Federal Register / Vol. 76, No. 73 / Friday, April 15, 2011 / Proposed Rules 21299 

TABLE—EUP MICROBIAL PRODUCT ANALYSIS DATA REQUIREMENTS

Guideline No. Data requirement All use 

patterns 

Test substance 

Test notes 

MP EP 

Product Chemistry and Composition 

885.1100 ........ Product identity ............................................................................ R MP EP ..........................

885.1200 ........ Manufacturing process ................................................................ R TGAI and MP TGAI and EP 1, 2 

885.1250 ........ Deposition of a sample in a nationally recognized culture collection.R TGAI TGAI 3 

885.1300 ........ Discussion of formation of unintentional ingredients ................... R TGAI and MP TGAI and EP 2 

Analysis and Certified Limits 

885.1400 ........ Analysis of samples ..................................................................... R TGAI and MP TGAI and EP 2, 4 

885.1500 ........ Certification of limits .................................................................... R MP EP ..........................

Physical and Chemical Characteristics 

830.6302 ........ Color ............................................................................................ R TGAI TGAI ..........................

830.6303 ........ Physical state ............................................................................... R TGAI TGAI ..........................

830.6304 ........ Odor ............................................................................................. R TGAI TGAI ..........................

830.6313 ........ Stability to normal and elevated temperatures, metals and 

metal ions.

R TGAI TGAI ..........................

830.6317 ........ Storage stability ........................................................................... R TGAI and MP TGAI and EP ..........................

830.6319 ........ Miscibility ...................................................................................... R MP EP 5 

830.6320 ........ Corrosion characteristics ............................................................. R MP EP 6 

830.7000 ........ pH ................................................................................................ R TGAI TGAI ..........................

830.7100 ........ Viscosity ....................................................................................... R MP EP 7 

830.7300 ........ Density/relative density/bulk density (specific gravity) ................ R TGAI TGAI ..........................

(d) * * * 

3. Required for each isolate of a 

microbial pesticide. New isolates must 

be deposited with an agreement to 

ensure that the sample will be 

maintained and will not be discarded 

for the duration of the associated 

experimental use permit(s). 

* * * * * 

[FR Doc. 2011–9191 Filed 4–14–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 281 

[EPA–R10–UST–2011–0097; FRL–9296–1] 

Oregon: Tentative Approval of State 

Underground Storage Tank Program: 

Public Hearing Cancellation 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule; cancellation of 

notice of public hearing. 

SUMMARY: This document cancels a 

public hearing on a proposed 

rulemaking relating to the State of 

Oregon’s application for final approval 

of its Underground Storage Tank (UST) 

Program under Subtitle I of the Resource 

Conservation and Recovery Act (RCRA). 

The Environmental Protection Agency 

did not receive any comments or a 

request for a public hearing. 

DATES: The public hearing originally 

scheduled for April 13, 2011 at 9 a.m. 

has been cancelled. 

FOR FURTHER INFORMATION CONTACT: 

Katherine Griffith, U. S. Environmental 

Protection Agency, Region 10, 1200 

Sixth Avenue, Suite 900, Mail Stop: 

OCE–082, Seattle, WA 98101, phone 

number: (206) 553–2901, e-mail: 

griffith.katherine@epa.gov. 

SUPPLEMENTARY INFORMATION: A notice 

of proposed rulemaking and a notice of 

public hearing that appeared in the 

Federal Register on Wednesday, March 

2, 2011 (76 FR 11404) announced that 

a public hearing was scheduled for 

April 13, 2011, at 9 a.m. at the United 

States Environmental Protection 

Agency, 805 SW. Broadway, Suite 500, 

Portland, Oregon 97205. 

The public comment period for the 

proposed rulemaking expired on April 

1, 2011. The notice of proposed 

rulemaking and notice of public hearing 

instructed those interested in testifying 

at the public hearing to submit a 

request. As of Monday, April 4, 2011, no 

one has requested to speak. Therefore, 

the public hearing scheduled for April 

13, 2011, is cancelled. 

Dated: April 8, 2011. 

Dennis J. McLerran, 

Regional Administrator, Region 10. 

[FR Doc. 2011–9184 Filed 4–14–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 355 

[EPA–HQ–SFUND–2010–0586; FRL–9295–6] 

RIN 2050–AF08 

Emergency Planning and Notification; 

Emergency Planning and List of 

Extremely Hazardous Substances and 

Threshold Planning Quantities 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to revise the 

manner by which the regulated 

community would apply the threshold 

planning quantities (TPQs) for those 

extremely hazardous substances (EHSs) 

that are non-reactive solid chemicals in 

solution form. Specifically, facilities 

with a solid EHS in solution would be 

subject to the Emergency Planning 

requirements if the amount of the solid 

chemical on-site, when multiplied by 

0.2, equaled or exceeded the lower 

published TPQ, based on data that 

shows less potential for the solid 

chemical in solution to remain airborne 

in the event of an accidental release. 

Previously, EPA assumed that 100% of 

the chemical could become airborne in 

the event of an accidental release. 

DATES: Comments must be submitted on 

or before June 14, 2011. 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
21300 Federal Register / Vol. 76, No. 73 / Friday, April 15, 2011 / Proposed Rules 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

SFUND–2010–0586, by one of the 

following methods: 

• http://www.regulations.gov: Follow 

the online instructions for submitting 

comments. 

• E-mail: superfund.docket@epa.gov. 

• Fax: (202) 566–9744. 

• Mail: Superfund Docket, 

Environmental Protection Agency, Mail 

code: [2822T], 1200 Pennsylvania Ave., 

NW., Washington, DC 20460. 

• Hand Delivery: EPA West, Room 

3334, 1301 Constitution Ave., NW., 

Washington, DC. Such deliveries are 

only accepted during the Docket’s 

normal hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–SFUND–2010– 

0586. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional information 

about EPA’s public docket, visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

For additional instructions on 

submitting comments, go to Section I.B 

of the SUPPLEMENTARY INFORMATION

section of this document. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically http:// 

www.regulations.gov/or in hard copy at 

the Superfund Docket, EPA/DC, EPA 

West, Room 3334, 1301 Constitution 

Ave., NW., Washington, DC. The Public 

Reading Room is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744, and the telephone 

number for the Superfund Docket is 

(202) 566–0276. 

FOR FURTHER INFORMATION CONTACT: 

Kathy Franklin, Office of Emergency 

Management, Mail Code 5104A, U.S. 

Environmental Protection Agency, 1200 

Pennsylvania Avenue, NW., 

Washington, DC 20460–0002; telephone 

number: (202) 564–7987; fax number: 

(202) 564–2625; e-mail address: 

franklin.kathy@epa.gov. You may also 

contact the Superfund, TRI, EPCRA, 

RMP and Oil Information Center at (800) 

424–9346 or (703) 412–9810 (in the 

Washington, DC metropolitan area). The 

Telecommunications Device for the Deaf 

(TDD) number is (800) 553–7672 or 

(703) 412–3323 (in the Washington, DC 

metropolitan area). You may wish to 

visit the Office of Emergency 

Management (OEM) Internet site at 

www.epa.gov/emergencies/content/ 

epcra. 

SUPPLEMENTARY INFORMATION: Here are 

the contents of today’s preamble. 

I. General Information 

A. Who is affected by this proposed rule? 

B. What should I consider as I prepare my 

comments for EPA? 

C. What is the statutory authority for this 

proposed rule? 

D. What is the background for this 

proposed rule? 

II. Summary of This Action 

A. What is the scope of this proposed rule? 

B. What is EPA’s rationale for proposing 

the TPQ changes? 

C. What alternative approaches were 

considered? 

D. What are the peer review results? 

E. What are the economic impacts of the 

TPQ changes? 

III. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211: Energy Effects 

I. National Technology Transfer and 

Advancement Act (‘‘NTAA’’) 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

I. General Information 

A. Who is affected by this proposed 

rule? 

Entities that would be affected by this 

proposed rule are those organizations 

and facilities subject to section 302 of 

the Emergency Planning and 

Community Right-to-Know Act (EPCRA) 

and its implementing regulations found 

in 40 CFR part 355, subpart B— 

Emergency Planning. To determine 

whether your facility is affected by this 

action, you should carefully examine 

the applicability provisions at 40 CFR 

part 355. If you have questions 

regarding the applicability of this action 

to a particular entity, consult the person 

listed in the preceding FOR FURTHER

INFORMATION CONTACT section. 

B. What should I consider as I prepare 

my comments for EPA? 

Tips for Preparing Your Comments. 

When submitting comments remember 

to: 

• Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

• Follow directions—The Agency 

may ask you to respond to specific 

questions or organize comments by 

referencing a Code of Federal 

Regulations (CFR) part or section 

number. 

• Explain why you agree or disagree, 

suggest alternatives, and substitute 

language for your requested changes. 

• Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

• If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

• Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

• Explain your views as clearly as 

possible. 

• Make sure to submit your 

comments by the comment period 

deadline identified. 


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C. What is the statutory authority for 

this proposed rule? 

This proposed rule is being issued 

under the Emergency Planning and 

Community Right-to-Know Act of 1986 

(EPCRA), which was enacted as Title III 

of the Superfund Amendments and 

Reauthorization Act of 1986 (Pub. L. 99– 

499), (SARA). The Agency relies on 

EPCRA section 328 for general 

rulemaking authority. 

D. What is the background of this 

proposed rule? 

Title III of SARA (EPCRA) establishes 

authorities for emergency planning and 

preparedness, emergency release 

notification reporting, community rightto-know reporting, and toxic chemical 

release reporting. It is intended to 

encourage state and local planning for, 

and response to releases of, hazardous 

substances and to provide the public, 

local governments, fire departments, 

and other emergency officials with 

information concerning potential 

chemical hazards present in their 

communities. The implementing 

regulations for emergency planning, 

emergency release notification and the 

chemicals subject to these regulations 

(extremely hazardous substances 

(EHSs)) are codified in 40 CFR part 355. 

The implementing regulations for 

community right-to-know reporting (or 

hazardous chemical reporting) are 

codified in 40 CFR part 370. 

