Federal Register / Vol. 74, No. 162 / Monday, August 24, 2009 / Proposed Rules 42625 

PART 80—[AMENDED] 

1. The authority citation for part 80 

continues to read as follows: 

Authority: 42 U.S.C. 7414, 7545 and 

7601(a). 

2. In § 80.27(a)(2)(ii), the table is 

amended by revising the entry for 

Colorado and footnote 2 to read as 

follows: 

§ 80.27 Controls and prohibitions on 

gasoline volatility. 

(a) * * * 

(2) * * * 

(ii) * * * 

APPLICABLE STANDARDS 1 1992 AND SUBSEQUENT YEARS

State May June July August September 

* * * * * * * 

Colorado 2 ............................................................................. 9.0 7.8 7.8 7.8 7.8 

* * * * * * * 

1Standards are expressed in pounds per square inch (psi). 

2The Colorado Covered Area encompasses the Denver-Boulder-Greeley-Ft. Collins-Loveland, CO, 8-hour ozone nonattainment area (see 40 

CFR part 81). 

* * * * * 

[FR Doc. E9–20290 Filed 8–21–09; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 372 

[EPA–HQ–TRI–2009–0602; FRL–8948–3] 

RIN 2025–AA24 

Toxics Release Inventory Articles 

Exemption Clarification Proposed Rule 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA proposes to take two 

actions relating to the articles 

exemption under the Toxics Release 

Inventory (TRI) program. First, EPA 

proposes to formally remove a 

paragraph of guidance dealing with 

releases due to natural weathering of 

products that appeared in the Reporting 

Forms and Instructions (RF&I) from 

1988 to 2001. This guidance was absent 

from the Reporting Forms and 

Instructions after 2001, but formal 

notice of its removal was never issued. 

EPA here provides notice that this 

language has been removed and may not 

be relied on by reporting facilities. 

Second, EPA is proposing an 

interpretation of how the articles 

exemption applies to the Wood Treating 

Industry, specifically to treated wood 

that has completed the treatment 

process. We are requesting comment on 

both of these actions. 

DATES: Comments, identified by Docket 

ID No. EPA–HQ–TRI–2009–0602, must 

be received by EPA on or before October 

23, 2009. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

TRI–2009–0602, by one of the following 

methods: 

• http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

• E-mail: oei.docket@epa.gov 

• Mail: OEI Docket, Environmental 

Protection Agency, Mailcode 2822T, 

1200 Pennsylvania Ave., NW., 

Washington, DC 20460. 

• Hand Delivery: EPA/DC, EPA West, 

Room 3334, 1301 Constitution Ave., 

NW., Washington, DC 20460. 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–TRI–2009– 

0602. 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 

for which 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 or any form of 

encryption and must 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. 

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 for which disclosure is 

restricted by statute. Certain other 

materials, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the OEI Docket, EPA/DC, EPA West, 

Room 3334, 1301 Constitution Ave., 

NW., Washington, DC. This Docket 

Facility is open from 8:30 a.m. to 4:30 

p.m., Monday through Friday, excluding 

legal holidays. The Public Reading 

Room is open Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744, and the telephone 

number for the OEI Docket is (202) 566– 

1752. 

FOR FURTHER INFORMATION CONTACT: For 

general information on TRI, contact the 

Emergency Planning and Community 

Right-to-Know Hotline at (800) 424– 

9346 or (703) 412–9810, TDD (800) 553– 

7672, http://www.epa.gov/epaoswer/ 

hotline/. For specific information on 

this rulemaking contact: Steven DeBord, 

Toxics Release Inventory Program 

Division, Mailcode 2844T, OEI, 


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42626 Federal Register / Vol. 74, No. 162 / Monday, August 24, 2009 / Proposed Rules 

Environmental Protection Agency, Ariel 

Rios Building, 1200 Pennsylvania Ave., 

NW., Washington, DC 20460; 

Telephone: (202) 566–0731; E-mail: 

DeBord.Steven@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Why Is EPA Issuing This Proposed 

Rule? 

EPA has learned that there is some 

confusion in the regulated community 

regarding a paragraph discussing the 

articles exemption that appeared in the 

Reporting Forms and Instructions (RF&I) 

between 1988 and 2001. This paragraph 

paraphrased guidance issued in an 

October 24, 1988, letter to a specific 

facility. In 2001, we determined that the 

paragraph could be misinterpreted as 

indicating that the exemption has a 

broader scope than intended, and 

therefore the paragraph was not 

included in subsequent Reporting 

Forms and Instructions. Removal of the 

paragraph occurred without public 

notice or opportunity for comment. We 

are now providing notice of the removal 

and an opportunity for comment. 

