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Citation: 55 Fed. Reg. 30632 1990

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### 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 ofthe Emergency Planning and Community Right-to-Know Act (EPCRA) or title III ofthe Superfund Amendments and Reauthorization Act of 1986 (SARA) authorizes the Administrator ofthe 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 ofSARA. EPA previously established reporting thresholds forthe first two years of reporting at 10,000 pounds for hazardous chemicals and at 500 pounds or the threshold planning quantity (TPQ), whichever islower, 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 ofreporting, but stated in the preamble that it would conduct further studies ofall reporting threshold alternatives and wouldpropose final reporting thresholds before the beginning ofthe third year ofreporting.

After completing its study of alternative thresholds, EPA published a Notice ofProposed Rulemaking (NPRM) proposing final reporting thresholds (54 FR 12992; March 29, 1989). Subsequently, because ofthe time required to address the comments received on the NPRM and topromulgate a final rule, EPA published an Interim Final Rule extending, formanufacturing facilities, the reporting thresholds established for the first two years ofreporting under the October 15, 1987 rule (54FR 41904; October 12, 1989). Also on October 12, 1989, EPApublished 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 thatmust be reported and 500 pounds or the TPQ, whichever is lower, for EHSs. In 

### accordance with the October 12. 1989 Supplemental Notice, today's finalrule also establishes uniform effective dates for all facilities subject to reporting requirements under sections 311 and 312.Thus, all facilities from all industry, sectors willbe subject to the final thresholds on the same dates.

Today, EPA is also finalizing several otherprovisions proposed in the March 29, 1989 NPRM, including the revision of the definition ofthe term "facility" to include subsurface operations, the treatment ofmixtures in threshold calculations, and the implementation of all sections oftitle III by Indian Tribes

on Indian lands (including section 313 of title III). EPApreviously published a final rule correcting the discrepancy in the reportable quantities forhydrogen chloride and methacrylonitrile (54 FR 43164; October 20. 1989).
EFFECTIVE DATE: 

### August 27, 1990. 

### ADDRESSES: Copies ofmaterials relevant to thisrulemaking are contained in the Superfund DocketDocket Number 300RR-IF, room 2427, 401 M Street SW., Washington, DC 20460. The docket maybe inspected by appointment between the hours of9 aim. and 4p.m., Monday throughFriday, excluding Federal holidays. The docket phone number is (202) 382-3046. As provided in 40 CFR part 2,a reasonable fee may be charged forcopying services.
FOR FURTHER INFORMATION CONTACT: 

### Kathleen Jones, Project Officer, Chemical Emergency Preparedness and Prevention Office, Office of SolidWaste 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, orin the Washington, DC metro area and Alaska at (202) 479-2449.
SUPPLEMENTARY INFORMATION: 

### The
contents oftoday's preamble are listed 

### in the following outline.
I.Introduction

A. Statutory Authority B.Statutory Background C.Background ofThis Rulemaking D.Organization ofthe Final Rule I. Final Reporting Thresholds III. Analytical Approach IV.Other Issues

A. Multi-Establishment Facility Reporting B.Tier Iand Tier IIForms C.Subsurface Operations D. Treatment ofEHSMixtures inReporting

Threshold Calculations E. The Implementation ofTitleIII by Indian

Tribes on Indian Lands F. Miscellaneous Issues V. Regulatory Analyses

A. Regulatory Impact Analysis B.Regulatory Flexibility Analysis List ofSubjects 

### 1. Introduction

A. Statutory Authority
These regulations are issued under sections 302, 304, 311, 312, 313, and 328 of title IIIofthe Superfund Amendments and Reauthorization Act of 1986 (SARA) (Pub.L.99-499; 42 U.S.C. 11001 etseq.). Title Ill is the Emergency Planning and Community Right-to-Know Act of 1986 

### (EPCRA).

B. StatutoryBackground

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 forFederal response action at certain sites where there is a release or a threat ofrelease ofa 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 ofhazardous 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, inturn, 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 oftitle IIIrequires the

owners oroperators offacilities to notify the local emergency coordinator(s) and State(s) likely to be affected as soon as the owner or operator hasknowledge ofa release of

an EHS or a CERCLA hazardous substance affecting persons beyond the 

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facility boundaries, ifthe release equals

orexceeds a reportable quantity (RQ) or
onepound ifanRQ has not been established by regulation.

SubtitleBoftitle III provides a mechanism forpublic awareness of hazardous chemicals present in the community. Sections 311 and 312 oftitle Ill are discussedin detail in the next section ofthe 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 thefacilities in quantities at or above certain thresholds. Subtitle Cof title I[ contains general provisions concerning citizen suits and public availability ofinformation.
C.Background ofThisRulemaking
Section 311 oftitle I[ ofSARA applies to the owner or operator ofa facility where there are hazardous chemicals present forwhich the owner or operator mustprepare orhave available a Material Safety Data Sheet (MSDS) under Hazard Communication Standards (HCS) (29 CFR part 1910) promulgated under the Occupational Safety and Health Act of1970. Under section 311 oftitleIII, the owner or operator ofa facility must submit individual MSDSs, ora list ofchemicals forwhich the facilityis 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 thatposes either a physical orhealth hazard.I The tens ofthousands of products covered bythe HCS include petroleum products, explosives, and carcinogens.

The HCSregulations wererestricted initially to facilities in Standard Industrial Classification (SIC) codes 20 through 39, that is, the manufacturing sector. OnAugust 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 themanufacturing 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 HCSwas in effect for non-manufacturing facilities

as ofJune 24, 1988, except for the construction industry (53 FR 27679). On February 15, 1989, OSHA notified EPA that all provisions ofthe HCSwere in

IThe procedures fordetermining whethera particularchemical is ahazardous chemical are set forth in 29 CFR 1910.1200 andappendices. 

### effect forall segments ofindustry, including the construction industry, as of January 30, 1989 (54FR 6886).

For facilities in SIC codes 20 through 39, the initial MSDSs or listswere required to be submitted to the appropriate SERC, LEPC, and fire department ofOctober 17, 1987. Nonmanufacturers were required to submit theirMSDSs or listsby 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 theirMSDSs orlists by April 30, 1989. Thereafter, ifa facility begins to

use a chemical subject to the HCSin a quantity at or above the reporting threshold, orifa facility learns that its previously submitted MSDS is inaccurate forany reason, the facility must submit thenew or correct information within three months to the appropriate SERC,LEPC, and local fire department (40 CFR 370.21(c)).

Under section 312 oftitle III, owners
or operators covered by section 311 of title III are required to submit additional information on the presence and location ofhazardous chemicals at their facilities. Beginning March 1,1991, under the uniform deadlines in today's rule, and annually thereafter, all facilities affected bythe 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 Iforms require general information on the amount and location ofhazardous chemicals by hazard category; Tier Iforms must be submitted annually. Tier IIforms require more detailed information on individual chemicals and mustbe submitted on request. Facilities may submit Tier II forms in lieu ofTier Iforms.

Title III ofSARA (section 311(b)) states that the EPA Administrator may establish reporting thresholds (i.e., quantities ofhazardous chemicals) such that ifthe Hazardous chemical subject to the HCSis present at a facility in a quantity thatis below the reporting threshold, the facility isnot required to automatically report the presence ofthat chemical under the provisions of sections 311 and 312 oftitle III. On October 15, 1987, EPApromulgated regulations (52 FR 38334) establishing reporting thresholds under section 311(b) oftitle IIIfor facilities subject to the OSHA HCS.The reporting threshold established for the first.two years was 10,000 pounds, except forEHSs, which mustbe reported at the lower of500 pounds or the TPQ.Access to information below these thresholds was preserved in that facilities mustprovide any such information when requested in accordance with 40 CFR 370.20(b)(3).

The October 15, 1987 rule also established a threshold ofzero pounds for the third year ofreporting; that is,no threshold as ofthe third year. For manufacturers, the third year begins on September 24, 1990; and for the construction industry, thethird year begins on April 30, 1991.

EPA stated in the October 15, 1987 final rule that because of the substantial number and variety ofcomments received on the final threshold issue and uncertainty over theimpact ofthe requirements on the recipients ofthe reports and ultimately on the effectiveness ofthe program, it would conduct further studies ofalternative thresholds and propose final reporting thresholds before the beginning ofthe third year ofreporting. On March 29, 1989 (54 FR 12992), EPApublished 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, forEHSs). Many commenters supported selection ofthe current thresholds, and some suggested alternative thresholds. Because itwas not feasible to considerproperly and respond thoroughly to all the comments, and to finalize and promulgate final reporting thresholds before the zero pound threshold formanufacturers 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 togo into effect for the short hime required to promulgate final reporting thresholds thatmay differfrom the zero threshold, EPA promulgated an Interim Final Rule extending the current thresholds under sections 311 and 312 for one additional year formanufacturing facilities (54FR 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

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sectors and establishes uniform effective dates for all facilities subjectto 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 subjectto thereporting requirements, October 17, 1990will be the effective date forfinal reporting thresholds forreports submitted under section 311;March 1,1991 will be the effective date for final reporting thresholds forreports 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 fornon-EHS hazardous chemicals and 500pounds or the TPQ,whichever is lower, forEHSs.

In the March 29, 1989NPRM, 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.

