry group is specifically identified and environmental conditions, or industry is not relevant to EPCRA within the statutory definitions of particularly vulnerable human or section 313 because it is not likely to ‘‘manufacturing’’ or ‘‘processing,’’ ecological populations. Congress did not provide meaningful data. EPA Congress did not intend to require intend the federal government to recognizes that EPCRA section 313 does reporting from that industry group. consider these local factors prior to not require reporting to be based on Specifically, the mining community determining whether certain actual monitoring where such commented that Congress did not information should be made available to monitoring is not already required consider ore extraction or beneficiation the public, or prior to determining under other provisions of law. See to be within the statutory definitions of whether an industry group should be EPCRA section 313(g). Further, EPCRA ‘‘manufacture’’ or ‘‘process.’’ added. permits reports to be based on readily Commenters believe that Congress was Moreover, while human exposure and available monitoring information or, aware of differences between the terms risk may be viewed by some as the focus where monitoring data are not readily extraction and beneficiation, and of EPCRA section 313, they were not available, on reasonable estimates. EPA ‘‘manufacturing’’ and ‘‘processing,’’ and Congress’ sole concern in enacting that agrees that the legislative history shows would have added extraction and section. EPA believes that that reporting based on estimation was beneficiation activities to the definitions environmental considerations are also permitted to alleviate burdens that of either ‘‘manufacturing’’ or important. That Congress looked beyond might be imposed by monitoring ‘‘processing’’ if it meant them to be human exposures and risks when requirements. However, EPA believes included. Commenters conclude that enacting EPCRA section 313 is amply that Congress recognized that while the non-inclusion of these terms is demonstrated by the fact that chemicals reporting based on estimation is not as evidence of Congress’ plain intent not to can be included on the EPCRA section exact as reporting based on monitoring, subject SIC code 10 to reporting. 313 list based on environmental effects estimation can result in information that EPA disagrees with commenters’ alone. is useful to the public. Otherwise, one reading of congressional intent because Some commenters argue that would have to conclude that Congress first, for an industry group to be added reporting by a candidate industry is not knowingly required industries to report to the EPCRA section 313 list, activities relevant to EPCRA section 313 if information that was not possible to at facilities in that group may fall within reporting will lead the local public to develop or that was not useful for the the statutory definitions of either conclude that a particularly successful purposes outlined in EPCRA section ‘‘manufacture’’ or ‘‘process’’ or within environmental program, such as a 313(h). Specific comments on this issue ‘‘otherwise use,’’ which EPA believes is pollution prevention effort, is in fact not particular to each industry added are a broad category of additional successful. EPA disagrees with the addressed in the industry-specific industries. EPA also disagrees with conclusion that the local public responses to comments. commenters’ specific conclusion that necessarily will be misled by having Other commenters argue that where because the definitions of access to the information reported on reporting from the candidate industry is ‘‘manufacture’’ and ‘‘process’’ as they TRI. Misuse or misinterpretation of not likely to assist in the preparation of appear in the statute do not expressly information does not mean that the emergency plans or to result in contain the words beneficiation or basis for collecting the information is reporting of emergency releases, extraction that Congress specifically invalid. EPA believes that the addition of the candidate industry is not intended to exclude the mining industry appropriate solution to this issue for TRI relevant to the purposes of EPCRA from any EPCRA section 313 reporting is education and outreach, rather than a section 313. Others argue that the requirement. Again, legislative history decision not to include an otherwise information reported by the added does not support this interpretation of eligible industry group on TRI. As industries is likely to overwhelm the the statute. Nor do the commenters discussed in Unit V.I.2. of this local emergency officials. EPA disagrees point to any general rules of statutory preamble, EPA has taken steps and with these comments. EPCRA section construction that would support their continues to take aggressive measures to 313 is concerned with the public’s right interpretation. In other sections of assure that the information reported is to know about the use, management, EPCRA, where Congress intended to unbiased and is communicated in a and disposition of toxic chemicals. exempt a particular activity, it did so responsible manner. Moreover, while Separate provisions, EPCRA sections expressly, for example, in providing an EPA agrees that compilation of the 311 and 312, 42 U.S.C. 11021 and exemption for the transportation and information required to be reported on 11022, are intended to address a distribution of natural gas in section 327 TRI is, in part, a valuable tool for use community’s preparedness for of EPCRA. 42 U.S.C. 11047. Had by the federal government for measuring emergencies resulting from accidental Congress intended to exclude mining the success of its environmental releases of hazardous chemicals. While activities, EPA believes it is reasonable Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations 23841 to conclude that Congress would have that EPA describes will have consistent lower in rank compared to other expressly provided such an exemption. impacts across the industries being industries that are not being added. In the absence of such exemptions, EPA evaluated. The commenter further In the proposed rule, EPA did not believes that Congress intended the contends that EPA ‘‘is simply base its determination that individual phrase ‘‘manufacture, process, or dismissing these very serious problems industries met the statutory standard for otherwise use’’ of toxic chemicals to with the data systems by saying that the addition on the ranking model results. encompass a broad scope of activities systems are only being used to Many of the industries that appeared to involving toxic chemicals, the reporting extrapolate data for relative be ranked higher than some other of which would be relevant to the comparisons [and that this approach] industries were screened out for a public-information purposes of section overlooks this fundamental problem variety of reasons, such as a lack of 313. with using these data systems to information to adequately determine estimate releases of TRI chemicals.’’ whether the industry conducts activities B. Screening Process for Candidate that would be reportable on the TRI. Industries Based on many of the comments, it is evident that the commenters had The ranking model was one method The screening analysis used by EPA confused EPA’s use in the screening used as part of the screening process to to identify candidate industries for this process of the data from other regulatory identify the candidate industries that rulemaking consisted of several programs with the bases for EPA’s would be further considered for procedures used to prioritize and focus determination that candidate industries addition to the TRI program. Industries on those industries whose potential met the statutory standard for addition. which were not proposed for one of the addition to EPCRA section 313 would EPA did not use the data extracted from above mentioned reasons may be most likely result in significant other regulatory programs in the included in future EPCRA expansion environmental and public information screening process to project the amounts activities. benefits. This analysis was not used to A number of commenters stated that of EPCRA section 313 chemicals select industries for addition, but was they believe that TRI-like information ‘‘released,’’ or to determine whether used to help organize and evaluate already exists and EPA should focus its candidate industry groups met the potentially significant chemical uses, efforts on making those data available. statutory standard for addition. As EPA and to identify and prioritize industry EPA expended a significant amount of stated in the screening document, ‘‘[it] groups that warranted further resources in extracting and evaluating does not necessarily believe that the consideration. Further details of the the data from existing data bases for data contained in these systems equate screening process are included in Unit purposes of their use in the screening to the information on amounts of toxic II.C. of this preamble and in the analysis. EPA’s experience with these proposed rule. chemicals managed by facilities as that data, along with many of the other Commenters raised a number of issues reported under section 313’’ (Ref. 10). comments received, reinforce EPA’s regarding EPA’s screening process. Rather, ‘‘data contained in these systems belief that data equivalent to TRI data Although EPA has responded to these can be used as indicators of which do not currently exist for the new comments, it is important to note that industries are routinely involved with industry sectors and that the extension the screening process itself was not a EPCRA section 313 chemicals,’’ Id., and of TRI to these industries is necessary to part of this rulemaking, but was a to evaluate the degree to which provide the public greater access to process used to identify candidate reporting would be expected to occur. information on the use, management, industry groups for further EPA used those data only for those and disposition of chemicals within consideration in this rulemaking. purposes. The ‘‘relative comparison’’ their communities. Several commenters raised a variety cited by the commenter was limited to A few commenters stated that EPA of issues and concerns related to EPA’s an evaluation of which industries may failed to evaluate information collected use of data collected under existing or may not routinely handle section 313 by states in the analyses supporting this regulatory programs. These comments chemicals, based on indications of rulemaking. Another commenter ranged from an assertion that the data chemical associations developed from asserted that EPA failed to take collected in these systems and the the data systems. EPA believes that its advantage of experience gained by those manner in which the data were use of the data systems from other states that have expanded their TRI-like summarized are entirely inappropriate regulatory programs was valid for this programs. EPA disagrees with these for EPA’s TRI industry screening and purpose. EPA has provided responses, comments. Generally, the commenters selection processes, to the view that in the Response to Comments document failed to distinguish between analyses these data systems already provide (Ref. 15), to the major issues raised by EPA conducted as part of the screening information equivalent to TRI, so that commenters regarding specifics used to identify potential candidate extension of EPCRA section 313 involved with the use of data extracted industries and the ‘‘selection factors’’ reporting requirements to these from other regulatory programs. and information on which EPA relied to industries is redundant and Some of the comments received determine whether candidate industries unnecessary. focused on the ranking model that was met the statutory standard for addition. One commenter disagreed with EPA’s developed to screen candidate industry The extent to which EPA relied on state determination that ‘‘the methodologies groups. Specifically one commenter data to support the addition of used to develop the volume data were questioned EPA’s use of the model in individual industries is addressed in the applied consistently across industries identifying candidate industries and industry specific-sections of this notice reporting within each system...[which] based on results generated by the and the Response to Comments allows a relative comparison among ranking model, questioned EPA’s document (Ref. 15). What follows industries’’ (Ref. 10), based on EPA’s decision to include particular industries below, is an explanation of the extent to statement in the screening document in the proposal. In particular, the which EPA relied on state experience in that each of the data systems used commenter questioned why some its screening analyses and in applying contain biases and limitations. The industries, such as some of the 4-digit its selection factors. commenter stated that there is no reason SIC codes in the metal mining industry, The Agency has followed closely the to believe that the biases and limitations are being added when they appeared activities of Massachusetts, Minnesota, 23842 Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations and Arizona in their expansion of their nationally in a form comparable to TRI including them in the TRI program state right-to-know programs. Some of data; however, to the extent appropriate, would advance the public-information the experience gained by these states EPA used existing information on purposes of that program (See Unit II.D. was determined to be relevant to the permitted emissions to evaluate the and V.A. of this preamble for further federal right-to-know program, and in potential association of industries with discussion), and EPA believes that the those instances the information was EPCRA section 313 toxic chemicals for selection factors developed for this either considered during the screening, purposes of screening for candidate rulemaking help ensure that the or was taken into account when EPA industries. Further discussion is industries selected for inclusion in the applied its selection factors. However, provided in the Response to Comments program will in fact further the for both purposes, EPA often found the document (Ref. 15). The fifth and last purposes of section 313. Identifying type of information generated or element considered by MERC was the facilities that are known to handle listed evaluated by state activities to be technical difficulty posed by unique section 313 toxic chemicals on a routine limited in scope, or more relevant to circumstances in reporting TRI type basis (chemical factor), makes it likely considering specific facilities for information. EPA did not use this that a candidate industry might have addition pursuant to EPCRA section element as part of the screening process reportable information. Determining 313(b)(2). but did consider it in subsequent that facilities routinely conduct For example, Minnesota’s Emergency assessment activities prior to selecting activities that meet the definitions of Response Commission (MERC) used the industries for inclusion in the proposed ‘‘manufacture,’’ ‘‘process,’’ or following criteria to make industry rule. ‘‘otherwise use’’ under section 313 EPA received several comments on its additions to their program: (1) Number (activity factor) serves to increase the application of ‘‘additional of facilities in industry; (2) percent of likelihood that facilities within an considerations’’ to industries listed as facilities in SIC code that would likely industry group are involved with listed candidate industries as a result of the report; (3) number of toxic chemicals in toxic chemicals is likely to result in screening process. A number of these reportable quantities; (4) amount of their reporting to TRI. Finally, the comments took issue with EPA’s use of releases and transfers; and (5) technical information factor takes into account these additional considerations to limit more specific details regarding the difficulty in reporting (Ref. 3). EPA the candidate industries considered for nature of each industry’s activities evaluated each of the criteria used by inclusion in the proposal. EPA did not involving listed chemicals, to evaluate MERC and considered several of them apply the additional considerations as their likelihood of reporting information during the screening. EPA also selection factors. Rather, these that will serve the purposes of the considered these state criteria when considerations represent several issues statute. identifying factors that it would EPA continued to address for particular A number of comments were received consider in this rulemaking to industry groups, while it proceeded that took issue with EPA’s development determine whether candidate industries with the rulemaking for the remaining and application of the factors used to met the EPCRA section 313(b)(1)(B) candidate industries. Some of these select the industries for addition to standard for addition. (See Unit V.C. of considerations are addressed further in EPCRA section 313. Some commenters this preamble for a discussion of EPA’s Unit V.H. of this preamble, relating to criticized EPA’s selection factors, stating consideration of the selection factors specific industries and in the Response that they are not relevant to section 313 used in this rulemaking). EPA did not to Comments document (Ref. 15). and its purposes. Two commenters use element one, the number of facilities stated, ‘‘[the] three criteria [selected by C. Application of Statutory Standard in the industry. EPA does not believe EPA] embody the position that there are that such a consideration is appropriate As discussed in Unit III.B. of the no limits to its authority to add to the for a program designed to address local preamble to the proposed rule (see 61 list of industries.’’ Similarly, a third information needs; the number of total FR 33593-95), EPA’s interpretation of its commenter asserted that the criteria facilities nationwide within a particular authority to add industrial groups to the appear to be too broad with little detail industry group may not be relevant to a TRI program under EPCRA section in explaining why they were chosen. A community in which a particular 313(b)(1)(B) led the Agency to develop number of other commenters stated that facility or cluster of facilities is located. three primary factors that it believes to EPA’s methodology and selection The second element used by MERC, be suitable for use in this rulemaking to criteria are flawed, artificial, percent of facilities in SIC code likely to determine whether to add particular meaningless, and/or inconsistent with report, was included during EPA’s candidate industries. Those factors legislative history and depart from the screening analysis, and its association consist of: (1) Whether one or more purposes of the statute, as well as being with EPA’s selection factors is discussed listed toxic chemicals are reasonably inappropriately and arbitrarily applied. in Unit V.C. of this preamble. The anticipated to be present at facilities in At the same time, EPA received a number of toxic chemicals in reportable that industry (chemical factor); (2) number of comments that challenged quantities, the third element MERC whether facilities within the candidate the use of any factors, asserting that evaluated, was considered in the industry group ‘‘manufacture,’’ instead of adding individual industrial ranking model as part of the screening ‘‘process,’’ or ‘‘otherwise use’’ EPCRA groups EPA should require any facility process. For example, as described in section 313 listed toxic chemicals exceeding the thresholds to comply Development of SIC Candidates: (activity factor); and (3) whether with the EPCRA section 313 reporting Screening Document (Ref. 10), a addition of facilities within the requirements. significant element in the ranking model candidate industry group reasonably EPA disagrees that its selection factors was composed of instances where can be anticipated to increase the ‘‘embody the position that there are no facilities were matched with toxic information made available pursuant to limits to its authority to add to the list chemicals which are carcinogens as EPCRA section 313 or to otherwise of industries,’’ or otherwise conflict defined in 29 CFR 1910.1200(d)(4). The further the purposes of EPCRA section with its statutory authority. As fourth element, amount of releases and 313 (information factor). EPA interprets discussed in Unit V.A., EPA believes transfers, is information that EPA section 313(b)(1)(B) as authorizing the that its authority to add industries is believes is not readily available Agency to add industries where broad but not unlimited. Consequently, Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations 23843

EPA’s factors are intended to guide to those conducted by facilities within EPA believes that this type of EPA’s exercise of discretion to ensure the manufacturing sector. EPA does not information is generally not readily that its decision is reasonable, and believe that Congress intended to available for the industries being added, limited to adding industries whose confine the TRI program to industries and that efforts to estimate it may result addition serves to further the purposes which handle toxic chemicals in the in potentially significant errors and are of EPCRA section 313, but not to limit same ways as the manufacturing sector typically met with criticism. As a result, or otherwise restrict EPA’s ability to add because, among other reasons, Congress EPA selected industry groups by using industry sectors beyond the statutory itself applied the program to the available information to identify language. The selection factors used by manufacturing sector and then industries that are likely to manage EPA were used to limit additions to authorized EPA to apply the program to listed chemicals in a reportable manner, only those industry groups or specific additional sectors. This issue is such that addition of those groups facilities that are likely to provide discussed further in Unit V.A. of this would most likely further the purposes information relevant to purposes served preamble. Therefore, as discussed in of making TRI data available. As by EPCRA section 313. In addition, as Unit III.B.2. of the preamble to the discussed in Unit VII. of this preamble, discussed in both the preamble to the proposed rule, EPA applied the activity EPA will initiate an intensive proposed rule at 61 FR 33592-33595, factor to determine whether facilities in stakeholder process to comprehensively and in this document in Unit V.A., EPA each candidate industry ‘‘manufacture,’’ evaluate the current reporting forms and disagrees that EPA’s selection factors are ‘‘process,’’ or ‘‘otherwise use’’ listed reporting practices. in any way inconsistent with the toxic chemicals, as those terms are Several commenters suggest that EPA legislative history. EPA also disagrees defined in the statute and EPA consider risk or the level of exposure in that it inappropriately or arbitrarily regulations and guidance. adding industries to EPCRA section 313. applied its selection factors. Where Another commenter suggested that Among such comments were those commenters raised issues with regard to EPA expand the third factor stating that TRI must inform the public the application of the selection factors (information) to include additional whether toxic chemical releases pose a to particular industries, EPA has considerations: (1) That the information threat to the public and not simply responded in the specific industry is otherwise unavailable or less present the public with unqualified and section of the Response to Comments accessible to the public or government, misleading information. EPA believes document (Ref. 15). and (2) that the information provided that a risk-based approach to EPCRA One commenter stated that the has practical utility such as allowing section 313 reporting is at odds with the approach used for determining the agencies to properly plan for and basic premise of EPCRA section 313, presence of EPCRA section 313 toxic respond to emergencies and understand which is to get information about the chemicals at candidate facilities is risks associated with activities use, disposition, and management of flawed because of questions about the conducted at a particular facility. toxic chemicals into the public domain, reliability of data bases used for EPCRA EPA is required by regulations issued enabling the users of this information to section 313 toxic chemical release to implement the Paperwork Reduction evaluate the information and draw their estimates. As noted above in Unit II.C. Act (PRA) to certify that the information own conclusions about risk. This is and V.B. of this preamble, the three to be reported pursuant to this rule will discussed further in Unit V.A. of this primary data bases (AIRS, BRS, and have practical utility and that it will not preamble. EPA is sensitive to industry’s PCS) were used in the screening process be duplicative. Consequently, EPA concern about the TRI data being to identify which industries may believes that including such misunderstood or misused, and will be routinely manage EPCRA section 313 considerations as selection factors continuing its separate efforts to toxic chemicals. They were not used to would not provide any additional promote better understanding and project an industry group’s amount of information. EPA has addressed the appropriate use of this information. toxic chemical releases or in any other extent to which the information that One commenter believes that the way to determine, during the industry will be reported under this rule is burden of reporting should be a selection process, whether candidate otherwise unavailable or less accessible criterion in selecting industry industries met the EPCRA standard for to the public or government and has categories. This commenter also stated addition. The information supporting practical utility in Unit V.I.1. of this that EPA should consider not only costs EPA’s evaluation of the chemical factor preamble. to facilities to report, but the number of was taken from the industry process Several other commenters suggested small businesses in the industry and the information contained in the industry that prior to adding an industry group, capability of facilities to report. This profiles and economic analysis, each of EPA make a determination as to the commenter further claimed that which contains numerous additional amounts of chemicals that are Executive Order 12866 requires EPA to references. EPA’s use of AIRS data in its anticipated to be reported as released or incorporate costs and related factors in economic analysis is discussed in the otherwise generated or handled by that the selection criteria. Economic Analysis (Ref. 12) and industry. EPA generally does not have EPA is separately required to consider Response to Comments document (Ref. available to it this type of information anticipated regulatory impacts and costs 15). for industry groups not currently under Executive Order 12866, the Several other commenters stated that reporting to TRI. Moreover, EPA does Unfunded Mandates Reform Act EPA’s activity factor should be modified not believe that this is a factor that is (UMRA) (Pub. L. 104-4), and the to include the manner in which appropriate for selecting industry Regulatory Flexibility Act (RFA) (5 industries manage EPCRA section 313 groups. During the analyses conducted U.S.C. 601 et seq.). EPA takes very toxic chemicals in relation to how such for this rulemaking, EPA went to seriously its obligations to consider chemicals are managed within the considerable lengths in attempting to costs and impacts on small entities. manufacturing sector. These determine amounts of toxic chemicals EPA’s evaluation of informational commenters asserted that the that might be released or otherwise considerations took into account, among ‘‘manufacturing,’’ ‘‘processing,’’ or managed by facilities not currently other things, the capability of facilities ‘‘otherwise use’’ activities conducted by reporting under EPCRA section 313. As in each candidate industry to report industries to be added must be similar discussed elsewhere in this preamble, meaningful information under TRI. EPA 23844 Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations believes that it has met its obligations D. First Year’s Reporting and Effective assessment, as suggested by the under these and other separate Date commenters, undermines the intent and provisions in this action. The Agency A number of commenters have the utility of the TRI. also considers it important to note that suggested that EPA delay or defer A set of commenters have raised the the size of a business does not reporting for at least 1 full calendar concern that EPA did not conduct adequate outreach to the potentially necessarily correspond to its impacts on year, while others have suggested that 2 regulated community and that EPA did public health or the environment, or the years would be more appropriate. These not apprise the potentially regulated relevance in reporting by that entity. commenters are concerned about community of the planned publication However, in this action, EPA has done adequate time to familiarize themselves of the proposed rule. EPA strongly its best to balance the need for public with the EPCRA section 313 reporting disagrees with these comments and information with the circumstances of requirements; a perceived lack of believes that the record of meetings held small businesses and their ability to outreach on EPA’s part; and pending on this issue reflects a concerted effort industry studies which may provide meet EPCRA section 313 reporting by EPA to involve all potentially more information on toxic releases. requirements. These matters are affected parties, early and often. EPA EPA has reviewed and evaluated each discussed further in Unit V.I.4. of this began publicly discussing the expansion of these comments and believes that preamble and in the Economic Analysis of the industry groups subject to EPCRA delaying the first year’s reporting has (Ref. 12). section 313 reporting as early as 1991. merit. Thus, EPA believes that it is In contrast to comments received from TRI facility expansion was a major topic appropriate to make the requirements of of discussion at a TRI Data Use industry, some members of the this rule effective on January 1, 1998, for Conference in January of 1992, a environmental community commented reports due on or before July 1, 1999. that EPA is being too confining in conference where many industry EPA believes that the regulated representatives interacted with Agency expanding the TRI program on an community, EPA, and the states require industry group by industry group basis, staff in discussion of this issue. EPA time to understand and prepare for held the first of a number of public which limits the expansion of public implementing this change. The information to slow and incremental meetings on TRI facility expansion on regulated community will need an May 29, 1992, and again in 1993, steps. These commenters assert that opportunity to become fully aware of EPA should abandon the process of highlighted facility expansion in its these new requirements and understand Data Use Conference and in the adding individual industry groups, and how it can apply to their data Administrator’s nationwide Pollution should instead require any facility development and their own data Prevention Policy Statement. In 1994, exceeding the EPCRA section 313 management systems for EPCRA section the Agency embarked on an extensive reporting thresholds to comply with 313 compliance purposes. In addition, series of focus groups with individual current reporting requirements, while EPA believes that it is reasonable to industries that expressed an interest in steadily lowering the reporting provide additional time for the newly working with EPA and in 1995, at thresholds over time. EPA believes there affected industry groups to become another public meeting, laid out the are a number of practical problems with familiar with the additional Agency strategy for selecting industries the commenters’ suggestion. Section 313 requirements under EPCRA section 313, as well as a ‘‘short list’’ of potential requires that in order for a facility to be and that this additional time will candidates. EPA has identified at least required to report, the facility must be promote more accurate and consistent 65 events since 1991 that have served as in an SIC code that is subject to the reporting among these groups. outreach to the potentially regulated reporting requirements. Section 313(b) A number of commenters believe that community. Some of these events have lays out separate standards for adding EPA should delay reporting for the new been focused on small business, others additional SIC codes and particular industry groups until EPA develops on a particular industry sector and facilities; in addition, EPA can only exposure and risk evaluations for each. others more generally on the potentially proceed by rulemaking. While EPA takes seriously its regulated community. EPA’s proposed responsibility to provide the public with Aside from the fact that EPA lacks the rule, issued on June 27, 1996, was thus guidance on how to use the TRI data in simply one more step in a series of resources to make the findings for all conjunction with appropriate hazard, facilities or SIC codes in a single rule, efforts to inform and educate the exposure and risk information, EPA potentially regulated community of EPA believes that it is important to does not believe that it should perform expand the section 313 program in an EPA’s intentions. or use nationwide risk estimates to Commenters have expressed concern orderly manner to ensure that the influence what data should be available that if EPA does not delay or defer statutory requirements are met. It may to individual communities across the reporting for 1 year after the effective not be appropriate or relevant to add all United States. TRI was designed in part date, newly added industries will not industry groups or facilities. Further, to provide local communities with have had ample time to familiarize EPA believes it important to expand the facility-specific information about themselves with basic EPCRA section section 313 program in an orderly releases and other waste management of 313 reporting requirements. As noted manner to optimize the information toxic material within their community. above, EPA is not requiring reporting for previously collected by TRI. EPA The release patterns and resultant the newly added industries for the 1997 believes that incremental additions may exposures are as unique as each reporting year. EPA will work with the provide greater continuity to the wealth community. Multiple facilities, each newly added industry groups to of information maintained and made with small releases, can add up to a maximize the amount of assistance that available in TRI. Therefore, in this large release in a specific geographic is available to them. EPA is committed action EPA sought to add industries that area. An EPA decision, based on a to continuing its work with industry are likely to provide relevant section nationwide risk estimate, may deprive trade associations, individual 313 information on a range of activities that community of information that is companies and facilities and and from a variety of industry groups vital to protecting public health at the professional trainers to assure that related to manufacturing. local level. A one size fits all risk guidance, both technical and Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations 23845 interpretive, is available to the new does not apply to the ‘‘manufacture’’ of manufactured at the facility that does not sectors. a chemical except if that chemical is remain in a product distributed by the In addition, EPA will develop sector- ‘‘manufactured’’ as an impurity and facility. A threshold determination must be specific guidance documents for each of remains in the product distributed in made on the annual quantity of the toxic the newly affected industry groups and chemical manufactured regardless of the commerce below the appropriate de concentration. For example, quantities of make these documents available no later minimis level. As illustrated by the formaldehyde created as the result of waste than November 1997. These documents preamble to the final rule implementing treatment must be applied toward the will provide the newly affected industry the reporting provisions of EPCRA threshold ‘‘for manufacture’’ of this toxic groups with a greater understanding of section 313 (53 FR 4500, February 16, chemical, regardless of the concentration of how the reporting requirements 1988), EPA has explicitly stated since the toxic chemical in the waste. associated with EPCRA section 313 the beginning of the program, that the EPA believes that there is nothing in relate to specific activities conducted by de minimis exemption does not apply to EPA’s discussion for purposes of today’s their industry. These documents should the ‘‘manufacture’’ of byproducts. In the action or the proposed rule that is also help resolve many of the issues preamble to the 1988 final rule, EPA inconsistent with the regulatory text at raised by commenters prior to initiating explained (see 53 FR 4501), that the ‘‘de 40 CFR 372.38(a), the preamble to that reporting activities, and should assist minimis limitation does not apply to the regulatory text, or EPA’s long-standing them in reporting in a more cost- byproducts produced coincidentally as guidance on the de minimis exemption. effective and less burdensome manner. a result of manufacturing, processing, One commenter requested that EPA EPA will also develop such helpful use, waste treatment, or disposal.’’ EPA clarify whether the de minimis guidance for all affected industry groups further explains at 53 FR 4504, its exemption applies to EPCRA section and will publish this additional decision about the application of the de 313 toxic chemicals present as guidance in the Federal Register no minimis exemption to impurities and constituents of wastes received from off- later than November 1997. byproducts. site at RCRA subtitle C permitted Some commenters believe that EPA EPA has distinguished between toxic facilities. Another commenter stated should defer reporting until certain that if EPA adopts an interpretation of studies being under taken by the chemicals which are impurities that remain with another chemical that is processed, ‘‘otherwise use’’ to include certain industry are complete and available for distributed, or used, from toxic chemicals waste treatment activities, then EPA Agency review. For example, electric that are byproducts either sent to disposal or must indicate that the de minimis utilities have encouraged EPA to delay processed, distributed, or used in their own exemption applies the same way to inclusion of utilities until after a study right. EPA also considers that it would be wastes received from other facilities as of toxic emissions from utilities is reasonable to apply a de minimis it does to any other mixture or trade complete. EPA appreciates that this type concentration limitation to toxic chemicals name product. Other commenters asked of study may provide additional that are impurities in another chemical or whether the same de minimis information regarding certain types of mixture....Because the covered toxic concentrations applies to EPCRA releases for certain chemicals. This and chemical as an impurity ends up in a section 313 toxic chemicals that are the other studies mentioned, however, product, most producers of the product will frequently know whether the chemical is constituents of hazardous waste. do not deal with the multi-media nature present in concentrations that exceed the de The de minimis exemption applies of releases that are core to EPCRA, nor minimis level, and, thus may be listed on the solely to mixtures. In promulgating this are they designed to provide annual Material Safety Data Sheet (MSDS) for that exemption, EPA provided the following release information to the public. They product under the OSHA HCS. rationales for adopting a de minimis are designed to address issues of This final rule does not adopt a de minimis exemption for mixtures: potential risk and exposure, both concentration limitation in connection with important pieces of additional the production of a byproduct. EPA believes [Commenters] asserted that it would be information which EPA believes should that the facility should be able to quantify the both unreasonable and extremely be made available to communities. EPA annual aggregate pounds of production of a burdensome for processors and users of byproduct which is not an impurity because [mixtures and trade name products] to have looks forward to receiving and the substance is separated from the to account for these quantities in developing reviewing these studies and will work production stream and used, sold, or threshold determinations. In addition, with the industry to communicate the disposed of, unlike an impurity which commenters asserted that is would be equally risk and exposure findings to local remains in the product. 53 FR at 4504. as burdensome for suppliers of these products to have to determine and disclose communities and others who use the That language is consistent with TRI data. small percentages of section 313 chemicals in guidance EPA has provided on the de their products beyond that currently required E. Reporting Threshold Clarifications minimis exemption. For example, on under the OSHA HCS. . . . 1. De minimis exemption. Several pages 15 and 16 of EPA’s 1995 Toxic EPA believes that it is necessary to provide commenters contend that for the Chemical Release Inventory Reporting a de minimis limitation to help reduce the Form R and Instructions (EPA 745-K-96- burden both on the part of the user and the purposes of this rulemaking, EPA supplier of such products....Second, EPA should interpret the de minimis 001), a document that is distributed annually to the regulated community, does not expect that the processing and use exemption to apply to the manufacture of mixtures containing less than the de of byproducts. In addition, they contend EPA states the following: minimis concentration would, in most that to do otherwise would be EPA included the de minimis exemption in instances, contribute significantly to the inconsistent with past guidance. the [1988] rule as a burden-reducing step, threshold determinations and releases of EPA disagrees with the commenters. primarily because facilities are not likely to listed toxic chemicals from any given facility. The de minimis exemption allows have information on the presence of a toxic (53 FR 4509) facilities to disregard certain minimal chemical in a mixture or trade name product For purposes of the de minimis beyond that available in the product’s MSDS. concentrations of chemicals in mixtures For threshold determinations, the de minimis exemption, EPA’s long-standing they ‘‘process’’ or ‘‘otherwise use’’ in exemption applies to: A listed toxic chemical interpretation for facilities with SIC making threshold and release in a mixture or trade name product received codes 20 through 39 has been that the determinations for section 313 by the facility. . . .The de minimis exemption term ‘‘mixture’’ does not include wastes; reporting. The de minimis exemption does not apply to: A toxic chemical this means that the de minimis 23846 Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations exemption does not apply to the EPA plans to review the de minimis treatment for destruction, stabilization ‘‘processing’’ or ‘‘otherwise use’’ of a exemption and the assumptions upon and disposal at the site, not each of waste stream. EPA has chosen to retain which it is based, in light of data that these activities individually. this interpretation for this rulemaking will be collected under this rule, and To determine whether a facility for a number of reasons, even though the additional facilities’ experiences in exceeds an activity threshold for a listed this means that the de minimis reporting. Subject to the results of its toxic chemical, the facility must sum all exemption will not be available to review, EPA may elect to initiate quantities of the chemical for each RCRA Subtitle C treatment, storage, and rulemaking to modify the exemption. reporting activity. For example, to disposal facilities (TSDs) for many of 2. Interpretation of the ‘‘otherwise determine whether the facility exceeds the activities at their facilities. use’’ reporting threshold. Several the ‘‘otherwise use’’ activity threshold EPA’s rationale for whether a facility commenters contend that EPA should for a listed EPCRA section 313 toxic could apply the de minimis exemption modify the regulatory definition of chemical, the facility must sum all to ‘‘processing’’ or ‘‘otherwise use’’ ‘‘otherwise use’’ to reflect EPA’s revised quantities of the chemical that undergo activities was based on the likelihood interpretation. They contend that an ‘‘otherwise use’’ activity. The facility that parties would have knowledge of revision of the definition of ‘‘otherwise should compare the sum to the 10,000 the constituents of a mixture at levels use’’ would be the best way to clarify pound threshold. If there are several below the levels required by the OSHA the meaning of the term. ‘‘otherwise use’’ activities that involve Hazard Communication Standards While EPA believes that the current the EPCRA section 313 chemical, the (HCS). For example, EPA determined regulatory definition of ‘‘otherwise use’’ facility should not compare the quantity that for manufactured by-products, is very broad and covers EPA’s revised of the chemical in each activity to the additional factors made it likely that a interpretation, EPA is amending the otherwise use threshold. For example, a facility would be able to characterize the definition of ‘‘otherwise use’’ to reflect facility that receives quantity ‘‘X’’ of an individual constituents based on readily EPA’s revised interpretation in order to EPCRA section 313 toxic chemical for available information, notwithstanding minimize any difficulties in interpreting purposes of further waste management that such levels of characterization were the meaning of the term. treats for destruction quantity ‘‘X-Y’’ of not required by the HCS. EPA noted in One commenter contends that ‘‘EPA an EPCRA section 313 toxic chemical, the 1988 preamble that: needs to clarify that when a facility disposes of quantity ‘‘Y’’ of the EPCRA receives both ‘on-site’ waste and ‘off- section 313 toxic chemical, and also EPA believes that the facility should be site’ wastes, only the ‘off-site’ waste is ‘‘otherwise uses’’ a third separate able to quantify the annual aggregate pounds quantity, ‘‘Z,’’ of the EPCRA section 313 of a byproduct which is not an impurity used in determining reporting because the substance is seperated from the thresholds.’’ toxic chemical as a catalyst. The facility production stream and used, sold, or EPA agrees that threshold should sum the quantities that are disposed of. . .’’ (53 FR 4505) determinations for ‘‘otherwise use’’ treated for destruction, disposed, and should not include quantities of the used as a catalyst and should compare Further, it is clear from the 1988 toxic chemical stabilized, disposed, or this quantity (‘‘X’’+‘‘Z’’) to the preamble that EPA originally equated treated for destruction unless the facility ‘‘otherwise use’’ threshold. the term ‘‘mixtures’’ with trade name received the toxic chemical for purposes Waste Management Incorporated products, and these products have of waste management or generated the (WMI) comments that EPA’s certain unique attributes that EPA toxic chemical during waste interpretation of ‘‘otherwise use’’ to believes generally are not applicable to management of a material received from include disposal, explicitly contradicts wastes. For example, manufacturers of off-site. As a result of comments, EPA is the plain meaning of the statute. WMI trade name products may have an clarifying its interpretation of states that ‘‘[w]e do not believe that any incentive not to provide information on ‘‘otherwise use’’ and incorporating its reasonable construction of ‘use’ means constituents below de minimis levels interpretation into a revised definition ‘disposal,’ ‘discard,’ or ‘abandon.’’’ The out of concerns about protecting trade as follows: commenter states that ‘‘[w]e believe the secret information. Consequently, it was ‘‘Otherwise use’’ means any use of a toxic presence of the adjective ‘otherwise’ highly likely that facilities ‘‘processing’’ chemical, including a toxic chemical means ‘use’ must in some way be akin or ‘‘otherwise using’’ such products contained in a mixture, trade name product, to ‘manufacture’ or ‘process,’ i.e., the would have no way of determining or waste that is not covered by the terms ‘use’ must add value.’’ Finally, WMI whether such constituents were present, ‘‘manufacture’’ or ‘‘process.’’ Otherwise use argues that Congress’s failure to include without potentially extensive sampling of a toxic chemical does not include disposal, the terms, ‘‘manage,’’ ‘‘handle,’’ or of the product. By contrast, waste stabilization (without subsequent ‘‘possess,’’ in EPCRA section 313 generators have no similar commercial distribution in commerce), or treatment for destruction unless: implies a specific legislative intent to incentive to conceal the components of (1) The toxic chemical that was disposed, exclude disposal. the wastes they ship off-site to TSDs. stabilized, or treated for destruction was EPCRA section 313 defines Moreover, as noted in Unit V.H.5. of this received from off-site for the purposes of ‘‘manufacture’’ and ‘‘process,’’ but not preamble, TSDs are required under futher waste management; or ‘‘otherwise use.’’ As EPA noted in the RCRA regulations to conduct routine (2) The toxic chemical that was disposed, preamble to the proposed rule, because sampling of the wastes they manage, stabilized, or treated for destruction was Congress did not provide a definition of and EPA believes that facilities have an manufactured as a result of waste ‘‘otherwise use,’’ and did not provide an incentive to regularly conduct management activities on materials received explanation or discussion of the term in monitoring to ensure that they remain from off-site for the purposes of further waste management activities. Relabeling or the legislative history, EPA interpreted within their permit. redistributing of the toxic chemical where no the term to most appropriately meet the Moreover, if facilities genuinely have repackaging of the toxic chemical occurs intent of EPCRA section 313. no information on the constituents of does not constitute use or processing of the EPA first considered the plain the wastes they manage, they are not toxic chemical. language of the statute. The statutory required to collect such information in One commenter contends that EPA context indicates that the term order to comply with the EPCRA section should clarify that threshold ‘‘otherwise’’ was intended to capture all 313 reporting requirements. determinations are based on the sum of ‘‘uses’’ of a chemical that are not Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations 23847

