33588 Federal Register / Vol. 61, No. 125 / Thursday, June 27, 1996 / Proposed Rules

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 372

[OPPTS–400104; FRL–5379–3]

RIN 2070–AC71

Addition of Facilities in Certain

Industry Sectors; Toxic Chemical

Release Reporting; Community Rightto-Know

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA is proposing to add

seven industry groups to the list of

industry groups subject to the reporting

requirements under section 313 of the

Emergency Planning and Community

Right-to-Know Act of 1986 (EPCRA) and

section 6607 of the Pollution Prevention

Act of 1990 (PPA). These industry

groups are metal mining, coal mining,

electric utilities, commercial hazardous

waste treatment, chemicals and allied

products-wholesale, petroleum bulk

stations-wholesale, and solvent recovery

services. EPA believes that the addition

of these industry groups to EPCRA

section 313 will significantly add to the

public’s right-to-know about releases

and other waste management activities

of toxic chemicals in their communities.

EPA believes that these industry groups

meet the criteria of EPCRA section

313(b)(1)(B). Reporting for these sectors

will be required for the first full year

following publication of the final rule.

DATES: Written comments on this

proposed rule must be received on or

before August 26, 1996.

ADDRESSES: Written comments should

be submitted in triplicate to: OPPT

Docket Clerk, TSCA Document Receipt

Office (7407), Office of Pollution

Prevention and Toxics, Environmental

Protection Agency, Rm. E-G099, 401 M

St., SW., Washington, DC 20460.

Comments containing information

claimed as confidential must be clearly

marked as confidential business

information (CBI). If CBI is claimed,

three additional sanitized copies must

also be submitted. Nonconfidential

versions of comments on this proposed

rule will be placed in the rulemaking

record and will be available for public

inspection. Comments should include

the docket control number for this

proposal, OPPTS–400104 and the EPA

contact for this proposal. Unit VII. of

this preamble contains additional

information on submitting comments

containing information claimed as CBI.

Comments and data may also be

submitted electronically by sending

electronic mail (e-mail) to:

oppt.ncic@epamail.epa.gov. Electronic

comments must be submitted as an

ASCII file avoiding the use of special

characters and any form of encryption.

Comments and data will also be

accepted on disks in WordPerfect 5.1

file format or ASCII file format. All

comments and data in electronic form

must be identified by the docket number

OPPTS–400104. No CBI should be

submitted through e-mail. Electronic

comments on this proposed rule may be

filed online at many Federal Depository

Libraries. Additional information on

electronic submissions can be found in

Unit VII. of this document.

FOR FURTHER INFORMATION CONTACT: Tim

Crawford at 202-260-1715, e-mail:

crawford.tim@epamail.epa.gov or Brian

Symmes at 202-260-9121, e-mail:

symmes.brian@epamail.epa.gov for

specific information regarding this

proposed rule. For further information

on EPCRA section 313, contact the

Emergency Planning and Community

Right-to-Know Hotline, Environmental

Protection Agency, Mail Stop 5101, 401

M St., SW., Washington, DC 20460, Toll

free: 1-800-535-0202, in Virginia and

Alaska: 703-412-9877 or Toll free TDD:

800-553-7672.

SUPPLEMENTARY INFORMATION:

I. Introduction

A. Regulated Entities

Entities potentially regulated by this

proposed action are those facilities

within the industry groups being

proposed for addition to the list of

Standard Industrial Classification (SIC)

codes which manufacture, process, or

otherwise use chemicals listed at 40

CFR 372.65 and meet the reporting

requirements of section 313 of the

Emergency Planning and Community

Right-to-Know Act of 1986 (EPCRA), 42

U.S.C. 11023 and section 6607 of the

Pollution Prevention Act of 1990 (PPA),

42 U.S.C. 13106. Some of the potentially

regulated categories and entities

include:

Category Examples of regulated entities

Industry; facilities that manufacture, process, or otherwise use certain

chemicals.

Metal mining, Coal mining, Electric utilities, Commercial hazardous

waste treatment, Chemicals and allied products-wholesale, Petroleum bulk stations-wholesale, Solvent recovery services, Manufacturing.

This table is not intended to be

exhaustive, but rather provides a guide

for readers regarding entities likely to be

regulated by this proposed action. This

table lists the types of entities that EPA

is now aware could potentially be

regulated by this proposed action. Other

types of entities not listed in the table

could also be regulated. To determine

whether your facility would be

regulated by this action, you should

carefully examine this proposal and the

applicability criteria in part 372 subpart

B of Title 40 of the Code of Federal

Regulations.

B. Statutory Authority

This proposed rule is issued under

sections 313(b) and 328 of EPCRA, 42

U.S.C. 11023 et seq. EPCRA is also

referred to as Title III of the Superfund

Amendments and Reauthorization Act

of 1986 (SARA) (Pub. L . 99-499).

C. Background

Section 313 of EPCRA requires certain

facilities manufacturing, processing, or

otherwise using listed toxic chemicals

to report their environmental releases of

such chemicals annually. Beginning

with the 1991 reporting year, such

facilities also must report source

reduction and recycling data for such

chemicals, pursuant to section 6607 of

the PPA, 42 U.S.C. 13106. Section

313(b)(1)(A) specifically applied these

reporting requirements to owners and

operators of facilities that have 10 or

more full time employees and that are

in Standard Industrial Classification

(SIC) codes 20 through 39. EPCRA

section 313(b) authorizes EPA to add

facilities and industry groups to the

EPCRA section 313 list. The purpose of

this proposed rule is to expand the

universe of industry groups that are

subject to EPCRA section 313 and PPA

section 6607.
Federal Register / Vol. 61, No. 125 / Thursday, June 27, 1996 / Proposed Rules 33589

II. Preparation for Expansion of Section

313 Industry Groups

A. General Background

In 1986, Congress enacted EPCRA to

ensure that the presence, management,

and routine and emergency releases of

toxic chemicals in the United States

were well understood. It was evident

that there were facilities in the United

States where toxic chemicals were

manufactured, used and stored—but

knowledge of this was undisclosed to

emergency response teams, state and

local governments, and perhaps most

importantly, the citizens who lived and

shared common neighborhoods with

these facilities.

At the core of these new provisions

was the concept of a facility-specific,

chemical-based inventory. This

inventory, termed the Toxics Release

Inventory (TRI), created a national data

base identifying facilities and their

annual accidental and routine releases

of toxic chemicals. Prior to EPCRA, this

information was not readily available to

the federal government, state

governments, emergency preparedness

teams or the general public, and often

did not become available until after

serious accidents occurred or until

major impacts on human health and the

environment were evident. This ‘‘afterthe-fact’’ disclosure of information did

little to help plan or prevent such

serious health and environmental

impacts.

EPCRA section 313 currently requires

certain manufacturing facilities in SIC

codes 20 through 39 to report annually

on their releases, transfers, and other

waste management practices for more

than 600 listed toxic chemicals and

chemical categories (hereafter ‘‘toxic

chemicals’’). Information on the release

(including disposal), transfer, and other

waste management activities of these

chemicals, which is provided to EPA

and States, is then made publicly

available through a variety of means,

including an annual report issued by

EPA.

The data that EPA receives from these

approximately 23,000 facilities have

provided the public, industry, and all

levels of government with critical

information related to toxic chemical

releases and transfers that occur within

their communities and across the

United States. These data have become

an essential component of facility

planning and community preparedness

and response. Further, these data allow

States, communities and the public to

engage in an informed way in

environmental decision making. The

TRI data are a yardstick by which

progress can be measured by industry

and local communities and

governments. These data enable all

interested parties to establish credible

baselines, to set realistic goals for

environmental progress, and to measure

progress in meeting these goals over

time.

Data about releases and other waste

management activities of toxic

chemicals at the community level were

generally nonexistent prior to EPCRA.

While permit data are generally cited as

a public source of environmental data,

they are often difficult to obtain, are not

cross-media and present only a limited

perspective on the facility’s overall

performance. While other sources of

data are often cited as substitutes for

TRI data, EPA is unaware of any other

publicly available, nationwide data base

that provides multi-media, facilityspecific release and waste information

to the public. With EPCRA, and the real

gains in understanding it has produced,

communities now know what a subset

of industrial facilities in their area

release or otherwise manage as waste for

listed toxic chemicals.

EPCRA section 313 facility coverage is

currently limited to facilities in the

manufacturing sector, i.e., in SIC codes

20 through 39. These manufacturing

facilities account for only a small

portion of the toxic chemicals released

or handled as waste in the United

States. Facilities currently covered by

EPCRA section 313 account for only 0.4

percent of the facilities in the United

States (Ref. 14). In 1989, the Office of

Technology Assessment estimated that

the TRI represents 5 percent of toxic

releases to the environment. Adding

non-manufacturing industries to the

EPCRA section 313 list of facilities will

provide basic information to millions of

Americans on releases and other waste

management information on toxic

chemicals from additional industrial

facilities in their communities.

As discussed in detail in Unit III.A. of

this preamble, Congress gave EPA clear

authority to expand TRI, both in terms

of the chemicals reported and the

facilities required to report. The limited

list of chemicals and facilities identified

in the original legislation was meant as

a starting point, or a core program.

Congress recognized that the TRI

program would need to evolve to meet

the needs of a better informed public

and to fill information gaps that would

become apparent over time.

In implementing the expansion of the

TRI program, EPA is pursuing the

course set by Congress. The information

EPA is seeking to provide the public

through this proposal currently is

largely unavailable. While many nonmanufacturing facilities may be subject

to various reporting requirements at the

Federal, State, and local levels, these

reporting systems are not comparable to

TRI. These systems, which were

reviewed as part of the analysis for this

proposal, have been found to be limited

in scope, content, coverage, and

accessibility compared to TRI. Many do

not focus on the collection and

dissemination of information but are

used to support other regulatory

activities, such as the issuance of

permits. While other reporting systems

may serve their statutorily mandated

purposes, none provide accessible data

on releases to all media from such a

large number of facilities. Therefore,

these existing data systems, which may

serve other useful purposes, do not

provide as useful information for

communities on toxic chemicals as TRI

does. Moreover, duplication between

TRI data and data contained in other

systems is minimal, data contained in

those other systems often reflect

permitted releases rather than actual

releases, and these data may represent

wastestream level data rather than the

chemical-specific data that comprises

TRI.

In a critical analysis of the TRI

program, the Congressional General

Accounting Office (GAO) in 1991 noted

that EPA had not used its statutory

authority to expand the types of

facilities required to report under

EPCRA section 313. GAO recognized

that the value of the TRI program could

be enhanced significantly by expanding

the program’s reporting requirements to

cover industries outside the

manufacturing sector, and noted that

industry group expansion is supported

by a variety of stakeholders. More

discussion of the GAO’s report, entitled

Toxic Chemicals: EPA’s Toxic Release

Inventory Is Useful But Can Be

Improved (hereafter GAO Report), can

be found in Unit III.A. of this preamble

(Ref. 2).