EPAis also finalizing a number of other provisions proposed in the March 29, 1989 NPRM, including therevision of the definition ofthe term "facility" to include subsurface operations, the treatment ofmixtures in threshold calculations for § §311 and 312, the implementation oftitle III by Indian Tribes on Indian lands, and several miscellaneous issues.

Finally, in the March 29, 1969NPRM, EPAproposed to correct adiscrepancy in the listing ofRQs for two EHSs, hydrogen chloride and methacrylonitrile, between appendices A and Bto 40 CFR part 355 (EHS list) and 40 CFR 302.4 (listofhazardous 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 ofProposed Rulemaking under §§311 and 31.2 oftitle III ofthe Superfund Amendments and Reauthorization Act of 1986--March 29, 1989 (CommentResponse Document, which is available in the docket supporting this rulemaking. In preparing today's rule, EPAconsidered all of the public comments submitted on the March 29, 1989 NPRM, with the exception ofcomments on the RQ discrepancy which were addressed in the October 20, 1989 final rule on that issue. Comments are addressed in sections IIand IIIofthis preamble. Section IV provides a summaryofthe analyses supporting today'srule.
D. Organization oftheFinal Rule Today's final rule amends40 CFR part 350.1 by adding definitions of"chief executive officer ofthe Tribe," "commission," "Indian country," "Indian Tribe," "local emergency planning committee," and "State," thereby codifying the definitions implementing EPA's designation ofIndian Tribes as the implementing authorities for title III

on Indian lands. Also, the definition of facility, including man-made ornatural 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 IndianTribe 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 ornatural subsurface structures.

In today's final rule, 40 CFR part 370 is also amended by adding the definitions pertaining to Indian tribal implementation and byrevising 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 Iand Tier 11 reporting forms in §370.40 have been modified in response to commenter's suggestions. The certification block on theTier II form has also been changed to allow the

owner oroperator 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 ifa facility is located in Indian country, EPA FormR mustbe submitted to the office designated bythe Chief Executive Officer ofthe Tribe.

Finally, the Burden Box has been eliminated fromthe Tier Iand Tier II instructions because ofthe recent Supreme Court decision regarding the inapplicability ofthe Paperwork Reduction Act to regulations that require submission ofhealth, safety, and other consumer information onlyto nonFederal (i.e., State and local) entities. II. Final Reporting Thresholds

EPA considered six options in analyzing potential reporting thresholds for the March 29, 1989NPRM. The options represented the full range of possible thresholds and were chosen because they allowed EPA to isolate the effects ofvarying threshold levels on each ofthree factors: (1)The number and types ofchemicals that would be reported; (2) the number offacilities that would be required to report; and (3) the volume ofchemicals that would be covered. Because different thresholds could be set for different classes of chemicals or even.forindividual chemicals, a large number of combinations ofthese factors are possible. For reasons ofpracticality, 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 of500pounds

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 of500 pounds or the TPQ,whichever is lower.

Option 3 would set a 10,000 pound reporting threshold forhazardous chemicals, except for hazardous substances defined under section 101(14) ofCERCLA and toxic chemicals designated under section 313 oftitleIlI, which would have a reporting threshold of500 pounds, and EHSs, which would have a reporting threshold of500pounds

or the TPQ,whichever is lower.

Option 4 would set a 2,000 pound reporting threshold forhazardous 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 of500 pounds, and EHSs, which would have a reporting threshold of500 pounds

or the TPQ,whichever is lower.

Option 5 would set the reporting threshold at 500 pounds for all covered chemicals.

Option 6would 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 thathave been applied in the first two reporting years (a 10,000 pound reporting threshold for
most hazardous chemicals; the reporting threshold forEHSs at 500 pounds or the TPQ,whichever is lower). In today's

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'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 offinal threshold levels, some agreeing with the proposed thresholds, others endorsing options forhigher or lower thresholds, and others suggesting thatlower 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 islower, forEISs 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 ofthat information, and the
cost to SERCs, LEPCs, and facilities of managing and providing the information. In estimating the current value ofthe information that would be provided below the current threshold of 10,000 pounds, EPA considered several factors: (1) The small number ofrequests from the public for information on hazardous chemicals present at facilities below the current threshold levels; (2) the limited current use ofTier 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 ofSERCs, 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 ofknown 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 thatwould 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 (from291,000 to 488,000) in the number offacilities 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 torestrict public

access to important information. Any SERC orLEPC capable ofmanaging the additional information that wouldbe 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 orjurisdiction .under State law. EPA's primary concern is with the ability ofmany SERCs and LEPCs to manage the additional information that would be submitted at lower thresholds. By maintaining the 10,000 pound threshold forhazardous chemicals other than EHSs, and maintaining the 500 pound or TPQ threshold, whichever is lower, for EHSs, EPA is ensuring that the LEPCs thathave 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 ofhuman 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 ofthe information in the preparation ofemergency plans.

A number ofcommenters stated that the threshold for all hazardous chemicals should be 500 pounds because higher thresholds would exempt many facilities fromreporting, depriving communities ofvaluable 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 ofvaluable information; rather, they provide communities with the most valuable information. If a SERC orLEPC 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 thatwould be generated by such a requirement.The reporting thresholds thatEPA 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 ofadditional information thatwould be submitted at lower thresholds. In addition, facilities are required to provide information on chemicals present in quantities below the reporting threshold ifthe 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 ifthe 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 outrequirements

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 ofthis survey are documented in "Information Management by State and Local Governments under §§ 311 and 312 ofthe Emergency Planning and Community Right-to-Know Act", December 1988. A copy of this document is in the docket supporting this rulemaking. Further, costs thatwould 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 of1986", 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 thatfor
many LEPCs, such a low threshold would create a substantial burden, and would tie up many ofthe 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 of50,000 pounds because this threshold would represent

a cost-effective storage quantity, and it is large quantity chemical storage that is 

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ofmost concern to emergency planners. EPA does not agree that 50,000 pounds is the quantity of hazardous chemicals ofmost 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 ofthe 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 inestablishing threshold levels, and thatEPA's primary concern should be maximizing the information available
to State and local authorities. In support oftheir 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 thatcosts 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 ofa 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 ofcosts in setting a final threshold. See, e.g. ConsumerProduct Safety Commission

v. GTE SylvaniaInc., 447 U.S. 102, 118- 19 (1980); ChryslerCorp.v.Brown,441 U.S. 281, 311 (1979); In re Kelly,841 F.2d 908, 912 n.3 

### (9thCir. 1988). Neither the
text ofthe statute nor the Conference Report preclude the Administrator from considering costs to industry in determining thresholds. Consideration ofcosts to facilities isrelevant to Congress' goal ofdeveloping a manageable program forthe 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 ofthis reporting." It would be inconsistent with the purpose ofthe two-tier reporting format for EPAto be prohibited from considering costs to industry in setting thresholds.

EPA does not believe that it placed an undue amount ofemphasis 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 ofthe impacts ofthe different thresholds
upon government entities that mustrun

a variety ofpublic programs 2and on facilities that face many requests for information and demands for environmental control.

Nonetheless, EPA agrees that the primary purpose ofthe reporting requirements under sections 311 and 312 is to provide information to the community. EPA's selection ofthe final reporting thresholds was not based primarily on cost 'Considerations, but on the extent ofwhich a more stringent standard could subvert the intent of sections 311 and 312 by overwhelming the capability ofSERCs, LEPCs, and fire departments ormanage and analyze submitted information.EPA believes that a manageable quantity ofdata that

can be supplemented by requests for additional information and the Imposition oflower 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. EPAconcluded, however, that itwas 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 forequipment 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.

aAfrequently repeated concern during the Congressional debate was the necessity to take account ofthe burden ofa particular threshold upon Stateand local government sothat useful and important information would not be "buried inan avalanche" ofpaperwork. See statements of Representatives Norman Lent (H9564). Gene Snyder (H9564), CongressionalRecord, October8, 1986; see also statements ofRepresentatives Al Swift (H9607), JohnHammerschmidt (H9568), Congressional Record,October 8.1986. An interim approach would only be useful ifEPA were to again study the appropriate final threshold after that interim period. At the present time,EPA is not able to predict what thebest 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, norwhat thresholds would be appropriate ifit 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 ofthe 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 ofthis program. As these data indicate that change is waranted, EPAwill revise this rule including the threshold provision.

In the NPRM, EPA requested comment

on whether the final threshold for EHSs should be 500 pounds orthe TPQ,or simply the TPQ.EPA received
comments supporting both options. In today's final rule, EPA is establishing the final reporting threshold forEHSs 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 forEHSs. Although EPA understands that there are some * advantages to maintaining the TPQ as the sole reporting trigger forEHSs (i.e., consistency with the emergency planning provisions oftitle 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 ofan 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 ofsections 311 and 312 ismore directly related to community right-to-know. In establishing final reporting thresholds under sections 311 and 312, EPA endeavored toprovide 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

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chemicals ofhighest concern to the community, EPAwanted to ensure that communities receive a substantial amount ofinformation 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 ismost prudent to maintain the 500 pound cap on thereporting threshold for EHSsunder 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 forhazardous 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 isgenerally available through other provisions oftitle III and, therefore, the additional burden that would be imposed on both industry and government was notwarranted. For example, the section 311 and 312 reporting requirements focus upon the presence ofhazardous chemicals at the facility, requiringthe owner oroperator to submit lists of chemicals orMSDSs 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, oruse designated quantities of the toxic chemicals on the section313 list.