We are aware that the Wood Treating 

Industry has relied upon a 

misinterpretation of the RF&I paragraph 

in determining the amount of releases 

reportable from their facilities. We are 

proposing an explanation of how the 

articles exemption applies to the Wood 

Treating Industry. 

II. Does This Action Apply to Me? 

This action applies to facilities that 

submit annual reports under section 313 

of the Emergency Planning and 

Community Right-to-Know Act (EPCRA) 

and section 6607 of the Pollution 

Prevention Act (PPA). To determine 

whether your facility would be affected 

by this action, you should carefully 

examine the applicability criteria in part 

372, subpart B, of Title 40 of the Code 

of Federal Regulations. If you have 

questions regarding the applicability of 

this action to a particular entity, consult 

the individuals listed in the preceding 

FOR FURTHER INFORMATION CONTACT

section. This action is also relevant to 

those who utilize EPA’s TRI 

information, including State agencies, 

local governments, communities, 

environmental groups and other nongovernmental organizations, as well as 

members of the general public. 

III. What Is EPA’s Statutory Authority 

for Taking This Action? 

These actions are proposed under 

sections 313(g), 313(h), and 328 of 

EPCRA, 42 U.S.C. 11023(g), 11023(h) 

and 11048, and section 6607 of the 

Pollution Prevention Act (PPA), 42 

U.S.C. 13106. 

In addition, Congress granted EPA 

broad rulemaking authority. EPCRA 

section 328 provides that the 

‘‘Administrator may prescribe such 

regulations as may be necessary to carry 

out this chapter’’ (28 U.S.C. 11048). 

IV. Background Information 

A. What Are the Toxics Release 

Inventory Reporting Requirements and 

Who Do They Affect? 

Pursuant to section 313 of the 

Emergency Planning and Community 

Right-to-Know Act (EPCRA), certain 

facilities that manufacture, process, or 

otherwise use specified toxic chemicals 

in amounts above reporting threshold 

levels must submit annually to EPA and 

to designated State officials toxic 

chemical release forms containing 

information specified by EPA. 42 U.S.C. 

11023. In addition, pursuant to section 

6607 of the Pollution Prevention Act 

(PPA), facilities reporting under section 

313 of EPCRA must also report 

pollution prevention and waste 

management data, including recycling 

information, for such chemicals. 42 

U.S.C. 13106. These reports are 

compiled and stored in EPA’s database 

known as the Toxics Release Inventory 

(TRI). 

Regulations at 40 CFR part 372, 

subpart B, require facilities that meet all 

of the following criteria to report: 

• The facility has 10 or more full-time 

employee equivalents (i.e., a total of 

20,000 hours worked per year or greater; 

see 40 CFR 372.3); and 

• The facility is included in a North 

American Industry Classification 

System (NAICS) Code listed at 40 CFR 

372.23 or under Executive Order 13148, 

Federal facilities regardless of their 

industry classification; and 

• The facility manufactures (defined 

to include importing), processes, or 

otherwise uses any EPCRA section 313 

(TRI) chemical in quantities greater than 

the established thresholds for the 

specific chemical in the course of a 

calendar year. 

Facilities that meet the criteria must 

file a Form R report or, in some cases, 

may submit a Form A Certification 

Statement, for each listed toxic chemical 

for which the criteria are met. As 

specified in EPCRA section 313(a), the 

report for any calendar year must be 

submitted on or before July 1 of the 

following year. For example, reporting 

year 2004 data should have been 

postmarked on or before July 1, 2005. 

The list of toxic chemicals subject to 

TRI reporting can be found at 40 CFR 

372.65. This list is also published every 

year as Table II in the current version of 

the Toxics Release Inventory Reporting 

Forms and Instructions. The current TRI 

chemical list contains 581 chemicals 

and 30 chemical categories. 

The manufacturing, processing, or 

otherwise use of a toxic chemical are 

threshold activities that trigger reporting 

to the TRI program. After a regulated 

facility determines it has performed a 

threshold activity with a listed 

chemical, that facility then calculates 

quantities of the chemical that are 

manufactured, processed, or otherwise 

used at the facility to determine if the 

threshold quantity has been exceeded 

and reporting is required. In 1988, EPA 

promulgated an articles exemption from 

threshold quantity calculations and 

reporting requirements for 

manufactured items that contain toxic 

chemicals. (53 FR 4500, February 16, 

1988) 

B. Definition of Article 

The term ‘‘article’’ is defined in the 

TRI regulations at 40 CFR 372.3: 

‘‘Article’’ means a manufactured item: (1) 

Which is formed to a specific shape or design 

during manufacture; (2) which has end use 

functions dependent in whole or in part 

upon its shape or design during end use; and 

(3) which does not release a toxic chemical 

under normal conditions of processing or use 

of that item at the facility or establishments. 

