## RESPONSE TO COMMENTS DOCUMENT FOR

Em ergency Planning and Community Right
- to
- Know Act; Guidance on Reporting Options for Sections 311 and 312 and

Interpretations

June 2010

Office of Emergency Management Office of Solid Waste and Emergen cy Response U. S. Environmental Protection Agency2 TABLE OF CONTENTS

Page Statutory Authority......................................................................... 1 Background.................................................................................. Summary of the Proposed Guidance...................................................
Incr eased Flexibility for States and Local Governments with respect to Reporting under EPCRA sections 311 and 312......................................
A. UST Forms to fulfill the requirements for Tier I information Under EPCRA section 312.......................................................
B. Partnership programs for joint access to information and streamlined Submission of EPCRA sections 311 and 312................................. SERC, LEPC and fire department interest in forming partnership Program for joint access to information ............. Comments on draft guidance for partnersh ip programs......... Implementation of streamlined submittal guidance in Conjunction with the guidance for electronic submittal of EPCRA section 311 and 312 information............................ Software programs used to obtain and store 311 and 312 Reporting dat a............................................................ Information Systems to ensure timely and joint receipt of Information by SERCs, LEPCs and fire departments............ Use of MOUs or other written documents to form partnership Programs.................................................................... Restricting parti cipation in partnerships............................ Technical database management issues..............................
C. Electronic submittal for EPCRA sections 311 and 312 reporting........

Certification...............................................................3

D. Incorporation of previous submissions into EPCRA section 312 Repo rting...........................................................................
E. Electronic Access to facilities databases of MSDSs........................
F. EPCRA section 312 reporting to fulfill reporting requirements under Section 311............................................................................
G. Interpretation of the hazardous chemical exemption for s olids under EPCRA section 311(e)(2)..........................................................
H. Emergency Planning Notification................................................
I. Emergency Release Notification..................................................

List of Commenters sorted by Organization type.....................................4

BACKGROUND The Emergency

Planning and Community Right

- to

- Know Act of 1986 (EPCRA), which was enacted as Title III of the Superfund Amendments and Reauthorization Act o f 1986 (Pub.L. 99

- 499), (SARA) Title III , establishes authorities for emergency p lanning and preparedness, emergency release notification , community right

- to

- know reporting, and toxic chemical release reporting. It is intended to encourage State and local planning and preparedness for releases of extremely hazardous substances and to provide the public, local governments, fire departments, and other emergency

officials with information concerning potential chemical risks in their communities. Section 302 of EPCRA requires facilities to notify their State Emergency Response Commission (SERC) and the local emergency planning committee (LEPC) of an y extremel y hazardous substance (EHS ) present at the site above its threshold planning quantity (TPQ). This information is then used by the Local Emergency

Planning Committee (L EPC) t o develop emergency

response plan for the community . EHS s and their TPQs as well as the implementing regulations are codified in 40 CFR part 355. Section 304 of EPCRA requires facilities to notify their SERC and the community emergency

coordinator f

or the LEPC of an y release of an EHS or a CERCLA hazardous substance above the reportable quantity . The reportable quantities for the CERCLA hazardous substances are in Table 302.4 of 40 CFR Part 302. The implementing regulations for section 304 of E PCRA are also codified in 40 CFR par t 355. Sections 311 and 312 of EPCRA require facilities to submit information on hazardous chemicals at their sites above the threshold quantities. The information on hazardous chemicals is submitted to the SERC, L EPC and the local fire department. The implementing regulations can be found in 40 CFR part 370. On June 8, 1998 (63 FR 31268), EPA published a proposed rule to streamline the reporting requirements under EPCRA, in particular, sections 311 and 312. EPA proposed four major revisions and provided draft guidance on various options that States and local agencies may wish to consider in implementing EPCRA sections 311 and 312. The four proposed revisions were: (1) higher threshold levels for gasolin e and diesel fuel at retail gas stations; (2) relief from routine reporting for substances with minimal hazards and minimal risks; (3) relief from routine reporting for sand, gravel and rock salt ; and (4) ”Other Regulatory Changes,” such as: reporting of mixtures; removing the Tier I and Tier II inventory forms and instructions; and some minor changes to the emergency planning and emergency release notification regulations (40 CFR part 355). In addition, EPA proposed to rewrite 40 CFR parts 355 and 370 in plain language, using a question and answer format to help the regulated community bette r understand the regulations. EPA finalized higher threshold levels for reporting gasoline and diesel fuel at retail gas stations on February

11, 1999 (64 F R 7047). On November 3, 2008 (73 FR 65452) , the Agency finalized item in (4) above

– “Other Regulatory Changes,” as discussed in section IV.B. of the preamble to the 1998 proposed rule. The remaining two proposed revisions [(2) and (3) above]5

may be f inalized at a later date. This document contains the summary and response to comments related to the draft guidance provided in section V of the preamble to the June 1998 proposed rule. In that preamble, EPA suggested various options that State and l ocal agencies may wish to consider in implementing sections 311 and 312 of EPCRA. EPA also proposed revisions to a few interpretations for facilities to comply with EPCRA. This document also contains the summary and response to comments related to the proposed revisions to these interpretations.

SUMMARY OFTHE PROPOSED GUIDANCE In order to streamline the reporting requirements under EPCRA sections 311 and 312 for facilities and to reduce information management burden for SERCs, LEPCs and the fire departments, EPA suggested various reporting options in a form of guidance in the preamble to the June 8, 1998 proposed rule. The main objective of the guidance was to provide flexibility to the State and local agencies in implementing sections 311 and 312. In that preamble, EPA stated that States may implement any or all of the reporting options provided in the preamble whether or not EPA finalize the guidance. Since the proposed rule, man y States have adopted at lea st one or two reporting optio ns such as electronic filing via diskettes or on

l ine filing of Tier II or the State equivalent reporting form. States were alway s given the flexibility to implement the EPCRA program as neces sary to meet the goals of EPCRA, which is to prepare and resp ond to releases of extremel y hazardous substances and to provide the public with information on potential chemical risks in their communities. The flexibility includes addi ng more chemicals, setting lower reporting thresholds and creating a reporting form or format that includes more information than is required by the Federal reporting requirements. EPA did not propose an y regulatory changes with any

of the reporting options but sought c omments on various reporting options under sections 311 and 312. The reporting options that were discussed are: (1) UST forms to fulfill the requirements for Tier I Information under EPCRA section 312; (2) Partnership programs for joint access to information and streamlined submission of EPCRA sections 311 and 312 ; (3) Electronic submittal for EPCRA sections 311 and 312 reporting; and (4) Incorporation of previous submissions into EPCRA section 312 reporting

. These four options were given to reduce the information management burden to States and local agencies as well as minimize the reporting burden to the regulated community

. In addition, EPA also suggested more options to streamline reporting and revise some existing regulatory

interpretations for facilities. The purpose for providing these options was also to reduce information management burden for States and local agencies. These options are: ( 1 ) Electronic access to f

acilities databases of MSDSs; (2 ) Inter pretation of the hazardous c hemical exemption for solids under EPCRA sections 311(e)(2); and (3) EPCRA section 312 reporting to fulfill reporting requirements under section 311. In the June 1998 preamble, EPA also proposed to define the term, “promptly” in reference to providing notice of an y changes relevant to emergency planning (40 CFR p art 355) and the term “as soon as practicable” in reference to providing written follow

- up emergency6

notice under the e mergency release notification requirements (40 CFR part 355) . The Agency did not intent to revise the regulatory requirements but on ly

provide guidance for these two terms. However, EPA received comments from many States and local agencies that the term “promptly” should be defined in the regulations since receiving information from facilities on changes relevant to emergency plann ing is crucial in developing and or updating emergency r esponse plans. As a result, this term was defined in 40 CFR 355.20, in the recent final rule that was published on November 3, 2008 ( 73 FR 65452). The requirement in 40 CFR 355.20 states that, any changes relevant to emergency planning must be provided to the LEPC within 30 day s after the changes have occurred. The term, “as soon as practicable” in reference to providing written follow

- up emergency notice will be provided as guidance. The r eason is that, facilities would have to provide the initial notification immediately after a release occurs, which is necessary to respond to the release b y States and local emergency responders. However, the written follow

- up notice would be better pr epared after the facilit y has complete kno wledge of the release, its cause and possible prevention of another release. This document includes a summary of all comments received for each of the options discussed above and the Agency ’s collective respo nse to the comments for each option.7

Increased Flexibility for States and Local Govern ments with Respect to Reporting under EPCRA Sections 311 and 312
In order to streamline compliance with the reporting requirements, EPA pr oposed draft guidance in the preamble to the June 1998 proposed rule (63 FR 31268). EPA did not propose any regulatory

changes with any

of the options provided, however the Agency sought comments in developing the guidance. The Agency stated in the 199 8 preamble that States and local agencies may

implement any

or all of the options regardless of whether EPA issues final guidance, provided that options used meets the statutory and regulatory

requirements.
Support

 In general, to streamline and reduc e the record keeping and reporting requirements, we support EPA’s proposed options for SERCs, L EPCs, and fire departments, including using UST forms to fulfill Tier I information requirements, allowing one submittal to a joint SERC/L EPC/fire department dat abase, electronic submittal of reports, and incorporation of previous submittals. [101] Opposition

 The proposed changes will significantl y increase costs and the risk of non

- compliance at companies with multiple facilities due to the loss of consistency in data management and compliance reporting. The benefits of increased flexibility for state and local agencies must be balanced against the total costs associated with implementing these changes. Companies with centralized tracking and reporting sy stems will be required to invest significant amounts of time and money to re

- program existing computer s ystems. [139] Agency Response The Agency

proposed vari ous reporting options for State and local agencies in the June 1998 proposed rule to provide flexibi lity to these agencies to implement the program as necessary for their community

emergency

planning and response. EPCRA was created to prepare for and respond to accidental releases of extremely hazardous substances and to provide the public with informat ion on potential risks in their community

. In order for the local emergency

planning committee to develop emergency response plans for their community and to provide the public with information submitted under EPCRA , States may need to develop methods to manage the inf ormation provided by

facilities. For these reasons, EPA proposed various options for reporting under EPCRA sections 311 and 312 and it is not required that States implement these options.

A. UST Forms to Fulfill t he Requirements fo r Tier I Information Under EPCRA Section 3128 At the time of the June 1998 proposal, man y States were accepting Tier I form, which contains the minimum information about hazardous chemicals at a facility . Onl y few States required Tier II form from the facilit y. In order to provide flexibility , States if they choose, have the option to allow the underground storage tank (UST) form required under RCRA to be used to comply with reporting requirements under section 312 of EPCRA. This option would also benefit the facilities that have onl y USTs on their site with hazardous chemicals. In most cases, these facilities may be retail gas stations which have onl y the USTs that may be subject to the reporting requirements under sections 311 and 312. So in order to reduce burden for these facilities, this option of substituting UST form for Tier I was suggested. At the same time, EPA proposed to raise the reporting threshold for gasoline and diesel fuel at retail gas stations provided that these facilities meet certain re quirements in order to be subject to the higher threshold. As mentioned in the background section of the document, EPA finalized the higher reporting threshold for gasoline and diesel fuel on February 11, 1999 (64 FR 7047). This section contains the summ ary of comments received for this option and the Agency ’s collective response. A few commenters supported using the UST forms to fulfill Tier Irequirements, but most commenters opposed the proposal. Commenters stated that it would be confusing and burd ensome for LEPCs and fire departments and would make electronic filing more difficult. Some stated that the differences in information and filing schedules make this approach inappropriate. Other commenters stated that EPA’s approach would not result in s treamlining and that EPA should eliminate duplicative reporting, not duplicative forms. These commenters also questioned the need for the approach because most states require Tier II forms and because the higher gasoline threshold will remove most of the facilities subject to UST reporting from Part 370. One commenter questioned the legality

of multiple forms. Support

 By

allowing programs for streamlined submittal and joint access to sections 311

- 312 information, electronic submittal, reporting onl y changes in information rather than complete new inventories each ye ar and allowing RCRA UST reports to fulfill EPCRA section 312 requirements, facilities may be more inclined to comply with reporting requirements and work with state and local regulatory agenc ies. This also would lessen the impact on those agencies required to maintain information regarding community right

- to

- know and extremely hazardous substances. [012]

 We support EPA’s proposed “guidance” to state and local governments that would allow the use of underground storage tank (UST) forms to be used to comply with the reporting requirements under EPCRA Section 312. [116]

 I agree with the proposal to allow RCRA underground storage tank reports to fulfill the requirements under section 312 of EPCRA. This proposal makes good sense and will reduce duplication of reports that, for the most part, are going to the same location within local government. This process also will improve the accuracy of data. [014]9

 We have no objection at this time to the proposed change to allow UST forms to fulfill the requirements for Tier Iinformation. [098]

 We agree that it would be helpful to use existing submittals, such as UST reports, to satisfy EPCRA reporting requirements where appropriate. [101]

 We support the integration of reporting requirements where feasible. However, when implementing the consolidated reporting, EPA should issue clear, concise guidance in the final rule that delineates the requirements for such reports and demonstrates how the submissio n of the reports satisfy the requirements of the various statutory obligations. [106]

 We support several of the ideas advanced b y EPA in Part V of the proposed rule, including EPA’s proposed “guidance” to state and local governments that would allow the u se of UST forms to comply with the reporting requirements under EPCRA section 312. These notification forms contain ample information and can satisfy the intent of EPCRA section 312. This option would reduce unnecessary regulatory

burdens, be consistent with EPA’s desire to reinvent environmental regulation, and continue to ensure protection of human health and the environment. [116]
Opposition

 The simple Tier II report is not burdensome enough to warrant a change. We would prefer the reporting entity file a report we are used to seeing and make them do the work rather than put ourselves on the learning curve. [018]

 As for the use of UST reports to fulfill EPCRA section 312, we do not currently receive RCRA reports and would prefer to leave them under EPCRA section 312. [020]

 EPA could have just as easily combined Tier Two and UST reporting, which would require a small regulatory change, but certainl y congruent with the move to consolidated reporting. EPA would be better serving all stakeholders if, instead of promoting a plan that would withhold EPCRA information from the public, it moved swiftly to allow electronic reporting in all sectors for all EPCRA reports, as well as UST. Another option, the least expensive and most convenient for the stake holders, is to provide a federal reporting website at which a facility , and the public with a read

- onl y site, could access Tier II, UST, and other reporting forms, post the data elements, and let whatever environmental bureaucracies retrieve the data they need for themselves. This would go some distance in reducing repetitive and redundant reporting, which saves money and improves productivity , which is good for the economy and more consistent with goals in reducing paperwork. This would actually save mon ey

in at least two sectors and the electronic reporting diminishes the storage space usuall y taken b y records in paper, which saves other money . It would also boost UST compliance. [034]10

 The use of UST forms to satisfy requirements under EPCRA section 31 2 (provided that all information is provided which is required on the Tier I form) would not be a viable option in New Jersey , as Tier II level information is required to be submitted by all facilities regulated b y s ection 312 in our state. In addition, we are concerned that the use of UST forms to satisfy reporting requirements under section 312 would establish a separate mechanism that citizens would be forced to use to obtain certain information about the use of hazardous chemicals at a facility . We believe that all reporting required under section 312 be done via the same reporting vehicle, the Tier I or II. [058]

 Some states/L EPCs require more than the minimum data that EPA requires. For the UST form to meet the standard EPCRA reporting requirements in Wisconsin, the SERC, the LEPC and the fire department must all receive the information; they must contain at a minimum Tier Iinformation and, in Wisconsin, Tier II information; and they must be submitted annually

by March 1. Taking this into consid eration, it would appear that using UST forms would complicate the reporting requirements under EPCRA. Because the submission requirements vary so greatly

between programs it is unlikely that this would serve to reduce the reporting burden. EPCRA provide s for one agency to maintain records of hazardous materials; this proposal would require an individual to go to another agency to obtain complete information regarding on hazardous materials in the community . [061]

 Here again, EPA attempts to reduce burd en b y proliferating special requirements, rather than by dealing with the need for underl yi ng information reform. UST forms are no substitute for Tier I reports. UST reports are not reported annually , do not identify materials or quantities, do not ident ify parent companies, and are not reported directl y to local fire departments, SERCs, or L EPCs. Rather than combine requirements that are not truly the same, EPA should instead promote the use of “intelligent” software that enables users to fulfill multip le reporting requirements. In this way EPA can achieve real burden reduction, not just the proliferation of exemptions. [097]

 While we agree with the EPA guidance to clarify this option is available for implementation by

State and local organizations, in our opinion, it will probably not be an effective option. In our experience, Tier II information on chemicals in underground storage tanks does not t ypically change from ye ar to y ear, which makes annual section 312 reporting for these substances fairly e as y to begin with. Because of differences between UST form and section 312 information items, it may be more burdensome to supplement a UST form than to update a previous Tier II form. Substitution of UST forms for Tier I or Tier II forms could be especi ally burdensome for facilities with multiple chemicals, since UST forms would have to be inserted amongst Tier I or Tier II forms for “non

- UST” chemicals. In addition, there would be an extra burden on SERCs and LEPCs to explaining UST forms when fulfill ing requests from the public.11

It should also be noted that a large percentage of facilities in Delaware are reporting electronically , and we expect the percentage to grow. Substitution of UST forms and electronic Tier II reporting would not work togethe r effectivel y. [104]

 Because the Tier II report is required for compliance with the Texas Community Right

to

- Know Acts (TCRAs), we would not be able to accept UST forms. We are concerned about an y proposal to allow UST forms to substitute for Tier I info rmation because such an allowance will create confusion among members of the regulated community in states such as Texas that do not accept the Tier I level of information. In addition, this allowance would create confusion for fire departments and LEPCs because of the inconsistencies between the Tier I and UST formats, as well as the inconsistencies in general information provided. [118]

 We are opposed to the use of UST forms as described in the proposal. We have previously

taken a position that UST fo rms do not fulfill EPCRA’s needs and supported the elimination of Tier I and use of onl y Tier II. [119, 129]

 EPA needs to provide a consensus form for comment. We would like to see your composite form and instructions for further evaluation and discussio n; this should be an EPA/State/local partnership. Decisions at this point are premature until more information is gathered and explained. The RCRA UST program, not L EPCs/fire departments/SERCs, should be the “keeper of the key s.” UST information should be made routinel y available for LEPCs and fire departments as needed for planning and response. Almost universally , the Tier II has become the routine EPCRA section 312 reporting mechanism. Therefore, all Tier II elements should be part of UST reporting. A composite form is possible but would have to reflect total current requirements of both programs BEFORE its adoption. Each program must retain its integrity unless there is a full merging between program definitions, elements, etc. [122]

 While the fl exibility of using the UST form to meet the Tier I reporting requirements may reduce the burden of having to complete another reporting form, there are some disadvantages to this optional reporting form. Allowing the use of another form (UST forms) to ful fill Tier I requirements could create inconsistent and fragmented inventory information. Also, the use of separate reporting forms may be inconsistent with the EPCRA section 312(g) requirements for a uniform format. Although EPA discounts this in the pre amble (63 FR 31286) by stating that EPCRA does not require the use of a uniform format for submission of the section 312 information, the last sentence of section 312(g) clearl y indicates that the intent of the uniform format is for the submittal of inform ation. Additionally , for the UST form to reduce the reporting burden, all three of the recipients (SERC, LEPC, and the fire department) must accept the form in lieu of the Tier I report. [133]

 We oppose allowing UST forms to fulfill EPCRA section 312 rep orting requirements. This would mean that UST forms would have to be changed to accommodate EPCRA data elements not included in current report. Or a facility would have to submit supplemental information along with their submissions to the local agencies to provide12

the required information. The format of these submissions would be entirely different from other reports that will hinder efforts at data automation and implementation of electronic submittal programs. [147]

 We believe this proposal could lea d to confusion for the LEPCs and fire departments by having to look for the same information on two different forms and file the forms in an intermingled manner. [165]

 We believe the RCRA one

- time reporting requirement will confuse businesses and many wil l not report annuall y using a “one

- time” form. [167, 180]

 UST forms do not contain sufficient information to accomplish hazard analy ses and vulnerability

studies required under EPCRA. The forms do not reach the SERC, LEPC, or local fire departments nor are they updated on a current basis by the agency

receiving them. The reverse option might be considered, that the UST program use the EPCRA inventory reporting to meet their reporting requirements. Maine has been using a state form that requires consider abl y more information found to be very useful for inventory reporting. We would not support using UST reporting information in place of our own. Some facilities have both underground and above ground storage. Others have onl y above ground storage. Thos e facilities subject to reporting who are not subject to UST reporting would have to be treated differently . This eliminates consistency and creates additional confusion. This proposal would not reduce reporting burdens, would not provide an y benefits wi th respect to preserving public health and safet y or achieving EPCRA’s environmental goals, will probabl y not reduce costs to individuals, businesses, and government, and the flexible options would simply create more confusion. Rewriting the regulations i n plain English would not reduce the regulatory burden, just shift it somewhat for some of the regulated community . [177]

