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[Federal Register: July 13, 2010 (Volume 75, Number 133)]
[Rules and Regulations]               
[Page 39852-39859]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13jy10-14]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 355 and 370

[EPA-HQ-SFUND-1998-0002; FRL-9168-7]

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Guidance and interpretations.

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[[Page 39853]]

SUMMARY: In this document, the U.S. Environmental Protection Agency 
(EPA or the Agency) is providing guidance on various reporting options 
that States and local agencies may choose in implementing sections 311 
and 312 of the Emergency Planning and Community Right-to-Know Act of 
1986 (EPCRA). In addition, the Agency is also providing some new 
interpretations and revising some existing ones to help facilities 
comply with certain of the requirements under EPCRA.

DATES: Effective Date: July 13, 2010.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-SFUND-1998-0002. All documents in the docket are listed on 
the http://www.regulations.gov Web site. 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, is 
not placed on the Internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically through 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: Sicy Jacob, Office of Emergency 
Management, Mail Code 5104A, Environmental Protection Agency, 1200 
Pennsylvania Avenue, NW., Washington, DC 20460; telephone number: (202) 
564-8019; fax number: (202) 564-2620; e-mail address: 
jacob.sicy@epa.gov. Also, you may 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 site at http://www.epa.gov/emergencies.

SUPPLEMENTARY INFORMATION: Here are the contents of the document:

I. Who is affected by this guidance?
II. What is the background of this guidance?
    A. Statutory
    B. Regulations and Guidance
III. What are the various reporting options for implementing 
Sections 311 and 312 of EPCRA?
    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 Reporting
    C. Electronic Submittal for EPCRA Section 312 Reporting
    D. Incorporation of Previous Submissions Into EPCRA Section 312 
Reporting
    E. Electronic Access to Facility MSDS Database
    F. EPCRA Section 312 Reporting To Fulfill Reporting Requirements 
Under Section 311
IV. Interpretations.
    A. Emergency Release Notification
    B. Hazardous Chemical Exemption for Solids Under EPCRA Section 
311(e)(2)

I. Who is affected by this guidance?

    This guidance is provided to States and local agencies on various 
reporting options that they may choose for implementing sections 311 
and 312 of the Emergency Planning and Community Right-to-Know Act 
(EPCRA). Entities that would be affected by this guidance are those 
organizations and facilities subject to EPCRA and its implementing 
regulations found in 40 CFR parts 355 and 370.

II. What is the background of this guidance?

A. Statutory

    EPCRA, which was enacted as Title III of the Superfund Amendments 
and Reauthorization Act of 1986 (Pub. L. 99-499), (SARA) Title III, 
establishes authorities for emergency planning 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 (EHSs) and to provide the public, local agencies, 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) of any EHS present at their site 
above its threshold planning quantity (TPQ). This information is then 
used by the Local Emergency Planning Committee (LEPC) to develop 
emergency response plans for the community. The implementing 
regulations, EHSs and their TPQs are codified in 40 CFR part 355.
    Section 304 of EPCRA requires facilities to notify their SERC and 
the community emergency coordinator for the LEPC of any release of an 
EHS or a CERCLA hazardous substance above its reportable quantity (RQ). 
The RQs for the CERCLA hazardous substances are in Table 302.4 of 40 
CFR Part 302. The implementing regulations for section 304 of EPCRA are 
codified in 40 CFR part 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, LEPC and the local fire department. The implementing regulations 
for sections 311 and 312 are codified in 40 CFR part 370.