C. Articles Exemption 

The articles exemption at 40 CFR 

372.38(b) states: 

Articles. If a toxic chemical is present in 

an article at a covered facility, a person is not 

required to consider the quantity of the toxic 

chemical present in such article when 

determining whether an applicable threshold 

has been met under § 372.25, § 372.27, or 

§ 372.28 or determining the amount of release 

to be reported under § 372.30. This 

exemption applies whether the person 

received the article from another person or 

the person produced the article. However, 

this exemption applies only to the quantity 

of the toxic chemical present in the article. 

If the toxic chemical is manufactured 

(including imported), processed, or otherwise 

used at the covered facility other than as part 

of the article, in excess of an applicable 

threshold quantity set forth in § 372.25, 

§ 372.27, or § 372.28, the person is required 

to report under § 372.30. Persons potentially 

subject to this exemption should carefully 

review the definitions of article and release 

in § 372.3. If a release of a toxic chemical 

occurs as a result of the processing or use of 

an item at the facility, that item does not 

meet the definition of article. 

V. What Led to the Development of This 

Proposed Rule? 

In 2007, members of the wood treating 

industry (‘‘the wood treaters’’) contacted 

EPA for guidance on reporting releases 

from treated wood after it has left the 

treatment process and is either sitting 

on a drip pad or in storage. The wood 


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treaters cited various past EPA guidance 

documents including a paragraph found 

in the Reporting Forms and Instructions 

(RF&I) from 1988 to 2001 for the 

contention that they need not report 

releases from treated wood in storage. 

EPA responded in an October 15, 2007, 

letter explaining that the wood treaters 

had misinterpreted the past guidance 

and when the guidance is properly 

applied to their processes, releases from 

wood post-treatment must be reported 

to EPA. The wood treaters challenged 

this letter and, on May 15, 2008, a 

preliminary injunction was issued by 

the U.S. District Court for the District of 

Columbia against EPA enforcing its 

interpretation. EPA is proposing this 

rule to clarify past guidance on this 

issue and to provide an opportunity for 

public comment on its interpretation. 

The following is a chronology of 

relevant guidance that has been issued 

relating to the articles exemption and 

how it applies under circumstances of 

natural weathering. 

In 1988, a facility that used plastic 

wrap to enclose their products posed a 

question to EPA concerning releases 

from the plastic. The facility asked how 

the articles exemption applied to 

extremely minor releases occurring from 

the hot-knife cutting of the plastic film. 

We explained in a letter that even 

though the releases were extremely 

small, they were in fact caused by the 

use of the film. (Oct. 24, 1988, letter 

from Charles Elkins, Director of Office 

of Toxic Substances, to Geraldine Cox of 

Chemical Manufacturers Association; 

‘‘Elkins letter’’). As such, we determined 

that these releases were not exempt 

under the articles exemption because 

they resulted from use of the plastic 

wrap. To distinguish from these releases 

that were caused by use of the plastic, 

we addressed even smaller releases, for 

instance, releases that the plastic rolls 

emitted while sitting in storage before 

use. It is noteworthy that this facility 

did not manufacture the plastic wrap 

but had it delivered by an outside 

supplier. The rolls while sitting in 

storage had not yet been processed or 

used at the facility. We explained that 

certain very low level releases that 

occur over the life of the product would 

not disqualify an item from the articles 

exemption if they were analogous to 

‘‘weathering’’ or ‘‘natural deterioration.’’ 

For the plastic film, we said ‘‘the normal 

low-level migration of [toxic chemicals] 

from the plastic film does not constitute 

a release reportable under Section 313.’’ 

In the 1988 RF&I, we inserted 

language paraphrasing the rationale of 

the Elkins letter. The inserted language 

in the RF&I said: 

You are not required to count as a release, 

quantities of an EPCRA section 313 chemical 

that are lost due to natural weathering or 

corrosion, normal/natural degradation of a 

product, or normal migration of an EPCRA 

section 313 chemical from a product. For 

example, amounts of an EPCRA section 313 

chemical that migrate from plastic products 

in storage do not have to be counted in 

estimates of releases of that EPCRA section 

313 chemical from the facility. 

When the above-quoted text was 

reviewed in preparation for release of 

the 2002 RF&I, we determined that it 

could cause confusion among reporting 

facilities because the guidance was to be 

applied only in limited circumstances 

that were not clearly explained. The 

guidance was directed at items that had 

qualified as articles prior to any natural 

weathering because these items did not 

release toxic chemicals due to 

processing or use at the facility. It did 

not address how processing or use of an 

item could change the reportability of 

releases from the item. EPA, therefore, 

determined not to include this language 

in the 2002, and subsequent, RF&I. EPA 

did not, however, provide formal notice 

or explanation of the removal of this 

language. 