Subtitle A of EPCRA establishes the 

framework for local emergency 

planning. The statute requires that EPA 

publish a list of EHSs. The EHSs list 

was established by EPA to identify 

chemical substances which could cause 

serious irreversible health effects from 

accidental releases (52 FR 13378). The 

Agency was also directed to establish 

threshold planning quantities (TPQs) for 

each extremely hazardous substance. 

Under EPCRA section 302, a facility 

which has an EHS in excess of its TPQ 

on-site must notify the State Emergency 

Response Commission (SERC) and Local 

Emergency Planning Committee (LEPC), 

as well as participate in local emergency 

planning activities. Under EPCRA 

section 304, the facility owner or 

operator must report accidental releases 

of EHSs and hazardous substances listed 

under the Comprehensive 

Environmental Response, 

Compensation, and Liability Act 

(CERCLA) listed in 40 CFR 302.4 in 

excess of the reportable quantity (RQ) to 

the LEPC and SERC. Under EPCRA 

section 311 and 312, facilities which 

have a hazardous chemical defined 

under the Hazard Communication 

Standards (HCS) of the Occupational 

Safety and Health Act (OSHA) at or 

above 10,000 pounds or an EHS at or 

above its TPQ or 500 pounds, whichever 

is lower, are required to submit an 

Emergency and Hazardous Chemical 

Inventory form and Material Safety Data 

Sheet (MSDS) for that chemical to their 

SERC, LEPC and local fire department. 

The purpose of the EHSs list is to 

focus initial efforts in the development 

of state and local contingency plans. 

Inclusion of a chemical on the EHSs list 

does not mean state or local 

communities should ban or otherwise 

restrict use of a listed chemical. Rather, 

such identification indicates a need for 

the community to undertake a program 

to investigate and evaluate the potential 

for accidental exposure associated with 

the production, storage or handling of 

the chemical at a particular site and 

develop a chemical emergency response 

plan around those risks. 

1. Regulatory Background 

The list of EHSs and their TPQs are 

codified in 40 CFR part 355, 

Appendices A & B. EPA first published 

the EHSs list and TPQs along with the 

methodology for determining TPQs as 

an interim final rule on November 17, 

1986 (51 FR 41570). In the final rule of 

April 22, 1987 (52 FR 13378), EPA made 

a number of revisions. Among other 

things, the final rule republished the 

EHSs list, added four new chemicals 

and revised the methodology for some 

TPQs. The final rule also defined TPQs 

for EHS solids in solution, based on 

comments on the interim final rule. 

Details of the methodology used in 

determining whether to list a substance 

as an EHS and deriving the TPQs are 

found in the November 1986 and April 

1987 Federal Register notices and in the 

technical support documents in the 

rulemaking record (‘‘Threshold Planning 

Quantities Technical Support 

Document’’; ‘‘Chemicals That Were 

Assigned Threshold Planning Quantities 

Different From the Calculated Index 

Value’’; ‘‘Reactive Solids Whose 

Threshold Planning Quantities Should 

Be Less than 10,000 Pounds’’; ‘‘Changes 

Made to Threshold Planning Quantities 

Between Proposed Rule and Final Rule’’: 

all dated April 7, 1987, and ‘‘Technical 

Support Document for Determination of 

Levels of Concern,’’ November 11, 1986). 

These documents are found in the 

docket for this rulemaking. 

EPA has since amended the EHSs list 

and deleted 51 chemicals. Ten 

chemicals were deleted based on the 

request of petitioners and the remaining 

41 chemicals were deleted as a result of 

Agency review. The chemicals were 

deleted because they did not meet the 

toxicity criteria for the list and/or were 

originally listed in error. Petitions 

requesting deletion of two chemicals, 

paraquat dichloride (which is discussed 

below) and isophorone diisocyante have 

been denied. Isophorone diisocyanate 

was not deleted from the EHSs list 

because its inhalation toxicity met the 

EHSs listing criteria. 

EPA has also changed the TPQs for 

some of the EHSs. In the April 22, 1987 

final rule, EPA reduced the TPQs for 36 

substances, while it raised the TPQs for 

12 substances based on updated acute 

toxicity data. Since then, EPA has 

lowered the TPQ for muscimol because 

of a typographical error in a prior 

rulemaking; EPA has raised the TPQ for 

isophorone diisocyanate because it was 

mistakenly based on a physical state of 

reactive solid, when it is actually a 

liquid; and EPA has denied a petition to 

raise the TPQs for azinphos methyl and 

fenamiphos. 

After a final rule was published on 

November 3, 2008 (73 FR 65452) which 

revised the footnotes to Appendix A and 

B, EPA found some printing errors in 

the Appendix A and B tables of the CFR 

affecting 11 EHS listings. This 

November 3, 2008 rule did not add, 

delete or revise any of the EHS names, 

RQs or TPQs. For the eleven EHSs 

listings, their RQ and TPQ values are 

correct, but just appear under the wrong 

column heading in the table and one 

EHS chemical name mistakenly appears 

in CAS No. column. The errors do not 

appear in the November 3, 2008 FR 

notice, but only in the 2009 and 2010 

versions of the CFR. These errors to the 

CFR will be corrected in a future effort. 

2. Petition for Paraquat Dichloride 

Paraquat dichloride was originally 

listed as paraquat with a CAS No. 1910– 

42–5 on the final EHSs list. The lower 

TPQ was set at 10 pounds for paraquat 

dichloride with a particle size less than 

100 microns in diameter, in molten form 

or as a solid in solution. The higher TPQ 

was set at 10,000 pounds for a particle 

size equal to or greater than 100 microns 

in diameter. ICI Americas submitted a 

petition in October 1989 that requested 

the Agency to remove paraquat from the 

EHSs list or alternatively, revise the 

TPQ. The TPQ for paraquat was based 

on an Immediately Dangerous to Life 

and Health (IDLH) value of 1.5 

milligrams per cubic meter (mg/m3). 

The petitioner requested that EPA base 

the TPQ on the LD50 or LC50 test results 

rather than the IDLH level. LD50 is the 

median lethal dose via dermal exposure 

or ingestion, defined as the dose at 

which 50 percent of the test animals 

died during exposure. LC50 is the 

median lethal concentration, defined as 

the concentration level at which 50 


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1The TPQ for EHSs that are in a molten form onsite is calculated by multiplying the weight of the 

chemical by 0.3 to determine if the lower TPQ is 

met or exceeded. 

percent of the test animals died when 

exposed by inhalation within the stated 

study time. ICI Americas also noted that 

the CAS No. 1910–42–5 represented the 

chemical paraquat dichloride, not the 

paraquat cation, which can form many 

different salts. 

On October 12, 1994 (59 FR 51816), 

EPA denied the petition to delete 

paraquat or modify the TPQ, but 

changed the listed chemical name from 

paraquat to paraquat dichloride. The 

oral toxicity for paraquat dichloride met 

the listing criteria based on the paraquat 

ion only, but did not meet the listing 

criteria based on total paraquat 

dichloride weight. Therefore, EPA 

changed the basis of the listing from an 

oral LD50 of 22 milligrams paraquat ion 

per kg of body weight (mg/kg) to an 

inhalation LC50 of 0.00138 milligrams 

paraquat dichloride per liter of air (mg/ 

L). Because this inhalation toxicity met 

the EHSs listing criteria, paraquat 

dichloride was not deleted from the 

EHSs list. Further explanation of EPA’s 

rationale for denying the petition can be 

found in the October 12, 1994 final rule 

(59 FR 51816). 

3. Zeneca’s Request To Reconsider the 

Paraquat Dichloride Petition 

In November 1999, Zeneca (formerly 

ICI Americas) requested that EPA 

reconsider either removing paraquat 

dichloride from the EHSs list or raising 

its TPQ. Zeneca claimed that the form 

of the chemical used in inhalation 

toxicity tests (temporarily atomized 

powder under laboratory conditions) is 

not relevant data to use for listing 

paraquat dichloride. Zeneca believed 

that it was highly unlikely that 

inhalable particles or vapors of paraquat 

dichloride could become airborne 

during an accidental release. Zeneca did 

not agree with the rationale EPA used to 

assign a TPQ of 10 pounds to paraquat 

dichloride, which is only manufactured, 

processed and used in solution form. 

Zeneca claimed that EPA did not 

explain why a greater potential for 

airborne dispersion for solids in 

solution exists as opposed to liquid 

chemicals. 

On October 11, 2000, Syngenta 

(formerly Zeneca) filed an action in U.S. 

District Court for the District of 

Columbia under the Administrative 

Procedures Act seeking judicial review 

of EPA’s decisions regarding paraquat 

dichloride. In this complaint, Syngenta 

requested EPA to either delete paraquat 

dichloride from the EHSs list or raise its 

TPQ. On January 23, 2003, EPA filed a 

Motion for Voluntary Remand in order 

to reconsider the petition. The court 

granted EPA’s motion and dismissed 

Syngenta’s complaint on January 31, 

2003. By order of February 24, 2003, the 

court denied Syngenta’s Motion to 

Amend Judgment. EPA again reviewed 

the request to delete paraquat dichloride 

and/or to raise its TPQ. In a November 

21, 2003 letter to the petitioner, EPA 

reaffirmed its denial to delete paraquat 

dichloride from the EHSs list. EPA 

concluded that the acute toxicity of 

paraquat dichloride meets the criteria 

for listing it as an EHS chemical. In the 

same letter to the petitioner, however, 

EPA agreed to consider a revision to the 

TPQ for paraquat dichloride in the 

context of a proposed rule to amend the 

TPQ for all EHS chemicals handled as 

solids in solution. This letter is in the 

docket for today’s rulemaking. 

II. Summary of This Action 

A. What is the scope of this proposed 

rule? 

The scope of this proposed rule is to 

revise the manner by which the 

regulated community would apply the 

TPQ for EHS chemicals that are handled 

as solids in solution. There are 157 EHS 

chemicals that are non-reactive solids at 

ambient temperature, which could 

potentially be affected by this change, if 

they are handled by facilities in a 

solution form. The affected chemicals 

are identified in Appendix C in the 

‘‘Technical Support Document for 

Revised TPQ Method for Solids in 

Solution,’’ which is in the Docket to this 

rulemaking. These 157 chemicals 

appear with two TPQs, (the higher TPQ 

is 10,000 pounds) in Appendix A and B 

of 40 CFR part 355. However, this 

change will not apply to the 12 solid 

EHS chemicals that are reactive solids 

(noted by footnote ‘‘a’’ in Appendix A 

and B of 40 CFR part 355). Reactive 

solids are highly reactive with air or 

water or are explosive. Because of this, 

they are more likely than other solids to 

be dispersed into the air due to the 

energy or heat created when they react. 

