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[Federal Register Volume 77, Number 56 (Thursday, March 22, 2012)]
[Rules and Regulations]
[Pages 16679-16688]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-6910]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 355

[EPA-HQ-SFUND-2010-0586; FRL-9651-1]
RIN 2050-AF08

Emergency Planning and Notification; Emergency Planning and List 
of Extremely Hazardous Substances and Threshold Planning Quantities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The U.S. Environmental Protection Agency (EPA or the Agency) 
is taking final action to revise the manner for applying the threshold 
planning quantities (TPQs) for those

[[Page 16680]]

extremely hazardous substances (EHSs) that are non-reactive solid 
chemicals in solution. This revision allows facilities subject to the 
Emergency Planning requirements that have a non-reactive solid EHS in 
solution, to first multiply the amount of the solid chemical in 
solution on-site by 0.2 before determining if this quantity equals or 
exceeds the lower published TPQ. This change is based on data that 
shows less potential for non-reactive solid chemicals in solution to 
remain airborne and dispersed beyond a facility's fence line in the 
event of an accidental release. Previously, EPA assumed that 100% of 
non-reactive solid chemicals in solution could become airborne and 
dispersed beyond the fenceline in the event of an accidental release.

DATES: This rule is effective April 23, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-SFUND-2010-0586. All documents in the docket are listed in 
the http://www.regulations.gov index. Although listed in the index, 
some information is not publicly available, e.g., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, will 
be publicly available only in hard copy. Publicly available docket 
materials are available either electronically http://www.regulations.gov/ or in hard copy at the Superfund Docket, EPA/DC, 
EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The 
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the 
Superfund Docket is (202) 566-0276.

FOR FURTHER INFORMATION CONTACT: Kathy Franklin, Office of Emergency 
Management, Mail Code 5104A, U.S. Environmental Protection Agency, 1200 
Pennsylvania Avenue NW., Washington, DC 20460-0002; telephone number: 
(202) 564-7987; fax number: (202) 564-2625; email address: 
franklin.kathy@epa.gov. You may also contact the Superfund, TRI, EPCRA, 
RMP and Oil Information Center at (800) 424-9346 or (703) 412-9810 (in 
the Washington, DC metropolitan area). The Telecommunications Device 
for the Deaf (TDD) number is (800) 553-7672 or (703) 412-3323 (in the 
Washington, DC metropolitan area). You may wish to visit the Office of 
Emergency Management (OEM) Internet Web site at www.epa.gov/emergencies/content/epcra.

SUPPLEMENTARY INFORMATION: Here are the contents of today's preamble.

I. General Information
    A. Who is affected by this final rule?
    B. What is the statutory authority for this final rule?
    C. List of Abbreviations and Acronyms
    D. What is the background for this final rule?
    E. Summary of Proposed Rule of April 15, 2011
II. Summary of This Action
    A. What is the scope of this final rule?
    B. Applying a TPQ for an EHS Solid in Solution
III. Response to Comments on April 15, 2011 Proposed Rule
    A. Comments Supporting Changes
    B. Comments Supporting Changes With Reservations
    C. Comments Opposing Changes
IV. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Energy Effects
    I. National Technology Transfer and Advancement Act (``NTAA'')
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act

I. General Information

A. Who is affected by this final rule?

    Entities that would be affected by this final rule are those 
organizations and facilities subject to section 302 of the Emergency 
Planning and Community Right-to-Know Act (EPCRA) and its implementing 
regulations found in 40 CFR part 355, subpart B--Emergency Planning. To 
determine whether your facility is affected by this action, you should 
carefully examine the applicability provisions at 40 CFR part 355. If 
you have questions regarding the applicability of this action to a 
particular entity, consult the person listed in the preceding FOR 
FURTHER INFORMATION CONTACT section.

B. What is the statutory authority for this final rule?

    This final rule is being issued under the Emergency Planning and 
Community Right-to-Know Act of 1986 (EPCRA), which was enacted as Title 
III of the Superfund Amendments and Reauthorization Act of 1986 (Pub. 
L. 99-499), (SARA). The Agency relies on EPCRA section 328 for general 
rulemaking authority.

C. List of Abbreviations and Acronyms

ARF--Airborne Release Fraction
CAS--Chemical Abstracts Service
CBI--Confidential Business Information
CERCLA--Comprehensive Environmental Response, Compensation, and 
Liability Act
CFR--Code of Federal Regulations
EHS--Extremely Hazardous Substance
EO--Executive Order
EPA--Environmental Protection Agency
EMA--Emergency Management Agency
EPCRA--Emergency Planning and Community Right-to-Know Act of 1986
FR--Federal Register
HCS--Hazard Communication Standard
ICR--Information Collection Request
LEPC--Local Emergency Planning Committee
LOC--Level of Concern
MSDS--Material Safety Data Sheet
NFPA--National Fire Protection Association
NRC--National Response Center
NTTAA--National Technology Transfer and Advancement Act of 1995
OMB--Office of Management and Budget
OEM--Office of Emergency Management (within EPA)

D. What is the background of this final rule?

    Title III of SARA (EPCRA) establishes authorities for emergency 
planning and preparedness, emergency release notification reporting, 
community right-to-know reporting, and toxic chemical release 
reporting. It is intended to encourage state and local planning for, 
and response to releases of hazardous substances and to provide the 
public, local governments, fire departments, and other emergency 
officials with information concerning potential chemical hazards 
present in their communities. The implementing regulations for 
emergency planning, emergency release notification, and the chemicals 
subject to these regulations are codified in 40 CFR part 355. The 
implementing regulations for community right-to-know reporting (or 
hazardous chemical reporting) are codified in 40 CFR part 370.
    Subtitle A of EPCRA establishes the framework for local emergency 
planning. The statute requires that EPA publish a list of extremely 
hazardous substances (EHSs). The EHS list was established by EPA to 
identify chemical substances that could cause serious irreversible 
health effects from accidental releases (52 FR 13378, April 22, 1987). 
The Agency was also directed to establish a threshold planning quantity 
(TPQ) for each extremely hazardous substance.