VI. Proposed Action 

A. First Proposed Action: Withdrawal of 

Paragraph From RF&I Guidance 

With this proposed rule, we give 

notice of our intent to formally remove 

the following language that was found 

in the Reporting Forms and Instructions 

(RF&I) from 1988 to 2001: 

You are not required to count as a release, 

quantities of an EPCRA section 313 chemical 

that are lost due to natural weathering or 

corrosion, normal/natural degradation of a 

product, or normal migration of an EPCRA 

section 313 chemical from a product. For 

example, amounts of an EPCRA section 313 

chemical that migrate from plastic products 

in storage do not have to be counted in 

estimates of releases of that EPCRA section 

313 chemical from the facility. 

We do not propose to replace this 

removed language in the RF&I and we 

will not rely upon this language in any 

future determinations. As discussed 

above, this paragraph was a poor 

paraphrasing of the 1988 Elkins letter. 

The interpretation set forth in the Elkins 

letter still represents Agency policy and 

is much better stated in that letter than 

it was in the short paraphrasing that 

appeared in the RF&I from 1988 to 2001. 

The Elkins letter, when read in its 

entirety, presents relevant context and 

explains clearly what constitutes natural 

weathering or deterioration and how 

these are addressed by the articles 

exemption. Given the ready availability 

of that guidance, we see no reason to 

either reproduce it or attempt to 

paraphrase it in the RF&I. We are 

requesting comment on the above 

interpretation and the corresponding 

removal of the paragraph in the RF&I. 

B. Second Proposed Action: Application 

of This Interpretation to the Wood 

Treating Industry 

As mentioned above, in at least one 

industry (facilities engaged in treating of 

lumber with preservatives such as 

creosote), some facilities have 

improperly used the articles exemption 

to avoid reporting potentially large 

releases from items in storage. In the 

case at hand, lumber had been 

impregnated with a number of toxic 

chemicals (as preservatives), and after 

treatment, the lumber sat in various 

types of holding areas, or was moved 

directly to transportation vehicles. In 

any case, it appeared that some amount 

of toxic chemicals continued to be 

emitted to the air (and/or still dripping 

to pads or the ground) at the facility as 

a result of the treatment. Several 

facilities had incorrectly applied the 

Elkins and RF&I guidance and 

determined that the releases and offgassing of toxic chemicals from freshly 

manufactured treated wood products 

could be considered ‘‘natural 

weathering’’ or ‘‘low-level migration’’ 

releases and thus would be exempt from 

reporting based on the RF&I paragraph. 

We do not dispute the assertion of the 

trade association representing wood 

treaters that some ambiguity existed in 

the various iterations of our past 

guidance with respect to appropriate 

treatment of very low levels of releases 

that are analogous to ‘‘weathering’’ or 

‘‘natural deterioration,’’ and that further 

clarification with opportunity to 

comment would be appropriate. This 

proposed rule clarifies how the articles 

exemption applies to the wood 

treatment industry. 

The articles exemption clearly states 

that an item releasing toxic chemicals as 

a result of processing or use of the item, 

does not qualify as an article. (40 CFR 

372.38(b)) EPA did not intend for the 

phrase ‘‘as a result of processing or use’’ 

to apply only at the instant of 

processing or use. That would imply 

that releases from an item that result 

from use or processing but occur at a 

later time could be ignored. When 

Congress passed EPCRA, the intent was 

to provide communities and others with 

as full a view as practicable with respect 

to releases of toxic chemicals. (42 

U.S.C.11023) When EPA crafted the 

definition of article in 372.3, the Agency 

expected that the qualifier ‘‘does not 

release a toxic chemical under normal 

conditions of processing or use’’ of the 


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item was sufficient to reduce burden on 

facilities calculating threshold 

quantities and still capture important 

information on toxic releases. We 

emphasized in the 1988 preamble to the 

Final Toxic Chemical Release Reporting 

Rule ‘‘that under this definition an item 

will not qualify as an article if there are 

releases of toxic chemicals from the 

normal use or processing of that item’’ 

and when applying this definition, 

facilities ‘‘should keep this release 

factor in mind.’’ (53 FR 4507, February 

16, 1988) The preamble did not 

specifically define ‘‘normal use or 

processing,’’ but it provided examples 

for applying the release factor. For 

instance, the milling of metals generates 

fume or dust which would disqualify 

the metal as an article. As a 

counterexample, if the only release is 

the disposal of solid scrap that is 

recognizable as having the same form as 

the item, the item can still qualify as an 

article. In general, the disposal of an 

item after use is not a release that would 

disqualify an item from being an article. 

