Federal Register / Vol. 77, No. 56 / Thursday, March 22, 2012 / Rules and Regulations 16679 

(38) Revisions to the Puerto Rico 

Regulations for the Control of 

Atmospheric Pollution submitted on 

July 13, 2011 by the Puerto Rico 

Environmental Quality Board. 

(i) Rule 102, Definitions, filed with 

the Secretary of State January 19, 2011; 

effective February 18, 2011. Supersedes 

version in paragraph 37. 

(ii) Rule 111, Applications, Public 

Hearings and Public Notice; filed with 

the Secretary of State January 19, 2011; 

effective February 18, 2011. Supersedes 

version in paragraph 36. 

(iii) Rule 115, Penalties; filed with the 

Secretary of State January 19, 2011; 

effective February 18, 2011. Supersedes 

version in paragraph 27. 

(iv) Rule 116, Public Nuisance; filed 

with the Secretary of State January 19, 

2011; effective February 18, 2011. 

Supersedes version in paragraph 27. 

(v) Appendix A, Hazardous Air 

Pollutants—Section 112(b) of the Clean 

Air Act; filed with the Secretary of State 

January 19, 2011; effective February 18, 

2011. 

■ 3. Section 52.2723 is amended by 

revising the entries for Rules 102, 103, 

111, 113, 115 through 117 and adding 

a category for appendices and an entry 

for Appendix A to read as follows: 

§ 52.2723 EPA-approved Puerto Rico 

regulations. 

REGULATION FOR THE CONTROL OF ATMOSPHERIC POLLUTION

Puerto Rico regulation 

Commonwealth effective date 

EPA approval date Comments 

*******

Rule 102—Definitions .......................................... 2/18/11 3/22/12, [Insert page number where the document 

begins].

Puerto Rico’s Environmental Public Policy Act, 

Law No. 9 of June 18, 1970, is replaced with 

Law 416 of September 22, 2004. 

Rule 103—Source Monitoring, Recordkeeping, 

Reporting, Sampling and Testing Methods.

9/28/95 1/22/97, 62 FR 3213.

* * * * * * * 

Rule 111—Applications, Public Hearings and 

Public Notice.

2/18/11 3/22/12, [Insert page number where the document 

begins].

Puerto Rico’s Environmental Public Policy Act, 

Law No. 9 of June 18, 1970, is replaced with 

Law 416 of September 22, 2004. 

Rule 113—Closure of a Source .......................... 9/28/95 1/22/97, 62 FR 3213.

* * * * * * * 

Rule 115—Penalties ............................................ 2/18/11 3/22/12, [Insert page number where the document 

begins].

Puerto Rico’s Environmental Public Policy Act, 

Law No. 9 of June 18, 1970, is replaced with 

Law 416 of September 22, 2004. 

Rule 116—Public Nuisance ................................. 2/18/11 3/22/12, [Insert page number where the document 

begins].

Puerto Rico’s Environmental Public Policy Act, 

Law No. 9 of June 18, 1970, is replaced with 

Law 416 of September 22, 2004. 

Rule 117—Overlapping or Contradictory Provisions.9/28/95 1/22/97, 62 FR 3213.

* * * * * * * 

APPENDICES 

Appendix A, Hazardous Air Pollutants—Section 

112(b) of the Clean Air Act.

2/18/11 3/22/12, [Insert page number where the document 

begins].

PART 70—[AMENDED] 

■ 4. The authority citation for part 70 

continues to read as follows: 

Authority: 42 U.S.C. 7401, et seq. 

■ 5. Appendix A to part 70 is amended 

by adding paragraph (c) to the entry for 

Puerto Rico to read as follows: 

Appendix A to Part 70—Approval 

Status of State and Local Operating 

Permits Programs 

* * * * * 

Puerto Rico 

* * * * * 

(c) The Puerto Rico Environmental Quality 

Board submitted a revision to its operating 

permits program on July 13, 2011. The 

revision includes a change to the Puerto 

Regulations for the Control of Atmospheric 

Pollution, Rule 609(g), ‘‘Confidential 

Information,’’ effective on February 18, 2011. 

The reference to Puerto Rico’s Environmental 

Public Policy Act, Law No. 9 of June 18, 

1970, is replaced with Law 416 of September 

22, 2004. 

* * * * * 

[FR Doc. 2012–6922 Filed 3–21–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 355 

[EPA–HQ–SFUND–2010–0586; FRL–9651–1] 

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: Final rule. 

SUMMARY: The U.S. Environmental 

Protection Agency (EPA or the Agency) 

is taking final action to revise the 

manner for applying the threshold 

planning quantities (TPQs) for those 

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16680 Federal Register / Vol. 77, No. 56 / Thursday, March 22, 2012 / Rules and Regulations 

extremely hazardous substances (EHSs) 

that are non-reactive solid chemicals in 

solution. This revision allows facilities 

subject to the Emergency Planning 

requirements that have a non-reactive 

solid EHS in solution, to first multiply 

the amount of the solid chemical in 

solution on-site by 0.2 before 

determining if this quantity equals or 

exceeds the lower published TPQ. This 

change is based on data that shows less 

potential for non-reactive solid 

chemicals in solution to remain airborne 

and dispersed beyond a facility’s fence 

line in the event of an accidental 

release. Previously, EPA assumed that 

100% of non-reactive solid chemicals in 

solution could become airborne and 

dispersed beyond the fenceline in the 

event of an accidental release. 

DATES: This rule is effective April 23, 

2012. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–SFUND–2010–0586. 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., Confidential Business Information 

(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; email 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 Web 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 final rule? 

B. What is the statutory authority for this 

final rule? 