[[Page 16681]]

    Under EPCRA section 302, a facility that has an EHS on-site in 
excess of its TPQ must notify the State Emergency Response Commission 
(SERC) and Local Emergency Planning Committee (LEPC), as well as 
participate in local emergency planning activities. Under EPCRA section 
304, the facility owner or operator must report accidental releases of 
EHSs and hazardous substances listed under the Comprehensive 
Environmental Response, Compensation, and Liability Act (CERCLA) in 40 
CFR 302.4 in excess of the reportable quantity (RQ) to their LEPC and 
SERC, and to the National Response Center if the chemical is a CERCLA 
hazardous substance.
    Under ECPRA sections 311 and 312, facilities that have either (1) a 
hazardous chemical present at or above 10,000 pounds or (2) an EHS 
present at or above its TPQ or 500 pounds--whichever is the lesser, are 
required to submit an Emergency and Hazardous Chemical Inventory form 
and a Material Safety Data Sheet (MSDS) for that chemical to their 
SERC, LEPC and local fire department. A chemical is hazardous as 
defined under the Hazard Communication Standard (HCS) of the 
Occupational Safety and Health Act (OSHA).
    In a July 26, 1990 Federal Register notice (55 FR 30632), EPA added 
definitions necessary to designate Indian Tribes as the implementing 
authority of the emergency planning reporting and notification 
requirements and hazardous inventory reporting requirements. Under 40 
CFR 355.61 and 40 CFR 370.66, when a facility is located in Indian 
Country, SERC means the Emergency Response Commission for the Tribe 
under whose jurisdiction the tribe is located. Such a Tribal Emergency 
Response Commission is known as a TERC.
    The purpose of the EHSs list is to focus initial efforts in the 
development of state and local contingency plans. Inclusion of a 
chemical on the EHSs list does not mean state or local communities 
should ban or otherwise restrict use of a listed chemical. Rather, such 
identification indicates a need for the community to undertake a 
program to investigate and evaluate the potential for accidental 
exposure associated with the production, storage or handling of the 
chemical at a particular site and develop a chemical emergency response 
plan around those risks.
1. Regulatory Background
    The list of EHSs and their TPQs are codified in 40 CFR part 355, 
Appendices A and B. EPA first published the EHSs list and corresponding 
TPQs along with the methodology for determining the TPQs as an interim 
final rule on November 17, 1986 (51 FR 41570). In the final rule of 
April 22, 1987 (52 FR 13378), EPA made a number of revisions. Among 
other things, the final rule republished the EHSs list, added four new 
chemicals, and revised the methodology for some TPQs. The final rule 
also defined TPQs for EHS solids in solution, based on comments on the 
interim final rule. Details of the methodology used in determining 
whether to list a substance as an EHS and deriving the TPQs are found 
in the November 1986 and April 1987 Federal Register notices and in the 
technical support documents,\1\ all found in the docket for this 
rulemaking.
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    \1\ Threshold Planning Quantities Technical Support Document, 4-
7-87. Chemicals That Were Assigned Threshold Planning Quantities 
Different From the Calculated Index Value, 4-7-87. Reactive Solids 
Whose Threshold Planning Quantities Should Be Less than 10,000 
Pounds, 4-7-87. Changes Made to Threshold Planning Quantities 
Between Proposed Rule and Final Rule, 4-7-87. Technical Support 
Document for Determination of Levels of Concern, 11-11-86.
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2. Development of Existing TPQs
    The TPQs were initially assigned based on a ranking scheme using a 
Level of Concern (LOC) based on acute toxicity and the potential for 
airborne dispersion. The TPQ methodology is described in detail in the 
``Threshold Planning Quantities Technical Support Document'' dated 
April 7, 1987, which can be found in the docket for this rulemaking. 
For each chemical, a ranking index was calculated which equaled the LOC 
divided by an air dispersion factor (V). Chemicals were assigned TPQs 
of 1, 10, 100, 500, 1000 or 10,000 pounds based on the order of 
magnitude ranges of the index values. For gases, V = 1, while for 
liquids, V was based on a volatilization model using the molecular 
weight and boiling point of the chemical.
    Solid EHS chemicals with a particle size less than 100 microns in 
diameter, molten solids, solids in solution, and solids with a National 
Fire Protection Association (NFPA) reactivity rating of 2, 3, or 4 were 
assigned a V equal to 1. If the EHS solid did not have a particle size 
less than 100 microns, was not molten or handled in solution form, and 
did not have an NFPA reactivity rating of 2, 3, or 4, then the EHS 
chemical was assigned a TPQ of 10,000 pounds, which corresponds to the 
highest index value. Solids with a NFPA reactivity rating of 2, 3, or 4 
are denoted with an ``a'' in the Notes column of the EHSs list. For 
solids in molten form, before applying the TPQ, the amount of chemical 
on-site at any time is multiplied by an adjustment factor of 0.3 to 
conservatively account for the maximum volatilization of the spilled 
molten substance that is likely to take place.
3. Changes to EHS List and TPQs
    EPA has since amended the EHSs list and deleted 51 chemicals. Ten 
chemicals were deleted based on the request of petitioners and the 
remaining 41 chemicals were deleted as a result of Agency review. The 
chemicals were deleted because they did not meet the toxicity criteria 
for the list and/or were originally listed in error. Petitions 
requesting the deletion of two chemicals, paraquat dichloride (which is 
discussed below) and isophorone diisocyante have been denied. 
Isophorone diisocyanate was not deleted from the EHSs list because its 
inhalation toxicity met the EHSs listing criteria.
    EPA has also changed the TPQs for some of the EHSs. In the April 
22, 1987 final rule, EPA reduced the TPQs for 36 substances, while it 
raised the TPQs for 12 substances based on updated acute toxicity data. 
Since then, EPA has lowered the TPQ for muscimol because of a 
typographical error in a prior rulemaking; EPA has raised the TPQ for 
isophorone diisocyanate because it was mistakenly based on a physical 
state of reactive solid, when it is actually a liquid; and EPA has 
denied a petition to raise the TPQs for azinphos methyl and fenamiphos.
4. Petition for Paraquat Dichloride
    Paraquat dichloride was originally listed as paraquat with a CAS 
No. 1910-42-5 on the final EHSs list. ICI Americas submitted a petition 
in October 1989 that requested the Agency to remove paraquat from the 
EHSs list or alternatively, revise the TPQ. On October 12, 1994 (59 FR 
51816), EPA changed the listed chemical name from paraquat to paraquat 
dichloride to match the CAS Number and denied the petition to delete 
paraquat or modify the TPQ, because the inhalation toxicity of paraquat 
dichloride met the EHS listing criteria. Further explanation of EPA's 
rationale for denying the petition can be found in the October 12, 1994 
final rule (59 FR 51816) and in the April 15, 2011 proposed rule (76 FR 
21299) for modifying the application of TPQs for EHS solids in 
solution.
5. Zeneca's Request To Reconsider the Paraquat Dichloride Petition
    In November 1999, Zeneca (formerly ICI Americas) requested that EPA 
reconsider either removing paraquat dichloride from the EHSs list or 
raising

