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[Federal Register Volume 76, Number 190 (Friday, September 30, 2011)]
[Proposed Rules]
[Pages 60781-60788]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-24821]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 372

[EPA-HQ-OEI-2011-0196; FRL-9472-5]
RIN 2025-AA31

Toxics Release Inventory (TRI) Reporting for Facilities Located 
in Indian Country and Clarification of Additional Opportunities 
Available to Tribal Governments Under the TRI Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: This action proposes to: require TRI reporting facilities 
located in Indian country to report to the appropriate Tribal 
government for the relevant area instead of the State; and improve and 
clarify certain opportunities allowing Tribal governments to 
participate more fully in the TRI Program. In 1990, EPA finalized 
regulations in the Federal Register (FR) requiring facilities in Indian 
country to submit annual TRI reports to EPA and the appropriate Tribal 
government. These amendments, however, were inadvertently omitted from 
the Code of Federal Regulations (CFR), and the relevant provisions were 
later overwritten by a subsequent final rule, thus resulting in the 
exclusion of the intended requirement from the CFR. EPA intends to 
correct that inadvertent result by proposing this rule. Further, 
because Tribal governmental structures may vary, EPA is proposing to 
update its terminology to refer to the principal elected official of 
the Tribe as the ``Tribal chairperson or equivalent elected official.'' 
EPA is also amending its definition of ``State'' for purposes of 40 CFR 
part 372 to no longer include Indian country, so as to avoid any 
confusing overlap in terminology with the proposed express discussion 
of facilities in Indian country. With regard to the procedures for EPA 
to modify the list of covered chemicals and TRI reporting facilities, 
EPA proposes to clarify the opportunities available to Tribal 
governments. In particular, EPA proposes to include within the relevant 
provision an opportunity for the Tribal Chairperson or equivalent 
elected official to request that EPA apply the TRI reporting 
requirements to a specific facility located within the Tribe's Indian 
country. Secondly, EPA is proposing that the Tribal Chairperson or 
equivalent elected official may petition EPA to add or delete a 
particular chemical respectively to or from the list of chemicals 
covered by TRI. By increasing the participation and engagement of 
Tribal governments in the TRI program, EPA is helping to increase 
awareness of toxic releases within Tribal communities, thereby 
increasing the understanding of potential human health and ecological 
impacts from these hazardous chemicals.

DATES: Comments must be received on or before November 29, 2011.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OEI-2011-0196, by one of the following methods:
    http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: oei.docket@epa.gov.
     Fax: 202-566-0677
     Mail: Office of Environmental Information (OEI) Docket, 
Environmental Protection Agency, Mailcode: 28221T, 1200 Pennsylvania 
Ave., NW., Washington, DC 20460.
     Hand Delivery: EPA Docket Center (EPA/DC), EPA West, Room 
3334, 1301 Constitution Ave, NW., Washington, DC 20460. Such deliveries 
are only accepted during the Docket's normal hours of operation, and 
special arrangements should be made for deliveries of boxed 
information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OEI-
2011-0196. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage: http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at OEI Docket, EPA/DC, 
EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The 
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the OEI 
Docket is (202) 566-1752.

[[Page 60782]]

FOR FURTHER INFORMATION CONTACT: Louise Camalier, Environmental 
Analysis Division, Office of Environmental Information (2842T), 
Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460; telephone number: (202) 566-0503; fax number: 
(202) 566-0677; e-mail address: Camalier.louise@epa.gov, for specific 
information on this notice. For general information on EPRCA section 
313, contact the Emergency Planning and Community Right-to-Know 
Hotline, toll free at (800) 424-9346 or (703) 412-9810 in Virginia and 
Alaska or toll free, TDD (800) 553-7672, http://www/epa/gov/epaoswer/
hotline/.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    You may be potentially affected by this action if you own or 
operate a facility located in Indian country (18 U.S.C. 1151) with a 
toxic chemical(s) known by the owner or operator to be manufactured 
(including imported), processed, or otherwise used in excess of an 
applicable threshold quantity, as referenced in 40 CFR 372.25, 372.27, 
or 372.28, at its covered facility described in Sec.  372.22. 
Potentially affected categories and entities may include, but are not 
limited to:

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             Category                               Examples of potentially affected entities
---------------------------------------------------------------------------------------------------------------
Industry.........................  Facilities included in the following NAICS manufacturing codes
                                    (corresponding to SIC codes 20 through 39): 311*, 312*, 313*, 314*, 315*,
                                    316, 321, 322, 323*, 324, 325*, 326*, 327, 331, 332, 333, 334*, 335*, 336,
                                    337*, 339*, 111998*, 211112*, 212324*, 212325*, 212393*, 212399*, 488390*,
                                    511110, 511120, 511130, 511140*, 511191, 511199, 512220, 512230*, 519130*,
                                    541712*, or 811490*.
                                   * Exceptions and/or limitations exist for these NAICS codes................
                                   Facilities included in the following NAICS codes (corresponding to SIC
                                    codes other than SIC codes 20 through 39): 212111, 212112, 212113
                                    (correspond to SIC 12, Coal Mining (except 1241)); or 212221, 212222,
                                    212231, 212234, 212299 (correspond to SIC 10, Metal Mining (except 1011,
                                    1081, and 1094)); or 221111, 221112, 221113, 221119, 221121, 221122,
                                    221330 (Limited to facilities that combust coal and/or oil for the purpose
                                    of generating power for distribution in commerce) (correspond to SIC 4911,
                                    4931, and 4939, Electric Utilities); or 424690, 425110, 425120 (Limited to
                                    facilities previously classified in SIC 5169, Chemicals and Allied
                                    Products, Not Elsewhere Classified); or 424710 (corresponds to SIC 5171,
                                    Petroleum Bulk Terminals and Plants); or 562112 (Limited to facilities
                                    primarily engaged in solvent recovery services on a contract or fee basis
                                    (previously classified under SIC 7389, Business Services, NEC)); or
                                    562211, 562212, 562213, 562219, 562920 (Limited to facilities regulated
                                    under the Resource Conservation and Recovery Act, subtitle C, 42 U.S.C.
                                    6921 et seq.) (correspond to SIC 4953, Refuse Systems).
Federal Government...............  Federal facilities.........................................................
----------------------------------------------------------------------------------------------------------------

     This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be affected by this 
action. Some of the entities listed in the table have exemptions and/or 
limitations regarding coverage, and other types of entities not listed 
in the table could also be affected. To determine whether your facility 
would be affected by this action, you should carefully examine the 
applicability criteria in part 372 subpart B of Title 40 of the Code of 
Federal Regulations.
    Facilities in Indian country would no longer be required to report 
to the States, although States would still receive this information 
once it is available to the public. Tribes with facilities located in 
their Indian country would receive the facility reports under this 
proposal. This would represent a change for facilities, States, and 
Tribes.
    If you have questions regarding the applicability of this action to 
a particular entity, consult the person listed in the preceding FOR 
FURTHER INFORMATION CONTACT section.

B. How should I submit CBI to the agency?

    Do not submit this information to EPA through http://www.regulations.gov or e-mail. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as 
CBI and then identify electronically within the disk or CD-ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.

II. Introduction

    Since the beginning of the TRI Program in 1986, facilities that 
meet TRI reporting requirements have been required to submit annual TRI 
reports to EPA and the State in which they are located. In 1990, EPA 
finalized regulations in the Federal Register (FR) requiring facilities 
in Indian country to submit annual TRI reports to EPA and the 
appropriate Tribal government (55 FR 30632). EPA's rationale supporting 
those regulations was fully explained in the relevant preambles to the 
proposed and final rules. Id.; 45 FR 12992. These amendments, however, 
were inadvertently omitted from the CFR and later overwritten by a 
subsequent final rule and left out of the CFR. To correct this 
inadvertent omission, EPA intends to include these provisions in the 
CFR, in 40 CFR 372.30(a), to require each facility located in Indian 
country to submit its annual TRI reports to the appropriate Tribe, 
rather than to the State in which the facility is geographically 
located. The requirement for the facility to report to EPA would remain 
the same.
    To further encourage Tribal engagement and participation in the TRI 
program, EPA also proposes to make explicitly clear in the regulations 
certain additional opportunities for governments of federally-
recognized Tribes. The first opportunity would allow the Tribal 
Chairperson or equivalent elected official to request that EPA apply 
the TRI reporting requirements to a specific facility located within 
the Tribe's Indian country, under the authority of EPCRA Section 
313(b)(2). The second opportunity would allow the Tribal Chairperson or 
equivalent elected official to petition EPA to add or delete a 
particular chemical respectively to or from the list of chemicals 
covered by TRI, under the authority of EPCRA Section 313(e)(2). EPA 
proposes to treat these request and petitioning opportunities as EPA 
currently treats those for Governors of States under EPCRA Sections 
313(b)(2) and (e)(2). After EPA has received a formal request

[[Page 60783]]

from a Tribe, EPA would make its final decision on the facility 
addition based on the criteria outlined in EPCRA Section 313(b)(2). EPA 
may also act on its own motion to add a facility without anyone 
requesting action. Opportunities for the public to participate in the 
TRI program consist of the right to petition the EPA to add or delete a 
particular chemical or chemicals to the TRI list of hazardous chemicals 
for toxics release reporting.