C. List of Abbreviations and Acronyms 

D. What is the background for this final 

rule? 

E. Summary of Proposed Rule of April 15, 

2011 

II. Summary of This Action 

A. What is the scope of this final rule? 

B. Applying a TPQ for an EHS Solid in 

Solution 

III. Response to Comments on April 15, 2011 

Proposed Rule 

A. Comments Supporting Changes 

B. Comments Supporting Changes With 

Reservations 

C. Comments Opposing Changes 

IV. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory 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 

K. Congressional Review Act 

I. General Information 

A. Who is affected by this final rule? 

Entities that would be affected by this 

final 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 is the statutory authority for 

this final rule? 

This final 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. 

C. List of Abbreviations and Acronyms 

ARF—Airborne Release Fraction 

CAS—Chemical Abstracts Service 

CBI—Confidential Business Information 

CERCLA—Comprehensive Environmental 

Response, Compensation, and Liability Act 

CFR—Code of Federal Regulations 

EHS—Extremely Hazardous Substance 

EO—Executive Order 

EPA—Environmental Protection Agency 

EMA—Emergency Management Agency 

EPCRA—Emergency Planning and 

Community Right-to-Know Act of 1986 

FR—Federal Register 

HCS—Hazard Communication Standard 

ICR—Information Collection Request 

LEPC—Local Emergency Planning Committee 

LOC—Level of Concern 

MSDS—Material Safety Data Sheet 

NFPA—National Fire Protection Association 

NRC—National Response Center 

NTTAA—National Technology Transfer and 

Advancement Act of 1995 

OMB—Office of Management and Budget 

OEM—Office of Emergency Management 

(within EPA) 

D. What is the background of this final 

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 

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 extremely hazardous 

substances (EHSs). The EHS list was 

established by EPA to identify chemical 

substances that could cause serious 

irreversible health effects from 

accidental releases (52 FR 13378, April 

22, 1987). The Agency was also directed 

to establish a threshold planning 

quantity (TPQ) for each extremely 

hazardous substance. 

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Federal Register / Vol. 77, No. 56 / Thursday, March 22, 2012 / Rules and Regulations 16681 

1Threshold Planning Quantities Technical 

Support Document, 4–7–87. Chemicals That Were 

Assigned Threshold Planning Quantities Different 

From the Calculated Index Value, 4–7–87. Reactive 

Solids Whose Threshold Planning Quantities 

Should Be Less than 10,000 Pounds, 4–7–87. 

Changes Made to Threshold Planning Quantities 

Between Proposed Rule and Final Rule, 4–7–87. 

Technical Support Document for Determination of 

Levels of Concern, 11–11–86. 

Under EPCRA section 302, a facility 

that has an EHS on-site in excess of its 

TPQ 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) in 40 CFR 302.4 in excess of 

the reportable quantity (RQ) to their 

LEPC and SERC, and to the National 

Response Center if the chemical is a 

CERCLA hazardous substance. 

Under ECPRA sections 311 and 312, 

facilities that have either (1) a hazardous 

chemical present at or above 10,000 

pounds or (2) an EHS present at or 

above its TPQ or 500 pounds— 

whichever is the lesser, are required to 

submit an Emergency and Hazardous 

Chemical Inventory form and a Material 

Safety Data Sheet (MSDS) for that 

chemical to their SERC, LEPC and local 

fire department. A chemical is 

hazardous as defined under the Hazard 

Communication Standard (HCS) of the 

Occupational Safety and Health Act 

(OSHA). 

In a July 26, 1990 Federal Register 

notice (55 FR 30632), EPA added 

definitions necessary to designate 

Indian Tribes as the implementing 

authority of the emergency planning 

reporting and notification requirements 

and hazardous inventory reporting 

requirements. Under 40 CFR 355.61 and 

40 CFR 370.66, when a facility is 

located in Indian Country, SERC means 

the Emergency Response Commission 

for the Tribe under whose jurisdiction 

the tribe is located. Such a Tribal 

Emergency Response Commission is 

known as a TERC. 

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 and B. EPA first 

published the EHSs list and 

corresponding TPQs along with the 

methodology for determining the 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,1 all found 

in the docket for this rulemaking. 

2. 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). Chemicals were 

assigned TPQs of 1, 10, 100, 500, 1000 

or 10,000 pounds based on the order of 

magnitude ranges of the index values. 

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 did not have a particle 

size less than 100 microns, was not 

molten or handled in solution form, and 

did 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 a NFPA reactivity 

rating of 2, 3, or 4 are denoted with an 

‘‘a’’ in the Notes column of the EHSs 

list. 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. 

3. Changes to EHS List and TPQs 

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 the 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. 

4. Petition for Paraquat Dichloride 

Paraquat dichloride was originally 

listed as paraquat with a CAS No. 1910– 

42–5 on the final EHSs list. ICI 

Americas submitted a petition in 

October 1989 that requested the Agency 

to remove paraquat from the EHSs list 

or alternatively, revise the TPQ. On 

October 12, 1994 (59 FR 51816), EPA 

changed the listed chemical name from 

paraquat to paraquat dichloride to 

match the CAS Number and denied the 

petition to delete paraquat or modify the 

TPQ, because the inhalation toxicity of 

paraquat dichloride met the EHS listing 

criteria. Further explanation of EPA’s 

rationale for denying the petition can be 

found in the October 12, 1994 final rule 

(59 FR 51816) and in the April 15, 2011 

proposed rule (76 FR 21299) for 

modifying the application of TPQs for 

EHS solids in solution. 