[[Page 16682]]

its TPQ. Zeneca claimed that the form of the chemical used in 
inhalation toxicity tests (temporarily atomized powder under laboratory 
conditions) is not relevant data to use for listing paraquat 
dichloride. Zeneca believed that it was highly unlikely that inhalable 
particles or vapors of paraquat dichloride could become airborne during 
an accidental release. Zeneca did not agree with the rationale EPA used 
to assign a TPQ of 10 pounds to paraquat dichloride, which is only 
manufactured, processed and used in solution form. Zeneca claimed that 
EPA did not explain why a greater potential for airborne dispersion for 
solids in solution exists as opposed to liquid chemicals.
    On October 11, 2000, Syngenta (formerly Zeneca) filed an action in 
U.S. District Court for the District of Columbia under the 
Administrative Procedures Act seeking judicial review of EPA's 
decisions regarding paraquat dichloride. In this complaint, Syngenta 
requested EPA to either delete paraquat dichloride from the EHSs list 
or raise its TPQ. In their complaint, Syngenta did not agree with EPA's 
rationale to assign a lower TPQ of 10 pounds to paraquat dichloride, 
which is only manufactured, processed and used in solution form. 
Syngenta also claimed that EPA did not explain why it assumed a greater 
potential for airborne dispersion for solids in solution, as opposed to 
liquid chemicals. In addition, Syngenta argued that paraquat dichloride 
solution is basically a non-volatile salt dissolved in water, and that 
the physical and chemical characteristics of many solids like paraquat 
dichloride limit their capacity to become airborne.
    On January 23, 2003, EPA filed a Motion for Voluntary Remand in 
order to reconsider the petition. The court granted EPA's motion and 
dismissed Syngenta's complaint on January 31, 2003. By order of 
February 24, 2003, the court denied Syngenta's Motion to Amend 
Judgment. EPA again reviewed the request to delete paraquat dichloride 
and/or to raise its TPQ. In a November 21, 2003, letter to the 
petitioner, EPA reaffirmed its denial to delete paraquat dichloride 
from the EHSs list. EPA concluded that the acute toxicity of paraquat 
dichloride meets the criteria for listing it as an EHS chemical. In the 
same letter to the petitioner (available in the docket), however, EPA 
agreed to consider a revision to the TPQ for paraquat dichloride in the 
context of a proposed rule to amend the TPQ for all EHS chemicals 
handled as solids in solution.

E. Summary of Proposed Rule of April 15, 2011

    In the proposed rule of April 15, 2011 (76 FR 21299), EPA proposed 
that facilities who are subject to the emergency planning notification 
requirements under section 302 of EPCRA, and who have a non-reactive 
solid EHS in solution on-site, should multiply the amount of the non-
reactive solid chemical (in solution form) by 0.2 before determining if 
this reduced quantity equals or exceeds the lower published TPQ. This 
change was proposed based on data in the literature that shows less 
potential for non-reactive solid chemicals in solution to remain 
airborne beyond a facility's fenceline in the event of an accidental 
release. This change affects not just paraquat dichloride solution, but 
all EHS solid chemicals in solution, except reactive solids. The 
application of a reducing factor to the amount of non-reactive EHS 
solids in solution before comparison to its TPQ is similar to how 
facilities apply the TPQs for EHSs that are molten solids, except that 
for molten solids the factor is 0.3.\2\ EPA also defined solution to be 
any aqueous or organic solutions, slurries, viscous solutions, 
suspensions, emulsions, or pastes.
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    \2\ The amount present on-site for EHSs that are in a molten 
form is calculated by multiplying the weight of the chemical by 0.3 
to determine if the lower TPQ is met or exceeded.
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    However, this change will not apply to the 12 solid EHS chemicals 
that are reactive solids (denoted with ``a'' in the ``Notes'' column in 
Appendix A or B of 40 CFR part 355). Reactive solids are more likely 
than other solids to be dispersed into the air due to the energy or 
heat created from their reactivity with water or air. The explanation 
for not assigning a 10,000 pounds TPQ to each of the reactive solids is 
discussed in the document, ``Reactive Solids Whose Threshold Planning 
Quantities Should Be Less Than 10,000 Pounds,'' April 7, 1987, which 
can be found in the docket to this rulemaking.
    Previously, EPA had assumed that 100% of non-reactive EHS solid 
chemicals in solution could become airborne in the event of an 
accidental release. Review of the literature data for accidental 
releases of liquid aerosols shows that no more than 20% of the release 
is expected to remain airborne. The data is from a 1994 U.S. Department 
of Energy (USDOE) report \3\ (available in the docket) on the airborne 
release fraction (ARF) from experimental liquid aerosol releases 
involving metal salt solutions for a wide variety of release scenarios. 
EPA based the 0.2 factor on the scenario with the highest release 
potential in order best to serve the purposes of emergency planning. A 
summary of the USDOE aerosol release scenarios with the highest ARFs 
are listed in a table in the April 15, 2011 proposed rule (76 FR 
21299). A more detailed discussion, along with the alternative 
approaches considered, can be found in the April 15, 2011 proposed rule 
and in the ``Technical Support Document for Revised TPQ Method for EHS 
Solids in Solution'' in the docket for this rule.
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    \3\ DOE Handbook, Airborne Release Fractions/Rates and 
Respirable Fractions for Nonreactor Nuclear Facilities. December 
1994. U.S. Department of Energy, Washington, DC 20585. DOE-HDBK-
3010-94. Volume I--Analysis of Experimental Data and Volume II--
Appendices.
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    EPA's revised TPQ methodology for non-reactive EHS solids in 
solution and supporting data was peer reviewed and the technical 
support document was revised based on peer review comments. The results 
of the peer review and response to peer review comments are found in a 
separate document, ``Peer Review of Technical Support Document for 
Revised TPQ Method for EHS Solids in Solution,'' which is available in 
the docket to this rulemaking. A summary of the peer reviewer's 
comments and EPA responses to them are presented in the April 15, 2011 
proposed rule (76 FR 21299).