 As the Federal Register notice recognizes, there may be many opportunities to use data submitted under other environmental programs t o fulfill some or all of the EPCRA section 312 requirements. Unfortunatel y, each alternative poses its own set of circumstances which limits the ease of application or reduces its effectiveness for a national program. Use of the UST form is one example. Not all EPCRA agencies administer the RCRA/UST program. There may be significant data adjustment and data manipulation costs to adapt UST data elements and collection protocols to meet EPCRA requirements and to provide access to the UST data for EPCRA pr ogram officials and the community . Florida recently developed a proposal to consolidate UST/EPCRA Tier II reporting and communit y right

- to

- know access for retail petroleum facilities. Development of the s ys tem was estimated to cost $100,000. In addition , in our experience, the majorit y of the current reporters that would benefit from this option are retail petroleum and diesel facilities. EPA’s proposal to raise the reporting threshold for this group may

make the UST Tier I option unnecessary . [178]

 Th is proposal seems to contradict EPA’s proposal to raise the threshold for facilities under this requirement. The number of facilities this proposal would affect then would13

not be sufficient to warrant a change that would be unsatisfactory and difficult to implement. [L 13] Agency Response

Tier I information is the minimum information requi red under EPCRA section 312 and the implementing regulations. When the proposed rule was publ ished in June 1998, some States were accept ing the Tier I form. However, a ll States now require facilities to submit the State form or the Federal Tier II inventory form. Therefore, the Agency believes that this flexibility which was proposed in 1998 may not be beneficial.
Th e guidance for using the UST form instead of Tier I was proposed mainly for retail gas stations since these facilities may onl y have underground storage tanks (UST) with hazardous chemicals and therefore may onl y use this option. All other facilities may have other methods for storing hazardous chemicals other than USTs. As one of the commenters stated, EPA proposed to raise the reporting threshold for gasoline and diesel fuel for these substances stored at retail gas stations and therefore, most of the retail gas stations may

not need to report these su bstances since they

may fall under the new reporting threshold. Since EPA finalized the higher reporting thresholds for gasoline and diesel fuel on February

11, 1999 ( 64 FR 7031 ), most retail gas stations may not need to comply with the reporting requirem ents under EPCRA sections 311 and 312. Therefore, EPA believes that this guidance for using UST form instead of the Tier I form is no longer useful. Other

 Kansas currentl y allows facilities to submit the above and underground storage tank forms in lie u of Tier II for petroleum fuels. Kansas has modified the storage tank form to assure that all the required information under EPCRA is included. Facilities can submit the AST/UST Tier II to the SERC, L EPC, and fire department. [108]

 Because a broader gr oup uses EPCRA section 312 than UST, the UST forms should become a Tier II add

- on. Generally UST forms only

go to the program assign ed to Underground Storage Tank Regulation; normall y this is not the agency or department designated to receive EPCRA report s. Ty pica lly , LEPCs, the SERC co

- chair agencies, and most fire departments do not have ready access to UST forms. UST forms focus on tank age and construction material. A note area on a Tier II form to indicate age of storage vessel/tank vat and materia l could be beneficial to emergency planners as a hazard anal ys is tool. However, emergency contact information, location, and average volume in storage are important to local planners and responders. [119, 129]

 The facility

and emergency

contact informati on contained on the Tier II form is vital in maintaining the link for emergency purposes. We recommend that UST owner/operators report facility

and emergency

contact information annually (by March 1) with the UST form attached to the Tier II form. Also, there are occasions when UST owners submit other regulated material on the Tier II Form. They could then complete the other14

chemical

- specific information and send to the SERC, LEPC, and fire department as u sual. [123]

 E PA has failed to accurately take ac count of the information available to the public, emergency

responders, and local emergency planning agencies through Underground Storage Tank registrations. Annual reporting under EPCRA was designed for m anufacturing facilities that use and store a broad range of chemicals that varies from ye ar to y ear. It was not intended to be a duplicative, unnecessary , and burdensome reporting of the same information y ear after ye ar. It should come as no surprise to LEPCS, fire departments, or the public that diesel and gasoline fuel are stored in USTs installed for diesel and gasoline fuel storage. Although RCRA does not require UST registration forms to be submitted to L EPCs, many state and local regulations require that UST forms be submitted to local agencies an d fire departments. The so

- called flexibility that EPA has offered in this proposed rule is merely a rewording of existing duplicative and burdensome regulations. The current proposal merel y allows facilities to annually submit a UST registration form wi th the additional EPCRA information. This is not streamlining. EPA should instead raise the Tier I threshold reporting level for diesel and gasoline fuel stored by fleet facilities and allow states and local communities the real flexibility of determinin g how and when they need to receive information. States and localities not currentl y requiring local reporting of USTs could modify their regulations to require that UST forms be sent to LEPCs or local fire departments. Retention of the zero threshold fo r compl yi ng with Tier II requests would allow LEPCs and local fire departments to obtain hazard data when needed. Alternativel y, states could take advantage of Internet technology to make UST registration forms available via the Internet to LEPCS, fire de partments, and the public; this is already

being done in Missouri and Florida. All 50 states and the District of Columbia have established Internet web pages for their environmental regulatory agencies. These are broadly accessible locations for the diss emination of UST registrations and would obviate the need to annually send UST information to L EPCs and represent a true case of streamlining. [131]

 We have not previousl y evaluated the use of UST forms to meet the reporting requirements under EPCRA secti on 312 and have not requested that EPA allow this flexibility . This has not been an issue in North Carolina. If other states can justify a need for this flexibility , the new rules should support such. UST reports provide good information if properl y ent ered into a reporting s ystem. [140] Agency Response

As stated above, EPA proposed this draft guidance mainly for those facilities that have onl y underground storage tanks at the site, such as retail gas stations. EPA is aware that other facilities have underground storage tanks as well as above ground storage tanks15

so these facilities may

have to submit UST form as well as Tier II form to comply with section 312 of EPCRA. As commenters suggested, raising the threshold for gasoline and diesel would relie ve burden for retail gas stations which was EPA’s intention for providing this flexibility . Since the reporting threshold for gasoline and diesel fuel was raised for retail gas stations in February 1999, these facilities reporting burden was reduced.
In addition to providing burden for retail gas stations, information management burden was reduced for SERCs, L EPCs and the local fire departments who receive Tier II reports from retail gas stations . Some of the States informed EPA that flexibility should be given to the States to collect information under section 312 of EPCRA according to their needs, such as, substituting the UST form for Tier I form. EPA understands that few States right

- to

- know program office s are within their UST program office s . Fo r these States, i nformation sharing is easier between these programs. For other States, the flexibility for substituting UST for Tier I may not be beneficial. Also, as stated earlier in this document, since all States now require facilities to submit Tie r II form which may contain more information than the UST form, substituting UST form would not be practical unless UST regulations are revised to include all information required by Tier II.

B. Partnership Programs f or Joint Access to Information a nd Streamlined Submission of EPCRA Sections 311 And 312 Reporting EPA proposed guidance on facilitating reduced submissions by allowing SERCs, LEPCs, and fire departments to agree that one agency would receive the information and make it available electronic ally to the other two entities. General Comments

 We strongl y feel that if one form containing all data required b y each agency and approved b y each of the agencies involved in the gathering of information such as the SERC, L EPC, local fire departments, U ST agency , etc., then the needs of all the involved agencies can be met with a single filing. [103]

 Arizona is currentl y pursuing web site accessibility for Tier II reporting. We support the concept of reducing and streamlining submission of EPCRA, MSDS, and Tier data and would be quite interested in piloting a partnership program to promote streamlined submission of EPCRA information. We concur in concept with what has been offered. [122]

 We agree that forming partnerships between LEPCs, fire departments, and SERCs would be a useful feature to include in the new regulations to eliminate filing of a duplicate sets of information. We suggest that the partnership be responsible for determining if it is necessary to have the information electronically acce ssible. Because most departments, LEPCS, and SERCs today don’t have their MSDSs electronically accessible, why

should they have to have them in a “partnership?” [048]16

 Not all L EPCs/fire departments are tuned into, use, or understand this evolving technol ogy . Should this be the mechanism for facilities to report Tier II, UST, or minimally

inherent hazardous material, a mechanism must be set up to notify the SERC/L EPC/fire department that the data are on this national database s ys tem. [123]
Agency Respon se

EPA is aware that since the publication of the proposed rule, man y States have alread y adopted some of the options provided in the draft guidance in the preamble. The Agency will continue to encourage the States and local agencies to work together t o manage the information received from facilities and make these available to the public.

B.1. S ERC, LEPC, and fire department interest in forming partnership programs for joint access to information Many commenters supported the idea of partnerships to allow filing of information to a single point. Other commenters supported the proposal, but cited a number of problems associated with single point of submission . They noted that many LEPCs and fire departments do not have access to computers or the Internet. A few commenters opposed the proposal. Support

 Finding a way

to streamline the reporting process would be the most positive change since the law came into effect. All reports in the county go to a single source in local government to eliminat e the need to have every fire station and every

volunteer fire department maintain a file. The receiving location would put information on a computer database or a master list and forward it to the state. This would eliminate hundreds or even thousands o f pages of report information being handled two, three, or four times. This process would provide a more accurate reporting s ys tem, better customer service for the facility , better control, and better access over a twenty

- four hour period. Where possible , the report could be made part of the local hazardous materials permitting process. The permit and hazardous materials information could be collected at the same time. The facility

representative would verify the facility ’s inventory

at the same time th e permit is issued or renewed thereb y ensuring accuracy of facility inventory. [014]

 I strongl y agree that LEPCs, fire department, and SERCs should be allowed to form partnerships. In the Cit y of Springfield’s case, the L EPC is the primary handler of EPC RA info. We have a strong bond with the city’s fire department and it would be nice to eliminate filing of a duplicate set of information by the facilities. I would encourage EPA to allow formal partnerships to exist and reduce the amount of paper filing on the part of facilities. By

making it a local option, we would make the decision to form or not form the partnerships. [048]17

 We strongl y support partnership programs for the joint access to information and streamlined submission of EPCRA section 311/3 12 information. This should be considered a long

- term project supplemental to the sharing of data from Risk Management Programs with L EPCs and fire departments by way of CAMEO. This would encourage the establishment of a comprehensive regional response s ys tem. [055]

 We support the concept of partnerships between the SERC, fire department, and LEPC that would permit facilities to submit information required under EPCRA section 312 only to the SERC and not the fire department or LEPC. We are presentl y di scussing the possibility

of posting on the Internet all chemical inventory information received from the community

right

- to

- know survey

used to collect information required under the state program and section 312 of EPCRA. This would give local facilities access to the data submitted without having to receive paper copies. Our current public access sy stem requires users to have specific software and a modem. [058]

 We see no reason wh y facilities could not satisfy their EPCRA section 311 and 312 reporting requirements through a single point of contact (as long as SERCs, L EPCs, and local fire departments jointly receive the information as required). We support and encourage compilation of information into a single database, such as a web site accessible fr om the Internet. [097]

 With regard to the possibility of the SERCs, L EPCs, and the fire departments forming partnerships for joint access to information; we would be pleased to participate in such a program. [098, 103]

 We strongl y support partnerships am ong the SERC, L EPC, and fire departments that allow joint receipt of reports and sharing of information. Several LEPCs and fire departments currentl y use this option alread y in North and South Carolina. It helps to reduce our paperwork burden and theirs as well. [139]

 We are very

interested in being able to establish joint partnerships with LEPCs and fire departments for the receipt of information submitted under EPCRA sections 311 and 312. Such partnerships will benefit the regulated facilities by allo wing them to reduce their number of submittals, and will also reduce the burden on SERCs, LEPCs, and fire departments because there is the potential to have data entry /storage limited to one entity , thus saving time and resources, and limiting the potentia l for error. EPA is urged to attempt to grant the greatest flexibility in establishing guidance. [140]

 This proposal would allow for submission of Tier II information to one agency , which would disseminate that information to the other receiving agencies . It addresses the need for public access and availability of information to local emergency response personnel. This is a good idea that will save duplicative efforts of SERCs and L EPCs where data management is concerned. [147]

 We concur with EPA ’s goa l to explore information

- sharing partnerships. [167, 180]18

 The proposed streamlining of the filing process will lower compliance burdens. [L 05]
Support with reservations

 We encourage EPA to investigate the possibilities of a joint electronic database. However, EPA should remember that man y fire departments and LEPCs would not have access to an electronic database due to lack of computer equipment, trained computer personnel, and access to the Internet. EPA should consider way s to address these concerns , possibl y through grants, before implementing such databases. Since the CAMEO sy stem is already in place in many

fire departments, LEPCs, and SERCs, any electronic databases should be compatible with that sy stem. [011, 57]

 It may

be beneficial to allow f

or joint access to information submitted under sections 311 and 312 to the SERC, L EPC and fire department; however, our experience with CAMEO and other databases has not been successful. It is important to continue to allow a facility to report using the current forms (as opposed to requiring use of a joint database) until such time as reliable s ys tems and databases can be developed. Issues such as confidential business information (required to be reported under EPCRA) and the variety of s ys tems or databa ses maintained by the SERC, L EPC, and fire department that could be required of a regulated facility

need to be resolved prior to EPA actively encouraging joint databases. In addition, providing access to a SERC, L EPC, or local fire department to a facili ty ’s database for MSDSs is unlikely to streamline reporting b y the facility

. Necessary

training of the SERC, L EPC, or fire department, sy stem updates, and measures to insure that access is uninterrupted even in an emergency could increase reporting burden s for facilities. [105]

 We support the concept of local/state partnerships for shared databases and data management. This would not only leverage resources more effectivel y, but would also promote better data quality . However, states should be provided maximum flexibility to manage data in the manner that is most effective for the state and local government and not be constrained b y overly

- burdensome bureaucratic procedures. [106]

 Opportunities seem to lie ahead for allowing partnerships for electronic submissions. When a SERC, L EPC, and fire department can access a Tier II database, these three organizations should be allowed to take advantage of technology that seemed impossible when EPCRA was adopted. In an under

- funded program, it will be complicate d to take advantage of electronic submissions. Many volunteer fire departments may never have official Internet access to use the inventory data in an emergency

. Requiring written information and public notice of such partnerships places a burden where n one is necessary . If partnerships are established, the notices should appear in the SERC/L EPC industry

inventory

instructions. The public is not reall y affected in that they will be provided a hard copy , or during the course of business the SERC or L EPC will advise them that the information can be more quickly received b y accessing an electronic19

database, if the SERC/LEPC fire departments determine that it should be a publicly accessible database (There are man y officials who have expressed concern that t errorists may access such information.). Some members also feel that this is an additional unfunded mandate. Based on the above, some ty pe of paper submission will probably continue to be necessary for the foreseeable future. Use of MOUs seems too limit ing. Perhaps the terminology

could include partnership agreements and contracts. Someone will need to agree to house and maintain the database for all current recipients. [119, 129]

 The option to develop partnership programs for joint submissions already exists; however, some of the proposed options are burdensome. All three recipients need to be in agreement throughout a state or increased burdens will be experienced and enforcement programs will be jeopardized. [119, 129]

 I think partnerships are gre at, but if everyone does not pull their own weight the partnership falls apart. If you are going to require more, then funding should be available to match the requirements. [129a]

 The partnership identified by EPA is an excellent idea and should be further explored by the Agency . The idea, as presented in the preamble, would appear to reduce the burden on the regulated community and would go far in making inventory information more readil y available to the public, possibly via the World Wide Web. I f pr omulgated, the partnership should be voluntary to accommodate those regulated facilities that may not have an electronic database capabilit y or to accommodate the different levels of funding available to the state and local authorities for establishing and maintaining a database. [133]

 We support a statewide sy stem for submittal of information, but do not support a voluntary , fragmented program where each of 120 L EPCs or 800 fire departments decide on a different, limited partnership. Such an approach wou ld create confusion, defeat the purpose of reporting, and create a burden on the SERC. [L 13]
Oppose

 Under present circumstances, a majorit y of the local groups would not have the time, equipment, or training to be completel y accessible to an electronic database. [011]

 LEPCs and fire departments are probabl y not going to spend their time establishing formal partnerships and Memorandums of Understanding. We don’t feel we need the structure to share information and help one another. The onl y formal docum ent that we all work on is the community emergency

response plan that incorporates the information that EPCRA is concerned with. [18]20

 We have alway s provided assistance to facilities in compliance paperwork and other actions. We feel that a centralized c ompliance point would take away the working relationship that we have with our facilities. [096]

 We do not support this proposal which would change the requirement that facilities report MSDS and TI ER II reports to three entities (i.e. the SERC, L EPC and fire department). The proposal to permit submission to one of the three entities or to a central database would impose a significant additional burden on governmental entities. The establishment of partnerships between the “entities” would be particularl y difficult in Connecticut which has 155 L EPCs. [145]

 Maine has struggled with data entry since EPCRA began. We intended to do data entry at state level and provide copies to L EPCs via diskette transfer from CAMEO to CAMEO. We have learned several hard lessons from this. The sheer volume means some data is very

delay ed getting to LEPCs because there is so much to do. If it is impossible to complete data entry and updating of an electronic data base in a small state on a timely

basis, expecting a centra l clearinghouse to be updated and provide access to information on a timely

basis is not feasible. Of Maine’s 16 LEPCs, less than half activel y use electronic transmission of communication on a regular basis. Of Maine’s 456 fire departments, about 1/4 to 1/3 have a computer. They don’t have funding to provide it and only

about 5 percent have full

- time staff. Joint access to information is not an expectation. Further, CAMEO does not allow an updating function to occur. Transferred information for a fa cility

becomes an additional facility with duplication of existing data. Accordingl y, most LEPCs actively using CAMEO have decided to update their own data, so duplication of activities have not been eliminated. We have attempted to work with EPA Region 1, technical support, and CAMEO technicians without resolution. This would have accomplished the elimination of a duplication of efforts. Perhaps if EPA committed to improving CAMEO to accomplish data transfers more effectively , some of this duplication could be eliminated. I hope other states will inform EPA if they have been overburdened with public requests for EPCRA information. Maine certainly has not. Making data accessible on the Internet has not been identified as a high priority

. The establis hment of partnerships also establishes situations where some facilities are treated differently

than others. Maine would find it very difficult to appropriately inform facilities in isolated situations of different reporting requirements that appl y to the m because of these partnerships. In man y instances, a corporate headquarters completes the reporting for up to 175 individual facilities in their compan y. It would be extremely difficult for these companies to modify their reporting to reflect differing situations concerning partnerships. Monitoring, verifying, and correcting submissions would quickly offset an y savings realized.21

This will reduce reporting burdens for some facilities, but information would not be available to local fire departments, LEP C’s or the SERC on a timely basis. There are no public health and safet y benefits from this proposal. It will reduce costs to individuals and businesses. However, costs to the government will not be reduced if you consider government could not have acce ss to emergency information on a timely

basis for planning or responding. The proposal provides no benefits to EPCRA’s environmental goals. States would need flexible options. [177]

 In creasing flexibility to streamline compliance continues to guarantee that reporting becomes useless. The intent is to protect the public and we believe the public is now being protected. To allow less consistency would simply

cause obsolescence of the sy stem. The idea of having reporting to an entit y which would allow S ERC, L EPCs, and fire department to obtain information simply would not work. If information is not provided to L EPCs, fire departments, and SERC, the information will be lost and y ou may have streamlined middle policy and pleased major reporting entities but you will destroy the protection of the population. [OC

- 4]
Agency Response

The main reason that the Agency proposed the option of joint access is to reduce burden on the regulated community

. T his option may also reduce information management burden on some implementing agencies. That is, if a SERC takes the responsibility to develop a reporting format for facilities to submit Tier II or the equivalent St ate form, then the LEPCs and the fire departments may be able to access the information on

- line. If the LEPCs and/or the fire departments do not have the capability to access the information on

- line, then the States may provide the Tier II information to these entities on diskettes or hard cop y. At the time of the June 1998 proposed rule, onl y few States were accepting Tier II or the State form el ectronically . At the present time, many States have developed their own electronic reporting sy stem or using EPA’s Tier II reporting s ys tem (Tier2 Submit). EPA is aware that some of these States are accepting Tier II on