B. Regulations and Guidance

    On June 8, 1998, EPA published a proposed rule (63 FR 31268) to 
streamline the reporting requirements under EPCRA.\1\ Specifically, EPA 
proposed four major regulatory revisions, along with draft guidance to 
provide flexibility to the States and local agencies in implementing 
the EPCRA program. The four proposed regulatory revisions were: (1) 
Higher threshold levels for reporting gasoline 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 from the CFR, as well as some other 
revisions to the forms and instructions; and some minor changes to the 
emergency planning and emergency release notification regulations (40 
CFR part 355). The regulatory provisions for items (1) and (4) were 
finalized on February 11, 1999 (64 FR 7031) and November 3, 2008 (73 FR 
65452), respectively. The regulatory provisions for items (2) and (3) 
may be finalized at a later date.
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    \1\ The regulations were first promulgated in 1987 and amended 
in 1990, 1999 and 2008. See Federal Register Notices April 22, 1987 
(52 FR 13378), October 15, 1987 (52 FR 38344), February 11, 1999 (64 
FR 7031), July 26, 1990 (55 FR 30632) and November 3, 2008 (73 FR 
65452).
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    In addition to the four regulatory revisions, EPA took comment on 
various reporting options to streamline the reporting requirements for 
facilities and to reduce the information management burden for SERCs, 
LEPCs and fire departments in the form of draft guidance in the 
preamble to the June 8, 1998 proposed rule. The main objective of the 
draft guidance was to provide flexibility to the States and local 
agencies in implementing sections 311 and 312. In particular, EPA 
stated that

[[Page 39854]]

States may implement any or all of the reporting options provided in 
the preamble whether EPA finalized the guidance or not. Since the 
proposed rule, many States have adopted at least one or two reporting 
options, such as electronic filing via diskettes or on-line filing of 
the Federal reporting form, Tier II, or the State equivalent form. 
States were always given the flexibility to implement the EPCRA program 
as necessary to meet the goals of EPCRA, which is to prepare for and 
respond to releases of EHSs and to provide the public with information 
on potential chemical risks in their communities. This flexibility 
includes adding 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 any regulatory revisions, but sought comments 
on various reporting options under sections 311 and 312. The reporting 
options discussed were: (1) The use of Underground Storage Tank (UST) 
forms to fulfill the requirements for Tier I Information under EPCRA 
section 312; (2) partnership programs for joint access to EPCRA 
sections 311 and 312 information by SERCs, LEPCs, and fire departments; 
(3) electronic submittal for EPCRA section 312 reporting; and (4) 
incorporation of previous submissions into EPCRA section 312 reporting. 
These four options, the Agency believed, would reduce the information 
management burden for States and local agencies, as well as minimize 
the reporting burden for the regulated community. (See preamble to the 
June 8, 1998 proposed rule for further discussion on the various 
reporting options.)
    EPA also suggested a few other options to streamline reporting and 
revise some existing regulatory interpretations for facilities. These 
additional options, the Agency believed, would also reduce the 
information management burden for States and local agencies. The 
options and suggested interpretations are: (1) Electronic access to a 
facility's databases of MSDSs; (2) interpretation of the hazardous 
chemical exemption for solids under EPCRA sections 311(e)(2); and (3) 
EPCRA section 312 reporting to fulfill the reporting requirements under 
section 311. (See preamble to the June 8, 1998 proposed rule for 
further discussion on the various options and suggested 
interpretations.)
    In the June 1998 preamble, EPA also defined and took comment on 
several terms or phrases used in the regulations. EPA requested 
comments on whether the Agency should provide guidance on the meaning 
of the term ``promptly'' associated with providing notice of any 
changes relevant to emergency planning (40 CFR part 355) and the phrase 
``as soon as practicable'' associated with providing a written follow-
up emergency notice under the emergency release notification 
requirements (40 CFR part 355). The Agency did not intend to revise the 
regulatory requirements, but only to 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 planning is crucial in developing and/or updating 
emergency response plans. As a result, the Agency defined this term in 
the recent final rule published on November 3, 2008 (73 FR 65452). The 
requirement added to 40 CFR 355.20 states that any changes relevant to 
emergency planning must be provided to the LEPC within 30 days after 
the changes have occurred. EPA will define the phrase, ``as soon as 
practicable'' associated with providing written follow-up emergency 
notice under the emergency release notification requirements in this 
guidance.