EPA has undertaken a number of

actions to expand and enhance TRI.

These actions include expanding the

number of reportable toxic chemicals by

adding 286 toxic chemicals and

chemical categories to the EPCRA

section 313 list in 1994. At the same

time, EPA sought to reduce burden for

facilities with low annual reportable

amounts of toxic chemicals by

establishing an alternate reporting

threshold that allows facilities with 500

pounds or less of reportable releases and

other wastes to file a certification

statement instead of the standard TRI

report, the Form R. Further, a new

category of facilities was added to TRI

on August 3, 1993 through Executive

Order 12856, which requires Federal
33590 Federal Register / Vol. 61, No. 125 / Thursday, June 27, 1996 / Proposed Rules

facilities meeting threshold

requirements to file annual TRI reports,

regardless of SIC code.

EPA first announced its intention to

consider the expansion of TRI to

include additional industry groups at a

public meeting held on May 29, 1992

(57 FR 19126). Today’s proposal to

expand the coverage of TRI to include

additional industry groups has been

undertaken in order to provide new and

valuable information on toxic chemicals

in the U.S. The proposed industry

groups are responsible for substantial

use, release and generation of EPCRA

section 313 chemicals as waste, and are

engaged in activities similar to or

related to activities conducted at

facilities within the manufacturing

sector that currently reports. This action

is proposed in order to more completely

account for releases, transfers, and

waste management in the U.S., and to

provide the public, all levels of

government, and the regulated

community with information that will

improve decision making, measurement

of pollution, and the understanding of

the environmental consequences of

toxic chemical emissions.

On August 8, 1995, the President

issued a directive to EPA for

‘‘continuation on an expedited basis of

the public notice and comment

rulemaking proceedings to consider

whether, as appropriate and consistent

with section 313(b) of EPCRA, 42 U.S.C.

11023(b), to add to the list of Standard

Industrial Classification (‘‘SIC’’) Code

designations of 20 through 39 (as in

effect on July 1, 1985)’’ (60 FR 41791).

The President directed that EPA

‘‘complete the rulemaking process on an

accelerated schedule.’’ EPA is now

proposing a number of carefully

selected industry segments for coverage

under EPCRA section 313. Although

EPA may be ‘‘expediting’’ this activity,

it is doing so only after lengthy

deliberations and consultation with

stakeholders.

EPA recognizes that expansion of TRI

reporting to cover a broader range of

facilities raises some communication

issues that may not be presented by the

original list of manufacturing facilities

in SIC codes 20 through 39. For

example, inclusion of certain waste

management facilities as proposed

could mean that a facility’s primary

business could equate to a reportable

release. As discussed in Unit V.F.6. of

this preamble, this could lead to the

misperception that an uncontrolled

release is taking place, when in reality

the facility is legally and responsibly

managing waste materials. This type of

misperception is not a result intended

or desired by EPA. Similarly, a concern

has been expressed by some that

because waste management activities

may involve transfers from one facility

to another that the same material may

appear more than once in the TRI data

base. EPA believes that, since transfers

and releases are tracked separately, this

should not mislead the public, but seeks

comment on the issue. As this

rulemaking proceeds, EPA will be

evaluating how it presents--including in

its annual data release--and otherwise

communicates the information reported

by these new facilities. When

considering this proposed rule,

commenters are encouraged to address

how best to communicate information

from the new industries in a way that

continues to serve the purposes of TRI

without fostering misperceptions.

B. Outreach

Prior to this proposed rulemaking,

EPA engaged in a significant and

comprehensive outreach effort. This

outreach served to inform interested

parties, including industries under

consideration, state regulatory officials,

environmental organizations, labor

unions, community groups, and the

public of EPA’s intention to propose

adding additional industry groups to the

EPCRA section 313 list. The outreach

effort also allowed EPA to gather

additional information that assisted in

the development of this proposed

rulemaking. EPA has also received

substantial public comment regarding

the Agency’s proposed action, and has

considered these comments in its

deliberations.

EPA recognized the need for

comprehensive and thorough outreach

regarding this proposal. Consequently,

EPA held two public meetings prior to

publication of this proposal. The first

public meeting, announcing EPA’s

intentions, was held on May 29, 1992.

The second was held on May 25, 1995.

These meetings were announced in the

Federal Register (57 FR 19126, May 4,

1992 and 60 FR 21190, May 1, 1995).

The public meetings allowed interested

parties, including representatives of the

industries included in this proposal, to

voice opinions and concerns regarding

the facility expansion undertaking. EPA

used these meetings as an opportunity

to inform interested parties about the

possibility of this proposed action and

to make available information regarding

its analysis for comment. Issues papers,

summaries, statements submitted and

additional public comments from these

meetings, are included in the public

docket supporting this rulemaking.

In addition, over the course of the

past 5 years, EPA has used the regularlyheld public meetings of the Forum on

State and Tribal Toxicities Action

(FOSTTA), which represents state

environmental agencies, and the

National Advisory Council on

Environmental Policy and Technology

(NACEPT), which includes

representatives from industry,

environmental organizations, states, and

academia, to discuss the expansion of

the EPCRA section 313 industry group

list. These groups have provided EPA

with substantive input prior to this

proposal for structuring its screening

and analytical activities conducted in

support of this proposal. EPA has

recently held discussions with other

state regulatory officials, in particular

with the Interstate Mining Compact

Commission (IMCC). These discussions

have allowed EPA to understand more

clearly state regulatory concerns

regarding the addition of certain

industry groups. With the publication of

this proposal, EPA will be continuing

the dialogue initiated in these meetings.

EPA also recognized that public

meetings were not the sole means to

engage in the substantive discussion of

issues specific to the proposed

industries. Therefore, EPA initiated a

series of formal and informal meetings

with industry representatives as well as

with representatives of environmental,

community and labor organizations.

Although meetings with such groups

have been held since 1992, EPA

substantially increased this element of

its outreach effort since 1994, and

continued to do so until the publication

of this proposal. The more formal of

these meetings, referred to as ‘‘focus

group meetings,’’ involved

representatives of various trade

associations and companies from the

various industry groups under

consideration. These meetings primarily

involved discussions with EPA officials

regarding the expansion of EPCRA

section 313 reporting requirements as

well as issues specific to the industries

under consideration. A ‘‘focus group

meeting’’ was also held with

environmental, labor and community

organizations. EPA also used these

meetings as an opportunity to share data

and additional information collected as

part of its expansion effort, and to solicit

comment regarding the analytic

approach used in the screening process

(A description of the screening process

is provided in Unit II.C. and II.D of this

preamble). Summaries of these meetings

and lists of participants are available in

the public docket supporting this

rulemaking.

EPA officials have also held meetings

with industry representatives and others

on a regular basis to discuss issues

involved in this proposed rulemaking.
Federal Register / Vol. 61, No. 125 / Thursday, June 27, 1996 / Proposed Rules 33591

EPA has used these meetings as a means

to keep interested parties closely

informed of progress in developing this

proposed action, and to gather

information to assist the Agency in its

activities. These meetings are

documented in the public docket

supporting this rulemaking.

EPA and other government officials

have routinely discussed this proposed

action in public speaking engagements

before a variety of groups and

organizations. Most notably, the

President addressed community groups

in Baltimore, Maryland on August 8,

1995, regarding the Administration’s

commitment to community right-toknow, including his directive to the

Administrator of EPA and Heads of

Executive Departments and Agencies to

continue the expansion of the EPCRA

section 313 industry group list. The

President’s statements concerning the

expansion of the TRI program were

widely reported and increased public

awareness of EPA’s efforts. Considerable

media coverage, including detailed

trade press stories, has provided many

more individuals, businesses, and

organizations with information

regarding this proposed action.

Unfunded mandates that may be

imposed on other government entities

are of particular concern to the Agency,

especially since issuance of Executive

Order 12875 (‘‘Enhancing the

Intergovernmental Partnership’’) and the

Unfunded Mandates Reform Act of 1995

(compliance with this Act is discussed

in Unit XI.D. of this preamble). EPA has

held discussions with a wide range of

state and local officials regarding this

proposal, particularly through FOSTTA

as described above, and with

representatives of publicly-owned and

operated facilities. EPA will continue a

constructive dialogue to ensure that

unfunded mandates issues are fully

understood, analyzed, and addressed.

EPA recognizes that particular

concerns have been raised regarding the

expansion of the EPCRA section 313

industry group list in so far as the

reporting requirements may affect small

businesses. Many trade associations and

other industry organizations with which

EPA has held discussions include small

businesses as members or participants.

These groups have represented the

interests of some small businesses to

EPA, and have helped to inform

businesses about EPA’s intentions. In

addition, EPA has addressed forums

such as the Small Business Roundtable

regarding this proposed action, and has

briefed officials of the Small Business

Administration as well as EPA’s Small

Business Omsbudsman and Regional

Small Business Liaisons on this matter.

Activities specific to small businesses

are documented in the public docket

supporting this rulemaking.

A variety of materials have been made

available to interested parties and the

public regarding this proposed action.

Widely distributed Agency publications

have provided updates regarding the

expansion of the TRI program. More

specific materials, including analytical

products developed as part of this effort,

have been provided to industry groups

and further disseminated at events such

as annual meetings. EPA is also aware

of and appreciates the many industry

efforts to disseminate this information

to members. Documentation of these

publications and materials, to the extent

available, is included in the public

docket supporting this rulemaking.

EPA intends to continue its outreach

efforts in regards to this proposed

action. The Agency has found outreach

to be beneficial to all parties and

essential to sound public policy

decisions. The Agency will be providing

additional forums for public comment

by holding two public meetings during

the public comment period for this

proposal.

C. Development of Industry Group

Candidates

Prior to this proposed rulemaking,

EPA conducted a screening process

designed to identify the best candidate

industry groups in order to focus on

those industries potentially most

relevant to further the purposes of

EPCRA section 313. The purpose of the

screening process was to focus the

Agency’s limited resources on those

industries for which reporting would be

most beneficial to community right-toknow. Provided below is a brief

overview of the screening activities

conducted by EPA prior to this

rulemaking. For a more detailed

discussion of the screening activities,

refer to Development of SIC Code

Candidates: Screening Document,

available in the public docket for this

rulemaking (Ref. 19).

EPA began the screening process by

analyzing chemical waste information

routinely reported by industries and

collected in several existing EPA data

systems. While the information reported

in these data systems have some

inconsistencies with the type of

information collected on TRI, the data

systems selected provided a reasonable

method of comparing industries by

chemicals and estimated volumes for

industries regulated under each program

(Ref. 5).