- line. EPA is encouraging these States to explore way s to have joint access to the information with the LEPCs and the fire departments. EPA assumes that since the time of the proposed rule, most of the LEPCs and the fire departments have the capability to accept Tier II electronically . For those that do not have the capability , States may find other way s (i.e., hard copies or diskettes) to provide access to these entities. This eliminates searching through hundreds of paper s during an em ergency situation. EPA understands that funding may be a problem in developing partnerships. Since EP CRA program is more mature than it was ten y ears ago, many States may

have funding available through State reporting fee s ys tem, federal grants etc. EP A is encouraging States to use the money available from these to develop a database s ys tem and set up access to information for LEPCs and fire departments.22

B.2. Comments on draft guidance for partnership programs

 We encourage EPA to develop guidance f or partnership programs for joint access to information. Although we currently lack the resources to establish a statewide database of Tier II chemical information to share with LEPCs and fire departments, this ty pe of project is a long

- term goal. It woul d be very useful to have guidance from EPA in advance of establishing such partnerships to reduce the data management burdens of fire departments and LEPCs. We encourage EPA to consider providing grant funding to states and local agencies to develop such partnerships; funding is especially critical for development of electronic databases and computer networks. As for how the partnerships should be established, we favor the suggestion to require written documents, such as Memoranda of Understanding, to ens ure that all parties understand their obligations. [118]

 California adopted a chemical inventory reporting program in 1986 that regulates approximately

110,000 businesses. We could not possibly manage 110,000 inventory reports, therefore a single point o f submission at the local level was established. California Health and Safety Code Chapter 6.95 (HSC), Section 25506 (b) states that:
“An y person who files an inventory form required under Section 25509 with the administering agency

shall be deemed to have filed the inventory form required by subsection (a) of Section 11022 of Title 42 of the United States Code with the state emergency

response commission and emergency planning committee established pursuant to Section 11001 of Title 42 of the United Stat es Code.” To allow SERC and L EPC access to these inventories HSC 25506 (a) states: “The administering agency shall transmit copies of the entire business plan or any information contained in the business plan to any requesting state or local agency .”
Ho wever, the statute currently does not necessitate the use of an electronic database for the transmission of this data. It is possible that such a database will be developed within the next five y ears, but, with the different electronic capabilities throughout the state, it is not feasible currentl y. We suggest that EPA place flexibility , allowing for non electronic means of streamline submission, into their guidance. OES s ys tem has been in place for 10 y ears, providing the community , first responders, an d the state with right

- to

- know information. [L 15] Agency Response

As stated in the preamble to the proposed rule, States are given the flexibility to set up the EPCRA program as needed in each of the community in their States. None of the options provid ed in the draft guidance of the proposed rule is a requirement. States are allowed to choose any or all of the option s to implement the program. The Agency is encouraging States to choose an y of the options provided to reduce burden on regulated community and on all three entities.23

B.3. Implementation of streamlined submittal guidance in conjunction with the guidance for electronic submittal of EPCRA sections 311 and 312 information A few commenters stated that they generally support electronic filin g. They had reservations about the feasibility of such s ys tems for all communities. One commenter stated that EPA should provide the database.

 It makes sense to notify the regulated community and the public so that they are aware of, and can put to use, the streamlined submittal option. The question is how to do this. EPA needs to create a marketing plan for this. The website project termed the Better BOLDER Project would be an important first step in accomplishing these goals. [034]

 The electronic s ubmission of EPCRA section 311 and 312 information should be available as an option as soon as practicable when it is technically feasible. It is unlikel y that smaller facilities will have this capabilit y in the near future and for that reason this should remain optional. Problems regarding certification, confidential location, and trade secret information will most likely be resolved through advances in computer technology

. [061]

 We support and encourage electronic submission of EPCRA reports. EPA shou ld develop the infrastructure needed to manage information electronicall y. [097]

 We are generall y supportive of electronic submittal. Again, this is a three

- party agreement and one part y may need to receive a paper record. To avoid placing the burden on government as an unfunded mandate, the final regulation should state that paper copies as needed will be provided by the owner/operator. [119]

 Restricting data submittals to a centralized database would possibly work well for states that have established , centralized data programs, but this flexibility should be extended to non - computerized sy stems to meet the needs of others. As suggested by EPA, this could include allowing local fire departments to establish partnerships with LEPCs, so that regulated f

acilities could meet the need to submit forms to both bodies by submitting one form to one bod y. This will work well for man y counties in North Carolina where fire departments are closel y l inked to the emergency management offices that support L EPCs by ma intaining EPCRA section 311 and 312 reporting information. [140]

 California adopted an inventory reporting program in 1986 that regulates approximately 110,000 businesses. We could not possibly manage 110,000 inventory reports; therefore, a single point of submission at the local level was established. California Health Safet y Code Chapter 6.95 (HSC), Section 25506 (b) states that:
“An y person who files an inventory form required under Section 25509 with the administering agency

shall be deemed to have filed the inventory form required by subsection (a) of Section 11022 of Title 42 of the United States Code with the state24

emergency

response commission and emergency planning committee established pursuant to Section 11001 of Title 42 of the United States Code.” To allow state emergency response committee (SERC) and local emergency planning committee (LEPC) access to these inventories HSC 25506 (a) states: “The administering agency shall transmit copies of the entire business plan or any information conta ined in the business plan to any requesting state or local agency .” However, the statute currently does not necessitate the use of an electronic database for the transmission of this data. It is possible that such a database will be developed within the next five y ears, but currentl y with the different electronic capabilities throughout the state it is not feasible. We suggest that EPA place flexibility , allowing for non electronic means of streamline submission, into their guidance. Our s ys tem has been in place for 10 ye ars, providing the community , first responders, and the state with right

- to

- know information. [OC

- 6] Agency Response

As stated in EPA’s response in the previous section, States may or may not choose an y of the options suggested b y EPA to implement the program. Since the publication of the proposed rule, the Agency developed an electronic reporting s ys tem, Tier2 Submit, which many States use. O ther States have developed their own electronic reporting which they

require facilities to us e. States are given the flexibility to implement the EPCRA program as needed in their States for emergency planning and response.

B.4. Software programs used to obtain and store 311 and 312 reporting data

 There are several electronic reporting s ys te ms on the market. There should be some way of looking at these sy stems for sy stem compatibility . The three primary systems seem to be SDS EM2000TM (new play er), EI S, and CAMEO. If we make CAMEO the main play er and ensure integration of EI S and SDS EM200 0TM into a CAMEO sy stem, we will cover an estimated 90 percent of the electronic reporting s ys tems on the market. Each LEPC can select the one best suited for its use and they can partner with the state in the final selection of the statewide s ys tem. [014 ]

 Since the CAMEO sy stem is already in place in many

fire departments, LEPCs, and SERCs, any

electronic databases should be compatible with that sy stem. [031]

 We have been strong advocates of electronic filing and offer a service to all facilities within the city

of preparing Tier II forms with the Tier II 5.0 software. This has been a tremendous help to small and larger facilities. We have every facility ’s Tier II form inventory data stored in our software. We adopted this posture to ease the data transfer25

problems into CAMEO. Each ye ar we call or get called to print out their forms. The facility is asked for any

changes or updates and is responsible for proofing and signing. This process insures a more accurate form since errors are corrected in th e master files as they are found. I would suggest that future versions of Tier II 5.0 and Tier II Windows retain, as part of the file structure, the name and title of the person who signed the form. It currentl y is not saved. [048]

 Our data are currentl y m aintained in CAMEO and are a major part of our emergency response data. The information is maintained on a secure net with 24

- hour access for our emergency

responders. [096]

 Kansas has a software program developed to allow facilities to submit Tier II information by diskette. The March 1, 1998, Tier II submittal was the first reporting period where facilities were able to use the software. When technology exists within the Kansas Department of Health and Environment, we will evaluate the possibility of facilities submitting electronicall y. [108]

 We currentl y enter hard copy data from Tier II forms into the CAMEO Windows data base. If electronic submittal of Tier II information is adopted, we recommend EPA design appropriate software programs for conversion of submitted data directly into the CAMEO data base to ease data entry requirements. [143] Agency Response

Since the proposed rule was published in June 1998, EPA developed an electronic r ep orting software, Tier2 Submit. A new version of this s oftware is developed for every reporting year to incorporate new state specific fields. Tier2 Submit is designed to export Tier II Chemical inventory data into the emergency

planning software

- CAMEO fm . As stated earlier in this document, States may use T ier2 Submit or States may develop their own reporting s ys tem. Tier2 Submit contains all of the data elements required by federal EPA regulations, optional data elements which are commonly required b y the States, and also custom fields to accommodate addit ional data elements required b y individual S tates. For complete details and instructions on how to download Tier2 Submit, visit EPA’s website at www.epa.gov/emergencies/content/epcra/ tier2.htm . The Agency website also include s links to the State reporting requirements.

B.5. Information systems to ensure timely and joint receipt of information by SERCs, LEPCs, and fire departments Several commenters provided information on exis ting state s ys tems. They noted that EPA’s goal of timely access for all parties is currentl y unrealistic because of the time required to enter and check data. Other commenters said that such s ys tems, while desirable, will not reach many fire departments and L EPCs because they lack the resources for Internet access. One LEPC stated that it would continue to require reports if a state s ys tem existed.26

 We encourage EPA to investigate the possibilities of a joint electronic database. However, EPA should rem ember that man y fire departments and LEPCs would not have access to an electronic database due to the lack of computer equipment, lack of trained computer personnel, and lack of access to the Internet. EPA should consider ways to address these concerns, p ossibly through grants, before implementing such databases. Since the CAMEO sy stem is already in place in many

Fire Departments, LEPCs, and SERCs, any

electronic databases should be compatible with that sy stem. [009, 031]

 If the SERCs, L EPCs, and fire de partments had unrestricted access to a statewide electronic database, then for an y facility in the state, timely submission to the central electronic database could constitute timely submission to each entity under EPCRA. In addition, the portions of this electronic database that are the data elements the public has a right to know under EPCRA should be made available to the public via the Internet and at the LEPC or SERC. As a facilit y opens or changes chemical processes, the real

- time data can be upload ed via Internet or diskette to the database. This can fulfill the section 311 requirements, too. This is what the EPA

- funded BOLDER Project will soon do. In addition, the NRT should either sponsor or have access to this database. Recently, when Texas City

received a terrorist bomb threat, FEMA and the FBI contacted EPA Region 6 to determine what chemicals might be involved, and EPA had no idea! EPA should host the electronic data warehouse. This ends the issue of unfunded mandates and provides for r egularit y in databases. Most federal environmental laws are EPA’s responsibility , and EPA is web

- enabling much of this information. It is time to do the same for EPCRA chemical storage and hazard information, to give this information the same and equal treatment. [034]

 Timely

submission to the joint database would constitute timely submission to all three entities. [061]

 If this proposal required the sharing of hard cop y s ubmissions, then it would place an unreasonable burden on the state and LEPC. Ind ividual determinations by L EPCs and fire departments as to whether they want copies of section 311/312 information/forms will also increase the burden on the SERCs. SERCs will have to track which agencies have requested what information from which facility and will thus complicate SERC compliance activities and actions. If a computer database could be used for the joint access to information, then it should be manageable from a workload perspective. A statewide database would appear to be more practicabl e than man y individual databases managed at the local level. I f the intent is to have the SERC responsible for the dissemination of information to LEPCs and local fire departments that do not have Internet capabilities, this would also be a considerable a dministrative burden as many states have hundreds of fire departments, man y of them volunteer. Wisconsin has over 800 fire departments, most of whom do not have Internet capabilities, and less than half of the LEPCs in Wisconsin have Internet capability. One entity , in most instances this would most likely

be the SERC, should have the responsibility for the development and maintenance of one statewide database. [061]27

 Wisconsin has a statewide database that can be accessed through the Internet. Joint acc ess to one database is feasible onl y if all parties have access to the database. [061]

 This L EPC plans to remain an individual compliance point for EPCRA reporting. If the SERC creates a centralized database, then we will use that for compliance checks, but will still require information to be sent directl y to us. [096]

 While we would support the submission of one report to a joint database, it is questionable whether the SERCS, L EPCS, and fire departments would have the resources to implement such a sy s tem. EPA should continue to explore options to encourage the use of a joint database. [101]

 We strongl y agree that creation of partnerships presents an excellent opportunity for streamlining. However, due to current technologic and basic operational con straints, the EPA proposed guidance as presented is too restrictive. We recommend that EPA consider including additional options for partnerships. Delaware has an established state

- wide information sy stem for managing and distributing EPCRA information. The sy stem is overseen by the Hazardous Materials Information Management Committee (HMIMC), a committee of the Delaware SERC. The sy stem agreed upon and implemented revolves around the CAMEO software; in addition to CAMEO, the sy stem also includes the MA RPL OT and ALOHA software applications. Within the Delaware s ys tem, each organization is assigned responsibilities based upon their particular areas of expertise. These responsibilities were discussed and mutually agreed upon. The Department of Natural R esources and Environmental Control (DNREC) is responsible for Hazardous Chemical Inventory , Toxic Release Inventory , and Emergency

Release Notification data. The LEPCs (each for their district) are responsible for special population information, plotting facilities and special populations on maps, screenings and scenarios, transportation route data, additional emergency contacts, and response resources. The 911 Fire Dispatch Centers (for each county) are responsible for verification of address information and identification of fire districts and cross streets for facilities. The State Fire School is responsible for data transfer. Because of a variet y of basic operational and technology limitations, the most difficult step was establishment of procedures for updating and exchanging data. CAMEO is not currentl y designed for use in a multi

- user network arrangement. As such, each organization maintains an individual stand

- alone copy . Delaware facilities submit EPCRA reports centrall y to DNREC, which is res ponsible for entering the information into CAMEO. Information in the DNREC sy stem is periodically downloaded to the State Fire School, which disseminates the information to the Fire Dispatch Centers and LEPCs statewide. As the Fire Dispatch Centers and L EPCs enter information for which they are responsible, information is uploaded to the Fire School and integrated into the main CAMEO version at DNREC. Guidelines for entering data within the sy stem and procedures for logging activities were established. Insupport of the s ys tem, the28

Delaware SERC financed the purchase of standard computer hardware and software for sy stem users to facilitate data exchange. The HMIMC organized and provided training for s ys tem users, and continues to do so today

. The EPA p roposed guidance as presented onl y allows for streamlined centralized reporting if the reports are available on the reporting deadline to all designated recipients. We have been working with and discussing enhancements to our central s ystem for several ye ars, and based upon our experience we do not feel the proposed EPA guidance is realistic at this time for the following reasons: (1) For all designated recipients to have access to reported data on the reporting deadline, direct on

- line electronic submi ssion would be required. As EPA states, a number of Federal agencies, including EPA, have been striving to develop methods for certification of electronicall y submitted data. This is a difficult issue, and EPA has not y et resolved it. (2) To our knowl edge, an information sy stem which can accept on

- line EPCRA submittals directly and allow multi

- user access b y the necessary recipients does not currently exist. The CAMEO sy stem cannot currently fulfill this role. It has several limitations, including th at it is not currently a multi

- user network s ys tem. CAMEO could be modified, or a new s ys tem developed, but it will take time. (3) If reports are submitted on

- line and are immediately available within the sy stem for use by

emergency

planners and respon ders, data quality issues could pose a significant problem. In the earl y ye ars of EPCRA reporting, Delaware also experimented with a central information s ys tem. Information was attempted to be entered into a database exactly as reported and then distributed to emergency planning and response organizations. Because of data quality problems, this initial effort was abandoned and the data removed from use. Based on this experience, qualit y control procedures were discussed and incorporated b y the HMIMC int o the centralized information sy stem we are using today . Quality assurance activities must be conducted on the data prior to distribution for use, or confidence in the s ys tem, and eventuall y use of the data, will decline and the data may eventuall y, be di scarded or deleted. This is based on twelve y ears of experience in managing this ty pe of s ys tem. (4) As stated above, for all designated recipients to have access to reported data on the reporting deadline, direct on

- line electronic submission would be required. Man y businesses, particularl y small businesses, will not have the capability to submit in this manner. As such, they would not be able to capitalize on the burden reduction offered b y centralized streamlined reporting as proposed by EPA. Alth ough our centralized sy stem does not operate as outlined in the EPA proposed guidance, it has several advantages:29 (1) Centralized reporting regardless of the method of reporting (paper, diskette, etc.) eases the burden on all reporting facilities, inclu ding those small businesses which may

not have adequate resources for electronic reporting. (2) Questions on reporting issues are directed to a central location, resulting in more consistent guidance to facilities. (3) Centralized reporting and data entry allows for consistent quality assurance activities to be conducted on the data prior to use by emergency planning and response organizations. (4) If a revision(s) is deemed necessary from a facility as a result of quality assurance review activit ies, the revision(s) onl y needs to be sent to the central reporting location. (5) Each LEPC and fire department does not have to devote resources to collecting and managing facility reports and dealing with reporting issues. Except for one, all fire departments in Delaware are volunteer and do not t ypicall y have the resources to collect and manage EPCRA information. Having EPCRA information centrall y submitted, quality assured, computerized, and available 24 hours a day

through trained personnel in the 911 Fire Dispatch Centers is a more effective approach. In the event a fire department wants facilit y information for pre - planning or other non

- emergency use, the information can still be obtained from the 911 Fire Dispatch Centers, or from other sy stem users such as the LEPCs or DNREC. (6) Access and retrieval of data in an emergency situation is improved. With Delaware’s s ys tem, the number of s ys tem users is limited. Through training and frequent use, a limited number of s ys tem users can maintain a level of proficiency within the sy stem that a multitude of casual users could not. (7) Delaware collects reports electronically on computer diskette from a large number of facilities. If these reports were not collected centrall y, paper copies would also have to be generated for submission to other designated recipients. One of the critical elements set forth by EPA in the proposed guidance is that any partnership program for joint access to information would need to ensure that the SERC, the L EPC, and the fire department each receive or have direct access to Tier Iand Tier II information by

March 1. We recommend that EPA consider additional flexibility in this area. In Delaware, it currently takes approximately

6 months from the March 1 deadline f or all submittals to be quality assured (including obtaining necessary revisions from facilities), entered into CAMEO, and distributed. As the percentage of facilities reporting electronically

via diskette continues to increase, we anticipate this process ing time will decrease. However, it would still take several months if all facilities reported on diskette. Several reasons for EPA to consider flexibility on this point, such as the lack of time for30

quality assurance, have already

been discussed. In ad dition, we recommend EPA also consider the following: (1) As noted by

EPA, much of the data from facilities does not change from year to ye ar. As such, immediate access to the data for all designated recipients by the March 1 deadline would not be of si gnificance for much of the data. (2) The information submitted on Tier I and Tier II reports is in reality historical information and potentially outdated upon receipt. The information represents chemical use and storage activities at the facilit y durin g the previous calendar ye ar. Reported chemicals may

have already

been removed from the site. Additional chemicals may have been brought on site above the threshold, but not yet been reported (these new chemicals would eventuall y have to be reported unde r section 311, but not for 3 months). Most importantly , chemical amounts and storage locations could have already changed significantl y prior to submission of the report. Unless these changes are considered to impact emergency

planning activities of the LEPCS, there is no requirement for these ty pes of changes to be reported until the following ye ar. These points are not meant to negate the importance of the data, but rather to point out that information reported under Sections 311 and 312 can only be re lied upon as initial information concerning potential substances and storage situations at reporting facilities. In an emergency , responders will alway s be required to take a conservative approach and attempt to obtain the most recent information from contacts at the facilit y. (3) There are man y situations where hazardous chemicals are used and stored by facilities, but because of the conditions of storage or other factors, the chemicals are not reportable. For example, the exemption for products “packaged i n the same form and concentration as products, packaged for distribution and use by the general public” allows for numerous situations where large quantities of hazardous chemicals above the threshold amount are not reportable. Hazardous chemical inventory reports under sections 311 and 312 do not present a complete picture for a facility . [104]

 With regard to certification, signing submissions to all three recipients of the data seems unnecessary . In most cases, the signature recipient could be either the SERC or the LEPC. The organization that would be most likely to pursue enforcement could be designated b y the state to receive the signature copy. Signed copies could be submitted once every

three y ears with electronic copies being submitted in the interim y ears, unless an inventory

revision was made. Technicall y it would be beneficial if the certified revisions could be a part of the 311 submission as the SERC/LEPC/fire departments must be notified within ninety

day s (which is too long). By allowing this alternative, the March 1 burden to track changes would be diffused throughout the ye ar. [119]