5. 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 

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16682 Federal Register / Vol. 77, No. 56 / Thursday, March 22, 2012 / Rules and Regulations 

2The amount present on-site for EHSs that are in 

a molten form is calculated by multiplying the 

weight of the chemical by 0.3 to determine if the 

lower TPQ is met or exceeded. 

3 DOE Handbook, Airborne Release Fractions/ 

Rates and Respirable Fractions for Nonreactor 

Nuclear Facilities. December 1994. U.S. Department 

of Energy, Washington, DC 20585. DOE–HDBK– 

3010–94. Volume I—Analysis of Experimental Data 

and Volume II—Appendices. 

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. 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 also 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. 

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 (available in 

the docket), 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. 

E. Summary of Proposed Rule of April 

15, 2011 

In the proposed rule of April 15, 2011 

(76 FR 21299), EPA proposed that 

facilities who are subject to the 

emergency planning notification 

requirements under section 302 of 

EPCRA, and who have a non-reactive 

solid EHS in solution on-site, should 

multiply the amount of the non-reactive 

solid chemical (in solution form) by 0.2 

before determining if this reduced 

quantity equals or exceeds the lower 

published TPQ. This change was 

proposed based on data in the literature 

that shows less potential for nonreactive solid chemicals in solution to 

remain airborne beyond a facility’s 

fenceline in the event of an accidental 

release. This change affects not just 

paraquat dichloride solution, but all 

EHS solid chemicals in solution, except 

reactive solids. The application of a 

reducing factor to the amount of nonreactive EHS solids in solution before 

comparison to its TPQ is similar to how 

facilities apply the TPQs for EHSs that 

are molten solids, except that for molten 

solids the factor is 0.3.2 EPA also 

defined solution to be any aqueous or 

organic solutions, slurries, viscous 

solutions, suspensions, emulsions, or 

pastes. 

However, this change will not apply 

to the 12 solid EHS chemicals that are 

reactive solids (denoted with ‘‘a’’ in the 

‘‘Notes’’ column in Appendix A or B of 

40 CFR part 355). Reactive solids are 

more likely than other solids to be 

dispersed into the air due to the energy 

or heat created from their reactivity with 

water or air. The explanation for not 

assigning a 10,000 pounds 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. 

Previously, EPA had assumed that 

100% of non-reactive EHS solid 

chemicals in solution could become 

airborne in the event of an accidental 

release. Review of the literature data for 

accidental releases of liquid aerosols 

shows that no more than 20% of the 

release is expected to remain airborne. 

The data is from a 1994 U.S. Department 

of Energy (USDOE) report 3 (available in 

the docket) on the airborne release 

fraction (ARF) from experimental liquid 

aerosol releases involving metal salt 

solutions for a wide variety of release 

scenarios. EPA based the 0.2 factor on 

the scenario with the highest release 

potential in order best to serve the 

purposes of emergency planning. A 

summary of the USDOE aerosol release 

scenarios with the highest ARFs are 

listed in a table in the April 15, 2011 

proposed rule (76 FR 21299). A more 

detailed discussion, along with the 

alternative approaches considered, can 

be found in the April 15, 2011 proposed 

rule and in the ‘‘Technical Support 

Document for Revised TPQ Method for 

EHS Solids in Solution’’ in the docket 

for this rule. 

EPA’s revised TPQ methodology for 

non-reactive 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 

the April 15, 2011 proposed rule (76 FR 

21299). 

II. Summary of This Action 

A. What is the scope of this final rule? 

This final rule revises the manner for 

applying the TPQ for the 157 nonreactive EHS chemicals that are handled 

as solids in solution. These 157 

chemicals appear with two TPQs, (the 

higher TPQ is 10,000 pounds) in 

Appendix A and B of 40 CFR part 355. 

The 12 solid EHS chemicals that are 

reactive solids are noted by footnote ‘‘a’’ 

in Appendix A and B of 40 CFR part 

355, and are not affected by this final 

rule. Definitions of reactive and nonreactive solids, which were explained in 

the preamble of the proposed rule, have 

also been added to the regulations in 40 

CFR 355.61 for greater clarity. 

Solid EHSs (except reactive solids) 

have a TPQ of 10,000 pounds or a 

specified lower TPQ, for particular 

forms. For purposes of complying with 

the emergency planning notification 

requirements of section 302 of EPCRA, 

facilities should multiply the amount of 

EHS chemical handled as a non-reactive 

solid in solution on-site by 0.2 before 

determining if this amount equals or 

exceeds the established lower TPQ. If 

the amount of the non-reactive EHS 

solids in solution on-site multiplied by 

0.2 does not equal or exceed the lower 

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Federal Register / Vol. 77, No. 56 / Thursday, March 22, 2012 / Rules and Regulations 16683 

4For these examples, the EHS is not paraquat 

dichloride, but an unspecified non-reactive solid 

EHS that has a lower TPQ of 500 pounds and a 

higher TPQ of 10,000 pounds. 

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 

non-reactive EHS solids in solution may 

be determined by multiplying the 

weight percent of the EHS solids in 

solution in a particular container by the 

weight of the total solution. Solutions 

include aqueous or organic solutions, 

slurries, viscous solutions, suspensions, 

emulsions, and pastes. 

Additionally, EPA has also revised 

the regulations for 40 CFR 355.16(c) to 

be applicable only to molten nonreactive solids. That is, the factor of 0.3 

to be multiplied by the amount of a 

molten solid on-site before comparing to 

the lower TPQ should only be used for 

non-reactive solids in molten form, not 

reactive solids in molten form. Reactive 

solids are more likely to be dispersed 

into the air due to the energy or heat 

created from their reactivity with water 

or air and their TPQs were developed 

taking these factors into account. 