Other reactive solids form toxic gases 

when they react with air or water. The 

explanation for not assigning a 10,000 

pound TPQ to each of the reactive solids 

is discussed in the document, ‘‘Reactive 

Solids Whose Threshold Planning 

Quantities Should Be Less Than 10,000 

Pounds,’’ April 7, 1987, which can be 

found in the docket to this rulemaking. 

Additionally, the proposed 

methodology of applying TPQs for 

solids in solution does not affect the 

reporting requirements for Sections 311 

and 312 of EPCRA (40 CFR part 370). 

Specifically, emergency planning 

notification under Section 302 helps 

LEPCs identify those facilities whose 

accidental releases pose risks to the 

surrounding community so they can 

develop emergency plans that identify 

the location and number of affected 

populations, evacuation or shelter-inplace procedures, etc. On the other 

hand, Sections 311 and 312 require 

submission of MSDSs and an on-site 

inventory of hazardous chemicals to 

help emergency responders assess how 

to respond to an emergency release or 

fire. Responders need the amounts, 

manner of storage and locations of the 

chemical on-site, not only the amount 

released off-site. They need information 

on the chemical and physical 

properties, hazard ratings, toxicity 

information and incompatibilities of the 

chemical, as well as measures needed to 

contain the spill or fire at the facility. 

They need to know what type of 

protective equipment is needed to 

protect them from exposure, not only 

airborne, but dermal. 

Solid EHSs (except reactive solids) 

have a 10,000 pound TPQ or a specified 

lower TPQ for certain forms. For 

purposes of complying with the 

emergency planning notification 

requirements of Section 302 of EPCRA, 

EPA is proposing that facilities multiply 

the amount of EHS chemical handled as 

a solid in solution on-site by 0.2 and 

then determine if this amount equals or 

exceeds the established lower TPQ. If 

the amount of the solid EHS in solution 

on-site multiplied by 0.2 does not equal 

or exceed the lower TPQ for that solid 

EHS, then the facility is not subject to 

the EPCRA Section 302 emergency 

planning notification requirements for 

that substance. This amount includes 

only the weight of the chemical and not 

the solvent or other chemicals in 

solution. The amount of solid in 

solution may be determined by 

multiplying the weight percent of the 

solid in solution in a particular 

container by the weight of the solution. 

Solutions include aqueous or organic 

solutions, slurries, viscous solutions, 

suspensions, emulsions, and pastes. The 

revised TPQ methodology for solids in 

solution is similar to the use of the TPQ 

for EHS chemicals that are molten 

solids.1

The emergency release notification 

requirements under EPCRA Section 304 

are not affected by this proposal. 

Section 304 requires facilities to notify 

the community emergency coordinator 

for the LEPC of any area likely to be 

affected by the release and the SERC of 

any area likely to be affected by the 

release (defined in 40 CFR 355.42) at or 

above the reportable quantity (RQ) of 


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2For these examples, the EHS is not paraquat 

dichloride, but an unspecified solid EHS. 

any EHS or CERCLA hazardous 

substance. The RQ is not the same as the 

TPQ. TPQs are based on acute 

mammalian toxicity and potential for 

airborne dispersion. RQs, on the other 

hand, are developed using several 

criteria, including aquatic toxicity, 

mammalian toxicity, ignitability, 

reactivity, chronic toxicity, potential 

carcinogenicity, biodegradation, 

hydrolysis, and photolysis (50 FR 

13468, April 4, 1985). 

As an example, a facility has 4,000 

pounds of a solution of 37% by weight 

paraquat dichloride on-site. Therefore, 

this solution contains 1,480 pounds of 

paraquat dichloride (0.37 × 4,000 

pounds). The facility would multiply 

1,480 pounds by 0.2 which equals 296 

pounds. This amount is then compared 

to the TPQ for paraquat dichloride, 

which is 10 pounds. Because this 

amount exceeds the 10 pound TPQ, the 

facility is required to comply with the 

emergency notification requirements of 

Section 302 of EPCRA. As another 

example, a facility has 10 gallons of a 

solution of 37% by weight paraquat 

dichloride on-site. The density of the 

solution is 9.33 pounds per gallon. 

Therefore, this solution contains 34.5 

pounds of paraquat dichloride (10 gal × 

9.33 lb/gal × 0.37). The facility would 

multiply 34.5 pounds by 0.2 which 

equals 6.9 pounds. This amount is then 

compared to the TPQ for paraquat 

dichloride, which is 10 pounds. Because 

this amount is less than the 10 pound 

TPQ, the facility is not required to 

comply with the emergency notification 

requirements of Section 302 of EPCRA. 

Facilities that handle both the 

powdered and solution forms of a 

particular solid EHS will have to 

consider the quantities of each form and 

the particle size to determine whether 

they exceed a TPQ. Below are several 

examples of how to apply the revised 

TPQ methods in various cases.2

Solid in solution exceed lower TPQ, 

powder below 10,000 pounds. A facility 

has 5,000 pounds of a pure EHS powder 

form on-site which is less than the 

10,000 pound TPQ. However, they have 

1,000 gallons of a 35% by weight EHS 

solid in solution with a density of 9 

pounds per gallon. The amount of solids 

in solution on-site is 3,150 pounds 

(1000 gallons × 9 pounds per gallon × 

0.35). Multiplying the 3,150 pounds of 

solid in solution by 0.2 equates to 630 

pounds, which exceeds the lower TPQ 

of 500 pounds. Thus, the facility must 

report under Section 302 of EPCRA 

based on exceeding the lower TPQ for 

the solid in solution form. 

Solid in solution below lower TPQ, 

powder exceeds 10,000 pounds. A 

facility has 11,000 pounds of a pure 

EHS solid powder on-site which is more 

than the 10,000 pound TPQ. They also 

have 2,000 gallons of a 10% by weight 

EHS solid in solution with a density of 

9 pounds per gallon. The amount of 

solids in solution on-site is 1,800 

pounds (2,000 gallons × 9 pounds per 

gallon × 0.10). Multiplying the 1,800 

pounds of solid in solution by 0.2 

equates to 360 pounds, which is less 

than the lower TPQ of 500 pounds. 

Thus, the facility must report under 

Section 302 of EPCRA based on 

exceeding the 10,000 pound TPQ for the 

solid in powder form. 

Solid in solution below lower TPQ, 

powder below 10,000 pounds. A facility 

has 5,000 pounds of a pure EHS solid 

powder which is less than the 10,000 

pound TPQ. They also have 1,500 

gallons of a 15% by weight EHS solid 

in solution with a density of 9 pounds 

per gallon. The amount of solids in 

solution on-site is 2,025 pounds (1.500 

gallons × 9 pounds per gallon × 0.15). 

Multiplying the 2,025 pounds of solid in 

solution by 0.2 equates to 405 pounds, 

which is less than the lower TPQ of 500 

pounds. Thus, the facility is not 

required to report under Section 302 of 

EPCRA because it does not exceed the 

lower 500 pound TPQ for the solid in 

solution form or the 10,000 pound TPQ 

for the powder with particle size greater 

than 100 microns. 

Powdered product less than 100 

microns, processed into solution. If the 

same amounts of solid EHS were 

involved as the same scenarios above, 

except the powder has a particle size of 

less than 100 microns, then the lower 

500 pound TPQ would apply to the 

powder instead of the 10,000 pounds. If 

either the amount of powder or solid in 

solution exceeds the lower TPQ, the 

facility would be required to report 

under Section 302 of EPCRA. 

EPA is proposing this change based 

on data in the literature that shows the 

original assumption of 100% potential 

airborne release for solids in solution is 

inappropriate because it appears to 

overestimate the amount of chemical 

that would remain airborne after release. 

Review of the literature for accidental 

releases of liquid aerosols suggests a 

new methodology for applying the TPQs 

for solids in solution is warranted. The 

data shows that no more than 20% of 

the release is expected to remain 

airborne. More detailed discussion can 

be found in Section II.B.4.a of this 

preamble and in the technical support 

document in the docket to this proposed 

rule. 

EPA’s revised TPQ methodology for 

EHS solids in solution and supporting 

data was peer reviewed and the 

technical support document was revised 

based on peer review comments. The 

results of the peer review and response 

to peer review comments are found in 

a separate document, ‘‘Peer Review of 

Technical Support Document for 

Revised TPQ Method for EHS Solids in 

Solution,’’ which is available in the 

docket to this rulemaking. A summary 

of the peer reviewer’s comments and 

EPA responses to them are presented in 

Section II.D of this preamble. 

B. What is EPA’s rationale for the TPQ 

changes? 

1. Development of Existing TPQs 

The TPQs were initially assigned 

based on a ranking scheme using a Level 

of Concern (LOC) based on acute 

toxicity and the potential for airborne 

dispersion. The TPQ methodology is 

described in detail in the ‘‘Threshold 

Planning Quantities Technical Support 

Document’’ dated April 7, 1987, which 

can be found in the docket for this 

rulemaking. For each chemical, a 

ranking index was calculated which 

equaled the LOC divided by an air 

dispersion factor (V). For gases, V = 1, 

while for liquids, V was based on a 

volatilization model using the molecular 

weight and boiling point of the 

chemical. 

Solid EHS chemicals with a particle 

size less than 100 microns in diameter, 

molten solids, solids in solution, and 

solids with a National Fire Protection 

Association (NFPA) reactivity rating of 

2, 3, or 4 were assigned a V equal to 1. 

If the EHS solid does not have a particle 

size less than 100 microns, is not molten 

or handled in solution form, and does 

not have an NFPA reactivity rating of 2, 

3, or 4, then the EHS chemical was 

assigned a TPQ of 10,000 pounds, 

which corresponds to the highest index 

value. Solids with an NFPA reactivity 

rating of 2, 3, or 4 are noted with 

footnote ‘‘b’’ in the EHSs list. 