III. What are the various reporting options for implementing Sections 
311 and 312 of EPCRA?

    EPA requested comments on the draft guidance in the preamble to the 
June 1998 proposed rule (63 FR 31268) in an effort to streamline 
compliance with the reporting requirements. EPA did not propose any 
regulatory changes, but sought comments on the options provided. The 
Agency stated in the 1998 preamble that States and local agencies may 
implement any or all of the options regardless of whether EPA issues 
final guidance, provided the approach adopted met the statutory and 
regulatory requirements.
    In general, commenters supported some of the options provided in 
the draft guidance. However, a few commenters stated that the options 
may actually increase compliance costs and the risk of non-compliance 
at companies with multiple facilities due to the loss of consistency in 
data management and compliance reporting. As noted previously, the 
various reporting options under EPCRA sections 311 and 312 were to 
provide flexibility to the States and local agencies so they may 
implement the program as necessary for their community emergency 
planning and response efforts. States may need to develop specific 
methods to manage the information provided by facilities within their 
State so that LEPCs can develop emergency response plans and provide 
the public with information. Thus, States are not required to adopt or 
implement these options.
    The following is a more specific discussion of each of the 
reporting options and guidance on implementing them.

A. UST Forms To Fulfill the Requirements for Tier I Information Under 
EPCRA Section 312

    At the time of the June 1998 proposal, many States were accepting 
the Tier I inventory form, which contains the minimum information about 
hazardous chemicals at a facility.\2\ Only a few States required the 
Tier II inventory form, which contains specific information about 
hazardous chemicals at the facility.\3\ To provide flexibility, the 
draft guidance offered States the option to allow facilities to use the 
UST form required under the Resource Conservation and Recovery Act 
(RCRA) to comply with the reporting requirements under section 312 of 
EPCRA. This option reduces the reporting burden for those facilities 
that only have USTs on their site containing hazardous chemicals. In 
most cases, these facilities are retail gas stations which usually only 
have USTs that may be subject to the reporting requirements under 
sections 311 and 312. At the same time, in the June 1998 proposed rule, 
EPA proposed to raise the reporting thresholds for gasoline and diesel 
fuel at retail gas stations provided these facilities meet certain 
requirements. EPA finalized the higher reporting thresholds for 
gasoline and diesel fuel on February 11, 1999 (64 FR 7047).
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    \2\ Tier I information provides the general types and locations 
of hazardous chemicals present at the facility during the previous 
calendar year. The Tier I information is the minimum information to 
be provided to be in compliance with the inventory reporting 
requirements. If Tier I information is reported, the hazardous 
chemicals must be aggregated by hazard categories. There are two 
hazard categories and three physical hazard categories for purposes 
of reporting under Tier I. These five hazard categories are defined 
in 40 CFR 370.66.
    \3\ Tier II information provides the specific amounts and 
locations of hazardous chemicals present at the facility during the 
previous calendar year.
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    A few commenters supported the use of the UST form to fulfill the 
section 312 requirements, but most opposed it. These commenters argued 
that it would be confusing and burdensome for LEPCs and fire 
departments and would make electronic filing more difficult. Some of 
these commenters also stated that the differences in information and 
filing schedules would make this approach

[[Page 39855]]

inappropriate. Other commenters argued that EPA's approach would not 
result in streamlining and that EPA should eliminate duplicative 
reporting, not duplicative forms. These commenters also questioned the 
need for the approach because most States require the Tier II form and 
the higher reporting thresholds for gasoline and diesel fuel will 
remove most of the facilities subject to UST reporting from Part 370.
    The Tier I inventory form provides the minimum information required 
under EPCRA section 312 and its implementing regulations. When the 
proposed rule was published in June 1998, some States were accepting 
the Tier I form. However, all States now require facilities to submit a 
State specific form or the Federal Tier II inventory form. Therefore, 
use of the UST form as suggested in 1998 may not be beneficial for 
implementing agencies. Additionally, EPA expected that the UST form 
would be used instead of the Tier I form mainly by retail gas stations 
since they likely only have underground storage tanks containing 
hazardous chemicals. Since EPA raised the reporting threshold for 
gasoline and diesel fuel stored at retail gas stations on February 11, 
1999 (64 FR 7047), most retail gas stations may not need to report. 
Therefore, the Agency's guidance is that the use of the UST form as a 
replacement of the Tier I form for reporting under EPCRA section 312 is 
not recommended.