III. Background Information

A. What does this document do and what action does this document 
affect?

    This document primarily proposes to fulfill the goals of the July 
26, 1990, action (55 FR 30632), which required facilities located in 
Indian country to report to the appropriate Tribal government and the 
EPA, instead of to the State and EPA. This amendment, however, was 
inadvertently omitted from the CFR and later overwritten by a 
subsequent final rule. Therefore, EPA is proposing to update 40 CFR 
372.30(a) to reflect the purpose of the 1990 amendment. Secondly, to 
supplement this action, this document also clarifies existing TRI 
reporting regulations and guidance to further enable Tribal governments 
to participate more fully in the TRI Program.
    Under today's proposal for 40 CFR 372.30(a), an owner or operator 
of a TRI facility in Indian country would have to submit (to the extent 
applicable) EPA's Form R, Form A, and Form R Schedule 1 to the official 
designated by the Tribal Chairperson or equivalent elected official of 
the relevant Tribe, as well as to EPA. The form(s) would no longer have 
to be submitted to the State in which the facility is geographically 
located. Under this proposal, facilities would select/provide the name 
of the federally-recognized Tribe as part of the State data field in 
the Address block on the TRI forms. To accommodate this, EPA would make 
changes to the description of this data field on the TRI form. In 
addition, EPA would modify the instructions that accompany the forms in 
the annual TRI Reporting Forms & Instructions document accessible from 
the TRI Web site.
    Also under today's proposal, EPA proposes to clarify request and 
petitioning rights available to Tribal governments. A Tribe would have 
the opportunity to request EPA to require TRI reporting by a facility 
in the Indian country of that Tribe. Tribes would also have the 
opportunity to petition for the addition or deletion of a chemical, 
which would apply to all facilities that manufacture (including 
import), process, or otherwise use the particular chemical. The 
statute--at sections 313(b)(2) and 313(d)--expressly authorizes the 
Administrator to apply TRI reporting requirements to particular 
facilities and to add or delete chemicals to or from the list of 
chemicals subject to TRI reporting. The statute provides opportunities 
for Governors of States to request that particular facilities be 
subject to TRI reporting or that specific chemicals be added to or 
deleted from the TRI reporting list (EPCRA Section 313(b)(2), (e)(2)). 
Similar to the process for Governors, after EPA has received a formal 
request from a Tribe, EPA would make its final decision on the facility 
addition based on the criteria outlined in EPCRA Section 313(b)(2). EPA 
may also act on its own motion to add a facility without anyone 
requesting action. EPA believes that these same opportunities are 
appropriately available to Tribal governments under the statute and EPA 
proposes to interpret these provisions so that the Tribal Chairperson 
or equivalent elected official may make similar requests to EPA. 
Ultimately, it is EPA that determines whether TRI reporting 
requirements will apply to a particular facility or whether a specific 
chemical will be added to, or deleted from, the TRI chemicals list.

B. What is the agency's authority for taking this action?

    EPA proposes this rule under sections 313, 328, and 329 of EPCRA, 
42 U.S.C. 11023, 11048 and 11049.
    EPCRA Section 313(a) requires that the TRI reporting form be 
submitted to EPA and the official(s) of the State designated by the 
Governor. Section 329 defines ``State'' to mean ``any State of the 
United States, the District of Columbia, the Commonwealth of Puerto 
Rico, Guam, American Samoa, the United States Virgin Islands, the 
Northern Mariana Islands, and any other territory or possession over 
which the United States has jurisdiction.'' The statute has no separate 
definition of, or explicit reference to, Indian Tribes or Indian 
country. As EPA has explained previously, however, Congress clearly 
intended the statute's protections to apply to all persons nationwide, 
including in Indian country. See, e.g., 55 FR 30632, 30641-30642 (July 
26, 1990); 54 FR 12992, 13000-13002 (March 29, 1989). In the context of 
a facility located in Indian country, EPA interprets section 313(a) as 
requiring reporting to EPA and the official designated by the Tribal 
Chairperson or equivalent elected official for the relevant area of 
Indian country. As discussed in EPA's prior notices, the statutory 
language, the legislative history, and principles of Federal law 
relating to Indian Tribes and Indian country support the application of 
EPCRA in Indian country and EPA's reasonable interpretation of section 
313(a) requirements. Id.
    This reasonable interpretation of the statute is reinforced by the 
broad grant of rulemaking authority from Congress to EPA under EPCRA. 
Section 328 provides that the ``Administrator may prescribe such 
regulations as may be necessary to carry out this chapter.'' 42 U.S.C. 
11048.
    For purposes of regulatory clarity, EPA has proposed that the 
reporting requirements for a facility in Indian country be discussed 
expressly in part 372. Part 372 already contains a definition of Indian 
country at 40 CFR 372.3. To avoid any confusing overlap, EPA has 
proposed to remove Indian country from the definition of ``State'' as 
that term is used in part 372.
    EPA also expressly interprets section 313(b)(2) and (e)(2) in the 
context of Indian Tribes. In the case of a facility located in Indian 
country, EPA interprets section 313(b)(2) as allowing requests by a 
Tribal Chairperson or equivalent elected official that EPA apply TRI 
reporting requirements to a facility located in the requesting Tribe's 
Indian country. EPA also interprets section 313(e)(2) as allowing 
petitions by a Tribal Chairperson or equivalent elected official 
requesting that EPA add or delete a chemical to or from the list of 
chemicals subject to TRI reporting. EPA's interpretation of each of 
these provisions flows from the same reasoning and authority as 
discussed above for section 313(a). EPA also notes that in all cases it 
is EPA, not a Tribe or State, that makes the final determination 
whether a facility or chemical should be subject to the TRI program.
    EPA believes that each of these Tribal roles will enhance Tribal 
participation in the TRI program and the availability of relevant 
information to communities within Indian country consistent with 
statutory authorities and requirements. EPA notes that pursuant to 
EPA's 1990 rulemaking cited above, federally-recognized Indian Tribes 
already participate in other important elements of implementation of 
EPCRA in Indian country. Today's proposed rulemaking would, among other 
things, rectify the inadvertent omission from the CFR of Tribal roles 
in the TRI program.