Between one and 10,000 pounds, 

chemicals were assigned to the 

intermediate TPQ categories of 10, 100, 

500 or 1,000 pounds based on the order 

of magnitude ranges of the index values. 

Also, for solids in molten form, before 

applying the TPQ, the amount of 

chemical on-site at any time is 

multiplied by an adjustment factor of 

0.3 to conservatively account for the 

maximum volatilization of the spilled 

molten substance that is likely to take 

place. 


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3EPA agrees with the petitioner that using the 

liquid volatilization model to set a TPQ for paraquat 

dichloride, whether handled as a pure chemical or 

in solution, is inappropriate. However, the TPQ for 

paraquat dichloride was not set using the 

volatilization method. 

4USDOE. 1994. DOE Handbook, Airborne Release 

Fractions/Rates and Respirable Fractions for 

Nonreactor Nuclear Facilities. December 1994. US 

Department of Energy, Washington, DC 20585 DOE– 

HDBK–3010–94. Volume 1—Analysis of 

Experimental Data and Volume II—Appendices. 

2. Petitioner’s Arguments for Changing 

Paraquat Dichloride’s TPQ 

In their complaint, Syngenta did not 

agree with EPA’s rationale to assign a 

lower TPQ of 10 pounds to paraquat 

dichloride, which is only manufactured, 

processed and used in solution form. 

Syngenta claimed that EPA did not 

explain why it assumed a greater 

potential for airborne dispersion for 

solids in solution as opposed to liquid 

chemicals. In addition, Syngenta argued 

that Paraquat Dichloride solution is 

basically a non-volatile salt dissolved in 

water, and that the physical and 

chemical characteristics of many solids 

like paraquat dichloride limit their 

capacity to become airborne. Pure 

paraquat dichloride has a very low 

vapor pressure and decomposes at about 

340° Celsius (C) before it reaches a 

boiling point. Syngenta further argued 

that using a liquid volatilization model 

to set a TPQ for paraquat dichloride is 

inappropriate.3 Moreover, Syngenta 

stated that ‘‘the laws of physics preclude 

the possibility of a release of paraquat 

dichloride becoming completely 

airborne. Regardless of the emergency 

release scenario (extreme temperature, 

explosion, etc.), the amount to become 

airborne would not only be less than 

100%, it would be virtually zero.’’ 

Syngenta also stated that although 

paraquat dichloride can be temporarily 

atomized under laboratory conditions 

for testing animals, they do not believe 

that inhalable particles or vapors of 

paraquat dichloride can become 

airborne during an accidental release. 

In discussions with EPA, Syngenta 

also raised the issue of aerosol size as 

a factor to be considered in developing 

the TPQ methodology for EHS solids in 

solution. 

3. Basis for Existing Solids in Solution 

TPQs 

In the April 7, 1987 ‘‘Threshold 

Planning Quantities Technical Support 

Document’’ (page 27), EPA noted that 

‘‘solids may also be handled in solution 

and molten form and could potentially 

follow a liquid release scenario. 

However, even at molten temperatures, 

significant amounts of vapor are not 

likely to be generated.’’ On page 24 of 

the same technical support document, 

when discussing liquid releases, EPA 

assumed that a spill of a liquid could 

occur as a result of an accidental 

situation that involves heat (e.g. fire, 

exothermic runaway reaction, or 

reactions with air or water). 

More specifically, when a solid 

chemical is in solution form, the 

solution can behave like a liquid during 

an accidental release and be dispersed 

into the air due to overheating, 

overpressure or anything that can cause 

a loss of containment from a vessel or 

piece of equipment. An accident 

involving a release of energy could 

create a liquid aerosol type of release 

into the air. Such liquid aerosol 

droplets, if small enough, can be 

dispersed into the air and remain 

airborne beyond the facility boundary, 

resulting in EHS exposure to the 

surrounding community. Environmental 

conditions and the properties of the 

specific chemical will dictate the 

behavior and dispersion of the chemical 

after a release or spill has occurred. For 

example, the solvent can evaporate from 

solution (especially at higher 

temperature) and small particulates of 

solid remaining after evaporation of the 

solvent can potentially be carried offsite. EPA recognized that the solid EHS 

(dissolved or suspended in a liquid 

solution) will not be dispersed into the 

air based on volatilization of the solid, 

but because of the energy released from 

the accident, or by wind. 

At the time of the April 1987 

rulemaking, EPA did not have sufficient 

information to determine how much of 

the solid EHS in solution could be 

dispersed airborne off-site and 

conservatively used V=1 for this release 

scenario. Furthermore, although 

paraquat dichloride decomposes at a 

temperature of 340° C (644° Fahrenheit, 

F), EPA believed that accidents 

involving aerosol releases of paraquat 

dichloride solution could potentially 

occur at temperatures less than 340° C. 

Boiling solutions containing nonvolatile solids result in vaporization of 

the solvent, but not the solid. However, 

the turbulence of boiling the solution 

can entrain liquid aerosol droplets 

containing the solid into the air. 

4. Airborne Dispersion of Solids in 

Solution. 

Based on more recent information, 

EPA has re-evaluated the assumption of 

100% airborne releases when setting the 

TPQ for solids in solution, not just for 

paraquat dichloride solution, but for all 

EHS solids in solution, except for the 12 

solid EHS chemicals that are reactive 

solids. 

a. Liquid Aerosol Release Data 

EPA reviewed data in the literature on 

releases of aerosols to evaluate their 

potential use for revising the application 

of the TPQs for EHS solids in solution. 

EPA was specifically looking for data on 

how much of a solution containing a 

dissolved or suspended solid would 

remain airborne after an accidental 

release. One problem encountered in 

reviewing the literature was some 

studies only involved chemicals that are 

pure liquids and which have vapor 

pressures much higher than solid 

chemicals. That data would likely not 

represent the release and dispersion of 

a solid chemical that normally has a 

very low vapor pressure. However, the 

U.S. Department of Energy (USDOE) 

used experimental liquid aerosol release 

data involving metal salt solutions to 

estimate the Airborne Release Fraction 

(ARF) of metal salt solutions for a wide 

variety of release scenarios. This 

information was collected in a 1994 

report, which is available in the docket 

to this rulemaking.4 Many of the USDOE 

scenarios had very low ARFs; EPA 

considered the scenarios with higher 

release potential to best serve the 

purposes of emergency planning. Also, 

scenarios which required hypothetical 

input data to compute the ARF were not 

used. When median and bounding 

(maximum) values of ARFs were 

provided for a scenario, EPA used the 

maximum ARF in order to be 

conservative and cover the worst case 

scenario. EPA summarized the data 

from those DOE aerosol release 

scenarios with the highest (ARFs) in the 

table below. (The ARF values, release 

scenarios from the USDOE report and 

other data are discussed in greater detail 

in the technical support document for 

this rulemaking, which is available in 

the docket to this rulemaking.) From 

this data, EPA determined that a worst 

case estimate of the ARF for a solution 

containing non-volatile solids would be 

0.2. This particular ARF is based on the 

scenarios of an aqueous solution or air 

dried salts under gasoline fire on a 

metal surface. The airborne fractions 

from the USDOE report generally 

contained aerosol sizes less than or 

equal to 100 microns. Droplets larger 

than 100 microns in diameter are 

expected to fall out before they reach a 

community outside a facility. 

Aerosol release scenario 

Maximum 

airborne 

release 

fraction 

(ARF) 

Thermal Stress from Boiling ......... 0 .002 


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Aerosol release scenario 

Maximum 

airborne 

release 

fraction 

(ARF) 

High Pressure Venting Below Liquid Level .................................... 0 .12 

Pressure Venting Above the Liquid Level .................................... 0 .002 

Superheated Liquid Temp ≥ 50 °C 

and ≤ 100 °C ............................. 0 .1 

Superheated Liquid Temp ≤ 50 °C 0 .01 

Burning Organic Layer Over 

Aqueous Solution ...................... 0 .1 

Aqueous Solution or Dry Salt 

Under Gasoline Fire on Metal .. 0 .2 

Aerodynamic Entrainment and 

Re-Suspension .......................... 0 .1 

Using the highest airborne release 

fraction rather than an average result of 

the scenarios is consistent with the 

intent of the emergency planning 

program to plan for a reasonable worst 

case scenario. This data is a good 

surrogate to use to predict the maximum 

potential aerosol release fraction of EHS 

solids in solution in the event of an 

accidental release. Water is probably the 

most common solvent that would be 

used with most of the EHS solids, 

whether they are dissolved, suspended 

or emulsified in water. Many of the EHS 

solids are pesticides and pesticides are 

commonly applied as water solutions or 

emulsions. 

EPA also looked at experimental data 

collected by the Center for Chemical 

Process Safety (CCPS) for aerosol 

releases of water and cyclohexane. 

CCPS, a directorate of the American 

Institute of Chemical Engineers 

(AICHE), was established in 1985 to 

develop and disseminate technical 

information for use in the prevention of 

major chemical process incidents. CCPS 

develops and publishes guidelines, 

conducts seminars, symposia, training 

programs and meetings on chemical 

process-safety matters; CCPS also 

cooperates with other organizations, 

both internationally and domestically, 

to promote process safety. CCPS’s 

activities are supported by funding and 

expertise from over 100 entities 

including, industry, consulting firms 

and governmental organizations. USEPA 

is a member of this organization. 

In 1989, the CCPS Vapor Cloud 

Modeling Subcommittee began an 

‘‘Aerosol Project’’ to meet some of the 

research objectives proposed to the U.S. 

National Vapor Cloud Research 

Committee, which included developing 

a superheated liquid release model and 

developing experimental data to 

validate the model. The experimental 

field data was the result of field 

controlled-release experimentation by 

CCPS with financial assistance by 

special grants from some of the CCPS 

sponsors and from the USEPA and 

USDOE. The experimental superheated 

liquid release data was developed, 

documented, peer reviewed and, where 

necessary, corrected. The Vapor Cloud 

Modeling Subcommittee contracted a 

review of the fundamental basis for the 

RELEASE model and to make model 

improvements to reconcile the 

cyclohexane, chlorine and methylamine 

test data. The results of the model 

development and the experimental field 

data used was published in 1999 in a 

CCPS concept book ‘‘RELEASE: A Model 

with Data to Predict Aerosol Rainout in 

Accidental Releases’’ by David W. 