II. Summary of This Action

A. What is the scope of this final rule?

    This final rule revises the manner for applying the TPQ for the 157 
non-reactive EHS chemicals that are handled as solids in solution. 
These 157 chemicals appear with two TPQs, (the higher TPQ is 10,000 
pounds) in Appendix A and B of 40 CFR part 355. The 12 solid EHS 
chemicals that are reactive solids are noted by footnote ``a'' in 
Appendix A and B of 40 CFR part 355, and are not affected by this final 
rule. Definitions of reactive and non-reactive solids, which were 
explained in the preamble of the proposed rule, have also been added to 
the regulations in 40 CFR 355.61 for greater clarity.
    Solid EHSs (except reactive solids) have a TPQ of 10,000 pounds or 
a specified lower TPQ, for particular forms. For purposes of complying 
with the emergency planning notification requirements of section 302 of 
EPCRA, facilities should multiply the amount of EHS chemical handled as 
a non-reactive solid in solution on-site by 0.2 before determining if 
this amount equals or exceeds the established lower TPQ. If the amount 
of the non-reactive EHS solids in solution on-site multiplied by 0.2 
does not equal or exceed the lower

[[Page 16683]]

TPQ for that solid EHS, then the facility is not subject to the EPCRA 
section 302 emergency planning notification requirements for that 
substance. This amount includes only the weight of the chemical and not 
the solvent or other chemicals in solution. The amount of non-reactive 
EHS solids in solution may be determined by multiplying the weight 
percent of the EHS solids in solution in a particular container by the 
weight of the total solution. Solutions include aqueous or organic 
solutions, slurries, viscous solutions, suspensions, emulsions, and 
pastes.
    Additionally, EPA has also revised the regulations for 40 CFR 
355.16(c) to be applicable only to molten non-reactive solids. That is, 
the factor of 0.3 to be multiplied by the amount of a molten solid on-
site before comparing to the lower TPQ should only be used for non-
reactive solids in molten form, not reactive solids in molten form. 
Reactive solids are more likely to be dispersed into the air due to the 
energy or heat created from their reactivity with water or air and 
their TPQs were developed taking these factors into account.
    Additionally, the methodology of applying TPQs for non-reactive EHS 
solids in solution or non-reactive molten solids does not affect the 
reporting requirements for sections 311 and 312 of EPCRA (40 CFR part 
370). Regulations under 40 CFR 370.10 state that an EHS is present at a 
facility if the ``amount of EHS present at any one time'' is equal or 
greater than 500 pounds or the TPQ, whichever is lower. The reducing 
factor of 0.2 for non-reactive EHS solids in solution or (0.3 for non-
reactive EHS molten solids) is not to be used for compliance with 
hazardous chemical reporting. Therefore, EPA has amended the text of 40 
CFR 355.16 (b) and (c) to clarify that the reduction in quantity for 
the amount of non-reactive EHS solids in solution and for the amount of 
non-reactive EHS solid in molten form present at a facility does not 
apply for reporting requirements under 40 CFR 370.10, which covers MSDS 
and hazardous chemical inventory reporting. That is, facilities must 
not use the reduction in quantity on-site to determine the ``amount 
present at one time'' for reporting under 40 CFR 370.10.
    The reason why the reducing factors are to be used for emergency 
planning notification under 40 CFR part 355 and not under hazardous 
chemical reporting under 40 CFR part 370 are explained below. Emergency 
planning notification under section 302 helps LEPCs identify those 
facilities whose accidental releases pose risks to the surrounding 
community so they can develop emergency plans that identify the 
location and number of affected populations, evacuation or shelter-in-
place procedures, etc. On the other hand, sections 311 and 312 of EPCRA 
require submission of MSDSs and an on-site inventory of hazardous 
chemicals to help emergency responders assess how to respond to an 
emergency release or fire. In particular, responders need the amounts, 
manner of storage and locations of the chemical on-site, the chemical 
and physical properties, hazard ratings, toxicity information and 
incompatibilities of the chemical, as well as measures needed to 
contain the spill or fire at the facility in order to know how to 
respond to an emergency. In addition, they need to know what type of 
protective equipment is needed to protect them from exposure, not only 
airborne, but also dermal exposure.
    Emergency release notification requirements under EPCRA section 304 
also are not affected by this final action. Section 304 requires 
facilities to notify the community emergency coordinator for the LEPC 
of any area likely to be affected by the release and the SERC of any 
area likely to be affected by the release (defined in 40 CFR 355.61) at 
or above the reportable quantity (RQ) of any EHS or CERCLA hazardous 
substance. If the chemical released is a CERCLA hazardous substance, 
the release must also be reported to the National Response Center 
(NRC). The RQ is not the same as the TPQ. TPQs are based on acute 
mammalian toxicity and potential for airborne dispersion. RQs, on the 
other hand, are developed using several criteria, including aquatic 
toxicity, mammalian toxicity, ignitability, reactivity, chronic 
toxicity, potential carcinogenicity, biodegradation, hydrolysis, and 
photolysis (50 FR 13468, April 4, 1985).

B. Applying a TPQ for an Non-Reactive EHS Solid in Solution

    Facilities with a non-reactive EHS solid in solution should apply 
the 0.2 factor only to the amount of EHS solid present, not the total 
weight of the solution. As an example, a facility has 4,000 pounds of a 
solution of 37% by weight paraquat dichloride on-site. Therefore, this 
solution contains 1,480 pounds of paraquat dichloride (0.37 x 4,000 
pounds). The facility would multiply 1,480 pounds by 0.2, which equals 
296 pounds. This amount is then compared to the TPQ for paraquat 
dichloride, which is 10 pounds. Because this amount exceeds the 10 
pounds TPQ, the facility is required to comply with the emergency 
notification requirements of section 302 of EPCRA. As another example, 
a facility has 10 gallons (gal) of a solution of 37% by weight paraquat 
dichloride on-site. The density of the solution is 9.33 pounds per 
gallon. Therefore, this solution contains 34.5 pounds of paraquat 
dichloride (10 gal x 9.33 lb/gal x 0.37). The facility would multiply 
34.5 pounds by 0.2, which equals 6.9 pounds. This amount is then 
compared to the TPQ for paraquat dichloride, which is 10 pounds. 
Because this amount is less than the 10 pounds TPQ, the facility is not 
required to comply with the emergency notification requirements of 
section 302 of EPCRA.
    Facilities that handle both the powdered and solution forms of a 
particular non-reactive solid EHS will have to consider the quantities 
of each form and the particle size to determine whether they exceed a 
TPQ. Below are several examples of how to apply the revised TPQ methods 
in various cases.\4\
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    \4\ For these examples, the EHS is not paraquat dichloride, but 
an unspecified non-reactive solid EHS that has a lower TPQ of 500 
pounds and a higher TPQ of 10,000 pounds.
---------------------------------------------------------------------------