‘‘manufacturing’’ or ‘‘processing.’’ Moreover, Congress found information By use of the words ‘‘no longer a toxic Contrary to the commenters’ suggestion, on chemical management activities chemical subject to EPCRA section 313 the effect of the term ‘‘otherwise’’ is to relevant to the needs of local reporting,’’ it is clear that ‘‘treatment for distinguish these uses from communities in requiring that destruction’’ involves the destruction of ‘‘manufacturing’’ and ‘‘processing.’’ If information include, for example, a listed toxic chemical. Therefore, any Congress considered ‘‘otherwise use’’ to information on waste streams and how process, even a destruction activity, on be akin to ‘‘manufacture’’ or ‘‘process,’’ they are handled. See, e.g., 42 U.S.C. a ‘‘non-listed’’ chemical would not be there would have been no reason to section 11023(g). Given the primary goal ‘‘treatment for destruction.’’ apply a different threshold to this of providing information to the public In addition, based on the comment activity. Further, EPA considers the on listed toxic chemicals present, provided, EPA believes there may be commenter’s definition of manufacture released, and managed in communities, some confusion regarding the reporting and processing--as activities that only EPA does not believe that Congress requirements of EPCRA section 313. The ‘‘add value to another product or the would intend any provision of EPCRA commenter mistakenly believes that chemical itself’’--to be too narrow. EPA section 313 to be interpreted to EPCRA section 313 activity threshold believes that this interpretation is significantly limit the information to the determinations and reporting are not inconsistent with the statutory public. Because interpreting the limited to toxic chemicals that are listed definition of ‘‘manufacture,’’ which definition of ‘‘otherwise use’’ narrowly at 40 CFR 372.65. No reports are includes importation of a toxic can have the unintended impact of required for chemicals that are not on chemical. 42 U.S.C. section limiting the amount and kind of that list. An activity on a non-listed 11023(b)(1)(C)(I). Importation does not information readily available to the chemical does not trigger reporting for add value to a toxic chemical; rather it public, EPA believes that the term a listed or ‘‘non-listed’’ chemical. is a service that benefits a particular ‘‘otherwise use’’ should be interpreted Further, for threshold determinations facility, just as a facility that manages more broadly than EPA has interpreted under EPCRA section 313, a facility wastes received from other facilites it in the past. need only consider activities that occur provides a service that benefits EPA also disagrees that the failure to at that facility. The commenter appears particular facilities. Similarly, the include a term such as ‘‘manage’’ to believe that a facility that receives for commenter’s interpretation would not implies Congressional intent to exclude further waste management a chemical address all of the concepts included waste management activities. Where that is not listed at 40 CFR 372.65 must within the definition of ‘‘processing.’’ Congress intended to exempt specific assume that some precursor to that The definition of ‘‘processing’’ activities, it did so explicitly, as, for chemical was an EPCRA section 313 encompasses the concept that a facility example, exempting transportation chemical that was ‘‘treated for intends to obtain a commercial benefit activities in EPCRA section 327. destruction’’ and consider activities from its activities with the toxic Accordingly, EPA believes it is involving those ‘‘non-listed’’ chemicals chemical: the term ‘‘process’’ is reasonable to assume that, had Congress in threshold determinations. This does restricted to the preparation of the intended to exclude waste management not follow, most obviously because the chemical ‘‘for distribution in activities, it would have provided a ‘‘non-listed’’ chemical may not have commerce.’’ 42 U.S.C. section similar exemption. been made by the destruction of a listed 11023(b)(1)(C)(ii) (emphasis added). The American Petroleum Institution toxic chemical. Moreover, even if the Consistent with the commercial benefit (API), in comments on the Information precursor to the chemical were a listed concept embodied by the definitions of Collection Request (ICR) for this toxic chemical, the reporting facility ‘‘manufacturing’’ and ‘‘processing,’’ rulemaking, contends that the revised would not be required to include the EPA’s revised interpretation includes interpretation of ‘‘otherwise use’’ has ‘‘treatment for destruction’’ of a uses beneficial in providing a product or several problems. API believes that chemical by and at another facility in its a service. This would clearly encompass EPA’s definition of ‘‘treatment for calculations of the ‘‘otherwise use’’ a RCRA Subtitle C facility, which destruction’’ is inconsistent with the activity threshold. employs EPCRA section 313 chemicals, interpretation of ‘‘otherwise use.’’ The Further, EPA believes there may be when it manages or disposes of wastes commenter contends that under the some confusion regarding EPA’s revised received from off-site generators for the interpretation of ‘‘otherwise use,’’ a interpretation of ‘‘otherwise use’’ and purpose of obtaining a commercial ‘‘non-listed’’ chemical that is received proposed definition of ‘‘treatment for benefit. EPA’s inclusion of disposal from off-site can trigger reporting if it is destruction,’’ and guidance for within the definition of ‘‘otherwise use’’ ‘‘treated for destruction.’’ If a chemical calculating activity thresholds. In the is consistent with the Congressional is ‘‘non-listed,’’ any process using the proposed rule (see 61 FR 33598), EPA definitions of ‘‘manufacture’’ and chemical could be ‘‘treatment for interpreted ‘‘otherwise use’’ as follows: ‘‘process,’’ as all of these activities destruction’’ because the chemical Otherwise use or use means any use of a benefit the facility engaging in them. already is a ‘‘substance that is no longer toxic chemical that is not covered by the EPA also considered the relevant a toxic chemical subject to reporting terms ‘‘manufacture’’ or ‘‘process’’, and goals and purposes of reporting under under EPCRA section 313.’’ includes treatment for destruction, stabilization (without subsequent EPCRA section 313. As EPA discusses EPA believes that the commenter distribution in commerce), disposal, and in Unit V.A. of this preamble, the misunderstands the proposed definition other use of a toxic chemical, including a relevant purposes of EPCRA include of ‘‘treatment for destruction.’’ In the toxic chemical contained in a mixture or informing the public of the use, release proposed rule at 61 FR 33597, EPA trade name product. Except that and other waste management activities proposed to define ‘‘treatment for (1) Facilities engaged in treatment for of toxic chemicals in their community. destruction’’ as follows: destruction, stabilization, or disposal are not Congress wanted the reporting using a toxic chemical in these activities Treatment for destruction means the unless the facility receives materials from requirements of EPCRA to be applied destruction of the toxic chemical such that other facilities for purposes of further waste broadly, and to provide the greatest the substance is no longer a toxic chemical management activities. amount of information to the public and subject to reporting under EPCRA section (2) Relabeling or redistributing a container federal, state, and local governments. 313. of a toxic chemical where no repackaging of 23848 Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations the toxic chemical occurs does not constitute quantities of an EPCRA section 313 waste management or (2) the EPCRA use of the toxic chemical. listed toxic chemical that it treats for section 313 toxic chemical that was The interpretation of ‘‘otherwise use’’ destruction, stabilizes, or disposes with treated for destruction was includes the phrase ‘‘the facility the ‘‘otherwise use’’ threshold. The ‘‘manufactured’’ as a result of waste receives materials from other facilities interpretation that EPA chose requires management activities on materials for purposes of further waste only those facilities, that either receive received from other facilities for the management activities.’’ EPA purposely an EPCRA section 313 toxic chemical purposes of further waste management used the word ‘‘materials’’ rather than from other facilities for purpose of activities. EPA believes that to do so ‘‘EPCRA section 313 listed toxic further waste management or would perpetuate a loophole that exists chemicals’’ to avoid a situation where a manufactures an EPCRA section 313 in reporting on EPCRA section 313 toxic facility that receives materials for toxic chemical as a result of waste chemicals. EPA believes that the public further waste management would not management activities conducted on has a right-to-know about these releases report on an EPCRA section 313 toxic materials received from off-site, to and other waste management activities. chemical that it treated for destruction, compare the quantities of that EPCRA Amoco states that the definition of stabilized or disposed. This situation section 313 listed toxic chemical that it ‘‘otherwise use’’ should not be changed could exist if EPA were to limit its treats for destruction, stabilizes, or to capture the commercial hazardous interpretation of otherwise use by disposes with the ‘‘otherwise use’’ waste treatment and solvent recovery replacing ‘‘materials’’ with ‘‘EPCRA threshold. industries as these sectors can be easily section 313 listed toxic chemicals.’’ This The American Automobile accommodated by ‘‘manufacture’’ and situation is illustrated in the following Manufacturers Association (AAMA) ‘‘process’’ definitions. example. contends that if EPA’s proposed EPA is not revising its interpretation interpretation of ‘‘otherwise used’’ is of ‘‘otherwise use’’ simply to ‘‘capture’’ Facility ‘‘X’’ receives chemical A from off- promulgated, then manufacturing a particular industry as the commenter site. Chemical A is not an EPCRA section 313 facilities in SIC codes 20 through 39 has suggested. Rather, EPA is revising listed toxic chemical. The facility treats for destruction chemical A. Since chemical A is would have to calculate threshold its interpretation to close an not an EPCRA section 313 listed toxic determinations in two ways—how much informational gap created by EPA chemical, this activity is not reportable. In is destroyed in control equipment such guidance. EPA’s revision will ensure treating for destruction chemical A, 11,000 as oven incinerators, as well as how reporting of information about the pounds of chemical B, which is an EPCRA much is ‘‘manufactured/processed or handling of chemicals that is valuable section 313 listed toxic chemical, is otherwise used.’’ They contend that for the public to know, and therefore ‘‘manufactured,’’ and subsequently disposed EPA should exclude on-site treatment relevant to the purposes of EPCRA on-site. (Note that the quantity of chemical B and Clean Air Act (CAA)/Clean Water section 313. EPA is revising its ‘‘manufactured’’ is less than the 25,000 pound ‘‘manufacturing’’ threshold). Act (CWA) control equipment at non- interpretation of ‘‘otherwise use’’ treatment, stabilization, and disposal because, as stated at 61 FR 33596, of the Absent EPA’s clarification in the facilities (TSD) facilities for purposes of proposed rule, ‘‘EPA is concerned that, proposed interpretation, the quantity of performing otherwise use threshold based on current guidance, the public chemical B disposed is not otherwise determinations. may not have access to information used, because chemical A, which was EPA does not agree that all treatment relating to releases of toxic chemicals the material received from off-site for for destruction that occurs at facilities from facilities within SIC codes 20 further waste management, is not an will be considered as ‘‘otherwise use’’ through 39 that are receiving materials EPCRA section 313 listed toxic activities. ‘‘Treatment for destruction’’ for the purposes of treatment for chemical. In contrast, as EPA has of an EPCRA section 313 toxic chemical destruction, stabilization, or disposal.’’ proposed ‘‘otherwise use,’’ the disposal constitutes an ‘‘otherwise use’’ only if EPA acknowledged the same concerns of chemical B in the example above the EPCRA section 313 toxic chemical is for the candidate industries, including would be a reportable activity. received from other facilities for RCRA Subtitle C treatment and disposal The proposed rule contains several purposes of further waste management facilities and solvent recovery facilities. alternatives to EPA’s interpretation of activities or if the EPCRA section 313 Thus, EPA announced its intent to otherwise used. A commenter contends toxic chemical is produced as a result of revise the past interpretation of that the interpretation of ‘‘otherwise the waste management of a material ‘‘otherwise use’’ for all industries use’’ that EPA chose was more received from off-site. subject to EPCRA section 313 to rectify burdensome than the alternative in Also, EPA does not believe that there the loss of information from certain which there was no ‘‘condition that the will be two groups of threshold facilities within SIC codes 20 through chemicals originate off-site.’’ EPA determinations as AAMA describes. As 39 and the potential loss of information disagrees with the commenter’s ‘‘otherwise use’’ is defined, for certain from added facilities. statement that it chose an option that is cases ‘‘treatment for destruction’ is Amoco also suggests that the activities more burdensome than the alternative considered an ‘‘otherwise use’’ activity. within the commercial hazardous waste discussed. The alternate interpretation There is nothing distinctive about EPA’s treatment and solvent recovery discussed in the proposed rule is approach for ‘‘otherwise use’’ as industries can be ‘‘easily accommodated ‘‘including in the definition of compared to its approach for by ‘manufacture’ and ‘process’ ‘‘otherwise use’’ all disposal, treatment interpreting ‘‘manufacture’’ or definitions.’’ for destruction, and stabilization, ‘‘process.’’ Further, EPA does not EPA agrees that pursuant to current regardless of whether the facility believe that it is appropriate to exclude statutory and regulatory definitions, receives materials from off-site for the on-site treatment and destruction of facilities within the hazardous waste purposes of treatment for destruction, listed toxic chemicals in CAA/CWA treatment and solvent recovery stabilization, or disposal.’’ (see 61 FR control equipment at non-TSD facilities industries ‘‘manufacture’’ and ‘‘process’’ 33598). The alternative affects a larger if: (1) The EPCRA section 313 toxic EPA section 313 toxic chemicals. For universe than the interpretation EPA chemical that was treated for example, these facilities may chose because the alternative requires destruction was received by the facility coincidentally manufacture section 313 that every covered facility compare the from off-site for purposes of further toxic chemicals during waste Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations 23849 management activities. These facilities without subsequent distribution in EPA disagrees with the commenters. may also ‘‘process’’ section 313 toxic commerce, and treatment for In the proposed rule, EPA discusses chemicals during solvent recycling destruction do not involve the ‘‘manufacture’’ as it applies to coal and operations. In addition, under EPA’s preparation of a toxic chemical for oil combustion, EPA stated that: past interpretation of ‘‘otherwise use,’’ distribution in commerce. Thus, these In the combustion of coal and oil, metal these facilities ‘‘otherwise use’’ EPCRA would not be considered ‘‘processing’’ compounds may be produced from either the section 313 during waste management activities. parent metal or a metal compound contained activities to neutralize chemicals wastes The Department of Energy requested in the coal or oil. This may or may not or to facilitate the waste management guidance on how one would report involve a change of valence state. A change process. These activities and the under EPCRA section 313 on the in valence state results in the manufacture of information expected to be reported as constituents of waste if the origin or the a metal compound. Metal compounds which chemical constituents of the waste are produced in the combustion process are a result of these activities serve as considered ‘‘manufactured’’ for purposes of independent bases for adding these received from offsite are unknown. For EPCRA section 313 (emphasis added). (61 FR industries. example, the Department of Energy has 33601). However, EPA disagrees that a backlog of wastes remaining from the research, development and production EPA disagrees that this is a new ‘‘treatment for destruction,’’ interpretation of manufacture. If a metal ‘‘stabilization’’ (without subsequent of nuclear weapons that is currently in storage awaiting treatment or disposal. undergoes a valence state change, a distribution in commerce) and metal compound will be ‘‘disposal’’ are ‘‘manufacture’’ or A substantial volume of these ‘‘legacy wastes’’ is radioactive mixed waste (i.e., ‘‘manufactured’’ since the metal ion that ‘‘processing.’’ The definitions of results from the change in valence state ‘‘manufacture’’ and ‘‘process’’ as waste that contains both a hazardous (as defined under RCRA) and a radioactive of the metal will combine with another defined in the final rule implementing element. For example, if copper(0) (i.e., the reporting requirements of EPCRA component), and the Department is concerned that for some of these wastes copper in valence state 0) changes section 313 (40 CFR 372.3) are as valence state to copper(+2) (i.e., copper follows: it does not have information that will allow it to identify the individual toxic in valence state +2) then the copper(+2) Manufacture means to produce, prepare, chemical constituents of these wastes. will combine with some other element import, or compound a toxic chemical. such as oxygen. The resulting product, Manufacture also applies to a toxic chemical The Department is concerned that, if records cannot be found to identify the in this case copper oxide, is a metal that is produced coincidentally during the compound and thus, a metal compound manufacture, processing, use, or disposal of origin and individual toxic chemical another chemical or mixture of chemicals, constituents of this waste, in order to has been ‘‘manufactured.’’ In order to including a toxic chemical that is separated complete the TRI reporting, additional produce the copper compound from from that other chemical or mixture of characterization would be needed that copper, there must be a change in the chemicals as a byproduct, and a toxic could increase the potential for worker valence state of the metal. As cited chemical that remains in that other chemical exposure to radioactive material. above, EPA also stated that the or mixture of chemicals as an impurity. In the case where there is no readily ‘‘manufacture’’ of metal compounds Process means the preparation of a toxic available information on either the ‘‘may or may not involve a change of chemical, after its manufacture, for valence state.’’ For example, if copper distribution in commerce: presence or concentration of toxic (1) In the same form or physical state as, chemicals in wastes, a potential reporter sulfate, in which copper’s valence state or in a different form or physical state from, is not required to undertake activities to is +2, is converted to copper oxide that in which it was received by the person characterize these wastes in order to during combustion, no change in the so preparing such substance, or make threshold determinations and valence state of copper occurs (i.e., the (2) As part of an article containing the toxic report releases of toxic chemicals in copper in copper oxide still has a +2 chemical. Process also applies to the these wastes, provided that these valence state), but a new metal processing of a toxic chemical contained in characterization activities are not compound (copper oxide) has been a mixture or trade name product. otherwise required either by other manufactured. There may also be cases EPA does not believe that the regulations or as part of the facility’s in which the metal compound is not definitions of ‘‘manufacture’’ or treatment or disposal activities. Under changed at all during combustion. For ‘‘process’’ as currently written, should EPCRA section 313, a facility is only example, if beryllium oxide is in the incorporate the activities of treatment required to use the best available coal and remains as beryllium oxide for destruction, stabilization, or information when making threshold after combustion of the coal, then no disposal. The definition of determinations and release and other manufacture of a metal compound has ‘‘manufacture’’ includes produce, a waste management calculations. occurred. In any event, the test of synonym of which is create. EPA 3. Coincidental manufacture whether a metal compound has been believes that neither stabilization nor definitions and related reporting issues. ‘‘manufactured’’ is not whether there disposal of a listed toxic chemical is the Many commenters state that during has been a change in the valence state creation of that chemical. Nor does EPA combustion of coal or oil, metals and of the metal but whether a metal believe that treatment for destruction of metal compounds in these fuels simply compound has in fact been a listed toxic chemical is creation of that undergo a change in the valence state. ‘‘manufactured’’ as a result of the listed toxic chemical. EPA also does not They contend that this change should combustion of the coal or oil. If a metal believe that these activities can be not be considered to be ‘‘coincidental is converted to a metal compound or if considered to be the preparation, manufacture’’ of a chemical. They claim one metal compound is converted to importation, or compounding of a toxic this is a new interpretation of another metal compound, then a metal chemical. ‘‘Process’’ requires that the ‘‘manufacture’’ as defined in EPCRA compound has been ‘‘manufactured.’’ toxic chemical either in the same form section 313 that is inconsistent with In the proposed rule, EPA did not or physical state as, or in a different previous guidance and that was propose either a new definition or form or physical state be prepared for ‘‘proposed’’ in order to capture releases interpretation of ‘‘manufacture’’ in order distribution in commerce. EPA believes from combustion processes at electric to capture releases from electric that disposal on-site, stabilization utilities. utilities. The information provided in 23850 Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations the proposed rule concerning valence has been ‘‘manufactured’’ as defined and ‘‘waste stabilization’’ are also state changes and the ‘‘manufacture’’ of under EPCRA section 313. discussed in Units IV.E.6., IV.E.7., and metal compounds was included to Several commenters state that the IV.E.8., respectively, of this preamble. ensure that parties affected by the statutory definition of ‘‘manufacture’’ EPCRA section 329(8) defines ‘‘release.’’ proposed addition of certain new found in EPCRA section 313(b)(1)(C)(I) Some commenters believe that EPA industries would understand that does not include ‘‘coincidental should define ‘‘waste,’’ particularly during the combustion of coal and oil it manufacture’’ and that the definition at because EPA is adding a segment of the is possible to ‘‘coincidentally 40 CFR 372.3 should be consistent with waste management industry. AAMA manufacture’’ EPCRA section 313 toxic the statutory definition. EPA disagrees believes that EPA should ‘‘provide clear chemicals, including metal compounds. with the commenters. The definition of guidance for all covered facilities with The discussion of ‘‘manufacture’’ in the ‘‘manufacture’’ found under EPCRA respect to the definition of waste, proposed rule and as outlined above is section 313(b)(1)(C)(I) reads as follows: especially in the context of recycling.’’ The Chemical Manufacturers consistent with the definition of The term manufacture means to produce, ‘‘manufacture’’ used under EPCRA prepare, import, or compound a toxic Association (CMA) contends that EPA section 313. For example, on page 8 of chemical. ‘‘should define a waste stream under the PPA reporting requirements so there is EPA’s 1995 Toxic Chemical Release This definition does not preclude the Inventory Reporting Form R and not ambiguity about which wastes really ‘‘coincidental manufacture’’ of a are wastes.’’ Instructions (EPA 745-K-96-001) it is chemical. A chemical that is stated that ‘‘The term manufacture also EPA is providing guidance on waste ‘‘coincidentally manufactured’’ can management activities in the document includes coincidental production of a certainly be considered as having been toxic chemical (e.g., as a byproduct or entitled Interpretations of Waste produced. When EPA finalized the rule Management Activities: Recycling, impurity) as a result of the manufacture, implementing the reporting processing, otherwise use, or treatment Combustion for Energy Recovery, requirements of EPCRA section 313, the Treatment for Destruction, Waste of other chemical substances.’’ This definition of ‘‘manufacture’’ was clearly statement is consistent with the Stabilization, and Release (Ref. 13). EPA interpreted to include the ‘‘coincidental will provide regulatory definitions on definition of ‘‘manufacture’’ codified at manufacture’’ of a chemical (53 FR 40 CFR part 372, which is consistent waste when it reproposes the PPA 4500, February 16, 1988). EPA does not reporting requirements in the near with the statutory definition found in believe that there is any inconsistency EPCRA section 313(b)(1)(C)(I). As future. between the statutory definition and the 5. Recycling as a process activity. discussed in more detail in the definition as explained in the 1988 final WMI and Safety Kleen support EPA’s Response to Comments document (Ref. rule. EPA addressed this issue in that interpretation of recycling as a process 15), EPA has provided guidance to final rule See 53 FR 4504. activity. The Department of Energy facilities within the manufacturing 4. Interpretation of waste contends that the ‘‘interpretation of the sector that a chemical that is created management activities. A number of term ‘‘processing’’ to include toxic during combustion is considered to be commenters contend that ‘‘a regulatory chemicals contained in materials being ‘‘coincidentally manufactured’’ as a definition or interpretation of recovered/recycled and subsequently byproduct. This includes guidance that ‘management activity’. . .is needed.’’ distributed in commerce is new and that is specific to coal combustion. One commenter, WMI states that it is this interpretation raises issues needing There is nothing unique or special concerned with the ‘‘lack of clarity’’ clarification.’’ They question whether about the ‘‘coincidental manufacture’’ of because there are waste management this interpretation applies only to toxic chemicals, including metal activities that are conducted at wastes received from off-site or from all compounds, during combustion hazardous waste facilities that do not recovery/recycling operations. They also processes, such as the combustion of involve treatment and disposal. WMX question how they should report if the coal. Clearly combustion processes can also suggests that the Agency ‘‘clarify recovery operation takes place in one result in the ‘‘coincidental that if the only ‘management activity’ reporting year and the reuse operation manufacture’’ of toxic chemicals. In fact, which occurs is storage, container takes place in a future reporting year. standard manufacturing processes for transfer or tank transfer, then these EPA’s interpretation of ‘‘processing’’ making metal compounds can be similar activities do not fall under the stated in the proposal is not new. In the to combustion processes, such as the ‘otherwise use’ definition as proposed, proposed rule, EPA stated that the combustion of coal. For example, zinc and thus would not require reporting.’’ recovery of an EPCRA section 313 listed oxide is ‘‘manufactured’’ by burning EPA interprets waste management to toxic chemical for further distribution or (oxidizing) zinc vapor (Ref. 2). In include the following activities: commercial use is ‘‘processing’’ of that addition, metal compounds are often recycling, combustion for energy chemical. This interpretation applies to ‘‘manufactured’’ from other metal recovery, treatment for destruction, recycling activities where the EPCRA compounds with or without a valence waste stabilization, and release, section 313 listed toxic chemical that is state change. For example, there is no including disposal. Waste management recovered is distributed in commerce. If change of the valence state of the metal does not include the storage, container a facility recycles an EPCRA section 313 in the ‘‘manufacture’’ of barium transfer, or tank transfer if no recycling, listed toxic chemical and uses that carbonate from barium sulfide (i.e., combustion for energy, treatment for material at the facility, e.g., as a solvent, barium has a +2 valence state in both destruction, waste stabilization or and the EPCRA section 313 listed toxic the carbonate and the sulfide) (Ref. 2, release of the chemical occurs at the chemical is not distributed in Vol. 3, page 466), yet this is clearly the facility. commerce, the chemical is ‘‘otherwise ‘‘manufacture’’ of a metal compound. EPA’s interpretation of the terms used.’’ This guidance is not new to this Therefore, if a metal is converted to a ‘‘recycling,’’ ‘‘combustion for energy rulemaking. EPA has provided this metal compound or if a metal recovery,’’ ‘‘treatment for destruction,’’ guidance on recycling activities that compound is converted to another metal and ‘‘waste stabilization’’ are discussed have occurred at covered facilities since compound as the result of the in Ref. 13. ‘‘Combustion for energy the inception of the program. EPA has combustion of coal, a metal compound recovery,’’ ‘‘treatment for destruction,’’ not changed its interpretation of Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations 23851