Similarly, title IIIalready has reporting requirements that directly employ the CERCLA hazardous substances list. Under section 304, facilities that release anRQ ofany CERCLA hazardous substance or EHS must report the release to any SERC or LEPC affected by the release.Detailed follow-up reports mustbe submitted to the affected SERC(s) and LEPC(s)by any owner or operatorrequired to report section 304. The nature ofthe information required in theinitial and follow-up reports bears some similarity to theinformation required on an MSDS. For example, the report must include the chemical name or identity ofany substance involved in a release, any known oranticipated 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 orthe list of CERCLA hazardous substances did not appear to provide communities with enough new,necessary, or useful information tojustify the additional burden and thepotential for confusion..
II. Analytical Approach

To determine the potential effects of the six options, EPAestimated the number offacilities in the U.S. that would be affected by each threshold, the average number ofchemicals that would be reported per facility, the total number ofreports that would be filed,the average pounds ofchemicals reported per facility, and the totalpounds of chemicals that would be reported in the U.S. Thenational estimates were developed by extrapolating from data on the amounts ofhazardous chemicals that arepresent in specific localities. A Los Angeles, California database and the data from reports filed under the State and Federal Right-to-Know programs in NewJersey best satisified the criteria EPAidentified forthe 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 offacilities, and containinformation on the quantity ofhazardous chemicals at facilities covered by the HCS regulations. (For a full discussion of the selection of databases, see chapter 2ofthe Regulatory Impact Analysis in Support ofa Reporting Threshold under sections 311 and 312 ofthe 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 ofthe selection ofthe New Jersey and Los Angeles databases by comparing the extrapolated results with national statistics on chemical and petroleum production and use.Estimates ofthe number ofpounds that would be reported as extrapolated from thetwo databases are reasonably close to national statistics. Moreover, the estimated number ofaffected facilities and estimated costs ofthe rule generated through independent analyses ofthe two databases are similar, notwithstanding the differences inthe 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 ofdifferent threshold options provided adequate information and generated accurate results.

Several commenters stated thatEPA shouldestablish 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, takinginto consideration thehazards posed by each chemical or group ofchemicals, the potential for a significant release, and the potential exposure ofsurrounding populations. As EPA stated in its October 15, 19b7final rule and againin theMarch 29, 1989 proposed rule, such as hazard-based approach wasnot feasible, given the tens ofthousands ofhazardous 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 forthis 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 byEPA in establishing reporting thresholds.

One commenter suggested that the analytical approach should consider the synergistic and cumulative effects of hazardous chemicals. EPAagrees 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 ofhazardous chemicals forwhich MSDSs must be prepared. EPA believes that the analytical approach used to evaluate the reporting threshold options in today's 30637

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final ruleresulted in final reporting thresholds that will provide information to local communities abouthazardous chemicals most likely to pose the greatest hazard, without overwhelming theirability to manage and use the information.

One commenter questioned EPA's use ofthe Acute Hazardous Events (AHE) database because it does not include incidents that result in chronic effects or environmental damage. EPAwould like to clarify that theAHE 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 mostevents sufficiently severe to

causehuman 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 ofa release ofa hazardous substance or EHS that equals orexceeds

an RQ.When the National Response Center, SERC, and LEPC arenotified 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 ofcommenters challenged EPA's comparison ofthe costs and benefits ofthe 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 ofSERCs, LEPCs, and fire departments with relatively advanced data management systems, EPA believes that many ofthese State and local authorities do not have the present capability to use the additional information that would begenerated at thresholds lower than those established by today's final rule.For each given community, however, the costbenefit comparison will vary. EPAbelieves It is most prudent, therefore, toestablish Federal thresholds at a level that will maximize the net benefits for most communities, while preserving the rights ofStates and local governments to develop more stringent reporting requirements ifthey believe that the benefits ofreceiving more information than that submitted under thethresholds in today's rule are greater than the incremental costs.

Several commenters stated thatEPA did not consider orproperly value certainbenefits, 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 ofindustry and the local community ofthe 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 ofthenumber ofaffected non-manufacturers are underestimated. Although the number ofaffected facilities and chemical reports in specific industry categories or sectors (such as non-manufacturing) maybe under or overstated inthe Regulatory Impact Analysis, the sensitivity analysis supporting today's rulemaking indicates that the aggregate quantity ofchemicals covered under the zero threshold, includingpetroleum, is reasonably close to national projections ofchemical 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 thepotential inaccuracies in the analysis caused by extrapolation are not significant enough to affect the decision to select today's final reporting thresholds.
IV. OtherIssues
A. Multi-establishment Facility Reporting

Inthe March 29, 1989 NPRM, EPA proposed a clarification to thereporting requirements formulti-establishment facilities. Inparticular, in response to a
concern thatowners ofcertain multiestablishment facilities, such as industrial parks,do not have sufficient knowledge about specific hazardous chemicals located at their facility to comply with the title IIIreporting requirements, EPA proposed a regulatory provision that would have ,clarifiedhow 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, EPAneeds additional time to consider and develop the appropriate regulatory approach tovarious issues connected with multi-establishment reporting. EPAdoes not,however, believe it is appropriate to delay the promulgation offinal thresholds while the Agency considers multiestablishment issues. Forthis reason, today's final rule does not include a provision addressing multiestablishment facilities.

B. TierI andTierIIForms

EPA has made several small modifications to the Tier I and TierH 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 Iand TierII forms. EPA has received several requests that the Tier II form be modified to allow owners and operators offacilities to place an original signature only onthe first page of a multi-page submission. EPA agrees that an original signature need not be placed on every page ofthe Tier II submission so long as the owner or operator certifies thathe or she has reviewed every page ofthe submission. Therefore, the instructions for the certification on the Tier II form have been modified to allow the owner or operator toplace 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 ofthe 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 ofpages 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 ofpages in the submission must be indicated in the

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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 ofEPA's hazard categories with OSHA's HCS hazard categories to reduce the timenecessary to comply with sections 311 and 312. EPA does not agree that including the listofOSHA's HCS exemptions shortens the timerequired for compliance. By including HCS exemptions onprevious Tier I and Tier IIforms, EPA believes that it mighthave appeared to the regulated community that EPA. SERCs, and LEPCs were the appropriate authority for interpreting the scope ofthe HCS.The most appropriate authority for interpreting the HCS is OSHA. Reporting time forboth title III and the HCS can best be shortened by the method setforth in the instructions to the title III reporting forms, which refers parties to the OSHA HCS. EPA, however, does agree thatit 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 oftheTier Iforms because they are too general an they place an undue burden on industry and local government authorities. Although EPA agrees that theinformation submitted on the TierII form is more useful, the statute allows owners and operators offacilities the option of submitting Tier IorTier IIforms, unless the Tier I1 form is specifically requested by a SERC orLEPC. See section 312(e)(1) of titleIII; H.R. Conf.Rep. No: 962, 99th Congress, 2d Sess., 290 ("Conference Report"). States, however, may develop legislation requiring submission ofTier IIforms, and some have already done so. Also, EPA continues to encourage submissions of Tier IIforms unless SERCs, LEPCs, or fire departments have indicated a preference forTier Iforms.

Another commenter stated that EPA shoulddiscourage States from creating theirown special report forms which add to the costs of industry compliance, especially ifchanges to the form make the computer software used to prepare the formobsolete. EPA does not agree that it should discourage States from developing their own forms or tailoring Tier I and/orTier IIto meet particular needs or to avoid overlapping Federal requirements. EPA, however, does encourage States to consider industry

concerns inmodifying the inventory forms. When EPAmakes format changes, it generally considers the burdens suchrevisions impose. The changes made to the TierI and TierI1 forms in today's final rulehave been determined to be necessary, notwithstanding potential costs to industry.
C.SubsurfaceOperations

In response to many questions about the applicability of titleIII regulations to subsurface operations, EPA proposed in theMarch 29, 1989 NPRM to revise the regulatory definition offacility to clarify that subsurface structures that are part ofman-made operations, including open surface mines, are included within the statutory definition offacility and, therefore, are subject to title IlI reporting requirements.

Twenty commenters opposed and three commenters supported the proposedrevision to the definition of facility to include subsurface structures. Anumber ofthe commenters stated that therevision would improperly expand the definition to include facilities and substances exempt fromthe requirements ofsome sections oftitle III. EPAdoes 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 ornatural structures into whichhazardous 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 IIIrequirements, today's regulatory definition does not alterthat exemption. Forexample, therevised regulatory definition of "facility" does not alter the applicability ofthe transportation exemption. Ifnatural gas is stored at a production facility, the product is subject to title III requirements; ifnatural gas is being stored incident to transportation, thenit

comes within the title III exemption and is not subject to title IIIreporting 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 oftitle III. EPA agrees that, although a mining operation may come within the definition ofthe term "facility," it is not necessarily within the scope ofthe OSHA HCS. If the operation is not subject to the OSHA HCS, it is not subject to the requirements ofsections 311 and 312. The fact that a facility does not come within the scope ofthe OSHA HCSis not relevant, however, to the emergency planning and release notification requirements ofsections 302, 303. and 304.Thus, ifthere 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, ifthe facility produces, uses, or stores a CERCLA hazardous substance oran EHS, and releases the hazardous substance or EHS in a quantify that equals orexceeds the applicable RQ, the release must be reported to the SERC[s) and LEPC(s) likely to be affected by the release, and to theNational Response Center in the

case ofa CERCLA hazardous substance. One commenter stated that the revised definition could result in daily reporting ofreleases from mining operations. If releases ofhazardous substances or EHSs frommining operations at or above reporting levels occur daily, they mustbe reported daily. The commenter shouldnote, however, that recurring releases may qualify forreduced reporting under CERCLA section 103(f)(2) ifthey are "continuous" and "stable in quantity and rate," or they maybe exempt from reporting requirements ifthey are federally permitted under CERCLA section 101(10). (See the NPRM on reporting of continuous releases (53 FR 12868; April 19, 1988) and theNPRM on federally permitted releases (53 FR 27268; July 19, 1988)).