    Non-reactive solid in solution exceeds lower TPQ, powder below 
10,000 pounds. A facility has on-site 5,000 pounds of a pure EHS powder 
with a particle size equal to or greater than 100 microns, which is 
less than the 10,000 pounds TPQ. However, they also have 1,000 gallons 
of a 35% by weight non-reactive EHS solid in solution with a density of 
9 pounds per gallon. The amount of solids in solution on-site is 3,150 
pounds (1000 gallons x 9 pounds per gallon x 0.35). Multiplying the 
3,150 pounds of solid in solution by 0.2 equates to 630 pounds, which 
exceeds the lower TPQ of 500 pounds. Thus, the facility must report 
under section 302 of EPCRA based on exceeding the lower TPQ for the 
non-reactive solid in solution form.
    Non-reactive solid in solution below lower TPQ, powder exceeds 
10,000 pounds. A facility has on-site 11,000 pounds of a pure EHS solid 
powder with a particle size equal to or greater than 100 microns, which 
is more than the 10,000 pounds TPQ. They also have 2,000 gallons of a 
10% by weight non-reactive EHS solid in solution with a density of 9 
pounds per gallon. The amount of solids in solution on-site is 1,800 
pounds (2,000 gallons x 9 pounds per gallon x 0.10). Multiplying the 
1,800 pounds of solid in solution by 0.2 equates to 360 pounds, which 
is less than the lower TPQ of 500 pounds. Thus, the facility must 
report under section 302 of EPCRA based on exceeding the 10,000 pounds 
TPQ for the solid in powder form.

[[Page 16684]]

    Non-reactive solid in solution below lower TPQ, powder below 10,000 
pounds. A facility has 5,000 pounds of a pure EHS solid powder with a 
particle size equal or greater than 100 microns, which is less than the 
10,000 pounds TPQ. They also have 1,500 gallons of a 15% by weight non-
reactive EHS solid in solution with a density of 9 pounds per gallon. 
The amount of solids in solution on-site is 2,025 pounds (1.500 gallons 
x 9 pounds per gallon x 0.15). Multiplying the 2,025 pounds of solid in 
solution by 0.2 equates to 405 pounds, which is less than the lower TPQ 
of 500 pounds. Thus, the facility is not required to report under 
section 302 of EPCRA because it does not exceed the lower 500 pounds 
TPQ for the non-reactive solids in solution form or the 10,000 pounds 
TPQ for the powder with a particle size greater than 100 microns.
    Powdered product less than 100 microns, processed into solution. If 
the same amount of solid EHS powder were involved as the same scenarios 
above, except the powder has a particle size less than 100 microns, 
then the lower 500 pounds TPQ would apply to the powder instead of 
10,000 pounds. If either the amount of powder or non-reactive solids in 
solution exceeds the lower TPQ, the facility would be required to 
report under section 302 of EPCRA.

III. Response to Comments on April 15, 2011 Proposed Rule

    EPA received comments from three organizations. The number of 
commenters in each group is as follows: Industry, 1 comment; and LEPCs, 
SERCs (or TERCs) and Emergency Management Agencies (EMAs), 2 comments. 
A complete summary of all comments and EPA's response to them is 
presented in ``Response to Comments for Emergency Planning and 
Community Right-to-Know Act; Emergency Planning and List of Extremely 
Hazardous Substances and Threshold Planning Quantities,'' which is 
available in the docket. The major issues and the Agency's responses to 
them are described below.

A. Comments Supporting the Changes

    Comment: One commenter believed that the proposed method better 
reflects the ability of a solid substance becoming airborne. They also 
support not changing the EPCRA section 304 reportable quantities for 
EHSs.
    EPA's Response: We agree with the commenter, as it relates to non-
reactive solids in solution. However, EPA emphasizes that the changes 
proposed (and finalized today) apply only to non-reactive EHS solids in 
solution, not other solid forms, such as powdered solids. EHSs that are 
powdered solids with a particle size of less than 100 microns diameter 
are considered to be as dispersable in air as a gas and are subject to 
the lower listed TPQ in Appendix A or B of 40 CFR part 355. On the 
other hand, EHSs that are powdered solids with a particle size equaling 
or exceeding 100 microns in diameter are subject to the higher TPQ of 
10,000 pounds.
    Comment: Another commenter supported the proposed method because 
they believe the changes can benefit SERCs and LEPCs to allow them to 
better focus their limited resources on those amounts of EHSs that will 
potentially cause the greatest harm. The commenter also thought the 
proposal was consistent with Executive Order 13563, which promotes that 
``analysis of rules that may be outmoded, ineffective, insufficient, or 
excessively burdensome, and to modify, streamline, expand, or repeal 
them in accordance with what has been learned'' (76 FR 3822, January 
21, 2011).
    EPA's Response: We agree with the commenter that the revised 
methodology better aligns the regulatory requirements with the best 
available science. That is, the additional experimental data on aerosol 
releases refines the applicability and development of TPQs for non-
reactive EHS solids in solution because it provides a sounder 
scientific basis for assigning TPQs, and thereby, more accurately 
identifies the forms of solid chemicals that would pose the greatest 
risks if accidently released. We also agree with the commenter that the 
EHSs list and assigned TPQs are intended to help communities focus on 
the substances and facilities of most immediate concern for emergency 
planning and response.
    With respect to E.O. 13563: Improving Regulation and Regulatory 
Review, EPA did not address the application of this Executive Order in 
the proposed rule because OMB review of this action had just been 
completed before the Executive Order was issued in January 2011. 
However, the Agency did include the revisions for the application of 
TPQs for EHS non-reactive solids in solution in its report to OMB, 
``Final Plan for Periodic Retrospective Reviews of Existing 
Regulations'' (the Plan) in response to President Obama's charge in 
Executive Order 13563 for each federal agency to develop a plan for 
reviewing existing regulations. EO 13563 requires the agency to 
``periodically review its existing significant regulations to determine 
whether any such regulations should be modified, streamlined, expanded, 
or repealed so as to make the agency's regulatory program more 
effective or less burdensome in achieving the regulatory objectives.''