‘‘processing’’ to include recycling of an use’’ applies only to ‘‘treatment for fuel or received it from another facility EPCRA section 313 toxic chemical only destruction’’ if there is no subsequent for purposes of waste management. if the recycled material was received distribution in commerce. Since the inception of the program, EPA from off-site. Nor did EPA state in the EPA believes that the commenter has considered that an EPCRA section proposed rule that it intended to change interprets ‘‘treatment for destruction’’ as 313 listed toxic chemical that is a its interpretation. including the preparation of an EPCRA constituent of a fuel that is combusted In response to the question about the section 313 toxic chemical in waste for on-site is being ‘‘otherwise used’’ (see recovery and reuse taking place in destruction because: (1) Combustion of EPA’s 1995 Toxic Chemical Release different reporting years, a recovered waste-derived fuels is an activity that Inventory Reporting Form R and toxic chemical does not need to be results in the destruction of a Instructions (EPA 745-K-96-001), page reused during the same reporting year to chemical(s), and (2) the commenter 23). If the facility that blended the be reported as ‘‘recycled.’’ This is requests that the definition of waste-derived fuel distributes this fuel illustrated in the following examples. ‘‘otherwise use’’ be modified so that it in commerce, the facility that receives Facility ‘‘X’’ removes chromium from is clear the otherwise use only applies and combusts the waste-derived fuel sludge created during wastewater treatment. to ‘‘treatment for destruction’’ if there is would compare the quantities of the The chromium that is recovered from the no subsequent distribution in EPCRA section 313 listed toxic sludge and is reused at the facility. Assuming commerce. EPA believes that the chemicals in this fuel with the all of these steps occur at the facility within commenter contends that the ‘‘otherwise use’’ threshold, provided the same reporting year, the quantity of preparation of a waste fuel which will that the receiving facility is a covered chromium recovered from the sludge and subsequently be distributed in facility. reused is considered to be recycled within that reporting year. As a second example, commerce and destroyed could be Thus, for purposes of identifying facility ‘‘X’’ treats the wastewaters, recovers construed as ‘‘treatment for whether an ‘‘otherwise use’’ activity is the chromium from the sludge and then destruction,’’ even though no being conducted, EPA distinguishes stores the reusable chromium during the destruction of the subject EPCRA between the ‘‘otherwise use’’ of an 1997 reporting year. During the 1998 section 313 toxic chemical will occur EPCRA section 313 toxic chemical reporting year, the chromium is reused. EPA during blending operations. EPA through the ‘‘treatment for destruction’’ considers the chromium to be recycled in the believes that in discussing waste- and the ‘‘otherwise use’’ of an EPCRA 1997 reporting year because that is when it derived fuels that have heat values of section 313 toxic chemical that is a was recovered into a usable product. greater than 5,000 Btus and that are constituent of waste-derived fuels A broader discussion of recycling is combusted in cement kilns, the combusted in an energy recovery unit. available in the document entitled commenter is implicitly referring to Under EPA’s existing guidance on Interpretations of Waste Management ‘‘combustion for energy recovery.’’ As ‘‘otherwise use,’’ an EPCRA section 313 Activities: Recycling, Combustion for discussed below, for purposes of toxic chemical that is a constituent of Energy Recovery, Treatment for reporting on the management of wastes waste-derived fuel combusted in an Destruction, Waste Stabilization, and under the PPA, EPA differentiates energy recovery device is ‘‘otherwise Release (Ref. 13). ‘‘treatment for destruction’’ from used’’ by the facility, regardless of the 6. Combustion for energy recovery vs. ‘‘combustion for energy recovery.’’ EPA origin of the waste-derived fuel. The treatment for destruction. Safety Kleen believes that in addition to bringing up EPCRA section 313 chemical that is a states that it believes that ‘‘treatment for a number of issues associated with how constituent of the waste-derived fuel is destruction, disposal, or stabilization is threshold determinations are made for considered ‘‘otherwise used’’ for energy appropriately considered to be ‘‘processing,’’ ‘‘treatment for recovery because it is combusted in an ‘otherwise use’ when it applies to destruction,’’ and ‘‘otherwise use,’’ the energy recovery unit. This is simply one operations that are associated with commenter also introduces the issue of application of EPA’s guidance on the disposal operations.’’ However, Safety how ‘‘treatment for destruction’’ and ‘‘otherwise use’’ of EPCRA section 313 Kleen is concerned that waste-derived ‘‘combustion for energy recovery’’ are toxic chemicals in any fuel. EPA’s fuel blending operations could reported on the Form R. revised definition of ‘‘otherwise use’’ inappropriately be considered to be EPA agrees with the commenter that also considers the ‘‘treatment for ‘‘treatment for destruction.’’ Safety the act of fuel blending is not in itself destruction’’ of an EPCRA section 313 Kleen states ‘‘[w]aste-derived fuels are now considered ‘‘otherwise use’’ nor toxic chemical to be ‘‘otherwise use,’’ organic chemical waste streams which would it be considered ‘‘otherwise use’’ but only if the facility destroying the contain significant amounts of heat under EPA’s revised interpretation of toxic chemical received the chemical value (generally greater than 5,000 that term. If a facility blends and from another facility for waste British Thermal Units (Btu) per pound) subsequently distributes in commerce a management purposes or if the toxic but with contamination levels that make waste-derived fuel, the facility is chemical was produced as a result of it either impractical or not cost effective ‘‘processing’’ the EPCRA section 313 managing waste materials received from to recover the primary constituents from toxic chemicals that are constituents of another facility. them. These fuel streams are burned as that waste-derived fuel. However, if However, EPA notes that once the an alternative fuel in cement kilns, for subsequent to blending the waste- ‘‘otherwise use’’ threshold has been met, example, reducing the kilns’ energy derived fuel, that same facility for reporting the activity under section dependence on coal or other fossil combusted on-site the waste-derived 6607 of the PPA the combustion of the fuels.’’ Safety Kleen considers the fuel in an energy recovery unit, e.g., a EPCRA section 313 toxic chemical in blending of the waste-fuel streams to be cement kiln, the facility would be waste-derived fuel is reported as analogous to the preparation and ‘‘otherwise using’’ the EPCRA section ‘‘combustion for energy recovery’’ only distribution in commerce of a chemical 313 constituents of the waste-derived if certain conditions are met. Under mixture. Therefore, Safety Kleen fuel. Note that this facility is ‘‘otherwise EPA’s interpretation of ‘‘combustion for considers this activity to be using’’ the EPCRA section 313 toxic energy recovery,’’ EPCRA section 313 ‘‘processing.’’ Safety Kleen also requests chemicals that are constituents of the toxic chemicals that have significant that the ‘‘otherwise use’’ definition be waste-derived fuel regardless of whether heat value and that are combusted in an modified to make it clear the ‘‘otherwise the facility generated the waste-derived energy recovery unit are ‘‘combusted for 23852 Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations energy recovery.’’ EPA believes that such listing, generated by EPA using ‘‘treatment’’ under current RCRA while ‘‘combustion for energy recovery’’ either the American Society for Testing regulations. can be considered ‘‘treatment for Materials (ASTM) Computer Program EPA has defined ‘‘treatment for destruction’’ of the toxic chemical for Chemical Thermodynamic and destruction’’ as ‘‘the destruction of the because it results in the destruction of Energy Release Evaluation Version 7.0, toxic chemical in waste such that the the EPCRA section 313 toxic chemical, 1994, or the National Institute of substance is no longer the toxic it can also be considered to have aspects Standards and Technology Estimation of chemical subject to reporting under of ‘‘recycling’’ because it may also result the Chemical Thermodynamic EPCRA section 313. . . .’’ EPCRA section in the beneficial reuse of the chemical. Properties for Organic Compounds at 313 and PPA section 6607 reporting Therefore, EPA believes that quantities 298.15K, 1994. data elements are generally chemical- of an EPCRA section 313 toxic chemical EPA considers an ‘‘energy or materials specific not waste stream-specific. Thus, in waste that are combusted in an recovery device’’ to be an industrial reporting on ‘‘treatment for destruction’’ energy recovery unit should not be furnace or boiler as defined in 40 CFR activities and consideration of considered to be solely the ‘‘treatment 372.3. ‘‘treatment for destruction’’ activities for for destruction’’ of the toxic chemical. EPA considers any toxic chemical that purposes of the ‘‘otherwise use’’ EPA believes that for the purposes of the is burned and meets the criteria threshold under EPCRA section 313 PPA, reporting quantities ‘‘combusted described in part (1) of the focus on treatment of the chemical not for energy recovery’’ should be interpretation, but which has a heating treatment of the wastestream. As such, restricted to devices where energy is value less than 5,000 Btus per pound, as ‘‘treatment for destruction’’ only produced from the combustion of the provided in part (2) of the definition includes activities that chemically toxic chemical and harnessed. Such a interpretation, to be ‘‘treated for change the listed EPCRA section 313 restriction distinguishes, in keeping destruction’’ rather than ‘‘combusted for toxic chemical. EPA believes that this with PPA section 6607, between energy recovery.’’ This is regardless of includes acid or alkaline neutralization combustion of an EPCRA section 313 the type of device in which it is if the EPCRA section 313 listed toxic toxic chemical for the purpose of combusted. A discussion of this chemical is the entity which reacts with producing energy and destruction of the interpretation is provided in Ref. 13. the acid or base. EPA does not consider toxic chemical with no recovery of EPA believes revision of its proposed the EPCRA section 313 toxic chemical energy. EPA also believes that a definition of ‘‘treatment for destruction’’ to be ‘‘treated for destruction’’ if the threshold for the heating value of the is necessary in response to the waste stream is neutralized, but a toxic chemical should be set to comments received and to reflect the component of the waste stream other determine whether the chemical should difference between ‘‘treatment for than the EPCRA section 313 listed toxic be reported as ‘‘combusted for energy destruction’’ and ‘‘combustion for chemical is the entity which reacts with recovery’’ or ‘‘treated for destruction.’’ energy recovery.’’ EPA’s revised the acid or base. As discussed in Unit EPA believes that the threshold applied definition for ‘‘treatment for V.E.6. of this preamble, fuel blending is should be the same threshold used in destruction’’ follows. often a ‘‘processing’’ activity. EPA believes that biological treatment can EPA’s RCRA enforcement guidance to Treatment for destruction means the distinguish between energy recovery destruction of the toxic chemical in waste result in the destruction of an EPCRA and incineration (48 FR 11158, March such that the substance is no longer the toxic section 313 listed toxic chemical. More 16, 1983), of 5,000 Btus per pound. chemical subject to reporting under EPCRA generally for EPCRA section 313 section 313. This does not include the purposes, EPA believes that ‘‘treatment Specifically, EPA interprets destruction of a toxic chemical in waste for destruction’’ should not include ‘‘combustion for energy recovery’’ as the where the toxic chemical has a heat value preparation of the EPCRA section 313 combustion of a toxic chemical that (1) greater than 5,000 British thermal units and toxic chemical for disposal or removal is (i) a RCRA hazardous waste or waste is combusted in any device that is an of the toxic chemical from waste fuel, (ii) a constituent of a RCRA industrial furnace or boiler as defined at 40 streams. Further, EPA believes that CFR 260.10. hazardous waste or waste fuel, or (iii) a ‘‘treatment for destruction’’ should not spent or contaminated ‘‘otherwise used’’ EPA reiterates that an EPCRA section include physical removal or other material; and that (2) has a heating value 313 toxic chemical that has a heat value activities intended to render the stream greater than or equal to 5,000 Btus per of 5,000 Btus or less and that is a more suitable for further ‘‘otherwise pound in an ‘‘energy or materials constituent of a waste-derived fuel is use’’ or ‘‘processing,’’ such as a recovery device.’’ EPA believes that the ‘‘otherwise used,’’ regardless of the distillation or sedimentation unit. Btu value of the toxic chemical is the origin of the waste material, if that Additional guidance on this issue is value listed either in (i) ‘‘Design waste-derived fuel is combusted in an provided in Ref. 13. Institute of Physical Property Data Pure energy recovery unit. 8. Waste stabilization. In the preamble Component Data Compilation’’, 1988; 7. Treatment for destruction. One to the proposed rule, EPA stated that it (ii) Domalski, Eugene S. and Hearing, commenter believes that there is interpreted waste stabilization Elizabeth D. ‘‘Estimation of the substantial confusion over the definition consistent with the definition at 40 CFR Thermodynamic Properties of C-H-N-O- of ‘‘treatment for destruction.’’ The 265.1081, except that for purposes of S Halogen Compounds at 298.15 K. commenter contends that it is clear that EPCRA section 313 the definition Journal of Physical and Chemical this definition includes processes such should be interpreted to apply to any Reference Data, V22 #4, 1993; (iii) as incineration and the commenter EPCRA section 313 listed toxic chemical Domalski, Eugene S. ‘‘Selected Values of believes that acid or alkaline or waste containing any EPCRA section Heats of Combustion and Heats of neutralization and cyanide destruction 313 listed toxic chemical. 61 FR 33596- Formation of Organic Compounds may qualify. However, the commenter is 97. EPA noted that as provided in Containing the Elements C, H, N, O, P, uncertain whether treatment activities § 265.1081, a synonym for waste and S.’’ Journal of Physical and such as fuel blending, clarification, stabilization is waste solidification. Id. Chemical Reference Data, V22 #4, 1972; precipitation, biological treatment and at 33597. One commenter states that in (iv) ‘‘CRC Handbook of Chemistry and carbon absorption will be covered. a Federal Register notice of February 9, Physics’’, 1988; or in the absence of These processes are considered 1996 (61 FR 4903), EPA removed waste Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations 23853 solidification from the definition of release to include, for example, the 1987, Form R has included data waste stabilization at § 265.1081. EPA disposal of EPCRA section 313 listed elements specific to releases to land on- does not agree that the new language toxic chemicals in mining materials, site: Section 5.5, entitled ‘‘Release to excludes solidification from the ash, and sludge on-site to land; the Land On-site,’’ is divided into four definition of waste stabilization; rather, disposal of EPCRA section 313 listed subsections: landfill; land treatment/ it simply excludes one specific activity, toxic chemicals into a RCRA Subtitle C application farming; surface the addition of absorbent material facility; and the injection of EPCRA impoundment; and other disposal. without mixing or agitation, from the section 313 listed toxic chemicals into Further, in EPA’s guidance document general stabilization definition. underground injection wells, entitled 1995 Toxic Chemical Release EPA further does not agree that the particularly, Class I and II injection Inventory Reporting Form R and specific activity excluded from the wells. They further contend that in The Instructions (EPA 745-K-96-001), which general definition of waste stabilization Fertilizer Institute v. EPA, 935 F.2d 1303 is provided to the regulated community in § 265.1081 should be excluded from (DC Cir. 1991) (‘‘TFI’’), the court every year, EPA has consistently that definition for EPCRA section 313 rejected EPA’s expansive definition of described releases to land to include purposes. That activity was excluded ‘‘release.’’ Since the definition of disposal in landfills, surface because the addition of absorbent ‘‘release’’ in EPCRA is identical to the impoundments, land treatment/ material without mixing or agitation definition of ‘‘release’’ in CERCLA, application farming, and other disposal. would not be expected to result in these commenters argue that TFI Form R also includes a data element emissions of volatile organic prohibits EPA from defining ‘‘release’’ specific to underground injection, compounds. However, for purposes of under EPCRA to apply to any of the Section 5.4 entitled ‘‘Underground ‘‘otherwise use’’ under section 313, that above scenarios. injections on-site,’’ and the guidance activity constitutes such use in the same EPA believes that EPCRA section 313 document specifically states that this manner as any other waste stabilization does authorize the Agency to require data element includes the ‘‘total annual activity. Therefore, for purposes of that the land-based disposal of toxic amount of the toxic chemical that [is] EPCRA section 313, EPA defines ‘‘waste chemicals, including the examples cited injected to all wells, including Class I stabilization’’ consistently with the above, be reported on Form R as wells, at the facility.’’ general definition found at 40 CFR releases. The statute directs EPA to EPA’s interpretation of its statutory section 265.1081, which provides that publish a ‘‘uniform toxic chemical authority to collect disposals or waste stabilization is a physical or release form’’ and specifies that the form injections to land as releases is chemical process used to either reduce is to provide for the submission of, inter supported by the Conference Report, in the mobility of hazardous constituents alia, ‘‘[t]he annual quantity of the toxic which the House and Senate conferees in a hazardous waste or eliminate free chemical entering each environmental emphasized that ‘‘[r]eporting on releases liquids in the waste, and that this medium.’’ EPCRA section 313(g)(1). The to each environmental medium under process includes mixing the hazardous statute broadly defines both ‘‘release’’ to subsection (g)(1)(C)(iv). . . shall include, waste with binders or other materials, mean ‘‘any spilling, leaking, pumping, at a minimum, releases to the air, water and curing the resulting hazardous pouring, emitting, emptying, (surface water and groundwater), land waste and binder mixture. discharging, injecting, escaping, (surface and subsurface), and waste The commenter also suggests that a leaching, dumping or disposing into the treatment and storage facilities. Conf. more appropriate definition of waste environment,’’ EPCRA section 329(8) Rep. at 298 (emphasis added). stabilization is located at 40 CFR 268.42 (emphasis added); and ‘‘environment’’ Representative Edgar, the principal Table 1. That table does not define to ‘‘include water, air and land and the House author of EPCRA, further waste stabilization, but identifies waste interrelationship which exists among clarified this issue in stating that ‘‘all stabilization as one type of technology- and between water, air, and land and all toxic chemicals dumped into land based treatment standard applicable to living things.’’ Id. section 329(2). Under disposal facilities must be reported RCRA hazardous wastes prior to land EPCRA, EPA interprets annual whether or not such facilities are disposal. For purposes of defining waste reportable quantity to include regulated under [RCRA].’’ 132 Cong. stabilization as a type of ‘‘otherwise ‘‘releases.’’ EPA interprets ‘‘release’’ to Rec. at H9595 col. 1 (October 8, 1996). use’’ of a toxic chemical, EPA believes include the land-based disposal of toxic EPA believes that this legislative history that the general approach used in the chemicals given the definition of confirms that Congress intended the definition at 40 CFR 265.1081, as ‘‘release’’ includes a wide variety of release forms to include the land-based discussed above, is appropriate. activities and the encompassing disposal of toxic chemicals. This is true definition of ‘‘environment’’ includes whether or not the area receiving waste F. Definitional Interpretations and the land, both surface and subsurface. is intended to contain it, and therefore Reporting Considerations Even if ‘‘release’’ were to be construed EPA disagrees with some commenters’ 1. Reporting of releases. EPA has more narrowly, EPCRA does not limit assertion that there must be a direct received approximately 50 comments on the Form R requirements to ‘‘releases’’ physical contact between a listed toxic the issue of the Agency’s interpretation but calls for facilities to report all chemical and the land (or any other of ‘‘release.’’ The following is a brief amounts of listed toxic chemicals environmental medium) before a summary of some of the major issues ‘‘entering each environmental medium’’ ‘‘release’’ reportable under EPCRA raised in those comments. Detailed annually. EPCRA section section 313 can occur. responses to comments specific to 313(g)(1)(C)(iv). EPA does not believe EPA also does not agree with mining, RCRA Subtitle C facilities, that it is appropriate in this context to commenters’ position that The Fertilizer utilities, and underground injection exclude such disposals simply because Institute deprives the Agency of wells are available in the Response to the disposal area is intended to contain authority to require disposal of toxic Comments document (Ref. 15). the toxic chemicals in or on the land. chemicals to be reported as releases A number of the commenters argue EPA has interpreted section 313(g)( under EPCRA section 313. That case that EPA is unlawfully expanding the 1)C)(iv) in this way from the inception involved a challenge to EPA’s definition of ‘‘release.’’ They contend of the TRI program. Ever since reporting interpretation of ‘‘release’’ under that EPA has incorrectly interpreted was first required, for reporting year CERCLA section 101(22) to include 23854 Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations disposal to unenclosed containment the House and Senate conferees stated organizations as part of the stakeholder structures, such that CERCLA’s section that ‘‘[t]he purpose of this reporting process as described in Unit VII. of this 103(a) reporting requirement would be requirement is to obtain available preamble to identify other modifications triggered by such disposal. In response information about releases of listed to the form which will make it a more to that challenge, EPA argued that the toxic chemicals to the environment.’’ effective tool for communicating threat of an actual release from such a Conf. Rep. at 298. This statement is information about releases and transfers structure was great enough to justify reinforced by the broad variety of of chemicals to the public. Issues that reporting a disposal into it as an actual intended uses of the release forms that will be addressed include changes to release. Based on specific provisions of are discussed in the statutory text, at section 8, currently named ‘‘Source CERCLA, however, the court rejected EPCRA section 313(h). For all of these Reduction and Recycling Activities,’’ to that position, emphasizing that CERCLA reasons, EPA believes that the holding better reflect pounds of waste generated ‘‘expressly distinguish[es] between of The Fertilizer Institute is limited to as distinguished from pounds of waste threats of releases and actual releases,’’ the context and terms of CERCLA, and managed, changes to the nomenclature TFI, 935 F.2d at 1310, and concluding should not be extended to the reporting for underground injection and land that ‘‘[u]nder CERCLA’s provisions, requirements of EPCRA. disposal as well as modifications that nothing less than the actual release of a EPA also received comments stating may result from finalization of the PPA hazardous material into the that because EPA uses the word reporting requirements for Form R. environment triggers its reporting ‘‘release,’’ TRI data will lead to the 2. Double counting issues. Several requirements,’’ Id. misperception that a reported EPCRA commenters contend that modification section 313 ‘‘release’’ necessarily results of the interpretation of ‘‘otherwise use’’ EPA believes that The Fertilizer in an actual exposure of people or the will result in double counting of wastes Institute does not affect EPA’s authority environment to a toxic chemical. These reported in section 8 of Form R. Others to promulgate today’s rule under comments have been received from the contend that this double counting in EPCRA. Although one relevant term, mining interests, RCRA Subtitle C section 8 already exists and that the ‘‘release,’’ is defined in a similar way in hazardous waste facilities, utilities and modification of ‘‘otherwise use’’ will both EPCRA and CERCLA, other other industries. Although EPA only increase the magnitude of the relevant provisions of EPCRA are provides clear descriptions of TRI data problem. All of the comments are defined differently and more broadly. for public use, the Agency recognizes specific to the total waste reported by First, while CERCLA section 101(8) that the potential exists for the data in the facility in section 8 of Form R. None defines ‘‘environment’’ to mean (in TRI to be mischaracterized and/or of the commenters contend that double addition to certain specified waters) misunderstood. However, EPA does not counting will result for on-site releases. surface and ground water, land surface believe that the potential for Eastman contends that the Form R and subsurface strata and air, EPCRA mischaracterization and/or should be modified so that only the defines environment more broadly to misunderstanding justifies not adding facility responsible for generating a ‘‘include’’ all such media and the new industry groups to the TRI. EPA waste would report on the EPCRA ‘‘interrelationship which exists among will continue to attempt to provide the section 313 listed toxic chemical in that and between water, air, and land and all public with the means for correctly waste. If wastes are transferred to living things.’’ EPCRA section 329(2) interpreting the TRI data. another facility for purposes of further (emphasis added). Second, while In addition, the Agency modified waste management, the commenter CERCLA section 103(a) requires Form R for the 1996 reporting year in believes that the receiving facility notification only of an actual release, order to address some of the should not report unless a ‘‘new waste’’ EPCRA requires each annual facility commenters’ concerns about public is generated. CMA contends that EPA’s report to include, at a minimum, not misperception and to better help the proposed reporting requirements will only the quantity of toxic chemicals public understand the nature of the result in significant double counting if ‘‘entering each environmental medium,’’ various methods of disposal. First, EPA all wastes managed are summed ‘‘across and a number of other things, such as does recognize the difference in the the facilities.’’ They believe that if EPA amounts of toxic chemicals present and management and regulatory oversight aggregates Form R section 8 data the waste treatment and disposal provided by the Underground Injection nationally, only the on-site activities methods used. EPCRA section Control program of Class I wells from should be included. 313(g)(1)(C). Moreover, the purposes of other forms of injection into the land. CMA further suggests that three new the reporting requirements in each As a consequence, EPA has redesigned data elements should be included in statute are significantly different: as The Form R to distinguish Class I injection section 8 of the Form R: ‘‘Total waste Fertilizer Institute court noted, CERCLA well data from data for other classes of management activities,’’ ‘‘Quantity was enacted ‘‘[t]o address the growing injection wells in a way that makes that generated onsite,’’ and ‘‘Quantity dangers caused by the unregulated distinction clear for the public. The received from offsite.’’ Based on dumping and storage of hazardous Agency has redesigned Form R to examples that they provide, the data wastes.’’ TFI, 935 F.2d at 1306. To distinguish disposals to RCRA Subtitle element ‘‘Total waste management ‘‘establish a program for appropriate C landfills from disposals to other activities’’ represents the sum of the environmental response action,’’ landfills. In addition, the title of Section current sections 8.1-8.7; ‘‘Quantity CERCLA ‘‘vested the EPA with the 5 of the Form R, previously named generated onsite’’ represents the authority to investigate and respond to ‘‘Releases of the Toxic Chemical to the quantity of the EPCRA section 313 listed the release, or threatened release, of Environment On-Site’’ has been toxic chemical that was actually hazardous wastes into the changed to reflect the statutory language produced as waste at the site. Quantity environment.’’ Id. In turn, the court to ‘‘Quantities of the Toxic Chemical received from off-site is the quantity of stated that the purpose of the CERCLA Entering Each Environmental Medium.’’ the EPCRA section 313 listed toxic reporting requirement is ‘‘[t]o effectuate Beyond the changes which EPA has chemical as waste managed on-site that the EPA’s response authority.’’ Id. By made on the form for 1996, the Agency was received from another facility. contrast, in discussing the information will be working with industry, states, The information in section 8 of Form required to be reported under EPCRA, academia and other non-governmental R is the quantity of the EPCRA section Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations 23855

313 listed toxic chemical that is provides the public with useful Since EPA did not include the managed as waste material by the information on toxic chemicals. industries suggested by commenters in reporting facility; it is not limited to the In addition, any apparent issue with its proposal, it will not directly address quantity of the EPCRA section 313 double counting of total waste generated the particular issues associated with chemical that is generated as waste by may be overstated by the commenters. each industry which commenters have the reporting facility. The information For example, the facility generating the recommended including under EPCRA collected under section 8 of Form R is waste may not file a Form R because it section 313. In general, EPA has collected under the authority of section may not have exceeded an activity questions regarding how the Agency 6607 of the PPA, which specifically threshold or may not have conducted a should respond to the different relates to the management of EPCRA reportable activity. situations these industries might face in section 313 toxic chemicals in waste. While EPA disagrees with the reporting under EPCRA section 313. EPA does not believe that the PPA is commenters, EPA believes that CMA’s EPA recognizes the concerns many intended to limit the reporting of proposed addition of data elements to commenters expressed regarding the EPCRA section 313 toxic chemicals section 8 may be an efficient way to lack of information on toxic chemical managed in waste to the quantities that address the commenters’ concerns about releases from facilities in other industries. However, EPA believes that are generated at the facility. The double counting. It would continue to any expansion should be approached in information on the EPCRA section 313 allow the data user to assess wastes managed by the facility but would a measured and orderly fashion. toxic chemicals in waste managed by A number of commenters from the facility would be incomplete if the minimize the perception that the wastes reported in section 8 were generated by environmental and community groups facility were to report only that fraction urged EPA to remove some of the of managed waste that was generated by the reporting facility. As discussed above, EPA plans to revise the Form R constraints to reporting in its program, the facility. Thus, EPA believes that if such as lowering the current exemption in the near future in conjunction with the wastes currently reported in section for de minimis concentrations, rulemaking in connection with the PPA 8 are totaled across the nation, double particularly for classes of chemicals. reporting requirements. EPA will counting of the wastes that are managed Such a step may potentially make it seriously consider the data elements will not occur. Even assuming someone more likely that some industry groups included in CMA’s comments. Once were to represent national totals of not included in this rule would provide EPA includes data elements that are section 8 waste data as waste generated, more information under EPCRA section similar (or the same) as those suggested this rulemaking does not introduce this 313 reporting requirements. In the by the commenter, EPA will report misuse of the section 8 information. future, EPA will consider changes to the separately national totals of waste One type of information that section de minimis exemption, but is not generated from national totals of waste addressing the issue in this rule, 8 data capture is how different facilities managed. manage a quantity of an EPCRA section because the Agency believes that this 313 toxic chemical in waste. Currently, G. Industries Not Included in this Final issue requires further analysis and facilities in SIC code 20 through 39 may Rule rulemakings. EPA may consider such a send wastes to other facilities in SIC step in the future. A significant number of commenters A number of commenters support code 20 through 39 for the purposes of urged EPA to add other industries recycling, combustion for energy EPA’s decision not to include oil and which are not included in this gas exploration and production in its recovery, treatment, and disposal. The rulemaking. These comments primarily proposal, and urge EPA not to propose first facility would report in section 8 of support EPA’s proposal, but state the adding this industry in the future. EPA Form R on quantities of the EPCRA belief that EPA should fully exercise its considered the inclusion of this section 313 listed toxic chemical sent authority to add other industries, and industry group prior to its proposal, and off-site for waste management. If the that reporting by a number of other indicated in the proposal that one second facility exceeded the reporting industries is justified. A number of consideration for not including it was threshold for that chemical elsewhere at commenters support the addition of concern over how a ‘‘facility’’ would be the facility then that facility would other industries such as dry cleaners, defined for purposes of reporting in report on the quantities managed. gas stations, and airports. EPCRA section 313 (61 FR 33592). This However, the management activity and As discussed in Unit II.C. of this issue, in addition to other questions, led quantity of the EPCRA section 313 toxic preamble, EPA considered a number of EPA to not include this industry group. chemical associated with that activity industries during the screening process EPA will continue its dialogue with the reported in section 8 by the first facility conducted prior to this rulemaking. oil and gas exploration and production would not necessarily be reported the Also, as discussed in Unit V.A. of this industry and other interested parties, same way by the second facility. For preamble, EPA has broad authority to and may consider action on this example, facility A reports that add other industries, and may consider industry group in the future. 1,000,000 pounds of an EPCRA section doing so in the future. EPA selected the Some commenters from 313 toxic chemical is sent off-site for industry groups included in this final environmental and community groups recycling to facility B. Facility B rule as a matter of prioritizing in order urged EPA to abandon the SIC code recycles 800,000 pounds of the to focus the Agency’s efforts and system entirely in order to capture all 1,000,000 pounds received from facility resources, but recognizes that other facilities which use toxic chemicals. A; treats for destruction 150,000 pounds industries may also ‘‘manufacture,’’ These commenters cite the ability of and emits 50,000 pounds. While the ‘‘process,’’ or ‘‘otherwise use’’ listed facilities to avoid reporting under reported total quantity of the EPCRA toxic chemicals in ways relevant to the EPCRA section 313 by identifying their section 313 toxic chemical managed as reporting purposes of EPCRA section facilities in non-covered SIC codes. EPA waste will be the same for both 313. Therefore, reporting by facilities in discusses the so-called ‘‘SIC code facilities, how each facility managed the these other non-included industries may loophole’’ in Unit V.I.3. of this waste is clearly different. This be determined to be relevant to the preamble, and more fully in the information on waste management thus purposes of EPCRA section 313. Response to Comment document (Ref. 23856 Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations

15). EPA does not believe that concerns raised by mining industry information on the release and waste abandoning the SIC code system commenters, such as duplicative management of EPCRA section 313 toxic entirely, and then covering all facilities reporting requirements, were raised by a chemicals from the ‘‘manufacture,’’ which manufacture, process, or number of other commenters, and are ‘‘process,’’ or ‘‘otherwise use’’ activities. otherwise use EPCRA section 313 addressed generally in other units of This information is relevant to the chemicals, is a workable alternative at this rule. Additional detail is available purposes of EPCRA section 313. The this point in time. Resource constraints, in the Response to Comments document application of the terms ‘‘manufacture,’’ legal questions, burden for facilities, (Ref. 15). ‘‘process,’’ and ‘‘otherwise use’’ to the and compliance and enforcement issues a. Lack of similarity to manufacturing. mining sector is consistent with the all combine to bring into question the Several commenters believe that EPA application of those terms to the Agency’s ability to expand EPCRA has the authority to add only those manufacturing sector. As discussed in section 313 reporting in such a fashion. industries engaging in activities which more detail below, EPA believes that the are similar to activities conducted at extraction of listed chemicals H. Industry-Specific Comments for currently covered manufacturing constitutes ‘‘processing’’ for distribution Industry Groups that Are Being facilities, or which are manufacturing- in commerce. Further preparation of Finalized in Today’s Action like. These arguments are based on the those listed chemicals for distribution in 1. Comments regarding the proposed commenters’ reading of the statute and commerce during beneficiation also addition of mining. EPA is finalizing the the relevant legislative history of EPCRA constitutes ‘‘processing’’ as defined in addition of Metal Mining (SIC codes section 313. These commenters believe section 313. 1021, 1031, 1041, 1044, 1061, 1099) and clear distinctions exist between mining b. Mining does not include the Coal Mining (SIC codes 1221, 1222, and activities that occur in the manufacture, process, or otherwise use 1231) to the EPCRA section 313 list of manufacturing sector. Mining removes of chemicals. Several commenters covered industries. EPA believes that EPCRA section 313 metals from their believe that while EPA may have the reporting by facilities in these industry place in nature, while manufacturing authority to expand the list of industry groups is relevant to the purposes of industries more typically make products groups subject to EPCRA section 313, it EPCRA section 313. EPA received that are toxic chemicals or that are made does not have the authority to add considerable comment regarding the out of or with the assistance of toxic industries which do not ‘‘manufacture,’’ addition of these industry groups, both chemicals. Commenters believe that ‘‘process,’’ or ‘‘otherwise use’’ EPCRA for and against this action. A majority of EPA based its proposal on the false section 313 chemicals, and which do the substantive comments received from premise that mining activities are not engage in activities which are mining trade associations, state ‘‘virtually indistinguishable’’ from similar to activities conducted by agencies, and mining companies manufacturing activities in SIC codes 20 facilities within the manufacturing primarily address whether subjecting through 39. sectors. These commenters argue that mining facilities to EPCRA section 313 As discussed in Unit V.A. of this the threshold activity definitions in reporting requirements is consistent preamble, EPCRA section 313 does not EPCRA section 313 for ‘‘manufacture,’’ with the authority or purposes of limit the addition of industry groups to ‘‘process,’’ and ‘‘otherwise use’’ do not EPCRA section 313, and whether such EPCRA section 313 to those groups that apply to mining, for a number of reporting would provide data of little or are like or similar to manufacturing reasons, including that mining is the no value at considerable burden to the facilities. Rather, Congress applied removal of naturally-occurring materials industry. A significant number of section 313 to every designated facility from the earth and does not create or industry commenters incorporated the classified in Division D: Manufacturing, compound EPCRA section 313 comments of the National Mining of the SIC code system, while giving chemicals. Because ore or coal is not Association (NMA) by reference. The EPA the authority to add other facilities, created (i.e., ‘‘manufactured’’), it cannot comments in favor of the proposal which by definition, would not be be ‘‘processed’’ during beneficiation or address the lack of data available manufacturing facilities. Thus, clearly, preparation because ‘‘processing’’ must regarding the environmental Congress authorized EPA to add occur ‘‘after manufacture’’ as defined in consequences of mining and the need industries which are outside of the EPCRA section 313. Further, some argue for that data, and the lack of inclusion traditional manufacturing sector. The that the term ‘‘otherwise use’’ has no of this industry under other Agency statute permits EPA to add industry application because it must occur in the reporting requirements. groups if reporting by the industry context of the ‘‘manufacturing’’ and In summary, concerns that groups is relevant to the purposes of ‘‘processing’’ conducted by the commenters raise regarding EPA’s section 313. EPA believes that reporting manufacturing sector. authority to specifically add mining of information on the ‘‘manufacture,’’ EPA believes that these commenters facilities can be classified as: (a) Mining ‘‘process,’’ ‘‘otherwise use,’’ and release are incorrect in their interpretation of activities are not similar to activities in and other waste management of toxic the terms ‘‘manufacture,’’ ‘‘process,’’ or the manufacturing sector; (b) mining chemicals at coal and metal mining ‘‘otherwise use.’’ As defined in EPCRA does not involve the ‘‘manufacture,’’ facilities is relevant to the purposes of section 313(b)(1)(C), ‘‘manufacture’’ ‘‘process,’’ or ‘‘otherwise use’’ of EPCRA EPCRA section 313. Therefore section means to produce, prepare, compound, section 313 toxic chemicals; and (c) the 313 authorizes the addition of these or import a listed toxic chemical, and data provided by mining facilities industries. ‘‘process’’ means the preparation of a would be of little value or benefit. These EPA recognizes that there are listed toxic chemical, after its concerns are raised in conjunction with distinctions between mining and manufacture, for distribution in the addition of both metal and coal manufacturing; however, there are commerce. The term ‘‘otherwise use’’ is mining, and are addressed in the significant similarities as well. Both not defined in the statute, but EPA has following section. Following this manufacturing and mining facilities are interpreted the term by regulation to general section, two sections discuss engaged in the ‘‘manufacture,’’ encompass any activity involving a more industry-specific comments, the ‘‘process,’’ or ‘‘otherwise use’’ of EPCRA listed toxic chemical at a facility that first dealing with metal mining, and the section 313 toxic chemicals, and both does not fall under the definitions of second with coal mining. Several major industry groups can provide ‘‘manufacture’’ or ‘‘process.’’ Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations 23857

