+(,121/,1(

Citation: 55 Fed. Reg. 30632 1990 

Content downloaded/printed from 

HeinOnline (http://heinonline.org)

Thu Jun 3 13:09:24 2010

-- Your use of this HeinOnline PDF indicates your acceptance

 of HeinOnline's Terms and Conditions of the license

 agreement available at http://heinonline.org/HOL/License

-- The search text of this PDF is generated from 

 uncorrected OCR text.
30832 Federal Register I Vol. 55, No. 144 / Thursday, July 26, 1990 I Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 350, 355, 370, and 372

[FRL-3716-5l

RIN 2050-ABS8

Community Right-to-Know Reporting

Requirements

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: Section 311 of the Emergency

Planning and Community Right-to-Know

Act (EPCRA) or title III of the Superfund

Amendments and Reauthorization Act

of 1986 (SARA) authorizes the

Administrator of the U.S. Environmental

Protection Agency (EPA) to establish

reporting thresholds (i.e., quantities) for

'hazardous chemicals present at a

facility below which facilities would not

routinely have to comply with the

reporting requirements specified in

sections 311 and 312 of title III of SARA.

EPA previously established reporting

thresholds for the first two years of

reporting at 10,000 pounds for hazardous

chemicals and at 500 pounds or the

threshold planning quantity (TPQ),

whichever is lower, for extremely

hazardous substances (EHSs} (52 FR

38344; October 15, 1987). EPA also

promulgated zero thresholds in that

rulemaking to become effective in the

third year of reporting, but stated in the

preamble that it would conduct further

studies of all reporting threshold

alternatives and would propose final

reporting thresholds before the

beginning of the third year of reporting.

After completing its study of

alternative thresholds, EPA published a Notice of Proposed Rulemaking (NPRM)

proposing final reporting thresholds (54

FR 12992; March 29, 1989). Subsequently,

because of the time required to address

the comments received on the NPRM

and to promulgate a final rule, EPA

published an Interim Final Rule

extending, for manufacturing facilities,

the reporting thresholds established for

the first two years of reporting under the

October 15, 1987 rule (54 FR 41904;

October 12, 1989). Also on October 12,

1989, EPA published a Supplemental

Notice explaining its intention to

establish uniform deadlines in the final

rule on thresholds (54 FR 41907).

In today's final rule, EPA is

promulgating final reporting thresholds

under sections 311 and 312 at the current

levels, 10,000 pounds for non-EHS

hazardous chemicals that must be

reported and 500 pounds or the TPQ,

whichever is lower, for EHSs. In

accordance with the October 12. 1989

Supplemental Notice, today's final rule

also establishes uniform effective dates

for all facilities subject to reporting

requirements under sections 311 and

312. Thus, all facilities from all industry,

sectors will be subject to the final

thresholds on the same dates.

Today, EPA is also finalizing several

other provisions proposed in the March

29, 1989 NPRM, including the revision of

the definition of the term "facility" to

include subsurface operations, the

treatment of mixtures in threshold

calculations, and the implementation of

all sections of title III by Indian Tribes

on Indian lands (including section 313 of

title III). EPA previously published a

final rule correcting the discrepancy in

the reportable quantities for hydrogen

chloride and methacrylonitrile (54 FR

43164; October 20. 1989).

EFFECTIVE DATE: August 27, 1990.

ADDRESSES: Copies of materials

relevant to this rulemaking are

contained in the Superfund DocketDocket Number 300RR-IF, room 2427,

401 M Street SW., Washington, DC

20460. The docket may be inspected by

appointment between the hours of 9 aim.

and 4 p.m., Monday through Friday,

excluding Federal holidays. The docket

phone number is (202) 382-3046. As

provided in 40 CFR part 2, a reasonable

fee may be charged for copying services.

FOR FURTHER INFORMATION CONTACT:

Kathleen Jones, Project Officer,

Chemical Emergency Preparedness and

Prevention Office, Office of Solid Waste

and Emergency Response, OS-120, U.S.

Environmental Protection Agency, 401 M

Street SW., Washington, DC 20460, or

the Emergency Planning and Community

Right-to-Know Information Hotline at

(800) 535-0202, or in the Washington, DC

metro area and Alaska at (202) 479-2449.

SUPPLEMENTARY INFORMATION: The

contents of today's preamble are listed

in the following outline.

I. Introduction

A. Statutory Authority

B. Statutory Background

C. Background of This Rulemaking

D. Organization of the Final Rule

I. Final Reporting Thresholds

III. Analytical Approach

IV. Other Issues

A. Multi-Establishment Facility Reporting

B. Tier I and Tier II Forms

C. Subsurface Operations

D. Treatment of EHS Mixtures in Reporting

Threshold Calculations

E. The Implementation of Title III by Indian

Tribes on Indian Lands

F. Miscellaneous Issues

V. Regulatory Analyses

A. Regulatory Impact Analysis

B. Regulatory Flexibility Analysis List of Subjects

1. Introduction

A. Statutory Authority

These regulations are issued under

sections 302, 304, 311, 312, 313, and 328

of title III of the Superfund Amendments

and Reauthorization Act of 1986 (SARA)

(Pub. L. 99-499; 42 U.S.C. 11001 et seq.).

Title Ill is the Emergency Planning and

Community Right-to-Know Act of 1986

(EPCRA).

B. Statutory Background

1. SARA

SARA revises and extends the

authorities established under the

Comprehensive Environmental

Response, Compensation, and Liability

Act of 1980 (CERCLA). Commonly

known as "Superfund," CERCLA

provides authority for Federal response

action at certain sites where there is a

release or a threat of release of a

hazardous substance.

2. Title Ill of SARA

Title III of SARA establishes

authorities for emergency planning and

preparedness, emergency notification

reporting, Community Right-to-Know

reporting, and toxic chemical release

reporting. Title III is intended to

encourage and support State and local

planning for emergencies caused by the

release of hazardous chemicals and to

provide citizens and governments with

information concerning potential

chemical hazards present in their

communities. Title III is organized into

three subtitles. Subtitle A establishes a

framework for State and local

emergency planning. Under section 301

of subtitle A, States have established

State emergency response commissions

(SERCs), which have, in turn, appointed

local emergency planning committees

(LEPCs). Section 302 requires EPA to

designate Extremely Hazardous

Substances (EHSs) and to establish

threshold planning quantities (TPQs) for

each EHS; at present, there are 360

designated EHSs listed at 40 CFR part

355. Every facility where an EHS is

present at or above the TPQ is required

to notify the SERC and to cooperate

with the LEPC in the planning process

specified under section 303 of title Ill of

SARA.

Section 304 of title III requires the

owners or operators of facilities to

notify the local emergency

coordinator(s) and State(s) likely to be

affected as soon as the owner or

operator has knowledge of a release of

an EHS or a CERCLA hazardous

substance affecting persons beyond the

30632 Federal Register / Vol. 55, No. 144 / Thursday, July 26, 1990 / Rules and Regulations

HeinOnline -- 55 Fed. Reg. 30632 1990
Federal Register / Vol. 55, No. 144 / Thursday, July 26, 1990 / Rules and Regulations

facility boundaries, if the release equals

or exceeds a reportable quantity (RQ) or

one pound if an RQ has not been

established by regulation.

Subtitle B of title III provides a

mechanism for public awareness of

hazardous chemicals present in the

community. Sections 311 and 312 of title

Ill are discussed in detail in the next

section of the preamble. Section 313

requires facilities in SIC codes 20

through 39 (i.e., manufacturing facilities)

to report total annual emissions of

designated toxic chemicals that are

manufactured, processed, or otherwise

used at the facilities in quantities at or

above certain thresholds. Subtitle C of

title I[ contains general provisions

concerning citizen suits and public

availability of information.

C. Background of This Rulemaking

Section 311 of title I[ of SARA applies

to the owner or operator of a facility

where there are hazardous chemicals

present for which the owner or operator

must prepare or have available a

Material Safety Data Sheet (MSDS)

under Hazard Communication

Standards (HCS) (29 CFR part 1910)

promulgated under the Occupational

Safety and Health Act of 1970. Under

section 311 of title III, the owner or

operator of a facility must submit

individual MSDSs, or a list of chemicals

for which the facility is required to have

MSDSs, to the appropriate SERC, LEPC,

and local fire department. The HCS does

not list specific chemicals; a "hazardous

chemical," as defined in the HCS, is one

that poses either a physical or health

hazard.I The tens of thousands of

products covered by the HCS include

petroleum products, explosives, and

carcinogens.

The HCS regulations were restricted

initially to facilities in Standard

Industrial Classification (SIC) codes 20

through 39, that is, the manufacturing

sector. On August 24, 1987, however, the

Occupational Safety and Health

Administration (OSHA) revised the HCS

to cover facilities in the nonmanufacturing sqctor as well as

facilities in the manufacturing sector (52

FR 51852). A challenge to the revised

standards by several industrial groups

resulted in a temporary stay for nonmanufacturing facilities. On July 22,

1988, OSHA clarified that the HCS was

in effect for non-manufacturing facilities

as of June 24, 1988, except for the

construction industry (53 FR 27679). On

February 15, 1989, OSHA notified EPA

that all provisions of the HCS were in

I The procedures for determining whether a

particular chemical is a hazardous chemical are set

forth in 29 CFR 1910.1200 and appendices.

effect for all segments of industry,

including the construction industry, as of

January 30, 1989 (54 FR 6886).

For facilities in SIC codes 20 through

39, the initial MSDSs or lists were

required to be submitted to the

appropriate SERC, LEPC, and fire

department of October 17, 1987. Nonmanufacturers were required to submit

their MSDSs or lists by September 24,

1988 (i.e., three months after they

became subject to the HCS, as specified

in 40 CFR 370.20(bi). Facilities in the

construction industry were required to

submit their MSDSs or lists by April 30,

1989. Thereafter, if a facility begins to

use a chemical subject to the HCS in a

quantity at or above the reporting

threshold, or if a facility learns that its

previously submitted MSDS is

inaccurate for any reason, the facility

must submit the new or correct

information within three months to the

appropriate SERC, LEPC, and local fire

department (40 CFR 370.21(c)).

Under section 312 of title III, owners

or operators covered by section 311 of

title III are required to submit additional

information on the presence and

location of hazardous chemicals at their

facilities. Beginning March 1, 1991, under

the uniform deadlines in today's rule,

and annually thereafter, all facilities

affected by the HCS that have

hazardous chemicals at or above the

reporting thresholds must submit a 'Tier

I" inventory form and may be required

to submit a "Tier II" inventory form to

SERCs, LEPCs, and fire departments.

Tier I forms require general

information on the amount and location

of hazardous chemicals by hazard

category; Tier I forms must be submitted

annually. Tier II forms require more

detailed information on individual

chemicals and must be submitted on

request. Facilities may submit Tier II

forms in lieu of Tier I forms.

Title III of SARA (section 311(b))

states that the EPA Administrator may

establish reporting thresholds (i.e.,

quantities of hazardous chemicals) such

that if the Hazardous chemical subject

to the HCS is present at a facility in a

quantity that is below the reporting

threshold, the facility is not required to

automatically report the presence of that

chemical under the provisions of

sections 311 and 312 of title III. On

October 15, 1987, EPA promulgated

regulations (52 FR 38334) establishing

reporting thresholds under section

311(b) of title III for facilities subject to

the OSHA HCS. The reporting threshold

established for the first.two years was

10,000 pounds, except for EHSs, which

must be reported at the lower of 500

pounds or the TPQ. Access to

information below these thresholds was

preserved in that facilities must provide

any such information when requested in

accordance with 40 CFR 370.20(b)(3).

The October 15, 1987 rule also

established a threshold of zero pounds

for the third year of reporting; that is, no

threshold as of the third year. For

manufacturers, the third year begins on

September 24, 1990; and for the

construction industry, the third year

begins on April 30, 1991.

EPA stated in the October 15, 1987

final rule that because of the substantial

number and variety of comments

received on the final threshold issue and

uncertainty over the impact of the

requirements on the recipients of the

reports and ultimately on the

effectiveness of the program, it would

conduct further studies of alternative

thresholds and propose final reporting

thresholds before the beginning of the

third year of reporting. On March 29,

1989 (54 FR 12992), EPA published an

NPRM proposing final reporting

thresholds based on analyses conducted

since the promulgation of the October

15, 1987 final rule. In that NPRM, EPA

proposed to maintain the current

reporting thresholds (i.e., 10,000 pounds

for non-El-IS hazardous chemicals and

500 pounds or the TPQ, whichever is

lower, for EHSs). Many commenters

supported selection of the current

thresholds, and some suggested

alternative thresholds. Because it was

not feasible to consider properly and

respond thoroughly to all the comments,

and to finalize and promulgate final

reporting thresholds before the zero

pound threshold for manufacturers

automatically went into effect on

October 17, 1989, and because EPA

believed that it was not in the public

interest to allow the zero threshold to go

into effect for the short hime required to

promulgate final reporting thresholds

that may differ from the zero threshold,

EPA promulgated an Interim Final Rule

extending the current thresholds under

sections 311 and 312 for one additional

year for manufacturing facilities (54 FR

41904; October 12, 1989). At the same

time, EPA published a Supplemental

Notice explaining its intention to

establish uniform deadlines in the final

rule on thresholds.

EPA received seventeen letters on the

Supplemental Notice and the Interim

Final Rule. All commenters supported

the one-year extension of the current

reporting thresholds, as well as the

proposal to establish uniform effective

dates for the final thresholds in today's

rule. Accordingly, today's final rule on

thresholds eliminates the different

effective dates for various industry

30633

HeinOnline -- 55 Fed. Reg. 30633 1990
30634 Federal Register / Vol. 55, No. 144 / Thursday, July 26, 1990 / Rules and Regulations

sectors and establishes uniform

effective dates for all facilities subject to

reporting requirements under sections

311 and 312. Under today's rule for all

facilities subject to reporting under

sections 311 and 312, including facilities

in the construction industry and

facilities newly subject to the reporting

requirements, October 17, 1990 will be

the effective date for final reporting

thresholds for reports submitted under

section 311; March 1, 1991 will be the

effective date for final reporting

thresholds for reports submitted

annually under section 312.

Today, EPA is promulgating the final

thresholds at the current levels; that is,

beginning October 17, 1990, the reporting threshold is 10,000 pounds for non-EHS

hazardous chemicals and 500 pounds or

the TPQ, whichever is lower, for EHSs.

In the March 29, 1989 NPRM, EPA

proposed a clarification to the reporting

requirements for multi-establishment

facilities. EPA has decided not to

promulgate a final rule on this issue at

this time.

EPA is also finalizing a number of

other provisions proposed in the March

29, 1989 NPRM, including the revision of

the definition of the term "facility" to

include subsurface operations, the

treatment of mixtures in threshold

calculations for § § 311 and 312, the

implementation of title III by Indian

Tribes on Indian lands, and several

miscellaneous issues.

Finally, in the March 29, 1969 NPRM,

EPA proposed to correct a discrepancy

in the listing of RQs for two EHSs,

hydrogen chloride and

methacrylonitrile, between appendices

A and B to 40 CFR part 355 (EHS list)

and 40 CFR 302.4 (list of hazardous

substances under CERCLA). On October

20, 1989 (54 FR 43164), EPA published

the corrected RQs for hydrogen chloride

at 5,000 pounds and for

methacrylonitrile at 1,000 pounds, thereby resolving the discrepancy.

EPA received 167 comments letters

addressing issues raised in the NPRM.

The comments received, together with

EPA's responses, are contained in the

document, Responses to Comments

Received on the Notice of Proposed Rulemaking under § § 311 and 31.2 of title

III of the Superfund Amendments and

Reauthorization Act of 1986--March 29,

1989 (Comment Response Document,

which is available in the docket

supporting this rulemaking. In preparing

today's rule, EPA considered all of the

public comments submitted on the

March 29, 1989 NPRM, with the

exception of comments on the RQ

discrepancy which were addressed in

the October 20, 1989 final rule on that

issue. Comments are addressed in

sections II and III of this preamble.