B. Comments Supporting the Changes With Questions

    Comment: The commenter notes that the proposed rule states that a 
facility determines the quantity of EHSs ``present'' for solids in 
solution by multiplying the weight percent of non-reactive solids in 
solution in a particular container by the total weight of solution in 
the container, multiplied by 0.2. Under 40 CFR 370.30, a facility must 
submit an MSDS for each hazardous chemical ``present'' at the facility 
that meets or exceeds the applicable threshold level. Under the new 
proposal, it appears the facility may report on the calculated amount 
under the proposed regulation, thus changing the Tier II threshold 
without any discussion or analysis. The commenter strongly urges that 
the language of the proposed regulation address this ambiguity directly 
and clarify its relationship to EPCRA section 312. The commenter 
suggests the following language be added to the proposal in 40 CFR 
355.16(b): This reduction in quantity does not apply to determining the 
threshold for reporting under 40 CFR 370.10.
    EPA's Response: EPA agrees with the commenter that application of 
TPQs for emergency planning and for hazardous chemical reporting should 
be clarified in the regulations to make it clear that the reducing 
factor is not used for compliance with the hazardous chemical reporting 
requirements under 40 CFR 370.10. (See Section II.A of the preamble to 
today's final rule for further discussion on this point.) However, 
rather than say the reduction in quantity does not apply in determining 
the TPQ (``the threshold'' as stated by commenter), EPA has amended 40 
CFR 355.16(b) by stating that this reduction in quantity must not be 
used to determine the amount present at one-time at a facility for 
reporting under 40 CFR 370.10. That is, EPA sets the TPQs, but 
facilities must determine the amount present to compare to the 
threshold.
    EHS solids in molten form also have a reducing factor (0.3) applied 
to the amount on-site before comparing with the TPQ. Therefore, EPA has 
revised the regulation in 40 CFR 355.16(c) to also clarify that this 
reducing factor must not be used to determine the amount present at 
one-time at a facility for reporting under 40 CFR 370.10, which covers 
hazardous chemical reporting. EPA has also revised 40 CFR 355.16(c) to 
limit the application of the 0.3

[[Page 16685]]

reducing factor to be used only for non-reactive solids in molten form, 
not for reactive solids in molten form. Definitions of reactive and 
non-reactive solids, while explained in the preamble of the proposed 
rule, have also been be added to the regulations in 40 CFR 355.61 for 
greater clarity.

C. Comments Opposing the Changes

    Comment: One commenter was concerned with the effect that the 
proposed rule will have on a community's ability to know if a hazardous 
substance is present and prepare for a possible emergency. The proposed 
regulation only considers a release scenario where a non-reactive EHS 
solid in solution form is released via an airborne release. However, 
LEPCs and Fire Departments have to look at all possible scenarios, 
including a possible fire or spill to water. If there is any type of 
emergency, the Fire Department will have to react to the total quantity 
on hand. While there is a great deal of information in the 
administrative record regarding the behavior of airborne releases of 
the subject materials, none of that information suggests that these 
materials are harmless in other accident scenarios.
    EPA's Response: EPA recognizes that the manner in which the TPQs 
for non-reactive EHS solids in solution are being applied does not 
address all environmental media that could be affected by an accident 
release and EPA agrees that materials released via other accident 
scenarios are not harmless. However, the development of TPQs for 
emergency planning purposes under section 302 of EPCRA addresses the 
air release scenario because EPA believes an air release is most likely 
to involve potential exposures to the surrounding community. This air 
release scenario was used to develop TPQs for all EHSs whether they 
were gases, liquids, or solids. EPA is only modifying the approach for 
non-reactive EHS solids in solution to reflect the scientific 
information now available, which shows that an assumption of 100% 
dispersion into the air beyond a facility's fence line affecting the 
surrounding community is overly conservative.
    The TPQs are designed to help State and local officials identify 
those sites where there is a greater potential for harm to the 
surrounding community if a release were to occur, thereby focusing 
resources on priority emergency planning problems (51 FR 41577, 
November 17, 1986.) The approach used for setting TPQs under section 
302 of EPCRA ranks chemicals based on ambient physical state, form and 
the extent to which the material can become airborne and dispersed. 
This approach provides a relative measure of concern rather than 
absolute values and EPA acknowledged when developing the TPQs that 
there is no precision associated with the numbers and they should not 
be construed as ``safe'' (51 FR 41577, November 17, 1986). When the 
TPQs were initially developed, EPA considered an approach based on 
ranking the chemicals on toxicity alone without considering the 
potential for them to become airborne, but this approach was rejected 
because it might distort local planning priorities (see 51 FR 41577, 
November 17, 1986 for further discussion on this point). The Agency 
believes that limited state and local resources should be focused on 
those substances that potentially cause the greatest harm should an 
accidental release occur (52 FR 13390, April 22, 1987).
    Nevertheless, EPA recognizes that Fire departments will need to 
react to the entire quantity on-site. Therefore, the reduction of the 
amount on-site of a non-reactive EHS solid in solution is only allowed 
for emergency planning purposes under section 302 of EPCRA and is not 
to be used for reporting under sections 311 and 312 of EPCRA. 
Accordingly, fire departments will have all the same information as 
before for planning and responding to an accidental release. LEPCs also 
have access to the same information for planning purposes.
    Comment: One commenter was concerned that the proposed change is a 
unique approach to evaluating EHS chemicals and is foreign to LEPCs, 
fire departments and SERCs. For other EHSs, it is not necessary to 
carry around a calculator to evaluate whether the visually obvious 
quantity being stored is actually in excess of the TPQ. For all other 
EHS chemicals, looking at the MSDS and knowing the quantity on hand 
suffices.
    EPA's Response: The approach being finalized today, which revises 
the manner for applying TPQs for non-reactive EHS solids in solution is 
not ``unique''; rather, EPA has already used a similar approach for 
determining the manner for applying TPQs for molten solids (except that 
the amount on-site is multiplied by 0.3). When proposing such an 
approach for molten solids, the Agency received no feedback from LEPCs, 
fire departments or SERCs (or TERCs) that applying this approach is 
problematic. In addition, we would note that quantities of EHSs that 
are stored as mixtures (such as solutions) already require some 
calculation of the total quantity of mixture multiplied by the 
concentration to determine the pounds of pure EHS (see 40 CFR 355.13). 
Adding up various containers and sources of the stored EHSs within a 
facility requires calculation and is already required (see 40 CFR 
355.14). Some calculations for emergency planning should be expected 
and EPA does not believe a further calculation for comparison to a TPQ 
is unnecessarily burdensome. In addition, as noted elsewhere in this 
preamble, the Hazardous Chemical Inventory reports provide the total 
quantities and locations for use by emergency planning and response 
groups, and thus, we believe the information that LEPCs and Fire 
Departments need will still be available to them for emergency planning 
purposes.
    Comment: One commenter was concerned about the burden being 
balanced in this situation: a one-time notice versus the annual or even 
more frequent effort by the LEPC and fire department to evaluate risks 
present in the community. The commenter believes that a release of 
these chemicals is hazardous and undoing 25 years of information 
collection and emergency planning just so a one-time notice can be 
avoided, seems absurd.
    EPA's Response: EPA believes that because most facilities have (or 
should have) already reported the presence of EHSs exceeding relevant 
TPQs to their LEPCs, it is not apparent how this change in requirements 
will require more frequent effort by LEPCs and fire departments to 
evaluate risks. The data already collected by LEPCs, fire departments 
and SERCs (or TERCs) is still available and reporting on hazardous 
chemicals ``aids in the development of state and local emergency 
plans'' (40 CFR 370.1). If an LEPC believes that unreasonable risks are 
still posed for an EHS present at a facility, section 302(b)(2) of 
EPCRA allows a Governor or SERC to designate additional facilities 
after public notice and comment to be subject to the emergency planning 
and notification requirements of section 302 of EPCRA. In addition, 
facilities are still subject to emergency planning notification if they 
handle other EHSs that exceed their TPQs.
    We would also note that EPA did not make this change in reporting 
just so a one-time notice could be avoided. The issue was initially 
addressed due to a lawsuit that challenged, among other things, that 
EPA did not adequately explain the basis for setting the TPQs for non-
reactive EHS solids in solution and did not adequately explain why it 
thought that such solids in solution could be expected to be completely