Additionally, the methodology of 

applying TPQs for non-reactive EHS 

solids in solution or non-reactive 

molten solids does not affect the 

reporting requirements for sections 311 

and 312 of EPCRA (40 CFR part 370). 

Regulations under 40 CFR 370.10 state 

that an EHS is present at a facility if the 

‘‘amount of EHS present at any one 

time’’ is equal or greater than 500 

pounds or the TPQ, whichever is lower. 

The reducing factor of 0.2 for nonreactive EHS solids in solution or (0.3 

for non-reactive EHS molten solids) is 

not to be used for compliance with 

hazardous chemical reporting. 

Therefore, EPA has amended the text of 

40 CFR 355.16 (b) and (c) to clarify that 

the reduction in quantity for the amount 

of non-reactive EHS solids in solution 

and for the amount of non-reactive EHS 

solid in molten form present at a facility 

does not apply for reporting 

requirements under 40 CFR 370.10, 

which covers MSDS and hazardous 

chemical inventory reporting. That is, 

facilities must not use the reduction in 

quantity on-site to determine the 

‘‘amount present at one time’’ for 

reporting under 40 CFR 370.10. 

The reason why the reducing factors 

are to be used for emergency planning 

notification under 40 CFR part 355 and 

not under hazardous chemical reporting 

under 40 CFR part 370 are explained 

below. 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 of EPCRA 

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. In particular, responders 

need the amounts, manner of storage 

and locations of the chemical on-site, 

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 in order to 

know how to respond to an emergency. 

In addition, they need to know what 

type of protective equipment is needed 

to protect them from exposure, not only 

airborne, but also dermal exposure. 

Emergency release notification 

requirements under EPCRA section 304 

also are not affected by this final action. 

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 355.61) at or 

above the reportable quantity (RQ) of 

any EHS or CERCLA hazardous 

substance. If the chemical released is a 

CERCLA hazardous substance, the 

release must also be reported to the 

National Response Center (NRC). 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). 

B. Applying a TPQ for an Non-Reactive 

EHS Solid in Solution 

Facilities with a non-reactive EHS 

solid in solution should apply the 0.2 

factor only to the amount of EHS solid 

present, not the total weight of the 

solution. 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 pounds 

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 (gal) 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 pounds 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 non-reactive 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.4

Non-reactive solid in solution exceeds 

lower TPQ, powder below 10,000 

pounds. A facility has on-site 5,000 

pounds of a pure EHS powder with a 

particle size equal to or greater than 100 

microns, which is less than the 10,000 

pounds TPQ. However, they also have 

1,000 gallons of a 35% by weight nonreactive 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 non-reactive solid in 

solution form. 

Non-reactive solid in solution below 

lower TPQ, powder exceeds 10,000 

pounds. A facility has on-site 11,000 

pounds of a pure EHS solid powder 

with a particle size equal to or greater 

than 100 microns, which is more than 

the 10,000 pounds TPQ. They also have 

2,000 gallons of a 10% by weight nonreactive 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 pounds TPQ for 

the solid in powder form. 

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Non-reactive solid in solution below 

lower TPQ, powder below 10,000 

pounds. A facility has 5,000 pounds of 

a pure EHS solid powder with a particle 

size equal or greater than 100 microns, 

which is less than the 10,000 pounds 

TPQ. They also have 1,500 gallons of a 

15% by weight non-reactive 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 pounds TPQ for the nonreactive solids in solution form or the 

10,000 pounds TPQ for the powder with 

a particle size greater than 100 microns. 

Powdered product less than 100 

microns, processed into solution. If the 

same amount of solid EHS powder were 

involved as the same scenarios above, 

except the powder has a particle size 

less than 100 microns, then the lower 

500 pounds TPQ would apply to the 

powder instead of 10,000 pounds. If 

either the amount of powder or nonreactive solids in solution exceeds the 

lower TPQ, the facility would be 

required to report under section 302 of 

EPCRA. 

III. Response to Comments on April 15, 

2011 Proposed Rule 

EPA received comments from three 

organizations. The number of 

commenters in each group is as follows: 

Industry, 1 comment; and LEPCs, SERCs 

(or TERCs) and Emergency Management 

Agencies (EMAs), 2 comments. A 

complete summary of all comments and 

EPA’s response to them is presented in 

‘‘Response to Comments for Emergency 

Planning and Community Right-toKnow Act; Emergency Planning and List 

of Extremely Hazardous Substances and 

Threshold Planning Quantities,’’ which 

is available in the docket. The major 

issues and the Agency’s responses to 

them are described below. 

A. Comments Supporting the Changes 

Comment: One commenter believed 

that the proposed method better reflects 

the ability of a solid substance becoming 

airborne. They also support not 

changing the EPCRA section 304 

reportable quantities for EHSs. 

EPA’s Response: We agree with the 

commenter, as it relates to non-reactive 

solids in solution. However, EPA 

emphasizes that the changes proposed 

(and finalized today) apply only to nonreactive EHS solids in solution, not 

other solid forms, such as powdered 

solids. EHSs that are powdered solids 

with a particle size of less than 100 

microns diameter are considered to be 

as dispersable in air as a gas and are 

subject to the lower listed TPQ in 

Appendix A or B of 40 CFR part 355. On 

the other hand, EHSs that are powdered 

solids with a particle size equaling or 

exceeding 100 microns in diameter are 

subject to the higher TPQ of 10,000 

pounds. 