B. Partnership Programs for Joint Access to Information and Streamlined 
Submission of EPCRA Sections 311 and 312 Reporting

    To streamline the submission process, EPA suggested in the draft 
guidance that SERCs, LEPCs, and fire departments could partner together 
and agree that one agency would receive the section 311 and 312 
reporting information and make it available electronically to the 
others. Although the statute and its implementing regulations in 40 CFR 
part 370 state that facilities are required to submit their MSDSs or 
chemical lists under section 311 of EPCRA and the Tier I or Tier II 
form to their SERC, LEPC and the local fire department, EPA believed 
the single point submission option satisfies the intent of the statute 
and its implementing regulations. If implementing agencies choose to 
use this option, EPA stated that they should ensure that all statutory 
and regulatory requirements are met, especially the deadline for 
submission.
    Many commenters supported the idea of partnerships to allow filing 
of information to a single point. Other commenters, while supporting 
this approach, cited problems. For example, many LEPCs and fire 
departments do not have access to computers or the Internet. A few 
commenters also stated that they provide compliance assistance to 
facilities and a centralized compliance point would take away this 
working relationship.
    The Agency suggested the single point submission to reduce the 
burden on the regulated community, as well as reduce information 
management burden on some implementing agencies. For example, a SERC 
could develop a reporting format for facilities to submit the Tier II 
form or an equivalent State form. The SERC could collect the 
information and then make it immediately available electronically to 
LEPCs and fire departments on-line. Electronic access eliminates 
searching through hundreds of papers during an emergency situation. If 
LEPCs and/or fire departments do not have the capability to access the 
information on-line, then the SERC could provide the information to 
these entities on diskettes or in hard copy.
    At the time of the June 1998 proposed rule, only a few States were 
accepting the Tier II form or the State form electronically. Today, 
many States have developed their own electronic reporting system or are 
using EPA's Tier II reporting system (Tier2 Submit). Most of these 
States accept section 312 reports on-line. EPA encourages these States 
to explore ways to provide their LEPCs and fire departments joint 
access to the information. EPA also expects that today most LEPCs and 
fire departments can accept or access section 312 reports 
electronically.
    EPA realizes that a lack of funding may limit a State's capability 
to set up a partnership or to develop database systems and access to 
information. Since the EPCRA program has matured over the past ten 
years, many States have established program funding mechanisms through 
reporting fee systems, Federal grants, etc. EPA encourages States to 
use these mechanisms to provide the necessary resources to develop a 
database system and access to information for LEPCs and fire 
departments.
    Although States have the flexibility to choose any method for 
submittal and joint access to information, that method must meet the 
March 1 reporting deadline specified in the statute. To ensure this 
deadline is met, States may want to revise their right-to-know program 
regulations to require facilities to submit the Tier II form or State 
equivalent before March 1 to allow enough time for processing and 
access by LEPCs and fire departments by March 1. If States choose to 
implement a partnership program for sharing of information, we believe 
that a formal agreement is necessary between the three entities. States 
should then notify the facilities about this agreement and the new 
submission process. That is, States should inform the facilities that 
they can submit their section 312 report to the SERC and it will 
provide access to the LEPC and the fire department.

C. Electronic Submittal for EPCRA Section 312 Reporting

    Since the beginning of EPCRA, the Agency encouraged States to 
implement the EPCRA program as necessary to meet its goals: to prepare 
for and respond to emergency releases of extremely hazardous substances 
and provide information to the public on potential chemical risks in 
their communities. States have the flexibility to tailor the program to 
their needs by adding chemicals or setting lower reporting thresholds, 
etc. Over the years, States have reported that their biggest burden is 
handling thousands of paper Tier I/II form submissions. Some States 
requested that they be allowed to create an electronic reporting format 
for facilities to use to comply with EPCRA section 312. Electronic 
reporting would reduce the burden on facilities since they need to 
enter most of their information on the Tier II form only in the first 
year and then revise it as needed in subsequent years. As discussed in 
the previous section, electronic reporting makes joint access easier.
    Many commenters supported electronic submittals, but noted that it 
would not be practical for many LEPCs, fire departments, and smaller 
facilities since they likely don't have the capability. Other 
commenters opposed the idea because of the financial burden on State 
and local agencies. Still other commenters supported electronic 
reporting and provided ideas for certification of electronic 
submissions.
    The Agency understands the concerns raised by commenters on 
electronic reporting. Prior to the June 1998 proposed rule, many States 
and local agencies requested that the Agency develop an electronic 
reporting system to reduce the burden of information management at the 
State and local level. Some State and local agencies asked that they be 
allowed to develop their own electronic reporting format. This is why 
EPA suggested in the draft guidance that States and local agencies have 
the flexibility to choose any reporting options provided the statutory 
and regulatory requirements are met.