The initial screening activity ranked

industries by the volume of EPCRA

section 313 chemicals found in each

reporting system. Those 2-digit SIC

codes that made up 99 percent of the

matched EPCRA section 313 chemical

release estimates for non-manufacturing

facilities were selected from each

reporting system. This list of 25 2-digit

SIC codes was referred to as the ‘‘Tier

I’’ list, and included the following Major

Groups: Metal Mining; Coal Mining; Oil

and Gas Exploration and Production;

Non-metal Mining; Heavy Construction;

Railroad Transportation; Motor Freight

Transportation and Warehousing;

Transportation by Air; Pipelines, Except

Natural Gas; Transportation Services;

Electric, Gas, and Sanitary Services;

Wholesale Trade Durable Goods;

Wholesale Trade Nondurable Goods;

Automotive Dealers and Gasoline

Service Stations; Business Services;

Automotive Repair, Service, and

Parking; Miscellaneous Repair and

Service; Health Services; Educational

Services; Engineering, Research,

Management, and Related Services;

Services not elsewhere classified;

Administration of Environmental

Quality and Housing Programs;

Administration of Economic Services;

National Security and International

Affairs; and Nonclassifiable

Establishments.

The Tier I list represents an extremely

large number of diverse individual

industries. EPA began compiling

information useful in explaining what

the industries in these Major Groups are

and what activities they conduct with

emphasis on those activities that may

involve section 313 chemicals. This

information was organized into

documents for each 2-digit SIC code and

are referred to as ‘‘industry profiles’’

(Refs. 6, 7, 8, 9, and 10).

The next step in the screening process

involved a comparison between

industry groups currently reporting

under section 313 (manufacturing

industries) and those under

consideration, in terms of the types of

activities they perform and the services

they provide to the manufacturing

sector. One of the primary objectives of

expanding TRI coverage to additional

industry groups is to fill in gaps

associated with chemical management

activities currently reported under

EPCRA section 313. EPA determined

that those industries that either supply

or otherwise manage chemicals and

related materials both to and from the

point of manufacturing would further

this objective. EPA categorized all 25

major industry groups in terms of their

relation to manufacturing. This step in

the screening process resulted in the

following list of candidates: metal

mining; coal mining; oil and gas

exploration and production; non-metal
33592 Federal Register / Vol. 61, No. 125 / Thursday, June 27, 1996 / Proposed Rules

mining; motor freight transportation and

warehousing; transportation by air;

pipelines, except natural gas; electric,

gas, and sanitary services; wholesale

durable and non-durable goods; and

business services.

Once this candidate list was

developed, EPA engaged in further

discussions with representatives of

many of the industries on the list, as

well as environmental and labor

organizations, state environmental and

regulatory representatives, and groups

established to provide feedback on TRI

initiatives. These discussions provided

an opportunity to educate various

industry groups about the TRI program,

to obtain feedback on the information

developed to characterize their industry,

and to listen to concerns. A more

detailed discussion of the outreach

activities conducted as part of this

rulemaking can be found in Unit II.B. of

this preamble.

A greater level of specificity in the

analysis was required to better identify

which industry groups and activities

were of greater importance in terms of

their potential value to section 313

reporting. To refine the analysis, EPA

developed data reported in the reporting

data systems to the more specific 4-digit

SIC code level. These data were

incorporated into a ranking model that

allowed the management of large

volumes of information. For a more

detailed discussion of the ranking

model, see Development of SIC Code

Candidates: Screening Document (Ref.

19).

The last stage in the screening process

involved an overlay of regulatory

definitions and developments, existing

program guidance, and any exemptions

pertinent to activities identified for the

primary candidates. This stage of the

analysis allowed EPA to evaluate the

degree to which reporting would be

expected to occur under EPCRA section

313 for these candidate industry groups.

EPA used information developed for

this analysis, along with input from

specific industries in making further

reductions in the list of candidate

industry groups (Ref. 19).

As a result of this screening process,

EPA eliminated SIC code 16, heavy

construction; SIC code 40, railroad

transportation; SIC code 42, motor

freight, transportation, and

warehousing; SIC code 45, air

transportation SIC code 46, pipelines,

except natural gas; SIC code 47,

transportation services; SIC code 55,

automotive dealers and gasoline service

stations; SIC code 75, automotive repair,

service, and parking; SIC code 80,

health services; SIC code 82,

educational services; and SIC code 87

engineering, research, management, and

related services; SIC code 89,

miscellaneous services; SIC code 95,

administration of environmental quality

and housing programs; SIC code 96,

administration of economic services;

SIC code 97, national security and

international affairs; and SIC code 99,

nonclassifiable establishments.

D. Additional Considerations in

Selecting Additional Industry Group

Candidates

In addition to the activities conducted

as part of the screening process

described above, EPA also excluded

certain industry groups from

consideration in this proposed action

for a number of other reasons. Provided

below is a brief discussion of those

additional industry groups that were

excluded after the application of the

screening process.

1. Impacts on intergovernmental

entities. EPA considered potential

impacts on other governmental entities

resulting from addition of certain

industry groups. As a result of issues

raised by this consideration, several

industry groups were excluded from

consideration for addition under EPCRA

section 313 at this time, including

Municipal Solid Waste Landfills

(MSWLFs), Publicly-Owned-Treatment

Works (POTWs), and water supply

systems. Each of these industry groups

are part of the Major Group SIC code 49,

Electric Gas and Sanitary Services.

Water systems are classified within SIC

code 4941, POTWs are classified within

SIC code 4952, and MSWLFs are

classified within 4953. These facilities

are primarily operated by local

municipalities and regional

governmental entities. Although each

industry group may manage significant

quantities of EPCRA section 313 listed

toxic chemicals, the manner in which

they manage these chemicals raises

several cross-governmental issues EPA

is continuing to address. As a result,

EPA is not considering these industry

groups at this time.

2. Economic considerations. EPA’s

economic analysis identified several

industry groups that may be adversely

affected at a substantially

disproportionately high rate, if coverage

under EPCRA section 313 was extended

to include them. Petroleum and

petroleum products wholesalers

classified as SIC code 5172, farm

supplies classified as SIC code 5191,

and paints, varnishes, and supplies

classified in SIC code 5198 may have a

disproportionately large economic

impact if EPCRA section 313 reporting

requirements were extended to their

industry (Ref. 20). Further, based on a

preliminary review, the projected value

of reporting for these industry groups is

questionable. EPA continues to refine

this information and explore

alternatives for these industry groups.

3. Non-listed primary chemical

association. Two industries, non-metal

mining classified in SIC code 14 and

wholesale durable goods classified in

SIC code 50, were excluded from further

consideration for this action based on

the belief that the majority of activities

conducted by facilities operating in

these industry groups are believed to

involve materials that are not EPCRA

section 313 listed chemicals.

4. Standard facility unit. One industry

group, oil and gas extraction classified

in SIC code 13, is believed to conduct

significant management activities that

involve EPCRA section 313 chemicals.

EPA is deferring action to add this

industry group at this time because of

questions regarding how particular

facilities should be identified. This

industry group is unique in that it may

have related activities located over

significantly large geographic areas.

While together these activities may

involve the management of significant

quantities of EPCRA section 313

chemicals in addition to requiring

significant employee involvement, taken

at the smallest unit (individual well),

neither the employee nor the chemical

thresholds are likely to be met. EPA will

be addressing these issues in the future.

EPA may reconsider at a later date

some or all of the industry groups which

were excluded as a result of the

considerations mentioned above. For

more detail regarding EPA’s exclusion

of these industry groups, refer to

Additional Considerations in Selecting

Industries for Addition to EPCRA

Section 313 (Ref. 17).

For the industry groups outside of SIC

codes 20 through 39 which are not part

of today’s proposal, EPA requests

comment on adding any of these

industry groups through a future

rulemaking. Commenters should take

into account the current limitations of

EPCRA section 313 reporting

requirements, i.e, exemptions and

thresholds, in addressing whether these

industries should be required to report

under EPCRA section 313.

III. EPCRA Section 313 Statutory

Criteria

A. Statutory Construction

Recognizing that the American public

has a right-to-know what is happening

in the environment near their homes,

schools, and business, Congress

provided EPA with explicit statutory

authority to expand the categories of
Federal Register / Vol. 61, No. 125 / Thursday, June 27, 1996 / Proposed Rules 33593

facilities required to report under

EPCRA section 313. Section 313(b)(1)(A)

applies section 313 to facilities that are

in SIC codes 20 through 39. Section

313(b)(1)(B) states:

The Administrator may add or delete

Standard Industrial Classification Codes for

purposes of subparagraph (A), but only to the

extent necessary to provide that each

Standard Industrial Classification Code to

which this section applies is relevant to the

purposes of this section.

EPA believes that this provision grants

the Agency broad discretion to add

industry groups to the industries subject

to the reporting requirements under

EPCRA section 313. The Conference

Report restates EPA’s authority to add

industry groups and provides additional

guidance:

[EPA’s] authority is limited, however, to

adding SIC codes for facilities which, like

facilities within the manufacturing sector SIC

codes 20 through 39, manufacture, process or

use toxic chemicals in a manner such that

reporting by these facilities is relevant to the

purposes of this section (emphasis added)

(Ref. 13).

Thus, the statute directs EPA, when

adding industry groups, to consider and

be guided by the ‘‘purposes’’ of EPCRA

section 313. While EPCRA section 313

does not explicitly identify the purposes

of the section, the Conference Report

makes clear that subsection (h) of

section 313

Describes the intended uses of the toxic

chemical release forms required to be

submitted by this section and expresses the

purposes of this section. The information

collected under this section is intended to

inform the general public and the

communities surrounding covered facilities

about releases of toxic chemicals, to assist in

research, to aid in the development of

regulations, guidelines, and standards, and

for other similar purposes. (Conference

Report at 299, Ref. 13)

Statements by Congress are consistent

with this stated language. For example,

Congressman Edgar, a principal

architect of EPCRA, stated during debate

on the Conference Report:

Congress recognizes a compelling need for

more information about the Nation’s

exposure to toxic chemicals. Until now, the

success of regulatory programs such as the

Clean Air Act, the Resource Conservation

and Recovery Act, and the Clean Water Act

has been impossible to measure because no

broad-based national information has been

compiled to indicate increases or decreases

in the amounts of toxic pollutants entering

our environment. As a result, the reporting

provisions in this legislation should be

construed expansively to require the

collection of the most information permitted

under the statutory language. Any discretion

to limit the amount of information reported

should be exercised only for compelling

reasons. A second major principle of this

program is to make information regarding

toxic chemical exposure available to the

public, particularly the local communities

most affected. For too long, the public has

been left in the dark about its exposure to

toxic chemicals. Information that has been

available under existing environmental

statutes such as the Clean Water Act or the

Clean Air Act, has been difficult to aggregate

and interpret, which has made it difficult, if

not impossible, for the public to gain an

overall understanding of their toxic chemical

exposure.

Consequently, the reporting requirements

should be construed to allow the public the

broadest possible access to toxic chemical

information in formats that are

straightforward and easy to understand. (H.

Rep. 99-975, 99th Cong., 2nd Sess., p. 5313

(Oct. 7, 1986)).