 When you talk about unrestricted access to statewide electronic database, you must consider there are some who have no electronic databases, let alone acce ss. [129a]31

 We would like for EPA to consider its definition of “timely” access, in relationship to the “timeliness” that exists in the current sy stem, which is not necessarily or realistically immediate. [140]

 The Florida SERC has established a statewide database of EPCRA sections 311 and 312 information that it routinely shares with LEPCs, local governments, and the public. Advances in technology

have greatly

enhanced the accessibility and efficiency

of this information and the SERC continues to explore methods to improve its data management practices. However, under the current regulations, submission of reporting information to the SERC does not relieve facilities from the obligation to report to the LEPCs and local fire departments. In previous disc ussions with EPA, the Florida SERC was advised that it could not serve as the EPCRA owner/operator’s “agent” to provide required reporting information to the L EPCs and fire departments. The deadline to report EPCRA information also makes joint access and submission problematic. It is difficult to develop a sy stem in which EPCRA data is jointly “received” by all required parties by the annual March 1 deadline. Florida encourages EPA to continue to explore methods to revise its regulations to better reflect the use of technology , but reminds the agency that development, administration and maintenance of automated data s ys tems can be quite expensive. Florida asks the agency to reflect on the level of funds committed to its recent initiative to establish a centralize automated database for risk management plans, or its ongoing investment in the section 313 Toxic Release Inventory

database, both of which include a much smaller universe of reporters, as an indication of the costs which may be associated with auto mated data submission. Without dedicated federal resources, few SERCs, LEPCs, or fire departments will be able to take advantage of this option. [178]

 We support efforts at partnership but point out that this proposal is dependent upon unrestricted acces s to a central database. In Kentucky there are over 800 volunteer fire departments, and our LEPCs are all volunteers. We know that having access to a central database would be problematic on a statewide basis, therefore defeating the purpose of reporting . [L 13] Agency Response

As stated earlier in this document, EPA suggested the idea for joint access to the information mainly

to reduce reporting burden on regulated communit y and to reduce information management burden for LEPCs and fire departments. E PA understands that some L EPCs and fire departments do not have the training or resources for electronic access. Since the proposed rule was published, EPA became aware that many L EPCs and fire department do have computer equipment or other resources to m anage the information submitted to them. For those LEPCs and fire departments that do not have the capability

of electronic access, the States may provide Tier II reports to these entities in hard cop y. States are given the flexibility to choose any

meth od to establish joint access. Whichever way

the States choose to establish partnership or joint access to the information, it must meet the reporting deadline specified in the statute, that is, March 1.32

To accomplish this, States may want to revise the S tate right

- to

- know program to require facilities to submit Tier II or the State equivalent form before March 1 so that States will have enough time to provide access to the other two entities by March 1, therefore meeting the statutory

deadline. EPA assum es that most of the States do have the capability to provide timely

access to the Tier II information to LEPCs and the fire departments since these States are already requiring electronic submissions from facilities. As mentioned earlier in this document, forming partnerships or joint access is not a requirement. Prior to the 1998 proposed rule, some States and local agencies have requested EPA to provide flexibility to implement the program as necessary in each State. EPA responded to that request by providing draft guidance in the preamble to the proposed rule. EPA specifically stated that States may choose an y of the reporting options provided whether or not EPA finalize the guidance. EPA is aware that some States alread y adopted some of the option s provided in the proposed guidance.

B.6. Use of MOUs or other written documents to form partnership programs Commenters were divided on whether MOUs or written documents would be needed.

 The partnerships should be formall y delineated through MOUs. [034]

 One database, maintained by the SERC, would seem to preclude the need for formal partnerships or MOUs. [061]

 Would establishment of a formal MOU for management of information allow SERCS, LEPCs, or fire departments to direct submittals to other loc ations? (Presently , SERCS, LEPCs, and fire departments can forward reports to a central agency or organization for processing after they

are received. Could they simply be directed to that central location to begin with?) EPA has the authority

to establi sh infinite thresholds for certain substances. Could this authority be used to establish infinite thresholds for all substances for reporting to an LEPC or a fire department if they have entered into a formal MOU for collection and management of the information by another entity? [104]

 Requiring written information and public notice of such partnerships places a burden where none is necessary . If partnerships are established, the notices should appear in the SERC/L EPC industry

inventory

instruction books . [129]

 Some ty

pe of paper submission will probably continue to be necessary during the foreseeable future. Use of MOUs seems too limiting. Perhaps the terminology could include partnership agreements and contracts. [129]33

 We endorse the principle that such agreements should be in writing, thus defining expectations and providing facilities protection. [140] Agency Response

The proposed option to have MOUs or other written documents showing the roles and responsibilities of each entity may be needed for assuring the regulated community that submitting Tier II to one entity would satisfy

the reporting requirements under EPCRA section 312. The States are given the flexibility to develop any

written agreement as necessary

. B.7. Restricting participat ion in partnerships

 Initiall y, only Tier II reports that do not contain confidential information should be allowed. Those requesting confidential status should be instructed to continue to submit their “confidential location forms “as they have in the pa st. This would prevent accidental or hacker access of information which companies wish to have protected. [119] Agency Response

Those States that wish to form partnerships should determine how they would like to handle reports that contain confidentia l location information.
B.8. Technical database management issues

Commenters raised a number of issues related to database management. Several stated that a single standard is needed; if each develops its own standard, the burden on industry will increa se. Other comments repeated concerns about the costs of databases and the LEPCs’ and fire departments’ lack of access. One commenter sought guidance on how long records must be maintained.

 Because the CAMEO sy stem is already in place in many

fire departments, LEPCs, and SERCs, any

electronic databases should be compatible with that sy stem. [011]

 EPA should be aware that letters referencing previous submittals would not be compatible with electronic databases and would require manual updating. If the EP A is serious about building electronic databases, the issue of referencing previous submittals by letter might have to be revisited. [011, 031]

 If EPA adopts an electronic submission requirement, that requirement should take into account the data transfer needs of local and state agencies

-- insure that they interface with CAMEO, for example. Having a electronic form is little better than paper if it cannot be processed in the existing software s ys tem. That requirement would better be left to the states, leaving the SERCs to determine the appropriate electronic form software to be used. [048]34

 Facilities submitting Tier II information could vary as much as 52 different way s, depending on the various requirements of each state. This variety can be standar dized if this electronic database is maintained centrally by EPA or another agency . This approach would provide consistent information especiall y if the database would rejects incomplete electronic data submissions. [123]

 We are very

concerned because Oh io requires a map as a part of its Tier II submission. Fire officials have repeatedly commented that these site maps are one of the top items that make EPCRA inventory reports useful to them. Ohio has recently placed its industry instruction book on its home page with downloadable forms. However, we are still four or five ye ars away

from being able to handle site maps electronically

. In an under

- funded program, it will be complicated to take advantage of electronic submissions. Many

volunteer fire departments (and some companies) may never have official Internet access to use the inventories in an emergency . [129]

 Someone will need to agree to house and maintain the database for all current recipients. [129]

 With EPCRA now in its tenth or eleventh ye ar , the paper reports are beginning to become somewhat of a problem. As we continue our efforts to have an active compliance program subsequentl y receiving more and more reports annuall y, we find that we are searching for way s to manage the files. How long do we absolutel y have to keep the facility records in hard copy

or original copy

sent to us by

the facilities? After a few ye ars, can we scan the section 312 reports into the computer and dispose of the original? What we would like to do is be able to s can the 312 report onto the computer and save it either to flopp y or to CD. This would solve our storage problems and also still allow us to access the facilit y records for future information requests or compliance questions. This is an item that needs t o be included in the LEPC Procedure Manual. [129a]

 One option for a jointly accessed data base would be to define a standard file format. The file could then be imported into the data management tool of each organization’s choice. The recipients of the information (SERC, L EPC, and fire department) could make relevant decisions regarding what information is important for their specific needs. If properl y developed, with the participation of all involved organizations (i.e., a joint partnership), comprehe nsive inventory and hazard information would be available in an easily managed format. The partnership could establish and refine the format for the electronic data, and provide ongoing support with development of data management tools. [133] Agency Resp onse

As stated earlier in this document, since the proposed rule was published, EPA has developed an electronic reporting s ys tem, Tier2 Submit which is compatible with35

CAMEO. EPA is also aware that some States also developed their own reporting s ys tem which is compatible with CAMEO. The commenter raised that EPA should maintain the reporting s ys tem rather than each State requiring submission created b y each State. EPCRA was created to prepare and protect the public from emergency release of extrem ely

hazardous substances. Since EPCRA requires LEPC to develop emergency response plans f

or each community , the States and the locals need the information reported under EPCRA. Therefore, the States are given the flexibility

to implement the program as n ecessary for each community

in their State. Further, the statute requires facilities to submit information to the SERC, LEPC and the fire department. There is no requirement under EPCRA section 312 for facilities or for the implementing agencies about recordkeeping. States may include this requirement in the State right

- to

- know regulations if the States wish to do so.

C. Electronic Submittal for EPCRA Sections 311 and 312 Reporting

Since the beginning of the EPCRA program, the Agency encouraged States to implement the program as necessary to meet the goals of EPCRA, to prepare and respond to emergency

releases of extremely

hazardous substances and provide information on potential chemical risks in their community . States were given the flexibili ty to implement the program such as adding more chemicals, setting lower reporting thresholds, etc. Over the y ears, States have expressed that handling thousands of hard copy submissions of Tier I/II form is too much burden on them. So some States have requested EPA to allow them to create an electronic reporting format for facilities to use for compl yi ng with EPCRA section 312. Electronic reporting would also reduce burden on facilities since they

don’t have to re

- create most of the information from y e ar to y ear. Facilities would have to enter most of the information on the Tier II form only in the first ye ar and then revise the information as needed in subsequent y ears. Also, in order to achieve the option discussed in the previous section of this do cument, joint access, electronic reporting is necessary if the State choose to do so. Many commenters supported electronic submittals. Some supported it, but noted that it would not be practical for man y LEPCs, fire departments, and smaller facilities. A number of commenters opposed the idea because of the burden on state and local agencies. Other commenters provided support for and ideas about certification for electronic submissions. Support

 By allowing programs for streamlined submittal and joint access to section 311 and 312 information, electronic submittal, reporting onl y changes in information rather than complete new inventories each ye ar, and allowing RCA UST reports to fulfill EPCRA section 312 requirements, facilities may be more inclined to comply with reporting36

requirements and work with state and local regulatory agencies. This also would lessen the impact on those agencies required to maintain information regarding community right to know and extremely

hazardous substances. [012]

 Subm ittal of Tier II reports in an electronic format is a good idea. This information should then be immediately accessible to update CAMEO and GIS maps. Reporting Tier II information that loads directly onto commonly

used software for emergency management w ill provide an incentive for the LEPC to promote electronic Tier II reporting. The file required for mapping has a DBF suffix. [018]

 We have no problems with electronic submission of section 311

- 312 information. [020]

 We support electronic submittal, th e incorporation of previous submissions, electronic access to facility

MSDSs and using section 312 to fulfill the section 311 requirements. These proposals are much needed advancements to streamline the reporting process and eliminate confusion. [096]

 We believe that sources should have the option of submitting the required EPCRA information electronically. Such an approach has been effective in reducing the paperwork burden under other EPA reporting regulations. [101]

 In 1995, Delaware initiated a pilo t project to accept Tier II information electronicall y from reporting facilities. Using a contractor, we modified the federal Tier II software to incorporate state

- specific requirements and the results of industry comments. Aside from the same basic data capabilities of the federal software, the Delaware Tier II software conducts state

- specific edit checks, generates error reports, calculates state reporting fees, generates a fee summary , and generates a certification letter to accompany the submitted dis kettes. Additionally , the software was designed to export directly to our state CAMEO sy stem. For facilities that wish to report electronically using their own software, we provide them with information on the required data structure and format so they c an mirror submittals from Delaware Tier II. For the first two y ears, we slowly expanded distribution of the software. This y ear, we offered the software to all reporting facilities in Delaware. To assist facilities that wished to submit electronically

b ut did not have the necessary computer capabilities, computers and the software were made available at the LEPC offices. Out of approximately 1240 facilities which reported chemicals in inventory for 1997, approximately

520 (or roughl y 42 percent) submitt ed electronicall y on diskette. Any facility reporting electronicall y must submit a diskette containing the Tier II data alone with a signed certification letter to our central EPCRA Reporting Program. If an owner or operator is submitting reports for mu ltiple facilities, all information may be included on one diskette. However, a certification letter must be signed for each facility

. Delaware also requires facilities to include site plot plans along with Tier II reports (these are scanned into the s ys t em and made available to all users along with the rest of the data). Presentl y, these are submitted on paper along with the diskettes, but we are37

attempting to establish guidelines allowing electronic submission of these as well. A facility may

use the D elaware Tier II software to report under section 311, but in most cases a written letter is sent. Concerning confidential location information, facilities simply enter this information in the software the same as non

- confidential information. However, th ere is a check box in the software for facilities to identify the location descriptions being claimed confidential. When transferred into our main sy stem, the confidential designation is transferred along with the corresponding data. If a public request is received for information on a facilit y which reported electronically , the information is either printed from our main CAMEO sy stem or from the Delaware Tier II software after loading the facility ’s data from the diskette. During printing, the confident ial information is excluded. Handling confidential information within electronic submittals on diskette has not posed a problem. Delaware has been considering the option of direct on

- line submission and would like to move in that direction. The primary obstacle is the certification issue. With respect to electronic reporting, this is the main area where EPA guidance is necessary. [104]

 We support electronic submittal of data, in that it has been found to improve data quality and provides some reduction of burden for reporting facilities. The submission of EPCRA section 313 data in an electronic format has provided several benefits. These data are submitted on disk with a cover letter (as described in option 2), which fulfills the signatory requirement s. For disk submittal, there are several issues which have surfaced which may

be common to electronic data management for EPCRA sections 311 and 312. These include the following: (1) Software modifications should be implemented a minimum of 9 months p rior to the reporting deadline. This would allow adequate time to modify any relevant data management sy stems within the reporting facility or corporate data sy stems from which data on the report is extracted. It would also allow adequate time to correct an y program errors in the software which may affect the integrity of the reported data (such as occurred with the 1996 TRI AFR). (2) A mechanism for facilit y verification of the data, as loaded and managed by the regulatory

agency or other entit y manag ing the data, is essential. The necessit y for this has been highlighted b y the observation of discrepancies in data among various databases which are currently using TRI data. Errors have been uncovered in public databases for TRI data, facility location coordinates, and other environmental data reported to and managed by state and federal agencies. (3) The electronic submission of data through the more direct approach described in option 1 (Internet) could include certification through the appropriate application of a Personal Identification Number. There are also several other issues which require resolution prior to implementation, such as date of receipt, integrit y of transmission, point of transfer, and confidential business information securit y. [106]38

 State and local agencies should be able to require their own versions of the Tier I and II forms, as long as the minimum information required by EPCRA is included. We are also in agreement that electronic versions of the Tier I and II should be acc eptable, as long as these forms meet the minimum standards established by EPCRA. [118]

 We accept electronic submissions of Tier II data on computer disk (using the Tier II for Windows software) at this time. We require that facilities submit their comput er disks along with a signed cover sheet form that contains a certification statement, but we do not allow submission of this information via the Internet because we lack the resources for this option. However, we would like to pursue such options in future, so any guidance that would allow electronic “signatures” would be desirable to allow flexibility in the future of our program. [118]

 We strongl y support the development and use of sound electronic reporting that places minimum burdens on facilities, f ire departments, LEPCs, and the SERC. We support electronic reporting, minimization of impact on facilities, etc. We have been far less concerned with the certification requirements than the information provided on the reports. We strongly

support EPA’s resolution to overcome this apparent block to include exploring the use of electronic signatures over Internet secured lines. [122]

 We support EPA’s proposed guidance to allow electronic submission of MSDS and Tier II reports to reduce the paperwork burd ens under EPCRA section 311

- 312. We suggest that EPA allow electronic reporting to the SERCs, giving the SERCs the responsibility of making the reports available to L EPCs and fire departments. [137]

 We strongl y support electronic submittal of the reports required. We currently use electronic submittal via the EPA provided software, Tier2Win, in North and South Carolina. All our submittals are via diskette with a letter containing a written certification and signature. [139]

 Electronic submittal for EPC RA section 311 and 312 information is a good idea that will assist SERCs and L EPCs in more timely processing of annual inventory reports and allow for the automated accessibility of chemical specific data during emergency operations. Electronic submittal will also increase the GI S capabilities of many jurisdictions tasked with the management of EPCRA information. However, EPA needs to take the lead on this process to insure compatibility of the s ys tems used across state and local jurisdictional boundaries . Also, most of the states do not accept electronic or magnetic media submissions at this time and have no source of funding to acquire the necessary equipment and software for this capability . [147]

 We strongl y support an y initiatives to streamline EPCRA sections 311 and 312 reporting. In particular, we support the concept of allowing facilities to submit joint reports to satisfy the requirement to file reports with the SERC, L EPC, and local fire department. We support efforts to allow electronic repor ting of sections 311 and 312 data, whether on disk or by electronic submission. [153]39

 We support EPA’s proposals to streamline submission of information under EPCRA sections 311 and 312. Electronic submission of information would reduce the burdens of re porting and facilitate prompt reporting. In the case of man y SERCs, L EPCs, and fire departments, it is likely

that electronic submission would facilitate prompt and ready access to the information. [L 05] Support with reservations/suggestions

 We support moving forward with electronic submittals as long as SERCs and L EPCs have the capability

of downloading the information. [062, 133]

 EPA indicates in its proposal that it is considering the development of guidance on electronic submittal to satisfy EPCRA s ection 311

- 312 reporting. Specifically , EPA is considering allowing the submittal of this information via the Internet. In general, we support the flexibility

of allowing electronic submission in addition to other more traditional means. For example, we support submitting data on disks as a method of reporting. We have some general concerns about electronic submission of data via the Internet. We support EPA’s statement that it is not considering receiving trade secret information electronically; this is appropriate given the very nature of the information (i.e., secret) and the very

nature of the Internet (i.e., insecure). Moreover, we have some general concerns about use of the Internet as a mechanism to submit required reporting without some protect ions that the e

- mail submissions actually were received. Unfortunatel y, the realit y today is that some e

- mail is never received; it gets lost somewhere out there in cyberspace. A facility can take little comfort that their submittal has been received so that they are then in compliance if such submittals are forever lost in a cy ber black hole. We recognize that indeed this could also be an issue in using U.S. Mail for the delivery

of required submittals. However, man y facilities protect themselves by us ing the “Return Receipt Requested” service which allows for some comfort that the required submittal has reached its appropriate destination. EPA might want to consider a similar mechanism for Internet submittals such as an electronic receipt of informati on. In addition, EPA should still allow facilities to comply the old

- fashioned way

(U.S. Mail) or some other electronic form (i.e., disks) in addition to the submitting via the Internet should the Agency

finalize this aspect of the rulemaking. [113]

 We are generall y supportive of electronic submittal. Again, this is a three

- party agreement, and one part y may need a paper record. [129]

 We commend EPA’s efforts to develop guidance on electronic submittal for sections 311 and 312 reporting. However, to pr ovide burden reduction EPA needs to improve electronic data transfer and reduce or eliminate the need to mail diskettes, hard copies, and certification statements. [133]

 We generall y believe that electronic submittal of information would improve the accur acy and timeliness of data collection and submittal, but would not necessaril y result in any significant reduction in reporting burden upon regulated facilities. The facilit y40

would need to complete the form via a computer, then either forward it electroni cally or copy it to a disk, complete a hard copy certification, and mail this entire package. Additionally , the number of SERCs, LEPCs, and local fire departments that have the capability to receive an electronic submission is probably very small, at leas t at this time. EPA’s partnership program discussed in the preamble could stimulate progress on the part of these entities in enhancing electronic data transfer.