Section IV provides a summary of the

analyses supporting today's rule.

D. Organization of the Final Rule

Today's final rule amends 40 CFR part

350.1 by adding definitions of "chief

executive officer of the Tribe," "commission," "Indian country," "Indian

Tribe," "local emergency planning

committee," and "State," thereby

codifying the definitions implementing

EPA's designation of Indian Tribes as

the implementing authorities for title III

on Indian lands. Also, the definition of

facility, including man-made or natural

subsurface structures into which

hazardous chemicals are purposefully

placed or from which they are removed

by human means such that the

structures function as containment

structures, is added to § 350.1. Similarly, § 355.20 is amended by adding the

.definitions necessary to authorize

Indian Tribe implementation of

reporting requirements. In addition, the

definition of "commission" in § 355.20 is

revised to add Indian tribal emergency

response commissions and the definition

of "facility" is revised to include manmade or natural subsurface structures.

In today's final rule, 40 CFR part 370 is

also amended by adding the definitions

pertaining to Indian tribal

implementation and by revising the

definitions of "facility," "commission,"

and "State." Section 370.20 is revised to

incorporate the final thresholds for

reporting under title III, sections 311 and

312. Section 370.28 is amended by

revising paragraph (b)(1) and adding

new paragraph (c) to clarify the

requirement to aggregate FHSs in

mixtures. The Tier I and Tier 11 reporting

forms in § 370.40 have been modified in

response to commenter's suggestions.

The certification block on the Tier II

form has also been changed to allow the

owner or operator to place an original signature only on the first page of the

submission.

In today's final rule, 40 CFR part 372 is

amended by adding the definitions

pertaining to Indian Tribes. These

definitions have been added to § 372.3.

In addition, § 372.30 has been revised to

indicate that if a facility is located in

Indian country, EPA Form R must be

submitted to the office designated by the

Chief Executive Officer of the Tribe.

Finally, the Burden Box has been

eliminated from the Tier I and Tier II

instructions because of the recent

Supreme Court decision regarding the

inapplicability of the Paperwork

Reduction Act to regulations that

require submission of health, safety, and

other consumer information only to nonFederal (i.e., State and local) entities.

II. Final Reporting Thresholds

EPA considered six options in

analyzing potential reporting thresholds

for the March 29, 1989 NPRM. The

options represented the full range of

possible thresholds and were chosen

because they allowed EPA to isolate the

effects of varying threshold levels on

each of three factors: (1) The number

and types of chemicals that would be

reported; (2) the number of facilities that

would be required to report; and (3) the

volume of chemicals that would be

covered. Because different thresholds

could be set for different classes of

chemicals or even. for individual

chemicals, a large number of

combinations of these factors are

possible. For reasons of practicality,

EPA analyzed six threshold options

because they set bounds on the

reasonable possibilities.

Option I would set a 50,000 pound

reporting threshold for hazardous

chemicals except EHSs, which would

have a reporting threshold of 500 pounds

or the TPQ, whichever is lower.

Option 2 would adopt the current

reporting thresholds--10,000 pounds for

hazardous chemicals except EHSs,

which would have a reporting threshold

of 500 pounds or the TPQ, whichever is

lower.

Option 3 would set a 10,000 pound

reporting threshold for hazardous

chemicals, except for hazardous

substances defined under section

101(14) of CERCLA and toxic chemicals

designated under section 313 of title IlI,

which would have a reporting threshold

of 500 pounds, and EHSs, which would

have a reporting threshold of 500 pounds

or the TPQ, whichever is lower.

Option 4 would set a 2,000 pound

reporting threshold for hazardous

chemicals, except for hazardous

substances designated under section

101(14) of CERCLA and toxic chemicals

designated under section 313 of title III,

which would have a reporting threshold

of 500 pounds, and EHSs, which would

have a reporting threshold of 500 pounds

or the TPQ, whichever is lower.

Option 5 would set the reporting

threshold at 500 pounds for all covered

chemicals.

Option 6 would set the reporting

threshold at zero pounds for all covered

chemicals.

In the March' 29, 1989 NPRM, EPA

proposed Option 2, that is, to retain the

reporting thresholds that have been

applied in the first two reporting years

(a 10,000 pound reporting threshold for

most hazardous chemicals; the reporting

threshold for EHSs at 500 pounds or the

TPQ, whichever is lower). In today's

HeinOnline -- 55 Fed. Reg. 30634 1990
Federal Register / Vol. 55, No. 144 / Thursday, July 26, 1990 / Rules and Regulations

'final rule, EPA is promulgating final

reporting thresholds at these same

levels proposed under Option 2.

EPA received 138 letters containing

comments on the selection of final

threshold levels, some agreeing with the

proposed thresholds, others endorsing

options for higher or lower thresholds,

and others suggesting that lower

thresholds be imposed after an interim

period at the proposed levels. EPA

believes the final reporting threshold of

10,000 pounds for non-EHS hazardous

chemicals and 500 pounds, or the TPQ,

whichever is lower, for EISs is

appropriate.

In establishing today's final reporting

threshold, EPA attempted to strike the

best balance between the amount of

information generated for the public and

the value of that information, and the

cost to SERCs, LEPCs, and facilities of

managing and providing the information.

In estimating the current value of the

information that would be provided

below the current threshold of 10,000

pounds, EPA considered several factors:

(1) The small number of requests from

the public for information on hazardous

chemicals present at facilities below the

current threshold levels; (2) the limited

current use of Tier I and Tier II

information during emergencies and

planning exercises; and (3) the fact that

only twelve States have established

thresholds below the 10,000 pound level

for all covered hazardous chemicals.

EPA understands that the amount of

resources devoted to data management

and the ability of SERCs, LEPCs, and

fire departments to manage information

vary considerably across the nation. The

data management survey conducted by

EPA prior to the NPRM showed that in

some States and communities, however,

resources are extremely limited, and

LEPCs are having difficulties managing

the information currently being

submitted. EPA believes it is important

for these LEPCs in particular to focus on

hazardous chemicals of known concern (i.e., those hazardous chemicals stored

In large quantities and EHSs). The

Regulatory Impact Analysis supporting

the NPRM estimated there would be a

four-fold increase In the number of

hazardous chemicals that would be

reported at 500 pounds compared to the

10,000 pound threshold (from 976

thousand to 4.3 million), and almost a two-fold increase (from 291,000 to

488,000) in the number of facilities

required to report. Such a large increase

in reports could divert limited resources

and prevent proper evaluation and

planning around facilities with the most

hazardous situations.

It is not EPA's intent to restrict public

access to important information. Any

SERC or LEPC capable of managing the

additional information that would be

submitted at lower thresholds has the

authority to request such information

either on a facility-specific basis or may

obtain such information across the

board by establishing lower thresholds

in its State or jurisdiction .under State

law. EPA's primary concern is with the

ability of many SERCs and LEPCs to

manage the additional information that

would be submitted at lower thresholds.

By maintaining the 10,000 pound

threshold for hazardous chemicals other

than EHSs, and maintaining the 500

pound or TPQ threshold, whichever is

lower, for EHSs, EPA is ensuring that

the LEPCs that have limited resources

will focus those resources on the most

hazardous situations. That is not to say

that facilities that store hazardous

chemicals in smaller quantities do not

pose a hazard to the community. Rather,

it acknowledges that with limited

resources, priorities must be established

to ensure the maximum level of

protection of human health and welfare

and the environment. The final

thresholds, identical to those currently

in effect, will not place any additional

burden on SERCs and LEPCs and will

allow them to improve quality control

and use of the information in the

preparation of emergency plans.

A number of commenters stated that

the threshold for all hazardous

chemicals should be 500 pounds because

higher thresholds would exempt many

facilities from reporting, depriving

communities of valuable information.

EPA believes that although EHSs

warrant special attention and lower

reporting thresholds, all hazardous

chemicals do not present an equal risk.

A lower threshold for EHSs, along with

the 10,000 pound threshold for other

hazardous chemicals, will provide

SERCs and LEPCs with information on facilities that are likely to present the

greatest hazard to the community.

Today's thresholds do not deprive

communities of valuable information;

rather, they provide communities with

the most valuable information. If a

SERC or LEPC wants information not

automatically submitted under today's

final rule, a State or locality may

establish lower reporting thresholds

under State law.

Although some States currently

require reporting at lower thresholds,

most do not. and many do not devote

sufficient resources to managing the

information that would be generated by

such a requirement. The reporting

thresholds that EPA is promulgating in

today's final rule will provide a ceiling

threshold throughout the nation, without

placing a burden on SERCe, LEPCs, and

fire departments that are not yet

prepared to deal with the large volume

of additional information that would be

submitted at lower thresholds. In

addition, facilities are required to

provide information on chemicals

present in quantities below the reporting

threshold if the SERC, LEPC, or fire

department requests such information.

This provision applies to all facilities,

even those not subject to routine

reporting under § § 311 and 312. Thus,

facilities that use significant amounts of

hazardous chemicals will not be

excluded from reporting if the State and

local agencies have the resources to

process additional Information and want

to receive the information.

The cost to SERCs and LEPCs and

their ability to carry out requirements

were carefully studied. EPA surveyed

representatives from 12 SERCs, 32

LEPCs, and 15 fire departments thought

to have implemented effective

information management systems or

procedures under § § 311 and 312. The

results of this survey are documented in

"Information Management by State and

Local Governments under § § 311 and

312 of the Emergency Planning and

Community Right-to-Know Act",

December 1988. A copy of this document

is in the docket supporting this

rulemaking. Further, costs that would be

incurred by SERCs, LEPCs, and fire

departments under each threshold

option were estimated in the

"Regulatory Impact Analysis in Support

of a Permanent Reporting Threshold

under § § 311 and 312 of the Emergency

Planning and Community Right-to-Know

Act of 1986", also found in the

rulemaking docket.

Option 5 (a 500-pound threshold

applied to all hazardous chemicals], for

example, would result in almost twice

the annual costs to SERCs, LEPCs. and

fire departments as compared to the

costs imposed by the 10,000 pound

threshold. Based on current levels of

resources available to LEPCs for all

their planning and community right-toknow activities, EPA concluded that for

many LEPCs, such a low threshold

would create a substantial burden, and

would tie up many of the necessary

resources used for gathering, evaluating,

and utilizing information received under

current reporting thresholds. Given

these increases in the information

management burden and in costs, EPA

decided that a lower threshold was not

feasible on a nationwide basis.

Some commenters suggested that EPA

reconsider a threshold of 50,000 pounds

because this threshold would represent

a cost-effective storage quantity, and it

is large quantity chemical storage that is

30635 I

HeinOnline -- 55 Fed. Reg. 30635 1990
30636 Federal Register / Vol. 55, No. 144 / Thursday, July 26 1990 / Rules and Regulations

of most concern to emergency planners.

EPA does not agree that 50,000 pounds

is the quantity of hazardous chemicals

of most concern to emergency planners.

LEPCs, under title III, in fact, are

focusing their planning efforts on EHSs

and other hazardous chemicals stored in

quantities ranging from one to 10,000

pounds. Several LEPCs are currently

using the Tier II Information In their

planning process. Furthermore, facilities

are familiar with the 10,000 pound

threshold; only three of the 138

commenters on the threshold issue

favored raising the threshold above

current levels.

Several commenters stated that it is

inappropriate to consider costs to

industry in establishing threshold levels,

and that EPA's primary concern should

be maximizing the information available

to State and local authorities. In support

of their statement, these commenters

cited a passage in the legislative history

of §§ 311 and 312 in which

Representative Edgar addressed the

House floor. (Statement of

Representative Robert Edgar,

Congressional record, October 8, 1986.)

EPA does not agree that costs to

industry cannot be considered as one

factor in setting reporting thresholds.

There is no evidence that

Representative Edgar was speaking for

the entire Congress. The remarks of a

single representative in a House debate

which is nowhere repeated or endorsed

by other legislators in other floor

debates or in the Conference Report

cannot be interpreted to prevent EPA

from considering the factor of costs in

setting a final threshold. See, e.g.

Consumer Product Safety Commission

v. GTE Sylvania Inc., 447 U.S. 102, 118-

19 (1980); Chrysler Corp. v. Brown, 441

U.S. 281, 311 (1979); In re Kelly, 841 F.2d

908, 912 n.3 (9th Cir. 1988). Neither the

text of the statute nor the Conference

Report preclude the Administrator from

considering costs to industry in

determining thresholds. Consideration

of costs to facilities is relevant to

Congress' goal of developing a

manageable program for the collection

and dissemination by localities of

information on hazardous chemicals.

The Conference Report specifically

indicates that the two-tier reporting was

adopted in section 312 "[t]o minimize

the burden of this reporting." It would

be inconsistent with the purpose of the

two-tier reporting format for EPA to be

prohibited from considering costs to

industry in setting thresholds.

EPA does not believe that it placed an

undue amount of emphasis on costs to

industry or on cost effectiveness. EPA

does believe that some consideration of

costs to the SERCs, LEPCs, fire

departments, and industry is important

when evaluating the pros and cons of

different final thresholds, because cost

estimates give EPA some measurement

of the impacts of the different thresholds

upon government entities that must run

a variety of public programs 2 and on

facilities that face many requests for

information and demands for

environmental control.

Nonetheless, EPA agrees that the

primary purpose of the reporting

requirements under sections 311 and 312

is to provide information to the

community. EPA's selection of the final

reporting thresholds was not based

primarily on cost 'Considerations, but on

the extent of which a more stringent

standard could subvert the intent of

sections 311 and 312 by overwhelming

the capability of SERCs, LEPCs, and fire

departments or manage and analyze

submitted information. EPA believes

that a manageable quantity of data that

can be supplemented by requests for

additional information and the

Imposition of lower State or local

thresholds when appropriate, better

serves the community's right-to-know.

Several commenters suggested that

EPA use the proposed levels for an

interim period and then Impose a lower

reporting threshold determined after

further study. EPA considered

establishing reporting thresholds in

today's final rule for another interim

period, similar to the approach taken in

October 1987. EPA concluded, however,

that it was best to minimize the

uncertainty surrounding future reporting

obligations. Uncertainty tends to

encourage indecision and EPA is

anxious for SERCs, LEPCs, and fire

departments to have full information

regarding the parameters of their data

management obligations so that they

may optimally plan for equipment

purchases and labor needs, It is also

important to minimize uncertainties for

facilities so that they may develop

optimal inventory tracking systems. To

establish reporting thresholds under

sections 311 and 312 for another interim

period would not minimize uncertainty

and, therefore, would slow compliance

and data management decisions and

investments.

a A frequently repeated concern during the

Congressional debate was the necessity to take

account of the burden of a particular threshold upon

State and local government so that useful and

important information would not be "buried in an

avalanche" of paperwork. See statements of

Representatives Norman Lent (H9564). Gene Snyder

(H9564), Con gressionalRecord, October 8, 1986; see also statements of Representatives Al Swift

(H9607), John Hammerschmidt (H9568),

Congressional Record, October 8. 1986.

An interim approach would only be

useful if EPA were to again study the

appropriate final threshold after that

interim period. At the present time, EPA

is not able to predict what the best

threshold will be several years in the

future. Although EPA recognizes that

data management capabilities may

improve over time as States and

localities devote greater resources to

this program and data management

experience improves. EPA cannot

predict that this will happen, nor what

thresholds would be appropriate if it

does happen. Thus, EPA believes it is in

the public interest to choose a final

-threshold at this time, based upon all

relevant information about the

capabilities of SERCs and LEPCs to data

and the usefulness of the information.

EPA will continue to analyze data

available from observations, reviews,

reports, and comments received from

SERCs, LEPcsd, fire departments, the

community, and others responsible for

carrying out portions of this program. As

these data indicate that change is

waranted, EPA will revise this rule

including the threshold provision.