Section 313(b) specifies the facilities

covered by the toxic chemical release

reporting requirement, but also provides the

Administrator with the discretion to include

additional facilities [either] by specifying

additional SIC codes covered by this

section—section 313(b)(1)(B) [....] Congress

designated facilities in SIC codes 20-39 only

as a starting point for this reporting

requirement. The principal consideration is

whether the addition would meet the

objectives of this section to provide the

public with a complete profile of toxic

chemical releases. The fact that Congress

applied the reporting requirement to those in

the manufacturing sector should not be

considered a limiting criteria in the

Administrator’s determination. (H. Rep. 99-

975, 99th Cong., 2nd Sess., p. 5315 (Oct. 7,

1986)).

Other supporters of EPCRA’s

community right-to-know provisions

echoed Congressman Edgar’s view that

broad dissemination of information

concerning the presence of toxic

chemicals in the community is a

primary purpose of EPCRA section 313.

See, for example, Senator Stafford’s

statements during debate on the

Conference Report:

But the bill goes beyond concern about

accidental releases of these toxic and

hazardous chemicals. It also recognizes that

the public has a right to be informed about

routine releases of these chemicals to the air,

and the water and the land (H. Rep. 99-975,

99th Cong., 2nd Sess., p. 5185 (Oct. 7, 1986)).

In implementing this section, the

Administrator should keep in mind that its

primary purpose is to inform the public

about routine releases of toxic chemicals. The

computer database [established by EPA] must

be managed in such a way as to maximize its

accessibility and utility to the public (H. Rep.

99 975, 99th Cong., 2nd Sess., p. 5186 (Oct.

7, 1986)).

EPA’s reading of the Agency’s broad

statutory authority to add industry

groups to the industries required to

report under EPCRA section 313 is

echoed in the GAO Report. This report,

which represents a critical analysis of

the TRI program and provides

recommendation on the direction of the

program in keeping with Congressional

intent, states that ‘‘EPCRA authorizes

EPA to revise the chemical list and to

require nonmanufacturers to report their

emissions’’ (Ref. 2). This report further

notes that many relevant industries

currently are not required to report

under EPCRA section 313:

Many industries outside the manufacturing

sector that use substantial quantities of toxic

chemicals annually are not currently

required to report their emissions . . .

Because of these reporting exemptions, many

persons whom we contacted during our

review believed that the inventory’s reporting

requirements should be revised. We found

strong support among government officials,

states, reporting facilities, and environmental

and public interest groups for expanding the

programs reporting requirements to cover

industries outside the manufacturing sector.

Moreover, we found that 28 states and about

half of all reporting facilities favored, for

example, requiring reporting by hazardous

waste treatment, storage, and disposal

facilities (Ref. 2).

Because of this, GAO recommended

that EPA expand the number of

industries that report under EPCRA

section 313:

We believe that to maximize the

inventory’s usefulness to policymakers and

the public, the inventory data must be as

comprehensive as possible, with the data

from additional emissions sources and on

additional toxic chemicals. The concerns

EPA expressed should be carefully

considered. However, these concerns should

not override efforts to make the inventory

more comprehensive--especially since

policymakers and the public need the data to

establish environmental priorities and to

better measure progress in reducing pollution

(Ref. 2).

Based on the Agency’s reading of the

statute, pertinent legislative history, and

the GAO Report, EPA recognizes several

purposes of the EPCRA section 313

program, as envisioned by Congress,

including: (1) Providing a complete

profile of toxic chemical releases and

management; (2) compiling a broadbased national data base for determining

the success of environmental

regulations; and (3) ensuring that the

public has easy access to these data on

releases of toxic chemicals to the

environment. EPA has considered these

purposes when exercising its broad

discretion to add particular industries to

the EPCRA section 313 reporting

program.

B. Interpretation of Statutory Criteria

As discussed in Unit III.A. of this

preamble, the Conference Report on

EPCRA section 313 provides guidance

on EPA’s authority to add industry
33594 Federal Register / Vol. 61, No. 125 / Thursday, June 27, 1996 / Proposed Rules

groups to those industry groups that,

‘‘like facilities within the manufacturing

sector SIC codes 20 through 39,

manufacture, process or use toxic

chemicals in a manner such that

reporting by these facilities is relevant

to the purposes this section’’

(Conference Report, p. 5108). For

purposes of this rulemaking, which is

EPA’s first use of section 313(b)(1)(B),

EPA has identified three primary factors

that the Agency considers as reasonable

decision criteria for adding facilities in

industry groups under EPCRA section

313(b)(1)(B). The three primary factors

identified by EPA are the following: (1)

Whether one or more toxic chemicals

are reasonably anticipated to be present

at facilities within the candidate

industry group (‘‘chemical’’ factor), (2)

whether facilities within the candidate

industry group manufacture, process, or

otherwise use these toxic chemicals

(‘‘activity’’ factor), and (3) whether

facilities within the candidate industry

group could reasonably be anticipated

to increase the information made

available pursuant to EPCRA section

313, or otherwise further the purposes

of EPCRA section 313 (‘‘information’’

factor).

EPA believes that each of these three

primary factors is important in adding

industry groups (referenced by SIC

code) to EPCRA section 313(b)(1)

because each will help ensure that

adding the industry groups will further

the purposes of EPCRA section 313.

Namely, each of these primary factors

ensures that EPA will be able to provide

the public with easy access to more

complete information concerning toxic

chemical releases and other waste

management data. This more complete

picture also will allow EPA, other

Federal, state, and local governments,

regulated entities, and the public to

measure the success of regulatory and

voluntary environmental initiatives.

Therefore, EPA believes that these

decision criteria are relevant to the

purposes of the statute and are

appropriate to use in making listing

determinations pursuant to EPCRA

section 313(b)(1)(B).

A general discussion of each primary

factor is included below, and a more

detailed discussion of how each primary

factor was applied to each industry

group proposed for listing can be found

in Unit V. of this preamble. EPA is

requesting comment on the use of these

decision factors for the EPCRA section

313 program.

1. Whether one or more listed toxic

chemicals are reasonably anticipated to

be present at facilities within the

candidate industry group (‘‘Chemical’’

Factor). In addressing whether the

chemical factor is met, EPA will

consider evidence indicating that

facilities within an industry group are

reasonably anticipated to have

involvement with one or more EPCRA

section 313 listed toxic chemicals as

part of its routine operations.

Association with section 313 listed toxic

chemicals suggests that facilities within

industry groups should be covered

under EPCRA section 313, given the

purpose of EPCRA section 313 is to

provide information to the public about

toxic chemicals in their communities.

2. Whether facilities within the

candidate industry group manufacture,

process, or otherwise use EPCRA section

313 listed toxic chemicals (‘‘Activity’’

Factor). In addressing the ‘‘activity’’

factor, EPA will consider evidence

indicating that facilities within the

candidate industry group manufacture,

process, or otherwise use one or more

EPCRA section 313 listed toxic

chemicals. This ‘‘activity’’ factor relates

directly to the manner in which EPCRA

section 313 listed chemicals are

managed. To make this determination,

EPA will use the EPCRA section 313

statutory definitions of manufacturing

and processing. In addition, for

purposes of determining whether

facilities within a candidate SIC code

otherwise use a toxic chemical, EPA

will consult its regulatory definition and

guidance for ‘‘otherwise use.’’ For this

rulemaking, EPA examined whether its

current guidance on ‘‘otherwise use,’’

which was developed for the

manufacturing sector in SIC codes 20

through 39, is appropriate for facilities

in industry groups outside SIC codes 20

through 39. Based on this review and

other considerations, the Agency is

planning to modify its interpretation of

‘‘otherwise use’’ to include disposal,

stabilization, and treatment for

destruction. See Unit IV. of this

preamble for a more detailed discussion

of ‘‘otherwise use.’’

3. Whether facilities within the

candidate industry group could

reasonably be anticipated to increase

the information made available

pursuant to EPCRA section 313, or

otherwise further the purposes of

EPCRA section 313 (‘‘Information’’

Factor). In addressing the ‘‘information’’

factor, EPA will consider any

information that bears on whether

reporting by facilities within the

candidate industry group could

reasonably be anticipated to increase the

information made available pursuant to

EPCRA section 313, or otherwise further

the purposes of EPCRA section 313. The

information considered for any specific

industry group will necessarily vary

from industry group to industry group

based on the nature of the industry

group and what relevant information is

available. Under this factor, EPA may

consider information relating to, but not

limited to, one or more of the following

topics: (1) Whether the addition of the

candidate industry group will lead to

reporting by facilities within that

candidate industry group (e.g., whether

facilities within the candidate industry

group will conduct activities which

exceed the reporting thresholds in

section 313(f)); (2) whether facilities

within the candidate industry group are

likely to be subject to an existing

statutory or regulatory exemption from

the requirement to file a Form R; (3)

whether submitted Form R reports from

that industry group could be expected to

contain release and waste management

data; or (4) whether a significant portion

of the facilities in the industry group

would be expected to file a Toxic

Chemical Release Inventory

Certification Statement (see 59 FR

61488, November 30, 1994).

EPA believes that the above three

primary factors may be addressed by

evaluating data collected by EPA or

other government agencies (e.g.,

National Institute of Occupational

Safety and Health (NIOSH) and

Occupational Safety and Health

Administration (OSHA)), as well as

information provided by facilities

through case studies, surveys, or site

visits; facility records or operation

plans; information on materials in

commerce; or common practices as

found in the literature, such as trade

journals and industry reports; or other

available sources. Some of the pertinent

EPA data systems include the

Aerometric Information Retrieval

System (AIRS, collected under the Clean

Air Act), the Permit Compliance System

(PCS, collected under the Clean Water

Act), and the Biennial Report System

(BRS, collected under the Resource

Conservation and Recovery Act). While

EPA cannot use these data to estimate

likely TRI releases and other waste

management volumes, EPA can and has

used information from these and other

sources, such as those listed above, to

assist in identifying appropriate

candidates. In the absence of any such

data, EPA will rely on other relevant

sources of data.

For example, during EPA’s evaluation

of the electric services industry group

(SIC code 4911), 40 million pounds of

releases or waste volumes were

identified in BRS, 31 million pounds in

AFS, and 15 million pounds in PCS.

EPA does not believe that this

information can be used to predict TRI

data or that it is an adequate substitute

for TRI data; however, EPA did use this
Federal Register / Vol. 61, No. 125 / Thursday, June 27, 1996 / Proposed Rules 33595

information to identify the electric

services industry group as a candidate

for inclusion in this proposed rule. See

Appendix B: Routinely Reported

Information - Chemical Detail (Ref. 8),

for similar information on other

candidate industry groups.

EPA recognizes that different industry

groups may be regulated under different

statutory and regulatory regimes. An

industry may have very limited

regulatory requirements that require

their reporting of chemical uses and

management practices, for example,

and, therefore, this industry would not

be represented in some data sources.

This often leads to different amounts

and types of information being available

to the Agency from these sources. Thus,

EPA recognizes that in some cases the

available data from these sources may

not reflect an industry’s actual

involvement with section 313

chemicals. For those industry groups for

which such information is limited, EPA

believes that it is appropriate to rely

more heavily on sources of data other

than regulatory sources. EPA requests

comment on other sources of

appropriate information.