 Electronic filing of EPCRA information would best be facilitated by an EPA

- sponsored program that provided a standard data interface for an Internet Web site. The development cost would be minimal, data collection would meet EPA requirements, and localities could decide to participate if they had the hardware available to set up a Web site. [167 , 180]

 We are in favor of EPA developing guidelines on the electronic submittal of diskettes to satisfy EPCRA sections 311 and 312 reporting. Our LEPC does have the capability for receiving and processing electronically submitted data (diskettes), howeve r, some of the issues faced b y our LEPC include 1) Tier II information not being compatible with our current software and 2) securing the integrit y of our information system (corruption). Submission through the Internet, while still requiring mailing of t he certification, seems to defeat the purpose. One possible way for electronic certification would be to develop software that would need the owner or designated to approve the submission by assigning it a Personal Identification Number (PIN) that was pre registered with the appropriate agencies. [174]

 Although not currentl y in place, we welcome the opportunity to receive electronically submitted forms for all three entities (SERC, LEPC, and fire departments). The only challenge would be how to forward th e information to those organizations that do not have electronic capabilities at this time and the establishment of a secure network where all of the entities would have access. [L03] Oppose

 For our LEPC, computer

- generated Tier II forms are accepted if written inventory amounts in pounds or gallons and written storage information are provided on the form. Companies and government agencies have no problem with adding this information with computers. I believe total electronic submittal is about five y ears away . I can’t support this proposal. [006]

 In regards to electronic submissions of section 311 and 312 information, I think that there are LEPCs who feel that they cannot handle this ty

pe of submission. Remember that LEPC members are volunteers and m ost are older individuals not accustomed to computers. Our office is computer

- driven, but even Ihave some problem in getting information to download into CAMEO. [007]41

 Again, you are being lobbied by large, affluent companies who want reporting done elec tronically . You must remember that exceedingl y few LEPCs and fire stations have the capability

of receiving electronic reports. Your proposal to have a common reporting station and disbursement of information to SERCs, fire departments, and LEPCs absolut ely

will not function. As an example, none of the fourteen fire departments in this county have the capability

to accept electronic reports. Further, the companies lobbying for electronic reporting should remember that prior to making an electronic repor t, it is necessary

to have the information on paper. That paper report can easil y be disbursed to the appropriate departments. [010]

 We are NOT in favor of electronic submission of section 311 and 312 reports. [112]

 Until L EPCs and fire departments, esp ecially the more rural volunteer fire departments and smaller local government fire departments have the equipment and training to receive, file, and retrieve such information, it would be best to require hard copy reports. [165]

 There are large numbers o f local fire departments and LEPCs that are not able to support electronic filing of data. They don’t have the computer hardware, software, or personnel. For those looking at enforcement actions, the certification issue becomes critical. What happens if a virus is included that corrupts an entire database? It could happen. For those not able to accept electronic filing, an alternative method must be available. There also are large numbers of facilities which are not able to support electronic filing of data. They

don’t have the computer hardware, software, or personnel. An alternative method must be available. Maine considers the virus issue to be very important. Also, for those states with state forms, financial assistance and technical support woul d be needed to implement a diskette submission sy stem. The certification issue mentioned above might be resolved by diskette submission with accompan yi ng certification. The issue of confidential location information would have to be addressed and resolve d. The proposal may

simplify reporting for some, but it will not for others. There will be no impact on preserving public health and safet y benefits. The proposal may reduce costs somewhat to individuals, businesses and government. There will be no imp act on EPCRA’s environmental goals. Flexible options need to be available. This is not a proposal that one size fits all. The language is not the issue, so a rewrite in plain English to reduce regulatory

burden and improve compliance is not the issue. [ 177]

 The electronic submission of reports will cause great and considerable damage to fire departments and LEPCs because most fire departments and L EPCs do not have the funds for electronic acceptance of an y submission. I f electronic submission is requir ed, then section 311

- 312 reports should be totally scrapped; those reports will not be available to42

protect the public. In Richland County , none of the 14 fire departments have the capability to accept section 311

- 312 reports electronically . Unless it is the intent of EPA to provide the appropriate equipment to those entities, either scrap the idea or the entire reporting plan, which is supposed to protect the residents of the counties. The section 311

- 312 reports, if reported electronicall y, would first have to be set down on paper and then submitted electronically , and would cause additional work for all persons. [OC

- 4]

 I do have a problem with electronic submittal; until the rules are changed, there is no way the mom and pop operations can ever compl y with having to submit the information electronically . [OC

- 7]
Agency Response

The Agency

understands the concerns raised by the commenters on electronic reporting. Prior to the proposed rule, EPA received request from man y States and local agencies that the Agency should develop an electronic reporting s ys tem so that the burden of information management at the State and local level will be reduced. These State and local agencies also requested EPA to provide flexibility to manage the EPCRA program, which includes allowing States to develop their own electronic reporting format. This is the reason that EPA provided draft guidance in the preamble to the proposed rule. In that preamble, EPA advised States and local agencies to choose an y options provid ed that the statutory and regulatory

requirements are met. As per EPA’s suggestions, man y States have created their own electronic reporting format or use EPA’s electronic reporting format, Tier2 Submit. EPA is aware that some States now require on - line reporting or submission via diskettes. Only few States accept paper submissions of Tier II reports. EPA encourages States to accommodate those facilities that do not have the capabilities to submit Tier II electronically by allowing these facilities to s ubmit paper copies of section 312 report.

C.1. Certification

 Most organizations require a signature along with a statement that MSDSs for reported material are on site and available if requested, so a letter may have to be sent any

way . It appears that the signature block is eliminated, but it may still be required by organizations not recognizing electronic signatures. [123]

 Regarding certification, signing submissions to all three recipients seems unnecessary . In most cases, the signature recipient could be either the SERC or the L EPC. The organization that would be most likely to pursue enforcement could be designated b y the state to receive the signature cop y. Signed copies could be submitted once every three ye ars with electronic copies being s ubmitted in the interim y ears; unless an inventory revision was made. Technically it would be beneficial if the certified revisions could be a part of the 311 submission as the SERC/LEPC/fire departments must be notified within ninety day s (which is too l ong). By allowing this alternative, the March 1 burden to track43

changes would be diffused throughout the ye ar. This would be a great benefit to all SERCs and L EPCS. Regarding confidentiality , initially onl y Tier II reports that do not contain confidenti al information should be allowed. Those requesting confidential status should be instructed to continue to submit their “confidential loc ation forms” as they have in the past. This would prevent accidental or hacker access of information which companies wish to have protected. [129]

 EPA is seeking comments on the certification statement related to the electronic submission. The need to certify electronic submissions is a common element associated with other forms of electronic submissions. In recent y e ars, the IR S has allowed individuals to submit annual Federal income tax reports electronically . The IRS requires the submission of a signed certification statement (IRS Form 8453

- 0L ). To avoid the need for this certification submittal, EPA might conside r: (1) Requiring the facility to retain a signed certification at the facilit y with other documentation supporting the report. This certification statement would be available for review b y federal, state, or local authorities; or alternativel y, (2) Deleting the requirement altogether for the certification statement. The certification statement appears to be a regulatory requirement and not specifically required b y the statute. It would appear to be within EPA’s authority to delete this requirement and allow the report submitted by the facility

to stand on its own. Lack of a certification statement would not appear to have an effect upon an enforcement action taken for failure to provide the required information. [133]

 We endorse the use of a certi fication letter accompanying disk submittal of reporting information in that several North Carolina LEPCs and the NC SERC currently use this method. The NC SERC is not currentl y prepared to receive information via the Internet. As our program matures, Internet access will be carefull y considered. While there are needs for public access, our requests for information from the public have been moderate over the ye ars, and our Division of Emergency Management is carefull y considering the threat of terrorist activities, which could be advanced with Internet access to Tier II information. [140]

 Connecticut has implemented a program that allows facilities to file TIER II reports by computer disk utilizing the EPA’s Tier II software. The disks must be accompani ed by a signed certification sheet and a site plan. This program has been very successful. [145]

 In the short term, the concept of mailing a signed certification statement to the reporting authority , either with a report disk or to follow electronic subm ission, is appropriate. In the longer term, we would invite EPA to consider mechanisms by which reporting could be done totally

electronically

without a separate mailing of a certification statement. In any case, we request that EPA (or reporting entitie s) develop regulations or policies which allow facilities to annually submit a single certification statement to a central body44

(such as the SERC), rather than requiring that a separate certification statement be sent to each reporting entit y. [153]

 Submi ssion on a diskette with a signed form is ridiculous. Handling the paper is already a burden, adding 700

- 800 diskettes is more burdensome. Development of a signed statement that a facility

can place on file with the locality that will remain valid unti l the authorized person at the facility changes would be preferable. Reporting facilities rarel y submit fraudulent information so a signed inventory form is little proof of completeness. Tier II confidential location information could continue to be subm itted on paper unless a SERC or L EPC provided a secure Web server to handle those transactions. [167, 180] Agency Response As stated above, although the Agency did not finalize the guidance, many States have been implementing some of the reporting option s provided in the preamble, including electronic reporting, either on

- line or via diskettes. EPA is aware that those States that accept the hazardous chemical inventory form via diskettes are accepting the certification statement that contains an original signature on paper along with their diskettes. Several States are in the process of developing on

- line sy stems for facilities to submit their form under Section 312. These s ys tems would allow for facilities to submit all of their information, including c ertification, on

- line. At the time the proposed guidance was published in June 1998, on

- line submittal and certification were not available options for reporting under Section 312. In order to continue to provide flexibility

to States in implement EPC RA and reduce information management burden, EPA is providing guidance to those States that currently require or may

want to implement on

line reporting to establish procedures as necessary for accepting electronic signature and certification. For the pur

poses of Section 312 reporting, original signature could include “wet” signatures or electronic certifications. Thus, States may use any s ys tem for collecting chemical inventory information under Section 312 which continues to ensure the information is tr ue, accurate, and complete and allows States to effectively and efficiently

manage chemical risks and provide information to the public.45

D. Incorporation of Previous Submissions into EPCRA Section 312 Reporting

Under EPCRA section 312, facilities are required to sub mit Tier II report or the State equivalent form to the SERC, L EPC and the fire department annuall y whether or not they have changes in the information submitted in previous y ear . In order to reduce burden on facilities that do not have an y changes in data from previous year submis sion, EPA suggested few options in order to meet the r equirements under EPCRA s ection 312 without having to re

- create the information.
One approach suggested in the draft guidance woul d be for the fa cility to simply reference and attach a copy of the unchanged infor mation from the previous y ear’s submittal to the current year’s submission. This would me an that the facility would have t o retain a cop y of its previous submission. A second approach would be for the facility t o reference previous submittals alread y retained by the SERC, L EPC and local fire department. A third approach would require onl y if the information changed.
Support A number of commenters supported the idea of limiting reporting to changes and a certification that no change has occurred.

 When a facility ’s chemical inventory remains the same as the previous reporting y ear, we believe that a letter referencing the previous submittal would be sufficient. If changes to contacts or owner have occurred, these could be stated in the letter. However, if the chemical inventory

changes, that change should require an entirel y new Tier I or II form, not just the changes, to be submitted. [011, 031]

 By reporting onl y changes in in formation rather than complete new inventories each year, facilities may

be more inclined to comply with reporting requirements and work with state and local regulatory agencies. This also would lessen the impact on those agencies required to maintain inf

ormation regarding community right to know and extremely hazardous substances. [012]

 I propose a possible option to save work and paper in annual reporting for every one involved in Tier Two reports. The SERC, L EPC, and fire departments should keep previo us y ear reports until current Tier Two forms are submitted, even past the March 1 deadline. A sticker would be attached to the previous y ear Tier II form, signed and dated, if there are no changes. The cost of printing stickers, which are similar to post al stamps (perforated and has backing) should not be prohibitive. [032]

 We support the concept of allowing a facility to incorporate b y reference information from a previous ye ar’s submission if it has not changed. Because we retain information received from submissions from previous ye ars, this provision would not represent an increase in our record handling. [058]46

 This proposal is essentially what Wisconsin is now doing with the preprinted Tier II report form. Facilities review the most recent submiss ion, make any changes if necessary , and sign the form. Although this could be done without using a preprinted form, experience indicates that many facilities do not retain records of previous submissions and would not have these forms available for a late r review or comparison. This would also complicate EPCRA record keeping in that a record for a Tier II submission that is many

y ears old may

be the current submission. Provided that this remains an option, we have no objection to this certification. [061 ]

 We believe that allowing the incorporation of previously submitted reports to satisfy certain annual EPCRA requirements will help streamline the reporting obligations and cut down on the flow of needless paperwork. [96, 101, 116, L 05, OC

- 7]

 We are in f

avor of allowing facilities to limit their annual Tier II reports by only submitting that information that has changed from the previous year. However, it is critical that EPA’s guidance indicate that SERCs, LEPCs, and fire departments are authorized to a

pprove or disapprove such submissions, because this limited information would be of little value if the receiving entities cannot access the previous years of information via a computer database. At this time, we could not accept such submissions. Howeve r, we have a long

- term goal to develop electronic databases of this information, so such report submissions could be feasible in the future. We recommend that facilities be required to submit some ty pe of documentation of report even if their inventories do not change from ye ar to year. This mechanism would allow SERCs, LEPCs, and fire departments to better track information. [118]

 We agree that allowing owner/operators to submit an original once every three y ears would provide relief in unnecessary repo rting of duplicate information. If there have been no changes to their facility identification form, on their Tier II report or their site map the owner/operator should be allowed to check off a “no change from the last y ear” box and submit only

a newly s igned facility

I D form. [119]

 Regarding the incorporation of previous submissions, we concur that the burden on LEPCs, fire departments, and SERCs will be reduced. The facility should be required to maintain reports that are being referenced. In Arizona we maintain forms for three reporting years. Would EPA entertain a tri

- annual (every three y ears) reporting cycle? From a data and program management perspective if there are annual reports, something should be received from the covered facility to indic ate comprehension of requirements. This should be either: 1) a new report is submitted; 2) a letter is submitted indicating “no change;” or 3) a “changes only” report that follows Tier II formatting and that must have owner/operator information listed is submitted. [122]

 Ohio’s rules allow owner/operators to submit an original once every three years. In the interim, if there have been no changes to their facility identification form, their Tier II report, or their site map, they may check off a “no chang e from the last y ear” box and submit only

a newl y signed facilit y ID form. Ohio’s forms may be viewed on our home page at http://www.epa.ohio.gov/derr/derrmain.html. [129]47

 We support EPA’s prop osed guidance to allow a reduced reporting obligation under EPCRA section 312 when a facilit y’s Tier I and Tier II reports have remained substantially

unchanged from the previous reporting ye ar. We support EPA’s second option which would allow a facility to submit a one

- page certification statement that incorporates b y reference the previous year’s submittal, indicating an y changes to the previous y ear’s report. This option reduces the reporting obligation in a more meaningful way than the first option, which would require facilities to attach a copy of the previous ye ar’s report. Submitting substantiall y the same reports each year imposes an unnecessary

burden on the reporting facility and the regulatory

agencies that receive the reports. [137]

 We suppo rt the first option, which requires that the facilit y have on hand its prior report which facilitates annual review to assure that no changes have, in fact, occurred. [141]

 We encourage EPA to require reporting onl y changes in information annually rather than a new Tier II form for every chemical stored or used each y ear. [142]

 While it is appropriate for a facility to reference previous submittals retained by the SERC, L EPC, and the local fire department, the facility making the reference should be requi red to specificall y describe the document, b y date or other appropriate means, so that the SERC, L EPC, or fire department can easily determine whether or not they are in possession of the document. Specific description is also critical to public use of th e information. [152] Oppo se A number of commenter s oppose the proposal to allow reporting onl y when changes have occurred with annual certifications. They stated that this approach could increase the burden for agencies because previous y ears’ file woul d need to maintained and referenced. Others said that facilities probably would forget to report and would consider changes unimportant.

 Speaking from experience, the LEPC may not receive ownership changes, new site plans if remodeling occurs, tanks are replaced, restaurants added, etc. With computers or creative copies, this isn’t a real problem. I do not agree with this proposal. [006]

 When reviewing the idea of allowing submissions of only changes of information, rather th an submitting section 312 i nformation each ye ar, Ithink some facilities would forget to file the information. Some forget to file now unless they are reminded. We need to send letters each year to about one

- third of our filers to remind then that they have forgotten to file. So I am almost sure that this would just make matters worse for LEPCs. Ifurther think that some facilities will think that some changes are so small that they don’t report them because then they

have to do all the paper work then. Unless y earl y reporting i s mandatory , most will not make the necessary changes as they

happen.48

We believe that making any changes just sets a precedent for other industry c lassifications to make requests and lobby to be eliminated from reporting. This will have a detrimental ef

fect on the public’s ability to know what is in the community , and will leave emergency

responders guessing as to what might and might not be involved in an emergency . [007]

 There are two major concerns under Section 312(a)(1)and (2). One is that the fac ilities can use Tier I form to report their chemicals on the premises and the other concern is that owner or operator of an y facility will not be required to report y earl y their hazardous chemicals under OSHA inventory requirements. I do not agree with on ly using Tier I forms and the proposed change of eliminating yearly reporting requirements. Tier I information has only

quantitative phy sical hazards characteristics of the chemicals located on the facilities premises; this is very vague information. Thi s form does not identify the name of the chemical nor the characteristics of the chemical, nor the exact location. Tier II discloses the pertinent information about the specific chemical, the location, the quantity , and the t yp e of hazard that the chemica l poses. If the responders know the name of the chemical, there are several references they can use to obtain the information needed when responding to an incident. The generic information does not identify the ty pe of protective equipment that the fire fighters should wear, the method of extinguishing a fire, or other issues that are identified in the MSDS. Having the terms “immediate” or “delay ed” for health hazards does not identify what t ype of health conditions to be aware of nor what t ype of medica l assistance can be given if exposed to the chemical. The other issue is not reporting ye arl y, after facilities have initial reported their chemical information. If the facilities do not have to report every y ear on a Tier II form, the pertinent informat ion is not being reviewed and updated. Facilities, now, have to take the time to review their information and report. This forces them to consciously go over all of the report and correct the information. Facilities experience changes in personnel as we ll as changes in the quantities of the chemicals manufactured, used, or stored on the premises. The reporting requirements are another check and balance s ys tem for the facilities to determine if they are using less of the chemicals and/or using chemicals that are not classified as extremely hazardous. These are two of the objectives of EPCRA: to inform the community

about the chemicals in their community and to encourage facilities to manufacture, use, or store less of the extremely hazardous chemicals o r identify alternative chemicals that are not as hazardous. [013]

 This proposal sounds good, but there are some considerations. How long can a compan y go before a revised new listing or report must be submitted? A continuous flow of change onl y informat ion could bog down the s ys tem, and, at some point, the accuracy of facility inventory

may be totally without merit. Further, if this proposal is adopted, the responsibility

for all information (including content of report, frequency of report, and accurac y of report) must be the total responsibility of the facility . A statement to this49

effect should be part of any facility ’s inventory

listing submitted to meet section 312 requirements. [014]

 The LEPC needs comprehensive and immediatel y accessible information about each hazardous materials storage sit e . Filing a complete Tier II report each y ear meets those needs. Referencing past reports requires several documents for a complete list and requires unnecessary

use of L EPC time that is saved by filing a co mplete report each ye ar. [018]

 We do not support the proposed change that allows facilities to submit a section 312 report onl y when changes in inventory occur. This policy is not in the best interest of either the public or the response agencies involve d. Given human nature and our understanding of the general nature of organizations, we believe that if the routine, annual requirement to report is lifted, over time very few reports will ever be submitted. This will result in a loss of critical informat ion, so central in the planning process. Many of the changes in inventory will only be discovered after an incident occurs. Post

incident discovery

does little to contribute to pre

- incident planning, and after all, planning is the central focus of EPCRA. [056]

 Kansas has not pursued the option to allow facilities to report onl y changes in information on the section 312 report each ye ar. Our biggest concern would be that facilities would not report at all and indicate that there have not been any changes at their facilities since the previous y ear. [108]

 We are also NOT in favor of reporting onl y changes in information rather than submitting a new report, we believe that a new report is more valid than only changes. [112]

 We believe that EPA’s proposed option of only having to report on those chemicals for which the information has changed does not offer much relief for the regulated community

or for the SERC, L EPC, or fire departments receiving the information. Assessing whether an y of the conditions h ave changed is still required. Additionally , this option would require the facility to retain records of all reportable hazardous chemicals from the time that they

were first reported. It would also require the SERC, L EPC, and local fire department to ma intain an extensive history on each of the reporting facilities, which may

be beyond the capabilities of organizations with limited budgets and resources. The idea of “incorporation b y reference” puts additional burden on the SERC, LEPC, and fire departme nt to track the most current information for a particular facility

. Unless the entire Tier I or Tier II report remains exactly the same as the previous y ear, this practice could fragment a facility ’s inventory data. EPA should retain the requirement for the facility to report annuall y on all of the hazardous chemicals that exceed the reporting threshold and do not fall within one or more of the reporting exemptions. [133]