[[Page 39856]]

EPA has since developed and offered States an electronic reporting 
system--Tier2 Submit electronic reporting software. Many States also 
have created electronic reporting formats and require on-line reporting 
or submission via diskettes. Only a few States accept paper Tier II 
report submissions. EPA recognizes that there may be facilities that do 
not have the capability to submit Tier II forms electronically. EPA 
encourages States and local agencies to allow these facilities to 
submit paper copies of their Tier II report, unless the States make 
arrangements to collect and provide the data to LEPCs and the fire 
departments.
    Recently, many States requested guidance on electronic signatures 
and certification of electronically submitted information. Currently, 
the regulations in part 370 require the facility owner or operator (or 
the officially designated representative of the owner or operator) 
submit a certification statement with their hazardous chemical 
inventory form containing an original signature that the information 
submitted is true, accurate and complete. The June 8, 1998 draft 
guidance stated that the States and local agencies may continue to 
develop their own reporting format, including electronic reporting as 
long as the information required includes the information required by 
the statute and its implementing regulations and that certification is 
required regardless of the format in which it is submitted. The draft 
guidance also stated that if States and local officials allow section 
312 reporting information to be submitted via the Internet, it will be 
necessary for the facility owner or operator or its officially 
designated representative to certify the information submitted.
    At the time the draft guidance was published in June 1998 Federal 
Register, on-line submittal and certification options were not 
available for reporting under section 312. Recently, States and the 
regulated community requested that EPA provide guidance on how the 
original signature requirement stated in 40 CFR 370.41 and 370.42 could 
be met if facilities submit the hazardous chemical inventory form on-
line.
    EPA advises States and the regulated community that for electronic 
section 312 reporting, the original signature as required by 40 CFR 
part 370 may be provided on paper (i.e. a ``wet'' signature) or by 
electronic certification according to requirements established by the 
State. (Memorandum from Debbie Dietrich to EPA Regional Superfund 
Managers on Electronic Reporting and Signature under EPCRA Section 312, 
July 30, 2009. This memorandum is available on the Agency's Web Site at 
http://www.epa.gov/emergencies). States have the flexibility to use any 
system for collecting chemical inventory information under section 312 
and to establish the means to ensure the information is true, accurate, 
and complete so they may effectively and efficiently manage chemical 
risks and provide information to the public. Facilities that submit the 
hazardous chemical inventory form and certification on-line, do not 
need to also submit a certification statement on paper unless the State 
and local agencies require it. EPA encourages facility owners and 
operators to contact their State and local agencies for the reporting 
requirements in each State. The regulated community and the 
implementing agencies may visit the Agency's Web site at http://www.epa.gov/emergencies for Federal reporting requirements and access 
to each of the State Web sites.