The original intent of the articles 

exemption was to reduce burden on 

facilities that had articles on their 

premises by reducing the materials that 

would have to be evaluated for 

threshold and release determinations. 

(53 FR 4507, February 16, 1988) The 

exemption was not intended to exclude 

reporting on releases that could lead to 

exposure to toxic chemicals and the 

qualifier to the definition of ‘‘article’’ 

was crafted to ensure those releases 

would still be reported. 

As noted above, we are now aware of 

instances where items may have exited 

the production or manufacturing phase 

and are still releasing toxic chemicals at 

the facility—a scenario not discussed in 

the 1988 Final Rule. These items are 

being held in storage at the facility and 

despite the fact they are not in that 

instant being processed or used 

continue to release toxic chemicals that 

are due to the item’s earlier processing 

or use at the facility. 

For example, consider a manufacturer 

of treated lumber products that has 

finished the processing (i.e., injection) 

of the lumber items. From the moment 

of the processing through and including 

when the lumber is in storage, the 

lumber continues to release toxic 

chemicals into the environment due 

only to the processing. If the chemicals 

hadn’t been injected during the 

processing, they wouldn’t be released 

during storage. So long as the lumber is 

releasing toxic chemicals as a result of 

the earlier processing, it will not qualify 

as an article. When the manufacturer 

incorrectly applies the articles 

exemption from the point processing 

ends, he or she undercounts facilitywide emissions to the environment. 

EPA believes it is reasonable to limit 

the applicability of the articles 

exemption to releases other than those 

from processing or use of an item 

because the purpose of the TRI program 

is to provide comprehensive 

information on releases. Among other 

similar purposes, section 313 of EPCRA 

is intended to inform communities 

about toxic chemicals in their area and 

provide information to regulators to aid 

in the development of regulations. 

Without collecting information on postprocessing releases, communities near 

lumber yards, and others such as 

regulators who need to understand 

facility-wide emissions, would be given 

a skewed view of the actual emissions 

from the wood treating operation as a 

whole. 

Further, EPA believes wood treaters 

are in a unique position to provide 

information on post-processing releases 

because they have knowledge of the 

types and quantities of chemicals used 

in the treatment and of their likely 

disposition (e.g., whether they stay in 

the product). Wood treaters may use the 

data they have available to them to 

estimate such releases. Section 313(g)(2) 

of EPCRA provides ‘‘a facility may use 

readily available data (including 

monitoring data) collected pursuant to 

other provisions of law, or, where such 

data are not readily available, 

reasonable estimates of the amounts 

involved.’’ 42 U.S.C. 11023(g)(2). 

ECPRA does not require ‘‘monitoring or 

measurement of the quantities, 

concentration or frequency of any toxic 

chemical released into the environment 

beyond that monitoring and 

measurement required under other 

provisions of law or regulation.’’ Id. 

Given this standard for providing 

information on toxic chemicals, EPA 

believes that wood treating facilities 

should be able to use the existing data 

available to them to estimate releases 

from treated wood after it has exited the 

treatment process. 

Post-processing releases are 

distinguishable from low-level releases 

due to natural weathering of articles 

because releases due to natural 

weathering are not the result of any 

processing or use of the article 

conducted at a facility. In other words, 

nothing a facility has done will cause 

these natural releases from articles to 

occur. Because the natural weathering 

occurs regardless of processing or use, 

the facility may not have any reliable 

information on how much is being 

released. Lacking any information of 

even what chemicals are involved could 

lead a facility to provide highly 

inaccurate information. EPA believes 

the usefulness of such reporting on 

releases from natural weathering from 

articles does not outweigh the burden 

required to report on such releases. 

Based upon the discussion above, our 

interpretation of how the articles 

exemption applies to the Wood Treating 

Industry is: 

1. The Elkins guidance concerning 

‘‘natural weathering’’, ‘‘natural 

deterioration’’, or ‘‘low-level migration’’ 

releases of chemicals does not apply to 

releases that occur due to processing or 

use even if those releases occur after 

processing or use has ended; 

2. There is a rebuttable presumption 

that any releases (e.g. off-gassing or 

drippage) of toxic chemicals from 

treated items at the wood treatment 

facility are ‘‘as a result of processing or 

use at the facility;’’ 

3. If a release of a toxic chemical 

occurs as a result of the processing or 

use of an item at the facility, that item 

does not meet the definition of article 

and the releases from the item are not 

exempt. 