[[Page 16686]]

dispersed into the air, as compared to gases or powdered solids. EPA 
now believes, based on the studies cited in its technical analysis, 
that the previous assumption that a release of a non-reactive EHS solid 
in solution would be as readily dispersed to air as a gaseous EHS, for 
example, was overly conservative and without a good basis.
    Finally, for all practical purposes, changing the notification 
requirement affects only those facilities who have not yet reported a 
non-reactive EHS solid in solution. Thus, EPA believes that this change 
will allow those planning agencies with limited resources to better 
focus their efforts on those forms of EHSs that are more likely to 
cause the greatest harm. EPA also acknowledges that non-reactive EHS 
solids in solution can be hazardous, but notes that the requirements of 
EPCRA section 302 do not apply to all hazardous chemicals, only a 
subset, such as the limited listing of EHS.
    Comment: One commenter noted that EPA suggested in the proposed 
rule that Tier II reports will still provide adequate information to 
LEPCs and fire departments. The commenter stated that the authority of 
EPCRA section 303(d)(3) does not apply to Tier II reports, which will 
immediately deprive LEPCs of perhaps their greatest asset in emergency 
planning.
    EPA's Response: EPA agrees that the authority of EPCRA section 
303(d)(3) [42 U.S.C. 11003(d)(3)] does not apply to Tier II reports. 
Section 303(d)(3) requires that for each facility subject to the 
requirements of Subchapter I--Emergency Planning and Notification, the 
owner or operator of the facility shall promptly provide information to 
such committee necessary for developing and implementing the emergency 
plan, upon request from the emergency planning committee. Tier II 
Inventory reporting requirements are covered under Subchapter II--
Reporting Requirements of EPCRA [42 U.S.C. 11021-11023].
    EPA believes that less priority can be given for these forms of 
chemicals--that is, a non-reactive EHS solid in solution, based on the 
data that indicates they are not expected to be as dispersed into the 
air in the event of an accident. Other EHSs (such as gases and volatile 
liquids) are in a physical state and form more likely to cause 
potential risks to off-site communities when released. Facilities are 
still covered under section 302 of EPCRA if they have other EHSs that 
exceed the TPQs and thus, may still be required to provide some 
information relevant for emergency planning. Also, for purposes of 
emergency planning, section 302(b)(2) of EPCRA does allow a governor or 
a SERC to designate additional facilities to be subject to emergency 
planning and notification requirements, if such designation is made 
after public notice and opportunity for comment.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under Executive Orders 12866 and 13563 
(76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
Rather, this final rule raises the amount of chemical on-site required 
before triggering emergency planning reporting under 40 CFR part 355 
for non-reactive EHS solids in solution. Facilities with this form of 
EHS chemical would have already (or should have already) reported their 
presence to their SERC (or TERC) and LEPC and identified a Facility 
Emergency Coordinator and necessary information for development of a 
local emergency plan to their LEPC. If, as a result of this rulemaking, 
facilities find that they have a non-reactive EHS solid in solution on-
site which no longer equals or exceeds the TPQ, the facility should 
notify their LEPC. Section 303(d)(2) of EPCRA requires facilities to 
promptly provide to their LEPC any changes relevant to emergency 
planning. Regulations at 40 CFR 355.20 clarify that relevant changes to 
emergency planning should be reported within 30 days. EPA expects that 
this notification will be a minimal burden. The emergency planning 
notification requirement is not required annually. There may be a 
slight burden reduction for facilities that are reporting non-reactive 
EHS solids in solution for the first time under the EPCRA section 302 
requirements.
    The Office of Management and Budget (OMB) has previously approved 
the information collection requirements contained in the existing 
regulations at 40 CFR part 355 under the provisions of the Paperwork 
Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control 
number 2050-0092, EPA ICR number 1395.07. The OMB control numbers for 
EPA's regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's final rule on 
small entities, a small entity is defined as: (1) A small business as 
defined by the Small Business Administration's (SBA) regulations at 13 
CFR 121.201; (2) a small governmental jurisdiction that is a government 
of a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of today's final rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. In 
determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the rule on small entities'' 5 U.S.C. 603 and 604. 
Thus, an agency may certify that a rule will not have a significant 
economic impact on a substantial number of small entities if the rule 
relieves regulatory burden, or otherwise has a positive economic effect 
on all of the small entities subject to the rule.
    This final rule changes the manner by which facilities apply the 
TPQs for those non-reactive EHSs that are solid chemicals in solution 
form. Specifically, facilities with a non-reactive EHS solid in 
solution would be subject to the Emergency Planning requirements of 40 
CFR part 355, subpart B--Emergency Planning only if the amount of non-
reactive EHS solids in solution on-site, multiplied by 0.2 equals or 
exceeds the lower published TPQ. We have therefore concluded that 
today's final rule will relieve regulatory burden for some affected 
small entities and will have no economic impact on the rest of the 
affected small entities.