C. What is an Indian Tribe, and what kind of land is Indian country?

    As defined at 40 CFR 372.3, ``Indian Tribe'' refers to those Tribes 
that are

[[Page 60784]]

``federally-recognized by the Secretary of the Interior.'' The 
Secretary of the Interior maintains a list of federally-recognized 
Indian Tribes, which is published periodically in the Federal Register. 
As also set forth at 40 CFR 372.3, ``Indian country'' means Indian 
country as defined in 18 U.S.C. 1151, which defines Indian country as: 
all land within the limits of any Indian reservation under the 
jurisdiction of the United States government, notwithstanding the 
issuance of any patent, and including rights-of-way running through the 
reservation; 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 all Indian allotments, the Indian titles to which have not been 
extinguished, including rights-of-way running through the same.

D. What is a Tribe's responsibility under this rule?

    Under this proposed rule and per the intent of the 1990 regulation, 
a Tribe's only responsibility would be to receive any TRI reports 
submitted by facilities located within its Indian country.

E. How would Tribes receive reports from facilities?

    Under this proposed rule, Tribes may define how they would like to 
receive reports from TRI facilities. If a Tribe provides no specific 
guidance as to receipt, owners and operators of TRI facilities would 
mail TRI reports to the appropriate Tribal government representative. 
Tribes would be requested by EPA to provide a mailing address and 
contact name to be published on the TRI Web site, so that facilities in 
Indian country would know where to send their TRI reports. If no 
specific contact is provided, EPA would use the Tribal Council or 
Tribal Environmental Department as the default contact. As described 
further below, Tribal governments could also chose to provide 
electronic options for report submittal.

F. How would the proposal affect TRI reporting facilities and the 
States or Tribes to which they would report?

 1. Submission of TRI Reports to Tribal Governments
    As described above, under the proposal the owner or operator of a 
facility located in Indian country would have to submit their TRI 
reports to the relevant Tribal government in lieu of the State 
government. The requirement to submit the report to EPA would remain 
unchanged. In many cases, this means the owner or operator would mail a 
copy of the TRI report to the specific Tribal government 
representative. As noted, Tribal governments may also choose to allow 
for electronic submittal of TRI reports. If a Tribal government becomes 
a member of the Internet-based TRI Data Exchange, then the owner or 
operator of a facility could meet its dual EPA/Tribal reporting 
requirements by submitting its TRI report to EPA via TRI Made Easy 
(TRI-ME) Web, a Web-based application that allows facilities to submit 
a paperless report. EPA would then automatically transmit the report to 
the appropriate Tribe (instead of the State) via the TRI Data Exchange.
    If the facility is located in the Indian country of a Tribe that 
does not become a member of the TRI Data Exchange, then the facility 
would be required to submit a TRI report to EPA and also separately to 
the appropriate Tribe. The approach described above is the same as for 
EPA and States for those facilities not located in Indian country.
2. Requests by Tribal Governments for EPA To Add Specific Facilities to 
TRI
    Under this proposed rule, a Tribe would have the opportunity to 
request that EPA require that a currently non-covered facility located 
in its Indian country report the facility's releases and other waste 
management to TRI. Under the statute, it is EPA that applies TRI 
reporting requirements to particular facilities (EPCRA Section 
313(b)(2)). Section 313(b)(2) also provides an opportunity for 
Governors of States to request that EPA apply TRI requirements to 
facilities in their areas. The addition of certain facilities that 
would otherwise not be covered by TRI helps to aid communities and 
leaders to comprehensively assess chemical releases to their local 
environment. EPA proposes to interpret this provision to provide a 
similar opportunity for the Tribal Chairperson or equivalent elected 
official to request that EPA apply TRI reporting requirements to 
particular facilities located in the Tribe's Indian country. This 
opportunity for Tribes to request that EPA add a facility located in 
its Indian country can address situations where a Tribal government 
becomes aware of a facility that manufactures (including imports), 
processes, or otherwise uses a TRI chemical yet does not meet the full 
criteria to trigger reporting. This opportunity to add the facility may 
help the Tribe better understand chemical risks within their Indian 
country.
    This would be an opportunity and not a requirement, which means 
that the Tribal Chairperson or equivalent elected official would not be 
required to request the addition of a facility; however, he or she may 
do so, for instance, if there is a concern about toxic releases coming 
from that facility. After EPA has received a formal request from a 
Tribe, EPA would make its final decision on the facility addition based 
on the criteria outlined in EPCRA Section 313(b)(2). EPA may also act 
on its own motion to add a facility without anyone requesting action.
    EPA's consultation with Tribes consisted of two consultation calls 
(February 7 and 28 of 2011), and during these calls EPA facilitated 
discussion and collected comments from Tribes in response to the 
actions proposed in this rule. Furthermore, EPA officiated two 
additional webinars for representatives from the National Tribal Air 
Association (NTAA) on March 17 and 30 of 2011, as well as hosting an 
electronic discussion forum (or ``blog'') to collect electronic 
feedback from interested parties. Material summarizing these meetings 
and the blog can be accessed from the docket for this proposed rule 
(Docket ID No. EPA-HQ-OEI-2011-0196).
    During the Agency's consultation with Tribes, EPA received several 
positive comments about this proposed clarification to the request 
rights for Tribes to add a facility to the TRI. As EPA has heard in 
consultation, however, Tribes may be concerned about such facilities 
that are not in Indian country but are located nearby, where releases 
of those chemicals may inevitably reach and affect Indian country lands 
and communities. Although the opportunity expressly provided by the 
statute to request the addition of a facility under EPCRA 313 only 
extends to a facility located in the relevant State and, under this 
proposed rule, Indian country, EPA would consider any concerns and 
information about facilities outside of the State or Indian country in 
the exercise of EPA's discretionary authority, including concerns and 
information brought to EPA's attention by a Tribal chairperson or 
equivalent elected official, and/or similarly, Governors of States. 
This possibility is especially relevant in situations where a facility 
releases chemicals into or near a Territory boundary or interstate 
community, yet it is not located within that Governor's or Tribal 
Chairperson or equivalent elected official's jurisdiction. While there 
is no 180-day time limit as there is for chemical petitions, and while 
this proposed rule does not address these general request opportunities 
which are already in existence, EPA, as a matter of administrative 
policy, would give such requests from Tribal governments (as