Comment: Another commenter 

supported the proposed method because 

they believe the changes can benefit 

SERCs and LEPCs to allow them to 

better focus their limited resources on 

those amounts of EHSs that will 

potentially cause the greatest harm. The 

commenter also thought the proposal 

was consistent with Executive Order 

13563, which promotes that ‘‘analysis of 

rules that may be outmoded, ineffective, 

insufficient, or excessively burdensome, 

and to modify, streamline, expand, or 

repeal them in accordance with what 

has been learned’’ (76 FR 3822, January 

21, 2011). 

EPA’s Response: We agree with the 

commenter that the revised 

methodology better aligns the regulatory 

requirements with the best available 

science. That is, the additional 

experimental data on aerosol releases 

refines the applicability and 

development of TPQs for non-reactive 

EHS solids in solution because it 

provides a sounder scientific basis for 

assigning TPQs, and thereby, more 

accurately identifies the forms of solid 

chemicals that would pose the greatest 

risks if accidently released. We also 

agree with the commenter that the EHSs 

list and assigned TPQs are intended to 

help communities focus on the 

substances and facilities of most 

immediate concern for emergency 

planning and response. 

With respect to E.O. 13563: Improving 

Regulation and Regulatory Review, EPA 

did not address the application of this 

Executive Order in the proposed rule 

because OMB review of this action had 

just been completed before the 

Executive Order was issued in January 

2011. However, the Agency did include 

the revisions for the application of TPQs 

for EHS non-reactive solids in solution 

in its report to OMB, ‘‘Final Plan for 

Periodic Retrospective Reviews of 

Existing Regulations’’ (the Plan) in 

response to President Obama’s charge in 

Executive Order 13563 for each federal 

agency to develop a plan for reviewing 

existing regulations. EO 13563 requires 

the agency to ‘‘periodically review its 

existing significant regulations to 

determine whether any such regulations 

should be modified, streamlined, 

expanded, or repealed so as to make the 

agency’s regulatory program more 

effective or less burdensome in 

achieving the regulatory objectives.’’ 

B. Comments Supporting the Changes 

With Questions 

Comment: The commenter notes that 

the proposed rule states that a facility 

determines the quantity of EHSs 

‘‘present’’ for solids in solution by 

multiplying the weight percent of nonreactive solids in solution in a particular 

container by the total weight of solution 

in the container, multiplied by 0.2. 

Under 40 CFR 370.30, a facility must 

submit an MSDS for each hazardous 

chemical ‘‘present’’ at the facility that 

meets or exceeds the applicable 

threshold level. Under the new 

proposal, it appears the facility may 

report on the calculated amount under 

the proposed regulation, thus changing 

the Tier II threshold without any 

discussion or analysis. The commenter 

strongly urges that the language of the 

proposed regulation address this 

ambiguity directly and clarify its 

relationship to EPCRA section 312. The 

commenter suggests the following 

language be added to the proposal in 40 

CFR 355.16(b): This reduction in 

quantity does not apply to determining 

the threshold for reporting under 40 

CFR 370.10. 

EPA’s Response: EPA agrees with the 

commenter that application of TPQs for 

emergency planning and for hazardous 

chemical reporting should be clarified 

in the regulations to make it clear that 

the reducing factor is not used for 

compliance with the hazardous 

chemical reporting requirements under 

40 CFR 370.10. (See Section II.A of the 

preamble to today’s final rule for further 

discussion on this point.) However, 

rather than say the reduction in quantity 

does not apply in determining the TPQ 

(‘‘the threshold’’ as stated by 

commenter), EPA has amended 40 CFR 

355.16(b) by stating that this reduction 

in quantity must not be used to 

determine the amount present at onetime at a facility for reporting under 40 

CFR 370.10. That is, EPA sets the TPQs, 

but facilities must determine the 

amount present to compare to the 

threshold. 

EHS solids in molten form also have 

a reducing factor (0.3) applied to the 

amount on-site before comparing with 

the TPQ. Therefore, EPA has revised the 

regulation in 40 CFR 355.16(c) to also 

clarify that this reducing factor must not 

be used to determine the amount 

present at one-time at a facility for 

reporting under 40 CFR 370.10, which 

covers hazardous chemical reporting. 

EPA has also revised 40 CFR 355.16(c) 

to limit the application of the 0.3 

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Federal Register / Vol. 77, No. 56 / Thursday, March 22, 2012 / Rules and Regulations 16685 

reducing factor to be used only for nonreactive solids in molten form, not for 

reactive solids in molten form. 

Definitions of reactive and non-reactive 

solids, while explained in the preamble 

of the proposed rule, have also been be 

added to the regulations in 40 CFR 

355.61 for greater clarity. 

C. Comments Opposing the Changes 

Comment: One commenter was 

concerned with the effect that the 

proposed rule will have on a 

community’s ability to know if a 

hazardous substance is present and 

prepare for a possible emergency. The 

proposed regulation only considers a 

release scenario where a non-reactive 

EHS solid in solution form is released 

via an airborne release. However, LEPCs 

and Fire Departments have to look at all 

possible scenarios, including a possible 

fire or spill to water. If there is any type 

of emergency, the Fire Department will 

have to react to the total quantity on 

hand. While there is a great deal of 

information in the administrative record 

regarding the behavior of airborne 

releases of the subject materials, none of 

that information suggests that these 

materials are harmless in other accident 

scenarios. 

EPA’s Response: EPA recognizes that 

the manner in which the TPQs for nonreactive EHS solids in solution are being 

applied does not address all 

environmental media that could be 

affected by an accident release and EPA 

agrees that materials released via other 

accident scenarios are not harmless. 