‘‘Manufacture’’ of a specific listed commerce. Because Congress listed EPA believes that information on the toxic chemical includes its production. several naturally occuring materials in releases of chemicals ‘‘manufactured,’’ EPA interprets ‘‘production’’ to include the original EPCRA section 313 toxic ‘‘processed,’’ or ‘‘otherwise used’’ by the creation. Production of that listed chemical list, EPA believes that mining industry in rural areas is chemical may occur naturally, or by Congress intended for facilities to report consistent with that intent. Thus, EPA industrial process. Metals contained in on activities involving these materials. acknowledges that a significant ores are produced by natural processes. c. Value and benefit of reporting from consideration in advancing its proposal Consequently, EPCRA section 313 mining facilities. Several commenters was to provide information to chemicals which exist in nature have assert that little or no benefit will result communities, but in keeping with been ‘‘manufactured’’ at some point, as from reporting under the EPCRA section EPCRA section 313, EPA considers defined under EPCRA section 313. The 313 reporting requirements by the ‘‘community’’ to identify more than the preparation of toxic chemicals mining industry. Various commenters most local human populations. contained in the ore for distribution in make a number of arguments as to why One commenter, the Mineral Policy commerce occurs after it has been little or no benefit will result from Center notes that, ‘‘the need for more ‘‘manufactured’’ (i.e., produced). The reporting. They observe that mining information is especially compelling in preparation of that EPCRA section 313 facilities are overwhelmingly located in the case of mining, because TRI will fill toxic chemical involves its separation rural areas and in many cases are distant a void in valuable information about from its natural state. Therefore, the from population centers; therefore no mining’s toxic releases. One of the chief extraction for distribution in commerce ‘‘community’’ typically exists which reasons for this lack of information is of the toxic chemical is ‘‘processing’’ will benefit from the data. These that mining wastes have been exempted under EPCRA section 313. Other commenters generally argue that if there from treatment as hazardous wastes activities, such as beneficiation, are also is no ‘‘community’’ nearby, then under the Resource Conservation and processing under EPCRA section 313 reporting by mining facilities would not Recovery Act . . . At present, there is no because the listed toxic chemical is be relevant to the purposes of EPCRA available alternative source of being further prepared for distribution section 313, since the purpose of section information--such as state programs--on in commerce. EPA’s belief that toxic 313 is to provide information to the industry’s toxic releases.’’ chemicals which exist in metal ores are communities on toxic chemical releases. This commenter further observes that ‘‘manufactured,’’ and that subsequent Many of these commenters contend that the benefits of TRI data include: extraction and beneficiation for EPA did not take the location of mining enabling people to make more educated distribution in commerce is the facilities into account in reaching its choices about where to live and work; ‘‘processing’’ of those toxic chemicals, is determination to propose coal and metal enabling people to take the necessary measures to prevent exposures to consistent with EPCRA section 313 and mining. EPA does not dispute that many EPCRA section 313 toxic chemicals; EPA’s current guidance on the activity mining facilities are located in rural using the data to apply pressure through definitions, as well as with current areas, and accepts that some, but not all, the media and to public officials to compliance practices by manufacturing mining operations are located address mining’s pollution problems; facilities in SIC codes 20 through 39. significant distances from the nearest using the data to conduct better research Further, other EPCRA section 313 toxic dwelling. EPA also acknowledges that a on the environmental and health chemicals may also be ‘‘manufactured’’ major goal of EPCRA section 313 impacts of mining wastes; and using the during beneficiation if chemical reporting requirements is to provide data in the mining industry as a gauge reactions take place--intentionally or data and information to local to measure progress in reducing releases unintentionally--which produce other communities. However, a number of and in applying technologies to reduce listed toxic chemicals. In addition, commenters also assert that the general or recover toxic chemicals from mining EPCRA section 313 toxic chemicals are public has a right to know about wastes that pose serious health and ‘‘otherwise used’’ during the extraction information regarding toxic chemical environmental risks. or beneficiation activities at many of the releases and waste management EPA believes that the public will covered mining facilities. information from mining operations benefit from the information that will In applying the EPCRA section 313 because of the benefits that this result from this rule. The public, processing definition to the mining currently unavailable information will including small communities and industry, metal ore can be thought of as provide to the public. EPA agrees, and communities distant from mining similar to crude oil as a material this is one of the primary reasons EPA operations but which may be impacted entering commerce. Petroleum has undertaken this action. Given the in some manner by those operations, do refineries, which are currently covered purposes described in EPCRA section not have access to facility-specific and under EPCRA section 313, process 313(h), the information collected under chemical-specific information such as crude oil which has been extracted from EPCRA section 313 is for the benefit of provided under EPCRA section 313, the earth and which typically contains, the public, including communities either at the federal or state level. With in its natural state, EPCRA section 313 around covered facilities. Coverage this information, the public will have listed chemicals. These naturally under EPCRA section 313 is not based improved knowledge of chemicals occurring EPCRA section 313 listed solely on proximity to sizable or urban involved in mining, and can use that toxic chemicals may continue with the populations. EPA believes that even information to better assess crude oil as it is further processed. The small or rural populations may derive environmental and human health risks. constituents may be incorporated into benefit from EPCRA section 313 data, Several commenters argue that products such as gasoline and fuel oil. and the ‘‘community’’ which may reporting of so-called ‘‘releases’’ will For EPCRA section 313 purposes, the benefit from data is broader than the mislead the public into believing that toxic chemicals such as benzene and individual citizens living or working in these ‘‘releases’’ pose risks or have toluene that may be found as close proximity to mining operations. significant impacts on the environment. constituents of crude oil are being Further, an additional intent of TRI is EPCRA section 313 is not a risk-based prepared by the refineries, after being also to provide information on reporting system, and EPA makes no ‘‘manufactured,’’ for distribution in chemicals that cause ecological toxicity. determination, through this action, of 23858 Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations the risks to human health or the commenters believe that EPA has In order to provide additional environment from mining activities. therefore based its decision to add metal assistance to the commenters in ‘‘Risk’’ is not an EPCRA section 313 mining on faulty assumptions and understanding the de minimis standard for addition of facilities. limited or flawed data. exemption and its application to mining However, TRI data, in combination with EPA agrees that in some cases metal activities, EPA has provided, in the other information, can and was and metal compound concentrations in Response to Comments document (Ref. intended by Congress to be used to help ores may be below de minimis 15) a description of the exemption and determine potential risks. As the concentrations, while in other cases, some examples of its application. National Mining Association has noted metal and metal compound One commenter, the Nevada Mining in an attachment to its comments, concentrations may be above de Association (NvMA), provided data ‘‘some mining operations may present minimis concentrations. EPA bases its about the total percent concentrations of legitimate risks to health and the conclusion on a variety of sources. For metal compounds in ore and waste rock environment.’’ example, in the Economic Analysis (Ref. from a number of mines in the western EPA recognizes that TRI data 12), EPA identified EPCRA section 313 U.S. While these data indicate that regarding releases may sometimes be chemicals such as compounds of lead, section 313 chemicals were not mischaracterized or misperceived, as zinc, nickel and manganese in ores at generally present above de minimis discussed in Unit V.F.1. of this concentrations above de minimis levels, concentrations in ore and waste rock in preamble. Congress intended EPCRA while gold ores are not anticipated to selected samples, it was not clear in section 313 reporting to provide the contain EPCRA section 313 chemicals NvMA’s comments what type of mines public with information about the use, above de minimis concentrations. these samples were taken from, i.e., management, and disposition of toxic However, the concentration of EPCRA were these samples taken from gold chemicals. Reporting by mining section 313 toxic chemicals found in mines, copper mines, or other metal facilities will increase the universe of ores may also increase during mines. EPA cannot determine the information available, and the public processing or beneficiation activities accuracy or validity of these data, but can use TRI data in concert with other and under current guidance, facilities accepts that these data suggest that, at information to better understand the are required to consider amounts least in some cases, concentrations of risks associated with releases of toxic processed above de minimis the EPCRA section 313 chemicals in chemicals from mining facilities. EPA concentrations toward threshold and target ore and waste rock may be below believes that, in light of the possibility release calculations. When a facility de minimis levels. However, EPA is not that public misperceptions might arise ‘‘processes’’ or ‘‘otherwise uses’’ EPCRA certain how generally applicable these through TRI data, EPA must continue to section 313 chemicals that remain data are to the metal mining industry as improve its outreach and education below the appropriate de minimis levels a whole without a clearer understanding efforts regarding the data collected for the chemicals, the facility does not of what types of metal mines the under EPCRA section 313. As noted have to consider these amounts for samples were taken from, the collection above, EPA will initiate a stakeholder threshold or release calculations. If the methods, and the laboratory testing process to consider these issues. chemical concentrations exceed de methods used to collect and process 2. Metal mining. As stated above, EPA minimis during processing, at that point these samples. Most industry received considerable substantive the facility must consider amounts of commenters limited themselves to comment which urged EPA to withdraw the toxic chemical toward threshold and general statements regarding their belief metal mining from this rulemaking. EPA release calculations. that section 313 chemicals are generally also received comments urging EPA to Nevertheless, the fact that below de minimis concentrations in ore, include metal mining. concentrations of the toxic chemical are waste rock, or overburden, without a. De minimis concentrations of above or below de minimis levels in providing data. In certain situations, an section 313 chemicals in metal mining. waste rock is dispositive only for EPCRA section 313 listed toxic chemical Nearly every industry commenter purposes of determining whether the that is present below these de minimis contends that, for most metal mining toxic chemicals in the waste rock trigger concentrations that is ‘‘processed’’ or operations, and especially for precious an activity threshold. In making that ‘‘otherwise used’’ does not have to be metal mines, concentrations of metals determination the toxic chemicals in the factored into threshold determinations. and metal compounds in waste rock and waste rock must first be subject to a Therefore, if a gold mine in Nevada has ore are significantly below the de threshold activity (i.e., the de minimis no EPCRA section 313 chemicals minimis concentration and including exemption applies only if the EPCRA present above de minimis these facilities will require facilities to section 313 toxic chemical is concentrations in its processed ore, consider de minimis amounts for ‘‘manufactured,’’ ‘‘processed,’’ or which industry commenters claim is reporting purposes. Several commenters ‘‘otherwise used’’). Simply being typically the case, then the amounts of state that other EPCRA section 313 present in concentrations below the those chemicals ‘‘processed’’ are not listed chemicals ‘‘manufactured,’’ appropriate de minimis level does not attributable to thresholds or release ‘‘processed,’’ or ‘‘otherwise used’’ at result in an exemption from reporting of determinations. Further, provided that metal mining sites typically would not the releases of these chemicals. For an activity threshold for the chemical is exceed de minimis thresholds. Many example, other activity on-site could not exceeded at the facility, the disposal industry commenters believe that EPA’s trigger reporting for an EPCRA section of those chemicals contained in waste statements regarding de minimis 313 toxic chemical. While extraction of rock would not be reportable as well. concentration levels in ore and waste waste rock without subsequent b. Extraction exemption for metal rock are in some cases inaccurate and in distribution in commerce is not a mining. In its proposal, EPA requested others are based on limited and atypical threshold activity, disposal of the waste comment on whether an exemption for data. Some commenters also assert that rock, and therefore the EPCRA section extraction activities should be provided there are contradictions in EPA’s 313 toxic chemical in the waste rock, for metal mining, in a manner similar to supporting documentation regarding must be reported, if the appropriate the exemption proposed for coal whether chemicals are present above or threshold for that chemical is exceeded mining. Industry commenters support below de minimis levels. These at the facility. an exemption for metal mining Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations 23859 extraction from EPCRA section 313 not depriving the public of any valuable commenters indicate that the Minnesota reporting requirements, while some information regarding toxic chemicals. Emergency Response Commission commenters specifically urged EPA to EPA considers waste rock as distinct specifically found: (1) Toxic chemical not grant an exemption. While industry from overburden for purposes of releases and transfers from SIC 1011 commenters generally believe the entire reporting under EPCRA section 313. facililities in Minnesota were not of industry should be exempt from the Waste rock is generally considered that sufficient quantities to warrant EPCRA section 313 reporting portion of the ore body that is barren or reporting; (2) based on a review of the requirements, they also offer a number submarginal rock or ore which has been information, no facilities were expected of arguments for exempting extraction. mined but is not of sufficient value to to meet the threshold reporting levels; Several commenters conclude that warrant treatment and is therefore and (3) facilities do not make intensive extraction should be exempted because removed ahead of the milling processes. use of toxic chemicals for processing EPCRA section 313 listed toxic Waste rock is part of the ore body and their product. These commenters chemicals will not typically exceed de may, depending on economic believe that EPA should grant an minimis concentrations; extraction is conditions, become a valuable source of exemption, or exclude iron ore mining not ‘‘manufacturing’’ or ‘‘processing;’’ a metal. It may also be further facilities from this rule, for the same and without an exemption, metal distributed in commerce for other uses reasons the state of Minnesota granted mining facilities would be faced with a such as road construction. Waste rock an exemption. The commenters believe substantial compliance burden because may contain similar constituents as the that, based on the findings in of the volume of materials moved in target ore. In other words, waste rock Minnesota, reporting by iron ore mining extraction and the need to continually can become target ore depending on facilities is not relevant to the purposes assess EPCRA section 313 toxic changes in the value of the metals being of EPCRA section 313, and that these chemical levels to determine whether mined. Waste rock may typically facilities do not meet the EPCRA section reporting thresholds may be exceeded. contain lower concentrations of metals 313 standard for addition. Industry commenters believe that and other constituents than the target EPA is not including this SIC code in releases from extraction pose little risk, ore. Releases associated with extraction this final rule. Based on the information and reporting associated with extraction or further preparation of the waste rock available to EPA, listed toxic chemicals will be misleading and mask other more are reportable provided that a threshold do not appear to be ‘‘processed’’ or significant releases. In contrast, one is exceeded at the facility for the listed ‘‘otherwise used’’ above de minimis toxic chemicals that are constituents of concentrations, nor does it appear that commenter argues that an exemption the waste rock. This would occur under listed toxic chemicals are coincidentally will result in a truncated TRI that would two general scenarios. In the first manufactured above the fail to capture one of the largest sources scenario, the waste rock is distributed in ‘‘manufacturing’’ threshold during the of toxic releases from mining, resulting commerce, e.g., to be used in highway extraction or beneficiation of iron ores. from the disposal of waste rock. construction. In that particular case, the Therefore, EPA has not included SIC EPA is not granting an exemption for extraction and further preparation of the code 1011 in the list of facilities covered metal mining extraction. As stated waste rock is for distribution in under EPCRA section 313 in this action. above, EPA believes that the extraction commerce, and thus is ‘‘processing.’’ In However, EPA does not believe that the of ore containing EPCRA section 313 this case, if the concentration of the rationale articulated by the state of chemicals for their subsequent listed toxic chemical in the waste rock Minnesota in exempting this SIC code distribution in commerce constitutes the is below de minimis, than any quantities from coverage in its program is ‘‘processing’’ of those listed chemicals. of that listed toxic chemical in the waste consistent with the EPCRA section 313 In addition, EPA believes that EPCRA rock extracted or further prepared standard for addition of industry section 313 chemicals may be present would be exempted from threshold and groups. For instance, EPA has concerns above de minimis concentrations in ore. release and other waste management regarding the interpretation of the EPA recognizes that this may not be the calculations. If above de minimis, than article exemption under EPCRA section case for some metal mines, and that the quantities would count toward these 313 which Minnesota used. This concentration levels may vary calculations. In the second general interpretation may have been used to significantly. However, EPA believes, scenario, the waste rock is disposed of exclude activities which were likely to based on the Agency’s current to the land on-site and elsewhere at the be reportable under the federal program. understanding, that overburden facility a threshold is exceeded for the EPA may reconsider the addition of this contains EPCRA section 313 chemicals listed toxic chemicals in the waste rock. industry segment at a future date in in negligible amounts and that reporting In this case, the releases of the EPCRA light of additional information. is unlikely to provide the public with section 313 toxic chemical associated One commenter asked EPA to exclude any valuable information. Consequently, with the extraction of the waste rock an ilmenite mining facility from EPA is exempting the EPCRA section would be reportable. reporting under EPCRA section 313. The 313 chemicals in overburden from c. Iron ore mining. Two commenters commenter claims no EPCRA section EPCRA section 313 reporting requested that EPA specifically exclude 313 chemicals are ‘‘manufactured,’’ requirements. EPA will not require SIC code 1011 Iron Ores from this ‘‘processed,’’ or ‘‘otherwise used’’ above compliance determinations or reporting rulemaking. These commenters cite the de minimis concentrations at that of releases or waste management exemption of facilities in this SIC code facility. However, the commenter did information for listed chemicals which from reporting requirements in the state not provide any additional information may be present in overburden removed of Minnesota as support. Minnesota to substantiate this assertion. Ilmenite prior to removal of waste rock or previously extended EPCRA section 313 mining facilities are included in SIC extraction of the target ore. EPA defines reporting requirements to a number of code 1099 Miscellaneous Metal Ores, ‘‘overburden’’ as unconsolidated industry groups outside of SIC codes 20 Not Elsewhere Classified. This SIC code material that overlies a deposit of useful through 39, including SIC code 1011. classification contains a variety of materials or ores. EPA believes that this Subsequently, Minnesota issued an somewhat unrelated metal mining action will reduce the compliance exemption for iron ore for mining facilities and includes facilities which burden on metal mining facilities while facilities in SIC code 1011. These extract and beneficiate a variety of metal 23860 Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations ores, and when taken as a group, EPA threshold, it does not have to report on that coal preparation facilities do not believes facilities in this classification the releases and waste management of ‘‘otherwise use’’ section 313 chemicals. are likely to provide reporting relevant that chemical, provided it does not To the extent that commenter’s to EPCRA section 313. Based on EPA’s otherwise exceed the ‘‘manufacturing’’ facilities solely conduct the crushing or understanding of the activities or ‘‘processing’’ threshold for that grinding activities described by it, EPA conducted by facilities in this SIC code, chemical. agrees with commenter that these including ilmenite mining, the Agency b. Coal preparation facilities should particular activities generally do not cannot conclude that this one facility is be exempt. One commenter, ARCO, involve the ‘‘otherwise use’’ of section unlike other facilities in SIC code 1099. argues that their coal preparation plants 313 listed toxic chemicals. The facility EPA received no additional comment in the western U.S. do not typically use would be required to consider these specifically addressing ilmenite mining, EPCRA section 313 toxic chemicals, and crushing and grinding activities and or other mining segments in this 4–digit are distinct from coal beneficiation other non-extraction activities in its SIC code. If the commenter is correct plants. According to the commenter, the threshold and reporting calculations. regarding the lack of section 313 purpose of coal preparation plants is to However, because these activities do not chemicals present above de minimis crush and size coal to customer generally involve the ‘‘manufacture,’’ concentrations, its facility would likely specifications, and EPA should exempt ‘‘process,’’ or ‘‘otherwise use’’ of a not have to file any report, even though these plants or declare that no section 313 listed chemical above covered. EPA recognizes that coverage chemicals are used at these types of coal threshold quantities, the compliance may still represent a burden to the preparation facilities. determination that the facility has to do particular facility; however, at this EPA disagrees with the commenter’s to determine that there is no need to file point, the commenter has not provided suggestion that coal preparation is a a report should be simple and enough information to rebut EPA’s distinct activity from coal beneficiation. straightforward. Only those coal conclusion that the body of information Coal ‘‘preparation’’ is a general term preparation facilities which on ilmenite mining and the used in the coal mining industry to ‘‘manufacture,’’ ‘‘process,’’ or miscellaneous metal mining facilities in describe the preparation of ores to ‘‘otherwise use’’ section 313 listed toxic SIC code 1099 supports addition of this regulate the size of the product, to chemicals above thresholds would be 4 digit industry group. The commenter’s remove unwanted constituents, or to reporting releases and other waste particular facility would not be different improve the quality, purity, or grade of management information. If facilities from many manufacturing facilities a desired product. EPA understands that engage in extraction and coal which, although covered under EPCRA these activities also describe what some preparation (or beneficiation), they must section 313, do not file annual reports, in the coal and metal mining industry determine whether any threshold has presumably because they do not exceed may call beneficiation. However, in been exceeded as the result of non- chemical activity thresholds or they general, coal ‘‘preparation’’ and coal extraction activities, including coal engage in exempt activities. ‘‘beneficiation’’ are used predominantly preparation. EPA believes that existing 3. Coal mining. EPA received a to describe any activity subsequent to activity thresholds and exemptions number of comments specifically extraction to prepare the coal for use. provide sufficient means for facilities opposing the addition of coal mining to Thus, while the commenter may such as the commenter’s to minimize the EPCRA section 313 reporting distinguish crushing and grinding the burden of compliance. system, but also received a number of activities from the other preparatory and One commenter, the Kentucky comments specifically urging EPA to beneficiation activities, EPA does not Resources Council, argues that the include this industry. believe that this distinction is generally inclusion of coal processing operations a. Use of chemicals in coal mining. made within the coal mining industry. is an appropriate and important Some commenters state that EPCRA Further, EPA has not categorically mechanism to track the generation and section 313 chemicals are not concluded that every coal preparation disposal of coal processing wastewaters ‘‘routinely’’ used in coal preparation facility ‘‘otherwise uses’’ EPCRA section and sludges, and that the inclusion of activities. Only at selected steps in some 313 listed chemicals, or that every coal information from coal preparation coal preparation processes are these preparation facility will ‘‘otherwise use’’ plants will permit better tracking of chemicals employed. While EPA listed chemicals in excess of the these wastestreams. recognizes that coal itself is not an ‘‘otherwise use’’ threshold. However, EPA agrees that adding coal EPCRA section 313 listed chemical, EPA believes that there are standard preparation or beneficiation facilities EPCRA section 313 toxic chemicals are practices within the coal mining will provide a useful means of tracking generally ‘‘otherwise used’’ during coal industry that involve the ‘‘otherwise toxic chemical releases and waste preparation. As discussed in the use’’ of section 313 listed chemicals management at these facilities, but notes Economic Analysis (Ref. 12), a number during coal preparation activities. Given that wastewater and sludges from these of EPCRA section 313 chemicals which this information, EPA anticipates that operations may or may not be reportable are ‘‘otherwise used’’ during coal facilities preparing coal are likely to when released, depending on the preparation include tetrachloroethylene, provide information relevant to the presence and concentration of EPCRA trichloroethane, 1,1,1-phenanthrene, reporting purposes of EPCRA section section 313 toxic chemicals in the dichlorodifluoromethane, xylene, 313. materials ‘‘processed’’ or ‘‘otherwise acrylamide, and constituents of fuel oil. Thus, because the industry is not used.’’ EPA believes, based on available data, generally severable as described by the Two commenters believe that the that many coal preparation facilities commenter, and because EPA believes purpose of EPCRA section 313 cannot within this industry ‘‘otherwise use’’ that coal preparation can, and in many be served by requiring marginal users of these chemicals. EPA recognizes that cases does, involve the ‘‘otherwise use’’ diesel fuel, such as coal preparation coal preparation practices may vary of section 313 listed chemicals, EPA facilities, to report on their inventories between facilities and by type of coal does not believe it would be appropriate while ignoring far larger sources, which being prepared. If a particular facility to exempt coal preparation facilities as are ‘‘exempt’’ from EPCRA section 313 does not ‘‘otherwise use’’ an EPCRA requested by commenter. For the same reporting requirements. The section 313 chemical in excess of the reasons, EPA cannot generally conclude commenters believe that such Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations 23861 information from coal preparation order to separate the coal from its EPA used its screening process to set facilities would be inherently impurities and then is loaded for transit priorities and to focus attention on those misleading and unnecessarily to a consuming facility.’’ industry groups whose potential burdensome, and that diesel oil and In its proposal, EPA defined addition to EPCRA section 313 would kerosene do not contain section 313 beneficiation in order to clarify the result in significant environmental and chemicals in concentrations above de distinction between extraction and public informational benefits. EPA did minimis levels. The commenters believe beneficiation. EPA used a definition not screen industries based on whether it is inherently contradictory for EPA to consistent with the RCRA definition a significant portion of facilities within exempt diesel fuel that is used to power found at 40 CFR 261.4, which restricts an industry group might be likely to mobile equipment at all EPCRA section beneficiation to certain activities, among report. Rather, EPA focused on the 313 covered facilities, but require the which is crushing. EPA’s proposal did informational value of adding candidate fuel to be reported if it is used in coal not limit reporting coverage to only coal industries. In addition, EPA did not preparation. preparation (or beneficiation) activities. ‘‘exempt’’ industries not included in the EPA’s treatment of the ‘‘otherwise Rather, EPA proposed to exempt proposal. These facilities were simply use’’ of EPCRA section 313 toxic extraction activities and include coal not included in this action. Further, chemicals in fuel oil in coal preparation preparation (and beneficiation) EPCRA section 313 provides an is consistent with its guidance to all activities, activities that take place exemption for facilities with fewer than other industries otherwise using EPCRA subsequent to extraction. To the extent 10 full-time employees in order to section 313 toxic chemicals in fuel oil. that the commenter’s facilities solely reduce burden on small facilities. All uses of EPCRA section 313 toxic conduct the crushing or grinding Currently, out of the more than 300,000 chemicals in fuel oil must be counted activities described by it, EPA agrees manufacturing facilities in the U.S., towards thresholds and release with the commenter that these roughly 23,000 filed section 313 Form reporting unless they are exempt under particular activities generally do not Rs for the 1994 reporting year. In other one of the use exemptions defined involve the ‘‘otherwise use’’ of section words, less than 10 percent of under 40 CFR 372.38, such as toxic 313 listed toxic chemicals. Although the manufacturing facilities actually report chemicals in fuels used in the facility would be required to consider under EPCRA section 313. EPA maintenance of motor vehicles. these crushing and grinding activities estimates in its Economic Analysis that, Currently, manufacturing facilities and other non-extraction activities in its based on 1992 data, approximately 342 which use fuels as part of their threshold and reporting calculations, coal preparation facilities were in production processes are required to because these activities do not generally operation in the U.S., and out of that make ‘‘otherwise use’’ threshold involve the ‘‘manufacture,’’ ‘‘process,’’ number, 321, or approximately 94 determinations for the constituents of or ‘‘otherwise use’’ of a section 313 percent, are expected to file reports (Ref. these fuels. Consequently, EPA believes listed chemical above threshold 12). (EPA’s draft Industry Profile for reporting on the use of fuel oil by coal quantities, the compliance Coal Mining stated that 610 plants were mining facilities is consistent with determination that the facility has no in operation in 1991, which was an current reporting guidance issued in the need to file a report should be simple incorrect figure. The correct figure is past for the manufacturing industry. and straightforward. Only those coal 345 which is reflected in the revised EPA estimates that No. 2 fuel oil and preparation facilities which industry profile) Regardless, the diesel fuel will contain at least one ‘‘manufacture,’’ ‘‘process,’’ or possibility of less than half of the listed toxic chemical above de minimis ‘‘otherwise use’’ section 313 listed toxic facilities in a given industry filing concentrations, based on data included chemicals above thresholds would be reports would not by itself cause EPA in the Economic Analysis (Ref. 12). If reporting releases and other waste not to add that industry. EPA does not EPCRA section 313 chemicals that are management information. If facilities agree with the commenter’s premise that ‘‘processed’’ or ‘‘otherwise used’’ are engage in extraction and coal unless a substantial number of facilities present in a mixture such as No. 2 fuel preparation (or beneficiation), they must within an industry group are likely to oil below de minimis concentrations, determine whether any threshold has file, reporting by those that do file they do not have to be factored into been exceeded as the result of non- would be valueless. threshold or release determinations by extraction activities, including coal the facility. preparation. EPA believes that existing d. Extraction exemption for coal Several commenters believe that coal activity thresholds and exemptions mining. In EPA’s proposal to include the preparation requires careful definition provide sufficient means for facilities coal mining group, the Agency proposed or there is a real risk that what they see such as the commenter’s to minimize to exempt coal mining extraction as the proposed rule’s vague approach the burden of compliance. activities from coverage under EPCRA will wipe out the intended exemption c. Number of facilities and section 313. Industry commenters for coal extraction. These commenters representativeness of data. One supported this exemption and agreed believe EPA has confused beneficiation commenter believes that the inclusion with EPA’s understanding that coal and preparation in the proposal, and of coal preparation plants would also be extraction activities do not typically that without distinguishing those contrary to EPA’s ‘‘screening criteria’’ involve the presence or use of listed activities which involve the use of since more than 50 percent of the coal toxic chemicals in reportable chemicals as ‘‘preparation,’’ EPA is not mining and processing facilities would concentrations, while a number of actually exempting extraction because be exempt by reason of employing fewer commenters urged EPA to withdraw its some activities defined as beneficiation, than 10 employees. This commenter proposed exemption for coal mining such as the breaking or crushing of coal, believes EPA has exempted other extraction. EPA did not receive any are conducted during extraction. A industries on the premise that a additional information which would commenter strongly recommends that substantial portion of the facilities change its understanding of coal mining EPA employ a definition which states within these industries would be extraction from those comments that, ‘‘the term ‘coal preparation plant’ exempt and that similar treatment is in objecting to the exemption. Many of the means a facility where coal is subjected order for an industry where more than environmental consequences of coal to chemical processing or cleaning in half the facilities would be exempt. extraction which these commenters cite, 23862 Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations based on EPA’s understanding of the reasonably to electric utilities, and fired electric utilities combust fuel to comments, are not likely to be reported whether such reporting will provide generate electricity, a product which is under EPCRA section 313, primarily data of little or no value at considerable distributed in commerce. As discussed because section 313 chemicals are burden to the industry. Industry in Unit V.E.3. of this preamble, the unlikely to be present above de minimis commenters also addressed concerns combustion process involves the concentrations, or the sources of the about the scope of facility coverage, the ‘‘otherwise use’’ of EPCRA section 313 releases, which concern commenters are ‘‘coincidental manufacture’’ of metal toxic chemicals in the fuel, and results abandoned or non-working mines and compounds in combustion, and the in the ‘‘coincidental manufacture’’ of therefore would not be likely to trigger disposal of combustion byproducts, EPCRA section 313 toxic chemicals; reporting. among other issues. Further detail both of these chemical activities are EPA believes it is appropriate to concerning the public comments similar to activities conducted and exempt coal extraction activities from received is in Ref. 15. reported by manufacturing facilities. all EPCRA section 313 reporting a. Activity definitions. Many industry Electric utilities also ‘‘otherwise use’’ requirements. EPA does not agree that commenters believe that the existing EPCRA section 313 toxic chemicals in coal extraction does not involve the definitional framework of the EPCRA cleaning, maintenance, and purification presence or use of listed toxic section 313 reporting program is activities in a manner similar to chemicals. EPA does, however, believe tailored to manufacturers and does not activities carried out by manufacturing that the presence and use of these suit the activities of the non- facilities. chemicals during coal extraction is manufacturing industries such as One commenter states that likely to be in concentrations below de electric utilities. Some commenters considering combustion byproducts to minimis. As a result, facilities that object that EPA considers the be ‘‘manufactured’’ is contrary to the extract coal for distribution in combustion process to be the logic and rationale that EPA commerce would be able to take the de ‘‘manufacture’’ of a ‘‘product’’ as those appropriately used for excluding minimis exemption for the listed toxic terms are commonly understood and nuclear and gas plants from the chemicals in the coal. Consequently, that the intent of Congress was to apply proposed expansion. The commenter little or no information would be the section 313 reporting requirements states that, according to EPA, cleaning, provided by these facilities. EPA may only to those industries that purification and maintenance activities reconsider this exemption at a later date ‘‘manufacture’’ or ‘‘process’’ toxic using section 313 chemicals at non-coal/ in light of additional information. EPA chemicals. Commenters believe that, oil-fired electric utilities are support interprets ‘‘extraction’’ for purposes of logically, substances present or activities which ‘‘are not the primary EPCRA section 313 to mean the physical incidentally formed during combustion function of the facility’’ (see 61 FR removal or exposure of ore, coal, (e.g., stack gases, fly ash, and bottom 33601). The commenter goes on to state minerals, waste rock, or overburden ash) are not ‘‘manufactured’’ or that because of the secondary nature of prior to beneficiation, and to encompass ‘‘otherwise used,’’ and that these cleaning, purification, and all extraction-related activities prior to ‘‘coincidental manufacture’’ during maintenance activities, nuclear, gas and beneficiation. If an EPCRA section 313 combustion should not apply because hydroelectric facilities were not toxic chemical that is a constituent of the primary function of an electric included in the TRI expansion. The coal or overburden is ‘‘processed’’ or generation facility is not the commenter states that combustion ‘‘otherwise used’’ in SIC code 12 during manufacturing of any chemical or byproducts should be considered in the extraction, a facility is not required to mixture of chemicals. same light as these excluded secondary consider the quantity ‘‘processed’’ or EPA believes the existing regulatory activities, because the creation of ‘‘otherwise used’’ when determining and definitional framework of the combustion byproducts is incidental to whether an applicable threshold has EPCRA section 313 reporting program the production of electricity and their been met, or determining the amounts to can be applied reasonably, logically, presence/formation is not the primary be reported. and effectively to non-manufacturing purpose for burning coal and oil. 4. Comments regarding the proposed industries. In keeping with the EPCRA As stated in the proposal, EPA addition of electric utilities. EPA is section 313(b)(1)(B) standard, EPA has proposed to add coal and oil-fired finalizing the addition of coal- and oil- acted to add those industry groups electric generating facilities because fired electric utilities in SIC codes 4911, which, like facilities within their primary function involves the 4931, and 4939 to the EPCRA section manufacturing sector SIC codes 20 combustion of fuels containing EPCRA 313 list of covered industries. EPA through 39, ‘‘manufacture,’’ ‘‘process,’’ section 313 chemicals and production of believes that reporting by facilities in or ‘‘otherwise use’’ toxic chemicals in a TRI chemicals during combustion. The this industry is relevant to the purposes manner such that reporting by these commenter seems to conclude that, of EPCRA section 313. EPA received facilities is relevant to the purposes of because EPA did not consider the considerable comment in support of the section 313. EPA believes the addition ‘‘otherwise use’’ of EPCRA section 313 addition of this industry, generally of coal and oil-fired electric generating chemicals in support activities alone to expressed in the context of support for facilities to the EPCRA section 313 be sufficient justification for adding the addition of all of the proposed reporting program is consistent with the non-coal/oil-fired electric utilities to industry groups. EPA also received legislative intent. EPCRA section 313 chemicals at this significant comment opposing this EPA believes that electric utilities time, EPA therefore must believe that addition from electric utility companies engage in activities which involve or such use of EPCRA section 313 and trade associations. A majority of the result in the ‘‘manufacture,’’ ‘‘process,’’ chemicals is not of sufficient comments received from the industry or ‘‘otherwise use’’ of EPCRA section importance to warrant reporting under address whether subjecting electric 313 toxic chemicals, as do activities EPCRA section 313. This is not correct. utility facilities to EPCRA section 313 conducted by the manufacturing sector. EPA’s decision to not to include reporting requirements is consistent In particular, EPA disagrees with the nuclear, hydroelectric, and natural gas with the authority or purposes of commenters that the existing facilities simply was an attempt to EPCRA section 313, whether the EPCRA definitional framework does not apply prioritize industry groups for this initial section 313 definitions can be applied to the combustion process. Coal and oil- expansion effort by including only those Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations 23863 industry groups whose primary commenters point out that EPA cover facilities EPA did not intend to functions or activities involve the proposed that any facility in SIC codes add to EPCRA section 313 at this time ‘‘manufacture,’’ ‘‘process,’’ and 4911, 4931, and 4939 which combusts (i.e., electric utilities that are essentially ‘‘otherwise use’’ of EPCRA section 313 coal or oil in whatever percentage of its non-coal/oil-fired, but that use coal or chemicals. EPA’s screening process and fuel use, and whether for primary or oil only to provide electricity for comments raised on the screening backup generation, would become a support activities at the facility). EPA process are more fully described and covered facility for purposes of EPCRA continues to believe that this rule addressed in Unit IV.B. of this preamble section 313. The commenters contend should focus on electric utilities that and in the Response to Comments that many non-coal/oil-fired electric use coal or oil for performing the document (Ref. 15). utility facilities would be considered primary function of the facility (i.e., As the proposal made clear, coal and covered facilities under such a generating the electricity the facility oil-fired electric generating facilities definition, despite EPA’s stated supplies to its customers). As a means will be required to factor into their intention to exclude them from of describing the universe of facilities it threshold determinations and reporting coverage. intends, EPA is using the phrase calculations the quantities of EPCRA The commenters point out a number ‘‘limited to facilities that combust coal section 313 chemicals used in support of purposes for which non-coal/oil-fired and/or oil for the purpose of generating activities such as cleaning, electric utility facilities would combust power for distribution in commerce’’ for maintenance, and purification, in some quantity of coal or oil, including: this industry in order to clearly limit addition to chemicals ‘‘otherwise used’’ support activities, such as heating the coverage to facilities that combust coal and ‘‘coincidentally manufactured’’ in facility; start-up; emergency power or oil to generate electricity the facility the combustion process. This is generation (for maintaining operation of supplies to its customers. Accordingly, consistent with the existing reporting facility equipment in an emergency); in today’s final rule, EPA has amended requirements for manufacturing periodic testing of emergency power the facility coverage language for SIC facilities, which must factor into their equipment; periodic testing of backup codes 4911, 4931, and 4939 to read threshold determinations and release power generation capability; and ‘‘(limited to facilities that combust coal calculations all ‘‘manufacture,’’ backup power generation when supply and/or oil for the purpose of generating ‘‘process,’’ and ‘‘otherwise use’’ of of the primary fuel source is curtailed. power for distribution in commerce).’’ EPCRA section 313 chemicals, with the Commenters request clarification of Combusting coal or oil for on-site exception of quantities specifically which of these activities would subject support purposes (such as heating the exempted at 40 CFR 372.38. Thus, the a non-coal/oil-fired electric utility facility), for testing or operation of commenter is wrong in characterizing facility to EPCRA section 313 reporting emergency backup power systems activities such as cleaning, maintenance requirements, and/or state their (meaning systems designed to supply and purification at electric utilities as objections to facility coverage because of power to the facility itself in the event ‘‘excluded’’ from EPCRA section 313 such activities. of an emergency), or for start-up reporting. Further, the Agency does not In particular, many commenters purposes (i.e., to heat the boiler to an agree with the commenter that the use recommend that EPA exempt from the operational temperature prior to of EPCRA section 313 chemicals in reporting requirements all non-coal/oil- switching to the primary fuel) will not activities such as cleaning, maintenance fired facilities which infrequently burn subject facilities to the EPCRA section and purification at non-coal and oil- coal or oil for ancillary support 313 reporting requirements, provided fired facilities is in any way analogous operations or for backup power such combustion of coal or oil does not to the ‘‘coincidental manufacture’’ of generation. A number of commenters itself generate power for distribution in EPCRA section 313 chemicals in the recommend that EPA adopt for facility commerce. combustion process at coal or oil-fired coverage purposes the definition of EPA does not agree with the facilities. The ‘‘coincidental ‘‘gas-fired’’ which appears in the Clean commenters who recommend that EPA manufacture’’ of EPCRA section 313 Air Act Acid Rain implementation rules exempt non-coal/oil-fired facilities that chemicals directly results from the (40 CFR 72.2), exempting from EPCRA combust limited quantities of coal or oil combustion of coal or oil to generate section 313 coverage facilities which for the purposes of generating power for electricity, which is the primary burn natural gas or other gaseous fuel distribution in commerce, such as purpose of the facility. The fact that the for at least 90 percent of the unit’s backup or peak power generation. EPA ‘‘coincidental manufacture’’ of these average annual heat input during the believes it is appropriate to include as byproducts is not actually the purpose previous 3 calendar years and for at covered facilities all facilities which of combusting the fuel is irrelevant. least 85 percent of annual heat input in burn any quantity of coal or oil to Therefore, the Agency disagrees that each of those 3 years. Several generate power for distribution in ‘‘coincidental manufacture’’ of EPCRA commenters recommend that EPA commerce. EPA does not agree with section 313 chemicals in the include in EPCRA section 313 reporting commenters who state that facility combustion of coal or oil is incidental, only those electric utility facilities coverage should be based on the or should be disregarded as a basis for which combust coal or oil for 50 percent percentage use of coal and/or oil. addition of these utilities. or more of the fuel combusted or the Particularly in the case of large b. Facility coverage. Most industry electricity produced. facilities, exempting facilities which commenters express concern that EPA’s EPA’s intention in the proposal was to burn 10 percent to 15 percent coal or explanation of which electric utility include only those facilities in SIC oil, or 50 percent as some commenters facilities in SIC codes 4911, 4931, and codes 4911, 4931, and 4939 which recommend, could mean exempting 4939 would be required to report was combust coal or oil in any quantity to facilities which burn very large vague and did not adequately explain generate the electricity that the facility quantities of coal or oil, even if such the scope of facility coverage. The supplies to its customers, whether such quantities are not large in percentage commenters believe that EPA was combustion is for primary or backup terms. Under such an exemption, a large ambiguous and inconsistent in its power generation. EPA understands that facility which burns a comparatively proposed exclusion of gas, nuclear, and the language in the proposal has been low percentage quantity of coal or oil hydroelectric electric utilities. The interpreted by some commenters to could be exempt from the reporting 23864 Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations requirements even if it burned more the facility to obtain data beyond that determination for each establishment. coal or oil than a small facility which which is readily available. A facility One commenter, the Class of ’85 was 100 percent coal or oil-fired and which combusts oil or coal late in the Regulatory Response Group, therefore was subject to section 313 reporting year and thus becomes a recommended that EPA specifically requirements. Such a result would not covered facility because of that exempt non-coal/oil-fired generating be sensible from a public right-to-know combustion of coal or oil would need stations that are located on contiguous standpoint. only to use readily available data or property and under common ownership EPA believes that the proper make reasonable estimates in reporting with coal/oil-fired generating stations. mechanism for relieving reporting under EPCRA section 313. In this case, EPA disagrees with the commenters burden for facilities which combust these facilities would use the and believes the Agency is consistent in only limited quantities of coal or oil is information it has collected throughout its application of the multi- the existing activity threshold system the year to support the end of the year establishment provision. Prior to this under EPCRA section 313(f)(1). (The threshold determinations and release rulemaking, multi-establishment employee threshold found at EPCRA and other waste management reporting facilities with establishments in two or section 313(b)(1)(A) will also provide estimates. Facilities which may or may more different SIC codes would have burden relief for small electric utility not be subject to EPCRA section 313, been subject to reporting requirements, facilities with fewer than 10 full-time depending on whether they combust if: (1) All establishments are in a employee equivalents.) Any facility coal or oil in a given year, would not covered SIC code; (2) if the sum of products shipped and/or produced from which combusts only limited quantities have any greater burden of tracking those establishment(s) in a covered SIC of coal or oil for the purpose of information during the course of the code is greater than 50 percent of the generating power for distribution in year than a facility which knows that it total value of all products shipped and/ commerce may be unlikely to exceed will not be a covered facility. Facilities or produced at the facility; or (3) one any reporting threshold, unless the which may or may not be subject to establishment in a covered SIC code facility also ‘‘manufactured,’’ EPCRA section 313, depending on contributes more in terms of value of ‘‘processed,’’ or ‘‘otherwise used’’ whether they combust coal or oil in a products shipped and/or produced than significant quantities of listed chemicals given year, would only incur a any other establishment at the facility in other activities at the facility. compliance and reporting burden if they (see 53 FR 4526). Therefore, such a facility would not did in fact combust coal or oil that year, at which point they would have to Establishments are defined as part of likely incur the burden of EPCRA the SIC code system. The Standard section 313 reporting. The Edison perform threshold determinations and, possibly, release and other waste Industrial Classification Manual (Ref. 4) Electric Institute and other commenters indicates that the SIC codes 4911, 4931, management calculations using the point out that such facilities would have and 4939 do not have an information available to them. EPA also to expend resources to determine or ‘‘establishment’’ distinction based on points out that it intends to develop demonstrate that thresholds were not fuel type. Consequently, a facility using reporting guidance for the industry exceeded, even though exceeding the different fuel types, or operating two which will reduce burden on industry thresholds would be unlikely. generators on different fuel types, is still by assisting industry in making Commenters also state that non-coal/oil- considered a single establishment (i.e., compliance determinations and fired facilities with coal/oil-fired backup within a single SIC code). For electric reporting calculations based on generation capability would have to utilities, the multi-establishment information such as fuel quantity and develop information throughout the provision applies only if a generating year as if section 313 applied to them, type. EPA believes its approach for station is part of a facility with another since they could not be sure that they defining the utilities covered best establishment in a different SIC code, would not have to operate their backup balances the reporting interests of the and the economic conditions described generating systems during a given year. public with the concerns expressed by above are met by the establishment in EPA acknowledges that facilities which the commenters given the existing the different SIC code. EPA believes that combust small quantities of coal and oil burden reduction mechanisms in the the multi-establishment provision can would have to expend a certain amount statute and regulations. be applied consistently and similarly to of resources to determine that A number of industry and trade electric utilities, and that there is no thresholds were not exceeded. However, association commenters state that EPA justification for interpreting the multi- EPA believes that facilities would should define facility coverage for establishment provision differently for already track the quantity of each fuel electric utilities in much the same way facilities in this industry. EPA also type used, and that this would be a as multi-establishment complexes have believes it would be inappropriate to major component of both the been defined for manufacturing develop a specific exemption for non- compliance determination and the facilities under EPCRA section 313. coal or oil-fired generating units located calculation of release and other waste According to the commenters, the on contiguous or adjacent property and management quantities. Moreover, preamble to the proposed rule suggested under the same ownership as one or establishing the facility definitions that EPA would not apply its existing more coal/oil-fired units. The effect of recommended by some commenters ‘‘multi-establishment rule’’ to electric such an exemption would be to divide only adds another layer of compliance utility facilities that have both covered a single establishment at a facility into determinations. In addition, EPA points and non-covered plants within SIC covered and non-covered sections, out that, pursuant to EPCRA section codes 4911, 4931, and 4939 located at which is inconsistent with the existing 313(g)(2), facilities when reporting ‘‘may a single facility, and that EPA failed to reporting requirements for use readily available data (including provide a reasoned explanation for this manufacturing industries. monitoring data) collected pursuant to inconsistent treatment. Some The American Public Power other provisions of law, or, where such commenters believe that electric Association states that EPA should data are not readily available, utilities should be allowed to divide exclude electric utilities owned by local reasonable estimates of the amounts such a facility into establishments and communities and regional governmental involved.’’ The statute does not require make a separate compliance entities from the EPCRA section 313 Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations 23865 reporting requirements. According to ‘‘manufactured,’’ ‘‘processed,’’ or requested that EPA clarify whether oil the commenter, EPA recognized the ‘‘otherwise used’’ in all non-exempt turbines are covered, and another special circumstances of local activities at the facility, including believes EPA should exempt oil turbines government control of facilities when it natural gas combustion, which is not from coverage since many of the EPCRA decided to exclude from the proposal itself an exempt activity. The EPCRA section 313 constituents in oil are several industry groups primarily section 313 reporting exemptions are consumed during combustion and operated by local municipal and codified at 40 CFR 372.38. If the facility turbines do not use listed chemicals in regional governmental entities. exceeds a threshold for any listed the large quantities associated with According to the commenter, there is chemical, it must include in its Form R boiler operation and maintenance. little distinction between those for that chemical the release and other EPA described only conventional excluded industry groups and publicly- waste management quantities resulting steam generation in the proposed rule owned electric utility systems. The from all non-exempt activities. because this is a common method of commenter also stated that reporting of A number of industry commenters producing electric power. However, in EPCRA section 313 toxic chemicals by point out that facilities which combust describing this method of power publicly-owned utilities would be better only small quantities of coal or oil may generation, EPA did not mean to imply left to the discretion of the local exceed the ‘‘otherwise use’’ threshold that only this method was subject to the government entities that own and only for chemicals used in support EPCRA section 313 reporting control them, because these governing operations such as maintenance and requirements. EPA clearly stated that bodies would be better able to define cleaning. These commenters question ‘‘any facility which combusts coal or oil and implement reporting programs that whether this contradicts EPA’s purpose in whatever percentage of its fuel use, are responsive to the needs of local in excluding non-coal or oil-fired and whether for primary or back-up citizens. facilities, which might also report on generation, would become a covered EPA did not include in the proposal these same uses. Some of these facility. . . .’’ Facilities which combust several industry groups based on several commenters believe it is inconsistent of oil in oil turbines to generate electricity ‘‘additional considerations’’ (see 61 FR EPA to rely on ‘‘otherwise use’’ for distribution in commerce would fall 33592). None of the considerations were activities to justify adding coal and oil- within SIC codes 4911, 4931, and 4939, used to determine whether candidate fired facilities but not to add non-coal and therefore would be considered industry groups met the statutory or oil-fired facilities which also conduct covered facilities. Because facilities standard for addition. EPA may these activities. One commenter generating electricity using oil turbines consider these industry groups in a requests that EPA specifically exempt fall within SIC codes 4911, 4931, and future rulemaking. The publicly-owned the ‘‘otherwise use’’ of chemicals in 4939, and because the combustion of oil facilities the commenter cites were not these support operations. in oil turbines results in the included for a number of reasons, EPA is adding coal and oil-fired ‘‘coincidental manufacture’’ of EPCRA including the potential impacts on other facilities because their primary function section 313 chemicals, EPA sees no governmental entities. While EPA involves the combustion of fuels reason to exclude such facilities from acknowledges this concern about containing EPCRA section 313 EPCRA section 313 coverage. impacts on other governmental entities chemicals and generation of toxic One commenter points out that some is also relevant to publicly-owned chemicals during that combustion. As facilities may combust alternative fuels, electric utilities, EPA points out that covered facilities, these facilities must including solid and liquid waste, used this consideration was just one of many report on releases and other waste oil, and fuels derived from the factors taken into account in screening management activities of all EPCRA processing of coal or oil. The industries. In evaluating this industry section 313 chemicals for which they commenter requests clarification about for addition, EPA judged that publicly- exceed thresholds, excluding only the applicability of the EPCRA section owned electric utilities conduct certain specifically exempt activities 313 reporting requirements to facilities operations which are virtually codified at 40 CFR 372.38. This is which burn such fuels. An electric indistinguishable from their investor- consistent with the existing reporting utility facility which combusts used oil, owned counterparts and that there are requirements and guidance for or solid or liquid waste containing coal not other general issues meriting manufacturing facilities. EPA does not or oil, would be considered a covered deferral of the utility industry. EPA does agree that it is inconsistent to require facility under EPCRA section 313. not believe that any significant coal and oil-fired facilities to report for Because the commenter did not provide difference exists between publicly- support operations, when non-coal/oil- specific information about the owned and privately-owned electric fired facilities will not have to report for alternative fuels ‘‘derived from the utilities for purposes of reporting under similar support operations because they processing of coal or oil,’’ EPA cannot EPCRA section 313. Therefore, EPA will not be considered covered facilities. provide the requested clarification for believes it is appropriate to include both EPA recognized in the proposal that such fuels. EPA will examine issues publicly- and privately-owned electric reporting associated with the ‘‘otherwise surrounding the combustion of utilities in this facility expansion rule. use’’ of chemicals in support activities alternative fuels, including waste oil One commenter requests clarification at non-coal or oil-fired facilities has and fuels derived from the processing of regarding whether a facility which some value. However, as a matter of coal or oil, in its development of combusts oil and exceeds thresholds prioritizing, EPA did not include reporting guidance for this industry. would have to include releases from nuclear, hydroelectric and natural gas c. Public misperception of risk. Most natural gas combustion conducted at the facilities in this action because their industry commenters believe that same facility. If the facility combusts oil primary function does not involve the requiring electric utilities to report to generate power for distribution in combustion of fuels containing listed emissions under EPCRA section 313 is commerce, the facility is a covered chemicals in reportable concentrations. inappropriate because such emissions facility for purposes of EPCRA section Two commenters observe that EPA are not hazardous and pose little risk to 313. A covered facility must apply discussed conventional oil-fired steam the public. The commenters state that toward activity thresholds the quantities generation but did not discuss oil emissions and combustion byproducts of listed toxic chemicals turbines in its proposal. One commenter from utilities have been studied by EPA 23866 Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations and others and been proven not to pose public access to the information at all. probably not possible, facilities will be a significant risk to human health or the As noted previously, EPA will initiate a forced to make threshold and release environment. The commenters argue stakeholder process to consider these determinations based on various that because TRI data are provided as and other issues. theories of what happens during annual volume estimates without regard d. Combustion byproducts. Many combustion. The commenters state that to factors such as chemical commenters state that most trace metals for these reasons the determination of concentration, toxicity, or exposure and other impurities in coal and oil threshold and release quantities is potential, the data for electric utility would be present below de minimis difficult, if not impossible, and combustion activities would be so concentrations and therefore would not therefore, the data will be inconsistent oversimplified and unqualified that it be subject to reporting under the and of little value to the public. would lead to public misperception of ‘‘otherwise use’’ activity. The EPA disagrees with the commenters’ risk. A number of industry commenters commenters maintain that combustion statements regarding their inability to state that TRI reporting does not take processes do not ‘‘manufacture’’ toxic determine threshold and release into consideration the fact that releases chemicals and that including quantities of EPCRA section 313 metal are regulated and permitted to ensure combustion under the definition of compounds ‘‘manufactured’’ as a result that health risks are controlled. Other manufacture is in effect an attempt to of the combustion of coal and oil. It is industry commenters express concern remove the de minimis exemption for not necessary to measure the changes in that the large volume of reported metals that exist as impurities in fuels. the valence state of the metals that take releases from electric utilities could EPA believes that all of the place at the time of combustion or as a dwarf and obscure other, possibly more constituents of coal and oil are subject result of combustion in order to hazardous releases from other to the ‘‘otherwise use’’ activity determine if EPCRA section 313 industries, such as the manufacturing thresholds when combusted for energy reportable metals or metal compounds industries which were the original production and may be subject to the de have been ‘‘manufactured.’’ As has been subject of EPCRA section 313. minimis exemption for this activity. discussed in Unit V.E.3. of this Therefore, toxic chemicals present in preamble, the test is not whether a EPCRA section 313 is not a risk-based coal and oil ‘‘otherwise used’’ below de metal’s valence state has changed, but reporting system, and EPA makes no minimis levels would not be subject to rather whether a new metal compound determination, through this action, of reporting under the otherwise use has been created. The determination of the risks to human health or the activity. However, as discussed in Unit threshold quantities can be done by environment from fuel combustion or V.E.3. of this preamble, the combustion either estimating or measuring the metal other activities at electric utilities. of metals and metal compounds in coal compounds that exist after combustion Further, any determination by EPA or and oil does ‘‘coincidentally occurs. As the commenters correctly others that a particular type of release manufacture’’ new metal compounds as state, EPCRA section 313 does not from a facility does not pose an byproducts and thus these combustion require any additional monitoring or unacceptable risk does not constitute a processes are not eligible for the de testing; calculations are to be based on reason to exclude from EPCRA section minimis exemption. The combustion of readily available data which may 313 such releases or the facility coal and oil by electric utilities include monitoring data collected responsible for it. ‘‘Risk’’ is not an produces both a product (the energy pursuant to other provisions of law, or EPCRA section 313 criterion for produced) and byproducts (e.g., ash and if such data are not readily available, addition of facilities. Congress intended combustion gases). Under EPCRA reasonable estimates can be used. EPCRA section 313 reporting to provide section 313, ‘‘manufactured’’ impurities The issues raised by the commenters the public with information about toxic that remain with a product are subject mainly relate to the determination of chemical release volumes. Reporting by to the de minimis exemption, but reporting thresholds rather than electric utilities will increase the ‘‘manufactured’’ byproducts that do not reporting of releases and transfers. EPA universe of information available to the remain with the product are not subject does not believe that it is difficult to public about toxic chemical releases. to the de minimis exemption (see Unit accurately determine threshold The public will be able to use this V.E.1. of this preamble). In the case of quantities. Even if there were some information, in combination with other the combustion of coal and oil there are difficulty in determining threshold information, to better understand any no chemicals that remain in the product quantities, EPA does not believe that is potential risks from electric utility (energy) as impurities; therefore, all of sufficient reason to exempt facilities operations. EPA recognizes that TRI the chemicals that are produced during from the reporting requirements of release data may sometimes be combustion are byproducts that are EPCRA section 313. In the absence of mischaracterized or misperceived. EPA separate from the product and therefore better facility-specific information, believes that, to the extent public not eligible for the de minimis estimates can be used to determine misperceptions arise through TRI data, exemption. whether thresholds have been exceeded. EPA must continue to improve its e. Determination of threshold and Data on what happens to the metal outreach and education efforts regarding release quantities. Many commenters constituents in coal and oil indicate that the data collected under EPCRA section state that it is not possible to determine most, if not all metals, are present as 313. EPA does not agree that large changes in the valence state of metals some form of metal compound that does release volumes reported by one that occur as a result of combustion, and not usually survive the combustion industry would ‘‘obscure’’ or that little information exists on what process (see Unit V.E.3. of this preamble improperly direct attention away from metal compounds are in coal and oil and Refs. 1 and 16). Therefore, for release volumes reported by other prior to combustion and what metal estimating the amount of metal industries; however, to the extent that compounds are in the ash byproducts. compounds manufactured from the this may occur, EPA believes the The commenters state that the combustion of coal and oil, EPA appropriate solution is outreach and constituents of coal and oil and believes that, in the absence of better education to better explain the combustion byproducts vary, and since facility-specific information, a facility significance of other factors than no monitoring or testing is required may assume that all of the metals volume of release, not denying the under EPCRA section 313, and is present in the coal or oil are converted Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations 23867 to the lowest weight metal oxide (per specific information is not available, sulfur dioxide from flue gas emissions, unit of the metal) possible for each then estimates can be used based on the to the public to allow the public to use metal. For example, for purposes of average content of stack emissions and the data, as well as information on the threshold determinations only, if the ash byproducts from coal or oil hazards of chemicals, site-specific average concentration of chromium in combustion. This information can come information that will affect exposure, coal were 0.001 lb per ton, then its from data on the coal or oil the facility and other data on non-TRI sources of combustion would produce 0.0015 lbs actually uses or if this is not available, the chemical to determine if there is a of chromium (III) oxide (Cr2O3) per ton then data on the average metal content risk. EPA acknowledges that reporting of coal combusted which would be of coal and oil can be used. Even the disposal in a secure landfill or counted towards the manufacturing estimates that vary from facility to impoundment of constituents in threshold for chromium compounds. In facility will ultimately provide the combustion byproduct ash without order to determine threshold quantities, public with better information than if explanation potentially could result in the same kind of calculation can be nothing is reported concerning releases public misperception of the risks of performed for all metals in coal and oil. and other waste management that result such disposal. However, the Agency EPA believes that it is unlikely that use from fuel combustion by electric continues to believe that expanding the of this estimation method would require utilities. TRI reporting system to include reporting by any facilities that are not f. Disposal of combustion byproducts. additional industry sectors will provide exceeding thresholds because at least Many industry commenters believe that the public with a more complete picture some, if not many, of the metal toxic chemical constituents in electric of toxic chemical releases, and that this compounds ‘‘manufactured’’ as a result utility combustion byproducts should increased information is intended to of combustion will be heavier than the not be subject to EPCRA section 313 lessen, not increase, the possibility for lowest weight metal oxide (Ref. 15). reporting. The commenters state that misperception of toxic chemical risks. One exception to the use of metal EPA studies have concluded that such EPA recognizes that TRI data may oxides for threshold determinations may combustion byproduct ash is not a sometimes be mischaracterized or be mercury. Data indicate that hazardous waste under RCRA and can misperceived, but EPA believes that any substantial amounts (approximately 90 be disposed of as any other non- such misperceptions are best addressed percent) of the mercury in coal and oil hazardous waste. The commenters through continued and improved is volatilized as the metal itself rather believe that reporting releases of EPCRA outreach and education efforts. The than converted to a metal compound section 313 toxic chemicals in ash and Agency has also made some changes to (Refs. 1 and 16). However, this makes sludge will mislead the public about the EPCRA section 313 reporting form little difference in threshold risk from these substances. Several for the 1996 reporting year in order to calculations since in mercury oxide commenters stated that ash landfills and address some of the concerns about (HgO), the oxygen only accounts for 7.4 disposal units are highly regulated and public misperception and to better help percent of the compound’s weight. are designed to protect the public and the public understand the nature of the Therefore, using the metal itself or the environment; one commenter suggested various releases to land. These changes metal oxide as the basis for threshold EPA require reporting only for are discussed in more detail in Ref. 15. calculations for mercury will make little quantities of listed toxic chemicals As mentioned above, EPA will initiate difference in the threshold which migrate out of such units. a stakeholder process to discuss the determinations. Since the data indicate In its ‘‘Final Regulatory Determination reporting forms and other issues, that most mercury remains volatilized on Four Large-Volume Wastes from the including whether it should add an as elemental mercury after combustion, Combustion of Coal by Electric Utility element relating to the intra-land the weight of the metal, rather than that Power Plants’’ (58 FR 42466, August 9, movement of waste from landfills and of the metal oxide, can be used in 1993), EPA specifically concluded that possibly surface impoundments, and threshold determinations, and this regulation under subtitle C of RCRA is whether such reporting would enable amount then applied towards the inappropriate for fly ash, bottom ash, the public to better characterize relative ‘‘manufacture’’ activity reporting boiler slag, and flue gas emission risks from the various forms of land threshold for mercury. control waste because of the limited disposal. With regard to the reporting of release risks posed by these substances and the Many commenters object to the and transfer quantities, for the metal existence of generally adequate state requirement that electric utilities report compound categories, the weight of the and federal regulatory programs. for combustion byproduct ash, when the EPCRA section 313 metal itself, not the However, in this determination, the Agency chose to exclude from EPCRA weight of the entire metal compound, is Agency did not conclude that ash and section 313 reporting non-hazardous used to report quantities released and sludge from coal and oil combustion waste facilities in SIC code 4953 which transferred. Therefore, it is not pose no risk. Rather, EPA stated that it dispose of the same ash. Numerous necessary to know what metal ‘‘believes that the potential for damage commenters argue that it is inconsistent compounds have been ‘‘manufactured’’ from these wastes is most often to require utilities which dispose of in order to report on releases and other determined by site- or region-specific their ash onsite to report the quantities waste management activities of the factors and that the current State of listed chemicals in it, while utilities EPCRA setion 313 metal. The only approach to regulation is thus which sell or otherwise distribute their information needed is the amount of the appropriate.’’ In making the disposal of ash in commerce for reuse would not EPCRA section 313 metals in the stack toxic chemicals contained in have to report these quantities. emissions and ash byproducts. combustion byproduct ash a Form R The commenters are correct that Information on typical concentrations of reportable activity under the EPCRA certain facilities within SIC code 4953 metals in stack emissions and ash section 313 reporting requirements, EPA which typically dispose of utility byproducts from the combustion of coal is not drawing any conclusion about the combustion byproduct ash were not and oil is available (Refs. 1 and 16) and risk of those wastes to communities. included in this expansion initiative can be used as a basis for estimating Rather, the Agency is providing the data and therefore would not have to report quantities released per ton of coal or oil on these wastes, as well as on metal disposal of this ash. However, EPA did combusted. Again, if better facility- wastes resulting from the removal of not ‘‘exclude’’ these facilities from 23868 Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations coverage under EPCRA section 313; EPA under EPCRA section 313, facilities in while providing opportunities for public simply chose not to add these facilities SIC code 4953 which are regulated participation, do not afford the public at this time. As EPA stated in the under the RCRA Subtitle C. EPA the kind of information made available proposed rule, ‘‘these facilities are received a variety of comments through TRI. In fact, information primarily operated by local regarding the inclusion of these reported to TRI is often used both by municipalities and regional government facilities. Many of the concerns raised members of the public to enhance their entities. Although each industry group by industry representatives, such as the participation in these permit processes, may manage significant quantities of classification of waste disposal as a and by federal, state, and local EPCRA section 313 listed toxic release under section 313, deferring the government decision makers in chemicals, the manner in which they effective date of reporting, and administering these permit processes. In manage these chemicals raises several considering treatment, stabilization, and addition, legislative history indicates cross-governmental issues EPA is disposal as an ‘‘otherwise use’’ under that Congress contemplated reporting continuing to address. As a result, EPA section 313, relate to more than one under EPCRA section 313 to include is not considering these industry groups industry and therefore have been activities and amounts permitted under at this time.’’ EPA goes on to say that addressed in separate sections of this other statutes such as the CWA and it ‘‘may reconsider at a later date some preamble. Other comments that raise RCRA, and that the reporting would or all of the industry groups which were major issues with this industry sector result in a cross-media inventory excluded as a result of the are addressed below. All of the issues describing the disposition of EPCRA considerations mentioned above.’’ EPA are addressed in greater detail in the section 313 toxic chemicals to land, air, also points out that any EPCRA section Response to Comments document (Ref. and water. (See, for example, A 313 covered facility which disposes of 15). Legislative History of the Superfund combustion byproduct ash would have Some commenters stated that EPA’s Amendments and Reauthorization Act to report for the EPCRA section 313 application of the EPCRA section 313 of 1986 (Pub. Law 99-499), Vol. II at chemicals contained in that ash if the reporting requirements to commercial 1083, and Vol. V at 4194, 4196-97, and facility exceeded an activity threshold RCRA Subtitle C hazardous waste 4200.) for the chemical. This requirement is management facilities does not further Some commenters asserted that not unique to electric utility facilities. the statutory purpose underlying commercial RCRA Subtitle C hazardous The commenters are correct that EPCRA section 313 because no waste management facilities do not under the existing EPCRA section 313 additional information concerning ‘‘manufacture,’’ ‘‘process,’’ or reporting regulations, toxic chemicals release of toxic chemicals will be ‘‘otherwise use’’ listed EPCRA section contained in a substance which is provided. One commenter asserted that 313 toxic chemicals, and therefore, disposed of on-site must be reported, the only releases occurring at RCRA should not be included in TRI. Another while toxic chemicals contained in the facilities are permitted releases to air commenter stated that commercial TSDs same substance would not be reported and these are monitored and reported do not meet EPA’s activity factor if the substance is sold as a product. pursuant to the CAA; permitted releases because TSDs do not ‘‘otherwise use’’ EPA recognizes that the public may to water and these are monitored and chemicals and added that: have an interest in and benefit from reported pursuant to the CWA; and knowing about the presence of toxic unintended releases to the environment EPA concluded that the statute as chemicals in products produced by which are monitored, reported, and originally written and implemented did not apply to Subtitle C facilities that would not facilities. EPA issued an Advance subject to corrective action under RCRA. ordinarily be subject to the rule. [Nothing] Notice of Proposed Rulemaking (61 FR The commenter stated that requirements has changed other than EPA’s desire to 51322, October 1, 1996) (FRL–5387–6) under RCRA incorporate public include these facilities and waste concerning the possible collection of participation during the permitting management activities in the section 313 this and other types of information. process, which ensure releases do not reporting requirements. The Agency Following a series of public meetings occur and that communities are well identifies no new information needs that and evaluation of public comment, EPA informed of any and all toxic releases were not available when it originally will determine whether and how to that do occur. interpreted otherwise use to expressly EPA disagrees with these exclude waste management activities from proceed on that initiative. reporting under section 313. g. Addition of SIC code 4961. In the commenters. The information about proposal, EPA requested comment on toxic chemical releases to the EPA disagrees with these whether to add SIC code 4961, Steam environment that are permitted, commenters. As identified in the and Air Conditioning Supply, to EPCRA monitored, reported on, or otherwise Economic Analysis and Industry Profile, section 313. (This SIC code was regulated under other environmental commercial RCRA Subtitle C hazardous misnumbered as 4960 although statutes is not available to the public in waste management facilities may correctly described in the proposal.) the same manner as information ‘‘manufacture,’’ ‘‘process,’’ or Four commenters opposed the addition reported to TRI. This includes ‘‘otherwise use’’ listed toxic chemicals. of SIC code 4961. No comments were information about releases regulated EPCRA section 313 toxic chemicals are, received in support of adding this under the CAA, the CWA, RCRA, and for example, coincidentally industry, and no comments were the Comprehensive Environmental manufactured during hazardous waste received which provided any additional Response, Compensation, and Liability incineration and ‘‘otherwise used’’ for information about this industry group. Act (CERCLA). TRI consolidates data injection of hazardous waste or for Therefore, EPA has not included this addressing toxic chemical releases to all hazardous waste treatment (Ref. 12). industry in this rule. EPA may environmental media into an inventory Further, there may be facilities within reconsider this industry group in a that is a single, multi-media data this SIC code that also recycle spent future rulemaking in light of additional resource, consistently defined and solvents for distribution in commerce information. formatted, annually aggregated, and and may therefore be ‘‘processing’’ 5. Commercial hazardous waste readily available to the public. EPCRA section 313 toxic chemicals. treatment and disposal. EPA is adding Furthermore, permitting processes Finally, as noted in the Economic to the list of industry groups covered under other environmental statutes, Analysis, under EPA’s revised Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations 23869 interpretation of ‘‘otherwise use,’’ concentration of the compound or may Xylene - 15-20%, p-Xylene - 0-20%, numerous chemicals contained in be in range values that can be extremely Ethyl benzene - 15-25%. wastes received or generated from the wide. These commenters also repeated Further, EPA believes that TSD management of wastes received are statements made by several others that, facilities that receive hazardous waste in treated for destruction, stabilized, or unlike manufacturing plants, it is many cases conduct additional analyses disposed are ‘‘otherwise used’’ (Ref. 12). impossible for a RCRA hazardous waste and develop profiles of the wastes they In addition, contrary to the treatment or disposal facility to review receive for purposes of treatment or commenters’ assertion, the proposal the paperwork it receives and determine disposal in order to ensure that the clearly explains the basis and purpose from it the quantities of chemicals waste they receive meets their recovery, for EPA’s revised interpretation of entering the facility. Similar comments treatment or disposal specifications, or ‘‘otherwise use.’’ As EPA notes in the stated that information required from to otherwise properly manage wastes proposal, EPA is revising its generators for wastes identifies if the received. For example, TSDs are interpretation of ‘‘otherwise use’’ to waste may contain, or may leach, required under 40 CFR 264.13 and address the unintended consequence of certain chemical constituents above a 265.13 to obtain a detailed chemical and its previous interpretation. EPA states minimum level, or is generated by physical analysis of a representative that it ‘‘is concerned that, based on industry-specific processes. Accurate sample of any hazardous, and certain current guidance, the public may not chemical constituents are not necessary non-hazardous, wastes prior to any have access to information relating to for processing wastes. treatment, storage, or disposal, and to releases of toxic chemicals from EPA believes, based in part on develop written waste analysis plans facilities within SIC codes 20 through industry comments, that commercial that specify the frequency of sampling. 39 that are receiving materials for the RCRA Subtitle C hazardous waste EPA also disagrees that it would be purposes of treatment for destruction, management TSDs receive and prepare nearly impossible or extremely stabilization, or disposal.’’ (61 FR information on chemicals contained in expensive for TSDs to develop formulas 33596) As EPA clearly expresses, it was wastes that is sufficient for reporting to calculate concentrations of toxic concerned that its previous under section 313, and that this chemicals received in hazardous wastes. interpretation left a significant gap in information will be beneficial as EPA expects that developing toxic the information reported by facilities reported. Generators that send chemical concentration estimating within SIC codes 20 through 39, and did hazardous waste to facilities for techniques would not be extremely not want to perpetuate this treatment, recovery, or disposal provide difficult for hazardous wastes listed as informational gap when adding other RCRA manifests which contain a variety toxic hazardous wastes at 40 CFR industry groups. Thus, although of detail on the wastes they transfer. 261.33(f) (‘‘U-listings’’), or acutely recognizing that RCRA Subtitle C While this information is provided as a hazardous waste listed at 40 CFR facilities could report information as a means to satisfy associated RCRA 261.33(e) (‘‘P-listings’’). These materials result of the ‘‘manufacture,’’ requirements, EPA believes that in are discarded commercial chemical ‘‘processing,’’ or ‘‘otherwise use’’ many instances this information can products, off-specification species, activities described above and in contain significant detail and can be container residues, and spill residues support documents, EPA announced its useful in developing constituent and are likely to be present as highly intent to revise the interpretation of specific estimates required under concentrated chemicals. These waste ‘‘otherwise use’’ for all industries section 313. In addition, one set of codes also represent a significant subject to EPCRA section 313 to rectify industry comments indicate that waste portion of the RCRA hazardous waste this loss of information from facilities generators provide waste handlers with manifests required to accompany all within 20 through 39 and the potential information on the concentration ranges shipments of hazardous waste to loss of information from any added of constituents in waste. commercial RCRA Subtitle C hazardous facilities. EPA believes that the addition waste management facilities. Similarly, Laidlaw utilizes a profile system in order of facilities within this industry group to obtain information from the waste many of the RCRA wastes listed at 40 and the revised interpretation will generator that is needed to properly treat, CFR 261.31 and 40 CFR 261.32 are significantly add to the public’s right-to- store or dispose of the hazardous waste. narrowly defined, such as F007 (spent know about the use and disposition of Variants of this type of system is generally cyanide plating bath solutions from toxic chemicals in their communities. used by all members of the hazardous waste electroplating operations) and K009 EPA has provided further discussion of management industry....Profiles typically (distillation bottoms from the its revised interpretation in Unit V.F.2. provide information on RCRA hazardous production of acetaldehyde from of this preamble. constituents present in the waste, including ethylene), and relate directly to process- Comments submitted by two industry concentration ranges. specific waste steams that lend representatives stated that TRI reporting Laidlaw attached examples of these themselves readily to generic toxic by commercial RCRA Subtitle C profiles. For example, the profile for chemical concentration estimating hazardous waste management facilities ‘‘Line Rinse Mop Water’’ lists the procedures. will be highly inaccurate because following constituents: Water - 50-80%, EPA agrees that concentrations of information on concentrations of Methanol - 0-5%, Ethanol - 10-20%, toxic chemicals vary widely for RCRA constituents is not usually available for Acetone - 0-2%, Isopropanol - 3-15%, hazardous wastes identified at 40 CFR wastes received from manufacturing Tetrachloroethylene - 0-1%, n-Butyl 261.21 through 261.24 by hazardous facilities, or from contaminated media alcohol - 0-1%, Mineral spirits - 3-15%, characteristics (corrosive, ignitable, received from CERCLA or RCRA Pyrethroids - 0-1%, Dirt - 1-5%. This reactive, and toxic) and for corrective action and clean-up activities. range information is analogous to the contaminated media from Superfund or The commenters asserted that the RCRA information on Material Safety Data RCRA corrective action clean-ups, and reporting and manifest system does not Sheets (MSDS) that the manufacturing that these wastes may represent a large provide data on chemical sector uses to estimate the constituents portion of the total quantities of concentrations in hazardous wastes, and of mixtures. For example, an MSDS for hazardous wastes received by that the information that is provided ‘‘Xylenes’’ lists the following commercial RCRA Subtitle C hazardous may not pertain to the total constituents: m-Xylene - 40-65%, o- waste management facilities. However, 23870 Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations

TSDs are required to develop a facilities, since the number of such noted above, EPA will initiate a significant amount of information facilities is relatively small, allowing stakeholder process to consider these regarding the constituent composition of most if not all members to participate in and other issues. certain characteristic wastes to ensure the endeavor. A number of commenters stated that compliance with RCRA requirements Consequently, EPA believes that the the distortion of disposal as release such as the treatment standards for combination of information received would focus public attention on the end underlying hazardous constituents. For with waste transfers and information of the manufacturing cycle (treatment example, 40 CFR 268.48 requires developed by the facility will enable and disposal), when there is virtually facilities to conduct routine sampling to TSD facilities to adequately determine nothing that commercial RCRA Subtitle ensure compliance with the treatment their compliance requirements under C hazardous waste management standards for the listed hazardous section 313 and that the additional facilities can do to minimize or reduce constituents. Despite the fact that waste management information the use of EPCRA section 313 toxic concentration data available to these anticipated from these facilities will chemicals, and that EPA will have facilities for these wastes may be further the purposes of TRI. missed the target of encouraging variable in some cases, or correspond to One commenter asserted that EPA’s reduction and minimization by shifting leachable fractions instead of total approach to TRI release reporting at the focus away from the manufacturing concentrations, EPA nonetheless RCRA facilities is contrary to the cycle to the waste treatment component believes that these data, along with fundamental goal of EPCRA, because which is least able to affect these goals. RCRA manifests, waste profile reporting communities will be misled into EPA fully supports source reduction data, and facilities’ knowledge of the believing that all wastes placed in RCRA and waste minimization activities. One waste management processes they disposal units are released, and ‘‘actual’’ of the benefits of making information operate, provide a substantial basis for releases from RCRA disposal units are publicly available through TRI, but facilities to develop reasonable not to be reported pursuant to 1995 which has been predominately limited estimates of annual quantities of each Form R instructions and guidance. to sources within the manufacturing RCRA hazardous constituent contained Specifically, the commenter noted that sector, has been the ability to detect in these waste streams. Furthermore, amounts placed in managed units, such shifts in amounts of waste directly manufacturers currently reporting to as subtitle C landfills, will be reported disposed as compared to amounts being TRI that operate on-site RCRA Subtitle when they are disposed of, while the recycled for example. Encouraging C hazardous waste management resulting emissions such as the amounts reductions of toxic chemicals in waste facilities have nearly a decade of that migrate or are emitted to air will and applying pollution prevention experience in developing reasonable not be reported. practices, however, are not the primary EPA does not believe that the manner purposes under which section 313 was release estimates associated with these in which information will be reported established. Section 313 was established processes. Such experience, along with under section 313 by hazardous waste in order to make publicly available the actual TRI reports provided by these facilities will mislead communities or information regarding routine chemical facilities since 1987, can be drawn on to will be contrary to the goals served by releases, and the management and support the endeavor. In addition, EPA section 313. Under section 313, facilities disposition of listed chemicals within has provided guidance to current must report information on amounts of local communities, for all media, in one reporters in the proposed and final rules listed chemicals in wastes, including location. By including hazardous waste implementing the EPCRA section 313 details regarding the environmental treatment and disposal facilities in TRI, reporting requirements (52 FR 2115- media into which releases occurred and the public will have ready access to 2116, 53 FR 4510-4511) and the 1995 the other measures that were taken to more complete information on the Toxic Chemical Release Inventory manage the wastes annually. For management and disposition of toxic Reporting Form R and Instructions (EPA example, if a hazardous waste treatment chemicals in their communities. 745-K-96-001) for making threshold facility exceeds the activity threshold Several commenters proposed that, if determinations on the components of for a toxic chemical within a given year EPA included commercial RCRA mixtures, which can be applied to and during that year the entire amount Subtitle C hazardous waste management wastes, even though waste is not a was disposed in a landfill and remained facilities under section 313, EPA should mixture. EPA’s guidance includes the there, then the facility would report the delay reporting for their industry for 1 following scenarios: (1) The entire amount as being disposed in a year and commence coverage on January concentration range is known, (2) only landfill and the information would 1, 1998, in order for them to develop the upper bound concentration is appear as such. If the facility exceeded data gathering systems. known, (3) only the lower bound an activity threshold for another toxic EPA acknowledges that some concentration is known, and (4) when chemical that may be more volatile, the commercial RCRA Subtitle C hazardous no concentration information is known. facility would report the estimated waste management facilities may want Finally, many of the currently amount disposed that remained in the to implement data management reporting manufacturers have worked landfill as disposed in a landfill and the strategies to best comply with TRI through trade associations and other fraction that could be estimated to have reporting. However, the Agency believes cooperative mechanisms to develop volatilized as released to air during the that such modifications will take industry-specific estimating procedures reporting period. substantially less than a year to that meet the EPCRA section 313 In order to address industry concerns, implement, and that information reporting requirements to provide EPA modified the Form R for the 1996 corresponding to the portion of the reasonable release estimates based on reporting year in an effort to avoid reporting year during which tracking information generally in the possession public misperception and to promote a modifications are being developed can of reporting facilities. EPA believes better understanding of the differences either be entered by facilities similar cooperative endeavors could be among various waste disposal methods. subsequent to completion of the initiated to develop similar estimating For additional detail regarding this modifications or extrapolated for the procedures for commercial RCRA reporting modification, refer to Unit missing period based on information Subtitle C hazardous waste management V.F.1. of this preamble. In addition, as entered into such systems for the Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations 23871 duration of the reporting year. As noted Some commenters stated that meet the EPCRA section 313 reporting in Unit V.D. of this preamble, EPA is not expanding TRI to include commercial requirements. No new RCRA waste requiring reporting by any of the added RCRA Subtitle C hazardous waste characterization requirements are being industry groups for the reporting year management facilities will have the established in this rulemaking. 1997. This rule is effective December 31, effect of transferring the responsibility Similarly, EPA does not believe that 1997. and liability for characterizing summarizing these data at the chemical One commenter submitted a hazardous wastes from generator to level by a receiving facility for TRI statement that TRI does not offer any treatment, storage, and disposal reporting purposes will alter the mechanism to indicate beneficial facilities, which is counter to RCRA liabilities imposed by RCRA, CERCLA, destruction of a listed section 313 philosophy and inconsistent with 40 and other environmental statutes, which chemical, and therefore, TRI does not CFR Subpart C Supplier Notification require the generators of hazardous reflect risk reduction provided by the Requirements. Similarly, another waste to properly manage and identify destruction, stabilization, recovery, or commenter stated that expanding TRI to their wastes. other treatment of hazardous wastes. include commercial RCRA Subtitle C One commenter proposed that EPA EPA disagrees that TRI does not offer hazardous waste management facilities establish a higher reporting threshold of any mechanism to indicate destruction, will have the effect of restructuring the 50,000 pounds for amounts injected into removal, or other management of entire RCRA waste characterization underground wells, because the wastes EPCRA section 313 listed chemicals. scheme, a concept that was not injected are relatively dilute, compared Facilities report in section 6 of Form R contemplated or clearly proposed by to other waste streams. The commenter the quantities of toxic chemicals this rule. described wastes injected as typically discharged to Publicly Owned EPA disagrees with the commenters composed of 90 to 95 percent water Treatment Works (POTWs) (section 6.1) that expanding the EPCRA section 313 with the remainder composed of soluble or transferred to other off-site locations facilities list to include commercial inorganic and dissolved organic for further waste management (section RCRA Subtitle C hazardous waste fractions. management facilities will have either EPA would like to clarify that 6.2). In section 6.2, facilities identify the the effect of restructuring the entire amounts considered toward thresholds receiving waste management facility, RCRA waste characterization scheme or are based on the amount of the listed the quantity of the toxic chemical transferring the responsibility and toxic chemical and not the volume of transferred to that facility, and the liability for characterizing hazardous the waste stream. Therefore, in the case specific type of management practice to wastes from waste generators to TSDs. described by the commenter, only the be applied to destroy, treat, combust for As noted in both EPA’s proposal and toxic chemical fraction of the waste energy recovery, recover, or stabilize the this preamble, EPA believes that these would be evaluated for each toxic chemical in wastestreams (M facilities will be able to meet EPCRA individually listed chemical, and codes). Facilities report in section 7 of section 313 reporting requirements by reporting would be limited to the Form R more detailed information determining whether thresholds were amounts of each chemical that exceeds describing on-site energy recovery and likely to have been met and to prepare threshold quantities. recycling of the toxic chemicals, and reasonable estimates of annual Another commenter suggested that waste treatment methods applied to the quantities of toxic chemicals released/ generators of hazardous wastes be waste streams containing the toxic disposed, treated, recovered, and required to send to RCRA Subtitle C chemical. In section 8 of Form R, recycled, by using information already treatment and disposal facilities, facilities report on waste management provided to them through existing information on quantities of section 313 activities applied to the listed toxic practices, along with information they listed chemicals contained in wastes. chemical. Facilities also report in develop for operational needs and for Supplier notification requirements are section 8 whether and which types of compliance with other regulations. not being amended by this rulemaking. source reduction were implemented for While EPA anticipates that these Supplier notification applies to each reported toxic chemical. EPA facilities will undertake the chemicals contained in mixtures or believes that the sum of these development of estimation procedures, trade name products. 40 CFR 372.45. information items does in fact provide drawing on these data to bridge the EPA does not consider wastes to be significant insights into the risk difference between RCRA data resources ‘‘mixtures or trade name products.’’ In reduction provided by information on and EPCRA section 313 requirements, addition, EPA does not believe that methods used to manage the listed toxic the Agency does not agree that such supplier notification is necessary for chemical in waste streams. endeavors, undertaken by individual newly listed industry groups to be able Additionally, RCRA Subtitle C facilities or on a collaborative basis to reasonably comply with EPCRA facilities will be faced with a unique among several facilities, amounts to or section 313 reporting requirements and opportunity to demonstrate their would have the effect of restructuring provide information of sufficient efficiency in reclaiming a toxic chemical the entire RCRA waste characterization quality. For this rulemaking, EPA or destroying the toxic chemical through scheme. selected industry groups that the reporting under section 313. Section 313 RCRA TSD facilities are required to Agency believes currently possess reporting by RCRA subtitle C facilities prepare waste analysis plans in adequate information to report under will be based on their commercial accordance with 40 CFR 264.13 or section 313. As stated throughout this treatment and disposal activities and the 265.13 that establish procedures for preamble, EPA believes that existing amounts that they report as released identification and characterization of information provided to these facilities will be amounts that are released as a incoming wastes. Data collected by through RCRA manifests, reporting result of their treatment processes or TSDs, as outlined in their site-specific requirements and facility practices, amounts that they directly dispose. A waste analysis plans, which typically taken together with facilities’ knowledge facility with an efficient treatment detail the data needs for initial waste of the waste management processes they process will report smaller amounts profiles, in concert with shipment- operate, provide a sufficient basis for disposed or otherwise released than a specific information in the waste them to develop reasonable estimates facility with a less efficient process. manifest, are believed to be sufficient to for section 313 reporting. Accordingly, 23872 Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations

EPA sees no reason at this time to justification for including SIC code warrant a division among facilities extend supplier notification 5171. One commenter noted that the within SIC code 5171 for purposes of requirements to the generators that proposal spends less than one page EPCRA section 313 reporting. While transfer hazardous wastes to these discussing their industry. EPA recognizes that a substantial range facilities. EPA disagrees with the commenters. in facility size and in the quantity of One comment submitted by an The Agency has provided factual and product managed exist within SIC code industry representative stated that they scientific justification for including 5171, EPA believes that bulk terminals were concerned that EPA is excluding facilities operating within SIC code and bulk plants manage similar Municipal Solid Waste Landfills and 5171. The discussion provided in the mixtures containing EPCRA section 313 POTWs from reporting to TRI, even preamble to the proposed rule was chemicals, often manage these though these facilities many manage intentionally brief and limited to chemicals in a similar manner, and that significant quantities of EPCRA section providing a summary of EPA’s findings each may reasonably be anticipated to 313 toxic chemicals. The commenter for each industry group. However, EPA provide information that will stated that, unlike deep well injection cited and has made available several appreciably further the purposes of facilities, these types of facilities emit support documents that describe in EPCRA section 313. In other words, EPCRA section 313 toxic chemicals detail information relating to bulk both bulk terminals and bulk plants which present high risks to surface and petroleum facilities, and facilities meet the statutory standard for listing. ground waters, about which EPA has the identified in each of the other industry In addition, EPA believes that existing duty to notify the public. groups being added. These support thresholds associated with EPCRA As stated in the proposed rule, other documents include industry profiles section 313, such as the employee sections of this preamble, and in the (Refs. 6-10 in the proposed rule and threshold, will reduce the regulatory Response to Comments document (Ref. Refs. 5-7 and 18 in the final rule), which burden substantially for small 15), EPA chose for a number of reasons provide descriptions of activities within companies within this industry. These to defer considering whether to add the industries, and the Economic thresholds have reduced the burden for several other industries in this action. In Analysis (Refs. 11 and 12) which the manufacturing industry. EPA also electing not to exercise its authority to provides statistical and market recognizes that existing exemptions will extend the EPCRA section 313 reporting information on the particular industry reduce the reporting burden; for requirements to Municipal Solid Waste as a whole, as well as projections of example, fuels that do not contain Landfills and POTWs in this action, estimated impacts for each industry EPCRA section 313 toxic chemicals EPA has not made a determination that group anticipated as a result of this above de minimis concentrations will these industry segments should not be rulemaking. not be counted towards activity included in the section 313 facilities Many commenters state that bulk thresholds. Thus, for facilities operating list. EPA will consider comments petroleum plants and terminals provide within SIC code 5171, EPA believes that received during this action regarding different functions which involve existing thresholds or exemptions such these and other industries not included different practices, and are different as the de minimis exemption will serve in today’s action at a future date. types of facilities that should not be to significantly reduce overall burden, One commenter suggested that EPA considered equivalent. Many argue that and inherently recognize the differences exclude RCRA facilities that no longer the SIC code 5171 industry in facility sizes and products managed. accept off-site hazardous wastes and classification covers types of facilities A number of commenters assert that have notified the lead RCRA agency of with unique differences and that EPA’s the Agency has inadvertently and their intention to close. The commenter action does not adequately address unintentionally included small noted that the RCRA closure process these differences. Many commenters petroleum bulk plants in the proposed provides adequate public notification stated that for this regulation, ‘‘one size expansion. These commenters state that opportunities and comment on activities does not fit all.’’ Most of the comments EPA incorrectly assumed marketers conducted at the facility. from smaller companies state that with small bulk plants would be EPA does not believe that a specific implementing this action will put them classified as SIC code 5172, despite the exemption should be granted for at an economic disadvantage as fact that all marketers with any size bulk facilities that are closing. Facilities that compared to larger facilities such as plants are classified as SIC code 5171 are no longer receiving waste for many bulk terminals. Another not SIC code 5172. Furthermore, they treatment or disposal are potentially no commenter provides sales information note that EPA’s economic analysis longer subject to the EPCRA section 313 supporting the point that terminals have erroneously refers to ‘‘bulk plants’’ as a reporting requirements. If no threshold much greater throughput quantities synonym for SIC code 5172. They activities are conducted within a which allow them to spread costs over further state that unless this mistake is reporting year, then no reporting is much larger profits. Many of these corrected, EPA’s action will result in a required. commenters and others claim to be disproportionately large economic 6. Petroleum bulk terminals and classified as ‘‘small’’ according to the impact on small marketers. Similar stations. EPA is adding to the list of Small Business Administration (SBA) comments were submitted by the industry groups covered under EPCRA definition and add that if this action Petroleum Transportation and Storage section 313 SIC code 5171, bulk goes into effect as proposed, many Association (PTSA) which state that petroleum stations and terminals. The companies will be forced out of they believe EPA intended to capture major issues raised in comments business, prices will increase, and, in only larger bulk plants and terminals regarding this industry are addressed some cases, a gap in the market may be with average product throughput below. Greater detail can be found in created limiting options for their present amounts of 36.5 million gallons as the Response to Comments document customers. compared to facilities with typical (Ref. 15). General issues raised by EPA does not believe that the annual throughputs of 5 to 6 million commenters are addressed in separate distinctions within the petroleum gallons as evidenced by EPA support sections of this preamble. distribution industry the commenters documents and EPA discussions. PTSA Two commenters claim that EPA has raise are sufficiently relevant to the further states that they believe the not provided factual or scientific purposes of EPCRA section 313 to Agency intended this rulemaking to be Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations 23873 much less expensive than it has the the releases of ethylene glycol, and that possession of the product it receives, potential of being, and that the Agency by not listing this industry group, EPA and note that simply taking possession has not adequately considered the has missed an opportunity to capture a of the product does not increase the impact of the rule as currently written, source of large releases. These possibility of releases. Another in part, because EPA’s economic commenters also state that the commenter suggests that all transport analysis mistakenly classified 7,000 distinctions between the SIC codes 5171 and storage incidental to transport of bulk plants in 5172, which actually and 5172 classifications are not that their product should not be subject to operate within SIC code 5171. Their clear and by not including both, EPA EPCRA section 313 reporting or comments also mention that small bulk creates an incentive for facilities threshold calculations based on the plants are very similar to facilities that formally classified in SIC code 5171 to EPCRA section 327 transportation operate in SIC code 5172, which were reclassify themselves into SIC code exemption. Based on their interpretation specifically exempted. They state that 5172. These commenters note that of this exemption, they contend that bulk plants operating in SIC code 5171 EPA’s proposed rule states that facilities most of the activities occurring at bulk and facilities operating in SIC code 5172 in SIC code 5172 ‘‘may be adversely plants would not be covered, and share many regulatory interests and affected at a substantially high rate’’ but therefore, these facilities do not meet their primary distinction is that request that EPA explain how these EPA’s ‘‘activity factor’’ used to select facilities in SIC code 5172 have access facilities would be adversely affected. industries. to terminals and do not need to have on- EPA believes that the distinctions Section 327 of EPCRA establishes an site storage capacities. between establishments classified in SIC exemption for activities involving the The proposed rule (see 61 FR 33587) code 5171 and those classified in 5172 transportation and storage incidental to clearly specified the addition of SIC based on the Bureau of the Census’ 1992 transportation of listed chemicals for code 5171, and included an industry Industry and Product Classification purposes of section 313 requirements. description based on the SIC code Manual are adequate for the purposes of For the purposes of EPCRA section 313, classification, which includes both designating industry groups to report this exemption applies to chemicals petroleum bulk plants and terminals. under section 313 (Ref. 8). Petroleum under active shipping. EPCRA section While some portions of EPA’s economic wholesale facilities are assigned to 313 toxic chemicals that are in transit analysis mistakenly labeled certain either SIC code 5171 or 5172 based on and held temporarily at facilities that do facilities as operating in SIC code 5172, their storage capacity, which is not take formal possession or ownership the information used to estimate costs numerically defined. EPA believes this of these chemicals are considered under and economic impacts on the industry is a clear distinction. ‘‘active shipping’’ and are exempt from was based on facilities classified as SIC EPA disagrees that its decision to the EPCRA section 313 reporting code 5171. EPA’s analysis did not defer further consideration of 5172 was requirements. When the receiving consider the 7,000 facilities identified based on a finding that these facilities facility takes possession and ownership by the commenter in estimating the ‘‘may be adversely affected at a of materials, these materials are no costs and economic impacts on 5171, substantially high rate.’’ As noted in the longer under active shipping and, in because their storage capacities are proposal, EPA’s preliminary analysis terms of the EPCRA section 313 below 10,000 gallons and thus these indicated that, due to existing requirements, potentially subject to facilities are properly classified as 5172, thresholds and exemptions, ‘‘the reporting. EPA has determined that the or because the facilities, even though projected value of reporting for these facilities operating within SIC code they are properly classified as 5171, fall industry groups is questionable.’’ (see 5171 generally take possession and below the 10 full-time employee 61 FR 33592) In addition, EPA’s ownership of the chemicals that they threshold. Therefore, EPA’s analysis preliminary analysis identified facilities manage, that these chemicals are not included those bulk plants that are in SIC code 5172 as possibly having ‘‘a under active shipping, and therefore, properly classified in SIC code 5171 and disproportionately large economic not eligible for the exemption that are expected to report. impact if EPCRA section 313 reporting established under section 327 (Ref. 12). Consequently, EPA believes that its requirements were extended to their The commenters have provided no economic analysis accurately calculated industry.’’ (see 61 FR 33592) This information to convince EPA to amend the burden of reporting for this industry finding is based on a projected estimate the information and conclusions in group. of the anticipated cost to comply with EPA’s Economic Analysis (Ref. 12). EPA would also like to clarify that SIC this rule relative to the gross sales. This Additionally, the EPCRA section 313 code 5172 was not ‘‘specifically finding is not an absolute statutory ‘‘processing’’ definition is exempted’’ from reporting to TRI. determination, but was a consideration explicit in terms of what it includes. Rather, EPA deferred further in EPA’s screening process that was EPA would like to clarify that amounts consideration of this industry prior to taken into account in EPA’s decision to of listed EPCRA section 313 toxic the proposal for reasons identified as defer SIC code 5172 for further chemicals retained in storage are not ‘‘Additional Considerations,’’ which consideration in this rulemaking. counted toward activity thresholds, were discussed in the proposed rule (see Several commenters state that many such as ‘‘processing.’’ However, when 61 FR 33588) and in the Development of facilities within SIC code 5171 do not these amounts are transferred, such as SIC Code Candidates: Screening perform mixing or blending activities. from a bulk storage unit to a truck, for Document (Ref. 10). They state that storage and simple further distribution in commerce, the Two commenters stated that EPA redistribution should not be included in amounts of listed EPCRA section 313 should have also included SIC code the processing activities for threshold toxic chemicals must be considered 5172 in this action. These commenters calculations. Several of these toward the ‘‘processing’’ threshold state that facilities in SIC code 5172, commenters argue that this activity is because this is considered repackaging which they refer to as ‘‘fixed based analogous to ‘‘transportation or storage of the EPCRA section 313 toxic operators,’’ provide services to many incidental to transportation’’ which is chemicals. This interpretation is major airports, among other locations. exempt under section 313. Some claim consistent with EPA’s guidance as it has Commenters state that these facilities that no distinction should be made pertained to the manufacturing sector. are responsible for 10 to 20 percent of simply because a terminal takes Question 149 of the most recent 23874 Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations

Question and Answer document section 313 reporting requirements. under the New Source Performance developed for the TRI program includes These alternatives range from adopting Standards (NSPS) for gasoline the following discussion: ‘‘. . .the definitions used under existing distribution, these are defined as facility loads other tanker trucks with regulations issued pursuant to other establishments that receive petroleum gasoline which distribute the gasoline to environmental statutes, to modifying via ship, barge, or pipeline in amounts service stations. . .are the chemicals in reporting definitions under section 313. equal to or greater than 20,000 gallons the gasoline processed.’’ EPA’s response Each of these alternatives, if per day. This definition may effectively was: ‘‘[s]ince the facility repackages the implemented, would exempt a portion exclude all petroleum bulk plants, gasoline by transferring it between of the facilities operating within SIC regardless of the product throughput trucks and bulk storage containers for code 5171. The most commonly they manage. However, contrary to the further distribution in commerce, the suggested alternative to EPA’s proposed commenter’s implication, the CAA facility is processing the toxic chemicals action is for EPA to establish a storage definitions do not equate to a in the gasoline.’’ (Ref. 17). Activities capacity exemption. Most of the determination that emissions from bulk being conducted by facilities operating commenters proposed that facilities plants are insignificant. Nor are bulk within SIC code 5171 are directly with storage capacities of less than plants exempt from all CAA provisions; analogous to those previously 150,000 gallons be excluded while for example, bulk plants may still be interpreted for facilities within the others suggested the Agency consider covered by various State manufacturing sector who have reported 200,000 gallons as a cut-off. Several Implementation Plans (SIPs). Further, on like activities. other commenters suggested that if a EPA believes that exemption under the Several commenters state that their storage capacity exemption were not CAA provides additional justification industry is substantially regulated under acceptable, then the Agency should for the addition of SIC code 5171. One other environmental statutes, which consider a throughput exemption in of the purposes of EPCRA section 313 is removes the need for the bulk petroleum order to provide regulatory relief to to monitor the success of existing distribution industry to be included smaller facilities that handle ‘‘smaller’’ environmental regulations, and by under this action. Some of the existing bulk quantities. gathering TRI data on emissions from statutory and regulatory provisions cited EPA does not believe that a storage bulk plants EPA could evaluate, for include CAA Title V, the National capacity qualifier is suitable for example, whether CAA regulation may Standards for Hazardous Air Pollutants adoption by the TRI program at this be warranted for some bulk plants under (NESHAPS) for Source Category; time. The amounts suggested by section 112(k), which makes special gasoline distribution, and the Marine commenters potentially equate to very provision for urban air toxics. Vapor Recovery Program; EPCRA large amounts of product throughput, In addition, EPA believes that the sections 311 and 312; the Oil Pollution which EPA believes would deprive the purposes served by the CAA and Prevention Act; and 40 CFR part 112. public of useful information that is not implementing regulations are unique These commenters state that routine currently available. While a large and different from those associated with reporting and inspection requirements portion of the facilities operating in this EPCRA section 313. While the under these statutes make EPCRA industry primarily perform simple distinctions between petroleum bulk section 313 reporting by their industry product transfers, and amounts terminals and plants may be appropriate unnecessary and would result in processed greatly influence the quantity for regulatory requirements under the duplicative reporting. of releases or toxic chemicals in wastes CAA, EPA believes that existing While bulk petroleum distribution which result, EPA believes that existing thresholds both for activities and facilities are regulated under several thresholds and exemptions will employee size provide adequate existing environmental regulations, EPA adequately serve to remove a substantial regulatory relief appropriate for does not believe that current regulations number of smaller facilities. Based on fulfilling the objectives of section 313. satisfy the objectives sought by EPA’s economic analysis, 10,292 Several commenters describe inclusion of facilities under EPCRA facilities have been identified as being operations at typical bulk plants as section 313. A comparison between classified in SIC code 5171. With the having relatively few employees existing regulations and the EPCRA application of existing thresholds, EPA physically located at the facility on a section 313 reporting requirements was estimates that 3,842 will meet reporting regular basis. Some of these commenters prepared in support of the proposed requirements. Therefore the existing noted that delivery personnel, who are rule and is discussed in Unit V.I.1. of thresholds are anticipated to exempt infrequently physically at the facility, this preamble. EPA believes that these approximately 62 percent of those will cause many facilities to exceed the findings confirm that similar facilities classified within SIC code employee threshold and thereby be information is not provided by other 5171, which EPA believes provides subject to reporting. These commenters requirements, so that the extension of substantial burden reductions (Ref. 12). suggested that, as a result, facilities may section 313 reporting requirements to Several commenters requested that decide to no longer employ these this industry is not duplicative. EPA adopt the definition of bulk personnel, but to use contracted Additionally, as discussed in Unit V.A. gasoline terminals used under certain services, which must be an unintended of this preamble, Congress was well CAA regulations and thereby exempt all result of this rulemaking. Similar aware of the existing requirements that bulk plants, or consider either a comments were submitted by another collect a variety of information and, in throughput level or combination of the commenter which stated that due to the enacting EPCRA section 313, two in this rule. These commenters low numbers of employees at many determined that there was a need to support any of these alternatives over petroleum marketing terminals, and the provide a single source of readily listing the entire 4-digit SIC code of annual application of reporting available information regarding 5171 and argue that this would requirements, many facilities will chemicals entering all environmental effectively exempt most if not all bulk ‘‘teeter’’ on the brink of coverage in any media. plants and could be structured to given year. This will cause many Commenters from the bulk petroleum remove any small business issues. facilities to engage in full-blown distribution companies suggest a variety Certain CAA regulations only apply to recordkeeping and track their activities of alternatives to standard EPCRA bulk gasoline terminals. For example, over the course of the year, even though Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations 23875 they may not be required to report. With requirements are more consistent than these facilities have not reported to TRI the exception of actually filling out other industries and therefore, they may in the past. Thus, EPA could not adopt Form Rs, which the commenter stated is be better equipped to predict annual the commenter’s suggestion for a minor component, the burden on the activities. purposes of this rulemaking. facility will be the same whether or not Another commenter states that if EPA Moreover, even if EPA could adopt it is covered. Likewise, with the annual decides to include petroleum bulk the commenter’s suggestion in this fluctuations likely to occur, trend terminals and stations in the final rule, rulemaking, EPA would not. While analysis will not be possible, which will the Agency should modify the reporting some commenters have described affect industry comparisons and TRI frequency, so that after their initial activities within the bulk petroleum overall. report, facilities in SIC code 5171 would distribution industry as being consistent EPA has received similar requests to only be required to report whenever a from year-to-year, EPA has received make distinctions among employees in predetermined threshold, such as other comments stating that many order to increase the effect of this change in storage capacity, loading changes have occurred within this statutory exemption for their industry. activities, or types of chemicals handled industry in terms of both the chemical EPA believes that the employee is triggered. This would achieve the composition of some products and some threshold established by Congress intent of the TRI program, while management practices. EPA believes serves the purposes of EPCRA section minimizing the burden imposed upon that while some facilities in the bulk 313. For purposes of section 313, the reporting facilities and the state and petroleum industry have operations that facilities with fewer than 10 ‘‘full-time’’ federal offices that process these reports. are reasonably consistent, others may employee equivalents are not subject to Another commenter described the not. EPA also believes that the same any of the EPCRA section 313 reporting releases from petroleum bulk stations as situation exists within the requirements. For purposes of section being consistent from year-to-year and manufacturing sector, although perhaps 313, a full-time employee is defined as therefore, if EPA must have SIC code to a lesser extent. EPA recognizes that 2,000 work hours per year and the 5171 facilities report to TRI, it should one of the benefits of TRI information is employee threshold is based on the total require a one-time filing by such its annual collection of information number of work hours expended per facilities with an obligation to amend which allows interested parties to year. In order to determine the number that filing if there is a significant change access and evaluate year-to-year of full-time employees working at a at a facility. fluctuations by facilities or industry facility, all hours worked by all EPCRA section 313(i) provides EPA groups. EPA believes that to provide employees during the calendar year, with limited authority to modify the this benefit, annual reporting of including contract employees and sales reporting frequency and requires EPA to information is generally necessary. and support staff working at the facility, follow a complex administrative Further, EPA believes that while are totaled. The total number of hours procedure to do so. To modify the activities may be relatively standard worked during a calendar year is then reporting frequency, EPA must first throughout an industry, and for a divided by the ‘‘full-time’’ employee notify Congress and then delay particular facility, repeated routinely, it number of 2,000 and if the result is 10 initiating the rulemaking for at least 12 is fairly rare for amounts of chemicals or greater, then the facility has exceeded months. In addition, EPA must make a or products not to change. EPA also the employee threshold under section specific finding; EPCRA section does not believe that most facilities 313. The application of the employee 313(i)(2) requires EPA to: would desire that data from a previous threshold to personnel based at the year be applied to a facility’s report for facility applies a relatively consistent (A) make a finding that the modification is another year without prior review by the degree of equity in reporting. Even consistent with the provisions of subsection facility. EPA also believes that relatively though this threshold may exclude some (h) of [section 313] based on- consistent operations would reduce the (i) experience from previously submitted facilities who manage and release toxic chemical release forms, burden on facility’s annual calculations significantly larger amounts with fewer (ii) determinations made under paragraph in meeting reporting requirements employees, EPA is not at this time (3). under section 313. Therefore, EPA aware of another mechanism that can be believes that, at this time, the best and implemented fairly across the program. EPA believes that the determinations it most accurate means of providing TRI At this time, EPA believes that a currently could make pursuant to data is to require each facility in this modification to this threshold, such as paragraph (3) would not support a industry sector to submit that an exclusion for delivery operators or modification, because the Agency does information themselves annually. ‘‘non-process’’ related staff, would not have sufficient information to make Other commenters made various potentially lead to greater inequalities in the necessary findings in paragraph (3). statements regarding the benefits how reporting requirements are applied. Specifically, paragraph 3(B) provides derived from the reporting anticipated The comment raising issues with that EPA must determine: from the bulk petroleum industry. Many facilities within the petroleum the extent to which information is (i) of these commenters note that greater distribution industry that have readily available to potential users from other benefits could be derived by spending employee numbers that fluctuate above sources, such as State reporting programs, the resources that reporting will require and below the section 313 threshold, and (ii) provided to the Administrator under on other more environmentally describes a situation that also exists another Federal law or through as State beneficial activities. Another within the manufacturing industry and program. commenter stated that residents around that has affected their obligations under As EPA has noted elsewhere in this their facilities have not asked for this the EPCRA section 313 reporting preamble, EPA does not believe that information and that very little is requirements since the TRI program has equivalent information is publicly actually emitted from their facilities. been in place. While it may be the case available in the same manner as TRI This commenter states that their larger that the petroleum distribution industry data. Nor is it clear that EPA would bulk petroleum storage facilities with is particularly subject to employee have sufficient information to make the submerged loading and vapor recovery fluctuations, it may also be true that necessary findings pursuant to EPCRA devices have throughput of their product and customer section 313(i)(3)(A) and (C) because approximately 1.4 million gallons of 23876 Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations gasoline and that their operations emit not believe that the estimated annual reporting have not been adequately approximately 800 pounds of volatile releases characterized above are addressed. NACD does not support organic compounds (VOCs) annually. representative of the petroleum inclusion of SIC code 5169 and stated This represents 2.1917 pounds per day, distribution industry (Ref. 15). that ‘‘if the Agency feels that it lacks which they claim is less than the VOCs 7. Chemical distributors. EPA is adequate information to make such a emitted from 1 gallon of applied oil base adding to the list of industry groups decision at this time, NACD urges the paint. covered under EPCRA section 313, EPA to defer consideration of SIC code While a particular facility or company facilities operating within SIC code 5169 facilities until a partnership can may not have received any requests for 5169, Wholesale Nondurable Goods— form to develop a common-sense information on their chemical releases Chemicals and Allied Products, Not alternative to reporting to satisfy the and waste management practices, EPA Elsewhere Classified. Many of the major goal of right-to-know and considerations has received numerous comments issues raised in comments concerning of NACD facilities. supporting the extension of section 313 the addition of SIC code 5169 related to EPA believes that it has adequate reporting requirements to those preproposal outreach activities information to decide whether SIC code industries included in EPA’s proposal, conducted by EPA with the chemical 5169 meets the statutory standard for including SIC code 5171. For example, distribution industry. These comments addition. EPA considered existing data EPA received comments from a state and others specifically relating to reported under state regulations, in environmental agency and from a public chemical distributors are addressed addition to industry specific interest group encouraging EPA to below. Other more general issues were information, and concluded that include facilities in SIC code 5171 in addressed in separate sections within facilities operating within the chemical this rule. Specifically, the comments this preamble. EPA has provided greater distribution industry manage significant submitted by the public interest group detail in comments summarized and volumes of EPCRA section 313 listed stated that some toxic chemicals Agency responses in the Response to toxic chemicals, which may result in contained in petroleum products, Comments document (Ref. 15). relevant information on releases and namely toluene, are now detectable in Many individual chemical wholesale wastes managed that would beneficially ambient samples in the Phoenix, AZ distribution companies make three contribute to furthering a right-to-know area and stated that it would have been general points in their comments: (1) data base. As noted in the proposal (see extremely useful to have had TRI EPA conducted almost no outreach to 61 FR 33599-33600), EPA believes that reports from bulk petroleum facilities chemical distributors before issuing the many facilities within SIC code 5169 located in the area for risk assessments proposed rule, (2) the chemical clearly conduct EPCRA section 313 conducted by the state. distribution industry should be given reportable activities. EPA believes that With regard to the commenter’s more time to gather data and respond to existing guidance will transfer directly estimated emissions, the amount of EPA, and (3) EPA should eliminate to assist facilities within this industry in product throughput described is far chemical distributors from this rule if making accurate threshold below the levels EPA believes are EPA plans to make 1997 the first determinations and to develop representative of the average reporting year under the rule. reasonable reporting estimates. distribution facility. EPA does not EPA believes that adequate notice was However, EPA invites the industry to believe that the estimated annual provided regarding the Agency’s assist in efforts to develop more specific releases characterized by the commenter intention to expand the EPCRA section guidance tailored to facilities within are representative of the petroleum 313 reporting requirements to several their industry sector as additional distribution industry and instead, refers additional industries, including the bulk reporting needs are identified. EPA will the commenter to other sources chemical distribution facilities initiate a stakeholders process to discuss including comments submitted by an operating in SIC code 51. EPA also this and other issues. industry trade association. Estimates believes that adequate opportunity Comments submitted by NACD refer from a member survey conducted by a existed for representatives from this to a letter they sent to EPA dated July trade association found that a typical industry, and any of its member 25, 1996, which states that they believed bulk plant had an average throughput of companies, to have contacted EPA and a member survey was needed because 9.4 million gallons per year. requested discussions on EPA’s intent to ‘‘EPA appears to be relying upon Additionally, EPA questions whether add SIC code 5169 to the EPCRA section incorrect data or assumptions about the the facilities operated by the 313 list of covered facilities. EPA industry.’’ The commenter, along with commenter, a regional agricultural addresses these comments in greater the SBA, refer to EPA’s use of data supply and grain marketing cooperative detail in the Response to Comments collected by Massachusetts’ Toxic Use that have bulk petroleum storage and document (Ref. 15). As noted in Unit Reduction Act (TURA), which are distribution elements, are properly V.D. of this preamble, EPA is not similar to the data collected by TRI and classified as SIC code 5171 (bulk making 1997 the first reporting year. which collect information from the petroleum facilities) as opposed to SIC The National Association of Chemical chemical distribution industry. Both code 5191 (farm supplies) based on Distributors (NACD) asserts that EPA’s commenters focus on the accuracy of primary economic activity. If they are lack of consultation with the industry one submission reported by one more appropriately classified as SIC implies that EPA did not have access to chemical distribution facility in the code 5191, it would be inappropriate to accurate information on several Massachusetts data set, which EPA compare these facilities to those whose important factors used in EPA’s included in limited summary statistics primary function involves bulk decisonmaking. According to NACD, that appear in the preamble to the rule. petroleum distribution. EPA also such questions as whether additional EPA generally disagrees with these questions whether the commenter’s data exist on uses, releases, and other commenters. While it is true that on facilities would be subject to EPCRA waste management; what activities use December 6, 1996, the chemical section 313 reporting requirements, significant volumes of EPCRA section distribution facility in question even if some of their facilities primarily 313 toxic chemicals; how many of these requested a revision to a data function as petroleum distribution might meet reporting thresholds; and submission to Massachusetts for the facilities. For these reasons, EPA does whether data are available to assist in 1992, 1993, and 1994 reporting year, to Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations 23877 report significantly lower methyl ethyl should be required to report their operations conducted at elevated ketone (MEK) releases, EPA disagrees releases and other waste management pressures by facilities in SIC codes 20- that this demonstrates that EPA had activities when thresholds are exceeded. 39.’’ EPA disagrees with the commenter insufficient information about the An industry trade association argues that the activities conducted in SIC industry to support the addition of SIC that EPA’s screening analysis for codes 20 through 39 are limited to the code 5169. The particular facility facilities within SIC code 5169 is flawed reactive-type operations described by discussed by the commenters reported because it defines chemical distributor’s the commenter. There are many non- lower releases of MEK, they did not reformulation and repackaging reactive processing activities that occur report that they do not ‘‘manufacture,’’ operations as ‘‘processing’’ under in SIC codes 20 through 39, such as ‘‘process,’’ or ‘‘otherwise use’’ any listed EPCRA section 313. NACD disagrees paint formulation. Further, EPA chemicals, or that they should have that these activities are similar to the disagrees that ‘‘blending’’ is filed no reports for the past years. The operations of SIC codes 20 through 39, synonymous with ‘‘chemical reaction.’’ specific amounts of releases reported which result in reportable information EPA believes that there is little, if any, were essentially irrelevant; EPA did not on releases and waste management overlap between the two terms. In any project releases, and determine on that activities. NACD therefore claims that event, reformulation and repackaging basis whether candidate industries met SIC code 5169 does not satisfy the activities clearly fit within the the statutory standard. Rather, the Agency’s ‘‘activity factor.’’ NACD refers processing definition and therefore meet TURA data were used to further support to section 313(b)(1)(B) and emphasizes EPA’s ‘‘activity factor.’’ The fact that EPA’s determination that SIC code 5169 that any addition is limited to ‘‘the some chemical distributors do not facilities are reasonably anticipated to extent necessary to provide that each conduct activities that would be have involvement with one or more SIC code is relevant to the purposes of reportable threshold activities under listed chemicals, to process listed the act.’’ NACD repeats a portion of section 313 is not a reasonable basis to chemicals, and to file Form R reports EPA’s summary statement from the not add those that do conduct such that could be expected to contain proposed rule (see 61 FR 33599) that activities. release data. discusses the similarity of activities Most commenters from the chemical One commenter questions whether conducted in the manufacturing section distribution industry requested that facilities in SIC code 5169 generally to those conducted in SIC code 5169. their industry either be exempted from have the types of product transfer and Many other commenters from this this rulemaking, be granted an extension release tracking systems or programs in industry sector claim they conduct no of the comment period, or that EPA place to accurately track fugitive ‘‘processing’’ activities. defer reporting for their industry for at emissions and indicated that it would EPA disagrees with the commenter. least one year. The request for a be difficult to begin tracking this type of EPA’s interpretation and application of deferment was primarily based on the information by January 1, 1997. the statutory standard for the purposes lack of earlier involvement with EPA EPA does not disagree that many of of this rulemaking and how industries prior to publication of the proposal. A the trade association’s members may not were screened and selected for similar comment was made by a trade have the type of tracking system inclusion in this rulemaking is association which stated that neither currently in place that the facilities may discussed in detail in Unit V.A. through they nor their membership had adequate want to implement, but emphasizes that V.C. of this preamble. time to evaluate the regulatory the EPCRA section 313 reporting Contrary to comments submitted on alternatives suggested by EPA. A requirements require only the facility behalf of a trade association, EPA lengthier discussion on the issue of use its best available information and believes that facilities in SIC code 5169 deferral can be found in Unit V.D. of estimation techniques. However, EPA do conduct activities that are similar to this preamble. believes that most facilities have some those performed and subsequently As stated previously, EPA believes sort of tracking system in place to track reported by manufacturing facilities sufficient notice was provided to the their products. If additional tracking such as ‘‘processing’’ a toxic chemical as chemical distribution industry so that it systems, or even any tracking systems, a formulation component or could adequately respond to issues are not in place on the date that these repackaging. Based on 1994 TRI data, raised in the proposal, including the requirements take effect January 1, 1998, manufacturing facilities submitted alternatives suggested by EPA. EPA the industry is required only to provide 18,465 forms indicating a toxic chemical believes that this industry is uniquely the best estimates that can be made was ‘‘processed’’ as a formulation well informed with regard to based on existing business information. component and 3,782 forms indicating considering the various issues raised by A number of commenters argue that a the toxic chemical was repackaged. EPA’s proposal; for example, some of significant portion of the industry These are the types of activities that the alternatives posed by EPA were engages solely in product distribution EPA has identified as being performed taken from the chemical distribution and conducts no ‘‘processing’’ activities. by facilities within the chemical industry’s reporting experience in EPA agrees with the commenter that distribution industry and EPA’s Minnesota. In part as a result of requests a significant portion of the industry determination is confirmed in from representatives from the chemical simply engages in product distribution comments submitted by a trade distribution industry, EPA did extend without any actual processing taking association which stated, ‘‘SIC code the comment period for 30 additional place, and such facilities should not 5169 facilities generally engage in . . days in order to allow commenters more have to file a report. However, EPA has .operations includ[ing]: (1) distributing; time to prepare their comments. In also documented that many facilities (2) warehousing; (3) repackaging; and addition, these requirements will not within SIC code 5169 conduct (4) blending or formulating.’’ This take effect until January 1, 1998. reformulation and repackaging activities commenter notes that ‘‘blending’’ in this As part of EPA’s obligation under the which are ‘‘processing’’ activities. This context refers to creating products by Regulatory Flexibility Act (RFA), several is confirmed by other comments adding two or more precursor chemicals alternatives were proposed for facilities received from the industry. EPA through a simple, non-reactive mixing operating within SIC code 5169, due to believes that these facilities engage in process at ambient pressure,’’ which potential economic impacts estimated to reportable threshold activities and they compare to ‘‘reactive or synthetic result from this action. Some of the 23878 Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations commenters address these alternatives also EPA noted in the proposal that it programs. Chemical wholesalers are but raise concerns regarding the actual may not have sufficient information currently required to report actual relief that would be provided. One of about releases (both types of chemicals throughput under the Massachusetts the alternatives suggested by EPA for and release levels) with which to justify Toxic Use Reduction Act, and yet the this industry was to expand eligibility of expanding the alternate threshold commenters have neither asserted, nor the Alternate Threshold, found at 40 eligibility for this industry group. EPA shown that any actual harm has CFR 372.95. A trade association stated has not received any information since resulted, nor otherwise provided that the alternate threshold reporting the publication of the proposal to examples to substantiate their assertions option currently in place ‘‘does little’’ to convince the Agency that it has of the serious CBI problems that would ease the burden on facilities in SIC code sufficient information to support the result from TRI reporting. The 5169 for the reason that many chemical necessary findings. Indeed, the commenters are also currently required warehousing facilities often exceed the Massachusetts TURA data indicates that to report release data in Arizona and 1 million pound threshold that limits its facilities in SIC code 5169 are often Minnesota; according to the application. SBA also proposed that this below the 1 million pound threshold. commenters, this should allow reporting option be revised. Until EPA gains additional experience competitors to back-calculate EPA believes that each of the with the existing Alternate Threshold throughput, yet the commenters have alternatives suggested in the proposed and with the reporting from the newly not provided specific data or examples rule have significant drawbacks, while added industry sectors, the Agency does to substantiate their assertions that TRI offering questionable reductions in not believe that it is in a position to reporting would release CBI. Further, burden. Individual alternatives are expand the eligibility for this reporting the chemical wholesalers asked discussed in detail in EPA’s Response to option. EPA has committed to review Minnesota to allow them to use a simple Comments document (Ref. 15). the Alternate Threshold in light of the method of estimation (emission factors) EPA does not believe a revision of the Agency’s additional experience with which would appear to make back- existing Alternate Threshold reporting this reporting option and with the calculation easier; again, they have option is appropriate at this time. reporting from the newly added shown no actual harm resulting from Currently this reporting option allows industries. reporting to the Minnesota TRI. The facilities which do not exceed 500 Numerous comments were also commenters also currently report under pounds of annual reportable amounts to submitted that raised concerns over the section 312, which publicly releases apply a 1 million pound manufacture, issue of confidential business information that could theoretically be process, or otherwise use threshold on information (CBI). A trade association used to calculate throughput, and they a per chemical basis (referred to as an commented that none of the small have not provided any information or alternate threshold). This threshold is business alternatives presented in the examples to support their allegations. In far greater than the existing 25,000 proposal, offered acceptable options for addition, there are facilities that have a pound manufacture or process protecting CBI. The alternatives primary SIC code within 20 through 39, threshold, or the 10,000 pound presented by EPA included an but that also have establishments at otherwise use threshold. If a facility expansion of the range values available their facilities that fall within SIC code does not exceed the 1 million pound for reporting, a modification of the data 5169. These facilities have not made a alternate threshold then it may submit to be submitted such that EPA could disproportionate number of trade secret an abbreviated form, Form A, rather extrapolate estimates of releases and claims. than a full Form R. other waste management for the EPA is also not convinced that the EPA noted in the final rule industry and a reduction in data information reported on TRI would establishing the Alternate Threshold elements to be reported by facilities in necessarily permit competitors to back- that part of its rationale for establishing SIC code 5169. This commenter stated calculate. Notwithstanding the the Alternate Threshold was in response than none of EPA’s alternatives commenter’s assertion, facilities in SIC to the increased level of reporting that acknowledge or resolve the CBI code 5169 conduct activities other than was expected in response to the problems that they anticipate if repackaging; some product remains in addition of numerous chemicals and distributors are included in the TRI original containers, which is not industry sectors (59 FR 61489). This program. The type of throughput data, reportable. Consequently, without reporting option has only been in effect suggested in one of EPA’s alternatives, additional information, competitors for activities beginning on January 1, is claimed by the commenter to be a would not know what fraction was 1995. July 1, 1996, was the first core business activity and as such, actually reported. Elsewhere in its opportunity for facilities to apply this disclosure on Form R or any alternative comments, NACD also comments that reporting option. The Office of reporting system would allow reporting is very burdensome, in large Management and Budget (OMB) has customers, suppliers, and competitors to part because many variables influence authorized the information collection either learn directly or estimate releases, and they would have to period for this reporting alternative confidential information that in turn account for all of these variables in until June 1998, in order to provide the would reveal sensitive purchasing and compiling their reports. EPA disagrees Agency additional time to sufficiently marketing information that would with this characterization of reporting, evaluate the benefits of the existing jeopardize competitiveness. but notes that if this is accurate, it reporting option and propose any EPA does not agree that existing trade should not be possible for competitors adjustments through rulemaking, if secret provisions in EPCRA do not offer to back-calculate throughput, even with necessary. As EPA noted in the adequate protection for sensitive what NACD claims is a ‘‘reasonable proposal, EPCRA section 313(f)(2) business information, and that the degree of accuracy.’’ requires that any revision to the current existing reporting scheme is appropriate 8. Solvent recovery operations. EPA is reporting thresholds continue to capture for SIC code 5169. EPA believes that the adding to the list of industry groups a substantial majority of total releases of commenters’ assertions are inconsistent covered under EPCRA section 313, each listed chemical or chemical with the record developed from state facilities that operate within SIC code category. Because the facilities added in TRI reporting programs, and with the 7389, limited to facilities that are this rule have not reported in the past, EPCRA sections 311, 312, and 313 primarily engaged in solvent recovery Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations 23879 services on a contract or fee basis. EPA from threshold and release and other commenter claimed that in some cases received relatively few comments on the waste management determinations, standard methods do not exist for proposed inclusion of this industry. quantities of the chemical associated determining the amount of some EPCRA Several commenters do not support with activities not directly associated section 313 chemicals or compounds EPA’s addition of solvent recyclers. with the ‘‘primary’’ SIC code of the within a category. Several commenters support EPA’s facility. For example, a facility with a Generators that send hazardous waste proposal to add those facilities within primary SIC code of 4953 and a to facilities for treatment, recovery or SIC code 7389 that are primarily secondary SIC code of 7389 would not disposal provide RCRA manifests which engaged in solvent recovery activities. exclude from threshold determinations contain a variety of detail on the wastes One of these commenters notes that 36 those activities that occur within the they transfer. While this information is Superfund sites and 83 damage SIC code 7389 establishment. Nor provided as a means to satisfy incidents have been recorded as would a facility with one SIC code, e.g., associated RCRA requirements, EPA resulting from facilities involved in 4953, that conducted activities similar believes that in many instances this solvent recovery and hazardous waste to the activities conducted by solvent information can contain significant recycling activities. In many cases, the recycling facilities in SIC code 7389 be detail and can be useful in developing comments submitted by this industry able to exclude these activities from constituent specific estimates required raise issues that apply to more than this threshold determinations. under the EPCRA section 313 reporting industry and these have been addressed One commenter contends that the SIC requirements. Further, EPA believes that in other sections of this Notice. Major code classification system is being those facilities that receive hazardous redesigned as the proposed North issues relating to this industry are waste for the purposes of recovery, American Industrial Classification addressed below. In each case, EPA has treatment or disposal in many cases System (61 FR 35384, July 5, 1996). provided greater detail of comments and conduct additional analyses to ensure They state that as this redesign is responses in the Response to Comment that the waste they receive properly scheduled for implementation in 1997, document (Ref 15). meet their recovery, treatment or Safety-Kleen believes that by limiting EPA should postpone its addition of disposal specifications. In addition, the addition of solvent recycling industry groups to EPCRA section 313 comments provided by Laidlaw indicate facilities to those that are in SIC Code until the reclassification has been that waste generators provide waste 7389, EPA will exclude a significant completed and industries have had an handlers with information on the number of similar facilities that operate opportunity to evaluate their activities in other industries. The commenter under the new classification system. concentration ranges of constituents in believes that EPA should require EPCRA As stated in Unit V.I.3. of this waste. ‘‘Laidlaw utilizes a profile system section 313 reporting by all industries preamble, EPA will address the impact in order to obtain information from the that recover solvents received from off- of the revision of the current SIC code waste generator that is needed to site, irrespective of SIC code and structure based on the North American properly treat, store or dispose of the regardless of whether these facilities are Industrial Classification System on both hazardous waste. Variants of this type of commercial recovery facilities. industries added under this action and system is generally used by all members EPA disagrees with the commenter. those currently within the of the hazardous waste management EPA believes that identifying solvent manufacturing sector, after the revision industry. . .Profiles typically provide recyclers other than by SIC code would becomes final. information on RCRA hazardous cause confusion. Further, EPA believes Several commenters contend that constituents present in the waste, that through today’s action, particularly solvent recyclers should not be added to including concentration ranges.’’ in the addition of facilities in SIC codes EPCRA section 313 because they do not Laidlaw attached examples of these 5169, 4953, 7983 and through the have the same amount and type of profiles. For example the profile for original SIC code coverage, the majority information that the currently covered ‘‘Line Rinse Mop Water’’ lists the of facilities (in all SIC codes) conducting manufacturing facilities have to make following constituents: Water - 50-80%, solvent recovery operations that meet threshold and release and other waste Methanol - 0-5%, Ethanol - 10-20%, both the chemical and employee management determinations. They Acetone - 0-2%, Isopropanol - 3-15%, thresholds will be covered. As contend that manufacturing facilities Tetrachloroethylene - 0-1%, n-Butyl discussed in the Economic Analysis have a reporting advantage over solvent alcohol - 0-1%, Mineral spirits - 3-15 %, (Ref. 12) some facilities that conduct recovery facilities because the Pyrethroids - 0-1%, Dirt - 1-5%. This solvent recovery operations have a manufacturing facilities control the range information is analogous to the primary SIC code within 20 through 39, composition of the raw materials they information on Material Safety Data and therefore are already subject to purchase. They assert that Sheets (MSDS) that the manufacturing section 313. The commenter lists manufacturers know both the identity of sector uses to estimate the constituents facilities that conduct commercial the chemicals and their ‘‘exact of mixtures. For example, an MSDS for recycling activities that have primary concentrations or ranges.’’ In contrast, ‘‘Xylenes’’ lists the following SIC codes in 5169 or 4953 that by this they contend, the facilities that receive constituents: m-Xylene - 40-65%, o- rulemaking are being made subject to toxic chemicals in waste rely on Xylene - 15-20%, p-Xylene - 0-20%, the EPCRA section 313 reporting generator information and limited Ethyl benzene - 15-25%. Further, both requirements. analysis necessary to evaluate RCRA the proposed and final rules Facilities that are subject to the classifications. The commenters believe implementing the EPCRA section 313 EPCRA section 313 reporting this information is insufficient to make reporting requirements (52 FR 2115- requirements must consider all (non- the determinations necessary for 2116, 53 FR 4510-4511) and the 1995 exempted) manufacturing, processing, compliance with the EPCRA section 313 Toxic Chemical Release Inventory and use activities when determining reporting requirements. They believe Reporting Form R and Instructions (EPA threshold, release and other waste that inbound streams would have to be 745-K-96-001) provide guidance for the management quantities. Thus, a facility analyzed, and that the cost of this reporting of the components of with a primary SIC code of 20 through analysis, which has not been considered mixtures, given the following scenarios: 39, 5169, or 4953 would not exclude by EPA, would be prohibitive. One (1) The concentration range in known, 23880 Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations

(2) only the upper bound concentration 313, because information provided by meaningless. Other commenters offered is known, (3) only the lower bound the generators would already be suggestions that might improve how concentration is known, and (4) when available. solvent recovery facilities could report. no concentration information is known. The supplier notification One commenter stated that hazardous While for EPCRA section 313 reporting requirements are not being amended by waste manifests could be modified to purposes, a waste is not considered a this rulemaking. Supplier notification note if EPCRA section 313 chemicals mixture, the guidance for making applies to chemicals contained in have been reported by the generator. threshold determinations on the mixtures or other trade named products. Amounts that had been reported would components of mixtures can be applied EPA does not consider wastes to be then not be considered for reporting by to wastes. Although EPA agrees that ‘‘mixtures or trade name products.’’ the receiving facility, and amounts that facilities in SIC codes 20 through 39 Even if supplier notification could be had not would be included in the often control the composition of their applied, EPA disagrees with the receiving facility’s Form R report. raw materials, EPA disagrees that the commenter that supplier notification EPA does not believe that because level of information that facilities in SIC information would satisfy the purposes solvent recyclers use wastes as their codes 20 through 39 use to make of section 313 reporting. The input that information on the quantities threshold determinations is significantly information provided by supplier of chemicals that they process and different than the level of information notification requirements by itself may manage as waste cannot be represented that waste handlers, including solvent not be adequate for EPCRA section 313 on Form R. Nor does the commenter recyclers are expected to have to make reporting purposes. It includes the provide adequate rationale as to why a threshold determinations. notification that a section 313 chemical new form would be needed. The TRI Further, EPCRA does not require is contained in a mixture and the program has not focussed exclusively on additional monitoring or sampling in concentration in which it exists the ‘‘manufacture,’’ ‘‘processing,’’ or order to comply with the requirements provided it is above certain de minimis ‘‘otherwise use’’ of non-waste in the under EPCRA section 313. EPCRA levels. Information provided, as part of past. The Form R has captured section 313(g)(2) states: the supplier notification requirements, information on chemicals in ‘‘waste’’ may not accompany each shipment of a that have been manufactured, for In order to provide the information mixture, such as identical mixtures example chemicals that have been required under this section, the owner or operator of a facility may use readily being sent to the same receiving facility ‘‘coincidentally manufactured’’ often as available data (including monitoring data) multiple times within a year. The part of a waste stream (see the collected pursuant to other provisions of law, information once received is not discussion on ‘‘coincidental or, where such data are not readily available, required to be entered into any readily manufacture’’ elsewhere in this reasonable estimates of the amounts available format. Supplier notification preamble) and on waste that is involved. Nothing in this section requires the information is intended to assist combusted for energy recovery (this has monitoring or measurement of the quantities, facilities in making compliance been considered to be ‘‘otherwise used’’ concentration, or frequency of any toxic determinations under section 313, but it because it is a fuel, see the 1995 Toxic chemical released in the environment beyond is not a substitute for the calculations Chemical Release Inventory Form R and the monitoring and measurement required resulting in information on how Instructions (EPA 745-K-96-001), p. 23 under other provisions of law or regulation. associated wastes from mixtures are for a discussion of otherwise use EPA believes that the combination of managed. Supplier notification activities). Nor does EPA believe that information received with waste information alone does not answer the the ‘‘manipulation’’ that will be transfers and information developed by questions of how much of the chemical required to make threshold the recovery facility will enable solvent was received by the facility during the determinations from available recovery facilities to adequately year, or how much was released to air, information is significantly different determine their compliance water, land or how much was then from that done in the manufacturing requirements under section 313 and that transferred to another facility for sector. the additional waste management treatment. Thus, supplier notification EPA does not agree that waste information anticipated from these information in itself is not a surrogate management is the reverse of facilities will further the purposes of for TRI Form R information. manufacturing. For both the TRI. EPA also received comments that manufacturer and the recycling facility EPA has not included the cost of question whether the current Form R inputs come into the facility, a product consitutent analysis in its estimates of and its reporting elements will promote leaves the facility, and waste is often the the costs of reporting for SIC code 7389 adequate reporting from byproduct of the activities that occur at because, as discussed above, such nonmanufacturing industries. One the facility. As such, EPA does not analysis is not required. commenter states that Form R does not believe that a separate form is required Another commenter suggests that the readily lend itself to reporting data from for solvent recyclers. 40 CFR 372.45 supplier notification solvent recyclers, and that a separate Further EPA does not believe that requirements be applied to facilities that form may be necessary because solvent annotating hazardous waste manifests in generate and transfer to other facilities recovery facilities are involved in lieu of reporting under the EPCRA wastes containing EPCRA section 313 processes which are the reverse of those section 313 reporting requirements is a toxic chemicals. They contend that this performed by manufacturing facilities. viable option for a number of reasons. would assist the facility receiving the A solvent recycler receives waste and The information presented on a waste wastes containing EPCRA section 313 creates a product, and it is the product manifest is at the waste stream level. toxic chemicals in making section 313 that leaves the facility with non- While the manifest contains some reporting determinations. The recyclable materials remaining as waste. information on the constituents present commenter further states that if the This commenter states that without a in the waste, it does not identify the supplier notification requirements are modification to current reporting, the quantity of each individual constituent. extended in this way, there would no extent of data manipulation required to EPA does not believe that the level of longer be the need for receivers of the conform to Form R requirements may information present on a manifest can wastes to report under EPCRA section result in reporting that is essentially be used in lieu of TRI data. Also as Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations 23881 discussed elsewhere (particularly see 7389 is further limited is not consistent annual data regarding releases and other Unit V.F.2. of this preamble), EPA with the Office of Management and waste management of toxic chemicals believes that requiring both the Budget’s (OMB) SIC Manual. The from facilities in the industry groups generator of a toxic chemical waste and commenter contends that the citations included in this rulemaking. EPA a downstream manager of that toxic in the proposed rule appear to have discusses more fully other data sources chemical waste to report to TRI will not omitted a word. The OMB SIC Manual in the Economic Analysis (Ref. 12) and result in double counting. Each facility lists the subgroup of SIC code 7389 in the Response to Comments document will manage the waste differently, involved with solvent recovery as (Ref. 15). which will be reflected in how and what ‘‘Solvents recovery service on a contract Section 313 of EPCRA requires each facility reports. When a hazardous or fee basis.’’ The commenter believes manufacturing facilities to report waste facility receives waste from a that the phrase at Proposed 40 CFR annually their routine and accidental generator many activities may occur. 372.22(b), (b)(1), (b)(2), (b)(3)(I), and transfers and releases of listed toxic The waste may be stabilized, (b)(3)(ii) (see 61 FR 33618) should be chemicals and chemical categories. Data incinerated or in some other way modified to include the word ‘‘or’’ that reported under EPCRA section 313 are treated. As a result of these activities, was omitted. They believe that without contained within TRI and are accessible the amount finally deposited in a this change potentially affected parties to the public via electronic media (i.e., landfill may be significantly different would read the language to say that only CD-ROM and Internet) and printed from the amount of the toxic chemical contractual applications are subject to media. Data are reported annually, in waste that initially entered the the rule. allowing reporters and the public to facility. Releases to air and water as well EPA agrees with the commenter that monitor trends in releases, transfers, as transfers off-site for further waste the word ‘‘or’’ should be inserted in the and waste management activities. TRI is management will undoubtedly cause a phrase modifying SIC code 7389 in the unique among environmental data bases smaller quantity of the toxic chemical to language at proposed 40 CFR 372.22(b), because of the multimedia data it be reported as landfilled, while the (b)(1), (b)(2), (b)(3)(I), and (b)(3)(ii). EPA collects, and because it was specifically remainder will be captured as releases has incorporated this change. designed to facilitate public access. TRI is also unique in terms of its chemical to other media transfers off-site. The I. Miscellaneous Comments amount to be reported in the Form R as coverage, with over 600 toxic chemicals disposed in a landfill is the final 1. Duplication of reporting and chemical compound categories, amount of EPCRA section 313 requirements and available data. Many which exhibit a variety of adverse constituent that is landfilled, not the commenters from industry believe the health and environmental effects, amount received by the facility. Only in information that would be reported reported to TRI. the case of a direct transfer from the under EPCRA section 313 is not EPA currently maintains several other truck, barge, etc. to the landfill would necessary, since other sources of data data bases that are designed to support this number be similar. exist at the state and federal level which the enforcement and compliance efforts A comment from a trade association can provide the public and government of the Agency’s major program offices. recommended that recyclers be granted with the information necessary to Existing data sources include the TRI ‘‘credits’’ for wastes successfully understand the environmental Aerometric Information Retrieval reclaimed. The commenter does not consequences of industry activities. System (AIRS), the Permit Compliance explain what a ‘‘TRI-credit’’ is. Therefore, reporting would yield data System (PCS), the Biennial Reporting As stated in the proposed rule (61 FR which are either duplicative or System (BRS), and the Tier I and II 33607), EPA recognizes the beneficial unnecessary for informing the public reports submitted under sections 311 role that many solvent and other regarding the risks resulting from and 312. However, these alternate data chemical recyclers play in decreasing releases of toxic chemicals. A large sources do not provide an adequate the demand for raw materials. Current number of commenters, including substitute for the information reported EPCRA section 313 and PPA section environmental and community groups, to TRI, nor do they create the same 6607 reporting requirements are as well as private citizens, believe that incentives to implement pollution adequate to provide meaningful information is not generally available prevention measures that TRI does. information from facilities within the from many facilities in the proposed Currently available non-TRI sources of manufacturing sector that conduct industry groups on toxic chemical information cannot provide release and solvent recovery activities, and those releases, and therefore they support this transfer, inventory, or pollution reporting elements currently distinguish action. prevention data with the scope, level of among the various waste management EPA recognizes that facilities may be detail, and chemical coverage as data activities conducted on toxic chemicals. subject to other reporting requirements currently included in TRI. EPA’s review However, after experience with the at the federal and state levels. In of these data sources, summarized newly added industry sectors and enacting EPCRA, Congress recognized below, is presented in full in the subsequent review, EPA may conclude that information available under other Economic Analysis for this final rule that greater informational benefits could environmental statutes such as the CWA (Ref. 12). result by further distinguishing among or the CAA exists, but ‘‘has been a. Sources of air release data. EPA’s waste management practices that difficult to aggregate and interpret, Office of Air and Radiation (OAR) uses recirculate toxic chemicals in which has made it difficult, if not the AIRS Facility Subsystem (AFS) to commerce. The commenter poses an impossible, for the public to gain an track emissions of pollutants that have interesting concept that EPA is willing overall understanding of their toxic been shown to be detrimental to public to take into consideration and EPA chemical exposure.’’ (H.Rep. 99-975, health (known as the criteria invites the industry to develop the 99th Cong., 2nd Sess., p. 5212 (October pollutants). States are required to report concept more fully. EPA will initiate a 7, 1986)). EPA believes that very little ambient air quality data on a quarterly stakeholders process to discuss this and additional data exist which are basis, and point source data on a yearly other issues. comparable to EPCRA section 313 data, basis, for the criteria pollutants listed. Safety-Kleen states that the wording and has found that other available States may also use the AIRS system to of the 5 citations where the SIC code information does not typically include store data on other pollutants in 23882 Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations addition to the six criteria pollutants. be used to estimate total releases, 313 toxic chemicals contained in However, AFS data do not duplicate TRI although there are several complicating various concentrations in a non- air release data primarily because the factors in producing such an estimate. hazardous matrix, such as water. Out of majority of air toxics are not reported in In contrast, EPCRA section 313 requires the over 600 chemicals and chemical AIRS. Currently, there is no requirement that facilities report total direct releases categories on the current EPCRA section for states to report hazardous air to receiving streams or water bodies. 313 toxic chemical list, 185 can be pollutants (HAPs)2 to AFS, although Releases to water are reported in pounds mapped to a single unique RCRA waste some states with toxics reporting per year and include the name of the code. requirements that exceed federal receiving stream or water body. The PCS BRS requires individual reporting of requirements may upload their air data base does not substitute for the data underground injections on-site, on-site toxics information to AFS. In contrast, reported to TRI. releases to land, transfers to off-site EPCRA section 313 currently requires c. Sources of underground injection, locations as well as discharges to that facilities report fugitive (non-point) on-site releases to land, discharges to POTWs, as does TRI. However, only half air emissions and point source (stack) POTWs, and transfers to off-site of the volume reported in BRS can be air emissions of over 600 chemicals and facilities data. Under section 3002(a)(6) assumed to identify individual chemical categories. Since data on of the Resource Conservation and chemicals. In addition, the waste chemical releases in AFS are limited to Recovery Act, facilities that generate an classification system results in waste the six criteria pollutants, an amount of hazardous waste that exceeds quantities being reported to BRS that do application known as ‘‘SPECIATE’’ is a defined threshold are required to not identify quantities of the individual required to estimate specific toxic submit biennial reports on that waste to chemicals. The quantity reported to BRS emissions, but it allows the estimation EPA (or to state agencies that run RCRA represents the quantity of the entire of only 18 percent of section 313 listed programs). Data are reported to the waste stream, and not individual chemicals. In addition, SPECIATE states and EPA regions, which then chemicals. suffers from technical limitations and is provide it to EPA headquarters. d. Sources of chemical inventory data. not recommended for the development Information is entered into the Biennial EPCRA sections 311 and 312 requires of toxics inventories. In contrast, TRI Reporting System (BRS) and is that states establish plans for local provides the public with data on the maintained by EPA’s Office of Solid chemical emergency preparedness and release of more than 600 toxic chemicals Waste and Emergency Response that inventory information on hazardous and chemical categories, including (OSWER). The data base provides an chemicals be reported by facilities to HAPs, that have been determined to overview of the progress of the RCRA state and local authorities. EPCRA pose a risk to public health and the program through tracking trends in section 312 outlines a ‘‘two-tier’’ environment. hazardous waste generation and approach for annual inventory b. Sources of water release data. management. Large quantity generators reporting. All facilities that store EPA’s Office of Enforcement and (LQGs) and treatment, storage, and hazardous or extremely hazardous Compliance Assurance (OECA) disposal facilities (TSDs) are required to substances must submit at least a Tier currently manages the Permit report every 2 years. BRS contains data I and often a Tier II form (the Tier I form Compliance System (PCS) which tracks for about 23,000 LQGs and 4,000 TSDs. collects a subset of the information the enforcement status and permit BRS requires reporting of several data collected on the Tier II form). Tier I compliance of facilities regulated under elements including: underground requires reporting on broad categories of the National Pollutant Discharge injection, on-site releases to land, and physical hazards such as fire, sudden Elimination System (NPDES). PCS off-site transfers. release of pressure, and reactivity, as tracks all point source discharges to BRS contains data on hazardous well as acute and chronic health surface waters, but does not include wastes as defined by RCRA, which are hazards. Upon request by a Local indirect releases such as discharges to designated as either ‘‘listed waste’’ or Emergency Planning Committee (LEPC), POTWs. As required under the CWA, ‘‘characteristic waste.’’ Listed wastes State Emergency Response Commission dischargers report compliance with have been identified as hazardous as a (SERC), or fire department, a facility their NPDES permit limits through result of EPA investigations of particular may be required to submit the more Discharge Monitoring Reports (DMRs). industries or because EPA has detailed Tier II form, which requires Data collected via DMRs are entered specifically recognized a chemical chemical specific information by CAS into PCS. Only data reported by ‘‘major waste’s toxicity. Characteristic wastes number. Approximately 33 states dischargers’’ are entered into the data are determined hazardous because they require regulated facilities to submit base. exhibit one or more of the following Tier II forms, and most of the remaining PCS is a permit tracking system and ‘‘characteristics’’: ignitability, states recommend that facilities submit therefore does not substitute for TRI corrosivity, reactivity, or toxicity. All Tier II forms. release data. In addition, PCS discharge RCRA wastes are designated by a waste While both the Tier II form and the data are only available for major code rather than a Chemical Abstract Form R collect information on the name facilities, and are reported in terms of Service (CAS) number, and not all waste of the facility, the facility’s address, the PCS parameters, not specific chemicals. codes used in BRS reporting map parent company, the parent company’s In addition, only those chemical directly to a single, unique chemical. A address, the name of the chemical, the CAS number, and both contain a data parameters actually specified in the RCRA waste stream may be reported element on the maximum amount of the facility permit have monitoring under multiple waste codes, but at chemical on-site (the Form R data requirements. In some cases, data may present there is no mechanism to element is ‘‘maximum amount of the be reported in units of concentration apportion the waste stream volume to toxic chemical on-site at any time rather than units of mass. If flow rates particular waste codes where multiple during the calendar year;’’ the Tier II are also reported, concentration data can codes are reported. Also, the quantities of specific chemicals cannot be data element is ‘‘maximum daily 2Hazardous Air Pollutants (HAPs) are defined in determined from reported quantities of amount in pounds’’), the remainder of section 112 of the Clean Air Act (CAA). Section 112 waste streams, which contain various the information collected is different. lists 189 HAPS, of which 181 are also listed in TRI. constituents including EPCRA section The Tier II form collects information on Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations 23883 the physical health hazards associated 2. Limits of TRI data. A number of under EPCRA section 313 by classifying with the chemical, additional commenters identified shortcomings in their facilities in non-covered SIC codes. information on inventory, and specific the TRI reporting system which they say These facilities may ‘‘manufacture,’’ information about the conditions under cause public misunderstanding of the ‘‘process,’’ or ‘‘otherwise use’’ listed which the material is stored (e.g., information and limit its utility. For toxic chemicals in a manner similar to temperature and pressure) and the example, a number of commenters state covered facilities, but since the facilities locations of the chemical at the facility. that the existing TRI system is of limited can claim that 51 percent or more of EPCRA section 313 does not require the utility in identifying risks and may their economic activity is derived at an collection of any of this information; mislead the public about risk, because it establishment within a non-covered rather, it focuses on information focuses on volume alone without regard primary SIC code, reporting is not concerning releases and other waste to factors such as chemical toxicity, required. management activities. bioavailability, concentration, and EPA recognizes that some facilities In summary, existing EPA data bases exposure potential. Other commenters with more than one establishment are do not substitute for the multi-media state that EPA should devote resources able to avoid reporting under EPCRA data reported under EPCRA section 313. to improvements in such areas as section 313 through a determination In addition to the limited chemical compliance, data quality assurance, that one or more establishments, universes encompassed by these chemical list coverage, outreach and classified in non-covered SIC codes, are alternate data sources, the program data data dissemination prior to expanding responsible for a majority of the bases do not substitute for TRI data in the TRI program to include additional economic activity at that facility. EPA terms of frequency of reporting, industries. interpreted SIC coverage in this manner reporting thresholds, and ease of use. EPA acknowledges that there is room to remove ambiguity and confusion EPA is committed to improving the for improvement and refinement of the created by the linkage between facility usefulness of the data it collects, and TRI reporting system. Since the and SIC code at the time of the final maximizing public access. TRI is a inception of the program, EPA has rulemaking originally implementing cornerstone of this effort, and serves as worked continually to improve the EPCRA section 313 (see 53 FR 4502). a model for toxic chemical release data reporting system and the ability of the EPA believes that today’s rulemaking collection and dissemination. general public and others to use the partially addresses the commenters’ information contained in it. In addition e. State data sources. EPA recognizes concern by adding other SIC codes to to ongoing programs of enforcement, that facilities may face various reporting the list of covered SIC codes in EPCRA compliance assistance, data quality requirements at the state level. EPA section 313, even while acknowledging assurance, data use assistance, and examined available state data, but did the weaknesses and limitations of the general outreach, EPA has several not find data comparable to that present SIC code system. A revision of initiatives now underway which collected under EPCRA section 313. As the SIC code system, called the North address the commenters’ concerns, American Industry Classification of 1994, only Arizona, Massachusetts, including: revising the Form R to System (NAICS), has recently become Minnesota, and Wisconsin required or address concerns about the reporting of effective (61 FR 57006), and may were planning to require expanded state underground injection and land address the commenters’ concerns by TRI reporting to include facilities releases; screening the EPCRA section developing production-oriented outside of SIC codes 20 through 39. 313 chemical list to ensure that all listed Some states require facilities to report chemicals meet the statutory listing classifications. EPA believes that, at release information beyond that criteria; conducting a major assessment present, abandoning SIC codes (or required by the federal TRI program. of the accuracy of data submitted by future NAICS codes) entirely would Overall, however, the additional data facilities; and hosting a national create significant problems in terms of collected by states are far less complete conference to discuss and promote TRI compliance and enforcement, and and uniform than would be available data use. EPA does not agree that adding would lead to an unmanageable under an expanded EPCRA section list non-manufacturing industries will reporting system. EPA will continue to of covered facilities. A number of states exacerbate any existing deficiencies in consider future expansions, and and regional agencies also maintain or misperceptions resulting from the methods of more completely capturing their own air emissions inventories, TRI reporting program. To the contrary, toxic chemical releases and waste including California and the Great Lakes EPA believes that this expansion, as management information. states. Difficulties in replicating TRI well as the recently completed 4. Compliance with NEPA. Several data from these sources include expansion of the EPCRA section 313 commenters contend that EPA failed to variations in the type of data collected, toxic chemical list, will improve the comply with the National and the fact that only some states utility of the TRI data by providing the Environmental Policy Act (NEPA), maintain these types of inventories. public more complete information about which requires that the agency prepare In summary, existing EPA data bases toxic chemicals in their communities. an Environmental Impact Statement for do not substitute for the multi-media EPA will initiate a stakeholders process any major federal action having a data reported under EPCRA section 313. to discuss this and other issues. significant impact on the environment, In addition to the limited chemical 3. SIC code loophole. Several or that it issue a finding of no significant universes encompassed by these commenters, including the Working impact due to the action. Commenters alternate data sources, the other EPA Group on Community Right-to-Know assert that the proposed TRI industry data bases do not substitute for TRI data and a number of other environmental expansion rule is not exempt from in terms of frequency of reporting, organizations, urge EPA to abandon the NEPA based on functional equivalence, reporting thresholds, and ease of use. SIC code-based system of coverage because it has not provided the public State data sources are limited and vary under EPCRA section 313 or to lower with a meaningful opportunity to widely in coverage as well. EPA is the economic determination for multi- participate in the evaluation of committed to improving the usefulness establishment facilities. These environmental factors, or discussed the of the data it collects, and maximizing commenters believe that a number of alternatives it may have considered, public access. facilities are able to avoid reporting including a no-action alternative. 23884 Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations

EPA does not believe that today’s to reflect those costs. The market may adding the selected industry groups to action is subject to the requirements of also fail to efficiently allocate resources the TRI program. the National Environmental Policy Act. in cases where consumers lack B. Existing Reporting Requirements Although the commenter is correct that information. For example, where EPCRA does not contain a statutory information is insufficient regarding The Toxics Release Inventory exemption from NEPA, the procedures toxic releases, individuals’ choices contains multimedia data on followed by EPA in promulgating this regarding where to live and work may environmental releases and other environmental regulation have provided not be the same as if they had more management activities for over 600 toxic the functional equivalent of the complete information. Since firms chemicals. While no other national data procedures required by NEPA-- ordinarily have a disincentive to base is comparable to TRI, several other examination of the environmental provide information on their releases data sources exist that contain some impacts of the proposed rule and and other waste management activities media-specific environmental data. alternatives to it, with an opportunity involving toxic chemicals, the market Sources maintained by EPA include the for the public to comment on the fails to allocate society’s resources in Aerometric Information Retrieval proposal and consideration of those the most efficient manner. System (AIRS) Facility Subsystem or comments. Under these circumstances, This rule is intended to ameliorate in AFS, which tracks air emissions from the courts have applied the functional part the market failure created by the industrial plants; the Permit equivalence doctrine to hold that EPA’s lack of information available to the Compliance System (PCS), which tracks action is not subject to NEPA’s public about the release and other waste permit compliance and enforcement procedural requirements. See Western management activities involving toxic status of facilities regulated under the Nebraska Resources Council v. EPA, 943 chemicals, and to help address the National Pollutant Discharge F.2d 867, 871-72 (8th Cir. 1991); externalities arising from the fact that Elimination System (NPDES) under the Alabama v. EPA, 911 F.2d 499, 504 market choices regarding toxic CWA; and the Biennial Reporting (11th Cir. 1990); Limerick Ecology chemicals have not fully considered System (BRS), which tracks hazardous Action, Inc. v. NRC, 869 F.2d 719 (3d their external effects. Through the waste generation and disposal. Other Cir. 1989); Wyoming v. Hathaway, 525 provision of such data, TRI overcomes sources include the chemical inventory F.2d 66, 70 (10th Cir. 1975), cert. firms’ disincentive to provide that data collected under sections 311 and denied, 426 U.S. 906 (1976); South information, and thereby serves to 312 of EPCRA, and Clean Air Act Title Terminal Corp. v. EPA, 504 F.2d 646, inform the public of releases and other V operating permits. TRI data cannot be 676 (1st Cir. 1974); Portland Cement waste management of toxic chemicals. replicated using these sources. Nor Ass’n v. Ruckelshaus, 486 F.2d 375, 380 Individuals can then make choices that could information from these data bases (D.C. Cir. 1973), cert. denied, 417 U.S. better optimize their well-being. Choices be combined to form a satisfactory 921 (1974). made by a more informed public, approximation of the data contained in including consumers, corporate lenders, TRI, because none of these sources VI. Economic Analysis and communities, may lead firms to provides the release and transfer or EPA has prepared an economic internalize into their business decisions pollution prevention information that is analysis of the impact of this action, at least some of the costs to society reported to TRI. In addition, these other which is contained in a document relating to their releases and other waste data collections differ in the information entitled Economic Analysis of the Final management activities involving toxic collected, chemical and facility Rule to Add Certain Industries to chemicals. In addition, by helping to coverage, applicable various thresholds EPCRA Section 313 (Ref. 12). That identify hot spots, set priorities and and reporting frequencies, and how the document is available in the public monitor trends, TRI data can also be data are reported. The definitional docket for this rulemaking. The analysis used to make more informed decisions consistency provided by TRI creates assesses the costs, benefits and regarding the design of more efficient important advantages over any data associated impacts of the rule, including regulations and voluntary programs, system that might be assembled from potential effects on small entities and which also moves society towards an non-TRI sources. These other data the environmental justice implications optimal allocation of resources. sources perform the functions for which of the rule, among others. The major If EPA were not to take this final they were designed, but they were not findings of the analysis are briefly action adding industries to TRI, the intended to serve the same purposes as summarized here. market failure (and the associated social TRI. Therefore, EPA has concluded that costs) resulting from the lack of while there may be some degree of A. Market Failure information on the use and disposition overlap between the reporting required One purpose of federal regulations is of toxic chemicals would continue. EPA under EPCRA section 313 and PPA to address significant market failures. believes that today’s action will improve section 6607 and that required under Markets will fail to achieve socially the scope of multi-media data on the use other statutes, these reporting efficient outcomes when differences and disposition of toxic chemicals. This, requirements do not duplicate or exist between market values and social in turn, will provide information to the conflict with each other. This issue is values. Two of the causes of market public, empower communities to play a discussed in detail in the Economic failure are externalities and information meaningful role in environmental Analysis for the final rule (Ref. 12). asymmetries. In the case of negative decision-making, and improve the externalities, the actions of one quality of environmental decision- C. Summary of Reporting and Costs economic entity impose costs on parties making by government officials. In Table 1 in Unit VI.F.4. of this that are ‘‘external’’ to the market addition, this action will serve to preamble displays the reporting level transaction. For example, entities may generate information that reporting and cost estimates by industry for the release toxic chemicals without facilities themselves will find useful in rule. EPA estimates that under this rule, accounting for the consequences to such areas as highlighting opportunities a total of approximately 6,600 facilities other parties, such as the surrounding to reduce chemical use and thereby will submit approximately 46,200 community, and the prices of those lower costs of production. EPA believes reports (both Form Rs and Form As) entities’ goods or services thus will fail that these are sound rationales for annually. This total is based on 6,300 Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations 23885 facilities in the new industry groups environmental impacts of toxic Because the current state of submitting 42,500 reports, and chemicals in the United States. TRI’s knowledge about the economics of approximately 360 facilities in the publicly available data base provides information is not highly developed, existing manufacturing sector quantitative information on toxic EPA has not attempted to monetize the submitting 3,600 reports as a result of chemical releases and other waste direct informational benefits of adding the change in the definition of otherwise management. With the collection of this new industry groups to the list of use. Total incremental compliance costs information starting in 1987 came the industries required to report to TRI. are also presented in Table I by industry ability for the public, government, and Furthermore, because of the inherent sector. As shown, aggregate costs in the the regulated community to understand uncertainty in the subsequent chain of first year are estimated to be $226 the magnitude of chemical releases in events, EPA has also not attempted to million; in subsequent years they are the United States, and to assess the need predict the changes in behavior that estimated to be $143 million per year. to reduce the uses and releases of toxic result from the information, or the resultant net benefits, i.e., the difference D. Associated Requirements chemicals. TRI enables all interested parties to establish credible baselines, to between benefits and costs. EPA does There are various state and federal set realistic goals for environmental not believe that there are adequate requirements under other statutes and progress over time, and to measure methodologies to make reasonable regulations that may be triggered when progress in meeting these goals over monetary estimates of either the direct a facility files a report under EPCRA time. The TRI system has become a or follow-on benefits related to this rule. section 313. The associated neutral yardstick by which progress can Rather, EPA assessed the potential for requirements include state taxes and be measured by all stakeholders. The the rule to generate benefits comparable fees, state pollution prevention planning information reported to TRI increases to those generated by currently requirements, and special requirements knowledge of the levels of toxic reporting industries by seeking data on in certain NPDES storm water permits chemicals released to the environment certain characteristics of the use and issued by EPA. These associated and the potential pathways of exposure, disposition of toxic chemicals, requirements are discussed in detail in improving scientific understanding of specifically air release data, which the Economic Analysis for the final rule the health and environmental risks of could be compared among the various (Ref. 12). toxic chemicals; allows the public to sectors already subject to or now being Although the state fees, taxes and make informed decisions on where to added to the TRI program. EPA pollution prevention planning work and live; enhances the ability of analyzed release data collected under requirements are associated with corporate leaders and purchasers to authority of the CAA and maintained in EPCRA section 313 reporting, they are more accurately gauge a facility’s the AFS. While limitations in the data not required by this or any other rule potential environmental liabilities; set and methodology did not permit issued under EPCRA section 313. provides reporting facilities with estimates to be made of the amounts of Therefore, EPA has not included either information that can be used to save potential TRI releases, the analysis the costs or benefits of associated state money as well as reduce emissions; and clearly supported EPA’s belief that requirements along with the costs and assists federal, state, and local substantial volumes of TRI releases and benefits of the rule. States imposing authorities in making better decisions other waste management of EPCRA these associated requirements may wish on acceptable levels of toxics in the section 313 toxic chemicals will be to assess the benefits and costs of captured by expanding the coverage to environment. applying them to new industries. include the additional industry groups. EPA has also established associated Analytically, there are two types of EPA believes this evidence supports its requirements in certain general storm benefits associated with TRI reporting-- determination that the industry groups water permits under the NPDES direct and follow-on. Direct benefits being added are likely to generate program, which apply to some facilities include the value of improved valuable information as part of the TRI regulated under those general permits. knowledge about the use and program. In addition, the experience of EPA has not included those NPDES disposition of toxic chemicals, which the past 8 years shows that reporting to requirements as costs of this rule, leads to improvements in TRI by manufacturing facilities has because they are not triggered by this understanding, awareness and decision- produced real gains in understanding action, but may be made applicable to making. It is expected that this the use, release and othe waste facilities added to the TRI program by rulemaking will generate such benefits management of toxic chemicals, and this rule only at the time the NPDES by providing the public with readily opportunities to minimize the potential general permit is renewed. Should the accessible information that otherwise for human and environmental exposure Agency extend NPDES requirements to would not be available to them. to toxics. EPA believes that the the facilities being added by this rule at The second type of benefits derive additional reporting to be generated by some point in the future, that would be from changes in behavior that may this rule will yield similar benefits. the appropriate time to consider the result from the information reported to F. Impacts on Small Entities costs and benefits of those requirements. TRI. These changes in behavior, including reductions in the releases and In accordance with the Regulatory E. Benefits changes in the waste management Flexibility Act (RFA) and the Agency’s In enacting EPCRA and PPA, Congress practices for toxic chemicals, yield longstanding policy of always recognized the significant benefits of health and environmental benefits. considering whether there may be a providing information on toxic chemical These changes in behavior come at some potential for adverse impacts on small releases and other waste management. cost, and the net benefits of the follow- entities, the Agency has also evaluated TRI has proven to be one of the most on activities are the difference between the potential impacts of this rule on powerful forces in empowering the the benefits of decreased chemical small entities. The Agency’s analysis of federal government, state governments, releases and transfers and the costs of potentially adverse economic impacts is industry, environmental groups and the the actions needed to achieve the included in the Economic Analysis for general public to fully participate in an decreases. These follow-on activities, this rule (Ref. 12). The following is a informed dialogue about the however, are not required by the rule. brief overview of EPA’s findings. 23886 Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations

1. Overall methodology. This rule may Small Entities’’ prepared and submitted At proposal, EPA also found that affect both small businesses and small to the rulemaking docket for this rule, there were sufficient uncertainties governments. For the purpose of its EPA believes that the statutory test for regarding the impacts on one other analysis for the final rule, EPA defined certifying a rule and the statutory industry, RCRA subtitle C hazardous a small business using the small consequences of not certifying a rule all waste facilities in SIC code 4953, that business size standards established by indicate that certification the Agency could not confidently make the SBA. In conjunction with the determinations may be based on an a determination regarding the proposed rule, EPA had analyzed the aggregated analysis of the rule’s impact magnitude and incidence of the small business impacts in two ways, on all of the small entities subject to it. impacts. Therefore, EPA stated that its using a definition of 10 to 49 employees 2. Small businesses. EPA used initial analysis of reporting by RCRA and using SBA’s size standards. compliance costs as a percentage of Subtitle C Facilities in SIC Code 4953 Although EPA has chosen to use SBA’s annual company sales to assess the indicated that reporting could impose a size standards for the final rule, it will potential impacts on small businesses of significant burden on some small continue to investigate whether an expanding the TRI program to businesses in this industry. However, alternate small business definition such additional industry groups. This is a EPA stated that it was not highly as 10 to 49 employees would be good measure of a firm’s ability to afford confident of the accuracy of its appropriate for the purpose of EPCRA the costs attributable to a regulatory estimated average number of reports per section 313 rulemakings, and may requirement, because comparing facility, and believed that it had choose such an alternate definition in compliance costs to revenues provides a overestimated the actual number and future rulemakings. EPA defined small reasonable indication of the magnitude consequently overestimated the small governments using the RFA definition of the regulatory burden relative to a business impacts. of jurisdictions with a population of less commonly available measure of a In the Federal Register of August 21, than 50,000. company’s business volume. Where 1996 (61 FR 43207) (FRL–5393–4), EPA Only those small entities that are regulatory costs represent a small published a notice announcing the expected to submit at least one report fraction of a typical firm’s revenue (for availability of additional information are considered to be affected for the example, less than 1 percent, but not related to the impact of changing the purpose of the small entity analysis. The greater than 3 percent), EPA believes definition of otherwise use. This number of affected entities will be that the financial impacts of the included information on the impact on smaller than the number of affected regulation may be considered not facilities in SIC code 4953. After facilities, because many entities operate significant. As discussed above, EPA receiving public comment on this more than one facility. Economic also believes that it is appropriate to analysis, EPA further refined it to better impacts on affected small entities were apply this measure to subsequent year estimate the number of reports from this calculated assuming that all TRI reports impacts. industry. would be filed using the longer Form R At proposal, EPA indicated that the Based on its calculations for all the (and not the Form A), which yields a conservative estimate of costs (i.e., it is rule might have a potentially significant industry sectors being added by the likely to overestimate the true impacts). impact on some small businesses in the final rule, the Agency estimates that Impacts were calculated for both the chemical wholesaling industry (SIC approximately 4,800 businesses will be first year of reporting and subsequent code 5169 - Chemicals Allied Products). affected by the rule, and that years. First year costs are typically EPA found that those chemical approximately 3,600 of these businesses higher than continuing costs because wholesalers required to submit reports qualify as small based on the applicable firms must familiarize themselves with would file between 1 and 27 reports SBA size standards. For the first the requirements. Once firms have each, but that the actual number of reporting year, EPA estimates that become familiar with how the reporting reports per facility would be distributed approximately 570 small businesses requirements apply to their operations, throughout this range. Impacts above 1 may bear compliance costs between 1 costs fall. EPA believes that subsequent percent were predicted for small percent and 3 percent of revenues, and year impacts present the best measure to businesses reporting the high number of that approximately 120 may bear costs judge the impact on small entities reports (i.e., 27 reports). However, EPA greater than 3 percent. In subsequent because these continuing costs are more stated that the majority of companies years, about 170 small businesses are representative of the costs firms face to would not have to submit the maximum predicted to face compliance costs comply with the rule. number of reports and would face lower between 1 percent and 3 percent of EPA analyzed the potential cost costs. revenues; only about 60 businesses are impact of the rule on small businesses In response to comments, EPA has estimated to experience impacts over 3 and governments in each of the newly reanalyzed its data, including reporting percent. As stated above, EPA believes added industry sectors separately in levels from the three States that require that subsequent-year impacts are the order to obtain the most accurate reporting from this industry, and has appropriate measure of small business assessment for each. EPA then adjusted its reporting estimates impacts. aggregated the analyses for the purpose downward as a result. Although EPA 3. Small governments. To assess the of detemining whether it could certify calculated small business impacts for potential impacts on small governments, that the rule ‘‘will not, if promulgated, the proposed rule using only the EPA used compliance costs as a have a significant economic impact on minimum, maximum, and average percentage of annual government a substantial number of small entities.’’ number of reports per facility, EPA revenues to measure potential impacts. RFA section 605(b) provides an stated that there is a distribution of Similar to the methodology for small exemption from the requirement to reports per facility between the low and businesses, this measure was used prepare a regulatory flexibility analysis high ends. For the final rule, EPA because it provides a reasonable for a rule where an agency makes and calculated small business impacts using indication of the magnitude of the supports the certification statement a distribution, and was able to better regulatory burden relative to a quoted above. For reasons detailed in estimate the actual small business government’s ability to pay for the costs, the ‘‘Assessment of the Impacts on impacts that are expected. and is based on readily available data. Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations 23887

EPA has estimated that 49 publicly sales (less than 2 percent of all affected EPA has nontheless prepared an owned electric utility facilities, operated small entities) after the first year of assessment of the small entity impact of by a total of 41 municipalities, may be reporting. None of the affected small this rule and of alternative regulatory affected. Of these, an estimated 18 are governments are estimated to bear costs approaches that might minimize that operated by small governments (i.e., greater than one percent of revenues. impact consistent with the objectives of those with populations under 50,000). Thus, the total number of small entities EPCRA. (See Ref. 14) EPA considered None of these small governments will with impacts above this level does not this assessment in making final bear costs greater than 1 percent of change when the results are aggregated decisions about the scope and terms of annual government revenues. for all small entities (i.e., both small the rule to ensure that the rule would 4. All small entities. As discussed businesses and small governments). not unduly burden small entities. That above, only 230 small businesses are Based on this analysis which itself is assessment, which builds on the initial expected to bear costs over 1 percent of based on conservative assumptions, regulatory flexibility analysis (IRFA) revenues (roughly 6 percent of the 3,600 EPA certifies that this rule will not have prepared for the proposed rule and on small businesses affected by the rule) a significant economic impact on a the Response to Comments on the IRFA, and only 60 (a subset of the 230) are substantial number of small entities. In is available in the docket for this expected to bear costs over 3 percent of keeping with Agency policy, however, rulemaking. Table 1.--Summary of Reporting and Costs

Estimated Industry Costs ($ million per year) Industry Number of Re- Number of Re- porting Facilities ports First Year Subsequent Years

Metal Mining 234 677 3.9 2.2 Coal Mining 321 642 5.4 2.1 Electric Utilities 977 9,898 44.9 29.4 Hazardous Waste Treatment 162 4,784 22.4 15.3 Disposal Facilities Chemicals Allied Products-- 717 8,352 39.6 25.3 Wholesale Petroleum Bulk Stations Termi- 3,842 18,053 39.7 56.2 nals--Wholesale Solvent Recovery Services 14 117 0.6 0.4 Manufacturing 357 3,631 17.3 11.6

Total 6,624 46,154 225.8 142.5

VII. Agency Guidance and Stakeholder practices used by businesses in VIII. Public Record Process completing the forms. Specifically, EPA EPA has established a public record As EPA has expanded the community believes these forms can be revised to for this rulemaking (docket control right-to-know program, first by nearly make it simpler and less costly for number OPPTS–400104). The record doubling the number of chemicals for businesses to meet their recordkeeping includes all information considered by which release and other waste and reporting obligations, while making EPA in developing this final rule. This management information is required, it easier for communities and citizens includes all information discussed or and now through today’s expansion, groups to understand and use toxic referenced in the preamble as well as all adding seven new industrial sectors, the chemical release information. EPA will information in the docket and Agency has had the opportunity to also look at other ways to reduce referenced in documents in the docket. discuss various aspects of the program reporting burdens, having to do with A public version of the record without with a broad range of stakeholders, how companies handle records and how any confidential information is available including industry, small businesses, they make estimates of quantities for in the TSCA Public Docket Office from states and citizens groups. Through this threshold determinations and for release noon to 4 p.m., Monday through Friday, outreach, and the Agency’s own and other waste management except legal holidays. The TSCA Public experience in running the program, we determinations. Upon the promulgation Docket Office is located in Rm. NE- have confirmed our belief that right-to- of this final rule, EPA is initiating an G607, Northeast Mall, 401 M St., SW., know is a fundamental part of how the intensive stakeholder process-involving Washington, DC. Agency provides public health and citizens groups, industry, small environmental protection. TRI is the IX. References businesses and states--to conduct a backbone of the Agency’s community 1. Edison Electric Institute. Comments right-to-know program. comprehensive evaluation of the current of the Edison Electric Institutes and the EPA, however, is committed to TRI reporting forms and reporting Utility Solid Waste Activities Group on improving the TRI program by reducing practices with the explicit goal of EPA’s Proposed Rule Adding Certain the cost of reporting while increasing identifying opportunities, consistent Electric Utilities to EPCRA section 313 the utility of toxic release information. with community right-to-know and the Reporting Requirements (61 FR 33588 EPA believes that the program could be relevant law, to simplify and/or reduce (June 27, 1996)). September 25, 1996 made even more effective through a the cost of TRI reporting. EPA will (attachment: Letter from John H. careful evaluation of the current announce the details of this process in Pavlish, University of North Dakota reporting forms (‘‘Form R’’ and ‘‘Form a future Federal Register notice. Energy Environmental Research Center A,’’ the alternate threshold certification to EEI EPCRA Subcommitte (August 22, form) and the information gathering 1996)). 23888 Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations

2. Kirk Othmer Encyclopedia of Groups. U.S. Environmental Protection document available in the public docket Chemical Technology, 3rd edition, Vol Agency, Washington, DC (1996). for this rulemaking, entitled Assessment 24, John Wilely Sons 1984). 16. USEPA/OPPT. The Effect of of the Impacts on Small Entities of the 3. Minnesota Emergency Response Combustion on Trace Metals in Coal Final Rule Entitled ‘‘Addition of Commission. A Study on Expansion of and Oil Fuels for Electric Generating Facilities in Certain Industry Sectors; the Toxic Chemical Reporting Facilities. U.S. Environmental Revised Interpretation of Otherwise Use; Requirements (Section 313 of the Protection Agency, Washington, DC Toxics Release Inventory; Community Emergency Planning and Community (1996) Right-to-Know’’ (Ref. 14). This Right-to-Know Act). Report to the 17. USEPA/OTS. Toxic Chemical determination is for the entire Legislature (1990). Release Inventory Questions and population of small entities potentially 4. OMB. Standard Industrial Answers Revised 1990 Version, U.S. affected by this rule, since the test for Classification Manual 1987. Executive Environmental Protection Agency, EPA certification is whether the rule as a Office of the President, Office of 560/4-91-003 (January 1991). whole has a significant economic Management and Budget, Washington, 18. SAIC. SIC Code Profile 50-51 impact on a substantial number of small DC (1987). Wholesale Trade Durable and entities. 5. SAIC. SIC Code Profile 10 Metal Nondurable Goods. Science Application At proposal, the Agency did not have Mining. Science Application International Corporation, Falls Church, sufficient information to determine International Corporation, Falls Church, VA (Draft 1996 and Final 1997). whether or not the the rule would have VA (Draft 1996 and Final 1997). a significant economic impact on a X. Regulatory Assessment substantial number of small entities. 6. SAIC. SIC Code Profile 12 Coal Requirements Mining. Science Application Therefore, EPA prepared an initial International Corporation, Falls Church, A. Executive Order 12866 regulatory flexibility analysis of the proposed regulation, and presented that VA (Draft 1996 and Final 1997). Under Executive Order 12866 (58 FR 7. SAIC. SIC Code Profile 49 Electric, analysis for public comment in 51735, October 4, 1993), it has been conjunction with the proposed rule. Gas and Sanitary Services. Science determined that this is a ‘‘significant Application International Corporation, EPA considered all comments received regulatory action’’ because it is likely to on its initial analysis and its assessment Falls Church, VA (Draft 1996 and Final have an annual effect of $100 million or 1997). of the impacts of the proposed rule on more. This action therefore was small entities; these comments and 8. U.S. Bureau of the Census. Industry submitted to the Office of Management EPA’s responses are discussed in the and Product Classification Manual, and Budget (OMB) for review, and any Response to Comments document (Ref. (1992) pp. 212-213. substantive comments or changes made 15) and in Ref. 14. 9. U.S. Congress, House of during that review have been Notwithstanding the Agency’s Representatives. Conference Report No. documented in the public record. certification of this final rule under 962. 99th Cong., 2nd Session (1986). B. Regulatory Flexibility Act section 605(b) of the RFA, EPA remains 10. USEPA/OPPT. Development of committed to minimizing small entity SIC Code Candidates: Screening For the reasons explained in Unit impacts when feasible and to ensuring Document. U.S. Environmental VII.F. of this preamble, pursuant to that small entities receive assistance to Protection Agency, Washington, DC section 605(b) of the Regulatory ease their burden of compliance. (1996). Flexibility Act (RFA) (5 U.S.C. 601 et Therefore, EPA has reviewed the 11. USEPA/OPPT. Economic Analysis seq.), the Agency hereby certifies that considerations identified in section 604 of the Proposed Rule to Add Certain this final rule will not have a significant of the RFA relating to the final Industries to EPCRA Section 313. U.S. economic impact on a substantial regulatory flexibility analysis, and that Environmental Protection Agency, number of small entities. In brief, the review is set forth in the above- Washington, DC (1996). factual basis of this determination is as referenced document, Assessment of the 12. USEPA/OPPT. Economic Analysis follows: there are 18 small governments Impacts on Small Entities of the Final of the Final Rule to Add Certain that may be affected by the rule (i.e., Rule Entitled (Ref. 14). In addition, Industries to EPCRA Section 313. U.S. will have to file reports under the rule), although not required, EPA intends to Environmental Protection Agency, none of which will bear costs greater prepare sector-specific guides for the Washington, DC (1997). than one percent of annual government new industry sectors in order to assist 13. USEPA/OPPT. Interpretations of revenues. Of the approximately 3,600 facilities in determining their Waste Management Activities: small businesses affected by the rule, compliance needs and in properly Recycling, Combustion for Energy EPA estimates that only approximately completing the appropriate form. EPA Recovery, Treatment for Destruction, 230 or 6 percent will experience has prepared such documents for Waste Stabilization, and Release. U.S. compliance costs exceeding 1 percent of existing sectors and has received Environmental Protection Agency, annual sales, and of those 230, only 60 positive feedback on their utility from (1996). (less than 2 percent) will experience the targeted facilities. In addition, the 14. USEPA/OPPT. Assessment of the costs exceeding 3 percent of annual Agency is always interested in any Impacts on Small Entities of the Final sales. Given these relatively small comments regarding the economic Rule Entitled ‘‘Addition of Facilities in estimated impacts and the relatively impacts that this regulatory action Certain Industry Sectors; Revised small number of entities affected, for imposes on small entities, particularly Interpretation of Otherwise Use; Toxics purposes of the RFA EPA believes that suggestions for minimizing that impact. Release Invetory; Community Right-to- the rule will not have a significant Such comments may be submitted to the Know.’’ U.S. Environmental Protection economic impact on a substantial Agency at any time, to the address listed Agency, (1997). number of small entities. EPA’s above. 15. USEPA/OPPT. Response to estimates are based on the economic Information relating to this Comments Received on the June 27, analysis, and, as noted above, are determination has been provided to the 1996 Proposed Rule to Expand the discussed further above, in Unit VII.F. Chief Counsel for Advocacy of the Small EPCRA Section 313 List of Industry of this preamble, as well as in a Business Administration, and is Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations 23889 included in the docket for this codifying the EPCRA section 313 of the facility’s operations and the rulemaking. reporting requirements appear at 40 CFR profile of the releases at the facility. part 372. Respondents may designate This final rule is estimated to add C. Paperwork Reduction Act the specific chemical identity of a 6,267 facilities to the number of The information collection substance as a trade secret, pursuant to respondents currently reporting to TRI, requirements contained in this rule have EPCRA section 322 (42 U.S.C. 11042). and to increase the number of reports been approved by OMB under the Regulations codifying the trade secret submitted by 357 currently reporting Paperwork Reduction Act (PRA), 44 provisions can be found at 40 CFR part facilities. These facilities will submit an U.S.C. 3501 et seq. Since this action 350. estimated additional 39,000 Form Rs generally involves the extension of a Currently, facilities subject to the and 7,100 Form As. This final rule currently approved information reporting requirements under EPCRA therefore results in an estimated total collection requirement, OMB has 313 and PPA 6607 must use the EPA burden of 3.6 million hours in the first approved this action as an addendum to Toxic Chemical Release Inventory Form year, and 2.3 million hours in the ICR approved under OMB Control R (EPA Form No. 9350-1), unless they subsequent years, at a total estimated No. 2070–0093. The OMB control qualify to use the EPA Toxic Chemical cost of $225.8 million in the first year number for this action is 2070-0157. Release Inventory Form A (formerly and $142.5 million in subsequent years. Pursuant to section 3507 of the PRA and ‘‘Certification Statement’’) (EPA Form In approving the information collection 5 CFR 1320.5(b) and 1320.6(a), an No. 9350-2). Form R must be completed requirements contained in this final Agency may not conduct or sponsor, if a facility manufactures, processes, or rule, which in essence increases the and a person is not required to respond otherwise uses any listed chemical number of respondents subject to the to a collection of information unless it above threshold quantities and meets requirements without changing the displays a currently valid OMB control certain other criteria. For Form A, EPA underlying requirements, OMB has number. This notice announces OMB’s established an alternate threshold for increased the approved burden hours in approval and the OMB control numbers those facilities with low annual its inventory for the two existing ICRs, for EPA’s regulations are listed in 40 reportable amounts of a listed toxic in order to accommodate the burdens CFR part 9 and 48 CFR chapter 15, and, chemical. A facility that meets the associated with the final rule. if applicable, also appear on the applicable reporting thresholds, but Burden means the total time, effort, or information collection instrument. estimates that the total annual financial resources expended by persons EPA’s estimates with regard to the reportable amount of the chemical does to generate, maintain, retain, or disclose burden associated with the information not exceed 500 pounds, can take or provide information to or for a collection requirements contained in the advantage of an alternate manufacture, Federal agency. This includes, where proposed rule (EPA ICR No. 1784.01), process, or otherwise use threshold of 1 applicable, the time needed to review were submitted to OMB pursuant to 5 million pounds per year for that instructions; develop, acquire, install, CFR 1320.11 and presented for public chemical, provided that certain and utilize technology and systems for comment pursuant to 5 CFR conditions are met, and submit the the purposes of collecting, validating, 1320.8(d)(1). Pursuant to 5 CFR Form A instead of the Form R. OMB has and verifying information, processing 1320.11(c), OMB provided comments on approved the reporting and and maintaining information, and the proposed ICR, a copy of which has recordkeeping requirements related to disclosing and providing information; been included in the public docket for Form R, supplier notification, and adjust the existing ways to comply with this rule. In addition, the Agency petitions under OMB Control No. 2070- any previously applicable instructions received a number of public comments. 0093 (EPA ICR No. 1363) and those and requirements; train personnel to be Both OMB’s and relevant public related to Form A under OMB Control able to respond to a collection of comments are addressed in the final No. 2070-0143 (EPA ICR No. 1704). information; search data sources; ICR, which also reflects any changes to Currently, approximately 23,000 complete and review the collection of the burden estimates that have been facilities report to the TRI. For Form R, information; and transmit or otherwise made as a result of the comments EPA estimates the industry reporting disclose the information. EPA’s burden received. burden for collecting this information estimates for the rule take into account Provision of this information is (including recordkeeping) to average 74 all of the above elements, considering mandatory, upon promulgation of this hours per report in the first year, at an that under section 313, no additional final rule, pursuant to EPCRA section estimated cost of $4,587 per Form R. In measurement or monitoring may be 313 (42 U.S.C. 11023) and PPA section subsequent years, the burden is imposed for purposes of reporting. 6607 (42 U.S.C. 13106). EPCRA section estimated to average 52.1 hours per A copy of the final ICR may be 313 requires owners or operators of report, at an estimated cost of $3,203 per obtained from Sandy Farmer, OPPE certain facilities manufacturing, Form R. For Form A, EPA estimates the Regulatory Information Division, processing, or otherwise using any of burden to average 49.4 hours per report Environmental Protection Agency over 600 listed toxic chemicals and in the first year, at an estimated cost of (2137), 401 M St., SW., Washington, DC chemical categories (hereinafter ‘‘toxic $3,101 per Form A. In subsequent years, 20460, by calling (202) 260-2740, or chemicals’’) in excess of the applicable the burden is estimated to average 34.6 electronically by sending an e-mail threshold quantities, and meeting hours per report, at an estimated cost of message to certain requirements (i.e., at least 10 $2,160 per Form A. These estimates ‘‘[email protected].’’ A FTEs or the equivalent), to report include the time needed to review copy is also included in the Public environmental releases and transfers of instructions; search existing data Docket for the final rule, and is available and waste management activities for sources; gather and maintain the data electronically as a supporting document such chemicals annually. Under section needed; complete and review the to the final rule on the EPA homepage. 6607 of the PPA, facilities must also collection of information; and transmit provide information on the quantities of or otherwise disclose the information. D. Unfunded Mandates Reform Act and the toxic chemicals in waste streams The actual burden on any specific Executive Order 12875 and the efforts made to manage those facility may be different from this Pursuant to Title II of the Unfunded waste quantities. The regulations estimate depending on the complexity Mandates Reform Act of 1995 (UMRA) 23890 Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations

(Pub. L. 104-4), EPA has determined governments and does not contain a exemptions from reporting) will apply that this action contains a ‘‘federal significant federal intergovernmental to the industry groups being added by mandate’’ that may result in mandate. Nevertheless, EPA has this rule. EPA also will be assisting expenditures of $100 million or more engaged in numerous discussions with small entities subject to the rule, by for the private sector in any 1 year, but state and local officials. EPA’s such means as providing meetings, that it will not result in such consultation and outreach activities are training, and compliance guides in the expenditures for state, local, and tribal discussed in Unit II.B. of this preamble. future, which also will ease the burdens governments, in the aggregate. The Agency believes that its extensive of compliance. Accordingly, EPA has prepared a consultations with other levels of While many steps have been and will written statement for this final rule government throughout the rulemaking be taken to further reduce the burden pursuant to section 202 of UMRA, and process for this regulatory action are associated with this rule, EPA rejected that statement is available in the public consistent with both the some alternatives that also would have docket for this rulemaking. The costs intergovernmental provisions of reduced burden (e.g., complete associated with this action are estimated sections 203 and 204 of UMRA, and exclusion of certain candidate industry in the economic analysis prepared for Executive Order 12875, Enhancing the groups from the rule), because they this final rule (Ref. 12), which is Intergovernmental Partnership. See 58 would have significantly reduced the included in the public docket and FR 58093 (October 28, 1993). information obtained and thereby summarized in Unit VI. above. The Finally, EPA believes this rule reduce the degree to which the rule met following is a brief summary of the complies with section 205(a) of UMRA. its objective. EPA believes that any UMRA statement for the final rule. The objective of this rule is to expand further steps taken to minimize the This rule is being promulgated the public benefits of the TRI program burden of this rule by reducing its scope pursuant to section 313(b)(1)(B) of by exercising EPA’s discretionary or requirements would necessarily EPCRA, 42 U.S.C. section authority to add SIC codes to the lower the degree to which the rule 11023(b)(1)(B), and section 6607 of the program, thereby increasing the amount achieves its objective, and to EPA’s Pollution Prevention Act, 42 U.S.C. of information available to the public knowledge there is no available section 13106. The economic analysis regarding the use, management and alternative to the final rule that would contains a calculation of the benefits disposition of listed toxic chemicals. In obtain the equivalent information in a and costs of this rule, which estimates making additional information available less burdensome manner. For all of that the total costs of the rule will be these reasons, EPA believes the rule $226 million in the first year and $143 through TRI, the Agency increases the complies with UMRA section 205(a). million thereafter, and concludes that utility of TRI data as an effective tool for the benefits will be significant but empowering local communities, the E. Executive Order 12898 cannot be assigned a dollar value due to public sector, industry, other agencies, Pursuant to Executive Order 12898 the lack of adequate methodologies. and state and local governments to (59 FR 7629, February 16, 1994), This information is also summarized better evaluate risks to public health entitled Federal Actions to Address above in Unit VI.D.-F. of this preamble. and the environment, particularly at the Environmental Justice in Minority EPA believes that the benefits provided local level. Throughout the rulemaking Populations and Low-Income by the information to be reported under process, EPA considered numerous Populations, the Agency has considered this rule will significantly outweigh the regulatory alternatives concerning all costs imposed by today’s action. The aspects of the rule, including, for environmental justice related issues benefits of the information will in turn example, which SIC codes should be with regard to the potential impacts of have positive effects on health, safety, added to the program and for those this action on environmental and health and the natural environment through added, whether some activities should conditions in relevant communities. As the behavioral changes that may result not be subject to reporting, and whether a part of its economic analysis (Ref. 12), from that information. existing or new alternate reporting which is summarized in Unit VI. of this EPA has not identified any federal provisions, regulatory exemptions, and/ preamble and included in the public financial resources that are available to or other options should be applied or docket, EPA examined the distribution cover the costs of this rule. As set forth adopted. (Such alternatives were patterns of the public information to be in the economic analysis, EPA has discussed in the preamble to the generated by today’s final action. EPA estimated the future compliance costs proposed rule, and are addressed believes that exploring the distribution (after the first year) of this rule to be elsewhere in this Preamble, and/or in of information benefits in demographic $143 million annually. Of those entities the Response to Comments document terms, particularly for rulemaking affected by today’s action, EPA has not (Ref. 15).) In many instances, EPA activities such as this one, is an identified any disporportionate selected burden-reducing alternatives important part of the Agency’s budgetary impact on any particular (e.g., deferring the addition of certain compliance with this Executive Order region, government, or community, or candidate industries or excluding and the Agency’s overall environmental on any segment of the private sector. certain activities for included justice strategy. Based on the economic analysis, EPA industries) because information EPA’s analysis found that households has concluded that it is highly unlikely available at the time suggested that a with annual incomes less than $15,000, that this rule will have a measurable burden would have been imposed and minority and urban populations, are effect on the national economy. without obtaining TRI reporting that slightly over-represented in EPA has determined that it is not EPA had confidence would contribute communities containing facilities in the required to develop a small government significantly to the purposes of the TRI industry groups that are expected to agency plan as specified by section 203 program. In addition, existing burden- report releases and transfers of toxic of UMRA or to conduct prior reducing measures (e.g., the use of chemicals under this rule. This rule will consultation with state, local, or tribal readily available monitoring data or, if provide people in a large number of governments under section 204 of such data are not available, reasonable communities with TRI information UMRA, because the rule will not estimates; alternate reporting about facilities in their vicinity for the significantly or uniquely affect small thresholds; and statutory and regulatory first time. Therefore, EPA concludes the Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations 23891 rule will have beneficial environmental (such as economizers or air preheaters) (11) Combustion devices used in the justice impacts. need not be physically formed into the recovery of sulfur values from spent same unit as the combustion chamber sulfuric acid. F. Submission to Congress and the and the primary energy recovery (12) Halogen acid furnaces (HAFs) for General Accounting Office section. The following units are not the production of acid from halogenated This action is a ‘‘major rule’’ as precluded from being boilers solely hazardous waste generated by chemical defined by 5 U.S.C. section 804(2). because they are not of integral design: production facilities where the furnace Therefore, pursuant to 5 U.S.C. section process heaters (units that transfer is located on the site of a chemical 801(a)(1), as added by the Small energy directly to a process stream), and production facility, the acid product has Business Regulatory Enforcement fluidized bed combustion units; and a halogen acid content of at least 3%, Flexibility Act of 1996, EPA has (iii) While in operation, the unit must the acid product is used in a provided information about this action maintain a thermal energy recovery manufacturing process, and, except for to the U.S. Senate, the U.S. House of efficiency of at least 60 percent, hazardous waste burned as fuel, Representatives, and the Comptroller calculated in terms of the recovered hazardous waste fed to the furnace has General of the General Accounting energy compared with the thermal value a minimum halogen content of 20% as- Office prior to its publication in today’s of the fuel; and generated. Federal Register. (iv) The unit must export and utilize (13) Such other devices as the List of Subjects in 40 CFR Part 372 at least 75 percent of the recovered Administrator may, after notice and energy, calculated on an annual basis. In comment, add to this list on the basis of Environmental protection, this calculation, no credit shall be given one or more of the following factors: Community right-to-know, Reporting for recovered heat used internally in the (i) The design and use of the device and recordkeeping requirements, Toxic same unit. (Examples of internal use are primarily to accomplish recovery of chemicals. the preheating of fuel or combustion air, material products; Dated: April 22, 1997. and the driving of induced or forced (ii) The use of the device to burn or Carol M. Browner, draft fans or feedwater pumps); or reduce raw materials to make a material Administrator. (2) The unit is one which the Regional product; Therefore, 40 CFR part 372 is Administrator has determined, on a (iii) The use of the device to burn or amended to read as follows: case-by-case basis, to be a boiler, after reduce secondary materials as effective considering the standards in § 260.32 of substitutes for raw materials, in PART 372Ð[AMENDED] this chapter. processes using raw materials as * * * * * principal feedstocks; 1. The authority citation for part 372 (iv) The use of the device to burn or continues to read as follows: Coal extraction means the physical removal or exposure of ore, coal, reduce secondary materials as Authority: 42 U.S.C. 11023 and 11028. minerals, waste rock, or overburden ingredients in an industrial process to 2. In § 372.3, revise the definition for prior to beneficiation, and encompasses make a material product; ‘‘Otherwise use’’ and add the following all extraction-related activities prior to (v) The use of the device in common definitions in alphabetical order to read beneficiation. Extraction does not industrial practice to produce a material as follows: include beneficiation (including coal product; and preparation), mineral processing, in situ (vi) Other factors, as appropriate. § 372.3 Definitions. leaching or any further activities. * * * * * * * * * * * * * * * Otherwise use means any use of a Beneficiation means the preparation Disposal means any underground toxic chemical, including a toxic of ores to regulate the size (including injection, placement in landfills/surface chemical contained in a mixture or crushing and grinding) of the product, impoundments, land treatment, or other other trade name product or waste, that to remove unwanted constituents, or to intentional land disposal. is not covered by the terms improve the quality, purity, or grade of ‘‘manufacture’’ or ‘‘process.’’ Otherwise a desired product. * * * * * use of a toxic chemical does not include Boiler means an enclosed device Industrial furnace means any of the disposal, stabilization (without using controlled flame combustion and following enclosed devices that are subsequent distribution in commerce), having the following characteristics: integral components of manufacturing or treatment for destruction unless: (1)(i) The unit must have physical processes and that use thermal (1) The toxic chemical that was provisions for recovering and exporting treatment to accomplish recovery of disposed, stabilized, or treated for thermal energy in the form of steam, materials or energy: destruction was received from off-site heated fluids, or heated gases; and (1) Cement kilns. for the purposes of futher waste (ii) The unit’s combustion chamber (2) Lime kilns. management; or and primary energy recovery sections(s) (3) Aggregate kilns. (2) The toxic chemical that was must be of integral design. To be of (4) Phosphate kilns. disposed, stabilized, or treated for integral design, the combustion chamber (5) Coke ovens. destruction was manufactured as a and the primary energy recovery (6) Blast furnaces. result of waste management activities on section(s) (such as waterwalls and (7) Smelting, melting and refining materials received from off-site for the superheaters) must be physically formed furnaces (including pyrometallurgical purposes of further waste management into one manufactured or assembled devices such as cupolas, reverberator activities. Relabeling or redistributing of unit. A unit in which the combustion furnaces, sintering machine, roasters, the toxic chemical where no chamber and the primary energy and foundry furnaces). repackaging of the toxic chemical occurs recovery section(s) are joined only by (8) Titanium dioxide chloride process does not constitute otherwise use or ducts or connections carrying flue gas is oxidation reactors. processing of the toxic chemical. not integrally designed; however, (9) Methane reforming furnaces. Overburden means the secondary energy recovery equipment (10) Pulping liquor recovery furnaces. unconsolidated material that overlies a 23892 Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules and Regulations deposit of useful materials or ores. It 3. In § 372.22, revise paragraph (b) to of all services provided and/or products does not include any portion of ore or read as follows: shipped from and/or produced by all waste rock. establishments at the facility. § 372.22 Covered facilities for toxic (ii) One establishment having a * * * * * chemical release reporting. primary SIC major group or industry RCRA approved test method includes * * * * * code in the above list contributes more Test Method 9095 (Paint Filter Liquids (b) The facility is in Standard in terms of value of services provided Test) in ‘‘Test Methods for Evaluating Industrial Classification (SIC) (as in and/or products shipped from and/or Solid Waste, Physical/Chemical effect on January 1, 1987) major group produced at the facility than any other Methods,’’ EPA Publication No. SW- codes 10 (except 1011, 1081, and 1094), establishment within the facility. 846, Third Edition, September 1986, as 12 (except 1241), or 20 through 39; * * * * * amended by Update I, November 15, industry codes 4911, 4931, or 4939 1992. (limited to facilities that combust coal 4. In § 372.38, add paragraphs (g) and (h) to read as follows: * * * * * and/or oil for the purpose of generating power for distribution in commerce); or Treatment for destruction means the § 372.38 Exemptions. 4953 (limited to facilities regulated destruction of a toxic chemical in waste * * * * * under the Resource Conservation and such that the substance is no longer the (g) Coal extraction activities. If a toxic Recovery Act, subtitle C, 42 U.S.C. toxic chemical subject to reporting chemical is manufactured, processed, or section 6921 et seq.), or 5169, or 5171, under EPCRA section 313. Treatment for otherwise used in extraction by facilities or 7389 (limited to facilities primarily destruction does not include the in SIC code 12, a person is not required engaged in solvent recovery services on destruction of a toxic chemical in waste to consider the quantity of the toxic a contract or fee basis) by virtue of the where the toxic chemical has a heat chemical so manufactured, processed, fact that it meets one of the following value greater than 5,000 British thermal or otherwise used when determining criteria: whether an applicable threshold has units and is combusted in any device (1) The facility is an establishment that is an industrial furnace or boiler. been met under § 372.25 or § 372.27, or with a primary SIC major group or determining the amounts to be reported Waste stabilization means any industry code in the above list. under § 372.30. physical or chemical process used to (2) The facility is a multi- (h) Metal mining overburden. If a either reduce the mobility of hazardous establishment complex where all toxic chemical that is a constituent of constitutents in a hazardous waste or establishments have primary SIC major overburden is processed or otherwise eliminate free liquid as determined by a group or industry codes in the above used by facilities in SIC code 10, a RCRA approved test method for list. person is not required to consider the evaluating solid waste as defined in this (3) The facility is a multi- quantity of the toxic chemical so section. A waste stabilization process establishment complex in which one of processed, or otherwise used when includes mixing the hazardous waste the following is true: determining whether an applicable with binders or other materials, and (i) The sum of the value of services threshold has been met under § 372.25 curing the resulting hazardous waste provided and/or products shipped and/ or § 372.27, or determining the amounts and binder mixture. Other synonymous or produced from those establishments to be reported under § 372.30. terms used to refer to this process are that have primary SIC major group or ‘‘stabilization,’’ ‘‘waste fixation,’’ or industry codes in the above list is [FR Doc. 97–11154 Filed 4–30–97; 8:45 am] ‘‘waste solidification.’’ greater than 50 percent of the total value BILLING CODE 6560±50±F