Johnson and John L. Woodward. 

EPA did not use the aerosol release 

fraction from the CCPS data because 

these liquids did not contain any solid 

material in solution. Specifically, the 

reported airborne release fraction for 

water varied from 0.03 to 0.54 and for 

cyclohexane varied from 0.36 to 0.94. 

Cyclohexane with a vapor pressure of 95 

millimeters (mm) mercury (Hg) is more 

volatile than water with its vapor 

pressure of 24 mm Hg. It is not a good 

comparison to use aerosol release 

fractions of volatile liquids to estimate 

the aerosol release fractions of a solid in 

solution because solids generally are not 

very volatile. The water aerosol data 

might be a close surrogate for estimating 

a release of an aqueous solution of the 

solid, but it does not have the important 

constituent of a dissolved solid, which 

might influence the amount of aerosol 

remaining entrained in the air. 

However, the CCPS data for water 

supports EPA’s belief that assuming a 

100% airborne liquid aerosol release is 

inappropriate because the water aerosol 

fractions measured in the experiments 

were less than one. CCPS also had 

experimental release data for CFC–11 

and chlorine (both gases) and 

methylamine (a highly volatile chemical 

with a vapor pressure of 300 mg Hg), but 

EPA did not consider this data for use 

as a good analogy because of their high 

volatility and they did not contain any 

solids. 

USDOE was interested in applying the 

experimental aerosol release data to 

estimate airborne fractions of liquid 

aerosol releases that were below 

respirable size, which they defined as 

particles of 10 micron Aerodynamic 

Equivalent Diameter (AED) or less. By 

USDOE’s definition, respirable size 

particles are those that can be 

transported through the air and inhaled 

into the human respiratory system. 

For purposes of establishing TPQs, 

EPA chose a distance of 100 meters (330 

feet) to represent the distance from a 

source inside a chemical facility to the 

point where the community might be 

exposed. This decision was based on 

data indicating that a particle size 

greater than 100 microns is not likely to 

be deposited more than 100 meters from 

the source (‘‘Threshold Planning 

Quantities Technical Support 

Document,’’ USEPA April 7, 1987, 

Public Docket 300PQ, Document No. 

300PQ–2–21). The 100-micron cutoff is 

also consistent with CERCLA 

regulations (for reportable quantities) 

which also uses a 100 micron particle 

size for powdered materials. 

Most of the USDOE experimental 

aerosol release data had median aerosol 

diameters of less than 100 microns. This 

size is consistent with what EPA 

believes is the size of aerosols to which 

the community could be exposed. On 

the other hand, the water and 

cyclohexane aerosol release data 

compiled by CCPS had much larger 

mean aerosol diameter sizes, generally 

over 100 microns. For the reasons 

already discussed and because it is 

likely that aerosol releases with 

diameters larger than 100 microns will 

fall out of the air before they reach a 

community, the water and cylcohexane 

aerosol release fractions were not used 

in determining the TPQs for solids in 

solution. 

b. Liquid and Solution TPQ Comparison 

Pure EHS liquids could also be 

released accidentally as aerosols via the 

same catastrophic scenarios 

(overpressure, superheating). It could be 

argued that perhaps the TPQ method for 

solids in solution could also apply to 

liquids. However, this goes against the 

ranking used for setting TPQs based on 

the extent of airborne releases by 

physical state as being high for gases, 

less for liquids and even less for solids 

in solution. Currently, the release 

scenario used for developing the liquid 

TPQs considers a spill of the liquid due 

to a loss of containment. The liquid then 

escapes into the air by volatilization. An 

airborne release of solids in solution 

will require more than a failure of 

containment to have appreciable 

airborne dispersion. An energy source, 

such as overpressure or high 

temperature would be required to 

disperse the solution into the air and 

create aerosol droplets. Not all of the 

droplets will stay airborne (unlike 

volatilized vapors) and affect the 

community, whose exposure depends 

on droplet size and distance from the 

facility fence line. 

If one assumes that there is an equal 

potential for airborne releases for gases, 

liquids, small particulate solids and 

solids in solution, then the TPQ ranking 

scheme would change radically and rely 


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21306 Federal Register / Vol. 76, No. 73 / Friday, April 15, 2011 / Proposed Rules 

almost entirely on the toxicity of the 

chemical. However, EPA believes that 

airborne dispersibility is a critical factor 

in determining TPQs. Limited state and 

local resources should be focused on 

those EHS chemicals that can 

potentially cause the greatest harm and 

less on those that might be toxic, but 

less likely to be released to the air and 

carried beyond the facility boundary. 

As a hypothetical scenario, EPA 

determined if the current TPQ method 

for liquids gives more conservative (or 

at least as conservative) TPQs (lower 

thresholds) as compared to the proposed 

TPQ methodology for solids in solution. 

To do this, EPA estimated the TPQs for 

liquids by assuming that V = 1, and then 

divided it by 0.2 (based on an expected 

20% maximum airborne dispersion) to 

determine the amount of EHS on-site 

that would trigger emergency planning 

notification. These amounts or ‘‘effective 

TPQs’’ were then compared to the 

current listed TPQs for liquids. For 116 

of the 163 EHS liquids, the current 

TPQs for liquids based on volatilization 

were equal to or lower than the new 

effective TPQs based on aerosolization. 

Most of the other 47 liquids had current 

TPQs that were about twice the effective 

TPQ. This comparison with a table of 

results for the EHS liquids is discussed 

in the technical support document for 

this rulemaking. Based on this analysis, 

EPA believes that using the 

volatilization model to establish V for 

liquid TPQs is still appropriate. The 

spilled liquid using a boiling point 

scenario is probably the most prevalent 

worst-case scenario that is reasonable to 

use for establishing TPQs for liquids. 

Further examination of the 47 liquid 

chemicals was undertaken to see why 

these had TPQs greater than the 

effective TPQs—that is, about twice the 

effective TPQ. Many of these liquids 

had effective TPQ values of 5, 50 and 

5,000 pounds. However, there are no 

TPQs of 5, 50 or 5,000 pounds. Rather, 

the use of order of magnitude index 

ranges assigned to various TPQ levels 

resulted in assigned TPQ values of 1, 10, 

100, 500, 1,000 and 10,000 pounds. 

Thus, where the effective TPQs are 

either 5, 50, or 5,000 pounds, the 

comparison of a current TPQ versus an 

effective TPQ may not be valid. More 

discussion on this can be found in the 

technical support document. 

C. What alternative approaches were 

considered? 

Given the data in the literature 

available on aerosol releases of solids in 

solution, EPA considered various 

alternative approaches. One alternative 

was using an index ranking method 

with an assigned V similar to the 

original method of assigning TPQs. 

Another alternative was to apply the 

ARF to the existing lower TPQ for solids 

to develop a new TPQ for solids in 

solution for each solid EHS. A third 

alternative was similar to the approach 

of multiplying the maximum ARF by 

the amount on-site, except that the ARF 

would only represent aerosol sizes less 

than respirable size. Below we discuss 

these alternatives, as well as the basis 

for not selecting them. 

1. Index Ranking Method With V Less 

Than 1 

This alternative would establish TPQs 

using a ranking approach based on each 

chemical’s physical state, acute toxicity 

and, the potential for the chemical to 

become airborne (V). For this 

alternative, V would be set to 0.2 for 

EHS solids in solution. 

For the original development of the 

TPQs, the ranking index was defined as 

the LOC divided by V, where V was set 

equal to 1 for gases and solids in 

powder form with a particle size less 

than 100 microns, molten solids and 

solids in solution. For liquid EHSs, V 

(the potential to become airborne) 

depended upon the property of 

volatility (evaporation of liquid into the 

gas phase). In the development of V for 

use in setting TPQs for liquids, V 

represented the mass per time evolved 

to the air per mass of the spill. This is 

explained in further detail in the April 

1987 ‘‘Threshold Planning Quantities 

Technical Support Document’’ available 

in the docket. 

Most of the values for V for liquids are 

approximately 0.1 (see Appendix B in 

the ‘‘Technical Support Document for 

Revising TPQ Method for Solids in 

Solution’’ for this rule). Using a higher 

V equal to 0.2 for solids in solution 

implies that in the event of an 

accidental release, more of the solution 

would become airborne than if it were 

volatilized from a liquid spill. Even if a 

liquid were accidentally released via 

aerosol form, the volatility of the liquid 

chemical will increase the fraction that 

remains dispersed in the air. Therefore, 

it would not be a fair representation to 

have a solid in solution with a V higher 

than that used for a volatile liquid. Also, 

because there are different mechanisms 

involved in the two types of releases, it 

may not be comparable to use the 0.2 as 

a substitute for V for solids in solution. 

2. Existing TPQ and Aerosol Release 

Fraction 

Another alternative is to apply the 

ARF to the existing lower TPQ for solids 

to develop a new TPQ. For example, the 

lower TPQ for paraquat dichloride is 10 

pounds. Dividing 10 pounds by 0.2, the 

maximum expected aerosol release 

fraction for a solution would result in a 

new TPQ of 50 pounds for paraquat 

dichloride in solution form. For each of 

the 157 non-reactive solids on the EHSs 

list, a new TPQ for the solution form of 

the EHS solid could be determined and 

listed. However, for each solid nonreactive chemical, there are already two 

TPQs, one developed based on the 

ranking index methodology of (Index = 

Level of Concern/V) and one based on 

the default TPQ of 10,000 pounds for 

non-molten, non-reactive, non-solution 

solids with a particle size equal to or 

greater than 100 microns. Including a 

third set of TPQs for EHS solids in 

solution could be confusing to the 

regulated community. Thus, EPA 

believes that using the existing lower 

TPQ for solids and comparing that to 

the product of the amount on-site 

multiplied by 0.2 is a better approach, 

and similar to the approach used for the 

molten solids form. 