However, the development of TPQs for 

emergency planning purposes under 

section 302 of EPCRA addresses the air 

release scenario because EPA believes 

an air release is most likely to involve 

potential exposures to the surrounding 

community. This air release scenario 

was used to develop TPQs for all EHSs 

whether they were gases, liquids, or 

solids. EPA is only modifying the 

approach for non-reactive EHS solids in 

solution to reflect the scientific 

information now available, which 

shows that an assumption of 100% 

dispersion into the air beyond a 

facility’s fence line affecting the 

surrounding community is overly 

conservative. 

The TPQs are designed to help State 

and local officials identify those sites 

where there is a greater potential for 

harm to the surrounding community if 

a release were to occur, thereby focusing 

resources on priority emergency 

planning problems (51 FR 41577, 

November 17, 1986.) The approach used 

for setting TPQs under section 302 of 

EPCRA ranks chemicals based on 

ambient physical state, form and the 

extent to which the material can become 

airborne and dispersed. This approach 

provides a relative measure of concern 

rather than absolute values and EPA 

acknowledged when developing the 

TPQs that there is no precision 

associated with the numbers and they 

should not be construed as ‘‘safe’’ (51 

FR 41577, November 17, 1986). When 

the TPQs were initially developed, EPA 

considered an approach based on 

ranking the chemicals on toxicity alone 

without considering the potential for 

them to become airborne, but this 

approach was rejected because it might 

distort local planning priorities (see 51 

FR 41577, November 17, 1986 for 

further discussion on this point). The 

Agency believes that limited state and 

local resources should be focused on 

those substances that potentially cause 

the greatest harm should an accidental 

release occur (52 FR 13390, April 22, 

1987). 

Nevertheless, EPA recognizes that 

Fire departments will need to react to 

the entire quantity on-site. Therefore, 

the reduction of the amount on-site of 

a non-reactive EHS solid in solution is 

only allowed for emergency planning 

purposes under section 302 of EPCRA 

and is not to be used for reporting under 

sections 311 and 312 of EPCRA. 

Accordingly, fire departments will have 

all the same information as before for 

planning and responding to an 

accidental release. LEPCs also have 

access to the same information for 

planning purposes. 

Comment: One commenter was 

concerned that the proposed change is 

a unique approach to evaluating EHS 

chemicals and is foreign to LEPCs, fire 

departments and SERCs. For other 

EHSs, it is not necessary to carry around 

a calculator to evaluate whether the 

visually obvious quantity being stored is 

actually in excess of the TPQ. For all 

other EHS chemicals, looking at the 

MSDS and knowing the quantity on 

hand suffices. 

EPA’s Response: The approach being 

finalized today, which revises the 

manner for applying TPQs for nonreactive EHS solids in solution is not 

‘‘unique’’; rather, EPA has already used 

a similar approach for determining the 

manner for applying TPQs for molten 

solids (except that the amount on-site is 

multiplied by 0.3). When proposing 

such an approach for molten solids, the 

Agency received no feedback from 

LEPCs, fire departments or SERCs (or 

TERCs) that applying this approach is 

problematic. In addition, we would note 

that quantities of EHSs that are stored as 

mixtures (such as solutions) already 

require some calculation of the total 

quantity of mixture multiplied by the 

concentration to determine the pounds 

of pure EHS (see 40 CFR 355.13). 

Adding up various containers and 

sources of the stored EHSs within a 

facility requires calculation and is 

already required (see 40 CFR 355.14). 

Some calculations for emergency 

planning should be expected and EPA 

does not believe a further calculation for 

comparison to a TPQ is unnecessarily 

burdensome. In addition, as noted 

elsewhere in this preamble, the 

Hazardous Chemical Inventory reports 

provide the total quantities and 

locations for use by emergency planning 

and response groups, and thus, we 

believe the information that LEPCs and 

Fire Departments need will still be 

available to them for emergency 

planning purposes. 

Comment: One commenter was 

concerned about the burden being 

balanced in this situation: a one-time 

notice versus the annual or even more 

frequent effort by the LEPC and fire 

department to evaluate risks present in 

the community. The commenter 

believes that a release of these 

chemicals is hazardous and undoing 25 

years of information collection and 

emergency planning just so a one-time 

notice can be avoided, seems absurd. 

EPA’s Response: EPA believes that 

because most facilities have (or should 

have) already reported the presence of 

EHSs exceeding relevant TPQs to their 

LEPCs, it is not apparent how this 

change in requirements will require 

more frequent effort by LEPCs and fire 

departments to evaluate risks. The data 

already collected by LEPCs, fire 

departments and SERCs (or TERCs) is 

still available and reporting on 

hazardous chemicals ‘‘aids in the 

development of state and local 

emergency plans’’ (40 CFR 370.1). If an 

LEPC believes that unreasonable risks 

are still posed for an EHS present at a 

facility, section 302(b)(2) of EPCRA 

allows a Governor or SERC to designate 

additional facilities after public notice 

and comment to be subject to the 

emergency planning and notification 

requirements of section 302 of EPCRA. 

In addition, facilities are still subject to 

emergency planning notification if they 

handle other EHSs that exceed their 

TPQs. 

We would also note that EPA did not 

make this change in reporting just so a 

one-time notice could be avoided. The 

issue was initially addressed due to a 

lawsuit that challenged, among other 

things, that EPA did not adequately 

explain the basis for setting the TPQs for 

non-reactive EHS solids in solution and 

did not adequately explain why it 

thought that such solids in solution 

could be expected to be completely 

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16686 Federal Register / Vol. 77, No. 56 / Thursday, March 22, 2012 / Rules and Regulations 

dispersed into the air, as compared to 

gases or powdered solids. EPA now 

believes, based on the studies cited in 

its technical analysis, that the previous 

assumption that a release of a nonreactive EHS solid in solution would be 

as readily dispersed to air as a gaseous 

EHS, for example, was overly 

conservative and without a good basis. 