We are requesting comment on this 

interpretation of the TRI regulations. 

VII. How will this action affect EPA 

rules and policies concerning toxic 

releases from materials held in storage 

at facilities? 

Finally, we wish to summarize how 

releases from materials or items in 

storage that do not qualify as articles 

must be reported at facilities where a 

threshold activity has been triggered. 

Although storage is not a threshold 

activity, regulated facilities may still be 

required to report 313 toxic chemical 

releases from storage if a threshold 

activity is performed, and threshold 

quantities are exceeded at the facility. 

40 CFR 372.25(c) states that ‘‘the facility 

must report if it exceeds any applicable 

threshold and must report on all 

activities at the facility involving the 

chemical, except as provided in 

§ 372.38.’’ 

We have further explained this 

requirement when asked: ‘‘If a facility 

has a chemical in storage but does not 

process or otherwise use it during the 

reporting year, is the owner/operator 

subject to reporting?’’ Our response was: 

No. Storage, in itself, would not meet an 

activity threshold under EPCRA Section 313 

(Note: the facility may have reporting 

requirements under other portions of EPCRA 

such as Sections 311 and 312). However, if 

the facility exceeds the manufacturing, 

processing, or otherwise use threshold for the 

same toxic chemical elsewhere at the facility, 

the facility must consider releases from the 

storage of the toxic chemical. The facility 

must also consider the amount of the Section 


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313 chemical in storage when calculating the 

maximum amount on-site during the year. 

(Question 87 found in the 1998 EPCRA 

Section 313 Questions and Answers 

document, December 1998, EPA 745–B–98– 

004) 

With this proposed rule, we are not 

altering the requirement of reporting 

releases from items or products in 

storage when reporting is triggered by 

threshold activities at the facility. 

VIII. Regulatory Assessment 

Requirements 

A. Executive Order 12866, Regulatory 

Planning and Review 

OMB has determined this action is 

not a ‘‘significant regulatory action’’ 

under the terms of Executive Order (EO) 

12866 (58 FR 51735, October 4, 1993) 

and therefore is not subject to review 

under the EO. EPA prepared an analysis 

of the potential costs and benefits 

associated with this action. This 

analysis is contained in the ‘‘Economic 

Analysis of the Toxics Release Inventory 

Articles Exemption Clarification 

Proposed Rule.’’ A copy of the analysis, 

which is available in the docket for this 

action, is described below. 

1. Methodology 

This proposed rule is expected to 

create additional burden for only the 

Wood Preservation industry. No 

additional facilities will be brought 

under TRI jurisdiction through this rule. 

This industry (NAICS 321114) 

consists of ‘‘establishments primarily 

engaged in (1) treating wood sawed, 

planed, or shaped in other 

establishments with creosote or other 

preservatives such as chromated copper 

arsenate to prevent decay and to protect 

against fire and insects and/or (2) 

sawing round wood poles, pilings, and 

posts and treating them with 

preservatives (US Census Bureau, 

2003).’’ At issue in the proposed rule is 

the potential release (during storage) 

and subsequent reporting of TRI 

chemicals found in wood preservation. 

Clarification of the articles exemption 

rule as it applies to the correct reporting 

of these chemical releases will only 

apply to current TRI reporters as it does 

not affect reporting threshold 

calculations. It will not change the 

number of facilities reporting to TRI or 

the number of reports filed. 

Since the proposed rule simply 

removes certain language and clarifies 

other language in the TRI Reporting 

Forms and Instructions document, 

facilities are only expected to incur 

burden due to rule familiarization. The 

current OMB-approved TRI reporting 

burden estimates assume that facilities 

have made all required calculations as 

a part of form completion. Therefore, 

any calculations that wood preservation 

facilities might incur to revise their 

release estimates to include quantities 

they currently do not include in release 

amounts are not attributable to the 

proposed rule given that they should 

already have been made. 

Under the proposed rule, EPA expects 

that 252 Wood Preservation facilities 

(NAICS 321114) would incur rule 

familiarization burden. The incremental 

burden estimates associated with rule 

familiarization consist of time to read 

and interpret the clarified language 

outlined in the proposed rule and are 

based on the following assumptions: 

• The first-year management burden 

includes 15 minutes to be briefed 

regarding the clarified language. It is 

assumed that facilities will fully 

comprehend the clarified language by 

the subsequent year of reporting; 

therefore, no rule familiarization burden 

is required in subsequent years. 

• The first-year technical burden 

includes 30 minutes to read and 

interpret the clarified language. An 

additional 15 minutes will be required 

to brief management regarding the 

clarified language. It is assumed that 

facilities will fully comprehend the 

clarified language by the subsequent 

year of reporting; therefore, no rule 

familiarization burden is required in 

subsequent years. 