 The NC SERC information management s ys tem is managed by y earl y submittals of data, and it would be somewhat difficult to have to refer to previous y ears’ forms to have the most current data available. It would appear that having to prepare required certification50

that there were no changes is about as onerous as having to resubmit inform ation, and we would be reluctant to use this reporting option. [140]

 We are opposed to the second option. The second option would allow a facility to simply reference previous submittals without attaching the earlier report. It is conceivable that a fac ility could report thusly

for several y ears. This would require the SERC, L EPC, and fire departments to maintain reports for like number of ye ars to make sense of the facility ’s reference to prior y ears’ submittals. The second option also makes it too ea sy for a facility

to report that no changes have occurred. [141]

 In corporation of previous submissions into EPCRA section 312 reporting is a bad idea. It could be cumbersome to maintain the files needed to verify the original submission of information in corporated into a new report. Questions of certification and records retention would have to be addressed. [147]

 It would be preferable to have reports filed annually so that there is no mix

- up as to what ye ar the data applies. It would be too tempting to overlook minor changes. Also, there would be the question of legal liability for the LEPC if it assumed because it did not hear from a facility , the information was the same as last y ear, when it reall y wasn’t. This concept could also cause fire depar tments to make assumptions on outdated information, especiall y with regard to location of the various reportable materials. [165]

 Annual submissions should be a complete report. Annual submissions should not reflect only changes to previous Tier I and Ti er II reports. This proposal will encourage businesses to report “No Change” to minimize costs associated with inventory reporting. Ultimately , this may

place emergency

responders in very

dangerous situations. [167, 180]

 We would fully

support accepting correspondence from the designated representative of a facility referencing that their Tier II submission has not changed from the previous y ear. However, it would be unrealistic for an LEPC to accept the burden of being responsible to incorporate change s from one y ear to the next through any other means than a Tier II form. Therefore, it is our opinion that changes from y ear to y ear would require a new Tier II submission. In regards to the first option of facilities referencing and attaching a cop y of their previous y ear’s Tier II Submission, we currentl y have two large file cabinets and will be in need of another one to accommodate EPCRA section 311 and 312 submissions next ye ar. For these reasons, it cannot support this ty pe of duplication. [174]51

 E PA should not burden SERCs, L EPCs, and fire departments with finding and incorporating the previous y ears’ reports. As EPA noted, this option increases burden on local entities and public data users. EPA incorrectly suggests that the public’s ability to request information from SERCs and L EPCs will preserve its right

- to

- know. However, the public’s right

- to

- know should not be limited to special requests. Effective electronic reporting would enable facilities to easily incorporate previous submissions int o EPCRA electronic reports. EPA should promote the development of “intelligent” software that enables facilities to automatically incorporate and update previousl y reported information. [097]

 States that use Tier I forms may find this viable. Tier II fo rm users will find it less so. States with state forms that require more information than either of them would find this option less appealing. Less than 5 percent of the forms submitted have virtually no changes. Facilities in Maine are encouraged to r etain copies of each ye ar’s submissions to use for reference purposes, but nearl y all have changes which require updating. A major change occurs each ye ar in the name of the person completing and signing the inventory form(s) from a single facility . The option of incorporating b y reference data submitted in previous y ears assumes the certifier is responsible for the accuracy of prior information they

had no role in developing or knowledge of. The minimal reporting requirements under EPCRA are not suffici ent to provide information necessary

for the development of LEPC emergency response plans. L EPCs are expected to seek additional information from a my riad of sources to accomplish the planning tasks, but they

are volunteer groups often with tenuous leader ship and minimal resources. As a result, many are non - functioning. The importance of sufficient information is vital. Minimizing the reporting requirements may be beneficial to businesses, but it weakens the likelihood that L EPCs are going to effectivel y accomplish the tasks they

are mandated to do. EPA needs to ask if some of these proposed changes benefit the intent of EPCRA for protecting the public by enabling LEPCs to meet their responsibilities. Perhaps minimizing reporting requirements to benefi t business is not the appropriate goal. Business provides the risk to the public by manufacturing, processing, shipping, storing, and using hazardous chemicals and extremely hazardous substances. This reporting is an important accountability responsibili ty . Don’t minimize it. [177]

 When a facility ’s chemical inventory remains the same from the previous reporting y ear, we believe that a letter referencing the previous submittal would be sufficient. I f changes to contacts or owner have occurred, these co uld be stated in the letter. However, if the chemical inventory

changes, that should require an entire new Tier II form, with the changes highlighted, to be submitted. Be aware that letters referencing previous submittals would not be compatible with ele ctronic databases and would require manual updating. If EPA is serious about building electronic databases, this issue of referencing previous submittals by

letter might have to be revisited. [057]

 The approach EPA is taking on this is favorable, but sug gest the incorporation of this guidance into the regulation. L egislation was passed last y ear in California to allow for52

certification of past years inventories. California OES has included the section of the Health and Safety

Code that allows for certif ication for EPA’s review: HSC 25503.3 (c): “Notwithstanding Section 25509, a business may comply with the annual inventory

reporting requirements of this article by submitting a certification statement to the administering agency if both of the followin g apply : (1) The business has previously filed the single comprehensive hazardous material reporting form required b y subdivision (a) or the alternative form designated b y the administering agency pursuant to subdivision (b). (2) The business can attest to the s tatements set forth in paragraphs (1) to (4), inclusive, of subdivision (f) of Section 25501. HSC 25501 (f): “Certification statement” means a statement signed b y the business owner, operator, or officially designated representative that attests to all of the following: i. The information contained in the annual inventory form most recentl y submitted to the administering agency is complete, accurate, and up to date. ii. There has been no change in the quantity of any hazardous material as reported in the most recentl y submitted annual inventory form. iii. No hazardous material subject to the inventory requirements of this chapter are being handled that are not listed on the most recentl y submitted annual inventory form. iv. The most recentl y submitted annual inventory form contains the information required by section 11022 of Title 42 of the United States Code.” Language similar to California’s should be placed into 40 CFR part 370 to allow for the incorporation of previous y ears submission into EPCRA 312 reporting. [L 15]

 The Kentucky SERC retains previous submissions and could accommodate the proposal to report only

changes if the changes are in writing, if certification by the facility

is included, and if the facility submits in writing that there are no changes. However, the effect of this approach on L EPCs may be to create a burden that outweighs the benefits and we request more research on this point by EPA. [L 13]

Agency Response53 At the time of the proposal, States did not have electronic reporting method in place. In order to reduce the burden on facilities re

- creating the same information that they submitted previously

on paper, EPA proposed the option for incorporation of previous submissions. Now that many States have developed electronic reporting me thods or are using Tier2 Submit developed by EPA, the burden on facilities re

- creating information on paper does not exist for many facilities. Facilities can store their Tier II report electronicall y and revise as needed for next year. After reviewi ng the comments, EPA realizes that the option on incorporation of previous submissions may be no longer necessary

since it may

place burden on States and local agencies. Also, since electronic reporting is required in man y States, the burden on facilities to re

- create the information on paper every y ear is reduced.
T hose States that still require Tier II or State equivalent form in paper, may want to consider this option of incorporation of previous submissions. This method may reduce handling hundreds of papers. As stated in the preamble to the proposed rule, States may

or may not choose any

option that is provided to implement the program.

Other comments A few commenters provided other comments on incorporating previous y ear’s forms by referenc e. Several commenters raised questions about the length of time forms must be retained.

 We pride ourselves for being available to facilities requiring assistance when filing under this program. All reports received are reviewed for accuracy and the desi gnated facility emergency

coordinator is contacted when an y discrepancy is detected. Under this program, a facility

that has no changes to emergency contacts or chemical inventory can simply submit the Facility

I dentification Form with ‘No Changes’ indicated in lieu of submitting a report in its entirety . There is no substantial reporting burden under this program. Your whole approach is patterned to ‘provide relief rather than look out for the best interests of emergency responders, emergency

planners, and the general public. I appear to have misunderstood EPA’s role ... or have y ou? [017]

 By eliminating the Dun & Bradstreet number, inventory codes, storage codes, and initiating a sticker for No Change, a more “user friendly” Tier II form would make it easier for everyone to prepare and use.

 Since EPA is soliciting comments, Iwill offer proposals for changes that I believe are beneficial to all who use the Tier II forms. The emergency responders using the forms at an incident shouldn’t have to searc h for information or calculate codes, even if they have Tables I, II and III as a guide. After all, the responders use the Tier II information on incidents, L EPCs must check for accuracy , and the others just file them. [032]54

 While it is appropriate for a facility to reference previous submittals retained by the SERC, L EPC, and the local fire department, the facility making the reference should be required to specificall y describe the document, b y date or other appropriate means, so that the SERC, L EPC, or fire department can easily determine whether they are in possession of the document. A specific description is also critical to public use of the information. [100]

 We agree with the EPA guidance to clarify this option is available for implementation by State and local organizations. It will probabl y not be an effective option. Both options suffer from the same basic problem. Incorporating individual pages or parts of pages from previous reports could prove very confusing to both the designated recipi ents of the data and the public when reviewing the submittals. After several ye ars of updates only , determining a complete set of current information for a facility could even become confusing to the facilit y itself. Realistically, a complete submittal would still be necessary on a set schedule to ensure accuracy of the information. The most significant problem is the lack of specific record keeping requirements. Under section 313, facilities are required to maintain records for a period of 3 ye ars. It would be extremely beneficial if record keeping requirements were specified for other sections of EPCRA. Within the rulemaking, EPA implies that aside from reporting facilities, even SERCS, L EPCs, and fire departments are required to retain reports from prior y ears. If no one is required to maintain records of submissions, how can compliance be evaluated? This also raises another issue. Are public requests only valid for the most recent reporting year? If no one is required to maintain copies of repo rts, it would not be possible to fill public inquiries for an y ye ar other than the most recent reporting y ear? We strongl y recommend that EPA address this issue. For consistency purposes, record keeping requirements similar to those outlined for section 313 should be considered. If recordkeeping requirements were established, option 1 would be relatively eas y to implement. Based on our experience, most facilities are maintaining copies of section 312 submittals any

way . On an annual basis, it is evident that many submittals are simply photocopies of previous submittals with any necessary

changes made and new signatures applied. As more and more facilities move toward electronic reporting, this will become less and less of an issue. When reporting electr onically for the first time, facilities must enter all information into the sy stem. For subsequent y ears, however, the process is simplified. All that is required is updating the previous year data alread y in the computer and downloading a new submission to diskette. [104]

 The issue of how long each part y needs to retain the various EPCRA reports needs to be addressed. CERCLA calls for records generated by a facility concerning the release of a hazardous substance to be kept for 50 ye ars. OSHA requires that records regarding employ ees health be kept for thirty y ears. At a minimum facility Tier II reports and an y written reports generated under section 304 should be subject to the same length of record retention as OSHA. This will greatly aid those of us who are subject to title search55

requests. However, fire departments should not be required to retain the reports for longer than two years. The method of record storage should be open and allow those who wish to store the reports on microfilm or electronically to do so. [129]

 Regarding reporting onl y changes in information rather than submitting a new section 312 inventory

form each y ear, we propose to add the following: “In every ten (10) y ears (U.S. census ye ars may

be good ye ars, e.g., 2000, 2010, 2020, etc.), a new full section 312 inventory

form is required.” This requirement will “force” or remind reporters to compile a refreshed inventory , which will help them maintain accurate and comprehensive data and help regulatory agencies and communities access to accurate and current data. Requiring only changes ye ar after year indefinitely will create a tendency , in the long run, to neglect the comprehensiveness or accuracy of the information. [132, OC

- 3]

 When a facility ’s chemical inventory remains the same from the previous reporting ye ar, a letter referencing the previous submittal would be sufficient. If changes to contacts or owner have occurred, these could be stated in the letter. However, if the chemical inventory changes, that should require an entire new Tier II form, with the changes highlighted, to be submitted. [164]

 The Florida SERC retains previously submitted section 312 reporting information so both suggested options could be implemented at the SERC level. We support the annual subm ission of information, either a full report or a certification of no change. Our experience with EPCRA section 302 facilities that qualify for section 312 reporting exemptions indicates that it is very difficult to maintain current and accurate facilit y i nformation without an annual review, validation, and submission by the facility . [178] Agency Response

For the reasons stated in the previous section , the Agency believes that the option on incorporation of previous y ear’s submission by reference is not necessary since most States have adopted electronic reporting. Facilities can store the data electronically and revise as necessary

. In regards to the comments on recordkeeping, the Agency may look into revising the regulations in 40 CFR part 370 to in clude recordkeeping requirements after notice and comment in a separate rulemaking.
E. Electronic Access to Facilities’ Databases of MSDSs

For those facilities that maintain an electronic database of MSDSs, EPA requested comments if the Agency

should a llow a facilit y to meet the requirement under EPCRA section 311 for submitting MSDSs by giving the SERC, L EPC and local fire department electronic access to the facility ’s database of MSDSs instead of actuall y s ubmitting the MSDSs to each of the three enti ties. EPA sought comments on the feasibility of this option.56 A few commenters supported providing access to a facilit y’s database of MSDSs; some of these commenters asked for a central database that includes all facilities MSDSs. Other commenter oppose d the approach. They noted that many

L EPCs and fire departments do not have capability to access databases electronicall y. Others stated that access would need to be assured even when power outages occur. One commenter stated that this approach would no t meet the requirements of the law. Some commenters said that the issue raises concerns about the securit y of a compan y’s computer systems. Support

 DEP supports this concept, but feels that the facility should also be required to submit to the SERC a co py

of its computer file on diskette or compact disk as a backup in the event that a compan y’s s ys tem becomes unavailable. [058]

 We support electronic access to facilit y MSDSs. These proposals are much needed advancements to streamline the reporting proces s and eliminate confusion. [096]

 We also support EPA’s proposed “guidance” that would allow a regulated facility to submit information to a single database that could be accessed b y the SERC, the LEPC, and the fire department. This step would reduce unne cessary regulatory

burdens and would be consistent with EPA’s desire to reinvent environmental regulation. [116]

 Concur in concept; however, rules and procedures MUST be in place (e.g., lock boxes) to ensure access to information in an emergency and/or wh en there are power disruptions. [122]

 SCJ conceptually

supports the agency ’s exploration of allowing facilities to meet Section 311 MSDS submittal requirements by allowing SERCs, L EPCs, and local fire departments electronic access to a facility ’s MSDS dat abase. SCJ understands that there are a number of issues that need to be further evaluated to ultimately determine the feasibility of this approach. From the facility owners’ perspective, securit y and confidentiality

issues need to be closely examined. However, at this point, we believe the idea deserves further consideration. [138]

 The Oakland Count y LEPC currently has the capability

to access MSDSs through the Internet and would fully

support allowing facilities to maintain electronic databases of MSD Ss instead of forwarding them to the LEPC. As stated above, the continued resources needed for maintaining hard data are astronomical. [174]

 We support this option at the SERC and L EPC level, but caution that all local fire departments may

not have electronic access capabilities. [178]
Oppos e57

 MSDSs from companies are not the best sources of information about a chemical and how to deal with the chemical in an emergency situation because some of the information is not correct. The Association of American Railroads has put together a two volume set of MSDSs for the most common chemicals encountered. This information was pulled together from man y sources and these MSDSs can be used with confidence. The transporters of hazardous chemicals also pay a servi ce group called CHEMTREC, which has MSDSs on file and can connect emergency response to the manufacturer for more information. There is yetanother compan y called 3E Emergency Response Center that has MSDSs on demand. The Department of Health and Human S ervices has a group of medical professionals (ATSDR) that are alway s “on call” for chemical medical emergencies. With all of these sources involved in MSDS information, does EPA need to duplicate this effort? I f EPCRA’s concern is discovery of new inform ation that may be addressed under the TSCA reporting requirements. The only information we reall y want to see from the regulated community is the Tier II report. MSDSs and Tier I reporting are pertinent to the immediate workplace and not necessary to plan emergency

response. We count on labeling and placards to provide the immediate information needed at each specific sight when emergency response is required. We don’t really care that there is one pound of mercury somewhere at the facility and we don’t really

care that this information is in a huge database. [018]

 We oppose this option in lieu of proactive reporting required b y law. It does not constitute a submission of information as required by law. It prevents the establishment of databases that a llow crosscutting anal ys is and the comparison of data from one facility to another. It could interfere with emergency responders’ ability

to access data during power outages caused b y hurricanes, earthquakes, year 2000 computer problems, etc. And it prev ents EPA and states from developing databases that would help them measure their effectiveness (under GPRA, etc.). [097]

 Providing access to a SERC, L EPC, or local fire department to a facility ’s database for MSDSs is unlikely

to streamline reporting by the facility . [105]

 While we do not oppose the Agency providing reporting options to the regulated community , we are concerned that such an option is a first step in the development of a future mandate that all facilities provide electronic access to thei r MSDS database. Such access would be an unwarranted intrusion into the confidential electronic resources of the facility and it potentially

could lead to significant abuse of and tampering with complex sy stems that obviously

contain sensitive business in formation. Therefore, we are strongl y opposed to an y regulatory language that could lead to national or local mandates that would provide outside individuals with unfettered access to a facility ’s confidential environmental, health and safet y database. [1 17a, 117b, 117c, 117d, 117e]

 We oppose the option of allowing commissions or the public access to our electronic MSDS or inventory

databases. Special programming would be required to maintain sy stem security

if access to non

- employ ees is allowed. This c ould be very expensive and potentially

compromise the securit y of our data s ystems. [117]58

 We recommend that EPA consider an alternate solution of establishing a national EPCRA chemical inventory

database into which all companies may enter their data, either b y submitting an electronic file, or b y entering directly via the Internet or other dial

- in mechanism. Once inventories are entered into the national database, SERCs, L EPCs, fire departments, the public, or an y interested organization will be able to view and print the reports. This will ensure consistency across the nation, speed up processing of the information, and make it available to an yone who needs it. This will allow commissions to extract, sort, and report the information to meet their speci fic needs and format. EPA must also consider the time needed to modify computer s ys tems to implement any changes in the final rule. We will need at least two y ears from final ruling to modify computer s ys tems to be in compliance with the recommended chan ges or to identify , purchase and implement a completel y new s ys tem to replace our current database. [139]

 Bad idea because it would require constant contact electronicall y and could be costly to maintain. Even with the Internet, maintaining a 24

- hour open line between the facilit y and regulatory

agencies can be expensive. Few regulatory agencies would be willing to acquire the burden, even fewer facilities will be willing. Also concerns of database securit y and virus protection. Facilities might also have a problem with an outside agency having access to their internal data files. This option is something to be considered when other basic questions of data management have been addressed. [147]

 This may

be acceptable for those with data retrieval capabi lities. Few fire departments in Maine have it. Less than the LEPC’s would have it. Submission of lists of available MSDSs is very

acceptable. Consideration would need to be given to accessibility in situations like fire and power outages. Using the li sts option is more appropriate to reduce reporting burdens. In an emergency situation, accessing data electronically may not be effective or efficient and may not serve to preserve public health and safet y benefits. The proposal would have no impact on the achievement of EPCRA’s environmental goals. Flexible options are necessary for entities without electronic access capabilities. Rewriting the regulations in plain English to reduce regulatory

burden and improve compliance is not an issue. [177] Agenc y Response

S ubmi ssion of MSDSs for hazardous chemicals present at a facility to the SERC, LEPC and the fire department is a statutory requirement

. EPA is only codifying this requirement in 40 CFR part 370. The Agency proposed the option of submission of MSDSs electronically

or providing access to facilities databases of MSDSs assuming that this will reduce burden on regulated communit y. The Agency also realized that this may increase cost for SERCs, LEPCs, and the fire departments since some of these agencies do not have access to computers. After reviewing the comments, the Agency has decided not to require facilities to provide access to their MSDSs databases. As raised by the59

commenters, the Agency

believes that during an emergency situation, a po wer failure may occur which will prevent access to computer databases. The Agency also understands that there is concern about security , unauthorized personnel gaining access into the company ’s internal computer s ys tem.