D. Incorporation of Previous Submissions Into EPCRA Section 312 
Reporting

    Under EPCRA section 312, facilities are required to submit a Tier I 
form or, if requested, a Tier II form annually to the SERC, LEPC and 
the fire department even though the information submitted in a previous 
year has not changed. To reduce the burden on facilities that have no 
changes in their data from the previous year's submission, EPA 
discussed several options in the June 1998 preamble for meeting the 
requirements under EPCRA section 312 without having to re-create the 
information.
    One approach suggested in the draft guidance would be for the 
facility to simply reference and attach a copy of the unchanged 
information from the previous year's submittal to the current year's 
submission. This would mean that the facility would have to retain a 
copy of its previous submission. A second approach would be for the 
facility to reference previous submittals already retained by the SERC, 
LEPC and local fire department. A third approach would require 
reporting only if the information changed.
    Some commenters opposed the option to require reporting only when 
changes have occurred. Few commenters supported the idea of simply 
referencing and/or attaching a copy of the unchanged information. They 
stated this approach could increase the burden on implementing agencies 
because they would need to maintain and reference previous years' 
files. These commenters also stated that facilities probably would 
forget to report and could consider some changes unimportant.
    At the time the various approaches were discussed in the preamble 
to the June 1998 proposal, States did not have electronic reporting 
methods in place. Now that many States have established electronic 
reporting or are using the Tier2 Submit software developed by EPA, the 
burden for facilities to re-create information on paper does not exist 
for most facilities. Facilities can store their Tier II report 
electronically and revise as needed for subsequent years. Therefore, 
EPA is no longer suggesting that facilities be allowed to incorporate 
previous submissions as part of the EPCRA section 312 reporting 
requirement since it is unlikely to reduce the reporting burden. 
However, States that still require submission of a facility's Tier II 
or State equivalent forms on paper may still consider options for 
incorporation of previous submissions to reduce the paperwork burden.

E. Electronic Access to Facility MSDS Database

    Some facilities maintain an electronic database of MSDSs for the 
hazardous chemicals on their site. EPA requested comments whether a 
facility should be allowed to give the SERC, LEPC and the local fire 
department electronic access to its MSDS database instead of actually 
submitting the MSDSs to the three entities as required under EPCRA 
section 311.
    A few commenters supported this option and some asked for 
development of a central database that would include MSDSs from all 
facilities. However, other commenters opposed the approach for a number 
of reasons, such as it would raise concerns about the security of a 
company's computer systems, it would not meet the requirements of the 
statute, as well as the fact that many LEPCs and fire departments do 
not have the capability to access databases electronically. Still other 
commenters stated that access would need to be assured even when power 
outages occur.
    Submission of MSDSs for hazardous chemicals present at a facility 
to the SERC, LEPC and the fire department is a statutory requirement. 
EPA has codified this requirement in 40 CFR part 370. The Agency 
suggested electronic submission of MSDSs or providing access 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 statutory

[[Page 39857]]

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 facility to the SERC, LEPC 
and fire departments, except as discussed elsewhere in today's notice.

F. EPCRA Section 312 Reporting To Fulfill Reporting Requirements Under 
Section 311

    EPA's draft guidance suggested another approach to reduce the 
reporting requirements for facilities. Specifically, the Agency sought 
comments on whether the section 312 reporting requirement can fulfill 
the section 311 reporting requirements provided that the section 312 
reporting conforms to the required time frame and that the Tier II 
information is accurate and complete. Since reporting under both 
sections 311 and 312 are submitted to the SERC, LEPC and the fire 
department, this approach should not pose any additional burden on 
these entities.
    Section 311 of EPCRA and its implementing regulations require the 
submission of MSDSs or a list of hazardous chemicals to the SERC, LEPC, 
and 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 
already been reported, or within 30 days of a request from the SERC, 
LEPC or fire department. Section 312 of EPCRA requires a submission of 
a Tier I (or Tier II) form to these three entities by March 1 of each 
year. Since the section 312 report is due by March 1, for information 
from the previous calendar year, some facilities may submit their Tier 
I/II form between January 1 and March 1. Therefore, Section 312 could 
be used to meet the section 311 reporting requirements for those 
facilities that become subject to reporting under section 311, or 
discover significant new information concerning a hazardous chemical 
between October 1 and December 31 of any given calendar year.
    All but one commenter who addressed this issue supported EPA's 
draft guidance regarding this matter. Many States indicated they 
already use this approach and find that it works well allowing them to 
utilize its resources in a more efficient manner. One commenter 
objected because it would require reprogramming of company systems.
    After reviewing the comments, the Agency, recognizing that some 
States are already implementing this reporting option, is retaining 
this option in this final guidance. However, those States that choose 
to implement or are already 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.