3. Using ARF Limited to Smaller 

Aerosol Sizes 

Another approach considered is 

similar to the proposed approach of 

multiplying the maximum ARF by the 

amount on-site, except that the ARF 

would only represent the fraction of 

aerosols with particles less than 

respirable size. Through discussions 

with the petitioner and EPA’s November 

2003 response to the petition, EPA has 

considered whether aerosol size should 

be used as a factor in developing new 

TPQs for solids in solution. A 

consultant for Syngenta believes that 

EPA should only consider the 

dispersion of aerosols with particle sizes 

less than or equal to 4 microns because 

these smaller aerosols are the size that 

can enter the lung and because the 

inhalation toxicity tests used for the 

basis of the EHSs listing only used very 

small particles. 

This approach would require 

sufficient data on the aerosol size 

distribution for each release scenario to 

develop a new ARF that would include 

only aerosols of 4 microns and lower. 

The ARFs currently cited for the 

scenarios used for the preferred 

approach include aerosol sizes of 100 

microns and lower. For some of the 

USDOE accident scenarios, it is possible 

to recalculate the airborne aerosol 

fractions using the raw experimental 

data to include only aerosols less than 

or equal to 4 microns in diameter. This 

results in smaller airborne release 

fractions. 

EPA does not believe this approach 

should be used for a number of reasons, 

including: 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
Federal Register / Vol. 76, No. 73 / Friday, April 15, 2011 / Proposed Rules 21307 

5USEPA. October 2004. Air Quality Criteria for 

Particulate Matter. Vol I, Chapter 2 and Volume II, 

Chapter 6. U.S. Environmental Protection Agency, 

Office of Research and Development, National 

Center for Environmental Assessment. Research 

Triangle Park, NC. EPA/600/P–00/002aF and EPA/ 

600/P–00/002bF 

• Inhalation toxicity tests are 

designed to use small particles to ensure 

that the lung is exposed. However, EPA 

is not using the inhalation toxicity for 

risk assessment, but only as a screening 

tool. 

• Although the EHSs listing for 

paraquat dichloride is based on 

inhalation toxicity, EPA also has 

concerns regarding dermal and 

ingestion exposure via swallowing for 

the larger aerosols. 

• Solvent evaporation from larger 

aerosols can also create smaller aerosols 

which can enter the lung. 

Each of these is discussed below. 

a. Aerosol Size in Toxicity Tests 

Aerosols may be defined as a 

suspension of solid or liquid particles in 

air. Inhalation acute toxicity tests are 

purposely designed with very small 

diameter particles in order to ensure 

that particles are small enough to enter 

the rodent’s lungs and test the toxicity 

in the lungs. Larger particles may not 

enter deep areas of the lungs and thus, 

test results may be misinterpreted if 

little inhalation toxicity is shown. EPA 

is not attempting to use the airborne 

aerosol fraction for purposes of risk 

assessment, but only as a tool to set 

screening levels for the amount of 

chemicals on-site which may potentially 

cause harm if accidentally released. 

Also, the size of the aerosols used in an 

animal laboratory test cannot be 

assumed to be the same as those that 

people may be exposed to during an 

accidental release. 

b. Particle Size and Exposure 

Inhalable size particles enter the 

respiratory tract, including the head 

airways and are generally equal to or 

less than 100 microns. Thoracic size 

particles (generally equal to or less than 

10 microns) travel past the larynx and 

reach the lung airways and the gasexchange regions of the lung. Respirable 

size particles (generally less than or 

equal to 4 microns) are a subset of 

thoracic particles that are more likely to 

reach the gas-exchange region of the 

lung.5

Most particles that enter the upper 

airways are trapped in mucous that 

moves to the throat and is swallowed 

within a few hours. Thus, instead of 

inhalation exposure deep in the lungs, 

exposure to larger particles of chemicals 

may occur through dermal exposure to 

mucous membranes or ingestion 

exposure through swallowing. 

Emergency planning for EHS chemicals 

is not limited to inhalation exposure 

only, although many of the EHS 

chemical listings are based on studies 

which meet the EHSs listing criteria for 

inhalation toxicity. Although airborne 

exposure is the most likely route of 

exposure, it is not the only route of 

exposure. In the event of an accidental 

release, EPA is concerned about all 

routes of exposure (inhalation, dermal 

and ingestion) to the community. Thus, 

exposure to larger size aerosols (e.g. 

those above 4 or 10 microns) by any 

route, such as through the skin or 

mucous membranes) should not be 

ignored when setting TPQs. 

c. Solvent Evaporation From Aerosols 

Even after liquid aerosol droplets are 

released, some of the solvent may 

evaporate in the air. This would result 

in even smaller size aerosols or solid 

EHS particulates in the air to which a 

community would be exposed. One 

concern is that droplets of size greater 

than 100 microns could settle quickly, 

dry into a smaller particle size and then 

become airborne again (re-suspension). 

In the event of an accidental release, the 

responsible party should clean up 

chemicals deposited on the facility 

grounds before additional exposure to 

the community would take place. The 

USDOE report did include data on resuspension of particulates from soil 

after an aerosol release. However, the 

amount re-suspended did not add much 

to the reasonable worst case aerosol 

release fraction of 0.2. This scenario is 

explained further in the technical 

support document for this rule. 

D. What are the peer review results? 

EPA’s revised TPQ methodology for 

EHS solids in solution and supporting 

data was peer reviewed and the 

technical support document was revised 

based on the peer review comments. 

The description of the peer review 

process, the results of the peer review 

and EPA’s response to the peer review 

comments are found in a separate 

document, ‘‘Peer Review of Technical 

Support Document for Revised TPQ 

Method for EHS Solids in Solution,’’ 

which is available in the docket to this 

rulemaking. Below are the questions 

posed to the peer reviewers, a summary 

of the peer reviewers’ comments and 

EPA’s responses. 

1. Based on your reading and analysis 

of the information provided, do you find 

the revised TPQ method to be logical 

with a sound scientific basis? 

Two of the three reviewers agreed that 

the revised TPQ method was logical 

with a sound scientific basis using the 

USDOE experimental aerosol release 

data. However, one reviewer thought the 

revised TPQ method may not be based 

on the most sound science because the 

LOC is based on Immediately Dangerous 

to Health and Life values (IDLH) and 

animal lethality data that he believes 

may not be appropriate. Nonetheless, 

this reviewer did think that a cursory 

review of the effective TPQ list 

(Appendix B in technical support 

document) appears to have 

appropriately listed the ranking of 

chemicals by potential hazard to the 

public. 

EPA recognizes that use of the IDLH 

was an imperfect measure for 

determining the LOC, but believes the 

approach provides a consistent relative 

ranking of the EHS. Where animal 

lethality data were substituted, safety 

factors were applied to the data to 

estimate the LOC. Human data were 

taken into account for some chemicals, 

such as chemical warfare agents, and 

adjustments were made to the TPQ 

initially based on index values. EPA 

realizes that better data are being 

developed that could be used for the 

LOC (such as AEGLs—Acute Exposure 

Guideline Levels). However, a reevaluation of the LOC for all EHS 

chemicals would best be undertaken by 

a separate rulemaking effort, given the 

extent and complexity of this issue. 

2. Is the writing clear and concise? Has 

EPA provided the right level of detail? 

Is the method understandable? Are the 

results clearly presented? 

Two of the three reviewers thought 

that the revised method was not clear 

and understandable and suggested 

improvements. For example, it was 

recommended that EPA clarify the 

definition of a solution, as well as 

include a flowchart of the method or a 

graph to help describe the approach. 

EPA agrees that improvements were 

needed in order to present the 

information in a better way for the 

regulated community to understand and 

apply, and the revised technical support 

document addresses those concerns. 

Thus, additional supporting background 

information, discussion about the 

development of TPQs, and examples 

and calculations of how to apply the 

TPQs for EHS solids in solution have 

been added to the technical support 

document and has been further 


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explained in the preamble to the 

proposed rule. The proposed rule, 

which was not provided to the peer 

reviewers, is written more clearly and is 

less technical than the materials given 

to the peer reviewers to review. 

One reviewer thought that EPA had 

provided the right amount of detail, and 

thought the method is understandable, 

and the text is for the most part 

readable. However, the reviewer had 

several clarifications and corrections he 

thought EPA should make. These 

clarifications have been made to the 

technical support document, including 

improving a description of background 

on TPQ development, clarifying some 

terms used in the document, and adding 

some references and other editorial 

comments. 

This same reviewer thought the 

argument against the alternative 

approach of using V=0.2 for developing 

TPQ for solids in solutions was not that 

convincing. EPA has revised the 

discussion of this alternative approach 

by stating that EPA believes that this 

approach would result in TPQs that 

would be too low as compared to TPQs 

for liquids of similar toxicity because 

most of the liquids have approximately 

V=0.1. EPA believes that liquids have a 

higher potential for airborne dispersion 

because of their inherently higher 

volatility. Also, the mechanism for 

airborne dispersion for liquids using the 

spill model is volatilization, whereas 

solids in solution will be dispersed via 

aerosolization, so using V=0.2 for 

solutions may be not comparable. 

3. Is the revised method consistent with 

the overall approach used for setting 

TPQs for other EHS chemicals? 

All three reviewers thought that the 

revised method was fairly consistent 

with the approach used for setting other 

TPQs. However, one reviewer thought 

that EPA should consider lowering the 

TPQs for 46 of 163 EHS liquids based 

on the comparison of using the revised 

TPQ method versus the current method. 

EPA believes that using a V of 0.2 to 

recalculate the TPQ indexes would 

result in conservatively low TPQs for 

solids in solution as compared to 

liquids of the same toxicity. Given that 

volatilization requires only the loss of 

containment of a chemical, whereas 

aerosolization requires the loss of 

containment and usually an energy 

release, EPA believes the higher 

potential for airborne dispersion should 

be assigned to liquids as compared to a 

non-volatile solid in solution. Because 

there are different mechanisms 

(volatilization versus aerosolization) 

involved in the two types of releases, it 

may not be comparable to use 0.2 as a 

substitute for V for solids in solution. 

Based on the comments, EPA has 

revised the discussion in the preamble 

to the rule and Section VI.A—Use 

Original Ranking Method to Develop 

New TPQs of the document, ‘‘Technical 

Support Document for Revised TPQ 

Method for EHS Solids in Solution.’’ 