In the NPRM, EPA requested comment

on whether the final threshold for EHSs

should be 500 pounds or the TPQ, or

simply the TPQ. EPA received

comments supporting both options. In

today's final rule, EPA is establishing

the final reporting threshold for EHSs at

500 pounds or the TPQ, whichever Is

lower. That is, in today's final rule, EPA

is maintaining the 500 pound cap as a

reporting threshold for EHSs. Although

EPA understands that there are some

* advantages to maintaining the TPQ as

the sole reporting trigger for EHSs (i.e.,

consistency with the emergency

planning provisions of title III), EPA

believes that the different purposes of

TPQs under sections 302 and 303 and

reporting threshold under sections 311

and 312 support having different

relevant quantities. Under sections 302

and 303, the presence at a facility of an

EHS above its TPQ leads to certain

required emergency planning steps for

facilities and LEPCs. Thus, the TPQ is

set at a level that is appropriate for

mandatory emergency planning in all

cases across the nation. On the other

hand, the purpose of sections 311 and

312 is more directly related to

community right-to-know. In

establishing final reporting thresholds

under sections 311 and 312, EPA

endeavored to provide as much

information as possible to the

community without overwhelming the

information management systems used

by SERCs, LEPCs, and fire departments.

Because EHSs generally represent

HeinOnline -- 55 Fed. Reg. 30636 1990
Federal Register / Vol. 55, No. 144 / Thursday, July 26, 1990 / Rules and Regulations

chemicals of highest concern to the

community, EPA wanted to ensure that

communities receive a substantial

amount of information on EHSs, even

when planning is not statutorily

mandated. SERCs and LEPCs can use

section 311 and 312 data to determine

whether, due to site-specific factors,

emergency planning under section

302(b)(2) would be appropriate. EPA

believes it is most prudent to maintain

the 500 pound cap on the reporting

threshold for EHSs under sections 311

and 312, to ensure that information on

these hazardous chemicals is readily

available to communities and

emergency planners.

EPA also considered establishing

lower thresholds for hazardous

chemicals on the title III section 313 list

or on the CERCLA hazardous

substances list. EPA decided not to

impose these lower thresholds because

the additional information that would be

provided is generally available through

other provisions of title III and,

therefore, the additional burden that

would be imposed on both industry and

government was not warranted. For

example, the section 311 and 312

reporting requirements focus upon the

presence of hazardous chemicals at the

facility, requiring the owner or operator

to submit lists of chemicals or MSDSs

and, on an annual basis, an inventory of

'those chemicals. Under section 313, title

Ill already imposes inventory

requirements upon owners and

operators of facilities that manufacture,

process, or use designated quantities of

the toxic chemicals on the section 313

list.

Similarly, title III already has

reporting requirements that directly

employ the CERCLA hazardous

substances list. Under section 304,

facilities that release an RQ of any

CERCLA hazardous substance or EHS

must report the release to any SERC or

LEPC affected by the release. Detailed

follow-up reports must be submitted to

the affected SERC(s) and LEPC(s) by

any owner or operator required to report

section 304. The nature of the

information required in the initial and

follow-up reports bears some similarity

to the information required on an MSDS.

For example, the report must include the

chemical name or identity of any

substance involved in a release, any

known or anticipated acute or chronic

health risks associated with the

emergency, and where appropriate,

advice regarding medical attention

necessary for exposed individuals.

Therefore, establishing lower thresholds

for the section 313 chemicals or the list

of CERCLA hazardous substances did

not appear to provide communities with

enough new, necessary, or useful

information to justify the additional

burden and the potential for confusion..

II. Analytical Approach

To determine the potential effects of

the six options, EPA estimated the

number of facilities in the U.S. that

would be affected by each threshold, the

average number of chemicals that would

be reported per facility, the total number

of reports that would be filed, the

average pounds of chemicals reported

per facility, and the total pounds of

chemicals that would be reported in the

U.S. The national estimates were

developed by extrapolating from data on

the amounts of hazardous chemicals

that are present in specific localities. A

Los Angeles, California database and

the data from reports filed under the

State and Federal Right-to-Know

programs in New Jersey best satisified

the criteria EPA identified for the study.

The Los Angeles and New Jersey

databases were well-suited to the

threshold analysis because they include

information submitted by both

manufacturing and non-manufacturing

facilities, represent all sizes of facilities,

and contain information on the quantity

of hazardous chemicals at facilities

covered by the HCS regulations. (For a

full discussion of the selection of

databases, see chapter 2 of the

Regulatory Impact Analysis in Support

of a Reporting Threshold under sections

311 and 312 of the Emergency Planning

and Community Right-to-Know Act

(RIA) in the docket supporting this

rulemaking).

Some commenters stated that the

selected databases do not represent the

national and do not accurately capture

all necessary information. EPA

acknowledges that the data from several

States cannot capture all relevant

national information. Nonetheless, EPA

believes that the New Jersey and Los

Angeles databases are the best readily

available information, and that the

methodology used in the analysis

adequately adjusts the data for the

national population. EPA extrapolated

from the selected databases to the U.S.

population on the basis of SIC codes.

Also, EPA assessed the effects of the

selection of the New Jersey and Los

Angeles databases by comparing

the extrapolated results with

national statistics on chemical and

petroleum production and use. Estimates

of the number of pounds that would be

reported as extrapolated from the two

databases are reasonably close to

national statistics. Moreover, the

estimated number of affected facilities

and estimated costs of the rule

generated through independent analyses

of the two databases are similar,

notwithstanding the differences in the

industrial facilities represented and in

the area covered (a State versus a

metropolitan area) by each database.

EPA believes, therefore, that the two

databases used to estimate the potential

effects of different threshold options

provided adequate information and

generated accurate results.

Several commenters stated that EPA

should establish different threshold

levels for different hazard categories.

EPA considered establishing risk-based

reporting thresholds for all the

hazardous chemicals subject to sections

311 and 312, taking into consideration

the hazards posed by each chemical or

group of chemicals, the potential for a

significant release, and the potential

exposure of surrounding populations. As

EPA stated in its October 15, 19b7 final

rule and again in the March 29, 1989

proposed rule, such as hazard-based

approach was not feasible, given the

tens of thousands of hazardous

chemicals covered under sections 311

and 312 and the variety of locations and

situations in which hazardous chemicals

may be stored. Existing methodologies

that can be used to evaluate risk

associated with specific hazards are not

appropriate approaches for this

rulemaking because they are site or

chemical specific. For example, use of

the CERCLA Hazard Ranking System

(HRS) was recommended by one

commenter. The FIRS is innappropriate

for determining reporting threshold

levels under sections 311 and 312

because it is site-specific, and sitespecific exposure pathways must be

known to estimate risk levels. Although

chemical-specific or site-specific

information cannot be considered across

all the chemicals covered under sections

311 and 312, it can be considered by

local authorities on a site-specific basis.

EPA believes, therefore, that exposure

potential and site characteristics are

more appropriately considered by

LEPCs in their planning processes than

by EPA in establishing reporting

thresholds.

One commenter suggested that the

analytical approach should consider the

synergistic and cumulative effects of

hazardous chemicals. EPA agrees that

ideally such effects, as well as chemicalspecific hazards, should be considered

in establishing reporting thresholds.

There is, however, no existing analytical

model that can be used to evaluate these

effects over the number of hazardous

chemicals for which MSDSs must be

prepared. EPA believes that the

analytical approach used to evaluate the

reporting threshold options in today's

30637

HeinOnline -- 55 Fed. Reg. 30637 1990
30638 Federal Register / Vol. 55, No. 144 / Thursday, July 26, 1990 / Rules and Regulations

final rule resulted in final reporting

thresholds that will provide information

to local communities about hazardous

chemicals most likely to pose the

greatest hazard, without overwhelming

their ability to manage and use the

information.

One commenter questioned EPA's use

of the Acute Hazardous Events (AHE)

database because it does not include

incidents that result in chronic effects or

environmental damage. EPA would like

to clarify that the AHE data were used

primarily to estimate how data that

would be received at alternative

threshold levels relate to facilities

involved in accidental releases that led

to serious acute effects. The data show

that most events sufficiently severe to

cause human casualties would be at

sites subject to reporting under the

threshold levels being promulgated

today. The accident data in the AHE

database provide information primarily

on acute effects, but relatively little

information on chronic effects or

environmental damage associated with

the different reporting thresholds. EPA,

however, recognizes the importance of

chronic effects and environmental

damage and, therefore, requires

notification of a release of a hazardous

substance or EHS that equals or exceeds

an RQ. When the National Response

Center, SERC, and LEPC are notified of

a hazardous substance release, the

responsible government authority

evaluates the risks associated with the

release, considering acute as well as

chronic and environmental effects.

A number of commenters challenged

EPA's comparison of the costs and

benefits of the alternative reporting

thresholds. Because EPA could not

quantify the benefits attributable to

each threshold option, the commenters

claimed that EPA's conclusions were

unsupported. EPA does not agree. Based

on its survey of SERCs, LEPCs, and fire

departments with relatively advanced

data management systems, EPA

believes that many of these State and

local authorities do not have the present

capability to use the additional

information that would be generated at

thresholds lower than those established

by today's final rule. For each given

community, however, the cost benefit

comparison will vary. EPA believes It is

most prudent, therefore, to establish

Federal thresholds at a level that will

maximize the net benefits for most

communities, while preserving the rights

of States and local governments to

develop more stringent reporting

requirements if they believe that the

benefits of receiving more information

than that submitted under the thresholds

in today's rule are greater than the

incremental costs.

Several commenters stated that EPA

did not consider or properly value

certain benefits, such as accident

prevention. EPA is aware that accident

prevention can be a direct outgrowth of

reporting, due to a consequent increased

awareness on the part of industry and

the local community of the presence of

reported hazardous chemicals. Such

benefits, however, are difficult to

quantify and could be considered only

in a qualitative sense.

Two commenters stated that costs

were not accurately considered because

the projections of the number of affected

non-manufacturers are underestimated.

Although the number of affected

facilities and chemical reports in

specific industry categories or sectors

(such as non-manufacturing) may be

under or overstated in the Regulatory

Impact Analysis, the sensitivity analysis

supporting today's rulemaking indicates

that the aggregate quantity of chemicals

covered under the zero threshold,

including petroleum, is reasonably close

to national projections of chemical and

petroleum use derived from Census

data. In addition, the Los Angeles and

New Jersey databases yield comparable

total cost estimates despite significant

differences in the underlying numbers of

manufacturing and non-manufacturing

facilities. Consequently, EPA believes

that the potential inaccuracies in the

analysis caused by extrapolation are not

significant enough to affect the decision

to select today's final reporting

thresholds.

IV. Other Issues

A. Multi-establishment Facility

Reporting

In the March 29, 1989 NPRM, EPA

proposed a clarification to the reporting

requirements for multi-establishment

facilities. In particular, in response to a

concern that owners of certain multiestablishment facilities, such as

industrial parks, do not have sufficient

knowledge about specific hazardous

chemicals located at their facility to

comply with the title III reporting

requirements, EPA proposed a

regulatory provision that would have

,clarified how establishments at such

facilities may report as facilities. The

Agency has decided not to promulgate a

final rule on multi-establishment

reporting at this time. After receiving

substantial public comment on this

provision, EPA needs additional time to

consider and develop the appropriate

regulatory approach to various issues

connected with multi-establishment

reporting. EPA does not, however,

believe it is appropriate to delay the

promulgation of final thresholds while

the Agency considers multiestablishment issues. For this reason,

today's final rule does not include a

provision addressing multiestablishment facilities.

B. Tier I and Tier II Forms

EPA has made several small

modifications to the Tier I and Tier H

forms and instructions in response to

commenters' suggestions and concerns.

Some suggestions were not accepted for

reasons stated in the Response to

Comments Document. The modifications

in today's final rule include adding

check boxes to indicate that the

information is identical to that

submitted in the previous year, lines on

the Tier II form for listing the EHS

chemical name(s) present in a mixture;

optional check boxes for each

hazardous chemical reported to

facilitate data management at the State

and local level; and several other small

changes.

Another change made in today's final

rule involves the certification statements

on the Tier I and Tier II forms. EPA has

received several requests that the Tier II

form be modified to allow owners and

operators of facilities to place an

original signature only on the first page

of a multi-page submission. EPA agrees

that an original signature need not be

placed on every page of the Tier II

submission so long as the owner or

operator certifies that he or she has

reviewed every page of the submission.

Therefore, the instructions for the

certification on the Tier II form have

been modified to allow the owner or

operator to place an original signature

only on the first page of the submission,

provided that (1) submissions to the

SERC, LEPC, and fire department each

contain an original signature on at least

the first page, (2) the total number of

pages in the submission is inserted in

the space provided in the certification

statement, including all confidential and

non-confidential sheets and all

attachments, and (3) subsequent pages

in the submission contain a photocopy

of the original signature or a signature

stamp, as well as the date that the

original signature was affixed to the first

page and the total number of pages in

the submission. Similarly, the Tier I

certification instructions have been

modified to state that the owner or

operator certifies that all information in

the submission, including all

attachments, is true, accurate, and

complete; the total number of pages in

the submission must be indicated in the

HeinOnline -- 55 Fed. Reg. 30638 1990
Federal Register / Vol. 55, No. 144 / Thursday, July 26, 1990 / Rules and Regulations

space provided in the certification

statement.

Three commenters stated the EPA

should retain OSHA's Hazard

Communication Standard (HCS) list of

exemptions from coverage in the

instructions, along with the comparison

of EPA's hazard categories with OSHA's

HCS hazard categories to reduce the

time necessary to comply with sections

311 and 312. EPA does not agree that

including the list of OSHA's HCS

exemptions shortens the time required

for compliance. By including HCS

exemptions on previous Tier I and Tier

II forms, EPA believes that it might have

appeared to the regulated community

that EPA. SERCs, and LEPCs were the

appropriate authority for interpreting the

scope of the HCS. The most appropriate

authority for interpreting the HCS is

OSHA. Reporting time for both title III

and the HCS can best be shortened by

the method set forth in the instructions

to the title III reporting forms, which

refers parties to the OSHA HCS. EPA,

however, does agree that it is necessary

to retain the OSHA-EPA hazard

category comparison because MSDSs

are prepared based on OSHA's HCS

hazard categories.

Two commenters suggested that EPA

reconsider the use of the Tier I forms

because they are too general an they

place an undue burden on industry and

local government authorities. Although

EPA agrees that the information

submitted on the Tier II form is more

useful, the statute allows owners and

operators of facilities the option of

submitting Tier I or Tier II forms, unless

the Tier I1 form is specifically requested

by a SERC or LEPC. See section

312(e)(1) of title III; H.R. Conf. Rep. No:

962, 99th Congress, 2d Sess., 290

("Conference Report"). States, however,

may develop legislation requiring

submission of Tier II forms, and some

have already done so. Also, EPA

continues to encourage submissions of

Tier II forms unless SERCs, LEPCs, or

fire departments have indicated a

preference for Tier I forms.

Another commenter stated that EPA

should discourage States from creating

their own special report forms which

add to the costs of industry compliance,

especially if changes to the form make

the computer software used to prepare

the form obsolete. EPA does not agree

that it should discourage States from

developing their own forms or tailoring

Tier I and/or Tier II to meet particular

needs or to avoid overlapping Federal

requirements. EPA, however, does

encourage States to consider industry

concerns in modifying the inventory

forms. When EPA makes format

changes, it generally considers the

burdens such revisions impose. The

changes made to the Tier I and Tier I1

forms in today's final rule have been

determined to be necessary,

notwithstanding potential costs to

industry.

C. Subsurface Operations

In response to many questions about

the applicability of title III regulations to

subsurface operations, EPA proposed in

the March 29, 1989 NPRM to revise the

regulatory definition of facility to clarify

that subsurface structures that are part

of man-made operations, including open

surface mines, are included within the

statutory definition of facility and,

therefore, are subject to title IlI reporting

requirements.

Twenty commenters opposed and

three commenters supported the

proposed revision to the definition of

facility to include subsurface structures.

A number of the commenters stated that

the revision would improperly expand the definition to include facilities and

substances exempt from the

requirements of some sections of title III.