IV. Clarification of Threshold Activities

A. Statutory Background

Only facilities that exceed certain

chemical activity thresholds (and that

meet the SIC code and employee

threshold criteria) are required to report

under EPCRA section 313. These

thresholds are detailed in section

313(f)(1) of EPCRA:

The threshold amounts for purposes of

reporting toxic chemicals under this section

are as follows:

(A) With respect to a toxic chemical used

at a facility, 10,000 pounds of the toxic

chemical per year.

(B) With respect to a toxic chemical

manufactured or processed at a facility--

* * *

(iii) For the form required to be submitted

on or before July 1, 1990, and for each form

thereafter, 25,000 pounds of the toxic

chemical per year. EPCRA 313(f)(1),

(emphases added).

In addition to the reporting thresholds

specifically listed in EPCRA section

313(f)(1), EPA has established an

alternate threshold for facilities with

low reportable releases and wastes

under section 313(f)(2).

EPCRA section 313 defines

‘‘manufacture’’ and ‘‘process’’; however,

the statute does not specifically define

‘‘use’’ or ‘‘otherwise use.’’ The only

limitation Congress placed on what

activities could be considered ‘‘use’’ are

those chemical activities that are

exempt from EPCRA section 313

reporting as provided in EPCRA section

327. These exempted activities relate to

the ‘‘transportation, including the

storage incident to such transportation,

of any substance or chemical subject to

the requirements including the

transportation and distribution of

natural gas.’’

Because the statutory language does

not include a specific definition of

‘‘use,’’ EPA has looked to other sources

for guidance in formulating the

Agency’s interpretation of the term. The

dictionary definitions of ‘‘use’’ are so

encompassing that they can be argued to

cover nearly any activity impacting a

toxic chemical. For example, the

Random House College Dictionary,

Revised Edition (1982) includes a broad

range of definitions of the term,

including ‘‘to employ for some

purpose,’’ ‘‘to expend or consume in

use,’’ and ‘‘to consume entirely.’’ Given

the breadth in these definitions, EPA’s

interpretation of what might be

‘‘otherwise use’’ activities could capture

a significant range of activities

impacting a toxic chemical subject to

the relevant purposes of EPCRA section

313. Thus to determine the appropriate

scope of this definition, EPA has

considered Congress’ stated purposes

for enacting EPCRA section 313 as

found in the statutory language and the

legislative history.

As discussed in Unit II.A. of this

preamble, Congress wanted the

reporting requirements of EPCRA

section 313 to be applied broadly, and

to provide the greatest amount of

information to the public and federal,

state, and local governments. In

furtherance of this goal, Congress

recognized that EPA may need to add

chemicals and industry groups to the

chemicals and industry groups

originally listed in EPCRA section 313

to provide more complete chemical and

facility profiles important to the local

public and for local decision making.

Moreover, Congress found information

on chemical management activities

relevant to the needs of local

communities in requiring that reporting

include, for example, information on

waste streams and how they are

handled. See, e.g., 42 U.S.C. 11023(g).

Given the primary goal of providing

information to the public on listed toxic

chemicals present, released, and

managed in communities, EPA does not

believe that it is reasonable to conclude

that Congress would intend any

provision of EPCRA section 313 to be

interpreted to significantly limit the

information available to the public.

Because interpreting the definition of

‘‘use’’ narrowly can have the

unintended impact of limiting the

amount and kind of information readily

available to local communities, EPA

believes that the term ‘‘otherwise use’’

should be interpreted broadly.

Consistent with this belief, EPA

promulgated the broad definition of

‘‘otherwise use or use’’ in 40 CFR 372.3.

B. Regulatory Background

In 1988, to address the lack of a

statutory definition, EPA promulgated a

definition of ‘‘otherwise use’’ in the

regulations implementing EPCRA

section 313:

Otherwise use or use means any use of a

toxic chemical that is not covered by the

terms manufacture or process and includes

use of a toxic chemical contained in a

mixture or trade name product. Relabeling or

redistributing a container of a toxic chemical

where no repackaging of the toxic chemical

occurs does not constitute use or processing

of the toxic chemical (53 FR 4525, February

16, 1988).

However, in the preamble to the final

rule, EPA distinguished its

interpretation of ‘‘otherwise use’’ from

‘‘processing’’ by stating that ‘‘otherwise

use’’ involves a non-incorporative

activity.

EPA is interpreting otherwise using a

[listed] toxic chemical to be activities that

support, promote, or contribute to the

facility’s activities, where the chemical does

not intentionally become part of a product

distributed in commerce. (53 FR 4506.)

EPA also recognized that it was

appropriate to place some limitations on

those quantities of toxic chemicals that

should be included in a facility’s

threshold calculations. These

exemptions were based on review of

comments and questions received on

the proposed rule and in workshops

held prior to the publication of the final

rule. The following uses of chemicals

are currently exempt from section 313

threshold determinations and from the

EPCRA section 313 reporting

requirements. (40 CFR 372.38; 53 FR

4528, February 16, 1988).

(1) Use as a structural component of

the facility. This type of use refers to

materials containing listed section 313

chemicals that may be present at a

facility but that are not involved in the

processes conducted by the facility for

purposes of their chemical properties.

An example of this type of case is use

of copper in copper pipes. EPA believes

this type of activity is an ancillary use

of copper which would not add to the

purposes served by providing

information to the public.

(2) Use of products for routine

janitorial or facility grounds

maintenance. Examples include uses of

janitorial cleaning supplies, fertilizers,

and pesticides similar in type or

concentration to consumer products.
33596 Federal Register / Vol. 61, No. 125 / Thursday, June 27, 1996 / Proposed Rules

EPA believes that these types of

chemical uses are incidental to the

function of the facility. While grounds

maintenance may be seen as a

contributing activity to the facility

overall, it is not a necessary action that

promotes the function or purpose of the

facility.

(3) Personal uses by employees or

other persons at the facility of foods,

drugs, cosmetics, or other personal

items containing toxic chemicals,

including supplies of such products

within the facility such as in a facilityoperated cafeteria, store, or infirmary.

(4) Use of products containing toxic

chemicals for the purpose of

maintaining motor vehicles operated by

the facility. For similar reasons

provided for the janitorial and facility

grounds maintenance exemption, the

use of materials containing listed

section 313 chemicals for the purpose of

maintaining motor vehicles is believed

by EPA to be an incidental chemical use

relative to the overall function of

facilities currently covered under

section 313.

(5) Use of toxic chemicals present in

process water as drawn from the

environment or from municipal sources

or toxic chemicals present in air used

either as compressed air or as part of

combustion. While air and water may be

necessary ingredients in particular

manufacturing or processing activities,

EPA determined that the generally small

quantities of listed section 313

chemicals that each may contain would

not be reportable. EPA established this

exemption both to reduce the burden on

the reporting industry and to have

industry focus on those quantities of

toxic chemicals over which they

exercise some control.

(6) Uses of articles. The inclusion of

the article exemption was for the

expressed purpose of exempting articles

that contain listed toxic chemicals from

threshold and reporting determinations.

EPA determined that it is appropriate to

exempt chemicals that are contained in

articles as defined by a modification of

the definition in the OSHA Hazard

Communication Standard (HCS). The

HCS places a condition on the use of

things classified as articles such that

when they are used they do not result

in any section 313 listed chemical

releases. EPA has further modified the

OSHA HCS definition such that any use

or processing of the articles that results

in releases makes the activity ineligible

for the exemption.

(7) Use of toxic chemicals in certain

laboratory activities. This exemption

allows the exclusion of amounts of

chemicals from threshold calculations

that are manufactured, processed or

otherwise used in laboratory activities

conducted under the supervision of a

technically qualified individual. This

exemption was provided in part to be

consistent with other sections of

EPCRA, specifically sections 311 and

312, as well as the OSHA HCS. EPA

limited this exemption to non-specialty

chemical production laboratories and

non-pilot plant scale operations. EPA

expressed some concerns over the

releases of chemicals from exempted

laboratory activities in the final rule and

stated that the Agency would review

these types of facilities for potential

future coverage.

At this time, EPA is not proposing a

change to any of the exemptions listed

above. EPA may, however, reconsider

the application of these exemptions in

the future. (For additional information

on these exemptions contact the EPCRA

Hotline at the telephone number or

address listed in the FOR FURTHER

INFORMATION CONTACT unit of this

document.)

The exemptions promulgated by EPA

to date are intended to exclude from

threshold and reporting calculations

those activities that are not principal to

the primary function of the facility. The

exemptions were provided to allow

facilities to focus on those chemical

management activities that support,

promote, or significantly contribute to

the primary purpose of the facility. EPA

believes that these activities are ones

over which the facility has primary

control.

C. Current ‘‘Otherwise Use’’ Interpretive

Guidance

EPCRA section 313 reporting

guidance has been developed to assist

covered facilities in complying with

section 313. This reporting guidance has

been provided to reporting facilities as

responses to questions to EPA’s EPCRA

Hotline, as response to letters from

subject facilities, and distribution of a

‘‘Question and Answer’’ document. For

some reference to these other sources of

information on ‘‘otherwise use’’ see the

document EPCRA Section 313

Otherwise Use Activities (Ref. 21).

Given that the original section 313

facilities list was limited to those

facilities which principally operate in

the manufacturing sector, the reporting

guidance was tailored to address the

principal activities conducted by

manufacturing facilities. In particular,

facilities were instructed not to consider

amounts of chemicals treated or

disposed in calculating ‘‘otherwise use’’

reporting thresholds. Although current

guidance instructs facilities to include

the amounts of listed chemicals released

during treatment or disposal in a

facility’s release and waste management

estimates (assuming that the facility

exceeds a manufacture, process, or

otherwise use threshold for the

chemical elsewhere at the facility),

current guidance instructs facilities not

to include the amounts treated or

disposed toward the ‘‘manufacture,’’

‘‘process,’’ or ‘‘otherwise use’’

threshold.

Current guidance was not based on an

evaluation of activities actually

conducted by manufacturing facilities,

but instead was conceived with the

mind that the industrial classification

system places facilities primarily

engaged in waste treatment and disposal

activities outside the manufacturing

sector, and therefore, were not subject to

the original EPCRA section 313

requirements.

D. Proposed Changes to Interpretive

Guidance

As the focus of EPCRA section 313

expands to include industry groups

whose primary activities are similar to

or support manufacturing either as

inputs (e.g., energy) or outputs (e.g.,

waste treatment), EPA reconsidered its

interpretive guidance on otherwise use

for facilities within SIC code 20 through

39, and facilities within the industry

groups being proposed. EPA is

concerned that, based on current

guidance, the public may not have

access to information relating to releases

of toxic chemicals from facilities within

SIC codes 20 through 39 that are

receiving materials for the purposes of

treatment for destruction, stabilization,

or disposal. As a result, EPA believes

that it is appropriate to develop

guidance addressing this concern.