Other comments

 If electronic ac cess to MSDSs is considered, the information must be completely accessible to Fire Departments, LEPCs, and SERCs. Under present circumstances, a majority of local groups would not have the time, equipment, or training to be completel y accessible to an ele ctronic database. [009, 11, 31, 57, 164]

 In the industry

Iwork for Ihave MSDSs written into Word Perfect and I have a special version of each of the MSDS that can be faxed because the WinFax Pro software messes up the layout of the MSDS. For our subsid iaries to access our MSDSs they

also must have Word Perfect to display the MSDS correctly

and they must have a LaserJet printer to print the MSDS correctl y. I would think that some common software would be required to have electronic access. As stated earlier, MSDSs for chemicals is not a focus of this LEPC. Again, we do not want to spend time accessing data and need the burden to be placed on the reporting entity . [018]

 Allowing the facility

to open its electronic MSDS database in place of submitting h ard copies should be left to the discretion of the LEPC, NOT mandated. [048]

 This would only

be feasible if the SERC, L EPC, and local fire department all have electronic access to the facility database of MSDSs. Many L EPCs and fire departments do not yet have internet capabilit y. This would also create a record keeping problem unless the agency downloaded the MSDS information for their files, and this in turn would shift the reporting burden from the facility to the SERC, L EPC, and fire department. It i s also not clear how a facility would determine which substances exceeded the reporting thresholds and identify this information on the MSDS database. Man y facilities have a very large number of MSDSs and it would be confusing and burdensome if all MSDSs were to be considered the facilit y 311 submission. This would also leave in question how a facility would identify

when the section 311 submission was updated. [061]

 One of the key

issues associated with this option would be the method for notification o f updates. Access to a facility ’s database of MSDSs alone would not appear to fulfill the 311 updating requirements. Unless SERCs, LEPCs, and fire departments were notified that a new chemical was on site above the threshold and a new MSDS was added to th e sy stem, they would not know the new chemical was present unless they periodicall y reviewed the facility ’s MSDS sy stem. It would appear submission of a notification would still be required by60 the facility . This notification by itself would probably

sati sfy the requirement to update a 311 list. As such, all of the facility ’s effort to allow on

- line access to MSDSs would essentially be above and bey ond the legal requirements and thus would not necessarily

be a burden reduction. Access to facility databas es of MSDSs would be beneficial for emergency planning and response organizations. However, it’s questionable whether it would be an effective burden reduction. [104]

 Several of our field sites supported this reporting option, but some expressed concern that providing public access to facilities databases is beyond the scope of the regulatory

requirements and may

pose confidentiality

/securit y concerns. Many of those who do have the capability may not be willing to provide access for fear of unauthorized personnel circumventing the firewall and gaining access into the company ’s internal computer s ys tem. Some of our sites believe that this might be an acceptable means of complying with the Section 311 reporting requirement. MSDSs could be maintained on an external web page with built

- in firewalls, preventing access into other compan y files, databases, etc. But, there are probably not a large number of facilities with this capability . Additionally , if this arrangement is intended to satisfy the Section 31 1 reporting requirements, there should be uninterrupted 24

- hour per day

access to the information. If there were an emergency at the facility (e.g., a fire), the emergency itself could result in a lack of access to the database, possibly at a time when ac cess is most needed. We believe that it could be extremely burdensome for SERCs, L EPCs, and fire departments to access multiple sy stems to get needed information. In addition, a facility ’s MSDS database could potentially include MSDSs for materials no lo nger present at the facility and would not necessaril y identify which chemicals are present above minimum threshold levels. [133]

 EPA’s centrall y controlling one universal database of uniform MSDSs is most desirable, as is developing a s ys tem that looks at MSDSs relative to “real risk.” [140]

 Any proposal for electronic submittal of reporting information via diskette or compact disk must consider format

- possibly a standard software program readil y available and affordable to all jurisdictions. All pert inent information must be included. Information accessible through the Internet presents equipment and personnel problems requiring additional staff time and budget dollars. [151]

 Electronic access to an MSDS database instead of submission of the paper f orms is a useful alternative. Full time access to the database, even under emergency conditions, is a potential stumbling block. Submission of all facility MSDSs on CD

- ROM or disk in a commonly accepted format may

be more useful and would provide full ti me availability

. While most facilities now have computers equipped61 with floppy

disk drives, not all facilities may have CD recordable or rewritable drives. [167, 180] Agency Response

None of the options provided in the draft guidance of the June 199 8 preamble will be required. EPA stated in the preamble that States may choose to adopt any

or all of the options provided , but is not required to do so. EPA understands the concerns raised by commenters about security and the inability to get access to computers during an emergency

situation , such as power failures. EPA stated in the preamble to the proposed rule that the Agency is not requiring this option at this time but only seeking comments whether this option is feasible. The Agency also sought comments whether providing access to facilities’ database would satisfy the requirement under section 311(a)(1), which is submission of MSDSs to the SERC, L EPC and the fire department. The Agency

suggested electronic submission of MSDSs or providing a ccess to a facility ’s MSDS database to reduce the burden on the regulated community and reduce the information management burden on implementing agencies. However, such an approach does raise a number of issues, including whether it would meet the statuto ry requirements under EPCRA section 311. Therefore, the Agency is no longer recommending such an approach in place of the submission of the MSDS forms for hazardous chemicals at the facilit y to the SERC, LEPC and fire departments.

F . E PCRA Section 31 2 Reporting to Fulfill Reporting Requirements u nder Section 311

EPA proposed another option to reduce reporting requirements for facilities. The Agency sought comments whether section 312 reporting can fulfill section 311 reporting requirements provid ed that the reporting conforms to the required time frame and that Tier II information is reported. Section 311 of EPCRA and its implementing regulations require submission of MSDSs or a list of chemicals to SERC, LEPC, and the fire department, within three months after becoming subject to the reporting requirements, or within three months after discovery of significant new information concerning a hazardous chemical that has alread y been reported, or within 30 day s of a request from the SERC, L EPC or the fire department. Section 312 of EPCRA requires a submission of Tier I(or Tier II) to these three entities. Tier I contains general information about hazardous chemicals at the facility . Tier II contains specific information about each chemical simi lar to what is required in an MSDS. Since section 312 submission is due on March 1, normally , a facility may submit Tier I/II between January 1 and March 1 of the following ye ar. Section 312 could be used to meet section 311 reporting for only those fac ilities that become subject to reporting under section 311, or discover significant new information62

concerning a hazardous chemical between October 1 and December 31 of any given calendar year. Since reporting under both section 311 and 312 are to the SERC, L EPC and the fire department, EPA believes that this proposed guidance would not pose any additional burden to these entities. EPA sought comment s from these entities and the regulated community

regarding the usefulness of this option. All but o ne commenter who addressed this issue supported EPA’s proposal. Many states indicated that they alread y use this approach and find that it works well. One commenter objected because it would require reprogramming of company s ys tems.

 Currently , man y stat es require Tier II reporting in lieu of Tier I reporting. We feel industrial establishments, upon receipt of an above threshold limit chemical substance, contact the SERC, L EPC, and local fire department to notify pursuant to section 311 reporting require ments. In this notification questions are raised that are equivalent to Tier II reporting requirements, we have found it more economical to proceed with additional Tier II reporting in lieu of section 311. We believe this is commonplace and voice support for Tier II reporting to satisfy section 311 reporting. [001]

 We agree that the Tier II information should fulfill section 311 reporting requirements. This change would substantially reduce the paper burden of both the SERC and LEPC. [009, 011, 018, 031 , 057, 99, 137, 140, 145, 147, 164, 167, 177, 178, 180, L05]

 We support this change, as it has been found that information received under section 311 is rarel y used, so allowing section 312 to be used instead of section 311 in certain cases would allow th e agency

to utilize its resources in a more efficient manner. [058]

 Wisconsin currently

allows the use of Tier II reporting forms to meet the requirements of section 311. In Wisconsin, facilities using Tier II report forms to meet section 311 requirement s are asked to indicate this on the form. The Tier II forms can be used solel y for this purpose and can be submitted any time of the y ear. Wisconsin Emergency Management has developed sufficient guidance to administer this reporting option. [061]

 Since we cannot accept MSDSs in lieu of Tier II reports, access to such databases would not satisfy

our state law requirements. However, we are aware in fact many facilities track their chemical inventory through electronic databases and this information is use d to develop Tier II reports. Nevertheless, the Branch recommends against allowing such databases to substitute for submission of the Tier II report because requiring such access could greatl y increase the burden on the SERCs, LEPCs, and fire departments. [118]

 This approach has been an EPA policy in the EPCRA Questions and Answers document for several ye ars. We agree with this policy and have been following it without problem. The more significant question with respect to a section 312 submittal fulfill ing the section 311 requirement entails facilities that have neglected a section 311 requirement, but have subsequently

submitted a section 312 submittal for the substance. At that point, has the63

facility then “returned to compliance?” Obviously , the fac ility could be subject to penalties for having violated the section 311 requirement for not submitting the notice within the 3 month time frame required. However, would the facility still be expected to submit a section 311 notice even if the substance ha s been subsequently reported on a section 312 submittal? [104]

 We are strongl y in favor of allowing this substitution of information. The Texas Community

Right

- to

- Know Acts (TCRAs) require a Tier II report for compliance with both sections 311 and 312, but we allow facility owners and operators to submit a streamlined list that meets section 311 requirements, if the report is being submitted for the first time or as an update after March 1. One consistent format such as the Tier II form should be adopted for reporting all information to ensure consistency of information for emergency

planners and responders. Guidance from EPA would help to ensure that facilities submitted forms that would meet the requirements of the TCRAs. [118]

 We support this proposal , as long as the reports are submitted within the 90 day period, or sooner if possible. [119, 129]

 The AZ SERC, L EPCs, and fire departments have already adopted the acceptance of Tier II reports to meet 311 requirements providing the timing of submission is correct. [122]

 We support EPA guidance on this subject. The preamble mentions that because of the 3 month reporting window under section 311, the section 312 report can only suffice for those facilities that become subject to reporting under section 3 11 or discover significant new information concerning a hazardous chemical between October 1 and December 31. However, the time frame is probably much shorter than this since it is unlikely that most facilities will submit their section 312 report on January 1 of the following y ear. Those facilities that submit their section 312 report closer to the March 1 deadline will find this option providing little relief from having to submit a separate section 311 report. However, where the reporting time frames d o overlap, facilities should be able to make use of the section 312 report to reduce the reporting burden. [133]

 If our compan y chose to use this method, it would require programming changes to reference additional product information on the Tier II repor t so that a specific MSDS could be identified b y either our MSDS number or the manufacturer. Again, this entails significant programming costs. We oppose this proposed change, which comes too late in the EPCRA program and provides too little benefit. [13 9]

 Facilities should have the option of continuing to submit a full inventory report each y ear, if such an approach would be more efficient under their existing data management sy stems. We note, however, that these proposals are addressed as draft guidan ce in the preamble but are not fully addressed in the proposed regulatory text. Not all of our members, particularl y smaller companies, have ready access to preamble language. Accordingl y, we urge EPA to address these issues in the regulatory text of the final rule. [L 05]64

Agency Response

After reviewing all the comments, the Agency realize s that most States are alread y implementing this reporting option. In the preamble to the 1998 proposed rule, the Agency

stated that even if the guidance is not final ized, the States may implement any or all of the reporting options suggested in the preamble. EPA encourages those States that have not implemented this option but wish to do so should provide flexibility t o the facilities that may

w ant still want to submi t MSDSs or list of chemicals to all three entities as stated in the regulations in 40 CFR part 370.
States that choose to implement or are alread y implementing this reporting option will need to require facilities to submit a section 312 report three months after acquiring a new chemical in order to be in compliance with the section 311 reporting requirements.
G. Hazardous Chemical Exemption for Solids Under EPCRA Section 311(e)(2)

Commenters endorsed EPA’s proposal on the hazardous chemical exemption fo r solids.

 Revising the solids report would be a good idea, but for emergency planning it might be important to include the aspect of how much molten metal might be involved in a fire. We did have this very

situation occur with smelted zinc and did not have any Class D fire extinguishing equipment to use on the fire. Had we known that the smelting operation existed we would have geared up to handle a metal fire. We agree that no reporting needs to occur if it is improbable that a large enough volume of p articles could be generated to cause an IDLH condition outside the business. We also agree that no reporting be required for a continuous release of particles if the concentration is not enough to cause acute and/or chronic health affects on the community . It would seem that most operations that generated fume or dust on the manufacturing floor would not be a concern to the community . [018]

 DEP supports requiring facilities to consider only the fume or dust given off by a piece of metal for threshold det ermination. Previously , in cases where the metals were handled in a way that would lead to potential exposure, such as welding, EPA required that the entire weight of the metal be considered for threshold determination. DEP agrees that this method has le d to reporting of information that is unnecessary for planning and community

right

- to

- know purposes. [058]

 This clarification is consistent with the interpretation of the law under which Wisconsin Emergency

Management has been operating. [061]

 Regarding the changes for the interpretation of the hazardous chemical exemption for solids, we believe that these changes involve some good “common sense.” We do, however, have a question regarding how flammable solids would be classified.65

Certainly , it would see m that these ty pes of materials would still need to be reported. [098]

 We support this interpretation of the article exemption. The purpose of the article exemption is to exclude from EPCRA reporting those substances which do not pose a risk of adverse h ealth effects because “articles” pose little or no risk of human exposure to the hazardous substances incorporated in them. When a piece of metal is being modified such that it releases fume or dust, only the fume or dust poses a health risk. The piece o f metal that remains intact continues to retain the characteristics of an article. Therefore, the fact that part of the metal has been released in the form of fume or dust does not warrant counting all the hazardous substances in the remaining intact piec e of metal toward the threshold calculation. [099]

 We agree with this EPA proposed guidance. In addition, we recommend that EPA include clarification on this exemption within the regulations. Clarification of this exemption is an excellent example of re lief from routine reporting for substances posing minimal hazards and risk using a consistent, centralized approach. This is preferred over the local case

- by

- case assessment method proposed by EPA within the rulemaking. [104]

 We support the proposed inte rpretation of the exemption. EPA’s current interpretation of this exemption has been that portions of metal stock that are modified such that exposure to a hazardous chemical can occur should be counted to determine the quantity present for threshold purpo ses. It appears that these EPA interpretations are inconsistent with current interpretation for threshold determinations for toxic release inventory reporting under EPCRA section 313. Therefore, for the purposes of consistency , it is recommended that EPA also modify the requirements for reporting under 40 CFR part 372 to be consistent with the proposed interpretation. [106]

 We strongl y support EPA’s proposed reinterpretation of the “solids exclusion” and urge the Agency

to extend this interpretation to E PCRA Section 313. We would very much appreciate the opportunity to meet with the appropriate EPA officials to discuss the adoption of this interpretation under EPCRA section 313. We believe there is no emergency planning or emergency

response benefit fro m reporting based on chemicals in inert solid metal objects. Because of its safe inert qualities, steel is used to construct thousands of articles which people, including children, use on a dail y basis. Steel is not flammable, it is not reactive, it is no t a corrosive agent, and will not emit toxic fumes. Steel is not subject to explode, suddenly release toxic chemicals, or otherwise threaten local communities or emergency response teams. Nor is steel processing a risk

- producing event. According to the American Institute of Steel Construction, even the largest metal fabricators that annuall y cut 200,000 linear feet of 1

- inch steel plate using an oxyacet yl ene torch would only “release” about a pound of total listed metals in the form of “fumes.” An y rele ases from the steel during welding operations would be even smaller. This is because most welding operations do not produce sufficientl y hot temperatures to result in fumes being released from the welded steel. Metalworking fumes quickly condense into me tal dust within the facility ’s66

boundaries. Because metalworking operations ty pically occur inside buildings (often with emission control sy stems), there is virtuall y no potential exposure of the de minimis quantities of “released” metals to emergency resp onse teams or to local residents. In fact, any daily “releases” at the facilit y boundary would be undetectable. Worker exposure to de minimis “releases” from “processing” steel are adequately addressed through OSHA regulations that set permissible exposur e levels and require MSDS notifications. The filing of an EPCRA section 311 notification or an EPCRA section 312 inventory

for steel working operations neither advances the goals of community

right

- to

- know, nor assists local emergency planners or official s. Instead, a substantial regulatory

reporting burden is imposed without any benefit. Accordingl y, EPA should finalize its proposed interpretations of the “solids exclusion.” We believe EPA should extend its new interpretation of the solids exclusion to EPCRA section 313. Metals that remain as solids (not fume or dust) cannot be spilled, ignited, or otherwise be “released” in an y wa y that is potentially harmful to the community . In the proposed rule to amend sections 311 and 312, EPA recognizes that threshold

- based reporting for solids metals) requires the reporting of “unnecessary information” because the community is never exposed to the entire metal stock. The existing threshold quantities for “manufacturing, processing, or otherwise using” solid me tals under section 313 of EPCRA similarly results in over

- reporting without any benefit. Section 313 assumes that facilities that “manufacture, process, or otherwise use” listed substances above certain “activity” thresholds could “release” those chemical s at concentrations that pose dangerous exposures to neighboring communities. Congress established “activity” levels expressed as 25,000 pounds for “manufacturing and processing” and 10,000 pounds for “otherwise use,” regardless of the substance. In estab lishing these activity thresholds, Congress explicitly recognized that EPA may revise thresholds for individual substances or classes of substances (such as metals in the form of solids). See 42 U.S.C. 11023(e)(2). On promulgating the final regulations implementing section 313, EPA recognized that experience would play a vital role in possibly changing reporting thresholds in the future. After “several y ears” of data collection, the Agency contemplated future threshold modifications after considering exposure factors, such as population density, the distance of population from covered facilities, the ty pes of releases, and the “potency” of the listed substance or class of substances. EPA now has a decade of experience on which it can rel y. For the reas ons set forth above, EPA should apply the proposed, expanded interpretation of the “solids exclusion” to section 313 reporting as well as the sections 311 and 312 programs. [117a, 117b, 117c, 117d, 117e]

 We agree that the current interpretation of this ex emption creates an unnecessary burden of reporting for certain industries. EPA’s proposal to require reporting of only threshold amounts of the dust or fume given off a piece of a manufactured solid appears to be reasonable. [118, 119, 129, 122]67

 We agree with the proposed interpretation of the hazardous chemical exemption for solids under EPCRA section 311(e)(2) as drafted. In this case, if a model had been applied, we believe the proposed exemption would be supported b y showing no off

- site or emergency responder exposure potential. [119, 129]

 EPA’s current interpretation of EPCRA section 311 is that all chemicals in an entire solid manufactured item must be counted toward the threshold even if onl y a small part of the solid manufactured item is processe d such that exposure could occur. We strongl y agree with EPA’s determination that this interpretation requires reporting of information that is not necessary

for protection of human health and the environment, and believe that it is not useful to the emer gency planning agencies to which it is provided. Beyond our endorsement of the proposed change for purposes of section 311(e)(2), however, we earnestl y request that EPA extend the reasoning of the draft guideline to section 313 reporting. [130]

 We support the proposed modification on the interpretation of the exemption for solids so that only the amount of fume or dust given off a piece of metal or other manufactured solid that is being modified be subject to EPCRA section 311 and 312. The change could r esult in a reduction in reporting for some facilities. [133]

 We support the proposed interpretation of the article exemption. The purpose of the article exemption is to exclude from EPCRA reporting those substances which do not pose a risk of adverse hea lth effects because “articles” pose little or no risk of human exposure to the hazardous substances incorporated in them. When a piece of metal is being modified such that it releases fume or dust, only the fume or dust poses a health risk. The piece of metal that remains intact continues to retain the characteristics of an article. Therefore, the fact that part of the metal has been released in the form of fume or dust does not warrant counting all the hazardous substances in the remaining intact piece of metal toward the threshold calculation. [137]

 We support the EPA interpretation of the article exemption for solids. Only the amount of fume or dust given off a metal or other solid, as it is modified, should be subject to threshold determinations unde r EPCRA section 311

- 312. The purpose of the article exemption is to exclude from EPCRA reporting those substances that do not pose a risk of adverse health effects. The public and emergency responders are generally familiar with the hazards associated with intact metals. [139]

 We endorse the concept that certain solids should not be reported unless, during modification, a fume or dust results and exceeds a threshold. This will relieve the system of information that is of little value to emergency respond ers and is of questionable value to the public. [140]

 We have no opinion, although this might represent more of a burden to industry to determine the amount of material that is dust or fume as opposed to the total amount of a solid present at the facility at a given time. [147]68

 We support the consideration for EPA interpreting the exemption of hazardous chemicals at EPCRA section 311(e)(2) so that only the amount of dust or fume given off from a piece of metal (or other manufactured solid) be applied toward threshold determination. From our perspective, it makes no sense to have 10,000 pounds of steel undergoing a welding process to count toward threshold determination while the only “release” is welding fumes. From the public perspective, this interpretation will give the public more consistent and meaningful information. [148]

 We concur with EPA’s recommendation regarding the interpretation of the hazardous chemical exemption for solids under EPCRA section 311(e)(2). [167, 180]

 We support the proposed interpretation of the hazardous chemical exemption for solids under EPCRA section 311(e)(2). This will reduce reporting burden. However, the proposal will have no impact on the preservation of public health and safety benefits and the achievement of EPCR A’s environmental goals. Regarding the rewrite in plain English to reduce regulatory burden and improve compliance, the explanation needs to be clear. [177]

 We agree with EPA that chemicals present in solid substances present a minimal risk to the commun ity

and support the proposed interpretation that only fumes or dust given off a piece of metal (or other manufactured solid) be subject to EPCRA section 311 and 312 and applied to threshold determinations. [L 01] Agency Response

As expected, commenters su pported the new interpretation for this exemption. Facilities would only

have to count the amount of fume or dust given off a piece of metal that is being modified toward the threshold determination. In addition, as stated in the preamble to the proposed rule, EPA would like to re

- state that stamping a piece of metal doesn’t negate the exemption for that piece of metal; the piece of metal would still quali f y for the exemption. EPA believes that the stamping of sheet metal does not present exposure to a hazardous chemical. This new interpretation would also appl y to a brick that undergoes a modification process (for example cutting). Facilities would only need to count the amount of fume or dust released during the modification of a brick toward thresho ld determination.69

H. Emergency Planning Notification

Prior to the June 1998 proposed rule, some SERCs and L EPCs have requested EPA to define the term “promptly” in the regulations in 40 CFRR part 355 in reference to providing changes relevant to emergency planning. These entities have requested a time frame, that is, 10, 20, 30 day s. EPA requested comments whether EPA should provide this guidance. Some commenters supported EPA’s proposed use of “promptly” and guidance that 10 to 20 day s would qua lify . Other commenters proposed different time periods, from 7 to 90 day s. A number of commenters noted that each section uses different time periods and sought consistency . A few commenters objected to “promptl y” because it is vague.