Finally, for all practical purposes, 

changing the notification requirement 

affects only those facilities who have 

not yet reported a non-reactive EHS 

solid in solution. Thus, EPA believes 

that this change will allow those 

planning agencies with limited 

resources to better focus their efforts on 

those forms of EHSs that are more likely 

to cause the greatest harm. EPA also 

acknowledges that non-reactive EHS 

solids in solution can be hazardous, but 

notes that the requirements of EPCRA 

section 302 do not apply to all 

hazardous chemicals, only a subset, 

such as the limited listing of EHS. 

Comment: One commenter noted that 

EPA suggested in the proposed rule that 

Tier II reports will still provide 

adequate information to LEPCs and fire 

departments. The commenter stated that 

the authority of EPCRA section 

303(d)(3) does not apply to Tier II 

reports, which will immediately deprive 

LEPCs of perhaps their greatest asset in 

emergency planning. 

EPA’s Response: EPA agrees that the 

authority of EPCRA section 303(d)(3) 

[42 U.S.C. 11003(d)(3)] does not apply 

to Tier II reports. Section 303(d)(3) 

requires that for each facility subject to 

the requirements of Subchapter I— 

Emergency Planning and Notification, 

the owner or operator of the facility 

shall promptly provide information to 

such committee necessary for 

developing and implementing the 

emergency plan, upon request from the 

emergency planning committee. Tier II 

Inventory reporting requirements are 

covered under Subchapter II—Reporting 

Requirements of EPCRA [42 U.S.C. 

11021–11023]. 

EPA believes that less priority can be 

given for these forms of chemicals—that 

is, a non-reactive EHS solid in solution, 

based on the data that indicates they are 

not expected to be as dispersed into the 

air in the event of an accident. Other 

EHSs (such as gases and volatile liquids) 

are in a physical state and form more 

likely to cause potential risks to off-site 

communities when released. Facilities 

are still covered under section 302 of 

EPCRA if they have other EHSs that 

exceed the TPQs and thus, may still be 

required to provide some information 

relevant for emergency planning. Also, 

for purposes of emergency planning, 

section 302(b)(2) of EPCRA does allow 

a governor or a SERC to designate 

additional facilities to be subject to 

emergency planning and notification 

requirements, if such designation is 

made after public notice and 

opportunity for comment. 

IV. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order 12866 (58 FR 51735, 

October 4, 1993) and is therefore not 

subject to review under Executive 

Orders 12866 and 13563 (76 FR 3821, 

January 21, 2011). 

B. Paperwork Reduction Act 

This action does not impose any new 

information collection burden. Rather, 

this final rule raises the amount of 

chemical on-site required before 

triggering emergency planning reporting 

under 40 CFR part 355 for non-reactive 

EHS solids in solution. Facilities with 

this form of EHS chemical would have 

already (or should have already) 

reported their presence to their SERC (or 

TERC) 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 a nonreactive 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 355.20 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 that are reporting 

non-reactive EHS solids in solution for 

the first time under the EPCRA 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 final rule on small entities, a 

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 final 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 U.S.C. 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 final rule changes the manner by 

which facilities apply the TPQs for 

those non-reactive EHSs that are solid 

chemicals in solution form. Specifically, 

facilities with a non-reactive EHS solid 

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 final 

rule will relieve regulatory burden for 

some affected small entities and will 

have no economic impact on the rest of 

the affected small entities. 

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Federal Register / Vol. 77, No. 56 / Thursday, March 22, 2012 / Rules and Regulations 16687 

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 

action does not impose any new 

requirements on state, local or tribal 

governments. Facilities currently with 

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

already) reported these chemicals to 

their SERC (or TERC) and LEPC and 

identified a Facility Emergency 

Coordinator and the necessary 

information for developing an 

emergency plan to their LEPC. We 

expect that this action will neither 

increase nor decrease the requirements 

for SERCs (or TERCs) 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 

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 action reduces the reporting 

burden on any facilities that would have 

a non-reactive EHS solid in solution onsite 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 

action will neither increase nor decrease 

the requirements for SERCs (or TERCs) 

or LEPCs. This rule does not impose any 

requirements on state or local 

governments. Thus, Executive Order 

13132 does not apply to this action. 

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 action reduces reporting 

burden on any facilities that would have 

a non-reactive EHS solid in solution onsite 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 action reduces the 

reporting burden on any facilities that 

would have a non-reactive EHS 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 final rule would reduce reporting 

burden on any facilities that would have 

a non-reactive EHS solid in solution onsite 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 action does not involve technical 

standards. Therefore, EPA did 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 final 

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 the amount of non-reactive 

EHS solids in solution that would 

remain airborne from an accidental 

release into the environment will be 

lower than previously considered, and 

thus, would have less impact on the 

local community. This in turn will 

allow SERCs (or TERCs) and LEPCs to 

better focus their attention and limited 

resources on the amounts of EHS 

chemicals that can potentially cause the 

greatest harm, including those affecting 

minority or low-income populations, 

and to spend less time and fewer 

resources on those that pose less harm, 

when released. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A Major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

mstockstill on DSK4VPTVN1PROD with RULES

16688 Federal Register / Vol. 77, No. 56 / Thursday, March 22, 2012 / Rules and Regulations 

defined by 5 U.S.C. 804(2). This rule 

will be effective April 23, 2012. 

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: March 15, 2012. 

Lisa P. Jackson, 

Administrator. 