Three commenters opposed including naturally occurring materials such as natural gas in the calculation ofa facility's inventory for comparison with the TPQunder section 302 because naturalgas production is already governedby regulations under other authorities, storage and withdrawal operations do not impose a hazard to nearby populations, and itwould be difficult to estimate quantities ofnatural 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, mustbe included in a facility's inventory. EPAunderstands that many industries must comply with regulations and safety standards under other authorities. Nevertheless, compliance with such requirements does notfulfill thepurpose oftitle III which is to provide the public with information on the chemicals present at facilities in orderto prepare the community to respond whenhazards are not controlled. Compliance with other 

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regulations, therefore, doesnot relieve the regulated community fromthe responsibility to comply with the requirements oftitle III.Further, each

owner oroperator mustuse thebest information available, knowledge ofthe operating processes ofthe facility, and engineeringjudgment to estimate the quantities ofhazardous chemicals present In subsurface containment structures. Reporting facilities should be

aware that estimates need not be exact; facilities are onlyrequired to estimate which among many broad ranges indicated on theTier I and TierHforms match theirinventories.
D. Treatmentof EHSMixturesin ReportingThresholdCalculations
Inthe March 29, 1989 NPRM, EPA proposed new regulatory language addressing when and how facilities mustreport EHSs that exceed their applicable reporting threshold under sections 311 and 312 when the EHSs are present indifferent mixtures.

Section 311(a)(3) oftitle

## M provides facilities with the option ofreporting on
a mixture as a whole orreporting on each hazardous component ofthe mixture. In some instances, reporting by component could resultin the filing of fewer reports. Where components ofa mixture are not present at a facility in threshold quantities, a facility would not be required to submit a report under sections 311 or312 even though the quantity ofthe mixture itselfis present in a threshold amount. Similarly, reporting bymixture could occasionally result in fewerreports when the mixtures are below threshold quantities. In theMarch 29,1989 NPRM, EPA proposed a new provision, §370.28(b)(3), related toreporting ofEHSs in mixtures. This provision was designed to ensure thatEHSs would be reported regardless of the option ofreporting bymixture or by component.EPA believed that the importance ofEHSs 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. (See54 FR 12999).

In proposing regulatory language to address the special question ofreporting EHSs even when EHSs arepresent in mixtures, theAgency did not take away
orin any way alter the option provided in the statute ofreporting on mixtures as
a whole or by hazardous component. Proposed §370.28(b) required facilities to report thepresence ofEHSs at their facility ifthey were present in abovethreshold quantities, but provided. facilities with the option ofreporting those EHSs either as components of mixtures orreporting the mixture as a whole. Proposed 

### § 370.28(b) stated:

(3)Ifextremely hazardous substances are hazardous components ofa mixture, the quantity of theextremely hazardous substance in each mixture shall be aggregated todetermine ifthe threshold value has been reached for the facility. Reporting maybe accomplished by reporting

on the component or themixture even ifthe amount ofthe mixture(s) is below the reporting threshold.
To supplement this regulatory language, EPA proposed the addition ofa box on the Tier Hform 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 ofthe 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 orin its pure form. Aggregation ofnon-EHS hazardous chemicals present in mixtures and in their pure form is not required, but may be done ifa facility is reporting all hazardous chemicals in mixtures by component. Ifa facility has an EHS, and its quantities within mixtures and in its
pure form equal or exceed its applicable threshold, the facility mustreport that El-IS. Once the necessity ofreporting thatEHS 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 ofone or several different mixtures, ormay report the EHS by reporting the mixture ofwhich the EHS is a part. Forexample, iffive mixtures each contained 100pounds ofmethyl mercaptan (anFl-IS), reporting could be accomplished by reporting 500 pounds ofmethyl mercaptan (reporting by component) orby reporting the five mixtures separately.

EPAis requiring that only EHSs be aggregated; aggregation ofnon-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 ofhazardous chemicals. EPA anticipates that LEPCs will request information on EHSs present at a facility, and routine reporting ofthat 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 ofthe 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 oftitle III. The aggregation requirement of thisrule 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 onlyEHSs be aggregated across mixtures In order to determine whether a threshold is met maximizes the information about one group ofhazardous 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

aTier H form and reporting some mixtures as mixtures and some by component, the facility mustdo two things. First,for any mixture containing the above-threshold EHS that the facility is reporting by component, the facility mustreport 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 ofdays 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 ofthe 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 ofany mixture containing the above-threshold EHS that the facility is reporting by component; the facilityneed not refer to the location or storage code ofany mixture containing theE-IS that the facility is reporting as amixture.

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mixture, the facility mustcheck the box labelled "EHS"to indicate that the mixture contains an above-threshold EHS, and must also write thename of the above-threshold EHS(s) contained within the mixture on the line provided. When filling out theinventory information, the facility should include in thecalculation only those quantities ofthe samemixture and shouldfollow a similarprocedure when filling out the storage code and location information.

One commenter stated thatEPA should establish a minimum percentage ofa mixture below which EHS components would nothave to be aggregated forreporting. EPA agrees and directs the commenter to the section

on "calculation ofquantity" at 40 CFR part 370.28, which states that only components greater than I percent or 0.1 percent forcarcinogenic components,
are reportable. Nevertheless, ifthe

owner or operator ofa facility suspects that an EHS is present in amixture, the entire mixture should be reported because theidentity and quantity ofthe EHS is unknown and,therefore, cannot be aggregated with any accuracy with other quantities ofEHSs present atthe facility.

One commenter stated that the requirement to aggregate EHSs in mixtures should onlybe applied when the El-IS retains someofits characteristics in themixture. EPA does not agree with this comment because determining whether an EHS retains its characteristics in amixture cannot be easily done. Also, EPAbelieves that only rarely would an El-IS be a component of a mixturein a concentration greater than 1percent or 0.1 percent ifcarcinogenic and not retain its characteristics. Thus, ifa 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 thosehazardous chemicals or "extrahazardous" substances in the same kind ofmixture be aggregated to determine whether thereporting 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 involvingEHSs. 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 ofdetermining reporting thresholds, the hazardous components ofcrude oil be excluded. EPA sees no

reason to exclude components of crude oil from the requirement to aggregate EHSs forpurposes ofdetermining whether reporting thresholds have been reached. Any EHS component ofcrude oil mustbe aggregated unless the crude oil is reported as a mixture. Non-EHS components of amixture, including crude oil, need not be aggregated.

E.ImplementationofTitleIIIbyIndian Tribeson IndianLands

In today's rule EPA is promulgating its proposal in the March 29,1989NPRM, to designate IndianTribes as the implementing authority for title III on all lands within "Indian Country." Accordingly, the chief executive officer ofthe Tribe is responsible for the functions ofthe State governor under SARA section 301, including the appointment ofan emergency response commission forthe Tribe. This tribal commission would then be responsible forcarrying out the duties of the SERC, including the designation oflocal
emergency planning districts and the appointment ofan 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 ofthe Indian Tribe.

Several commenters endorsed EPA's proposal to recognize tribal sovereignty

over environmental protection on Indian lands and to provide for tribal implementation oftitle 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 Indianlands by Indian Tribes because title III lacks any reference to Indian Tribes or lands and the title III definition ofthe 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 ofthe 

### LEPCs and come under the authority of

a SERC.

EPA does not agree that implementation of titleIII on Indian lands should be under the authority ofa State or SERC. Although title III lacks an explicit reference to Indian Tribes or to theimplementation ofthe Act on Indian lands, EPAbelieves, based on the legislative history ofSARA, 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 ofclear 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 Indianjurisdiction, States are generally precluded from exercisingjurisdiction

overIndians in Indian country absent a clear expression ofcongressional intent to the contrary.Nothing in the language

orlegislative history oftitle III suggests that Congress intended tosubject Indian Tribesto State regulation on Indian lands, especially in an area ofsuch importance to thehealth, safety, and welfare ofthe Indian community as chemical emergency response planning.

One commenter stated that owners or operators offacilities on Indian lands should report to State and local officials to avoid hindering effective emergency planning and response. EPA does not believe that Indian tribaljurisdiction

over Indian lands willhinder effective implementation oftitle III. Effective emergency response planning requires that no more than one entity be responsible forimplementing the program in a given area. While States may be unable to exercise jurisdiction

over Indian-owned facilities inIndian country, IndianTribes generally can exercise civil regulatory authority over Indians and non-Indians on Indian lands with regard to matters affecting the health and welfare ofthe Tribe. (See Montanav. UnitedStates,450 U.S. 544, 566 (1981).) This authority is sufficient to fully implement the requirements oftitle III.