Further, EPA believes it is appropriate

to develop guidance that is consistent

with the primary activities conducted

by facilities within the candidate

industry groups. Therefore, EPA is

modifying its interpretation of activities

considered ‘‘otherwise used’’ as it

applies to activity thresholds under

section 313 to include treatment for

destruction, disposal, and waste

stabilization (hereafter referred to as

‘‘stabilization’’) when the EPCRA

section 313 facility engaged in these

activities receives materials containing

any chemical (not limited to EPCRA

section 313 listed toxic chemicals) from

one or more other facilities (regardless

of whether the generating and receiving

facilities have common ownership) for

the purposes of further waste

management activities.

EPA interprets waste stabilization

consistent with the definition at 40 CFR

265.1081, except that for purposes of

EPCRA section 313 the definition
Federal Register / Vol. 61, No. 125 / Thursday, June 27, 1996 / Proposed Rules 33597

should be interpreted to apply to any

EPCRA section 313 listed toxic chemical

or waste containing any EPCRA section

313 listed toxic chemical. A synonym

for waste stabilization is waste

solidification. EPA interprets ‘‘treatment

for destruction’’ to mean the destruction

of the toxic chemical such that the

substance is no longer a toxic chemical

subject to reporting under EPCRA

section 313. Also, for purposes of the

EPCRA section 313 ‘‘otherwise use’’

reporting threshold, disposal would

include underground injection,

placement in landfills/surface

impoundments, land treatment, or other

intentional land disposal. See ‘‘Toxic

Chemical Release Inventory Reporting

Instructions’’ (1995 version) at p. 35 for

a list of activities to be reported under

‘‘Transfers Off-site for Purposes of

Disposal.’’

The following are four examples of

this revised interpretation.

Example 1: For example, a facility

receives a material containing 22,000

pounds of chemical ‘‘A.’’ Chemical ‘‘A’’

is an EPCRA section 313 listed toxic

chemical. The facility treats for

destruction chemical ‘‘A.’’ Included

among the various activities covered by

EPA’s revised interpretation of

‘‘otherwise use’’ is the ‘‘treatment for

destruction’’ of a toxic chemical

received by the facility from off-site.

Because the facility received and treated

for destruction chemical ‘‘A,’’ the

amount of chemical ‘‘A’’ treated for

destruction would be included in the

calculation of the amount of chemical

‘‘A’’ ‘‘otherwise used’’ at the facility. In

this case, 22,000 pounds of chemical

‘‘A’’ would be considered ‘‘otherwise

used.’’ Thus, because the facility

‘‘otherwise used’’ chemical ‘‘A’’ above

the 10,000 pound statutory threshold for

‘‘otherwise use,’’ the facility would be

required to report all releases of, and

management activities involving,

chemical ‘‘A.’’

Example 2: Assume now that the

same facility, in treating for destruction

chemical ‘‘A,’’ manufactures 11,000

pounds of chemical ‘‘B.’’ Chemical ‘‘B’’

is also an EPCRA section 313 listed

toxic chemical. This manufacture of

chemical ‘‘B’’ is below the

‘‘manufacturing’’ reporting threshold.

However, the facility disposes of

chemical ‘‘B’’ on-site. Included among

the various activities covered by EPA’s

revised interpretation of ‘‘otherwise

use’’ is the disposal of a toxic chemical

that is produced from the management

of a waste that is received by the

facility. In this example, because the

facility received from off-site a material

containing a chemical that is treated for

destruction (i.e., chemical ‘‘A’’) and

during that treatment produced and

subsequently disposed of chemical ‘‘B,’’

the disposal of chemical ‘‘B’’ under

EPA’s revised interpretation would be

considered ‘‘otherwise used.’’ Because

the facility disposed of, or otherwise

used, 11,000 pounds of chemical ‘‘B,’’

the 10,000 pound statutory threshold for

‘‘otherwise use’’ is met. Thus, the

facility would need to report all releases

of, and management activity involving,

chemical ‘‘B.’’

Example 3: As another example, a

facility produces on-site a material

containing 22,000 pounds of chemical

‘‘C.’’ Chemical ‘‘C’’ is not an EPCRA

section 313 listed toxic chemical. Also,

chemical ‘‘C’’ was not manufactured as

a result of managing a waste received

from off-site. The facility treats for

destruction chemical ‘‘C’’ and during

treatment manufactures 11,000 pounds

of chemical ‘‘D.’’ Chemical ‘‘D’’ is an

EPCRA section 313 listed toxic

chemical. The facility subsequently

disposes of chemical ‘‘D.’’ In this

example, although the facility disposes

of chemical ‘‘D,’’ the 11,000 pounds of

chemical ‘‘D’’ is not considered

‘‘otherwise used’’ under EPA’s revised

interpretation because the material from

which chemical ‘‘D’’ is produced (i.e.,

the material containing the 22,000

pounds of chemical ‘‘C’’) was not

received by the facility from off-site.

Thus, in disposing of chemical ‘‘D,’’ the

facility does not exceed the 10,000

pound statutory threshold for

‘‘otherwise use.’’

Example 4: However, based on

Example 3, if chemical ‘‘C’’ were

received from off-site or was created in

waste management activities conducted

on materials received from off-site, the

disposal of chemical ‘‘D’’ would be

considered an ‘‘otherwise use’’ activity

involving chemical ‘‘D.’’ Therefore, the

disposal of the 11,000 pounds of

chemical ‘‘D’’ would exceed the 10,000

pound statutory threshold for

‘‘otherwise use,’’ and the facility would

need to report all releases and

management activities involving,

chemical ‘‘D.’’

EPA requests comment on its revised

interpretation as explained by these

examples.

EPA believes that this modified

interpretation of ‘‘otherwise use’’ better

serves the purposes of providing

communities with information that

assists them in making decisions. EPA

believes that these waste management

activities represent activities that

generate, use, and are the source of

significant releases of listed toxic

chemicals. Thus, EPA believes that

current guidance, which allows

amounts of listed chemicals that are

disposed, stabilized, or treated for

destruction to be reported only when

the chemical exceeds thresholds

elsewhere at the facility, potentially

excludes from reporting a large amount

of listed chemicals managed at certain

facilities.

In addition, this modification of the

interpretation of ‘‘otherwise use’’ is

consistent with EPA’s approach for

interpreting ‘‘manufacture.’’ For

example, EPA’s regulatory definition of

‘‘manufacture’’ and current guidance

includes as ‘‘manufacturing’’ the

amount of a listed toxic chemical that is

coincidentally manufactured during

waste treatment or disposal by the

facility (40 CFR 372.3). Therefore, the

amounts of these chemicals must be

counted toward the manufacturing

threshold. Further, assuming that the

manufacturing threshold is met under

EPCRA section 313, the facility must

report the amount of that manufactured

chemical that is released or otherwise

managed as waste. EPA believes that

modifying the interpretation of

‘‘otherwise use’’ to include activities

such as treatment for destruction,

stabilization, and disposal makes that

definition more consistent with EPA’s

guidance on calculating manufacturing

thresholds. Finally, EPA believes that

current guidance that omits amounts

disposed, stabilized, or treated for

destruction is inconsistent with the

spirit of EPCRA when applied to the

additional facilities proposed for listing

in this action. Excluding such activities

from the interpretation of ‘‘otherwise

use’’ would prevent the dissemination

of information deemed useful in serving

the public’s interest and the purposes of

section 313.

Because EPA believes that most

facilities in SIC codes 20 through 39

dispose or treat only waste that was

already manufactured, processed, or

otherwise used at their facility, the

Agency does not believe that this

change in guidance will affect the

EPCRA section 313 reporting status of a

significant number of facilities within

the manufacturing sector. There is one

category of facilities in the

manufacturing sector that could be

affected by this revised guidance.

Specifically, it could affect those

facilities in the manufacturing sector

that receive wastes from other facilities

and manage those wastes through

treatment or disposal. Under the revised

guidance, the quantity of EPCRA section

313 listed toxic chemicals that undergo

these activities must be included in the

‘‘otherwise use’’ threshold, whereas

currently such facilities are instructed to

exclude from the ‘‘otherwise use’’

threshold determination the quantity of
33598 Federal Register / Vol. 61, No. 125 / Thursday, June 27, 1996 / Proposed Rules

the toxic chemical treated for

destruction, stabilized, or disposed. EPA

requests comment on its revised

interpretation of ‘‘otherwise use.’’ EPA

also requests comment on the number of

facilities within the manufacturing

sector that would be affected by this

revised interpretation.

An alternative to modifying the scope

of ‘‘otherwise use’’ through reporting

guidance is amending the regulatory

definition of ‘‘otherwise use’’ or ‘‘use’’

consistent with this modified approach.

As noted above, the current regulatory

definition of ‘‘otherwise use’’ is very

broad and covers EPA’s revised

interpretation. While EPA does not

believe a change in the regulatory

definition is necessary to clarify its

interpretation, EPA is requesting

comment on whether it should amend

the regulatory text to make clear this

revision. The regulatory definition

would read as follows:

Otherwise use or use means any use of a

toxic chemical that is not covered by the

terms ‘‘manufacture’’ or ‘‘process’’, and

includes treatment for destruction,

stabilization (without subsequent

distribution in commerce), disposal, and

other use of a toxic chemical, including a

toxic chemical contained in a mixture or

trade name product. Except that

(1) Facilities engaged in treatment for

destruction, stabilization, or disposal are not

using a toxic chemical in these activities

unless the facility receives materials from

other facilities for purposes of further waste

management activities.

(2) Relabeling or redistributing a container

of a toxic chemical where no repackaging of

the toxic chemical occurs does not constitute

use of the toxic chemical.

EPA requests comment on whether the

regulatory definition of ‘‘otherwise use’’

should be amended.

An alternative interpretation is

including in the definition of

‘‘otherwise use’’ all disposal, treatment

for destruction, and stabilization,

regardless of whether the facility

receives materials from off-site for the

purposes of treatment for destruction,

stabilization, or disposal. This

alternative approach may affect those

facilities that manufacture or process a

listed chemical below the 25,000 pound

threshold, but that treat or dispose of

more than 10,000 pounds of that

chemical; the disposal is the activity

that would cause the facility to exceed

the otherwise use threshold. The

Agency requests comment on the

number of facilities in this category that

may be affected by this alternate

approach for modifying EPA’s guidance,

and or whether this alternative

interpretation and whether it would

better serve the purposes of EPCRA

section 313.

E. Relationship Among Manufacture,

Process, and Otherwise Use

EPA believes that the revised

interpretation and change in reporting

guidance is consistent with the general

focus of section 313 on the collection

and dissemination of information

relating to the activities involving toxic

chemicals in a community. Further,

EPA believes that toxic chemicals that

are disposed, stabilized, or treated for

destruction are more appropriately

considered otherwise used, as opposed

to manufactured or processed.