EPA does not agree that the revised

regulatory definition of "facility"

changes reporting requirements or

negates exemptions contained in title III

statutory provisions. The regulatory

definition is revised today to include

only those subsurface structures that are

man-made or natural structures into

which hazardous chemicals are

purposefully placed or removed through

human means such that the structures

function as a containment structure. If

an activity or facility is exempt from

certain title III requirements, today's

regulatory definition does not alter that

exemption. For example, the revised

regulatory definition of "facility" does

not alter the applicability of the

transportation exemption. If natural gas

is stored at a production facility, the

product is subject to title III

requirements; if natural gas is being

stored incident to transportation, then it

comes within the title III exemption and

is not subject to title III reporting

requirements.

As a second example, one commenter

noted that because subsurface mining operations are not subject to OSHA's

HCS, they are also not subject to

sections 311 and 312 of title III. EPA

agrees that, although a mining operation

may come within the definition of the

term "facility," it is not necessarily

within the scope of the OSHA HCS. If

the operation is not subject to the OSHA

HCS, it is not subject to the

requirements of sections 311 and 312.

The fact that a facility does not come

within the scope of the OSHA HCS is

not relevant, however, to the emergency

planning and release notification

requirements of sections 302, 303. and

304. Thus, if there are EHSs at a mining

facility in underground containment

structures in quantities equal to or

exceeding TPQs, the owner or operator

is required to report them under section

302 and to participate in the community

planning process as required under

section 303. Also, if the facility

produces, uses, or stores a CERCLA

hazardous substance or an EHS, and

releases the hazardous substance or

EHS in a quantify that equals or exceeds

the applicable RQ, the release must be

reported to the SERC[s) and LEPC(s)

likely to be affected by the release, and

to the National Response Center in the

case of a CERCLA hazardous substance.

One commenter stated that the revised

definition could result in daily reporting

of releases from mining operations. If

releases of hazardous substances or

EHSs from mining operations at or

above reporting levels occur daily, they

must be reported daily. The commenter

should note, however, that recurring

releases may qualify for reduced

reporting under CERCLA section

103(f)(2) if they are "continuous" and "stable in quantity and rate," or they

may be exempt from reporting

requirements if they are federally

permitted under CERCLA section

101(10). (See the NPRM on reporting of

continuous releases (53 FR 12868; April

19, 1988) and the NPRM on federally

permitted releases (53 FR 27268; July 19,

1988)).

Three commenters opposed including

naturally occurring materials such as

natural gas in the calculation of a

facility's inventory for comparison with

the TPQ under section 302 because

natural gas production is already

governed by regulations under other

authorities, storage and withdrawal

operations do not impose a hazard to

nearby populations, and it would be

difficult to estimate quantities of natural

gas "present" at a facility. EPA does not

agree. Any substance placed in, or being

removed from, a subsurface location by

human intervention, such as mining, is

subject to title III requirements and,

therefore, must be included in a facility's

inventory. EPA understands that many

industries must comply with regulations

and safety standards under other

authorities. Nevertheless, compliance

with such requirements does not fulfill

the purpose of title III which is to

provide the public with information on

the chemicals present at facilities in

order to prepare the community to

respond when hazards are not

controlled. Compliance with other

30639

HeinOnline -- 55 Fed. Reg. 30639 1990
.30640 Federal Register / Vol. 55, No. 144 / Thursday, July 26, 1990 / Rules and Regulations

regulations, therefore, does not relieve

the regulated community from the

responsibility to comply with the

requirements of title III. Further, each

owner or operator must use the best

information available, knowledge of the

operating processes of the facility, and

engineering judgment to estimate the

quantities of hazardous chemicals

present In subsurface containment

structures. Reporting facilities should be

aware that estimates need not be exact;

facilities are only required to estimate

which among many broad ranges

indicated on the Tier I and Tier H forms

match their inventories.

D. Treatment of EHS Mixtures in

Reporting Threshold Calculations

In the March 29, 1989 NPRM, EPA

proposed new regulatory language

addressing when and how facilities

must report EHSs that exceed their

applicable reporting threshold under

sections 311 and 312 when the EHSs are

present in different mixtures.

Section 311(a)(3) of title M provides

facilities with the option of reporting on

a mixture as a whole or reporting on

each hazardous component of the

mixture. In some instances, reporting by

component could result in the filing of

fewer reports. Where components of a

mixture are not present at a facility in

threshold quantities, a facility would not

be required to submit a report under

sections 311 or 312 even though the

quantity of the mixture itself is present in a threshold amount. Similarly,

reporting by mixture could occasionally

result in fewer reports when the

mixtures are below threshold quantities.

In the March 29,1989 NPRM, EPA

proposed a new provision, § 370.28(b)(3),

related to reporting of EHSs in mixtures.

This provision was designed to ensure

that EHSs would be reported regardless

of the option of reporting by mixture or

by component. EPA believed that the

importance of EHSs to emergency

planning and community right-to-know

warranted a requirement that these

chemicals be reported, in some fashion,

whenever they are present at facilities

in above-threshold quantities. (See 54

FR 12999).

In proposing regulatory language to

address the special question of reporting

EHSs even when EHSs are present in

mixtures, the Agency did not take away

or in any way alter the option provided in the statute of reporting on mixtures as

a whole or by hazardous component.

Proposed § 370.28(b) required facilities

to report the presence of EHSs at their

facility if they were present in abovethreshold quantities, but provided.

facilities with the option of reporting

those EHSs either as components of

mixtures or reporting the mixture as a

whole. Proposed § 370.28(b) stated:

(3) If extremely hazardous substances are hazardous components of a mixture, the

quantity of the extremely hazardous

substance in each mixture shall be

aggregated to determine if the threshold

value has been reached for the facility.

Reporting may be accomplished by reporting on the component or the mixture even if the

amount of the mixture(s) is below the

reporting threshold.

To supplement this regulatory language,

EPA proposed the addition of a box on

the Tier H form whereby facilities that

chose to report a mixture as a mixture

(rather than by component) would be

required to check whether the mixture

contained an EHS.

Some commenters did not understand

EPA's intent in proposing these

amendments, others stated that the

proposed regulatory language was

confusing, and others questioned the

utility of the information received. As a

consequence, EPA is promulgating

language In I 370.28(c) to clarify the

reporting requirements in § 370.28. None

of the comments received led the

Agency to change the reporting

requirements as proposed.

Stated as simply as possible, § 370.28

requires facilities to aggregate each

EHS, whetherit is present as a mixture

component or in its pure form.

Aggregation of non-EHS hazardous

chemicals present in mixtures and in

their pure form is not required, but may

be done if a facility is reporting all

hazardous chemicals in mixtures by

component. If a facility has an EHS, and

its quantities within mixtures and in its

pure form equal or exceed its applicable

threshold, the facility must report that

El-IS. Once the necessity of reporting

that EHS is established, the facility has

two primary choices in the manner in

which it reports this EHS. The facility

may either report the EHS separately as

a component of one or several different

mixtures, or may report the EHS by

reporting the mixture of which the EHS

is a part. For example, if five mixtures

each contained 100 pounds of methyl

mercaptan (an Fl-IS), reporting could be

accomplished by reporting 500 pounds

of methyl mercaptan (reporting by

component) or by reporting the five

mixtures separately.

EPA is requiring that only EHSs be

aggregated; aggregation of non-El-IS

hazardous chemicals in different

mixtures at a facility is not required.

Congress' intent that aggregation be

permitted in setting thresholds is clear

from the Conference Report. The

requirement to aggregate EHSs under

section 311 Is consistent with the

requirements under section 302 of title

III. EPA views EHSs to be a special

class of hazardous chemicals. EPA

anticipates that LEPCs will request

information on EHSs present at a

facility, and routine reporting of that

information under sections 311 and 312

should facilitate the planning process.

EPA is not requiring the aggregation of

non-EHS hazardous chemicals at

facilities because of the potential burden

that would impose on facilities, because

EPA has determined that data on EHSs

generally have greater emergency

planning and right-to-know value to

communities than do data on other

chemicals, and because information on

those hazardous chemicals is not

required under section 302 of title III.

The aggregation requirement of this rule

maintains the option granted in the title

III statute that owners or operators of

facilities be able to report either by

component or by mixture. The

requirement that only EHSs be

aggregated across mixtures In order to

determine whether a threshold is met

maximizes the information about one

group of hazardous chemicals (i.e.,

EHSs), while maintaining a

manageable program.

The following describes how to report

above-threshold EHSs on a Tier 11 form

where the facility is reporting some

mixtures as a mixture and some

mixtures by component. When filling out

a Tier H form and reporting some

mixtures as mixtures and some by

component, the facility must do two

things. First, for any mixture containing

the above-threshold EHS that the

facility is reporting by component, the

facility must report the above-threshold

EHS separately by chemical description,

physical and health hazard, inventory

and storage code and location. When

reporting inventory information

(maximum and average daily amount

and number of days on-site), the facility

should calculate or refer to those

quantities of the EHS that are present

only in the mixtures that the facility is

reporting by component; the facility

need not include within these

calculations the amounts of the abovethreshold EHS that are contained within

mixtures that the facility is reporting as

a mixture. Similarly, when reporting the

storage code and location for the abovethreshold EHS, the facility should list all

storage codes and locations of any

mixture containing the above-threshold

EHS that the facility is reporting by

component; the facility need not refer to

the location or storage code of any

mixture containing the E-IS that the

facility is reporting as a mixture.

Second. for any mixture containing an

EHS that the facility is reporting as a

HeinOnline -- 55 Fed. Reg. 30640 1990
Federal Register / Vol. 55, No. 144 / Thursday, July 26, 1990 / Rules and Regulations

mixture, the facility must check the box

labelled "EHS" to indicate that the

mixture contains an above-threshold

EHS, and must also write the name of

the above-threshold EHS(s) contained

within the mixture on the line provided.

When filling out the inventory

information, the facility should include

in the calculation only those quantities

of the same mixture and should follow a

similar procedure when filling out the

storage code and location information.

One commenter stated that EPA

should establish a minimum percentage

of a mixture below which EHS

components would not have to be

aggregated for reporting. EPA agrees

and directs the commenter to the section

on "calculation of quantity" at 40 CFR

part 370.28, which states that only

components greater than I percent or

0.1 percent for carcinogenic components,

are reportable. Nevertheless, if the

owner or operator of a facility suspects

that an EHS is present in a mixture, the

entire mixture should be reported

because the identity and quantity of the

EHS is unknown and, therefore, cannot

be aggregated with any accuracy with

other quantities of EHSs present at the

facility.

One commenter stated that the

requirement to aggregate EHSs in

mixtures should only be applied when

the El-IS retains some of its

characteristics in the mixture. EPA does

not agree with this comment because

determining whether an EHS retains its

characteristics in a mixture cannot be

easily done. Also, EPA believes that

only rarely would an El-IS be a

component of a mixture in a

concentration greater than 1 percent or

0.1 percent if carcinogenic and not retain

its characteristics. Thus, if a mixture

requires an MSDS, the owner or

operator should consider the component

EHSs in making threshold calculations. . One commenter suggested that section

370.28 be redrafted to provide that only

those hazardous chemicals or "extrahazardous" substances in the same kind

of mixture be aggregated to determine

whether the reporting threshold is

exceeded. EPA disagrees. The

aggregation requirement applies to

emergency planning notification under

section 302 as well as to the inventory

reporting requirements of sections 311

and 312. EPA does not believe that

modifying the aggregation requirement

as the commenter suggests would

adequately support planning for

emergencies involving EHSs. Also.

hazardous chemicals found in different

mixtures can have synergistic reactions.

EPA believes that it is especially

important, therefore, that EHSs present

at a facility be aggregated across all

mixtures.

Another commenter urged that, for

purposes of determining reporting

thresholds, the hazardous components

of crude oil be excluded. EPA sees no

reason to exclude components of crude

oil from the requirement to aggregate

EHSs for purposes of determining

whether reporting thresholds have been

reached. Any EHS component of crude

oil must be aggregated unless the crude

oil is reported as a mixture. Non-EHS

components of a mixture, including

crude oil, need not be aggregated.

E. Implementation of Title III by Indian

Tribes on Indian Lands

In today's rule EPA is promulgating its

proposal in the March 29, 1989 NPRM, to

designate Indian Tribes as the

implementing authority for title III on all

lands within "Indian Country."

Accordingly, the chief executive officer

of the Tribe is responsible for the

functions of the State governor under

SARA section 301, including the

appointment of an emergency response

commission for the Tribe. This tribal

commission would then be responsible

for carrying out the duties of the SERC,

including the designation of local

emergency planning districts and the

appointment of an emergency planning

committee for each district. The district

emergency planning committee will

carry out the same functions as a LEPC

in the local emergency planning districts

designated by a SERC. Also, for

facilities located within Indian country,

the fire department run by the Tribe will

be the fire department designated to

receive section 311 and 312 reports.

Finally, section 313 of title III requires

that the State governor designate an

entity to be responsible for managing

toxic release inventory data. In Indian

country, this entity would be designated

by the chief executive officer of the

Indian Tribe.

Several commenters endorsed EPA's

proposal to recognize tribal sovereignty

over environmental protection on Indian

lands and to provide for tribal

implementation of title III in a manner

equivalent to implementation by State

and local governments within their

respective jurisdictions.

One commenter stated that Congress

did not intend title III to be implemented

separately on Indian lands by Indian

Tribes because title III lacks any

reference to Indian Tribes or lands and

the title III definition of the term "State"

does not include Indian Tribes. Two

commenters asserted that the Indian

Tribes activities in implementing title III

should be similar to the activities of the

LEPCs and come under the authority of

a SERC.

EPA does not agree that

implementation of title III on Indian

lands should be under the authority of a

State or SERC. Although title III lacks an

explicit reference to Indian Tribes or to

the implementation of the Act on Indian

lands, EPA believes, based on the

legislative history of SARA, that

Congress clearly intended that the

protection of title III apply to all persons

inhabiting Indian lands. Title III

emphasizes emergency response

planning and chemical awareness at the

local level. When applied to Indian

lands, this supports implementation of

the Act by tribal authorities. EPA

believes that in the absence of clear

legislative intent on who should

implement the statute on Indian lands,

EPA has the discretion to designate the

Indian Tribes as the implementing

authority. Also, under applicable law on

Indian jurisdiction, States are generally

precluded from exercising jurisdiction

over Indians in Indian country absent a

clear expression of congressional intent

to the contrary. Nothing in the language

or legislative history of title III suggests

that Congress intended to subject Indian

Tribes to State regulation on Indian

lands, especially in an area of such

importance to the health, safety, and

welfare of the Indian community as

chemical emergency response planning.

One commenter stated that owners or

operators of facilities on Indian lands

should report to State and local officials

to avoid hindering effective emergency

planning and response. EPA does not

believe that Indian tribal jurisdiction

over Indian lands will hinder effective

implementation of title III. Effective

emergency response planning requires

that no more than one entity be

responsible for implementing the

program in a given area. While States

may be unable to exercise jurisdiction

over Indian-owned facilities in Indian

country, Indian Tribes generally can

exercise civil regulatory authority over

Indians and non-Indians on Indian lands

with regard to matters affecting the

health and welfare of the Tribe. (See

Montana v. United States, 450 U.S. 544,

566 (1981).) This authority is sufficient to

fully implement the requirements of title

III.

One commenter expressed concern

that releases from facilities located on

Indian lands may affect areas outside

Indian jurisdiction, thereby requiring a

State or local response. EPA believes

this problem is endemic to any

emergency response scheme that relies

on reporting to local officials. By

definition, any release has the potential

30641

HeinOnline -- 55 Fed. Reg. 30641 1990
30642 Federal Register / Vol. 55, No. 144 / Thursday, July 26, 1990 / Rules and-Regulations

to affect areas outside the boundaries of

the local jurisdiction and, therefore, to

affect more than one local jurisdiction or

more than one State. This concern was

recognized in the legislation under

section 304(b](1) which requires that

notice be provided to all SERC(s) and

I.EPC(sJ likely to be affected by the

release. Response to such releases can

be handled in the same way that crossjurisdictional releases from facilities

outside Indian lands are handled, by

cooperation between the authorities of

the affected jurisdictions. EPA

encourages Indian Tribes, SERCs, and

LEPCs to participate in joint planning

and cooperative efforts to prepare for

such potential emergencies.