EPA has also provided a more logical 

and clearer explanation for TPQs for 

different forms in Appendix A: 

Assigning Threshold Planning 

Quantities (TPQs) for Extremely 

Hazardous Substances, in the above 

document. 

4. Is the revised method sufficiently 

protective for fulfilling accident 

prevention purposes of section 302 of 

EPCRA? 

The reviewers all agreed that the 

method was sufficiently conservative to 

fulfill the accident prevention purposes 

of section 302 of EPCRA. 

5. Is the revised method presented in a 

straightforward and uncomplicated way 

for the regulated community to 

understand and apply? 

One reviewer thought that the revised 

method is not particularly 

straightforward and uncomplicated and 

that the regulated community will have 

difficulty understanding and applying 

it. Another reviewer suggested that 

examples be provided of how to apply 

the method when both powdered and 

solution form of a solid EHS is on-site. 

One reviewer thought a flow chart might 

be helpful to summarize the TPQ 

approach for the full spectrum of 

chemical forms. 

To address these concerns, EPA has 

provided in the technical support 

document and the preamble to the 

proposed rule, a number of examples of 

how to apply the new TPQ method for 

solids in solution. 

6. Are you aware of any other 

approaches or significant data/studies 

that are relevant and should be included 

or referenced in this document? Please 

explain 

The reviewers were not able to 

provide any other approaches or data 

that should be used to revise the TPQ 

method for solids in solution, although 

one did provide other recommendations 

regarding the EHS chemical listing 

process and the toxicity values used for 

TPQs. Some of these comments address 

issues that are outside the scope of the 

current effort, which focuses only on 

TPQs for solids in solution. 

7. Please Provide Any Other Suggestions 

You May Have About How To 

Strengthen the Document 

To address other comments and 

concerns of the reviewers, EPA has 

clarified that the 12 reactive EHS solids 

are not subject to the revised TPQ 

method for solids in solution. EPA has 

also added several technical references 

as suggested into the technical support 

document. 

E. What are the economic impacts of the 

TPQ changes? 

Currently, facilities, who have an EHS 

present in an amount equal to or greater 

than the EHS’s TPQ, are required to: 

• Notify the SERC and LEPC that the 

facility is subject to emergency planning 

notification. 

• Notify the SERC and LEPC of a 

facility representative to participate in 

the local emergency planning process. 

• Notify the LEPC of any relevant 

facility changes that affect emergency 

planning. 

• Provide the LEPC with the 

necessary information for developing a 

local emergency plan, as requested. 

For facilities with an EHS that exists 

as solids in solution, emergency 

planning notification is required if the 

amount of solids by weight meets or 

exceeds the lower published TPQ for 

that chemical. Solid EHSs have another 

higher TPQ of 10,000 pounds that 

applies only if the EHS is not in 

solution, has a particle size equal to or 

greater than 100 microns, is not molten 

and does not have an NFPA reactivity 

rating of 2, 3, or 4. 

The proposed rule would subject 

facilities with an EHS solid in solution 

to the emergency planning requirements 

if the amount of solid chemical on-site, 

when multiplied by 0.2, equals or 

exceeds the lower published TPQ. The 

effect would be to allow facilities to 

have up to five times larger amounts of 

EHS solids in solution on-site than 

before without being subject to the 

above emergency planning 

requirements. 

Facilities who already had EHS solids 

in solution on-site above the TPQ and 

who have already (or should have 

already) completed emergency planning 

notification should notify their LEPC if 

they no longer exceed the TPQ as a 

result of this rulemaking. Section 

303(d)(2) of EPCRA requires facilities to 

promptly provide to their LEPC any 

changes relevant to emergency 

planning. Regulations at 40 CFR 355.21 

clarify that relevant changes to 

emergency planning should be reported 

within 30 days. EPA expects that this 

notification will be a minimal burden. 


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The emergency planning notification 

requirement is not required annually. 

Facilities, who are handling an EHS 

solid in solution for the first time, may 

benefit from the changes. However, if 

they have other EHSs on-site which 

trigger the reporting requirements, they 

would still have to make the necessary 

notifications. 

EPA believes that the changes 

proposed by this rule can benefit SERCs 

and LEPCs to better focus their limited 

resources on those amounts of EHS 

chemicals that will potentially cause the 

greatest harm and to spend fewer 

resources on those that pose less harm, 

when released. The EHSs list has a total 

of 355 chemicals, of which 157 are nonreactive solids. This proposed rule 

applies only to those 157 non-reactive 

solids and only when they exist in 

solution form. While the Agency does 

not collect information to quantify the 

number of facilities that may be 

impacted by this rule, we suspect it will 

likely be a minimal number of facilities 

that are impacted since we believe that 

many of these facilities handle other 

EHS chemicals that will trigger the 

emergency planning requirements. 

However, the Agency solicits comment 

and data on the number of facilities that 

may be impacted, and the extent of the 

impact. 

III. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is a 

‘‘significant regulatory action’’ because it 

raises novel policy issues arising out of 

litigation on the listing of paraquat 

dichloride as an EHS. EPA has decided 

to modify the manner by which the TPQ 

is applied for paraquat dichloride, as 

well as any other EHS that exists as a 

non-reactive solid in solution. 

Specifically, facilities with a nonreactive solid EHS in solution would be 

subject to the Emergency Planning 

requirements of 40 CFR part 355, 

subpart B—Emergency Planning only if 

the amount of non-reactive EHS solids 

in solution on-site multiplied by 0.2 

equals or exceeds the lower published 

TPQ. Accordingly, EPA submitted this 

action to the Office of Management and 

Budget for review under Executive 

Order 12866 and any changes made in 

response to OMB recommendations 

have been documented in the docket for 

this action. 

The proposed regulation will not have 

an annual effect on the economy of $100 

million or more or adversely affect in a 

material way the economy, a sector of 

the economy, productivity, competition, 

jobs, the environment, public health or 

safety, or state, local, or tribal 

governments or communities. 

B. Paperwork Reduction Act 

This proposed rule does not impose 

any new information collection burden. 

Rather, this proposed rule, in effect, 

raises the amount of chemical on-site 

required before triggering emergency 

planning reporting under 40 CFR part 

355 for EHS non-reactive solids in 

solution. Facilities with this form of 

EHS chemical would have already (or 

should have already) reported their 

presence to their SERC and LEPC and 

identified a Facility Emergency 

Coordinator and necessary information 

for development of a local emergency 

plan to their LEPC. If as a result of this 

rulemaking, facilities find that they have 

an EHS solid in solution on-site which 

no longer equals or exceeds the TPQ, 

the facility should notify their LEPC. 

Section 303(d)(2) of EPCRA requires 

facilities to promptly provide to their 

LEPC any changes relevant to 

emergency planning. Regulations at 40 

CFR 355.21 clarify that relevant changes 

to emergency planning should be 

reported within 30 days. EPA expects 

that this notification will be a minimal 

burden. The emergency planning 

notification requirement is not required 

annually. There may be a slight burden 

reduction for facilities who are reporting 

EHS non-reactive solids in solution for 

the first time under the Section 302 

requirements. 

The Office of Management and Budget 

(OMB) has previously approved the 

information collection requirements 

contained in the existing regulations at 

40 CFR part 355 under the provisions of 

the Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. and has assigned OMB 

control number 2050–0092, EPA ICR 

number 1395.07. The OMB control 

numbers for EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of today’s proposed rule on small 

entities, small entity is defined as: (1) A 

small business as defined by the Small 

Business Administration’s (SBA) 

regulations at 13 CFR 121.201; (2) a 

small governmental jurisdiction that is a 

government of a city, county, town, 

school district or special district with a 

population of less than 50,000; and (3) 

a small organization that is any not-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of today’s proposed rule on 

small entities, I certify that this action 

will not have a significant economic 

impact on a substantial number of small 

entities. In determining whether a rule 

has a significant economic impact on a 

substantial number of small entities, the 

impact of concern is any significant 

adverse economic impact on small 

entities, since the primary purpose of 

the regulatory flexibility analyses is to 

identify and address regulatory 

alternatives ‘‘which minimize any 

significant economic impact of the rule 

on small entities.’’ 5 USC 603 and 604. 

Thus, an agency may certify that a rule 

will not have a significant economic 

impact on a substantial number of small 

entities if the rule relieves regulatory 

burden, or otherwise has a positive 

economic effect on all of the small 

entities subject to the rule. 

This proposed rule changes the 

manner by which facilities apply the 

TPQs for those EHSs that are solid 

chemicals in solution form. Specifically, 

facilities with a non-reactive solid EHS 

in solution would be subject to the 

Emergency Planning requirements of 40 

CFR part 355, subpart B—Emergency 

Planning only if the amount of nonreactive EHS solids in solution on-site, 

multiplied by 0.2 equals or exceeds the 

lower published TPQ. We have 

therefore concluded that today’s 

proposed rule will relieve regulatory 

burden for some affected small entities. 

We continue to be interested in the 

potential impacts of the proposed rule 

on small entities and welcome 

comments on issues related to such 

impacts. 

D. Unfunded Mandates Reform Act 

This action contains no Federal 

mandates under the provisions of Title 

II of the Unfunded Mandates Reform 

Act of 1995 (UMRA), 2 U.S.C. 1532– 

1538 for state, local, or tribal 

governments or the private sector. This 

proposed rule does not impose any new 

requirements on state, local or tribal 

governments. Facilities currently with 

EHS non-reactive solids in solution onsite have already (or should have 

already) reported these chemicals to 

their SERC and LEPC and identified a 


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21310 Federal Register / Vol. 76, No. 73 / Friday, April 15, 2011 / Proposed Rules 

Facility Emergency Coordinator and the 

necessary information for developing an 

emergency plan to their LEPC. We 

expect that this proposed action will 

neither increase nor decrease the 

requirements for SERCs or LEPCs. 

Therefore, this action is not subject to 

the requirements of sections 202 or 205 

of the UMRA. 

This action is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. This 

proposed action does not impose any 

new requirements on state, local or 

tribal governments. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. 