[[Page 16687]]

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1532-1538 for state, local, or tribal governments or the private 
sector. This action does not impose any new requirements on state, 
local or tribal governments. Facilities currently with non-reactive EHS 
solids in solution on-site have already (or should have already) 
reported these chemicals to their SERC (or TERC) and LEPC and 
identified a Facility Emergency Coordinator and the necessary 
information for developing an emergency plan to their LEPC. We expect 
that this action will neither increase nor decrease the requirements 
for SERCs (or TERCs) or LEPCs. Therefore, this action is not subject to 
the requirements of sections 202 or 205 of the UMRA.
    This action is also not subject to the requirements of section 203 
of UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. This action does 
not impose any new requirements on state, local or tribal governments.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132.
    This action reduces the reporting burden on any facilities that 
would have a non-reactive EHS solid in solution on-site for the first 
time and could be subject to the emergency planning requirements for 
that chemical under 40 CFR part 355, subpart B--Emergency Planning. We 
also expect that this action will neither increase nor decrease the 
requirements for SERCs (or TERCs) or LEPCs. This rule does not impose 
any requirements on state or local governments. Thus, Executive Order 
13132 does not apply to this action.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175, (65 FR 67249, November 9, 2000). This action 
reduces reporting burden on any facilities that would have a non-
reactive EHS solid in solution on-site for the first time and could be 
subject to the emergency planning requirements for that chemical under 
40 CFR part 355, subpart B--Emergency Planning. This action also does 
not impose any new requirements on tribal governments. Thus, Executive 
Order 13175 does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    This action is not subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997) because it is not economically significant as defined 
in Executive Order 12866 and because the Agency does not believe the 
environmental health or safety risks addressed by this action present a 
disproportionate risk to children. This action reduces the reporting 
burden on any facilities that would have a non-reactive EHS solid in 
solution on-site for the first time and could be subject to the 
emergency planning requirements for that chemical under 40 CFR part 
355, subpart B--Emergency Planning.

H. Executive Order 13211: Energy Effects

    This action is not a ``significant energy action,'' as defined in 
Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not 
likely to have a significant adverse effect on the supply, distribution 
or use of energy. Rather, this final rule would reduce reporting burden 
on any facilities that would have a non-reactive EHS solid in solution 
on-site for the first time and could be subject to the emergency 
planning requirements for that chemical under 40 CFR part 355, subpart 
B--Emergency Planning.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless doing so would be inconsistent with applicable law or 
would otherwise be impractical. Voluntary consensus standards are 
technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. NTTAA directs EPA to 
provide Congress, through OMB, explanations of when the Agency decides 
not to use available and applicable voluntary consensus standards.
    This action does not involve technical standards. Therefore, EPA 
did not consider the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order (EO) 12898 (59 FR 7629 (February 16, 1994)) 
establishes federal executive policy on environmental justice. Its main 
provision directs federal agencies, to the greatest extent practicable 
and permitted by law, to make environmental justice part of their 
mission by identifying and addressing, as appropriate, 
disproportionately high and adverse human health or environmental 
effects of their programs, policies, and activities on minority 
populations and low-income populations in the United States.
    EPA has determined that this final rule does not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. That is, based on new information and data, the Agency 
believes that the amount of non-reactive EHS solids in solution that 
would remain airborne from an accidental release into the environment 
will be lower than previously considered, and thus, would have less 
impact on the local community. This in turn will allow SERCs (or TERCs) 
and LEPCs to better focus their attention and limited resources on the 
amounts of EHS chemicals that can potentially cause the greatest harm, 
including those affecting minority or low-income populations, and to 
spend less time and fewer resources on those that pose less harm, when 
released.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A Major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as

[[Page 16688]]

defined by 5 U.S.C. 804(2). This rule will be effective April 23, 2012.

List of Subjects in 40 CFR Part 355

    Environmental protection, Air pollution control, Chemicals, 
Disaster assistance, Hazardous substances, Hazardous waste, 
Intergovernmental relations, Natural resources, Penalties, Reporting 
and recordkeeping requirements, Superfund, Water pollution control, 
Water supply.

    Dated: March 15, 2012.
Lisa P. Jackson,
Administrator.

    For the reasons set out in the preamble, title 40, chapter I of the 
Code of Federal Regulations is amended as follows:

PART 355--EMERGENCY PLANNING AND NOTIFICATION

0
1. The authority citation for part 355 continues to read as follows:

    Authority:  Sections 302, 303, 304, 325, 327, 328, and 329 of 
the Emergency Planning and Community Right-to-Know Act of 1986 
(EPCRA) (42 U.S.C. 11002, 11003, 11004, 11045, 11047, 11048, and 
11049).

0
2. Section 355.16 is amended by revising paragraphs (b) and (c) to read 
as follows:

Sec.  355.16  How do I determine the quantity of extremely hazardous 
substances present for certain forms of solids?

* * * * *
    (b) Solid in solution. Multiply the weight percent of the non-
reactive solid in solution in a particular container by the total 
weight of solution in that container. Then multiply by 0.2.

    Note to paragraph (b):  This reduction in quantity must not be 
used to determine the amount present at one-time at a facility for 
reporting under 40 CFR 370.10.

    (c) Solid in molten form. Multiply the weight of the non-reactive 
solid in molten form by 0.3.

    Note to paragraph (c):  This reduction in quantity must not be 
used to determine the amount present at one-time at a facility for 
reporting under 40 CFR 370.10.

0
3. Section 355.61 is amended by adding in alphabetical order the 
definitions of ``Non-reactive Solid'', ``Reactive solid'' and 
``Solution'' to read as follows:

Sec.  355.61  How are key words in this part defined?

* * * * *
    Non-reactive solid means any substance listed in Appendix A or B of 
this part with two threshold planning quantity values, the higher TPQ 
being 10,000 pounds.
* * * * *
    Reactive solid means any extremely hazardous substance denoted with 
``a'' in the ``Notes'' column in Appendix A or B of this part.
* * * * *
    Solution means any aqueous or organic solutions, slurries, viscous 
solutions, suspensions, emulsions, or pastes.
* * * * *
[FR Doc. 2012-6910 Filed 3-21-12; 8:45 am]
BILLING CODE 6560-50-P
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