Under EPCRA section 313,

‘‘manufacture’’ means to produce,

prepare, import, or compound a

chemical listed under section 313,

including coincidental production of a

toxic chemical. Thus, disposal,

stabilization, or treatment for

destruction of a toxic chemical, whether

or not it was produced at the facility, is

not appropriately considered

manufactured.

EPCRA section 313 defines ‘‘process’’

as ‘‘the preparation of a toxic chemical,

after its manufacture, for distribution in

commerce- (I) in the same form or

physical state as, or in a different form

or physical state from, that in which it

was received by the person so preparing

such chemical, or (II) as part of any

article containing the toxic chemical.’’

Although the act of treatment of a

chemical contained in a waste may

closely relate to many of the activities

described by the processing definition,

the statute provides a limitation that the

chemical be incorporated into a product

that is further distributed in commerce.

In a case where a facility receives a

chemical that is contained in a ‘‘waste,’’

and the facility recovers the chemical

from the ‘‘waste’’ and distributes the

chemical in commerce, EPA believes the

facility is processing the chemical. In a

case where a facility receives a waste

containing a toxic chemical and

disposes or treats for destruction the

toxic chemical on-site, EPA does not

believe the facility is processing the

toxic chemical because the toxic

chemical is not distributed in

commerce. EPA requests comment on

the relationship of ‘‘manufacture,’’

‘‘process,’’ and EPA’s revised

interpretation of ‘‘otherwise use.’’

EPA requests comment on all aspects

of the Agency’s broadening of the

concept of ‘‘otherwise use.’’

V. EPA’s Technical Review

A. Introduction

Data on the candidate industry groups

were reviewed for evidence indicating

whether EPCRA section 313 listed toxic

chemicals are present at facilities within

that industry group, whether facilities

within that industry group manufacture,

process, or otherwise use listed toxic

chemicals, and whether listing facilities

within that industry group could

reasonably be anticipated to increase the

available information on TRI.

For each industry group proposed for

addition to EPCRA section 313 in this

rulemaking, EPA conducted an

extensive assessment. Only after this

careful review was a final determination

made as to whether to propose to list the

industry group pursuant to EPCRA

section 313(b)(1)(B). The information

summarized below for each industry

group describes the key data elements

upon which EPA relied to determine

that the addition of the facility sector is

relevant to the purposes of EPCRA

section 313 pursuant to section

313(b)(1)(B) criteria. A more extensive

review of the existing data base for each

industry group proposed for listing,

which reflects the entire weight-of-theevidence considered by EPA, is

contained in the following support

documents and in the record supporting

this proposed rulemaking: ‘‘SIC Code

Profile 10: Metal Mining’’ (Ref. 6); ‘‘SIC

Code Profile 12: Coal Mining’’ (Ref. 7);

‘‘SIC Code Profile 49: Electric, Gas, and

Sanitary Services’’ (Ref. 8); ‘‘SIC Code

Profile 51: Wholesale Trade -

Nondurable Goods’’ (Ref. 9); ‘‘SIC Code

Profile 73: Business Services’’ (Ref. 10);

and ‘‘Economic Analysis of the

Proposed Rule to Add Certain Industries

to EPCRA Section 313’’ (Ref. 20). These

documents contain a complete list of the

references that were used in support of

these proposed additions. Each industry

group is identified by facility sector

name and SIC code.

EPA requests comment on the

industry groups proposed for addition.

In addition, EPA requests comment on

any issues that may be specific to any

of the individual industry groups.

B. Chemicals and Allied Products -

Wholesale

EPA is proposing to require facilities

operating in SIC code 5169, Wholesale

Nondurable Goods—Chemicals and

Allied Products, Not Elsewhere

Classified (hereafter ‘‘Chemicals and

Allied Products’’), be subject to EPCRA

section 313. Facilities within this

industry group receive EPCRA section

313 chemicals in bulk, take possession

of those chemicals and reformulate,

introduce chemical additives, or

repackage materials containing section

313 chemicals. These activities fall

within the statutory definition of

‘‘process,’’ and are currently being

reported by facilities operating in the

manufacturing sector.
Federal Register / Vol. 61, No. 125 / Thursday, June 27, 1996 / Proposed Rules 33599

1. Description of industry. Facilities

operating in SIC code 5169, Wholesale

Nondurable Goods—Chemicals and

Allied Products, not elsewhere

classified, consists of facilities engaged

primarily in the consolidation of a

variety of bulk chemicals and packaged

products prior to their distribution to a

variety of destinations including

retailers, other wholesale facilities, and

in some cases to manufacturing facilities

for industrial use or for product

formulation. Goods managed by

facilities in the Chemicals and Allied

Products industry group may include

any of a number of EPCRA section 313

listed chemicals.

2. Summary of evaluation. Based on

EPA’s evaluation of this industry, the

Agency believes that reformulation and

repackaging activities conducted by

facilities in the Chemicals and Allied

Products industry group routinely

involve the manufacture, processing, or

otherwise use of EPCRA section 313

chemicals and that the facilities within

this industry group are likely to report

information relevant to the purposes of

EPCRA section 313. The present

determination is consistent with current

reporting guidance, and the application

of existing thresholds and exemptions

under EPCRA section 313. The Agency

anticipates reporting of releases and

other waste management information

from facilities operating in SIC code

5169.

3. Chemicals associated with the

Chemicals and Allied Products industry

group. Facilities classified in the

Chemicals and Allied Products industry

group, are involved in the wholesale

distribution and management of a

variety of chemicals from such

industrial chemical categories as

alkalines and chlorine, industrial gases,

specialty cleaning and sanitation

preparations, noncorrosive products and

materials, and industrial salts and

polishes. Included within these

industrial chemical categories are such

specific EPCRA section 313 chemicals

as chlorine, sodium cyanide,

formaldehyde, and methyl ethyl ketone

to name a few (Refs. 1 and 3). EPA’s

analysis has identified several EPCRA

section 313 listed toxic chemicals that

are commonly managed by facilities

operating in the Chemicals and Allied

Products industry group (Ref. 20). Based

on this finding, EPA believes that a

strong indication exists that those

facilities classified in the Chemicals and

Allied Products industry group are

involved with EPCRA section 313 listed

toxic chemicals on a routine basis.

4. Manufacture, process, or otherwise

use activities involving EPCRA section

313 chemicals. Some of the facilities

within the Chemicals and Allied

Products industry group are involved in

the preparation of EPCRA section 313

listed toxic chemicals, or mixtures

containing EPCRA section 313 listed

toxic chemicals, after their manufacture,

for distribution in commerce. The type

of preparation activities conducted by

facilities classified in the Chemicals and

Allied Products industry group include

reformulation and or repackaging prior

to being distributed.

For example, a facility may purchase and

distribute organic chemicals, which are

mostly liquids and many of which may be

EPCRA section 313 listed toxic chemicals.

The chemicals are transferred into various

size containers for resale. In addition to any

material losses during the transfer, some

toxic chemical wastes may be generated as

pumps and hoses are flushed. As another

example, a facility may routinely blend

chemicals (many of which may be EPCRA

section 313 listed toxic chemicals) to

formulate, for example, lacquer thinner for

autobody shops. Some facilities may

routinely handle 27 or more EPCRA section

313 listed toxic chemicals.

EPA believes that these types of

preparation activities of EPCRA section

313 listed toxic chemicals clearly fit

within the statutory definition of

process and would constitute a

reportable activity under EPCRA section

313. EPA believes that those facilities

whose management of EPCRA section

313 chemicals is limited to the receipt

and distribution of products containing

EPCRA section 313 listed toxic

chemicals without the products being

reformulated or repackaged would not

be required to submit Form R reports for

these chemicals because these activities

do not meet the definition of

manufacture, process, or otherwise use.

Also, EPA does not believe that the

limited act of storage of a chemical

constitutes a reportable activity under

EPCRA section 313.

5. Types of information anticipated.

Based on EPA’s analysis, releases and

other waste management information

resulting from the reformulation and

repackaging of EPCRA section 313

chemicals and products containing

section 313 chemicals are anticipated.

Reports are expected for formaldehyde,

methyl ethyl ketone, and methanol. As

discussed below, facilities in this

industry group engage in many of the

same activities as facilities in SIC codes

20 through 39. Therefore, it is

reasonable to believe that these similar

activities would result in similar types

of release and waste management

information. For example, while

releases can and do occur from

accidents, inadequate storage

procedures, or damages during

transport, EPA is not proposing the

inclusion of this industry based solely

on these activities (Ref. 3).

Based on data required by the

Massachusetts Toxic Use Reduction Act,

which requests similar information to

that required under EPCRA section 313,

evidence suggests that facilities

operating within the Chemicals and

Allied Products industry group will

report on a number of EPCRA section

313 chemicals (Ref. 3). Based on these

data, it appears that these facilities will

report primarily on releases to air of

volatile compounds likely originating

from reformulation and repackaging

activities. Based on the Massachusetts

data, 8 facilities reported a primary SIC

code of 5169 and submitted a total of 50

reports that were also EPCRA section

313 chemicals. These 8 facilities

reported an average of 6.25 reports per

facility as compared to the average

number of reports for currently listed

manufacturing facilities of 3.7. The total

releases reported were approximately

75,450 pounds for 17 listed chemicals.

The median facility release to air was

approximately 3,180 pounds of listed

toxic chemicals (Ref. 3).

EPA estimates that reporting under

EPCRA section 313 from this industry

may result in 8,354 Form R reports and

2,785 Toxic Chemical Release

Certification Statements annually

submitted by 782 facilities. This number

of facilities estimated to report

represents 9 percent of all industries

facilities within this industry group.

6. Reporting considerations. Some

facilities, which are primarily classified

as manufacturers (SIC codes 20 through

39) but that also warehouse and

distribute their products, are currently

reporting release and waste management

information associated with these

activities that are similar to those

conducted by facilities whose primary

classification is in SIC code 5169. EPA

believes that facilities operating in the

Chemicals and Allied Products industry

group (SIC code 5169) that are engaged

in the manufacture, process, or

otherwise use of EPCRA section 313

listed toxic chemicals above reporting

thresholds should also be required to

inform the public about releases and

other waste management activities of

EPCRA section 313 listed toxic

chemicals.

EPA estimates the potential costs for

reporting for the first year by this

industry group to be $51.5 million and

$33.5 million in subsequent years.

7. Conclusion. For the reasons

identified above, EPA believes that

facilities in the Chemicals and Allied

Products industry group in SIC code

5169 satisfy the requirements of EPCRA
33600 Federal Register / Vol. 61, No. 125 / Thursday, June 27, 1996 / Proposed Rules

section 313(b)(1)(B) because EPA

believes that reporting for this industry

group is relevant for the purposes of

EPCRA section 313. Accordingly, EPA

proposes to add this industry group to

the list of industry groups required to

report pursuant to EPCRA section 313

and the PPA section 6607.