### One commenter expressed concern thatreleases from facilities located on Indian lands may affect areas outside Indianjurisdiction, thereby requiring a State or local response. EPA believes thisproblem is endemic to any emergency response scheme that relies

on reporting to local officials. By definition, any release has thepotential 

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to affect areas outside theboundaries of the localjurisdiction and, therefore, to affect more than one localjurisdiction or
more than one State. Thisconcern was recognized in the legislation under section 304(b](1) which requires that notice be provided to all SERC(s) and I.EPC(sJlikely 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 affectedjurisdictions. EPA encourages IndianTribes, SERCs, and LEPCs to participate injointplanning and cooperative efforts to prepare for such potential emergencies.

Four commenters urged EPA to promulgate regulations to protect Indian Tribes that choose notto develop titleIII program capabilities and to ensure that there are no gaps in the health and environmental protection program established bytitle lII. Under title III, the Federal government is not responsible for implementation priorto delegating responsibility to respective State, local, orTribal authorities. The statute requires State and local authorities to carry out the recordkeeping and emergency planning functions oftitle III. EPA'sresponsibility i3 

### to establish theprogram by promulgating necessary regulations, and byproviding guidance, training, and technical assistance. EPAbelieves that IndianTribes are the appropriate government authority for implementing title IIIin Indiancountry and, therefore, Tribeshave the same obligations as States and local authorities under the law. EPA, however, does recognize its obligation, consistent withEPA policy, to help Tribes carry out their responsibilities, and intends to provide guidance, training, and technical assistance tailored to theneeds and capabilihies ofIndian Tribes.

Although endorsing EPA's approach, several commenters questioned whether Tribes have sufficient resources to carry out the implementation oftitle II.EPA recognizes that resources are limited on Indian lands, butbelieves that basic emergency planning canbe accomplished with minimal resources. To satisfy basic requirements, tribal authorities must develop emergency plans and establish amechanism to disseminate to the publicinformation submitted by facilities under the reporting requirements ofthe 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 torespond to chemical mishaps and to work with owners and operators offacilities to reduce the potential oftheiroccurrence. Communities, including IndianTribes, 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 ofinformation. The final rule, therefore, requires any Tribe that has entered into a cooperative agreement With a State, to submit a copy ofthe signedagreement to the EPA Regional office in the EPAR3gion where the Tribe and State are located, within 60 days of signing the agreement. EPA will annuallypublish a list ofany new agreements and copies of the agreements willbe available from EPA Regional offices.

Another commenter requested that EPAdefine "cooperative agreement" and provide specific guidance for the development ofsuch agreements; For purposes oftitle III, cooperative agreement is any formal arrangement reached by States and Tribes that meets theneeds ofthe 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 ofthe parties. Tribes may tailor cooperative agreements to authorize a State to implement provisions ofthe titleIII program that the Tribe isnot prepared to undertake. EPA will endeavor to provide technical assistance on developing cooperative agreements toTribes and States, but neither this assistance nor the publication oflists ofparties 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 EPAto evaluate ways to minimize thp paperwork burden. One commenter suggested that the timeframe for reporting status changes at facilities be changed from90 to 180 days. Another
commenter suggested that the option under section 311 to submit MSDSs Instead ofa list ofchemicals should be eliminated. Section 311(d)(2) ofSARA 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 oflocal 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-finalrule. 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 ofCongress 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 fromreporting 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 forprocess analysi, should be exempt from the reporting

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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 fortransporters. The statute requires transporters to notify SERCs and LEPCs directly. The NRC is developing a computer link, however, that would facilitate direct notification ofSERCs as well as EPA Regional offices ofa release notification. When a link is fully operational, EPA will consider modifying today's regulation to allow the NRC's notification ofthe SERCto partially satisfy the reporting requirements under title I1,section 304.Until such time, however, facilities and transporters must notify SERCs and LEPCs directly ofa reportable release.

Several commenters requested that EPA consider using the metric designations required in the Omnibus Trade Act of 1988because 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 theirreporting requirements to their unique concerns.

One commenter requested that, for
purposes ofsection 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 ofthe title IIIdefinition offacility. Releases ofhazardous substances from vessels, however, may require notification under CERCLA section 103 and/or the Clean Water Act. V. Regulatory Analyses

A. RegulatoryImpactAnalysis

Executive Order (E.O.) 12291 requires each Federal agency to determine ifa 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 ormore, (2) a major increase in
costs orprices forconsumers, 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 exportmarkets.

The RIA in support ofthis rulemaking shows that today's regulation isnonmajor because It results in an annual
cost to the economy ofbetween $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 aFinal Reporting Threshold under sections 311 and 312 ofthe 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 offacilities affected by the regulation, the cost ofthe regulation on

a per-facility and national basis, the estimated benefits of the regulation, and
any potential economic impacts ofthe regulation. This section briefly discusses the findings ofthe RIA.

1. Number ofAffected 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 theLos Angeles City Fire Department and by New Jersey's Right-to-Know program
were used in the RIA to estimate the number offacilities, the number of chemicals, and the number ofpounds of chemicals that would be reported under the different reporting threshold options. The data include information on a crosssection offacilities representing a large number ofindustries in both the manufacturing and non-manufacturing sectors, contain the largestnumber of individual observations relative to other available data, and are representative of

a broad listofchemicals similar to those subject ot the OSHA HCS regulations.

EPA acknowledges that there is a certain degree ofimprecision associated with extrapolations fromregional data. For example, facilities in the City ofLos Angeles may not be representative of facilities in other parts ofthe nation.To help compensate for this limitation, two separate regional databases were evaluated. The Agency extrapolated both data sets on an SIC codebasis. That is, facilities in each SIC code were examined separately to estimate the number offacilities that wouldbe likely
to report ateach threshold level and the number ofchemicals likely tobe 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 ofLos Angeles and NewJersey in a particular SIC code

are similar to facilities in otherparts of the nation In that SIC code.

2.Estimated National Cost ofthe Alternative Thresholds

EPA has estimated the potential cost ofeach ofthe alternative reporting thresholds. The methodology follows the

same general procedures thatwere used in support of the October 15, 1987final 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 tohave 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 ofdata. Second, facilities currently subject to the rule are assumed to have developed the
necessary recordkeeping and reporting systems.

The unit costs formanufacturers are assumed to vary by facility size, reflecting the greater number of hazardous chemicals present at larger facilities and the potential formore elaborate decision-making processes. Unit costs fornon-manufacturers are assumed to be the same as those for small manufacturers (employment of less than 20). This assumption is based

on the preponderance ofsmall facilities in the non-manufacturing sector (about 80 percent ofall non-manufacturing facilities employ fever than 20 employees), as well as the small average number ofhazardous chemicals located
at such facilities.

Total costs are estimated in eachyear, using cost estimates expressed in 1987 dollars (thatis, the analysis does not include inflation). The table below shows the total estimated expenditure in eachyear (in 1987 dollars), as well as 

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the present value costs and the equivalent annual cost for eachofthe 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 I chemicals

.......................................................................................................................................................... 113-136 294-336 905-1,326 116-158 6: zero for all chemilcals

......................................................................................................................................................... 149 303 1,295 153

The finalreporting threshold will be in effect beginning on October 17, 1990 for all sectors ofindustry. Because initial compliance with the requirements of section 311 was completed by April 1, 1989, only ongoing activities under section 311, such as submittal ofrevised

ornew MSDSs, are included in the cost calculations. Most ofthe costs presented in the table, therefore, are attributable
to filing and processing the section 312 Tier I and Tier II forms.

B. RegulatoryFlexibility 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 ofsmall entities. Chapters 5 ofthe RIA supporting thisrule addresses the impact ofthis 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 ofsmall entities. This rule, therefore, does not require a Regulatory Flexibility Analysis.

List ofSubjects

40 CFRPart 350
Chemicals, Confidential business information, Hazardous substances, Superfund, Intergovernmental relations.

40CFRPart 355 Chemicals, Hazardous substances, Reporting and recordkeeping requirements. 40 CFRPart 370 Chemicals, Hazardous substances, Superfund, Reporting and recordkeeping requirements.

40 CFRPart 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 

### Jof title 40 ofthe 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 forpart 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 Officerofthe tribe

means the person who is recognized by the Bureau ofIndian Affairs as the chief elected administrative officer ofthe tribe.

* * * * *

Commissionmeans the emergency response commission forthe 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 forthe tribe under whose jurisdiction the facility is located. In the absence ofan 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 aTribe, the commission shall be the entity identified in the agreement.

* * * * *r



### Facilitymeans allbuildings, equipment, structure, and other stationary itemsthat are located on a single site or on contiguous or adjacent sites and which are owned oroperated by the same person (or by any person which controls, is controlled by, or under common control with, such person).Facilityshall include manmade structures as well as all natural structures in which chemicals are purposefully placed orremoved through human means such that itfunctions as a containment structure forhuman use. For purposes ofemergency release notification, the term includes motor vehicles, rolling stock, and aircraft.