 The LEPC does not have any regulatory

authority to force compliance so we proceed at a reasonable pace. I have included a letter to show you what we consider reasonable and can report that this company has still not made any

attempt to file Tier II reports. To define “pr omptly” is probably a moot point. [018]

 Notification that a facility is subject to emergency planning requirements and the name of the facility

emergency

coordinator should be provided to the LEPC. Because the LEPC is charged with writing the emergency p lan, they

should not have to rel y on the SERC for information about which facilities should be included in the plan. [057]

 We reviewed the intended definition “promptly” for emergency planning notification. We agree that the EPA’s belief that 10 to 20 wo rking day s is generally a reasonable amount of time to provide such notice. [98]

 First, we recommend that EPA consider including this information within the regulations to provide clearer guidance to facilities. In addition, consideration should also be given to clarifying the obvious question concerning at what point enforcement action could be taken against a facility

that fails to report “promptly .” Second, there seems to be inconsistency among the various notification and updating requirements. Under the emergency planning requirements, a facility must provide notification within 60 days after the facilit y first becomes subject to the requirement. Under section 311, a facility has 3 months to provide notification after an EHS is brought on site above the threshold, or first exceeds the threshold. Under this newly proposed EPA guidance, facilities would be required to provide notification of changes impacting emergency

planning within l0 to 20 working day s. We recommend that EPA consider the relation ships and overlap among these reporting obligations and attempt to establish consistency

among the required time frames for reporting. [104]

 EPA is proposing to add the term “promptl y” to the requirement that facility owners or operators inform the LEPC o f any changes occurring at the facilit y which may be70

relevant to emergency

planning. We oppose the addition of this term, as it is ambiguous. It is recommended that the EPA provide a 90 day time period for notification. [106]

 EPA has proposed that 10 to 20 working day s is generall y a reasonable amount of time to provide notice, as required under § 355.30 of the existing regulations (§ 355.20 in proposed regulations). This language is being considered as guidance for the term “promptly” in this section. We oppose the addition of the term “promptl y,” as it is ambiguous and do not find the suggested 10 to 20 day interpretation of “promptly” to be reasonable. It is suggested that the EPA codify a 90

- day time period for notification, consistent with past gui dance on this requirement. [106]

 Support EPA’s efforts to clarify the term “promptly” for purposes of updating information that reflects changes relevant to emergency planning and any

information requested b y the LEPC that is necessary for developing or i mplementing the local emergency

plan. API believes, however, that 20 to 30 working day s is generall y a reasonable amount of time to provide such notice, rather than the 10 to 20 working day s suggested b y EPA in the proposal. As the Agency establishes its standard for “promptly ,” API urges the Agency to ensure that the standard is consistent with use of that term in the context of Risk Management Programs (RMPS) under the Clean Air Act. [116]

 With regard to emergency planning information, we recommend that EPA use 10 working day s as an interpretation of promptly supplying requested information to the SERC and L EPCs. [118]

 A time limit is better than an open

- ended guideline. The 10

- 20 day time frame in the suggested guidance may

be inconsistent with the 30 day s provided under section 311 for responding to requests for copies of MSDSs to fulfill public requests. [119, 129]

 With regard to emergency planning notification, pre

- notification of EHSs should be required. An y response for requests and/or change s should be done within a 7 calendar day period. [122]

 The presence of EHSs at a facilit y requires notification by the facility to the SERC and LEPC in the form of a Tier II form with the EHS box checked. EPCRA Section 304 notification is redundant. If a facility has an EHS chemical above TPQs, the appropriate box on the Tier II is marked. We recommend eliminating that superfluous section. Emergency

contact numbers are also listed. [123]

 While we agree that the guidance being suggested by EPA to defin e “promptly” (as 10

- 20 day s) is reasonable, we believe that defining “promptly” as 30 day s would make it consistent with the other 30

- day notifications in the table proposed in § 355.20. Because this is an important definition, this particular definition s hould be codified in the regulations. It would also be consistent with the proposed 30

- day guidance to define “as soon as practicable” for the written release follow

- up notification. Notifications of some changes relevant to a facility ’s emergency planni ng (e.g., naming of a new facility71

emergency

coordinator) would be relativel y straightforward and notification could be expected within 10

- 20 day s, while other notifications might take longer. This could especiall y be the case in responding to a request f or information from an LEPC where the information is not readily available in a content and/or format suitable for the response.Additionally , we suggest that EPA clarify that the 10

- 20 day s are intended to be “working day s” not “calendar day s.” [133]

 We s upport 20 working day s as being sufficiently prompt. [139]

 We endorse guidance on facilities “promptly” providing notice on their coverage under EPCRA section 302 and believe a 10 to 20 working

- day period is appropriate. EPA may want to consider consiste ncy , however, in that the term “working day” is different from any other reporting period (usually “day” or “month”) prescribed in EPCRA. [140]

 We agree that 10

- 20 working day s satisfies the requirement for prompt reporting. [167, 180]

 The term “prompt ly” needs to be clarified. A facility might consider 6 months to be “prompt.” Clarification is needed to for the rewrite in plain English to reduce regulatory burden and improve compliance. [177]

 In reviewing this proposal, we presume that EPA is intenti onally making a distinction between the phrases “promptly” and “as soon as practicable” b y proposing a 10

- 20

- day standard for the emergency planning notification and a 30

- day standard for the emergency

release notification. The emergency planning notificat ion appears to reflect the guidance in EPA’s Enforcement Response Policy for Emergency Preparedness/Right

To

-Know Violations ; however, the emergency release notification timeline conflicts with the enforcement policy ’s application for Section 304 Written F ollow

- Up Reports (Level 3

- Report provided more than seven calendar day s, but less than or equal to 14 calendar day s). We urge EPA to offer guidance consistent with its enforcement policies. [178]

 EPA requests comment on the meaning of “promptly” under § 355.30, which requires notice of an y changes relevant to emergency planning, and any

information requested b y the L EPC that is necessary for developing or implementing the local emergency plan. The preamble to the proposed rule states that “EPA believes that 10 to 20 working day s is generall y a reasonable amount of time...” Instead, EPA guidance should state that 30 day s generally

would be acceptable. This would allow regulated entities, particularl y small companies, adequate time to evaluate the issue s and prepare a submission, and would be consistent with the time otherwise established in the regulations for submission of Tier I information. [L05] Agency Response

As EPA made some revisions recentl y to the emergency planning notification and some o ther revisions in 40 CFR part 355. E PA decided to define the term “promptly” as72

30 day s in 40 CFR 355.20. See the final rule published on November 3, 2008 ( 73 FR65452).
I. Emergency Release Notification

A written follow

- up is to be provided “as soon a s practicable” after a release. EPA requested comments if EPA should define the term “as soon as practicable”. EPA sought comments whether 30 day s should be allowed to provide written follow

- up notice. Commenters generally

supported defining “as soon as practicable,” but differed on whether 30 day s was a reasonable period. Some stated that the period should be shorter (7 or 14 day s) or longer (45 to 90 day s); others supported the 30

- day period. A few commenters noted that 30 day s was inconsistent with EPA’s guidance on enforcement actions.

 The word “practicable” is an acceptable definition. The Wyoming Emergency Management Agency

usually takes all spill calls and is considered to be the agency to which organizations report. The LEPC does not have a staff or a phone number to which to call a spill so EMA has acted in that capacit y. Almost all visible or odiferous releases of chemicals in the community are not hazardous chemicals, but if the release causes community

concern this LEPC does ask for an e xplanation. We might have the company appear before the committee and explain the findings of their incident investigation. To my knowledge, no one has ever voluntarily provided a written emergency release notification to this LEPC. [018]

 It should be “ practicable” to provide the written follow

- up emergency notice within no more than 30 day s. The EPA language should only be amended to state that the phrase as soon as practicable can never be more than 30 days, but less time is more appropriate. As a pr actical matter, when has EPA ever enforced this? Our experience has been that since there are no real requirements for accuracy and truthfulness in the written follow

- up emergency

notice, the intent of the law has been largely skirted by

facilities report ing releases, and in effect, vacated b y EPA. [034]

 We would like to encourage EPA to state unequivocally that 30 day s (although depending on the circumstances, more time may be appropriate) should be considered “as soon as practicable.” In our experience “as soon as practicable” is one of several terms in 40 CFR Part 355 that requires a better definition. EPA’s willingness to state that the 30 day s is a general guideline is appreciated. It would be further appreciated if the agency would state in preamb le language that this guidance is intended to supersede the implied guidance in the EPCRA/CERCLA penalt y policy (OSWER DIR. #99841.2, page 12). The penalt y policy

suggests that “as soon as practicable” could be as little as one week, absent “extenuating c ircumstances.” We would like to encourage the EPA to go further in defining terms used in 40 CFR part 355. Specificall y EPA would provide a service b y giving some guidance around the term immediately

as that term is used to define the period for the in itial EPCRA section 30473

notice. At present, it seems that term is defined by reference to the penalty policy and/or to case law, at least for those who have access to the case law. [059]

 We agree that in the event of a release, it is practicable to provi de a written follow

- up emergency

release notification in no more than 30 day s following the release, although, depending on circumstances, more or less time may be appropriate for the written follow

up notification. [095]

 We reviewed the meaning of “as so on as practicable” for emergency release notification. We agree with the EPA’s belief that generall y this means that notice should be provided in no more than 30 day s. [98]

 We agree with the proposed guidance that it should be practicable to provide a written follow

- up release notice in no more than 30 day s. Delaware has a state release reporting regulation that contains a similar 30

- day requirement for submission of written follow

- up reports. In addition, however, we recommend that EPA consider includ ing this information within the regulations to provide clearer guidance to facilities. Consideration should also be given to clarifying the obvious question concerning at what point enforcement action could be taken against a facility that fails to report “as soon as practicable.” [104]

 EPA has proposed that written follow

- up notice following a release be provided in no more than 30 day s. However, EPA states that “depending on the circumstances, more or less time may

be appropriate.” It is suggested that the EPA provide a 90

- day time period for notification, consistent with past guidance on this requirement. A specific, reasonable time frame avoids confusion on the part of the reporting entit y. [106]

 Agree with the provision to provide written notification within 30 day s of an emergency release. The EPA enforcement and penalty guidance should be made consistent with the 30 day reporting period. [107]

 We also support EPA’s decision to consider clarifyingthe term “as soon as practicable” for purposes of submitting a written follow

- up emergency notice after there has been a release. Instead of a 30

- day time frame, however, we believe the notice should be submitted within 45 day s of the release. [116]

 Ohio statute establishes a 30

- day submission standard for companies to submit letters regarding releases. Currently , we send a reminder letter to companies. This has resulted in very few companies not submitting a response within the allotted time. Therefore, we support the proposal to establish a 30

- da y standard for the release reporting letter. It would also be beneficial to state that “new” information after the thirty day letter should be submitted as soon as possible. Sometimes sample data or inventory data is not available within thirty

day s, but it is important and should be submitted. [119, 129]

 We concur with the proposed timing for emergency release notification; Arizona also requires notification within seven day s as new information is made available. [122]74

 We support the 30

- day guidance be ing suggested by EPA. We believe that this is a sufficient time for a regulated facility to make the follow

- up release notification. [133 139]

 We endorse guidance on the definition of “as soon as practicable” for facilities providing follow

- up informatio n on releases under EPCRA section 304. A 30

- day period is appropriate, given the flexibility noted b y EPA that under extenuating circumstances a longer period may

be necessary . Note should be made that by resolution, the NC SERC has alread y defined “as s oon as practicable” to be 45 day s and can change this resolution if necessary . [140]

 We do not agree with the proposed guidance on the meaning of “as soon as practicable.” EPA states that it does not intend to “define the phrase” b y proposing a set numbe r of day s in guidance. Despite protestations to the contrary , fixing a number of day s in federal guidance will effectivel y do so. As stated in the Proposed Rule, while a 30

- day reporting period may

be appropriate under one set of circumstances, it may cons titute an unjustifiable delay

in another. Policy

considerations would operate against adoption of any fixed number since, under such a policy , a responsible party could simply

wait until the prescribed day

arrives before providing notification. While a re gulatory authority may contest the delay

as unjustifiable, industry will be armed with federal guidance that suggests 30 day s is reasonable. Finall y, a review of the EPA’s Interim Final EPCRA Penalty Policy (January 8, 1998) indicates that a Level 3 Actio n may be directed at a facility that fails to provide written follow

- up emergency notice more than seven calendar day s (but less than or equal to 14 calendar day s) following the release. The proposed guidance would suggest more than four times that period. Currentl y, the company has the burden to show that seven calendar day s was not practicable within which to produce a written follow up report. The proposed guidance would likely shift that burden to a regulatory

agency to argue that 30 day s was an unreaso nable delay . [141]

 Thirty day s seems excessive to wait for the follow

- up emergency notice after a release. This period of time should be brought into line with that required for emergency planning notification. [151]

 Guidance for the timeliness of writt en release notification should encourage rapid notification. A range of 10

- 20 working day s would seem attainable in all but a few extreme releases. [167, 180]

 Maine law specifies 14 day s. This is consistent with our Department of Environmental Protection requirements, and the contents of the report are quite consistent. The proposal will have no impact on the reduction of reporting burdens, the preservation of public health and safet y benefits, the achievement of EPCRA’s environmental goals, and the flexi bility of options. [177]

 In reviewing this proposal, we presume that EPA is intentionally making a distinction between the phrases “promptly” and “as soon as practicable” b y proposing a 10

- 20

- day75

standard for the emergency planning notification and a 30

- d ay standard for the emergency

release notification. The emergency planning notification appears to reflect the guidance in EPA’s Enforcement Response Policy for Emergency Preparedness/Right

To

-Know Violations ; however, the emergency release notification ti meline conflicts with the enforcement policy ’s application for Section 304 Written Follow

- Up Reports (Level 3

- Report provided more than seven calendar day s, but less than or equal to 14 calendar day s). We urge EPA to offer guidance consistent with its e nforcement policies. [178]

 We urge EPA to provide appropriate guidance on the timing of reporting required to be made “promptl y.” [ L0 5] Agency Response

As suggested b y most of the commenters, EPA is defining the meaning of the phrase “as soon as pract icable” to be 30

- day s . That means, a facility should provide the written follow

- up notice after a release to the SERC and the LEPC of an y area or an y State affected b y the release in no more than 30 days.76 List of Commenters Sorted by Organization Type

Comment # Business/Industries

001 Sara Lee Sock Company 015 Badger Mining Corporation 059 Weyerhaeuser 062 Westinghouse Electric Corporation 099 Duquesne Light 105 Coors Brewing Company 106 General Motors Corporation 107 Air Products and Ch emicals, Inc. 109 Chemical Products Corporation 113 Dow

Chemical Company 121 Chevron Corporation 126 Bell Atlantic Corporation 138 S.C. Johnson Wax 139 Duke Energy 148 Norfolk Shipbuilding & Drydock Corporation 153 Reynolds Metals Company 166 Unim in Corporation 176 New

England Electric System Transmission and Distribution Companies 181 Eli Lilly and Company
Environmental and Public Interest Groups
034 Don’t Waste Arizona, Inc. 097 Working Group on Community Right

- to

- Know

Federal Govern ment 133 Department of Energy

LEPCs

– SERCs

– EM As

005 City of Beverly LEPC 006 County of Park

– Emergency Management Agency/LEPC 007 La Porte County Emergency Managing Committee 009 Oklahoma County

– Local Emergency Planning Committee 010 Ri chland County Local Emergency Planning Committee 011 Oklahoma Hazardous Materials Emergency Response Commission 012 City of Kent Fire Department 013 City of Romulus Michigan Emergency Coordinator 014 Charlotte

- Mecklenburg Emergency Management Office 01 6 Turner County LEPC 017 County of Columbiana Local Emergency Planning Committee 018 Laramie County of Wyoming77

020 Decatur Morgan County LEPC 031 Pottaw atomie County Local Emergency Planning Committee 032 County of Park Emergency Management Agency/LE PC 048 Springfield Local Emergency Planning Committee 055 North Central Florida Local Emergency Planning Committee 056 Monroe County Local Emergency Planning Committee 061 State of Wisconsin Emergency Management 096 Harford County Government Local Eme rgency Planning Committee 098 Portage County Local Emergency Planning Committee 100 Jefferson County Local Emergency Planning Committee 103 Trumbull County Local Emergency Planning Committee 112 Williams County Local Emergency Planning Committee 122 Arizona State Emergency Response Commission 123 Monroe County Local Emergency Planning Committee 125 Montgomery/Greene County Local Emergency Response Council 129 Ohio State Emergency Response Commission 129a LEPCs from Stark, Holmes, Wayne, and Carol Counties in Ohio 141 Illinois Emergency Management Agency 143 Honolulu Local Emergency Planning Committee 145 State of Connecticut State Emergency Response Commission 147 State of Maryland Emergency Management Advisory Council Emergency Response Commiss ion 149 Cuyahoga County LEPC 151 City and County of Denver Office of Emergency Management 152 Arapahoe County Sheriff’s Office 164 Cleveland County Local Emergency Planning Committee 165 Cabell/Wayne Local Emergency Planning Committee 167 Fairfax Joi nt Local Emergency Planning Committee 174 Oakland County LEPC L03 Indiana Emergency Response Commission L13 Kentucky Emergency Response Commission L15/OC
- 6 California Office of Emergency Services OC
- 4 Richland County Local Emergency Planning Committee

St ate/Local Governm ent 057 Oklahoma Department of Environmental Quality 058 New

Jersey Department of Environmental Protection 104 State of Delaware Department of Natural Resources & Environmental Control 108 Kansas Department of Health and Env ironment 118 Texas Department of Health 132 Confederated Tribes and Bands of the Yukima Indian Nation 140 North Carolina Department of Crime Control and Public Safety 177 State of Maine Department of Defense, Veterans, and Emergency Management 178 State of Florida Department of Community Affairs

Trade Associations
095 Chemical Manufacturers Association 101 American Forest & Paper Association 110 Kentucky Fertilizer and Agricultural Chemical Association, Inc. 115 Petroleum Marketers Associatio n of America 116 American Petroleum Institute 117a Outdoor Pow er Equipment Institute78

117b Steel Manufacturers Association 117c Specialty Steel Industry of North America 117d National Shipbuilding Research Program 117e Valve Manufacturers Association 119 National Association of SARA Title Three Program Officials 130 American Institute of Steel Construction and Steel Joist Institute 131 American Trucking Association 137 Edison Electric Institute L01 National Grain and Feed Association L04 Petroleum Transportation & Storage Association L05 Synthetic Organic Chemical Manufacturers Association

Citizens
OC
- 2 Radabaugh, Gary L. OC
- 3 Jung, Doo OC
- 7 VeHauun, M. Jerry