Four commenters urged EPA to

promulgate regulations to protect Indian

Tribes that choose not to develop title III

program capabilities and to ensure that

there are no gaps in the health and

environmental protection program

established by title lII. Under title III,

the Federal government is not

responsible for implementation prior to

delegating responsibility to respective

State, local, or Tribal authorities. The

statute requires State and local

authorities to carry out the

recordkeeping and emergency planning

functions of title III. EPA's responsibility

i3 to establish the program by

promulgating necessary regulations, and

by providing guidance, training, and

technical assistance. EPA believes that

Indian Tribes are the appropriate

government authority for implementing

title III in Indian country and, therefore,

Tribes have the same obligations as

States and local authorities under the

law. EPA, however, does recognize its

obligation, consistent with EPA policy,

to help Tribes carry out their

responsibilities, and intends to provide

guidance, training, and technical

assistance tailored to the needs and

capabilihies of Indian Tribes.

Although endorsing EPA's approach,

several commenters questioned whether

Tribes have sufficient resources to carry

out the implementation of title II. EPA

recognizes that resources are limited on

Indian lands, but believes that basic

emergency planning can be

accomplished with minimal resources.

To satisfy basic requirements, tribal

authorities must develop emergency

plans and establish a mechanism to

disseminate to the public information

submitted by facilities under the

reporting requirements of the plan. The

Tribe is not required! to develop the

capability to respond to all releases of

hazardous material. In many cases,

Tribes, like rural or small communities.

will not be able to equip, train, and

maintain a hazardous material response

capability for significant releases.

Nonetheless, Tribes can determine how

they will deal with releases until

assistance can be obtained. . One commenter asked whether EPA

would phase in title Ill implementation

on Indian lands and establish new

deadlines for submitting MSbSs and

emergency inventory forms and for

preparing emergency plans. EPA is not'

establishing new regulatory deadlines in

today's final rule. EPA does not believe

that there is an apparent programmatic

benefit to establishing new deadlines. It

is imperative that facilities on Indian

lands that have not complied with

reporting provisions begin as soon as

possible so that Tribes can assess their

readiness to respond to chemical

mishaps and to work with owners and

operators of facilities to reduce the

potential of their occurrence.

Communities, including Indian Tribes,

therefore, should not delay in identifying

and addressing these risks.

In the March 29, 1989 NPRM, EPA

noted that any Tribe may enter into a

cooperative agreement with another

Tribe, or with the State(s) within which

its lands are located to achieve a

workable title IlI program. EPA also

solicited comment on whether it should

institute a formal procedural mechanism

for such cooperative agreements. Nine

commenters supported instituting a

mechanism for cooperative agreements

and recommended that public notice of

such agreements be published. EPA

agrees that a formal procedural

mechanism for cooperative agreements

would be useful to facilitate the

exchange of information. The final rule,

therefore, requires any Tribe that has

entered into a cooperative agreement

With a State, to submit a copy of the

signed agreement to the EPA Regional

office in the EPA R3gion where the Tribe

and State are located, within 60 days of

signing the agreement. EPA will

annually publish a list of any new

agreements and copies of the

agreements will be available from EPA

Regional offices.

Another commenter requested that

EPA define "cooperative agreement"

and provide specific guidance for the

development of such agreements; For

purposes of title III, cooperative

agreement is any formal arrangement

reached by States and Tribes that meets

the needs of the parties to the agreement

and is entered into with full knowledge

and consent. Each agreement is

expected to be unique and to address

the specific needs of the parties. Tribes

may tailor cooperative agreements to

authorize a State to implement

provisions of the title III program that

the Tribe is not prepared to undertake.

EPA will endeavor to provide technical

assistance on developing cooperative

agreements to Tribes and States, but

neither this assistance nor the

publication of lists of parties to

cooperative agreements should be

considered an approval process. Tribes,

like States, may enter into cooperative

agreements without Federal oversight.

F. Miscellaneous Issues

Two commenters urged EPA to

evaluate ways to minimize thp

paperwork burden. One commenter

suggested that the timeframe for

reporting status changes at facilities be

changed from 90 to 180 days. Another

commenter suggested that the option

under section 311 to submit MSDSs

Instead of a list of chemicals should be

eliminated. Section 311(d)(2) of SARA

title III specifies the timeframe for

reporting updates under section 311. The

option to submit MSDSs or chemical

lists is also specified in the statute.

States and localities, however, are not

prohibited from acting under authority

of local law and developing

requirements stipulating the submission

of lists.

Several commenters requested

exemptions from reporting requirements.

One commenter requested an exemption

from a hazardous chemical that remains

on-site less than 90 days. Another

commenter stated that a remote facility

served solely by a volunteer fire

department should be exempt from

reporting requirements. EPA is not

granting any additional reporting

exemptions in today's -final rule. EPA

does not agree that a hazdrdous

chemical on site for less than 90 days

should be exempt from section 311 and

312 reporting requirements. It was the

intent of Congress to provide the public

with access to information on all

hazardous chemicals present at

facilities, without regard to the length of

time they are on site. Similarly, EPA

believes that facilities should be subject

to reporting requirements regardless of

location. Information about such

facilities could be very useful in

emergency response situations.

One commenter stated that the

exemption from reporting for "articles"

in sections 311 and 312 should also

apply to section 302 reporting. EPA does

not believe that Congress intended that

there be such an exemption from the

planning notification requirement,

under section 302.

Another commenter stated that small

laboratories used for process analysi,

should be exempt from the reporting

HeinOnline -- 55 Fed. Reg. 30642 1990
Federal Register / Vol. 55, No. 144 1 Thursday, July 26, 1990 / Rules and Regulations

requirements under sections 311 and

312. EPA agrees that such laboratories

are exempt from section 311 and 312

reporting so long as they are exempt

from the OSHA Hazard Communication

Standards (see 52 FR 38347; October 15,

1987).

One commenter asserted that the rule

should state that transporters should

report releases to the National Response

Center (NRC), which would notify the

appropriate SERC, which would, in turn,

notify the appropriate LEPC. Thus,

transporters would not be required to

notify SERCs and LEPCs directly. EPA

does not agree that the NRC should

make such notifications for transporters.

The statute requires transporters to

notify SERCs and LEPCs directly. The

NRC is developing a computer link,

however, that would facilitate direct

notification of SERCs as well as EPA

Regional offices of a release notification.

When a link is fully operational, EPA

will consider modifying today's

regulation to allow the NRC's

notification of the SERC to partially

satisfy the reporting requirements under

title I1, section 304. Until such time,

however, facilities and transporters

must notify SERCs and LEPCs directly

of a reportable release.

Several commenters requested that

EPA consider using the metric

designations required in the Omnibus

Trade Act of 1988 because all

government agencies will be required to

use the metric system in 1992. EPA

agrees with the commenters that metric

designations are important and has

included metric units in today's final

rule.

Five commenters asked EPA to

require that States adopt uniform

reporting thresholds. EPA cannot require

States to adopt uniform reporting

thresholds because title M does not

preempt State and local laws. EPA

considered State laws in making its

decision on final thresholds and

encourages States to consider the

burden imposed on industry when

developing their laws. Nonetheless,

States are free to tailor their reporting

requirements to their unique concerns.

One commenter requested that, for

purposes of section 304 reporting, the

term facility should include vessels. EPA

cannot agree because to the extent that

vessels are not "stationary items" or "motor vehicles, rolling stock [or]

aircraft," vessels are outside the

statutory scope of the title III definition

of facility. Releases of hazardous

substances from vessels, however, may

require notification under CERCLA

section 103 and/or the Clean Water Act.

V. Regulatory Analyses

A. Regulatory Impact Analysis

Executive Order (E.O.) 12291 requires

each Federal agency to determine if a

regulation is a "major" rule as defined

by the order and to prepare and

consider a Regulatory Impact Analysis

(RIA) in connection with every major

rule. Under E.O. 12291, a "major" rule is

one that is likely to result in (1) an

annual cost to the economy of $100

million or more, (2) a major increase in

costs or prices for consumers, individual

Industries, Federal, State, or local

governments, or geographical regions, or

(3) significant adverse effects on

competition, employment, investment,

productivity, innovation, or the ability of

United States-based enterprise to

compete In domestic or export markets.

The RIA in support of this rulemaking

shows that today's regulation is nonmajor because It results in an annual

cost to the economy of between $58 and

$72 million and does not cause any of

the other adverse effects listed above.

The RIA, formally entitled "Regulatory

Impact Analysis in Support of a Final

Reporting Threshold under sections 311

and 312 of the Emergency Planning and

Community Right-to-Know Act," is

available for inspection in the docket

supporting this rulemaking. The RIA

describes the steps used to estimate the

total number of facilities affected by the

regulation, the cost of the regulation on

a per-facility and national basis, the

estimated benefits of the regulation, and

any potential economic impacts of the

regulation. This section briefly discusses

the findings of the RIA.

1. Number of Affected Facilities and

Covered Chemicals

As discussed above, EPA reviewed

data on chemical usage and storage

available from several States and cities.

The databases developed by the Los

Angeles City Fire Department and by

New Jersey's Right-to-Know program

were used in the RIA to estimate the

number of facilities, the number of

chemicals, and the number of pounds of

chemicals that would be reported under

the different reporting threshold options.

The data include information on a crosssection of facilities representing a large

number of industries in both the

manufacturing and non-manufacturing

sectors, contain the largest number of

individual observations relative to other

available data, and are representative of

a broad list of chemicals similar to those

subject ot the OSHA HCS regulations.

EPA acknowledges that there is a

certain degree of imprecision associated

with extrapolations from regional data.

For example, facilities in the City of Los

Angeles may not be representative of

facilities in other parts of the nation. To

help compensate for this limitation, two

separate regional databases were

evaluated. The Agency extrapolated

both data sets on an SIC code basis.

That is, facilities in each SIC code were

examined separately to estimate the

number of facilities that would be likely

to report at each threshold level and the

number of chemicals likely to be

reported. When the analysis was

performed on an individual SIC code

basis, the national estimates were

derived separately for each database by

aggregating the individual SIC code

estimates. The extrapolation

methodology, however, does assume

that facilities in the City of Los Angeles

and New Jersey in a particular SIC code

are similar to facilities in other parts of

the nation In that SIC code.

2. Estimated National Cost of the

Alternative Thresholds

EPA has estimated the potential cost

of each of the alternative reporting

thresholds. The methodology follows the

same general procedures that were used

in support of the October 15, 1987 final

rule, and uses the same unit cost

estimates developed under that

rulemaking. Only two adaptations have

been made in the analysis. First, SERCs.

LEPCs, and fire departments are

assumed to have taken the steps to

familiarize themselves with the

reporting requirements, to have

established recordkeeping systems, and

to have developed any required public

notices about the availability of data.

Second, facilities currently subject to the

rule are assumed to have developed the

necessary recordkeeping and reporting

systems.

The unit costs for manufacturers are

assumed to vary by facility size,

reflecting the greater number of

hazardous chemicals present at larger

facilities and the potential for more

elaborate decision-making processes.

Unit costs for non-manufacturers are

assumed to be the same as those for

small manufacturers (employment of

less than 20). This assumption is based

on the preponderance of small facilities

in the non-manufacturing sector (about

80 percent of all non-manufacturing

facilities employ fever than 20

employees), as well as the small average

number of hazardous chemicals located

at such facilities.

Total costs are estimated in each year,

using cost estimates expressed in 1987

dollars (that is, the analysis does not

include inflation). The table below

shows the total estimated expenditure in

each year (in 1987 dollars), as well as

30643

HeinOnline -- 55 Fed. Reg. 30643 1990
30644 Federal Register / Vol. 55, No. 144 1 Thursday, July 26, 1990 / Rules and Regulations

the present value costs and the equivalent annual cost for each of the

six options. _

SUMMARY OF ESTIMATED TOTAL COSTS, FISCAL YEARS 1990-2000

[Million dollars]

Fiscal year Present Equivalent Option value annual

1990 costs 1991 costs costs costs

1: 50,000 lbs. ........................................................................................................................................................................... 16-23 67-87 41%-505 49-80

2: 10,0001500 or IPO ............................................................................................................................................................ 3-14 55-74 457-606 54-72 3:10,000/500/500 or TPQ ................................................................................................................................................... 61-62 144-184 706-891 83-107 4: 2,000500/500 or TPQ ...................................................................................................................................................... 81-97 188-247 800-1,066 102-126 5: 500 for all chemicals I .......................................................................................................................................................... 113-136 294-336 905-1,326 116-158 6: zero for all chem ilca ls ......................................................................................................................................................... 149 303 1,295 153

The final reporting threshold will be in

effect beginning on October 17, 1990 for

all sectors of industry. Because initial

compliance with the requirements of

section 311 was completed by April 1,

1989, only ongoing activities under

section 311, such as submittal of revised

or new MSDSs, are included in the cost

calculations. Most of the costs presented

in the table, therefore, are attributable

to filing and processing the section 312

Tier I and Tier II forms.

B. Regulatory Flexibility Act

1. Purpose

Under the Regulatory Flexibility Act,

whenever an-agency issues a proposed

or final rule, it must prepare and make

available a Regulatory Flexibility

Analysis that describes the impact of

the rule on small entities (i.e., small

businesses, small organizations, and

small government jurisdictions), unless

the agency's administrator certifies that

the rule will not have a significant

impact on a substantial number of small

entities. Chapters 5 of the RIA

supporting this rule addresses the

impact of this rule on small businesses.

2. Certification

On the basis of the analysis contained

in the RIA with respect to the impact of

this rule on small entities, I hereby

certify that this rule will not have a

significant impact on a substantial

number of small entities. This rule,

therefore, does not require a Regulatory

Flexibility Analysis.

List of Subjects

40 CFR Part 350

Chemicals, Confidential business

information, Hazardous substances,

Superfund, Intergovernmental relations.

40 CFR Part 355

Chemicals, Hazardous substances,

Reporting and recordkeeping

requirements.

40 CFR Part 370

Chemicals, Hazardous substances,

Superfund, Reporting and recordkeeping

requirements.

40 CFR Part 372

Chemicals, Reporting, and

recordkeeping requirements.

Dated: July 9, 1990.

William K. Reilly,

Administrator.

For the reasons set out in the

Preamble, parts 350, 355, 370, and 372 of

subtitle J of title 40 of the Code of

Federal Regulations are amended as

follows:

PART 350-TRADE SECRECY CLAIMS

FOR EMERGENCY PLANNING AND

COMMUNITY RIGHT-TO-KNOW

INFORMATION AND TRADE SECRET

DISCLOSURE TO HEALTH

PROFESSIONALS

1. The authority citation for part 350

continues to read as follows:

Authority: 42 U.S.C. 11042, 11043, and

11048.

2. Section 350.1 is amended by adding

the following definitions:

§ 350.1 Definition. * * * *t

Chief Executive Officer of the tribe means the person who is recognized by

the Bureau of Indian Affairs as the chief

elected administrative officer of the

tribe.

* * * * *

Commission means the emergency

response commission for the State in

which the facility is located except

where the facility is located in Indian

Country, in which case, commission means the emergency response

commission for the tribe under whose

jurisdiction the facility is located. In the

absence of an emergency response

commission, the Governor and the chief

executive officer, respectively, shall be

the commission. Where there is a

cooperative agreement between a State

and a Tribe, the commission shall be the

entity identified in the agreement. * * * * *r

Facility means all buildings,

equipment, structure, and other

stationary items that are located on a

single site or on contiguous or adjacent

sites and which are owned or operated

by the same person (or by any person

which controls, is controlled by, or

under common control with, such

person). Facility shall include manmade structures as well as all natural

structures in which chemicals are

purposefully placed or removed through

human means such that it functions as a

containment structure for human use.