[[Page 60785]]

well as Governors of States) appropriate priority and consideration.
    The impact on owners and operators of facilities that EPA includes 
within the TRI reporting program pursuant to the authority of EPCRA 
Section 313(b)(2) is that they would be required to report to EPA and 
the relevant Tribe (for facilities located in Indian country) or State 
(for facilities outside of Indian country) under TRI. The impact from 
this opportunity on citizens around the requested facility would be 
access to additional information on chemicals being managed at the 
facility if EPA adds the facility.
3. Petitions by Tribal Governments for EPA To Add or Delete Specific 
Chemicals to TRI List
    Under this proposed rule, Tribes would have the same opportunity as 
Governors of States to petition EPA to require that a chemical be added 
to or removed from the TRI list of toxic chemicals. Ultimately, it is 
EPA that determines whether the chemical will be added to, or deleted 
from, the TRI list. If EPA adds a chemical to the list, such action 
would affect all facilities releasing the particular substance, 
regardless of a facility's location inside or outside of the 
petitioning Tribe's Indian country. This type of provision already 
applies in the context of petitions by Governors of States (EPCRA 
Section 313(e)(2)). Therefore, EPA proposes to interpret the statute to 
provide similar opportunities to the Tribal Chairperson or equivalent 
elected official. This would be an opportunity and not a requirement. 
In other words, the Tribal Chairperson or equivalent elected official 
would not be required to petition EPA to modify the list of substances 
managed by TRI; however, he or she may do so, for instance, if there is 
a concern about toxic releases of that substance.
    If EPA receives a petition from a Tribe that requests the addition 
of a particular chemical, EPA would have 180 days to respond with 
either the initiation of a rulemaking to add the chemical to the list 
or an explanation of why the petition does not meet the requirements to 
add a chemical to the list. The petition would need to be based on the 
criteria provided in subparagraph (A), (B), or (C) of EPCRA Section 
313(d)(2). As a matter of administrative policy, EPA places a high 
priority on petitions from Tribes to add a chemical. However, if EPA 
does not respond within 180 days of receipt of a Tribe's petition to 
add a chemical, the chemical would be added to the list pursuant to 
EPCRA Section 313(e)(2).
    Within 180 days of receipt of a Tribe's petition to delete a 
chemical based on the criteria provided in subparagraph (A), (B), or 
(C) of EPCRA Section 313(d)(2), EPA would either initiate a rulemaking 
to delete the chemical or explain why EPA denied the petition. Unlike 
the analogous process for petitions to add a chemical, however, the 
chemical would not be deleted within 180 days if EPA failed to respond.
    During the Agency's consultation with Tribes, EPA received several 
positive comments about this proposed clarification to the petition 
rights for Tribes to add a chemical to the TRI reporting list. For more 
information, the materials summarizing these meetings and the blog can 
be accessed from the docket for this proposed rule (Docket ID No. EPA-
HQ-OEI-2011-0196).
    Further, any person may petition EPA to add or delete a chemical 
based on certain grounds specified under EPCRA Section 313(e)(1). 
However, if EPA receives a petition by a private citizen to add a 
chemical and EPA fails to respond within 180 days, the chemical would 
not necessarily be added. This result distinguishes citizen petitions 
to add a chemical from petitions to add a chemical by a Governor of a 
State or, as clarified under this proposed rule, the Tribal Chairperson 
or equivalent elected official (compare EPCRA Section 313(e)(1) with 
EPCRA Section 313(e)(2)).
    If EPA adds a chemical(s) to the TRI list (through its own 
initiative under Section 313(d) or in response to a petition), the 
impact on owners and operators of facilities with the toxic chemical(s) 
in question would be that they would be required to evaluate the TRI 
reporting requirements with the new chemical and, if appropriate, based 
on those requirements, report under TRI to EPA and the relevant State 
or, if located in Indian country, the relevant or appropriate Tribe. 
The impact from this action by EPA on Tribes, States, and the general 
public would be that they would have access to information on new toxic 
chemicals being managed at facilities across the nation. The potential 
impact from this action on industry consists of the cost of compliance 
for facilities that would have to report for a particular chemical that 
was added.