IndianCountrymeans Indiancountry

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

### section defines Indian country as:

(a) All land within the limits ofany Indianreservation under the jurisdiction ofthe United States government, notwithstanding theissuance ofany patent, and including rights-of-way running through the reservation;

(b) All dependent Indian communities within the borders ofthe United States whether within the originalor subsequently acquired territory thereof, and whether within or without the limits ofa State; and

(c) All Indian allotments, the Indian titles to which have notbeen extinguished, including rights-of-way runningthrough the same.

Indiantribemeans those tribes federally recognized by the Secretary of the Interior.

Localemergencyplanningcommittee

or committeemeans the local emergency

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### 30645
planning committee appointed by the
emergency response commission.

Statemeans any State of the United States, the District ofColumbia, the Commonwealth ofPuerto Rico, Guam, American Samoa, the United States Virgin Islands, the Northern Mariana Islands, and any other territory-or possession over which theUnited States hasjurisdiction 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 ofcommission andfacilityand by adding the definitions, Chief Executive Officerof the tribe,committee,IndianCountry, Indiantribe,and stateto read as follows:
§355.20 Definitions.

Chief Executive Officerofthetribe

means the person who is recognized by the Bureau ofIndian Affairs as the chief elected administrative officer ofthe tribe.

Commissionmeans 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 orLocalemergency planningcommittee 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 (orby any person which controls, is controlled by, or under common control with, such person). Facilityshall 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 ofemergency release notification, the term includes motor vehicles, rolling stock, and aircraft.

IndianCountrymeans Indiancountry

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 ofthe United States government, notwithstanding the issuance ofany 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 ofa State; and

(c) All Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

Indiantribemeans those tribes federally recognized by the Secretary of the Interior.

Statemeans any State of the United States, the District of Columbia, the Commonwealth ofPuerto Rico, Guam, American Samoa, the United States Virgin Islands, the Northern Mariana Islands, any other territory or possession overwhich the United States hasjurisdictions 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,andState and by adding the definitions, chief Executive Officer ofthe tribe,Indian Country,and Indiantribetoread as follows:

§370.2 Definitions.

Chief Executive Officerofthe tribe

means the person who is recognized by the Bureau ofIndianAffairs as the chief elected administrative officer ofthe tribe.

Commissionmeans 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 ofan 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 localemergency planningcommittee 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 (orby any person which controls, is controlled by, or under common control with, such person). Facilityshall include manmade
structures as well as all natural
structures in which chemicals are purposefully placed orremoved through human means such thatit functions as a containment structure for human use. Forpurposes ofemergency release notificatiori, the term includes motor vehicles, rolling stock, and aircraft.

IndianCountrymeans Indiancountry

as defined in 18U.S.C. 1151. That section defines Indian country as:

(a) All landwithin the limits ofany Indian reservation under thejurisdiction ofthe United States government, notwithstanding the issuance ofany patent, and including rights-of-way running through the reservation;

(b) All dependent Indian communities within the border ofthe United States whether within the original or subsequently acquired territory thereof, and whether within or without th6 limits ofa State; and

(c) All Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

Indiantribemeans those tribes federally recognized by the Secretary o, the Interior.

State means any State ofUnited States, the District ofColumbia, the Commonwealth ofPuerto 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: 

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§370.20 Applicability.

(a)General. The requirements ofthis subpart apply to any facility that is required toprepare or have available a material safety data sheet (MSDS] fora hazardous chemical under the, Occupational Safety and Health Act of 1970 and regulations promulgated under thatAct.

(b)Minimum thresholdlevels.Except

as provided inparagraph (b)(3) ofthis section, the minimum threshold level for reporting under this subpart shall be as specified in paragraphs (b](1) and (b][2) ofthis section.

(1)The owner or operator ofa facility subject to this subpart shall submit an MSDS on orbefore 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 (or4,540 kgs.) and for all extremely hazardous substances present at the facility in an amount greater thanor equal to 500 pounds (or227 kg.- approximately 55 gallons) or the TPQ, whichever islower.

(2) The owner oroperator ofa facility subject to this subpart shall submit the Tier I form (orTier II form) on or before March 1,1991 (orMarch I ofthe first year after the facility firstbecomes 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 toor greater than 10,000 pounds (or4,540 kgs.) and extremely hazardous substances present at the facility in an amount greater than or equal to 500 pounds (or227 kgs.- approximately 55 gallons) or the TPQ, whichever is lower.

(3)The minimum threshold for reporting in response to requests for submission ofan MSDS ora Tier II form under §§ 370.21(d) and 370.25(c) ofthis part shall be zero.

8. Section 370.28 is revised to read as follows:
§370.28 Mixtures.

(a)Basicreporting. The owner or operator ofa facility may meet the reporting requirements of§§370.21 (MSDS reporting) and 370.25 (inventory form reporting) ofthis 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 ofmixtures by a facility under § 370.25 is in the same manner as under § 370.21, where practicable.

(b) Calculationofthe quantity.(1)If thereporting is on each component of the mixture which is a hazardous chemical, then the concentration ofthe hazardous chemical, in weight percent (greater than 1% or 0.1%ifcarcinogenic) shall be multiplied by the mass (in pounds) of the mixture to determine the quantity of the hazardous chemical in the mixture.

(2) Ifthe reporting is on the mixture itself,the total quantity ofthe mixture shall bereported.

(c) Aggregationofextremely hazardoussubstances.(1)To determine whether the reporting threshold for an extremely hazardous substance has been equaled or exceeded, the owner or operator ofa facility shall aggregate the following:

(il The quantity ofthe extremely hazardous substance present as a component in all mixtures at the facility, and

(ii) All other quantities ofthe 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 arecomponents ofa mixture at a facility, the owner or operator ofa facility may report either:

(i)The mixture, as a whole, even ifthe total quantity ofthe mixture is below its reporting threshold; or

(ii) The extremely hazardous substance component(s) ofthe 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) ofthis section shall be completed and submitted as required in § 370.25(a) of thispart. In lieu of the form set out in paragraph (b) ofthis section, the facility

owner or operator may submit a State or local form that contains identical
content.

(b) Tier IEmergency and Hazardous Chemical Inventory Form.

8ILLIWG CODE G56--U

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Page

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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: Readinstructions beforecompleting form

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### / Vol. 55, No. 144 / Thursday, July 26, 1990 / Rules and Regulations

TierOne Instructions

General Information

Submission ofthis form is required by Title III oftheSuperfund Amendments andReauthorization Act of1986, 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 ofthe owner

or operator must certify that all information included in theTier I submission is true, accurate, and complete. On the Tier Iform, enter your full name and official title. Sign your

name and enter the current date. Also,
enter the total number ofpages in the submission, including all attachments.

The purpose ofthisform is to provide State and local officials and the public with information on the general types and locations ofhazardous chemicals present atyour facility during the past year.
You mustprovide all information requested on this form.

You may substitute the TierTwo form for this Tier One form. (The TierTwo formprovides detailed information and
mustbe submitted in response to a specific request from State orlocal officials.)

Who Must Submit This Form

Section 312 ofTitle III requires that the owner or operator ofa facility submit this form if,under regulations implementing the Occupational Safety and Health Act of 1970, the owner or operator is required to prepare orhave 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 inTitle 29 ofthe Code ofFederal Regulations at §1910.1200.

This form does not have to be submitted ifall ofthe chemicals located
at your facility are excluded under Section 311(e) ofTitle III orifthe 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 forwhich you are required to prepare or have available an MSDS under the Hazard Communication Standard, unless the chemicals are excluded ulder Section 311(e) ofTitleIII 

### or they are.below the minimum reporting thresholds.
What Chemicals Are Excluded

Section 311(e) ofTitleIII excludes the following substances: (i)Any food, food additive, color additive, drug, or cosmeticregulated by theFood and DrugAdministration;

(ii) Any substance present as a solid in any manufactured item to the extent exposure to the substance doesnot

occur under normal conditions ofuse;

(iii)Any substance to the exent it is used forpersonal, family, orhousehold purposes, or is present in the sameform and concentration as a product packaged for distribution and use bythe 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 ofa technically qualified individual;

"[v)Any substance to thdextent itis used In routine agricultural operations

or is a fertilizer held for sale by a retailer to theultimate customer. OSHA regulations, Section 1910.1200(b), stipulate exemptions from the requirement to prepare or have available anMSDS. Reporting Thresholds

Minimum thresholds have been established for Tier One/Tier Two reporting under Title 111, Section312. These thresholds are as follows:

ForExtremely Hazardous Substances (EHSs) designated under section302 of Title III, the reportingthreshold is 500 pounds (or227 kg.) or thethreshold 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 reporthazardous chemicals thatwere present atyour facility at any time duringthe previous calendar year at levels that equal or exceed these thresholds. For instructions on threshold determinations for components ofmixtures, see "What About Mixtures?" onpage 3 ofthese instructions.
When To Submit This Form

Owners oroperators offacilities that havehazardous chemicals on hand in quantities equal to orgreater than set threshold levels must submit either Tier One or TierTwo Forms byMarch 1.
Where to Submit This Form

Send one completed inventory formto each ofthe 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 ofa facility who fails to submit or supplies false Tier One information shall be liable to the United States for a civil penalty ofup to $25,000 foreach such violation.Each day a violation continues shall constitute a separate violation. In addition, any citizen may commence a civil action on his orher own behalf against any owner or operator who fails
to submit TierOne information.

