[Federal Register Volume 74, Number 162 (Monday, August 24, 2009)]
[Proposed Rules]
[Pages 42625-42631]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-20293]


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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.

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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:
    <bullet> http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#244b414d0a404b474f4150644154450a434b52"><span class="__cf_email__" data-cfemail="fa959f93d49e9599919f8eba9f8a9bd49d958c">[email protected]</span></a>
    <bullet> Mail: OEI Docket, Environmental Protection Agency, 
Mailcode 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
    <bullet> 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,

[[Page 42626]]

Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania 
Ave., NW., Washington, DC 20460; Telephone: (202) 566-0731; E-mail: 
<a href="/cdn-cgi/l/email-protection#3d79587f524f59136e49584b58537d584d5c135a524b"><span class="__cf_email__" data-cfemail="2b6f4e6944594f05785f4e5d4e456b4e5b4a054c445d">[email protected]</span></a>.

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 non-
governmental 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:
    <bullet> 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
    <bullet> 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
    <bullet> 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 Sec.  372.25, 
Sec.  372.27, or Sec.  372.28 or determining the amount of release 
to be reported under Sec.  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 
Sec.  372.25, Sec.  372.27, or Sec.  372.28, the person is required 
to report under Sec.  372.30. Persons potentially subject to this 
exemption should carefully review the definitions of article and 
release in Sec.  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

[[Page 42627]]

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 off-gassing 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

[[Page 42628]]

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 facility-wide 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 post-
processing 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 Sec.  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

[[Page 42629]]

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:
    <bullet> 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.
    <bullet> 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.
    <bullet> 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
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          Labor category
                        Activity                         ------------------------------------------------   Total unit       Number of     Total burden
                                                            Managerial       Technical       Clerical         burden        facilities
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                          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
----------------------------------------------------------------------------------------------------------------
                                                                                     Number of
                            Activity                                 Unit cost      facilities      Total cost
----------------------------------------------------------------------------------------------------------------
                                                   First Year
----------------------------------------------------------------------------------------------------------------
Rule Familiarization............................................          $55.07             252         $13,877
                                                                 -----------------------------------------------
    Annual Total................................................  ..............  ..............          13,877
----------------------------------------------------------------------------------------------------------------

[[Page 42630]]

 
                                                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
                                                                    Estimated         Estimated     number of  small      Estimated         Estimated
                                                                    number of         number of      entities  with   number of  small  number of  small
                                                                    affected       affected small     impacts  of 3    entities  with    entities  with
                                                                    entities          entities         percent or     impacts  between    impacts  less
                                                                                                         greater       1 and 3 percent   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
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 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


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