IV. References

    EPA has established an official public docket for this action under 
Docket ID No. EPA-HQ-OEI-2011-0196. The public docket includes 
information considered by EPA in developing this action, which is 
electronically or physically located in the docket. In addition, 
interested parties should consult documents that are referenced in the 
documents that EPA has placed in the docket, regardless of whether 
these referenced documents are electronically or physically located in 
the docket. For assistance in locating documents that are referenced in 
documents that EPA has placed in the docket, but that are not 
electronically or physically located in the docket, please consult the 
person listed in the above FOR FURTHER INFORMATION CONTACT section.

V. Statutory and Executive Order reviews associated with this action?

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

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

B. Paperwork Reduction Act

    This proposed rule does not contain any new information collection 
requirements that require additional approval by the Office of 
Management and Budget (OMB) under the Paperwork Reduction Act (PRA), 44 
U.S.C. 3501 et seq. Currently, the facilities subject to the reporting 
requirements under EPCRA 313 and PPA 6607 may use (to the extent 
applicable) the EPA Toxic Chemical Release Inventory Form R (EPA Form 
9350-1), the EPA Toxic Chemical Release Inventory Form A (EPA Form 
9350-2), and the EPA Toxic Chemical Release Inventory Form R Schedule 1 
(EPA Form 9350-3) for dioxin and dioxin-like compounds. The Form R must 
be completed if a facility manufactures, processes, or otherwise uses 
any listed chemical above threshold quantities and meets certain other 
criteria. For the Form A, EPA established an alternative threshold for 
facilities with low annual reportable amounts of a listed toxic 
chemical. A facility that meets the appropriate reporting thresholds, 
but estimates that the total annual reportable amount of the chemical 
does not exceed 500 pounds per year, can take advantage of an 
alternative manufacture, process, or otherwise use threshold of 1 
million pounds per year of the chemical, provided that certain 
conditions are met, and submit the Form A instead of the Form R. In 
addition, respondents may designate the specific chemical

[[Page 60786]]

identity of a substance as a trade secret pursuant to EPCRA section 322 
42 U.S.C. 11042: 40 CFR part 350.
    OMB has approved the reporting burden associated with the EPCRA 
Section 313 reporting requirements under OMB Control number 2070-0093 
(EPA Information Collection Request (ICR) No. 1363.15); OMB control 
number 2070-0143 (EPA ICR No. 1704.09); and OMB Control 2070-0078 (EPA 
ICR No. 1428). As provided in 5 CFR 1320.5(b) and 1320.6(a), an Agency 
may not conduct or sponsor, and a person is not required to respond to, 
a collection of information unless it displays a currently valid OMB 
control number. The OMB control numbers relevant to EPA's regulations 
are listed in 40 CFR part 9, 48 CFR chapter 15, and displayed on the 
information collection instruments (e.g., forms, instructions).
    EPA estimates the incremental burden for facilities located in 
Indian country to send their reports to the Tribe instead of the State 
to average, in the first year, approximately $26.71 per facility for 
the 51 facilities located in Indian country. EPA estimates an 
incremental burden of $18.14 for the remaining 20,746 TRI reporters. 
Thus, the total first year incremental cost associated with the rule is 
estimated at $377,695 based on 6,934 total burden hours. In subsequent 
years, there is no incremental reporting burden, given that the burden 
created by the rule is limited to rule familiarization and compliance 
determination in which facilities will only engage in the first year. 
These estimates include the time needed to become familiar with the new 
requirement (rule familiarization) and to determine whether the 
facility is located in Indian country (compliance determination). The 
actual burden on any facility may be different from this estimate 
depending on how much time it takes individual facilities to complete 
these activities. Upon promulgation of a final rule, the Agency may 
determine that the existing burden estimates in the ICR need to be 
amended in order to account for an increase in burden associated with 
the final action. If so, the Agency will submit an information 
collection worksheet (ICW) to OMB requesting that the total burden in 
the ICR be amended, as appropriate.
    The Agency would appreciate any comments or information that could 
be used to: (1) Evaluate whether the proposed collection of information 
is necessary for the proper performance of the functions of the Agency, 
including whether the information will have practical utility; (2) 
evaluate the reasonableness of the Agency's estimate of the incremental 
burden associated with the proposed rule, including the validity of the 
methodology and assumptions used; (3) enhance the quality, utility, and 
clarity of the information to be collected; and (4) minimize the burden 
of the collection of information on those who are to respond, including 
through the use of appropriate automated electronic, mechanical, or 
other technological collection techniques or other forms of information 
technology, e.g., permitting electronic submission of responses. Please 
submit your comments within 60 days as specified at the beginning of 
this proposal.