Instructions

Please Read TheseInstructions Carefully. Print or TypeallResponses

You may use the Tier Two form as a worksheet forcompleting TierOne. Filling in the Tier Two chemical information section should help you assemble your Tier One responses.

Ifyour responses require more than

one page, fill in the page number at the top ofthe form. Reporting Period

Enter the appropriate calendar year. beginning January 1 and ending December 31. Facility Identification

Enter the complete name ofyour facility (and company identifier where appropriate).

Enter the full street address or state road. If a street address is not available,
enterother appropriate identifiers that described the physical location ofyour facility (e.g., longitude and latitude). Include city, county, state, and zip code.

Enter theprimary Standard Industrial Classification (SIC) code and the Dun & Bradstreet number ofyour facility. The financial officer ofyour facility should be able to provide theDun &Bradstreet number.Ifyour firm does not have this information, contact the State or regional office ofDun & Bradstreet to obtain your facility number orhave one assigned. Owner/Operator

Enter the owner's oroperator's full

name, mailing address, and phone number. Emergency Contact

Enter the name, title, and workphone number ofat least one local person or office that can act as a referral If emergency responders need assistance

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### 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 24hours a day, every day. This requirement is mandatory. The facility must make some arrangement to

ensure that a 24hour contact is available.

Identical Information

Check the box indicating identical information, located below the emergency contacts on the Tier One form, ifthe current information being reported is identical to that submitted last year. Chemical descriptions, amounts, and locations mustbe provided in this year's form, even ifthe 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 ofthe 23 hazard categories defined in the OSHA Hazard Communication Standard, 29 CFR 1910.1200. For each hazard type, indicate the total amounts andgeneral locations ofall 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 shortterm exposure. Delayed (Chronic) Health Carcinogens

Hazard.

..... Other hazardous chemicals with an adverse effect with long term exposure.

* What units should Iuse? Calculate all amounts as weightin pounds.To convert gas or liquid volume 

### to weight in pounds, multiply by an appropriate density factor.
Instructions
Please ReadTheseInstructions Carefully. Print orType allResponses *Whatabout mixtures? If a chemical is part ofa mixture, you havethe optionofreporting either the weight ofthe entire mixture or only the portion ofthemixture that is a particularhazardous chemical (e.g., ifa hazardous solution weighs 100lbs. butis composed ofonly 5% ofa particular hazardous chemical, you can indicate either 100lbs. of themixture of5 lbs. of thehazardous chemical).

The option used for each mixture must be consistent with the option used in your Section311 reporting.

Because E -HSsare important to Section 303 planning, EHSs have lower thresholds. The amount ofan EHS at a facility (both pure EHS substances and EHSs in mixtures) mustbe aggregated for purposes ofthreshold 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 beenreached for an ElIS, you shouldreport either the total weight ofthe EHS at your facility, or the weight ofeach mixture containing theEHs.

*Where do Icount 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 ofchemicals 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 eachhazard type. Since thepeaks fordifferent chemicals often occur on different days, this maximum amount will seem artificially high.

To complete this and the following sections, you may choose to usethe Tier Two form as a worksheet.

To determine the Maximum Amount: 1.List all ofyour reportable hazardous chemicals individually.

2. For each chemical...

a.Indicate allphysical and health hazards that the chemical presents. Include all chemicals, even ifthey are present for only a short period oftime during the year.

b. Estimate themaximum weight in pounds that was present at yourfacility on any single day ofthe reporting period.

3. Foreach hazard type-beginning with Fire and repeating for all physical and health hazard types...

a. Add the maximum weights ofall chemicals you indicated as the particular hazard type.

b. Look at the Reporting Ranges at the bottom ofthe Tier One form. Find the appropriate range value code.

c. Enterthis range value as the Maximum AmounL

Example: You are using the TierTwo form as a worksheet and have listed raw weights in pounds for each ofyour hazardous chemicals. You have marked

an X in the immediate (acute)hazard column for phenol and sulfuric acid. The maximum amount rawweight 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 of04 corresponds to 10,500 lbs. Enter 04 as your Maximum Amount for Immediate (acure) hazards materials.

You also marked an X in theFire hazard box forphenol. 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 ofchemicals of eachhazard type thatwere present at or above applicable thresholds atyour facility at any point during the year.

To determine this amount: 1. List all ofyour reportable hazardous chemicals individually (same

as forMaximum 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 ofdays the chemical was present on the site.

3. Foreach hazard type-beginning with Fire and repeating for all physical and health hazards...

a. Add the average weights ofall chemicals you indicated for the particular hazard type. "

b.Look at the Reporting Ranges at the bottom ofthe Tier One form. Find the appropriate range value code.

c.Enter this range value as the Average Daily Amount. 

### 30649

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### 30650 Federal Register / Vol. 55, No. 144 / Thursday, July 26, 1990 / Rules and Regulations

Instructions
Please ReadTheseInstructions Carefully. Print or TypeallResponses Example: You areusing the Tier Two form, andhavemarked an Xin the immediate (acute)hazard column for nicotine and phenol.Nicotine is present at your facility 100days during theyear, and the sumofthe daily weights is 100,000 lbs. By dividing 100,000 lbs.by 100days on-site, you calculate an Average Daily Amount of1,000 lbs.for nicotine. Phenol is present at your facility 50 days during the year, and the

sumofthe daily weights is 10,000 lbs. By dividing 10,000 lbs. by50 days on-site, you calculate an Average Daily Amount of200 lbs.for phenol.Youthen add the two average daily amounts together to reach a total of 1,200 lbs.Thenyou look at theReporting Range on yourTier One form and find that thevalue 03 corresponds to 1,200 lbs. Enter 03 as your Average Daily Amount for Immediate (acute)Hazard.

You also marked an X in theFire hazard column forphenol. When you calculateyour Average Daily Amount for firehazards, use the 200lb. weight again. Number ofDays On-Site
Enter the greatest number ofdays that

a single chemical within thathazard category was present on-site.

Example: Atyour facility, nicotine is present for 100 days and phosgene is present for 150 days. Enter 150in the space provided.
General Location

Enter the general location within your facility where each hazard maybe found. General locations should include the names or identifications ofbuildings, tank fields, lots, sheds, orother such

areas.

For each hazard type, list the locations ofall applicable chemicals. As

an alternative you may also attach a site plan and list the site coordinates related to the appropriate locations. Ifyou do so, check the Site Plan box.

Example: Onyourworksheet you havemarked an X in theFire hazard column for acetone and butane. You noted that these are kept in steel drums in Room C oftheMain Building, and in pressurized cylinders in Storage Shed 13, respectively. You could enter Main Building and Storage Shed 13 as the GeneralLocations ofyourfire hazards. However, you choose to attach a site plan and listcoordinates. Check the Site Plan box at the top ofthe Column and enter site coordinates for the Main Building and Storage Shed 13 under General Locations.

Ifyou need more space to list locations, attach an additional Tier One form and continue yourlist on the proper line. Number allpages. Certification

Instructions for this section are Included onpage one ofthese instructions.

10. Section 370.41 isrevised toread as follows: §370.41 Tier IIemergency and hazardous chemical Inventoryform.

(a) Theform set out in paragraph (b) ofthis section shall be completed and submitted as required in §370.25 ofthis part. Inlieu ofthe form setout in paragraph (b)ofthis section, thefacility

owner or operator may submit a State or local form that contains identical content.

(b)Tier IIEmergency and Hazardous Chemical Inventory Form.

SBIWN CODE 65W5-so-U

HeinOnline -- 55 Fed. Reg. 30650 1990

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### 30652

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

TierTwo Instructions

General Information
Submission ofthis Tier Two form (when requested) is required by Title III ofthe Superfund Amendments and Reauthorization Act of1986, Section 312, Public Law 99-499, codified at 42 U.S.C. Section 11022. Thepurpose 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 orthe officially designated representative of the owner

or operator must certify that all information included in the TierTwo 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 ofpages 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 ofthe original signature, or a signature stamp. Each page must contain the date on which the original signature

was affixed to the first page ofthe 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 TierOne form or may be submitted in place of the Tier One form.
Who Must Submit This Form

Section 312 ofTitle III requires that the owner or operator ofa facility submit this TierTwo form ifso requested by a State emergency response commission, a local emergency planning committee, or a fire department withjurisdiction over the facility.

This'request may apply to the owner
or operator ofany facility that is required, under regulations implementing the Occupational Safety and Health Act of1970, 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 inTitle 29 ofthe Code ofFederal Regulations at 

### §1910.1200.

This form does not have to be submitted ifall ofthe chemicals located at your facility are excluded under Section 311(e) ofTitle III.
What Chemicals are Included

Ifyou are submitting Tier Two forms in lieu ofTierOne, you must report the required information on this TierTwo form for each hazardous chemical present at your facility in quantities equal to orgreater than established threshold amounts (discussed below), unless the chemicals are excluded under Section 311(e) ofTitle I1. Hazardous chemicals are any substance for which your facility mustmaintain an MSDS under OSHA's Hazard Communication Standard.