• There is no first or subsequent-year 

burden on clerical staff associated with 

rule familiarization. 

2. Cost and Burden Results 

Unit and Total incremental reporting 

burden and costs associated with the 

proposed rule are presented in Tables 1 

and 2 below. 

TABLE 1—ESTIMATED FIRST AND SUBSEQUENT YEAR BURDEN ASSOCIATED WITH THE PROPOSED RULE

Activity 

Labor category Total unit 

burden 

Number of 

facilities Total burden 

Managerial Technical Clerical 

Incremental First-Year Burden (hours) 

Rule Familiarization ................................. 0.25 0.75 0.00 1.00 252 252 

Total .................................................. 0.25 0.75 0.00 1.00 252 252 

Incremental Subsequent-Year Burden (hours) 

Form Completion ..................................... 0.00 0.00 0.00 0.00 0 0 

Total .................................................. 0.00 0.00 0.00 0.00 0 0 

TABLE 2—ESTIMATED INCREMENTAL COSTS ASSOCIATED WITH THE PROPOSED RULE

Activity Unit cost Number of 

facilities Total cost 

First Year 

Rule Familiarization ..................................................................................................................... $55.07 252 $13,877 

Annual Total ......................................................................................................................... ........................ ........................ 13,877 


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42630 Federal Register / Vol. 74, No. 162 / Monday, August 24, 2009 / Proposed Rules 

TABLE 2—ESTIMATED INCREMENTAL COSTS ASSOCIATED WITH THE PROPOSED RULE—Continued 

Activity Unit cost Number of 

facilities Total cost 

Subsequent Years 

Rule Familiarization ..................................................................................................................... $0.00 0 0.00 

Annual Total ......................................................................................................................... ........................ ........................ 0.00 

This proposed rule is estimated to 

result in one-time compliance burden of 

252 hours with an associated cost of 

$13,877.00 to subject facilities in the 

first year that the rule takes affect. 

3. Data Impacts 

The impact of this action should be 

primarily the inclusion to the reportable 

emissions totals of any releases from 

treated lumber items that some facilities 

may have previously considered exempt 

as articles. 

For more information, see the 

Economic Analysis of the Toxics 

Release Inventory Articles Exemption 

Clarification Proposed Rule. 

B. Paperwork Reduction Act 

According to the Paperwork 

Reduction Act (PRA), 44 U.S.C. 3501 et 

seq., an agency may not conduct or 

sponsor, and a person is not required to 

respond, to a collection of information 

that requires Office of Management and 

Budget (OMB) approval under the PRA, 

unless it has been approved by OMB 

and displays a valid OMB control 

number. The information collection 

requirements related to the Toxic 

Release Inventory are already approved 

by the Office of Management and 

Budget (OMB) under the Paperwork 

Reduction Act, 44 U.S.C. 3501 et seq. 

That Information Collection Requests 

(ICRs) documents have been approved 

under OMB control numbers 2070–0093 

and 2070–0143 (EPA ICR numbers 1363 

and 1704 respectively). This rule does 

not impose any new requirements that 

require additional OMB approval. 

The Paperwork Reduction Act 

mandates that federal agencies estimate 

the record keeping and reporting burden 

of a proposed rule. In this context, the 

term ‘‘burden’’ is interpreted as the total 

time, effort, or financial resources 

expended by people to generate, 

maintain, retain, disclose, or provide 

information to or for a federal agency. 

This includes the time needed by 

regulated entities to review instructions 

and to develop, acquire, install, and use 

technology and systems to collect, 

validate, verify, and disclose 

information. Time taken to adjust 

existing ways to comply with any 

previously applicable instructions and 

requirements and to train personnel to 

respond to the information collection 

task is also included. In this section, 

burden hours for both the industry 

respondents and the government are 

estimated. 

C. Regulatory Flexibility Act (RFA), as 

Amended by the Small Business 

Regulatory Enforcement Fairness Act of 

1996 (SBREFA), 5 USC 601 et seq. 

The Regulatory Flexibility Act 

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 this rule on small entities, small 

entity is defined as: (1) A small business 

that is primarily engaged in (1) treating 

wood sawed, planed, or shaped in other 

establishments with creosote or other 

preservatives such as chromated copper 

arsenate to prevent decay and to protect 

against fire and insects and/or (2) 

sawing round wood poles, pilings, and 

posts and treating them with 

preservatives as defined by NAICS code 

321114 with annual receipts less than 

10 million dollars (based on Small 

Business Administration size 

standards); (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-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field. 