This proposed rule would reduce the 

reporting burden on any facilities that 

would have an EHS non-reactive solid 

in solution on-site for the first time and 

could be subject to the emergency 

planning requirements for that chemical 

under 40 CFR part 355, subpart B— 

Emergency Planning. We also expect 

that this proposed action will neither 

increase nor decrease the requirements 

for SERCs or LEPCs. This rule does not 

impose any requirements on state or 

local governments. Thus, Executive 

Order 13132 does not apply to this 

action. 

In the spirit of Executive Order 13132 

and consistent with EPA policy to 

promote communications between EPA 

and state and local governments, EPA 

specifically solicits comment on this 

proposed action from state and local 

officials. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175, (65 FR 67249, November 

9, 2000). This proposed rule would 

reduce reporting burden on any 

facilities that would have an EHS nonreactive solid in solution on-site for the 

first time and could be subject to the 

emergency planning requirements for 

that chemical under 40 CFR part 355, 

subpart B—Emergency Planning. This 

action also does not impose any new 

requirements on tribal governments. 

Thus, Executive Order 13175 does not 

apply to this action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

This action is not subject to Executive 

Order 13045 (62 FR 19885, April 23, 

1997) because it is not economically 

significant as defined in Executive 

Order 12866 and because the Agency 

does not believe the environmental 

health or safety risks addressed by this 

action present a disproportionate risk to 

children. This proposed rule would 

reduce reporting burden on any 

facilities that would have an EHS nonreactive solid in solution on-site for the 

first time and could be subject to the 

emergency planning requirements for 

that chemical under 40 CFR part 355, 

subpart B—Emergency Planning. 

H. Executive Order 13211: Energy 

Effects 

This action is not a ‘‘significant energy 

action’’ as defined in Executive Order 

13211 (66 FR 28355, May 22, 2001), 

because it is not likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy. Rather, 

this proposed rule would reduce 

reporting burden on any facilities that 

would have an EHS non-reactive solid 

in solution on-site for the first time and 

could be subject to the emergency 

planning requirements for that chemical 

under 40 CFR part 355, subpart B— 

Emergency Planning. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless doing so would be inconsistent 

with applicable law or would otherwise 

be impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations of 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. 

This proposed rule does not involve 

technical standards. Therefore, EPA 

does not consider the use of any 

voluntary consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order (EO) 12898 (59 FR 

7629 (February 16, 1994)) establishes 

federal executive policy on 

environmental justice. Its main 

provision directs federal agencies, to the 

greatest extent practicable and 

permitted by law, to make 

environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that this 

proposed rule does not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

because it does not affect the level of 

protection provided to human health or 

the environment. That is, based on new 

information and data, the Agency 

believes that amounts of EHS nonreactive solids in solution that would 

remain airborne from a potential release 

into the environment from an accident 

would be lower than previously 

considered, and thus, would have less 

impact on the local community. This in 

turn will allow SERCs and LEPCs to 

better focus their limited resources on 

the amounts of EHS chemicals that will 

potentially cause the greatest harm, 

including those affecting minority or 

low-income populations and to spend 

fewer resources on those that pose less 

harm, when released. 

List of Subjects in 40 CFR Part 355 

Environmental protection, Air 

pollution control, Chemicals, Disaster 

assistance, Hazardous substances, 

Hazardous waste, Intergovernmental 

relations, Natural resources, Penalties, 

Reporting and recordkeeping 

requirements, Superfund, Water 

pollution control, Water supply. 

Dated: April 8, 2011. 

Lisa P. Jackson, 

Administrator. 

For the reasons set out in the 

preamble, title 40, chapter I of the Code 

of Federal Regulations is proposed to be 

amended as follows: 

PART 355—EMERGENCY PLANNING 

AND NOTIFICATION 

1. The authority citation for part 355 

continues to read as follows: 

Authority: Sections 302, 303, 304, 325, 

327, 328, and 329 of the Emergency Planning 

and Community Right-to-Know Act of 1986 

(EPCRA) (42 U.S.C. 11002, 11003, 11004, 

11045, 11047, 11048, and 11049). 

2. Section 355.16 is amended by 

revising paragraph (b) to read as follows: 


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§ 355.16 How do I determine the quantity 

of extremely hazardous substances present 

for certain forms of solids? 

* * * * * 

(b) Solids in solution. Multiply the 

weight percent of non-reactive solids in 

solution in a particular container by the 

total weight of solution in the container. 

Then multiply by 0.2. 

* * * * * 

3. Section 355.61 is amended by 

adding in alphabetical order the 

definition of ‘‘Solution’’ to read as 

follows: 

§ 355.61 How are key words in this part 

defined? 

* * * * * 

Solution means any aqueous or 

organic solutions, slurries, viscous 

solutions, suspensions, emulsions, or 

pastes. 

* * * * * 

[FR Doc. 2011–9096 Filed 4–14–11; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

42 CFR Part 441 

[CMS–2296–P] 

RIN 0938–AP61 

Medicaid Program; Home and 

Community-Based Services (HCBS) 

Waivers 

AGENCY: Centers for Medicare & 

Medicaid Services (CMS), HHS. 

ACTION: Proposed rule. 

SUMMARY: This proposed rule would 

revise the regulations implementing 

Medicaid home and community-based 

services (HCBS) waivers under section 

1915(c) of the Social Security Act by 

providing States the option to combine 

the existing three waiver targeting 

groups as identified in § 441.301. In 

addition, we are proposing other 

changes to the HCBS waiver provisions 

to convey expectations regarding 

person-centered plans of care, to 

provide characteristics of settings that 

are not home and community-based, to 

clarify the timing of amendments and 

public input requirements when States 

propose modifications to HCBS waiver 

programs and service rates, and to 

describe the additional strategies 

available to CMS to ensure State 

compliance with the statutory 

provisions of section 1915(c) of the Act. 

DATES: To be assured consideration, 

comments must be received at one of 

the addresses provided below, no later 

than 5 p.m. on June 14, 2011. 

ADDRESSES: In commenting, please refer 

to file code CMS–22296–P. Because of 

staff and resource limitations, we cannot 

accept comments by facsimile (FAX) 

transmission. 

You may submit comments in one of 

four ways (please choose only one of the 

ways listed): 

1. Electronically. You may submit 

electronic comments on this regulation 

to http://www.regulations.gov. Follow 

the instructions under the ‘‘More Search 

Options’’ tab. 

2. By regular mail. You may mail 

written comments to the following 

address ONLY: Centers for Medicare & 

Medicaid Services, Department of 

Health and Human Services, Attention: 

CMS–2296–P, P.O. Box 8016, Baltimore, 

MD 21244–1850. 

Please allow sufficient time for mailed 

comments to be received before the 

close of the comment period. 

3. By express or overnight mail. You 

may send written comments to the 

following address ONLY: Centers for 

Medicare & Medicaid Services, 

Department of Health and Human 

Services, Attention: CMS–2296–P, Mail 

Stop C4–26–05, 7500 Security 

Boulevard, Baltimore, MD 21244–1850. 

4. By hand or courier. If you prefer, 

you may deliver (by hand or courier) 

your written comments before the close 

of the comment period to either of the 

following addresses: 

a. For delivery in Washington, DC— 

Centers for Medicare & Medicaid 

Services, Department of Health and 

Human Services, Room 445–G, Hubert 

H. Humphrey Building, 200 

Independence Avenue, SW., 

Washington, DC 20201. 

(Because access to the interior of the 

Hubert H. Humphrey Building is not 

readily available to persons without 

Federal government identification, 

commenters are encouraged to leave 

their comments in the CMS drop slots 

located in the main lobby of the 

building. A stamp-in clock is available 

for persons wishing to retain a proof of 

filing by stamping in and retaining an 

extra copy of the comments being filed.) 

b. For delivery in Baltimore, MD— 

Centers for Medicare & Medicaid 

Services, Department of Health and 

Human Services, 7500 Security 

Boulevard, Baltimore, MD 21244–1850. 

If you intend to deliver your 

comments to the Baltimore address, 

please call telephone number (410) 786– 

7195 in advance to schedule your 

arrival with one of our staff members. 

Comments mailed to the addresses 

indicated as appropriate for hand or 

courier delivery may be delayed and 

received after the comment period. 

FOR FURTHER INFORMATION CONTACT: 

Kathryn Poisal, (410) 786–5940. 

SUPPLEMENTARY INFORMATION: Inspection 

of Public Comments: All comments 

received before the close of the 

comment period are available for 

viewing by the public, including any 

personally identifiable or confidential 

business information that is included in 

a comment. We post all comments 

received before the close of the 

comment period on the following Web 

site as soon as possible after they have 

been received: http:// 

www.regulations.gov. Follow the search 

instructions on that Web site to view 

public comments. 

Comments received timely will also 

be available for public inspection as 

they are received, generally beginning 

approximately 3 weeks after publication 

of a document, at the headquarters of 

the Centers for Medicare & Medicaid 

Services, 7500 Security Boulevard, 

Baltimore, Maryland 21244, Monday 

through Friday of each week from 8:30 

a.m. to 4 p.m. To schedule an 

appointment to view public comments, 

phone 1–800–743–3951. 

I. Background 

Section 1915(c) of the Social Security 

Act (the Act) authorizes the Secretary of 

Health and Human Services to waive 

certain Medicaid statutory requirements 

so that a State may offer Home and 

Community-Based Services (HCBS) to 

State-specified group(s) of Medicaid 

beneficiaries who otherwise would 

require services at an institutional level 

of care. This provision was added to the 

Act by the Omnibus Budget and 

Reconciliation Act of 1981 (Pub. L. 97– 

35, enacted August 13, 1981) (OBRA’81) 

(with a number of subsequent 

amendments). Regulations were 

published to effectuate this statutory 

provision, with final regulations issued 

on July 25, 1994 (59 FR 37719). In the 

June 22, 2009 Federal Register (74 FR 

29453), we published the Medicaid 

Program; Home and Community-Based 

Services (HCBS) advance notice of 

proposed rulemaking (ANPRM) that 

proposed to initiate rulemaking on a 

number of areas within the section 

1915(c) program. We received 313 

comments (which can be accessed at 

http://www.regulations.gov/) and held 

teleconferences with stakeholders. The 

correspondence included comments 

from States, health care and community 

support providers and associations, 

consumer groups, and social workers, 

and others. In the following sections, we 

discuss comments relating to questions 


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