For the reasons set out in the 

preamble, title 40, chapter I of the Code 

of Federal Regulations is 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 paragraphs (b) and (c) to read 

as follows: 

§ 355.16 How do I determine the quantity 

of extremely hazardous substances present 

for certain forms of solids? 

* * * * * 

(b) Solid in solution. Multiply the 

weight percent of the non-reactive solid 

in solution in a particular container by 

the total weight of solution in that 

container. Then multiply by 0.2. 

Note to paragraph (b): This reduction in 

quantity must not be used to determine the 

amount present at one-time at a facility for 

reporting under 40 CFR 370.10. 

(c) Solid in molten form. Multiply the 

weight of the non-reactive solid in 

molten form by 0.3. 

Note to paragraph (c): This reduction in 

quantity must not be used to determine the 

amount present at one-time at a facility for 

reporting under 40 CFR 370.10. 

■ 3. Section 355.61 is amended by 

adding in alphabetical order the 

definitions of ‘‘Non-reactive Solid’’, 

‘‘Reactive solid’’ and ‘‘Solution’’ to read 

as follows: 

§ 355.61 How are key words in this part 

defined? 

* * * * * 

Non-reactive solid means any 

substance listed in Appendix A or B of 

this part with two threshold planning 

quantity values, the higher TPQ being 

10,000 pounds. 

* * * * * 

Reactive solid means any extremely 

hazardous substance denoted with ‘‘a’’ 

in the ‘‘Notes’’ column in Appendix A 

or B of this part. 

* * * * * 

Solution means any aqueous or 

organic solutions, slurries, viscous 

solutions, suspensions, emulsions, or 

pastes. 

* * * * * 

[FR Doc. 2012–6910 Filed 3–21–12; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 11 

[EB Docket No. 04–296; FCC 12–7] 

Review of the Emergency Alert System 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: In this document, the Federal 

Communications Commission 

(Commission) amends its rules 

governing the Emergency Alert System 

(EAS) to codify the obligation to process 

alert messages formatted in the Common 

Alerting Protocol (CAP) and to 

streamline and clarify these rules 

generally to enhance their effectiveness. 

DATES: Effective April 23, 2012, except 

for 47 CFR 11.21(a), 11.33(a)(4), 

11.41(b), 11.42, 11.54(b)(13), and 11.55, 

which contain information collection 

requirements that have not been 

approved by the Office of Management 

and Budget (OMB). The incorporation 

by reference of certain publications 

listed in this rule is approved by the 

Director of the Federal Register as of 

April 23, 2012. The Commission will 

publish a document in the Federal 

Register announcing the effective date 

of those paragraphs and rule 

amendments. 

FOR FURTHER INFORMATION CONTACT: Lisa 

Fowlkes, Deputy Bureau Chief, Public 

Safety and Homeland Security Bureau, 

at (202) 418–7452, or by email at 

Lisa.Fowlkes@fcc.gov. For additional 

information concerning the Paperwork 

Reduction Act information collection 

requirements contained in this 

document, contact Judy Boley Hermann 

at (202) 418–0214 or send an email to 

PRA@fcc.gov. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Fifth 

Report and Order (Fifth Report and 

Order) in EB Docket No. 04–296, FCC 

12–7, adopted on January 9, 2012, and 

released on January 10, 2012. The full 

text of this document is available for 

inspection and copying during normal 

business hours in the FCC Reference 

Center (Room CY–A257), 445 12th 

Street SW., Washington, DC 20554. The 

complete text of this document also may 

be purchased from the Commission’s 

copy contractor, Best Copy and Printing, 

Inc., 445 12th Street SW., Room CY– 

B402, Washington, DC 20554. The full 

text may also be downloaded at: 

www.fcc.gov. 

Synopsis of the Fifth Report and Order 

1. In the Fifth Report and Order, the 

Commission adopts several changes to 

its Part 11 Emergency Alert System 

(EAS) rules to more fully codify the 

Common Alerting Protocol (CAP)- 

related obligations initially adopted in 

the Second Report and Order (Second 

Report and Order) in EB Docket No. 04– 

296, 72 FR 62123 (Nov. 2, 2007), and to 

eliminate outdated rules to improve Part 

11’s overall effectiveness. The rule 

amendments and other decisions taken 

in this Fifth Report and Order are 

predicated upon the Third Further 

Notice of Proposed Rulemaking (Third 

FNPRM) in EB Docket No. 04–296, 76 

FR 35810 (June 20, 2011), adopted by 

the Commission on May 25, 2011. 

I. Background 

2. The present-day EAS is a 

hierarchical alert message distribution 

system that utilizes radio and television 

broadcasters, cable service providers, 

and other regulated entities (collectively 

known as EAS Participants) to transmit 

audio and/or visual emergency alert 

messages to the public. To initiate an 

EAS message, whether at the national, 

state, or local levels, the message 

originator must format a message in the 

EAS Protocol, which is identical to the 

Specific Area Message Encoding 

(SAME) digital protocol utilized by 

National Weather Service (NWS) 

(hereinafter, ‘‘EAS Protocol’’ and 

‘‘SAME’’ are used interchangeably), and 

send the formatted alert to a designated 

entry point within the EAS network for 

delivery to specialized equipment 

maintained and operated by EAS 

Participants that can receive (and 

decode) the alert for transmission over 

the EAS Participants’ facilities to their 

end users. 

3. In 2007, the Commission adopted 

the Second Report and Order in this 

docket, which revised the Commission’s 

Part 11 EAS rules to lay the foundation 

for a state-of-the-art, next-generation 

national EAS (Next Generation EAS). 

First, to ensure the efficient, rapid, and 

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