The estimated impacts to small 

companies under the proposed rule are 

presented in Table 3 below. The 252 

facilities are owned by 158 parent 

companies. Of the 158 affected parent 

companies, 148 are small businesses. Of 

the affected small businesses, all 148 

have cost impacts of less than 1%. No 

small businesses are projected to have a 

cost impact of 1% or greater. Of the 148 

estimated cost impacts, there is a 

maximum impact of .089% and a 

minimum impact of 0.000001% each 

affecting one small business. The mean 

and median impacts are estimated to be 

0.003% and 0.001% respectively. 

TABLE 3—SUMMARY OF IMPACTS ON SMALL ENTITIES

Estimated 

number of 

affected entities 

Estimated 

number of 

affected small 

entities 

Estimated 

number of 

small entities 

with impacts 

of 3 percent or 

greater 

Estimated 

number of 

small entities 

with impacts 

between 1 and 3 

percent 

Estimated 

number of 

small entities 

with impacts 

less than 

1 percent 

First Year ......................................................... 158 148 0 0 148 

% of Small Entities ........................................... ............................ ............................ 0 0 100 

Subsequent Years ........................................... 0 0 0 0 0 

% of Small Entities ........................................... ............................ ............................ 0 0 0 


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Federal Register / Vol. 74, No. 162 / Monday, August 24, 2009 / Proposed Rules 42631 

After considering the economic 

impacts of this rule on small entities, I 

certify that this action will not have a 

significant economic impact on a 

substantial number of 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 

EPA has determined that this 

proposed rule does not contain a 

Federal mandate that may result in 

expenditures of $100 million or more 

for State, local, and tribal governments, 

in the aggregate, or the private sector in 

any one year. This proposed rule is 

estimated to result in one-time 

compliance costs of $13,877.00 to the 

private sector. In addition, this rule does 

not create any additional federally 

enforceable duty for State, local and 

tribal governments. Thus, this proposed 

rule is not subject to the requirements 

of sections 202 and 205 of the UMRA. 

E. Executive Order 13132, Federalism 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), requires EPA to develop an 

accountable process to ensure 

meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications. ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that 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.’’ This 

proposed rule 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. 

F. Executive Order 13175, Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 6, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ ‘‘Policies that have tribal 

implications’’ is defined in the 

Executive Order to include regulations 

that have ‘‘substantial direct effects on 

one or more Indian tribes, on the 

relationship between the Federal 

Government and the Indian tribes, or on 

the distribution of power and 

responsibilities between the Federal 

government and Indian tribes.’’ This 

proposed rule does not have tribal 

implications. It will not have substantial 

direct effects on tribal governments, on 

the relationship between the Federal 

government and Indian tribes, or on the 

distribution of power and 

responsibilities between the Federal 

government and Indian tribes, as 

specified in Executive Order 13175. 

G. Executive Order 13045, Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets EO 13045 (62 FR 

19885, April 23, 1997) as applying only 

to those regulatory actions that concern 

health or safety risks, such that the 

analysis required under section 5–501 of 

the EO has the potential to influence the 

regulation. This action is not subject to 

EO 13045 because it does not establish 

an environmental standard intended to 

mitigate health or safety risks. 

H. Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to Executive 

Order 13211 (66 FR 28355 (May 22, 

2001)), because it is not a significant 

regulatory action under Executive Order 

12866. 

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, section 12(d) (15 U.S.C. 272 

note) directs EPA to use voluntary 

consensus standards in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise 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. The NTTAA directs 

EPA to provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. This 

proposed rule does not establish 

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 (Feb. 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 will 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. 

This proposed rule does not relax the 

control measures on sources regulated 

by the rule and therefore will not cause 

emissions increases from these sources. 

List of Subjects in 40 CFR Part 372 

Environmental protection, 

Community right-to-know, Reporting 

and recordkeeping requirements, Toxic 

chemicals, Articles Exemption. 

Dated: August 17, 2009. 

Lisa P. Jackson, 

Administrator. 

[FR Doc. E9–20293 Filed 8–21–09; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 15 

[ET Docket Nos. 04–37 and 03–104; FCC 

09–60] 

Broadband Over Power Line Systems 

AGENCY: Federal Communications 

Commission. 

ACTION: Proposed rule. 

SUMMARY: This document addresses 

certain issues from the Commission’s 

Report and Order on rules for 

broadband over power line systems and 

devices (BPL Order) that was remanded 

by the United States Court of Appeals 

for the District of Columbia. In the BPL 

Order, the Commission established 

technical standards, operating 

restrictions and measurement guidelines 

for Access Broadband over Power Line 

(Access BPL) systems to promote the 


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