For purposes of emergency release

notification, the term includes motor

vehicles, rolling stock, and aircraft.

Indian Country means Indian country as defined in 18 U.S.C. 1151. That

section defines Indian country as:

(a) All land within the limits of any

Indian reservation under the jurisdiction

of the United States government,

notwithstanding the issuance of any

patent, and including rights-of-way

running through the reservation;

(b) All dependent Indian communities

within the borders of the United States

whether within the original or

subsequently acquired territory thereof,

and whether within or without the limits

of a State; and

(c) All Indian allotments, the Indian

titles to which have not been

extinguished, including rights-of-way

running through the same.

Indian tribe means those tribes

federally recognized by the Secretary of

the Interior.

Local emergency planning committee

or committee means the local emergency

HeinOnline -- 55 Fed. Reg. 30644 1990
Federal Resister I Vol. 55, No. 144 I Thursday, luly 26, 1990 I Rules and Regulations 30645

planning committee appointed by the

emergency response commission.

State means any State of the United

States, the District of Columbia, the

Commonwealth of Puerto Rico, Guam,

American Samoa, the United States

Virgin Islands, the Northern Mariana

Islands, and any other territory-or

possession over which the United States

has jurisdiction and Indian Country. * * * * *t

PART 355-EMERGENCY PLANNING'

AND NOTIFICATION

3. The authority citation for part 355

continues to read as follows:

Authority: 42 U.S.C. 11002, 11003, 11004,

11045. 11048, 11049.

4. Section 355.20 is amended by

revising the definitions of commission

and facility and by adding the

definitions, Chief Executive Officer of

the tribe, committee, Indian Country,

Indian tribe, and state to read as

follows:

§ 355.20 Definitions.

Chief Executive Officer of the tribe

means the person who is recognized by

the Bureau of Indian Affairs as the chief

elected administrative officer of the

tribe.

Commission means the emergency

response commission for the State in

which the facility is located except

where the facility is located in Indian

Country, in which case, commission

means the emergency response

commission for the tribe under whose

jurisdiction the facility is located. In

absence of an emergency response

commission, the Governor and the chief

executive officer, respectively, shall be

the commission. Where there is a

cooperative agreement between a State

and a Tribe, the commission shall be the

entity identified in the agreement.

Committee or Local emergency

planning committee means the local

emergency planning committee

appointed by the emergency response

commission.

* * * *r *

Facility means all buildings,

equipment, structure, and other

stationary items that are located on a

single site or on contiguous or adjacent

sites and which are owned or operated

by the same person (or by any person

which controls, is controlled by, or

under common control with, such

person). Facility shall include manmade

structures in which chemicals are

purposefully placed or removed through

human means such that it functions as a

containment structure for human use.

For purposes of emergency release

notification, the term includes motor

vehicles, rolling stock, and aircraft.

Indian Country means Indian country

as defined in 18 U.S.C. 1151. That

section defines Indian country as:

(a) All land within the limits of any

Indian reservation under the jurisdiction

of the United States government,

notwithstanding the issuance of any

patent, and including rights-of-way

running through the reservation;

(b) All dependent Indian communities

within the borders of the United States

whether within the original or

subsequently acquired territory thereof,

and whether within or without the limits

of a State; and

(c) All Indian allotments, the Indian

titles to which have not been

extinguished, including rights-of-way

running through the same.

Indian tribe means those tribes

federally recognized by the Secretary of

the Interior.

State means any State of the United

States, the District of Columbia, the

Commonwealth of Puerto Rico, Guam,

American Samoa, the United States

Virgin Islands, the Northern Mariana

Islands, any other territory or

possession over which the United States

has jurisdictions and Indian Country.

PART 370-HAZARDOUS CHEMICAL

REPORTING: COMMUNITY RIGHT-TOKNOW

5. The authority citation for part 370

continues to read as follows:

Authority: 42 U.S.C. 11011, 11012,11024,

11025, 11028, 11029.

6. Section 370.2 is amended by

revising the definitions of facility,

commission, Committee, and State and

by adding the definitions, chief

Executive Officer of the tribe, Indian

Country, and Indian tribe to read as

follows:

§ 370.2 Definitions.

Chief Executive Officer of the tribe

means the person who is recognized by

the Bureau of Indian Affairs as the chief

elected administrative officer of the

tribe.

Commission means the emergency

response commission for the State in

which the facility is located except

where the facility is located in Indian

Country, in which case, commission

means the emergency response

commission for the Tribe under whose

jurisdiction the facility is located. In

absence of an emergency response

commission, the Governor and the chief

executive officer, respectively, shall be

the commission. Where there is a

cooperative agreement between a State

and a Tribe, the commission shall be the

entity identified in the agreement.

Committee or local emergency

planning committee means the local

emergency planning committee

appointed by the emergency response

commission.

* * t *t *

Facility means all buildings,

equipment, structure, and other

stationary items that are located on a

single site or on contiguous or adjacent

sites and which are owned or operated

by the same person (or by any person

which controls, is controlled by, or

under common control with, such

person). Facility shall include manmade

structures as well as all natural

structures in which chemicals are

purposefully placed or removed through

human means such that it functions as a

containment structure for human use.

For purposes of emergency release

notificatiori, the term includes motor

vehicles, rolling stock, and aircraft.

Indian Country means Indian country

as defined in 18 U.S.C. 1151. That

section defines Indian country as: (a) All land within the limits of any

Indian reservation under the jurisdiction

of the United States government,

notwithstanding the issuance of any

patent, and including rights-of-way

running through the reservation;

(b) All dependent Indian communities

within the border of the United States

whether within the original or

subsequently acquired territory thereof,

and whether within or without th6 limits

of a State; and

(c) All Indian allotments, the Indian

titles to which have not been

extinguished, including rights-of-way

running through the same.

Indian tribe means those tribes

federally recognized by the Secretary o,

the Interior.

State means any State of United

States, the District of Columbia, the

Commonwealth of Puerto Rico, Guam,

American Samoa, the United States

Virgin Islands, the Northern Mariana

Islands, and any other territory or

possession over which the United Sta, e

has jurisdiction and Indian Country.

7. Section 370,20 is revised to read as

follows:

/Rules and Regulations Federal Register / Vol. 55, No. 144 / Thursday, July 26, 1990 30645

HeinOnline -- 55 Fed. Reg. 30645 1990
30646 Federal Register / Vol. 55, No. 144 / Thursday, July 26, 1990 / Rules and Regulations

§ 370.20 Applicability.

(a) General. The requirements of this

subpart apply to any facility that is

required to prepare or have available a

material safety data sheet (MSDS] for a hazardous chemical under the,

Occupational Safety and Health Act of

1970 and regulations promulgated under

that Act.

(b) Minimum threshold levels. Except as provided in paragraph (b)(3) of this

section, the minimum threshold level for

reporting under this subpart shall be as specified in paragraphs (b](1) and (b][2)

of this section.

(1) The owner or operator of a facility

subject to this subpart shall submit an

MSDS on or before October 17, 1990 (or

within three months after the facility

first becomes subject to this subpart),

for all'hazardous chemicals present at

the facility at any one time in amounts

equal to or greater than 10,000 pounds

(or 4,540 kgs.) and for all extremely

hazardous substances present at the

facility in an amount greater than or

equal to 500 pounds (or 227 kg.-

approximately 55 gallons) or the TPQ,

whichever is lower.

(2) The owner or operator of a facility

subject to this subpart shall submit the

Tier I form (or Tier II form) on or before

March 1, 1991 (or March I of the first

year after the facility first becomes a subject to this subpart), and annually

thereafter, covering all hazardous

chemicals present at a facility at any one time during the preceding calendar

year in amounts equal to or greater than

10,000 pounds (or 4,540 kgs.) and

extremely hazardous substances present

at the facility in an amount greater than

or equal to 500 pounds (or 227 kgs.-

approximately 55 gallons) or the TPQ,

whichever is lower.

(3) The minimum threshold for

reporting in response to requests for

submission of an MSDS or a Tier II form

under §§ 370.21(d) and 370.25(c) of this

part shall be zero.

8. Section 370.28 is revised to read as

follows:

§ 370.28 Mixtures.

(a) Basic reporting. The owner or

operator of a facility may meet the

reporting requirements of § § 370.21

(MSDS reporting) and 370.25 (inventory

form reporting) of this subpart for a

hazardous chemical that is a mixture of

hazardous chemicals by:

(1) Providing the required information

on each component in the mixture which

is a hazardous chemical; or

(2) Providing the required information

on the mixture itself, so long as the

reporting of mixtures by a facility under

§ 370.25 is in the same manner as under

§ 370.21, where practicable.

(b) Calculation of the quantity. (1) If

the reporting is on each component of

the mixture which is a hazardous

chemical, then the concentration of the

hazardous chemical, in weight percent

(greater than 1% or 0.1% if carcinogenic)

shall be multiplied by the mass (in

pounds) of the mixture to determine the

quantity of the hazardous chemical in

the mixture.

(2) If the reporting is on the mixture

itself, the total quantity of the mixture

shall be reported.

(c) Aggregation of extremely

hazardous substances. (1) To determine

whether the reporting threshold for an

extremely hazardous substance has

been equaled or exceeded, the owner or

operator of a facility shall aggregate the

following:

(il The quantity of the extremely

hazardous substance present as a

component in all mixtures at the facility,

and

(ii) All other quantities of the

extremely hazardous substance present

at the facility.

If the aggregate quantity of an extremely

hazardous substance equals or exceeds

the reporting threshold, the substance

shall be reported.

(2) If extremely hazardous substances

are being reported and are components

of a mixture at a facility, the owner or

operator of a facility may report either:

(i) The mixture, as a whole, even if the

total quantity of the mixture is below its

reporting threshold; or

(ii) The extremely hazardous

substance component(s) of the mixture. . 9. Section 370.40 is revised to read as

follows:

§ 370.40 Tier I emergency and hazardous

chemical Inventory form.

(a) The form set out in paragraph (b)

of this section shall be completed and

submitted as required in § 370.25(a) of

this part. In lieu of the form set out in

paragraph (b) of this section, the facility

owner or operator may submit a State or

local form that contains identical

content.

(b) Tier I Emergency and Hazardous

Chemical Inventory Form.

8ILLIWG CODE G56--U

HeinOnline -- 55 Fed. Reg. 30646 1990
Federal Register / Vol. 55, No. 144 / Thursday, July 26, 1990 / Rules and Regulations 30647

Page - of pages

Revised June 1990 Form Approved OMB No. 2050-0072 EMERGENCY AND HAZARDOUS iiii iiiii:©,;: !' i!

Tier One CHEMICAL INVENTORY CRW

Agarq ate Information by Hazard Type Dam Re*W d

d -on U ....... 

.. 

...... .... 

...... ......... 

....... m ...... .... ..... ... 

.

..... 

I-, ...

..........

...... 

......... ........ 

........ 

......... 

.......... .... 

.

% ............... ....... ....... 

... 

.. 

...... ... ... 

..

... ... . ..

... .. ... .. ................. ... ........ .......

NAM

strw

CRY County Swe ;nP

Sr- Code Dun & Bnmd ,U,,Wc=-r= rT=

Nano

Mal Address

Pone )

ReportIng Period

___________________________________________________ .5 - ~0

FPm Jatuay I toDecente 31, 19..

Nan _ _

Title__ _ _ _ _ _ _ _ _ _ _

Phone

24 How Phone ( )

Name

Title _______________

Phone ( I

24 Nowr Phone )

B B 1.J m.gmum, e~remu .ini

GeneralLocation E ]Cheek if the Plan I attached

SudnReleTve of Pressure ED I

Reac~ lt -'ivi'ty I I

I

mm ditSeD E___________

Delayed (Chrnc) L.L.. .... EE

I mtly unde peahyto low tm I has Personaly exarW aid m Ilfwid wldi

dhe I rmloan su d In pags am dmugh _ . aid di based on my

biquity dfdmoe kiddiii ;spu 1 bain i lnouim.Ibdlwvethea

the eab nit d blwnian ie trus, muua and oomydss

Narm and fldd titlsd owwi/maw OR oww ra ore aultoirhed pesentatlve

Slgnsur Owes"

BILLNG CODE 6560-50-C

01

02

03

04

05

06

07

08

09

10

I1

Reporting Rang"

Weight Range in Pounds

From... To...

0

100

1000

10,000

100,000

1,000,000

10.000,000

50,000,000

100,000,000

500,000,000

I billion

99

999

9,999

99,999

999,999

9,999,999

49,999,999

99.999,999

499,999,999

999,999,999

higher tan I billion

Important: Read instructions before completing form

Average Nwnber

zard max Daily of Da Amoune Amm On-Sit

HeinOnline -- 55 Fed. Reg. 30647 1990
30648 Federal Register / Vol. 55, No. 144 / Thursday, July 26, 1990 / Rules and Regulations

Tier One Instructions

General Information

Submission of this form is required by

Title III of the Superfund Amendments

andReauthorization Act of 1986, Title

I. Section 312. Public Law 99-499,

codified at 42 U.S.C. § 11022.

Certification

The owner or operator or the officially

designated representative of the owner

or operator must certify that all

information included in the Tier I

submission is true, accurate, and

complete. On the Tier I form, enter your

full name and official title. Sign your

name and enter the current date. Also,

enter the total number of pages in the

submission, including all attachments.

The purpose of this form is to provide

State and local officials and the public

with information on the general types

and locations of hazardous chemicals

present at your facility during the past

year.

You must provide all information

requested on this form.

You may substitute the Tier Two form

for this Tier One form. (The Tier Two

form provides detailed information and

must be submitted in response to a

specific request from State or local

officials.)

Who Must Submit This Form

Section 312 of Title III requires that

the owner or operator of a facility

submit this form if, under regulations

implementing the Occupational Safety

and Health Act of 1970, the owner or

operator is required to prepare or have

available Material Safety Data Sheets

(MSDS] for hazardous chemicals present

at the facility. MSDS requirements are

specified in the Occupational Safety and

Health Administration (OSHA) Hazard

Communication Standard, found in Title

29 of the Code of Federal Regulations at

§ 1910.1200.

This form does not have to be

submitted if all of the chemicals located

at your facility are excluded under

Section 311(e) of Title III or if the weight

of each covered hazardous chemical

never equals or exceeds the minimum

threshold listed in Title III Section 312

during the reporting year.

What Chemicals Are Included

You must report the information

required on this form for every

hazardous chemical for which you are

required to prepare or have available an

MSDS under the Hazard Communication

Standard, unless the chemicals are

excluded ulder Section 311 (e) of Title III

or they are.below the minimum

reporting thresholds.

What Chemicals Are Excluded

Section 311(e) of Title III excludes the

following substances:

(i) Any food, food additive, color

additive, drug, or cosmetic regulated by

the Food and Drug Administration;

(ii) 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;

(iii) Any substance to the exent it is

used for personal, family, or household

purposes, or is present in the same form

and concentration as a product

packaged for distribution and use by the

general public.

(iv) Any substance to the extent it is

used in a research laboratory or a

hospital or other medical facility under

the direct supervision of a technically

qualified individual;

"[v) Any substance to thd extent it is

used In routine agricultural operations

or is a fertilizer held for sale by a

retailer to the ultimate customer.

OSHA regulations, Section 1910.1200(b),

stipulate exemptions from the

requirement to prepare or have

available an MSDS.

Reporting Thresholds

Minimum thresholds have been

established for Tier One/Tier Two

reporting under Title 111, Section 312.

These thresholds are as follows:

For Extremely Hazardous Substances

(EHSs) designated under section 302 of

Title III, the reporting threshold is 500

pounds (or 227 kg.) or the threshold

planning quantity (TPQ], whichever is

lower:

For all other hazardous chemicals for

which facilities are required to have or

prepare an MSDS, the minimum

reporting threshold is 10,000 pounds (or

4,540 kg.).