IV. Interpretations

A. Emergency Release Notification

    In addition to providing draft guidance to the implementing 
agencies for various reporting options under EPCRA section 312, EPA 
also provided draft guidance to the regulated community on defining 
certain terms and phrases used in the regulations. In the June 1998 
proposed rule, EPA requested comments on the Agency's interpretation of 
the meaning of the term ``promptly'' in section 355.20 and the phrase 
``as soon as practicable'' in section 355.40. The Agency did not intend 
to revise the regulatory requirements, but only to provide guidance for 
these two terms.
    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 planning 
is crucial in developing and/or updating emergency response plans. 
Therefore, to be consistent with EPCRA section 303(d)(2), the Agency 
proposed to add the term ``promptly'' to the regulations in 40 CFR 
355.20 associated with providing the LEPC with notification of any 
changes occurring at the facility which may be relevant to emergency 
planning. Commenters supported this revision, but suggested that the 
Agency provide a specific time period, such as 10, 20 or 30 days 
because of the need for this information for emergency planning. As 
previously noted, the final rule published on November 3, 2008 (73 FR 
65452) revised 40 CFR 355.20 to state that any changes relevant to 
emergency planning must be provided to the LEPC within 30 days after 
the changes have occurred.
    EPA also requested comments on whether the Agency should provide 
guidance on the meaning of the phrase ``as soon as practicable'' under 
the emergency release notification in 40 CFR 355.40, which states (at 
40 CFR 355.40(b)) that a written follow-up emergency notice must be 
provided by a facility ``as soon as practicable'' after a release. EPA 
sought comments on whether 30 days should be allowed to provide a 
written follow-up notice.
    Commenters generally supported defining ``as soon as practicable,'' 
but differed on whether 30 days was a reasonable period. Some 
commenters stated that the period should be shorter (7 or 14 days) or 
longer (45 to 90 days), while other commenters supported the 30-day 
period. A few commenters noted that 30 days was inconsistent with EPA's 
guidance on enforcement actions.
    Based on the comments and EPA's evaluation, the Agency has decided 
that 30 days should be sufficient to submit the written follow-up 
notice of the emergency release to the SERC and LEPC. The Agency will 
be revising its enforcement response policy to reflect this change. 
States may implement a more stringent timeframe if they so choose.

B. Hazardous Chemical Exemption for Solids Under EPCRA Section 
311(e)(2)

    EPCRA section 311 provides some exemptions for certain substances 
from the definition of hazardous chemical. Under section 311(e)(2), 
``any substance present as a solid in any manufactured item to the 
extent exposure to the substance does not occur under normal conditions 
of use'' is exempt from the definition of hazardous chemical and 
therefore need not be reported under sections 311 and 312. However, 
EPA's interpretation of this exemption has been that if portions of the 
solid metal are modified, such that exposure to a hazardous chemical 
can occur, then all of the solid metal should be included and counted 
to determine the quantity of hazardous chemical present for threshold 
purposes. For example, if there are 10,000 pounds of steel undergoing a 
welding process at a facility at any one time, then 10,000 pounds would 
need to be counted toward the quantity for threshold determination even 
if only a portion of the steel is welded. EPA believes this 
interpretation occasionally requires reporting of information that is 
unnecessary for emergency planning and community right-to-know 
purposes. To relieve the burden for facilities and to relieve the 
burden on information management for implementing agencies, the Agency 
suggested that this interpretation be modified in the preamble to the 
June 1998 proposed rule. Under the new interpretation, facilities would 
only have to include and count the amount of fume or dust emitted or 
released from a manufactured solid that is being modified to determine 
whether the EPCRA sections 311 and 312 reporting thresholds have been 
reached. EPA requested comments on this new interpretation and