C. Regulatory Flexibility Act (RFA), as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et 
seq.

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions. For purposes of assessing the impacts of 
today's rule on small entities, small entity is defined as: (1) A 
business that is classified as a ``small business'' by the Small 
Business Administration at 13 CFR 121.201; (2) a small governmental 
jurisdiction that is a government of a city, county, town, school 
district or special district with a population of less than 50,000; and 
(3) a small organization that is any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field. All 
of the 3,185 potentially affected small entities have cost impacts of 
less than 1% in the first year of the rulemaking. Note that facilities 
do not incur reporting burden or costs in subsequent years of the 
rulemaking. No small entities are projected to have a cost impact of 1% 
or greater. Of the 3,185 estimated cost impacts, there is a maximum 
impact of approximately 0.13% and a median impact of approximately 
0.002%. A more detailed analysis of the impacts on small entities is 
located in EPA's economic analysis support document, Economic Analysis 
of the Proposed Toxics Release Inventory (TRI) Reporting Rule for 
Facilities Located in Indian Country, located in the docket.
    After considering the economic impacts of this rule on small 
entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. We continue 
to be interested in the potential impacts of the proposed rule on small 
entities and welcome comments on issues related to such impacts.

D. Unfunded Mandates Reform Act (UMRA)

    This rule does not contain a Federal mandate that may result in 
expenditures of $100 million or more for State, local, and Tribal 
governments, in the aggregate, or the private sector in any one year. 
EPA's economic analysis indicates that the total cost of this rule is 
estimated to be $377,695 in the first year of reporting, and $0 in 
subsequent years. Thus, this rule is not subject to the requirements of 
sections 202 or 205 of UMRA.
    This rule is also not subject to the requirements of section 203 of 
UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. Small governments 
are not subject to the EPCRA section 313 reporting requirements.

E. Executive Order 13132 (Federalism)

    This action does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. This action relates to toxic 
chemical reporting under EPCRA section 313, which primarily affects 
private sector facilities. Thus, Executive Order 13132 does not apply 
to this action.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this proposed action 
from State and local officials.

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

    This action does have some Tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). This action 
relates to toxic chemical reporting under EPCRA section 313, which 
primarily affects private sector facilities; however, it does have 
Tribal implications in the way that the Agency is proposing a change in 
the current way toxic chemical reporting information is transmitted and 
received. EPA organized and provided a formal consultation with Tribes 
to discuss the

[[Page 60787]]

proposed actions that may have the potential to affect one or more 
Tribes or areas of interest to Tribes. Two consultation calls occurred 
on February 7 and 28 of 2011, and during these calls EPA facilitated 
discussion and collected comments from Tribes in response to the 
actions proposed in this rule. During the Agency's consultation with 
Tribes, EPA received several positive comments about this proposed 
clarification to the request rights for Tribes to add a facility to the 
TRI, as well as the petitioning rights to add or delete a chemical. 
Furthermore, EPA officiated two additional Webinars for representatives 
from the National Tribal Air Association (NTAA) on March 17 and 30 of 
2011, as well as hosting a blog to collect electronic feedback from 
interested parties. Additionally, in the spirit of EO 13175, and 
consistent with EPA policy to promote communications between EPA and 
Indian Tribal governments, EPA specifically solicits additional comment 
on this proposed action from Tribal officials.

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

    EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying 
only to those regulatory actions that concern health or safety risks, 
such that the analysis required under section 5-501 of the EO has the 
potential to influence the regulation. This action is not subject to EO 
13045 because it does not establish an environmental standard intended 
to mitigate health or safety risks.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 (66 FR 28355, 
May 22, 2001), because it is not a significant regulatory action under 
Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law No. 104-113, 12(d) (15 U.S.C. 272 
note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. NTTAA directs EPA to 
provide Congress, through OMB, explanations when the Agency decides not 
to use available and applicable voluntary consensus standards.
    This proposed rulemaking does not involve technical standards. 
Therefore, EPA is not considering the use of any voluntary consensus 
standards.

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

    EO 12898 (59 FR 7629, Feb. 16, 1994) establishes Federal executive 
policy on environmental justice. Its main provision directs Federal 
agencies, to the greatest extent practicable and permitted by law, to 
make environmental justice part of their mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health or environmental effects of their programs, policies, and 
activities on minority populations and low-income populations in the 
United States. EPA has determined that this proposed rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. This proposed rule provides opportunities to request the 
addition of additional chemicals to the EPCRA section 313 reporting 
requirements. By adding chemicals to the list of toxic chemicals 
subject to reporting under section 313 of EPCRA, EPA would be providing 
communities across the United States (including minority populations 
and low-income populations) with access to data which they may use to 
seek lower exposures and consequently, reductions in chemical risks for 
themselves and their children. This information can also be used by 
government agencies and others to identify potential problems, set 
priorities, and take appropriate steps to reduce any potential risks to 
human health and the environment. Therefore, the informational benefits 
of the proposed rule will have a positive impact on the human health 
and environmental impacts of minority populations, low-income 
populations, and children.

List of Subjects in 40 CFR Part 372

    Environmental protection, Community right-to-know, Reporting and 
recordkeeping requirements, Tribes, and Indian country.

    Dated: September 21, 2011.
Lisa P. Jackson,
Administrator.