You need to report hazardous

chemicals that were present at your

facility at any time during the previous

calendar year at levels that equal or

exceed these thresholds. For

instructions on threshold determinations

for components of mixtures, see "What

About Mixtures?" on page 3 of these

instructions.

When To Submit This Form

Owners or operators of facilities that

have hazardous chemicals on hand in

quantities equal to or greater than set

threshold levels must submit either Tier

One or Tier Two Forms by March 1.

Where to Submit This Form

Send one completed inventory form to

each of the followLig organizations:

1. Your State emergency response

commission.

2. Your local emergency planning

committee.

3. The fire department with

jurisdiction over your facility.

Penalties

Any owner or operator of a facility

who fails to submit or supplies false Tier

One information shall be liable to the

United States for a civil penalty of up to

$25,000 for each such violation. Each

day a violation continues shall

constitute a separate violation. In

addition, any citizen may commence a

civil action on his or her own behalf

against any owner or operator who fails

to submit Tier One information.

Instructions

Please Read These Instructions

Carefully. Print or Type all Responses

You may use the Tier Two form as a

worksheet for completing Tier One.

Filling in the Tier Two chemical

information section should help you

assemble your Tier One responses.

If your responses require more than

one page, fill in the page number at the

top of the form.

Reporting Period

Enter the appropriate calendar year.

beginning January 1 and ending

December 31.

Facility Identification

Enter the complete name of your

facility (and company identifier where

appropriate).

Enter the full street address or state

road. If a street address is not available,

enter other appropriate identifiers that

described the physical location of your

facility (e.g., longitude and latitude).

Include city, county, state, and zip code.

Enter the primary Standard Industrial

Classification (SIC) code and the Dun &

Bradstreet number of your facility. The

financial officer of your facility should

be able to provide the Dun & Bradstreet

number. If your firm does not have this

information, contact the State or

regional office of Dun & Bradstreet to

obtain your facility number or have one

assigned.

Owner/Operator

Enter the owner's or operator's full

name, mailing address, and phone

number.

Emergency Contact

Enter the name, title, and work phone

number of at least one local person or

office that can act as a referral If

emergency responders need assistance

HeinOnline -- 55 Fed. Reg. 30648 1990
Federal Register / Vol. .55, No. 144 / Thursday, July. 26, 1990 / Rules and Regulations

in responding to a chemical accident at

the facility.

Provide an emergency phone number

where such emergency information will

be available 24 hours a day, every day.

This requirement is mandatory. The

facility must make some arrangement to

ensure that a 24 hour contact is

available.

Identical Information

Check the box indicating identical

information, located below the

emergency contacts on the Tier One

form, if the current information being

reported is identical to that submitted

last year. Chemical descriptions,

amounts, and locations must be

provided in this year's form, even if the

information is identical to that

submitted last year.

Physical and Health Hazards

Descriptions, Amounts, and Locations

This section requires aggregate

information on chemicals by hazard

categories as defined in 40 CFR 370.2.

The two health hazard categories and

three physical hazard categories are a consolidation of the 23 hazard

categories defined in the OSHA Hazard

Communication Standard, 29 CFR

1910.1200. For each hazard type, indicate

the total amounts and general locations

of all applicable chemicals present at

your facility during the past year.

HAZARD CATEGORY COMPARISON FOR

REPORTING UNDER SECTIONS 311' and

312

EPA's hazard categories OSHA's hazard

categories

Fire Hazard ....................... Flammable

Combustion Uquid

Pyrophoric

Oxidizer

Sudden Release of Explosive

Pressure. Compressed Gas

Reactive ............. Unstable Reactive

Organic Peroxide

Water Reactive

Immediate (Acute) Highly Toxic

Health Hazards. Toxic

Irritant

Sensitizer

Corrosive .. ..... Other hazardous

chemicals with an

adverse effect with

short term exposure. Delayed (Chronic) Health Carcinogens

Hazard.

..... Other hazardous

chemicals with an adverse effect with

long term exposure.

* What units should I use?

Calculate all amounts as weight in

pounds. To convert gas or liquid volume

to weight in pounds, multiply by an

appropriate density factor.

Instructions

Please Read These Instructions

Carefully. Print or Type all Responses

*What about mixtures?

If a chemical is part of a mixture, you

have the option of reporting either the

weight of the entire mixture or only the

portion of the mixture that is a

particular hazardous chemical (e.g., if a

hazardous solution weighs 100 lbs. but is

composed of only 5% of a particular

hazardous chemical, you can indicate

either 100 lbs. of the mixture of 5 lbs. of

the hazardous chemical).

The option used for each mixture must

be consistent with the option used in

your Section 311 reporting.

Because E -HSs are important to

Section 303 planning, EHSs have lower

thresholds. The amount of an EHS at a

facility (both pure EHS substances and

EHSs in mixtures) must be aggregated

for purposes of threshold determination.

It is suggested that the aggregation

calculation be done as a first step In

making the threshold determination.

Once you determine whether a

threshold has been reached for an ElIS,

you should report either the total weight

of the EHS at your facility, or the weight

of each mixture containing the EHs.

*Where do I count a chemical that is a

fire and reactive physical hazard and an

immediate (acute] health hazard?

Add the chemical's weight to your

totals for all three hazard categories and

include its location in all three

categories. Many chemicals fall into

more than one hazard category.

Maximum Amount

The amounts of chemicals you have

on hand may vary throughout the year. The peak weights-greatest single-day

weights during the year-are added

together in this column to determine the

maximum weight for each hazard type. Since the peaks for different chemicals

often occur on different days, this

maximum amount will seem artificially

high.

To complete this and the following sections, you may choose to use the Tier

Two form as a worksheet.

To determine the Maximum Amount:

1. List all of your reportable hazardous chemicals individually.

2. For each chemical...

a. Indicate all physical and health

hazards that the chemical presents.

Include all chemicals, even if they are

present for only a short period of time

during the year.

b. Estimate the maximum weight in

pounds that was present at your facility

on any single day of the reporting

period.

3. For each hazard type-beginning

with Fire and repeating for all physical

and health hazard types...

a. Add the maximum weights of all

chemicals you indicated as the

particular hazard type.

b. Look at the Reporting Ranges at the

bottom of the Tier One form. Find the

appropriate range value code.

c. Enter this range value as the

Maximum AmounL

Example: You are using the Tier Two

form as a worksheet and have listed raw

weights in pounds for each of your

hazardous chemicals. You have marked

an X in the immediate (acute) hazard

column for phenol and sulfuric acid. The

maximum amount raw weight you listed

were 10,000 lbs. and 500 lbs.

respectively. You add these together to

reach a total of 10,500 lbs. Then you look

at the Reporting Range at the bottom of

your Tier One form and find that the

value of 04 corresponds to 10,500 lbs.

Enter 04 as your Maximum Amount for

Immediate (acure) hazards materials.

You also marked an X in the Fire

hazard box for phenol. When you

calculate your Maximum Amount totals

for fire hazards, add the 10,000 lb.

weight again.

Average Daily Amount

This column should represent the

average daily amount of chemicals of

each hazard type that were present at or

above applicable thresholds at your

facility at any point during the year.

To determine this amount:

1. List all of your reportable

hazardous chemicals individually (same

as for Maximum Amount.

2. For each chemical...

a. Indicate all physical and health

hazards that the chemical presents

(same as for Maximum Amount).

b. Estimate the average weight in

pounds that was present at your facility

throughout the year. To do this, total all

daily weights and divide by the number

of days the chemical was present on the

site.

3. For each hazard type-beginning

with Fire and repeating for all physical

and health hazards...

a. Add the average weights of all

chemicals you indicated for the

particular hazard type. "

b. Look at the Reporting Ranges at the

bottom of the Tier One form. Find the

appropriate range value code.

c. Enter this range value as the

Average Daily Amount.

30649

HeinOnline -- 55 Fed. Reg. 30649 1990
30650 Federal Register / Vol. 55, No. 144 / Thursday, July 26, 1990 / Rules and Regulations

Instructions

Please Read These Instructions

Carefully. Print or Type all Responses

Example: You are using the Tier Two

form, and have marked an X in the

immediate (acute) hazard column for

nicotine and phenol. Nicotine is present

at your facility 100 days during the year,

and the sum of the daily weights is

100,000 lbs. By dividing 100,000 lbs. by

100 days on-site, you calculate an

Average Daily Amount of 1,000 lbs. for

nicotine. Phenol is present at your

facility 50 days during the year, and the

sum of the daily weights is 10,000 lbs. By

dividing 10,000 lbs. by 50 days on-site,

you calculate an Average Daily Amount

of 200 lbs. for phenol. You then add the

two average daily amounts together to

reach a total of 1,200 lbs. Then you look

at the Reporting Range on your Tier One

form and find that the value 03

corresponds to 1,200 lbs. Enter 03 as

your Average Daily Amount for

Immediate (acute) Hazard.

You also marked an X in the Fire

hazard column for phenol. When you calculate your Average Daily Amount

for fire hazards, use the 200 lb. weight

again.

Number of Days On-Site

Enter the greatest number of days that

a single chemical within that hazard

category was present on-site.

Example: At your facility, nicotine is

present for 100 days and phosgene is

present for 150 days. Enter 150 in the

space provided.

General Location

Enter the general location within your facility where each hazard may be

found. General locations should include

the names or identifications of buildings,

tank fields, lots, sheds, or other such

areas.

For each hazard type, list the

locations of all applicable chemicals. As

an alternative you may also attach a site

plan and list the site coordinates related

to the appropriate locations. If you do

so, check the Site Plan box.

Example: On your worksheet you

have marked an X in the Fire hazard

column for acetone and butane. You

noted that these are kept in steel drums

in Room C of the Main Building, and in

pressurized cylinders in Storage Shed

13, respectively. You could enter Main

Building and Storage Shed 13 as the

General Locations of your fire hazards.

However, you choose to attach a site

plan and list coordinates. Check the Site

Plan box at the top of the Column and

enter site coordinates for the Main

Building and Storage Shed 13 under

General Locations.

If you need more space to list

locations, attach an additional Tier One

form and continue your list on the

proper line. Number all pages.

Certification

Instructions for this section are

Included on page one of these

instructions.

10. Section 370.41 is revised to read as

follows:

§ 370.41 Tier II emergency and hazardous

chemical Inventory form.

(a) The form set out in paragraph (b)

of this section shall be completed and

submitted as required in § 370.25 of this

part. In lieu of the form set out in

paragraph (b) of this section, the facility

owner or operator may submit a State or

local form that contains identical

content.

(b) Tier II Emergency and Hazardous

Chemical Inventory Form.

SBIWN CODE 65W5-so-U

HeinOnline -- 55 Fed. Reg. 30650 1990
Federal Register / Vol. 55, No. 144 / Thursday, July 26, 1990 / Rules and Regulations

mm. ,y m .. - Y-: ., p

!ii~1:i~

a.i~i:i

SrTi

0:,

P____ 

wCN a Z

t 4 I

.::: ::-.

0

-U

C

El

C

*1* ________ - I ~1

... ........ ..........

-xv Ck A

148.. 1.:.,. ............. ... y jS X.."

,x~

.[,:,: .E

AZ A0

Xo

•C . iIL ! IIIIII a i ll ~ U.lil1

...,............

0:: ::::::::::

(]]I)]i[i[]]]]

ii

0

U

01

01

0!

zi

Oi

O11

E]j

E]

EIM U1

010!0,

0I

O41

0

C

0- 111 0 ~ 0,~. ~

0

0

~n~u~mdzisj~

~A~L

AUIU1UOQ

I

- Stllitll

llll!ll

iilllli I I I

' ' iir -"

A1

-ish -I - I

A:"

LII I I

30651 HI

J::i:i:]:

II

iiI

r

I m m I,

HeinOnline -- 55 Fed. Reg. 30651 1990
Federal Register / Vol. 55, No. 144 / Thursday, July 26, 1990 / Rules and Regulations

SIWNO CODE 6560-50-C

30652

HeinOnline -- 55 Fed. Reg. 30652 1990
Federal Register / Vol. 55, No. 144 / Thursday, July 26, 1990 / Rules and Regulations

Tier Two Instructions

General Information

Submission of this Tier Two form

(when requested) is required by Title III

of the Superfund Amendments and

Reauthorization Act of 1986, Section 312,

Public Law 99-499, codified at 42 U.S.C.

Section 11022. The purpose of this Tier

Two form is to provide State and local

officials and the public with specific

information on hazardous chemicals

present at your facility during the past

year.

Certification

The owner or operator or the officially

designated representative of the owner

or operator must certify that all

information included in the Tier Two

submission is true, accurate, and

complete. On the first page of the Tier

Two report, enter your full name and

official title. Sign your name and enter

the current date. Also, enter the total

number of pages included in the

Confidential and Non-Confidential

Information Sheets as well as all

attachments. An original signature is

required on at least the first page of the

submission. Submissions to the SERC,

LEPC, and fire department must each

contain an original signature on at least

the first page. Subsequent pages must

contain either an original signature, a photocopy of the original signature, or a

signature stamp. Each page must contain

the date on which the original signature was affixed to the first page of the

submission and the total number of

pages in the submission.

You Must Provide All Information

Requested on This Form to Fulfill Tier

Two Reporting Requirements

This form may also be used as a worksheet for completing the Tier One

form or may be submitted in place of the

Tier One form.

Who Must Submit This Form

Section 312 of Title III requires that

the owner or operator of a facility

submit this Tier Two form if so requested by a State emergency

response commission, a local emergency

planning committee, or a fire department

with jurisdiction over the facility.

This' request may apply to the owner

or operator of any facility that is

required, under regulations

implementing the Occupational Safety

and Health Act of 1970, to prepare or

have available a Material Safety Data

Sheet (MSDS) for a hazardous chemical

present at the facility. MSDS

requirements are specified in the

Occupational Safety and Health

Administration (OSHA) Hazard

Communication Standard, found in Title

29 of the Code of Federal Regulations at

§ 1910.1200.

This form does not have to be

submitted if all of the chemicals located

at your facility are excluded under

Section 311(e) of Title III.

What Chemicals are Included

If you are submitting Tier Two forms

in lieu of Tier One, you must report the

required information on this Tier Two

form for each hazardous chemical

present at your facility in quantities

equal to or greater than established

threshold amounts (discussed below),

unless the chemicals are excluded under

Section 311(e) of Title I1. Hazardous

chemicals are any substance for which

your facility must maintain an MSDS

under OSHA's Hazard Communication

Standard.

If you elect to submit Tier One rather

than Tier Two, you may still be required

to submit Tier Two information upon

request.

What Chemicals are Excluded

Section 311(e) of Title Ill excludes the

following substances:

(i) Any food, food additive, color

additive, drug, or cosmetic regulated by

the Food and Drug Administration;

(ii) 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;

(iii) Any substance to the extent it is

used for personal, family, or household

purposes, or is present in the same form

and concentration as a product

packaged for distribution and use by the

general public;

(iv) Any substance to the extent it is

used in a research laboratory or a

hospital or other medical facility under

the direct supervision of a technically

qualified individual;

(v) Any substance to the extent it is

used in routine agricultural operations

or is a fertilizer held for sale by a

retailer to the ultimate customer.

OSHA regulations, § 1910.1200(b),

stipulate exemptions from the

requirement to prepare or have available

an MSDS.

Reporting Thresholds

Minimum thresholds have been

established for Tier One/Tier Two

reporting under Title III, Section 312.

These thresholds are as follows:

For Extremely Hazardous Substances:

(EHSs) designated under section 302 of

Title Ill, the reporting thresholdIs 500

pounds (or 227 kg.) or the threshold

planning quantity (TPQ), whichever is

lower,

For all other hazardous chemicals for

which facilities are required to have or

prepare an MSDS, the minimum

reporting threshold Is 10,000 pounds (or

4,54o kg.).

You need to report hazardous

chemicals that were present at your

facility at any time during the previous

calendar year at levels that equal or

exceed these thresholds. For

instructions on threshold determinations

for components of mixtures, see "What

About Mixtures?" on page 2 of these

instructions.