Ifyou elect to submit Tier One rather than Tier Two,you may still berequired to submit Tier Two information upon request.
WhatChemicals are Excluded

Section 311(e) ofTitle Ill excludes the following substances:

(i)Any food, food additive, color additive, drug, or cosmetic regulated by theFood and DrugAdministration;

(ii) Any substance present as a solid in any manufactured item to the extent exposure to the substance does not

occur under normal conditions ofuse;

(iii) Any substance to the extent it is used for personal, family, orhousehold purposes, oris present in the same form and concentration as a product packaged fordistribution and use by the general public;

(iv) Any substance to the extent it is used in a research laboratory or a hospital orother medical facility under the direct supervision ofa technically qualified individual;

(v) Any substance to the extent it is used in routine agricultural operations

or is a fertilizer held forsale by a retailer to the ultimate customer.

OSHA regulations, §1910.1200(b), stipulate exemptions from the requirement to prepare orhave 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, thereporting thresholdIs 500 pounds (or227 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, theminimum 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 theprevious calendar year at levels that equal or exceed these thresholds. For instructions on threshold determinations for components ofmixtures, see "What About Mixtures?" on page 2ofthese instructions.

.A requesting official may limit the responses required under TierTwo by specifying particular chemicals or groups of chemicals. Such requests apply to hazardous chemicals regardless of established thresholds.
Instructions

Plesasereadtheseinstructions carefully.Print orType allResponses
When to Submit ThisForm

Owners oroperators offacilities that have hazardous chemicals on hand in quantities equal to orgreater than set threshold levels must submit either Tier One orTier Two forms byMarch 1.

Ifyou choose to submit TierOne, rather than Tier Two,be aware that you may have to submit TierTwo information later, upon request ofan authorized official. You must submit the TierTwo form within 30 days ofreceipt ofa written request.
Where to Submit This Form

Send either a completed Tier One form or TierTwo form(s) to each ofthe following organizations:

1.Your State Emergency Response Commission.

2. YourLocal Emergency Planning Committee.

3.Thefire department with jurisdiction overyour facility.

Ifa TierTwo form is submitted in response to a request, send the completed form to the requesting
agency. Penalties

Any owner or operator who violates any TierTworeporting requirements shall be liable to the United States for a civil penalty ofup to $25,000 foreach such violation. Each day a violation continues shall constitute a separate violation.

IfyourTier Tworesponses require

more than onepage use additional forms and fill in thepage number at the top of the form. ......... J

....... i

.... ..... m 

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Reporting Period

Enter theappropriate calendar year, beginning January 1 and ending December 31. Facility Identification

Enter the full name ofyour facility (and company identifier where appropriate).

Enter the full street address orstate road. Ifa street address is not available,
enter other appropriate identifiers that describe the physical location,ofyour 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 officerofyour facility should be able to provide the Dun &Bradstreet number. Ifyour firm does nothave this information, contact the State or regional office ofDun &Bradstreet to obtain your facility number orhave 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 24hours 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 TierTwo form,if the current chemical information being reported is identical to that submitted last year. Chemical descriptions, hazards, amounts, and locations mustbe provided in this year's form, even ifthe information is identical
to that submitted last year. Chemical Information: Description, Hazards, Amounts, and Locations

The main section ofthe Tier Two form requires specific Information on amounts and locations ofhazardous chemicals, as defined in the OSHA Hazard Communication Standard.

Ifyou choose to indicate that all ofthe information on.a specific hazardous chemical Is identical to that submitted lastyear. check the,appropriate optional box provided at the right side ofthe storage codes and locations on the Tier Two form. Chemical descriptions, hazards, amounts, and locations must be provided even ifthe information is identical to that submittedlast year.
e What units should Iuse? Calculated all amounts as weight in pounds.To convert gas or liquid volume to weight inpounds, multfply by an appropriate density factor. * What about mixtures? Ifa chemical is part ofa mixture, you havetheoptionofreporting either the weight ofthe entire mixture or only the portion of the mixuture.that is a particular hazardous chemcial] (eg., ifa hazardous solution weights 100Ilbs. but is composed ofonly 5% ofaparticular hazardous chemcial, you can ndicate either 100 lbs. ofthe mixture or5lbs. of the chemical].

The option used for each mixture must be consistentwith the option used in your Section 311 reporting.

Because ElISs are importantto Section 303 planning, EHSs have lower thresholds. The amount ofan EHS at a facility (both pure EHS substances and EHSs in mixtures) must be aggregated and purposes ofthreshold determination. It is suggested .thatthe 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 ofthe EHS at your facility, or the weight ofeach 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 ifit has been assigned a-number distinct from its constituents. For a mixture thathas no CAS number, leave this item blank or report the CAS numbers ofas many constituent chemicals as possible.

Ifyou are withholding the name ofa chemical in accordance with criteria specified in Title 

### IL Section,322,,enter the generic class or category that is structurally descriptive ofthe,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 ofeach hazardous chemical.

3. Check box for ALL applicable descriptors: pure or mixture; and solid, liquid, orgas; and whether the chemical is orcontains an EHS.

4. Ifthe chemical is a mixture containing an EHS, enter the chemical

name ofeach 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 ofthe 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

chemicalswith,an adverse effect with shortterm exposure Delayed (Chronic)Health Carcinogens

Hazard. Other hazardous chemicalswith 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 inTable I.

3.Enter thisrange value as the Maximum Amount.

TABLE I-REPORTING, RANGES

Range Weight range Inpounds value From 

# F To



### o1...........o..................

.. 02........ 100

__ __ 999

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

TABLE I-REPORTING RANGESContinued

Range Weight range Inpounds
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

Ifyou 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 ofa 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% of25,000 gallons is 2,500 gallons. You also know that the density ofbenzene 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.

(Ifyou 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 ofdays 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 ofsolvent 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 ofbenzene. You 

### also know that the density ofbenzene is 7.29 pounds per gallon, so you multiply 1,440 by 7.29 to get a weight of10,500 pounds.

Thenyou look atTable I and find that the range value 04 corresponds to 10,500. You enter 04 as the Average Daily Amount.

(Ifyou are using the form as a worksheet for completing a Tier One form, you should write 10,500 in the shaded area.)

Number ofDays On-Site

Enter the number ofdays that the hazardous chemical was found on-site.

Example: The solvent composed of 10%benzene was present for315 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 ofboxes followed by a line represents a unique location for the

same chemical.

StorageCodes:Indicate the types and conditions of storage present.

a.Look atTable

### II.For each location, find the appropriate storage type and
enter the corresponding code in the first
box.

b.Look at TableIIl.For each location, find the appropriate storage types for
pressure and temperature conditions. Enter the applicablepressure 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-metallicdrum F Can G Carboy H Silo I Fiber drum J Bag K Box L Cylinder M Glass bottles orjugs 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 iskept'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 forless than ambient temperature is 6.

You enter: C 1 6 StorageLocations: Provide a brief description ofthe 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.

Foreach 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.

Ifthe 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:Ifyou choose
to attach one ofthe following, check the appropriate Attachments box at the bottom ofthe Tier Two form.

a.A siteplanwith site coordinates indicated forbuildings, lots, areas, etc. throughout your facility.

b.A listofsite coordinate abbreviations that correspond to buildings, lots, areas, etc. throughout your facility.

c.A description ofdikesandother safeguard measuresfor storage locations throughout your facility.

Example: You have benzene in the main room ofthe main building, and in tank 2 in tank field 10. You attach a site plan with coordinates as follows: main building = G-2, tankfield 10 = B-6. Fill in the Storage Location as follows:

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

### 30655 

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## / Rules and Regulations

Confidential Information

Under TitleIII. Section 324, you may elect to withhold location information

on a specific chemical from disclosure to the public. Ifyou choose to do so:

* Enterthe word "confidential" in the Non-Confidential Location section ofthe Tier Two form on the firstline ofthe storage locations.

* On a separate Tier Two Confidential Location Information Sheet,
enter the name and CAS number ofeach chemical for which you are keeping the location confidential.

* Enter the appropriate location and storage information, as described above fornon-confidential locations.

- Attach the TierTwo Confidential Location Information Sheet to theTier Two form. This separates confidential locations from other information that willbedisclosed to the public.

Certification

Instructions for this section are included on page one of these instructions.

9. Section370.40 is revised to read as 

### follows:

§370.40 Tier Iemergency 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 Officerofthe tribe

means the person who is recognized by the Bureau ofIndian Affairs as the chief elected administrative officer ofthe tribe.

IndianCountrymeans Indiancountry

as defined in 18 U.S.C. 1151.That section defines Indian country as:

(a)All land within the limits ofany Indian reservation under thejurisdiction ofthe 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.

Indiantribemeans those tribes federally recognized by the Secretary of the Interior.

Statemeans any State ofthe United States,the District ofColumbia, the Commonwealth ofPuerto Rico, Guam, 

### American Samoa. theUnited States * Virgin Islands, the Commonwealth of the NorthernMariana Islands, and any other territory or possession over which the United States hasjurisdiction 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 oroperator to be manufactured (including imported), processed, orotherwise used in excess ofan applicable thresholdquantity in §372.25 at its covered facility described in §372.22 for a calendar year,the

owner or operatormust submit to EPA and tothe Statein which the facility is located a completed EPA Form R (EPA Form 9350-1) in accordance with 

### subpart E.Ifthe covered facility is located in Indian Country, the facility shall submit a completed EPA FormR as described above to EPA and the official designated bythe ChiefExecutive Officer ofthe 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 inthe cooperative agreement.

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

BILLING CODE6560-60-"

HeinOnline -- 55 Fed. Reg. 30656 1990