    Therefore, it is proposed that 40 CFR part 372 be amended as 
follows:

PART 372--[AMENDED]

    1. The authority citation for part 372 continues to read as 
follows:

    Authority:  42 U.S.C. 11023 and 11048.

    2. In Sec.  372.3, the definition of ``Chief Executive Officer of 
the tribe'' is removed, the definition of ``State'' is revised, and the 
definition ``Tribal Chairperson or equivalent elected official'' is 
added in alphabetical order to read as follows:

Sec.  372.3  Definitions.

    State means any State of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the 
United States Virgin Islands, the Commonwealth of the Northern Mariana 
Islands, and any other territory or possession over which the United 
States has jurisdiction.
* * * * *
    Tribal Chairperson or equivalent elected official means the person 
who is recognized by the Bureau of Indian Affairs as the chief elected 
administrative officer of the Tribe.
* * * * *
    3. Add Sec.  372.20 to subpart B to read as follows:

Sec.  372.20  Process for modifying covered chemicals and facilities.

    (a) Request to add a facility to the TRI list of covered 
facilities.
    (1) The Administrator, on his own motion or at the request of a 
Governor of a State (with regard to facilities located in that State) 
or a Tribal Chairperson or equivalent elected official (with regard to 
facilities located in the Indian country of that Tribe), may apply the 
requirements of section 313 of Title III to the owners and operators of 
any particular facility that manufactures, processes, or otherwise uses 
a toxic chemical listed under subsection (c) of section 313 of Title 
III if the Administrator determines that such action is warranted on 
the basis of toxicity of the toxic chemical, proximity to other 
facilities that release the toxic chemical or to population centers, 
the history of releases of such chemical at such facility, or such 
other factors as the Administrator deems appropriate.
    (b) Petition to add or delete a chemical from TRI list of covered 
chemicals.
    (1) In general. Any person may petition the Administrator to add or

[[Page 60788]]

delete a chemical to or from the list described in subsection (c) of 
section 313 of Title III on the basis of the criteria in subparagraph 
(A) or (B) of subsection (d)(2) and (d)(3) of section 313 of Title III. 
Within 180 days after receipt of a petition, the Administrator shall 
take one of the following actions:
    (i) Initiate a rulemaking to add or delete the chemical to or from 
the list, in accordance with subsection (d)(2) or (d)(3) of section 313 
of Title III.
    (ii) Publish an explanation of why the petition is denied.
    (2) State and Tribal petitions. A State Governor, or a Tribal 
chairperson or equivalent elected official, may petition the 
Administrator to add or delete a chemical to or from the list described 
in subsection (c) of section 313 of Title III on the basis of the 
criteria in subparagraph (A), (B), or (C) of subsection (d)(2) of 
section 313 of Title III. In the case of such a petition from a State 
Governor, or a Tribal Chairperson or equivalent elected official, to 
delete a chemical, the petition shall be treated in the same manner as 
a petition received under paragraph (b)(1) of this section. In the case 
of such a petition from a State Governor, or a Tribal Chairperson or 
equivalent elected official, to add a chemical, the chemical will be 
added to the list within 180 days after receipt of the petition, unless 
the Administrator:
    (i) Initiates a rulemaking to add the chemical to the list, in 
accordance with section (d)(2) of section 313 of Title III, or
    (ii) Publishes an explanation of why the Administrator believes the 
petition does not meet the requirement of subsection (d)(2) of section 
313 of Title III for adding a chemical to the list.
    4. In Sec.  372.27, paragraph (d) is revised to read as follows:

Sec.  372.27,  Alternate threshold and certification.

* * * * *
    (d) Each certification statement under this section for activities 
involving a toxic chemical that occurred during a calendar year at a 
facility must be submitted to EPA and to the State in which the 
facility is located on or before July 1 of the next year. If the 
covered facility is located in Indian country, the facility shall 
submit the certification statement as described above to EPA and to the 
official designated by the Tribal Chairperson or equivalent elected 
official of the relevant Indian Tribe, instead of to the State.
* * * * *
    5. In Sec.  372.30(a), paragraph (a) is revised to read as follows:

Sec.  372.30  Reporting requirements and schedule for reporting.

    (a) For each toxic chemical known by the owner or operator to be 
manufactured (including imported), processed, or otherwise used in 
excess of an applicable threshold quantity in Sec.  372.25, Sec.  
372.27, or Sec.  372.28 at its covered facility described in Sec.  
372.22 for a calendar year, the owner or operator must submit to EPA 
and to the State in which the facility is located a completed EPA Form 
R (EPA Form 9350-1), EPA Form A (EPA Form 9350-2), and, for the dioxin 
and dioxin-like compounds category, EPA Form R Schedule 1 (EPA Form 
9350-3) in accordance with the instructions referred to in subpart E of 
this part. If the covered facility is located in Indian country, the 
facility shall submit (to the extent applicable) a completed EPA Form 
R, Form A, and Form R Schedule 1 as described above to EPA and to the 
official designated by the Tribal Chairperson or equivalent elected 
official of the relevant Indian Tribe, instead of to the State.
* * * * *
[FR Doc. 2011-24821 Filed 9-29-11; 8:45 am]
BILLING CODE 6560-50-P
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