.A requesting official may limit the

responses required under Tier Two by

specifying particular chemicals or

groups of chemicals. Such requests

apply to hazardous chemicals regardless

of established thresholds.

Instructions

Plesase read these instructions

carefully. Print or Type all Responses

When to Submit This Form

Owners or operators of facilities that

have hazardous chemicals on hand in

quantities equal to or greater than set

threshold levels must submit either Tier

One or Tier Two forms by March 1.

If you choose to submit Tier One,

rather than Tier Two, be aware that you

may have to submit Tier Two

information later, upon request of an

authorized official. You must submit the

Tier Two form within 30 days of receipt

of a written request.

Where to Submit This Form

Send either a completed Tier One

form or Tier Two form(s) to each of the

following organizations:

1. Your State Emergency Response Commission.

2. Your Local Emergency Planning

Committee.

3. The fire department with

jurisdiction over your facility.

If a Tier Two form is submitted in

response to a request, send the

completed form to the requesting

agency.

Penalties

Any owner or operator who violates

any Tier Two reporting requirements

shall be liable to the United States for a

civil penalty of up to $25,000 for each

such violation. Each day a violation

continues shall constitute a separate

violation.

If your Tier Two responses require

more than one page use additional forms

and fill in the page number at the top of

the form.

......... J ....... i .... ..... m

30653 m. ....

HeinOnline -- 55 Fed. Reg. 30653 1990
30654 Federal Register J Vol. 55, No. 144 / Thursday, July 26, 1990 / Rules and Regulations

Reporting Period

Enter the appropriate calendar year,

beginning January 1 and ending

December 31.

Facility Identification

Enter the full name of your facility

(and company identifier where

appropriate).

Enter the full street address or state

road. If a street address is not available,

enter other appropriate identifiers that

describe the physical location, of your

facility (e.g., longitude and latitude).

Include city, county, state, and zip code.

Enter the primary Standard Industrial

Classification (SIC) code and the Dun &

Bradstreet number for your facility. The

financial officer of your facility should

be able to provide the Dun & Bradstreet

number. If your firm does not have this

information, contact the State or regional office of Dun & Bradstreet to

obtain your facility number or have one

assigned.

Owner/Operator

Enter the owner's or operator's full

name, mailing address, and phone

number.

Emergency Contact

Enter the name, title, and work phone

number at least one local person or

office who can act as a referral'if

emergency responders need assistance

in responding to a chemical accident at

the facility.

Provide an emergency phone number

where such emergency information will

be available 24 hours a day, every day;

The requirement is mandatory. The

facility must make some arrangement to

ensure a 24 hour contact is. available.

Identical Information

Check the box indicating Indentical

information, located below the

emergency contacts on the Tier Two

form, if the current chemical information

being reported is identical to that

submitted last year. Chemical

descriptions, hazards, amounts, and

locations must be provided in this year's

form, even if the information is identical

to that submitted last year.

Chemical Information: Description,

Hazards, Amounts, and Locations

The main section of the Tier Two form

requires specific Information on

amounts and locations of hazardous

chemicals, as defined in the OSHA

Hazard Communication Standard.

If you choose to indicate that all of the

information on. a specific hazardous

chemical Is identical to that submitted

last year. check the, appropriate optional

box provided at the right side of the

storage codes and locations on the Tier

Two form. Chemical descriptions,

hazards, amounts, and locations must be

provided even if the information is

identical to that submitted last year.

e What units should I use?

Calculated all amounts as weight in

pounds. To convert gas or liquid volume

to weight in pounds, multfply by an

appropriate density factor.

* What about mixtures?

If a chemical is part of a mixture, you

have the option of reporting either the

weight of the entire mixture or only the

portion of the mixuture. that is a

particular hazardous chemcial] (eg., if a

hazardous solution weights 100 Ilbs. but

is composed of only 5% of a particular

hazardous chemcial, you can ndicate

either 100 lbs. of the mixture or 5 lbs. of

the chemical].

The option used for each mixture must

be consistentwith the option used in

your Section 311 reporting.

Because El ISs are important to

Section 303 planning, EHSs have lower

thresholds. The amount of an EHS at a

facility (both pure EHS substances and

EHSs in mixtures) must be aggregated

and purposes of threshold

determination. It is suggested .that the

aggregation calculation be done as a

first step In making the threshold

determination. Once you determine

whether a threshold for an MHS has

been reached, you should report either

the total weight of the EHS at your

facility, or the weight of each mixture

containing the EHS.

Chemical Description

1. Enter the Chemical Abstract

Service registry number (CAS. For

mixtures, enter the CAS number of the

mixture as a whole if it has been

assigned a- number distinct from its

constituents. For a mixture that has no

CAS number, leave this item blank or

report the CAS numbers of as many

constituent chemicals as possible.

If you are withholding the name of a

chemical in accordance with criteria

specified in Title IL Section, 322,, enter

the generic class or category that is

structurally descriptive of the, chemical

(e.g., list toulene diisocyanate as organic

isocyanate) and check the box marked

Trade Secret. Trade secret information

should be submitted to EPA and must

include a substantiation. Please refer to

EPA's final regulation on trade secrecy

(53 FR 28772. July 29, 1988) for detailed

information on how to submit trade

secrecy claims.

2. Enter the chemical name or

common name of each hazardous

chemical.

3. Check box for ALL applicable

descriptors: pure or mixture; and solid,

liquid, or gas; and whether the chemical

is or contains an EHS.

4. If the chemical is a mixture

containing an EHS, enter the chemical

name of each EHS in the mixture.

Example: You have pure chlorine as

on hand, as well as two mixtures that

contain liquid chlorine. You write "chlorine" and enter the CAS number.

Then you check "pure" and "mix"-as

well as "liquid" and "gas".

Physical and Health Hazards

For each chemical you have listed,

check all the physical and health hazard

boxes that apply. These hazard

categories are defined in 40 CFR 370.2.

The two health hazard categories and

three physical hazard categories are a

consolidation of the 23 hazard

categories defined in the OSHA Hazard

Communication Standard, 29 CFR

191G.1200.

HAZARD CATEGORY COMPENSATION FOR

REPORTING UNDER SECTIONS 311 AND

312

EPA's hazard categodes OSHA's hazard categories

Fire Hazard........................ Flammable

Combustion Liquid Pyrophonc

Oxidizer

Sudden Release of Explosive

Pressure. Compressed Gas

Reactive....._............. Unstable Reactive

Organic Peroxide

Water Reactive

Immediate (Acute) Highly Toxfc

Healtt Hazards. Toxic

Irritant

Sensitizer

Corrosive

Other hazardous

chemicals with, an adverse effect with

short term exposure

Delayed (Chronic) Health Carcinogens

Hazard. Other hazardous

chemicals with an adverse effect with

long term exposure

Maximum Amount

1. For each hazardous chemical,

estimate the greatest amount present at

your facility on any single day during

the reporting period.

2. Find the appropriate range value

code in Table I.

3. Enter this range value as the

Maximum Amount.

TABLE I-REPORTING, RANGES

Range Weight range In pounds

value From F To

o1...........o.................. .. 02........ 100 __ __ 999

HeinOnline -- 55 Fed. Reg. 30654 1990
Federal Register / Vol. 55, No. 144 / Thursday, July 26, 1990 / Rules and Regulations

TABLE I-REPORTING RANGESContinued

Range Weight range In pounds

value From To

03 .............. 1,000 ........................... 9,999

04 .............. 10,000 ........................ 99,999 05 .............. 100,000 ...................... 999,999

06 .............. 1,000.000 .................. 9,999,999

07 .............. 10,000,000 ...... 49,999,999 08 .............. 50,000,000 ................. 99,999,999

09 .............. 100,000,000 ............... 499,999,999

10 .............. 500,000,000............... 999,999,999

1 ............. 1 billion ....................... higher than 1

billion

If you are using this form as a

worksheet for completing Tier One,

enter the actual weight in pounds in the

shaded space below the response

blocks. Do this for both Maximum

Amount and Average Daily Amount.

Example: You received one large

shipment of a solvent mixture last year.

The shipment filled five 5,000-gallon

storage tanks. You know that the

solvent contains 10% benzene, which is

a hazardous chemical.

You figure that 10% of 25,000 gallons is

2,500 gallons. You also know that the

density of benzene is 7.29 pounds per

gallon, so you multiply 2,500 gallons by

7.29 pounds per gallon to get a weight of

18,225 pounds.

Then you look at Table I and find that

the range value 04 corresponds to 18,225.

You enter 04 as the Maximum Amount.

(If you are using the form as a

worksheet for completing a Tier One

form, you should write 18,255 in the

shaded area.)

Average Daily Amount

1. For each hazardous chemical,

estimate the average weight in pounds

that was present at your facility during

the year.

To do this, total all daily weights and

divide by the number of days the

chemical was present on the site.

2. Find the appropriate range value in

Table I.

3. Enter this range value as the

Average Daily Amount.

Example: The 25,000-gallon shipment

of solvent you received last year was

gradually used up and completely gone

in 315 days. The sum of the daily volume

levels in the tank is 4,536,000 gallons. By

dividing 4,536,000 gallons by 315 days

on-site, you calculate an average daily

amount of 14,400 gallons.

You already know that the solvent

contains 10% benzene, which is a

hazardous chemical. Since 10% of 14,400

is 1,440, you figure that you had an

average of 1,440 gallons of benzene. You

also know that the density of benzene is

7.29 pounds per gallon, so you multiply

1,440 by 7.29 to get a weight of 10,500

pounds.

Then you look at Table I and find that

the range value 04 corresponds to 10,500.

You enter 04 as the Average Daily

Amount.

(If you are using the form as a

worksheet for completing a Tier One

form, you should write 10,500 in the

shaded area.)

Number of Days On-Site

Enter the number of days that the

hazardous chemical was found on-site.

Example: The solvent composed of

10% benzene was present for 315 days at

your facility. Enter 315 in the space

provided.

Storage Codes and Storage Locations

List all non-confidential chemical

locations in this column, along with

storage types/conditions associated

with each location. Please note that a

particular chemical may be located in

several places around the facility. Each

row of boxes followed by a line

represents a unique location for the

same chemical.

Storage Codes: Indicate the types and

conditions of storage present.

a. Look at Table II. For each location,

find the appropriate storage type and

enter the corresponding code in the first

box.

b. Look at Table IIl. For each location,

find the appropriate storage types for

pressure and temperature conditions.

Enter the applicable pressure code in the

second box. Enter the applicable

temperature code in the third box.

TABLE II-STORAGEtTYPES

Codes Types of storage

A Above ground tank

B Below ground tank

C Tank inside building

D Steel drum

E Plastic or non-metallic drum

F Can

G Carboy

H Silo

I Fiber drum

J Bag

K Box

L Cylinder

M Glass bottles or jugs

N Plastic bottles or jugs

O Tote bin

P Tank wagon

O Rail car

R Other

TABLE Ill-TEMPERATURE AND PRESSURE

CONDITIONS

Codes Storage conditions

(Pressure)

1 Ambient pressure

2 Greater than ambient pressure

3 Less than ambient pressure

(Temperature)

4 Ambient temperature

6, Greater than ambient temperature

6 Less than ambient temperature but not

cryogenic

7 Cryogenic conditions

Example: The benzene in the main

building is kept'in a tank inside the

building, at ambient pressure and less

than ambient temperature.

Table II shows you that the code for a

tank inside a building is C. Table III

shows you that.the code for-ambient

pressure is 1, and the code for less than

ambient temperature is 6.

You enter: C 1 6

Storage Locations: Provide a brief

description of the precise location of the

chemical, so that emergency responders

can locate the area easily You may find

it advantageous to provide the optional

site plan or site coordinates as

explained below.

For each chemical, indicate at a

minimum the building or lot.

Additionally, where practical, the room

or area may be indicated, You may

respond in narrative form with

appropriate site coordinates or

abbreviations.

If the chemical is present in more than

one building, lot, or area location,

continue your responses down the page

as needed. If the chemical exists

everywhere at the plant site

simultaneously, you may report that the

chemical is ubiquitous at the site.

Optional attachments: If you choose

to attach one of the following, check the

appropriate Attachments box at the

bottom of the Tier Two form.

a. A site plan with site coordinates

indicated for buildings, lots, areas, etc.

throughout your facility.

b. A list of site coordinate

abbreviations that correspond to

buildings, lots, areas, etc. throughout

your facility.

c. A description of dikes and other

safeguard measures for storage

locations throughout your facility.

Example: You have benzene in the

main room of the main building, and in

tank 2 in tank field 10. You attach a site

plan with coordinates as follows: main

building = G-2, tank field 10 = B-6. Fill

in the Storage Location as follows:

B-6 [Tank 2] G-2 [Main room]

30655

3ooss

HeinOnline -- 55 Fed. Reg. 30655 1990
30656 Federal Register / Vol. 55, No. 144 / Thursday, July 26, 1990 / Rules and Regulations

Confidential Information

Under Title III. Section 324, you may

elect to withhold location information

on a specific chemical from disclosure to

the public. If you choose to do so:

* Enter the word "confidential" in the

Non-Confidential Location section of the

Tier Two form on the first line of the

storage locations.

* On a separate Tier Two

Confidential Location Information Sheet,

enter the name and CAS number of each

chemical for which you are keeping the

location confidential.

* Enter the appropriate location and

storage information, as described above

for non-confidential locations. - Attach the Tier Two Confidential

Location Information Sheet to the Tier

Two form. This separates confidential

locations from other information that

will be disclosed to the public.

Certification

Instructions for this section are

included on page one of these

instructions.

9. Section 370.40 is revised to read as

follows:

§ 370.40 Tier I emergency and hazardous

chemical Inventory form.

PART 372-TOXIC CHEMICAL

RELEASE REPORTING; COMMUNITY

RIGHT-TO-KNOW

11. The authority citation for part 372

continues to read as follows:

Authority: 42 U.S.C. 11013, 11028.

12. Section 372.3 is amended by

adding definitions to read as follows:

§ 372.3 Definitions.

Chief Executive Officer of the tribe

means the person who is recognized by

the Bureau of Indian Affairs as the chief

elected administrative officer of the

tribe.

Indian Country means Indian country

as defined in 18 U.S.C. 1151. That

section defines Indian country as:

(a) All land within the limits of any

Indian reservation under the jurisdiction

of the United States government,

notwithstanding the issuance of any

patent, and includng rights-of-way

running through the reservation; -(b) All dependent Indian communities

within the borders of the United States

whether within the original or

subsequently acquired territory thereof,

and whether within or without the limits

of a State; and

(c) All Indian allotments, the Indian

titles to which have not been

extinguished, including rights-of-way

running through the same.

Indian tribe means those tribes

federally recognized by the Secretary of

the Interior.

State means any State of the United

States, the District of Columbia, the

Commonwealth of Puerto Rico, Guam,

American Samoa. the United States * Virgin Islands, the Commonwealth of

the Northern Mariana Islands, and any

other territory or possession over which

the United States has jurisdiction and

Indian Country. * ft * * ft*

13. Section 372.30 is amended by

revising paragraph (a) to read as

follows:

§ 372.30 Reporting requirements and.

schedule for reporting.

(a) For each toxic chemical known by

the owner or operator to be

manufactured (including imported),

processed, or otherwise used in excess

of an applicable threshold quantity in

§ 372.25 at its covered facility described

in § 372.22 for a calendar year, the

owner or operator must submit to EPA

and to the State in which the facility is

located a completed EPA Form R (EPA

Form 9350-1) in accordance with

subpart E. If the covered facility is

located in Indian Country, the facility

shall submit a completed EPA Form R as

described above to EPA and the official

designated by the Chief Executive

Officer of the applicable Indian tribe,

unless the tribe has entered into a

cooperative agreement with a State, in

which case, the facility shall submit the

completed EPA Form R to the receiving

entity designated in the cooperative

agreement.

' ft ft ft ft

[FR Doc. 90-16759 Filed 7-25-90; 8:45 am]

BILLING CODE 6560-60-"

HeinOnline -- 55 Fed. Reg. 30656 1990