[[Page 39858]]

commenters generally supported this new interpretation for this 
exemption.
    Based on the comments provided by the regulated community and the 
implementing agencies, EPA is revising its interpretation for the 
exemption for solids under section 311(e)(2), such that facilities 
would only have to include and count the amount of fume or dust given 
off a piece of metal that is being modified toward the threshold 
determination. In addition, as EPA stated in the preamble to the June 
1998 proposed rule, stamping a piece of metal doesn't negate the 
exemption for that piece of metal; the piece of metal would still 
qualify for the exemption. EPA believes that the stamping of sheet 
metal does not present exposure to a hazardous chemical.
    This new interpretation would also apply to bricks or any other 
manufactured solid item that undergoes a modification process (for 
example, cutting). Thus, facilities would need to count the amount of 
fume or dust released during the modification process toward the 
threshold determination.
    These interpretations are provided as guidance. States may 
implement more stringent requirements if they so choose.
    The Agency realizes the format for this guidance is different from 
the usual EPA format. Since the Agency requested comments on the 
various reporting options and interpretations, we decided to publish 
the guidance in the Federal Register to address the comments. A fact 
sheet that includes all the elements in this guidance is available on 
the Agency's Web site at http://www.epa.gov/emergencies.

                    Summary of the Reporting Options
------------------------------------------------------------------------
            Reporting Option                         Guidance
------------------------------------------------------------------------
Use of UST Forms to Fulfill the          Since all States now require
 Requirements for Tier I Information      facilities to submit Tier II
 under EPCRA Section 312..                or State equivalent forms,
                                          this reporting option is no
                                          longer useful.
Partnership Programs for Joint Access    States may implement this
 to Information and Streamlined           approach, but the statutory
 Submission of EPCRA Sections 311 and     and regulatory requirements
 312 Reporting. If a single point         must still be met. That is,
 submission is allowed for facilities,    all three entities get access
 then one agency would receive the        to section 312 information by
 information and provide access to the    March 1 annually.
 other two agencies..
Electronic Submittal and Certification    States may require
 for EPCRA Section 312 Reporting.         facilities to submit
                                          information using Tier 2
                                          Submit, the Federal electronic
                                          reporting format or the State
                                          equivalent electronic
                                          reporting format.
                                          Those facilities that
                                          do not have capability to file
                                          electronically should be given
                                          the option to file a hardcopy.
                                          The original signature
                                          requirement in 40 CFR 370.41
                                          and 370.42 could be met by
                                          providing the certification
                                          statement on paper (i.e. wet
                                          signature) or by any
                                          electronic certification
                                          established by State and local
                                          agencies. (Memorandum from
                                          Debbie Dietrich to EPA
                                          Regional Superfund Managers on
                                          Electronic Reporting and
                                          Signature under EPCRA Section
                                          312, July 30, 2009. This
                                          memorandum is available on the
                                          Agency's Web site at http://                                          www.epa.gov/emergencies).
Incorporation of Previous Submissions    States may adopt this reporting
 into EPCRA Section 312 Reporting.        approach, especially for those
                                          facilities that submit section
                                          312 information on paper.
Electronic Access to Facility MSS        EPA believes that this approach
 Database.                                is inappropriate since there
                                          is a concern for computer and
                                          information security.
EPCRA Section 312 Reporting to Fulfill    This reporting
 Reporting Requirements under Section     approach is only beneficial to
 311.                                     those facilities that acquire
                                          a new chemical between October
                                          1 and December 31 of any given
                                          calendar year.
                                          States may implement
                                          this reporting approach
                                          ensuring that facilities
                                          comply with section 312 three
                                          months after acquiring a new
                                          chemical.
------------------------------------------------------------------------

                     Summary of the Interpretations
------------------------------------------------------------------------
            Interpretations                          Guidance
------------------------------------------------------------------------
Emergency Release Notification.........  Facilities may have up to 30
                                          days to submit a written
                                          follow-up report to State and
                                          local agencies. States may
                                          implement more stringent
                                          requirements.
Hazardous Chemical Exemption for Solids  Facilities would only have to
 under EPCRA section 311()(2).            count the amount of fume or
                                          dust given off a piece of
                                          metal, brick or any other
                                          manufactured solid item that
                                          undergoes a modification
                                          process (i.e. cutting,
                                          welding, etc.). States may
                                          implement more stringent
                                          requirements.
------------------------------------------------------------------------

[[Page 39859]]

    Dated: June 22, 2010.
Mathy Stanislaus,
Assistant Administrator, Office of Solid Waste and Emergency Response.
[FR Doc. 2010-17031 Filed 7-12-10; 8:45 am]
BILLING CODE 6560-50-P
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