C. Petroleum Bulk Stations and

Terminals - Wholesale

EPA is proposing to require petroleum

bulk stations and terminals in SIC code

5171 to report under EPCRA section

313. This industry group includes

facilities that receive petroleum

products and petroleum additives that

contain EPCRA section 313 chemicals,

take possession of those chemicals and

reformulate the products and/or

repackage those petroleum products

prior to their distribution in commerce.

1. Description of industry. The

petroleum industry maintains many

bulk stations and terminals that manage

a variety of refined petroleum products.

The types of petroleum products

managed by these facilities include

crude oil, motor gasoline, diesel, heating

fuel, aviation jet fuel, asphalt, and

liquid petroleum hydrocarbons. The

primary functions of these facilities

include storage, mixing, blending,

distribution, and sale of refined

petroleum products (Ref. 9).

2. Summary of evaluation. Based on

EPA’s evaluation of this industry, the

Agency believes that the mixing,

blending, repackaging, and preparation

activities conducted by facilities in the

petroleum bulk stations and terminals

industry routinely involve the

manufacture, process, or otherwise use

of EPCRA section 313 listed toxic

chemicals and that facilities within this

industry group are likely to report

information relevant to the purposes of

EPCRA section 313. The present

determination is consistent with current

reporting guidance, and the application

of existing thresholds and exemptions

under EPCRA section 313. EPA

anticipates reporting of releases and

other waste management information

from facilities in this industry group.

3. Chemicals associated with the

industry. Bulk petroleum terminals

principally manage refined petroleum

products prior to their distribution in

commerce. The types of petroleum

products managed by bulk terminals are

likely to include one or more EPCRA

section 313 chemicals. Based on EPA’s

analysis, EPCRA section 313 listed toxic

chemicals in gasoline managed by bulk

terminals that are likely to be present

include benzene, cyclohexane, ethyl

benzene, toluene, 1,2,4-

trimethylbenzene, and xylene. Section

313 chemicals present in crude oil, No.

2 fuel oil, diesel and No. 6 fuel oil

include benzene, phenanthrene, and

benz(a)anthracene (Refs. 9 and 20).

4. Manufacture, process, or otherwise

use activities involving EPCRA section

313 chemicals. Bulk petroleum

terminals serve as an intermediate point

in the commerce cycle of the petroleum

industry. Based on EPA’s analysis,

facilities operating in SIC 5171 take

possession of refined petroleum

products and perform mixing, blending,

and reformulation activities prior to

their distribution in commerce. EPA

believes that the mixing, blending, and

reformulation activities, of petroleum

products containing EPCRA section 313

listed toxic chemicals, prior to their

distribution in commerce clearly fits

within the EPCRA section 313 statutory

definition of processing.

Facilities in this industry group may

also introduce petroleum additives in

order to reformulate the product prior to

distribution. This activity involves the

intentional incorporation of an EPCRA

section 313 listed toxic chemical into a

product prior to distribution. Thus, EPA

believes that this activity constitutes

processing of an EPCRA section 313

listed toxic chemical as defined by the

statutory definition. In addition, EPCRA

section 313 chemicals may be otherwise

used during normal facility

maintenance activities (excluding

exempt routine janitorial or facilities

grounds maintenance activities) (Ref. 9).

5. Type of information anticipated.

Storage, mixing, blending, and product

transfer are among the activities during

which significant releases of EPCRA

section 313 chemicals are likely to occur

at bulk terminal facilities. These

releases are likely to be in the form of

fugitive air emissions, tank sludges, or

spills into surface water, groundwater,

or land of section 313 chemicals

contained in petroleum products. EPA

anticipates information on these and

other waste management practices for

chemicals such as, cyclohexane, ethyl

benzene, toluene, 1,2,4-

trimethylbenzene, xylene,

phenanthrene, and benz(a)anthracene

(Ref. 20). While storage tanks at bulk

terminals are generally equipped with

internal floating roofs and other features

designed to reduce loss of volatile

components, losses of some section 313

chemicals resulting from tank breathing

still occur. Based on EPA’s analysis, a

small bulk terminal manages on average

an annual throughput of 36.5 million

gallons, and is estimated to process

petroleum products in sufficient

quantities to exceed the EPCRA section

313(f) reporting thresholds for all

EPCRA section 313 listed toxic

chemicals that are components of

gasoline, No. 2 fuel oil/diesel, No. 6 fuel

oil, and crude oil. In addition, EPA

estimates that some bulk terminals will

also exceed the EPCRA section 313(f)

reporting thresholds for EPCRA section

313 listed toxic chemicals contained in

petroleum additives (Ref. 20).

EPA estimates that reporting under

EPCRA section 313 from this industry

may result in 12,394 Form R reports

annually submitted by 3,842 facilities.

This number of facilities estimated to

report represents 34 percent of all

facilities identified within this industry

group.

6. Reporting considerations. Based on

EPA’s analysis, many of the activities

conducted by petroleum bulk stations

and terminals meet the definition of

manufacture, process, or otherwise use.

EPA believes that current

interpretations of manufacture, process,

or otherwise use will apply directly to

facilities operating in this industry

segment with minimal inconsistencies.

EPA estimates the potential costs for

reporting for the first year by this

industry group to be $69.3 million and

$40.7 million in subsequent years.

7. Conclusions. For the reasons

identified above, EPA believes that

facilities in the SIC code 5171

petroleum bulk stations and terminals

satisfy the requirements of EPCRA

section 313(b)(1)(B) because EPA

believes that reporting for this industry

group is relevant for the purposes of

EPCRA section 313. Accordingly, EPA

proposes to add this industry group to

the list of industry groups required to

report pursuant to EPCRA section 313

and the PPA section 6607.

D. Electric Utilities

EPA is proposing to require coal and

oil-fired electric utility plants in SIC

code 49 to report under EPCRA section

313. These facilities are classified in SIC

code 4911 Electric Services, SIC code

4931 Electric and Other Services

Combined, and SIC code 4939

Combination Utilities, Not Elsewhere

Classified. EPA is requesting comment

on whether to add SIC code 4960 Steam

and Air Conditioning Supply. Although

information is limited on this industry

group, EPA expects the activities

conducted by this industry group to be

similar to those conducted in SIC codes

4911, 4931, and 4939.

Due to the fact that nuclear,

hydroelectric, gas and other non coal/

oil-fired electric generating stations do

not use fuel containing EPCRA section

313 listed toxic chemicals, EPA is

proposing to add only those facilities

within this industry group which

combust fuels containing EPCRA
Federal Register / Vol. 61, No. 125 / Thursday, June 27, 1996 / Proposed Rules 33601

section 313 listed toxic chemicals.

While EPA recognizes that non coal/oilfired electric generating stations may

otherwise use EPCRA section 313

chemicals in maintenance, cleaning,

and purifying operations, and that

information on releases and other waste

management data from these activities

may have some value, these support

activities are not the primary function of

the facility. EPA also recognizes that

generating facilities may switch fuels as

part of normal operations, including

switching between natural gas and other

fossil fuels. Natural gas does not contain

EPCRA section 313 listed toxic

chemicals above de minimis

concentrations, and EPA would not

expect reporting to result from the

combustion of natural gas. However,

any facility which combusts coal or oil

in whatever percentage of its fuel use,

and whether for primary or back-up

generation, would become a covered

facility for purposes of EPCRA section

313, and be required to make a

compliance determination. Thus, EPA

has chosen, as a matter of prioritizing,

to propose the addition of only coal and

oil-fired plants at this time.

1. Description of industry. The electric

services industry includes facilities

which generate electricity with different

fuels: fossil fuels (i.e., coal, oil and

natural gas); gas turbines; internal

combustion turbines; nuclear;

hydroelectric; and other sources

including geothermal, wind, and solar.

The combination electric services

industry includes electric generating

facilities that receive 50 to 95 percent of

their revenues from electricity sales.

Both industries generate electricity

primarily through the combustion of

fossil fuels (Ref. 8).

2. Summary of evaluation. Based on

EPA’s evaluation of this industry, the

Agency believes that electric generation

routinely involves the manufacture,

process, or otherwise use of EPCRA

section 313 listed toxic chemicals and

that the facilities within SIC code 49

which generate electricity by

combusting coal and oil are likely to

report information relevant to the

purposes of EPCRA section 313. The

present determination is consistent with

current reporting guidance, and the

application of existing thresholds and

exemptions under EPCRA section 313.

The Agency anticipates reporting of

releases and other waste management

information from facilities within this

industry group.

3. Chemicals associated with electric

utilities. A variety of chemicals are

associated with electricity generation.

Coal and oil used to generate electricity

may include EPCRA section 313 listed

toxic chemicals as constituents. Among

the EPCRA section 313 listed toxic

chemicals which may be found in coal

and oil are polycyclic aromatic

compounds, chlorine, benzene, toluene,

ethylbenzene, manganese, xylene,

nickel, biphenyl, and naphthalene.

Also, the following EPCRA section 313

metals and their compounds may be

found in coal and oil: beryllium,

cadmium, selenium, antimony, arsenic,

copper, lead, barium, chromium,

vanadium, zinc, and mercury and their

compounds. In addition, other EPCRA

section 313 listed toxic chemicals may

be present in maintenance, cleaning,

and purification operations. These may

include copper compounds, hydrazine,

zinc compounds, hydrochloric and

sulfuric acid (aerosols), brominated

compounds, formic acid, ammonia,

thiourea, methylene chloride, and

ethylene glycol (Ref. 20).

4. Manufacture, process or otherwise

use activities involving EPCRA section

313 chemicals. While differing in some

important respects, all conventional

steam electric generating stations rely

on the same basic process. Fuel is

ignited and burned within a boiler

chamber composed of thousands of feet

of water-filled tubes. The heat of

combustion heats the water in the boiler

tubes, creating high temperature and

high pressure steam. The steam passes

through turbines causing the turbine

blades to rotate. A shaft connected to

the turbine blades drives electric

generators, yielding electric power. In

this fashion, the chemical energy of the

coal or oil is converted to heat energy

through combustion, then to mechanical

energy in the turbines, and finally to

electrical energy in the generators.

Transmission lines, substations, and

switching stations channel generated

electricity to various end users. A range

of maintenance, cleaning, and purifying

operations are also conducted (Ref. 8).

Electric services and combination

electric utilities manufacture or

otherwise use a variety of EPCRA

section 313 listed toxic chemicals, as

part of the combustion process and as

part of maintenance, cleaning, and

purification operations. The combustion

of coal creates certain EPCRA section

313 listed toxic chemicals, including

formaldehyde, hydrogen chloride,

hydrochloric acid (aerosol), primary

sulfates (including sulfuric acid

aerosol), hydrogen fluoride,

hydrofluoric acid, and the following

metals and their compounds, arsenic,

beryllium, cadmium, chromium,

copper, lead, mercury, manganese, and

nickel. Similarly, the combustion of fuel

oil manufactures sulfuric acid aerosols,

formaldehyde, and the following metals

and their compounds, arsenic,

beryllium, cadmium, chromium,

copper, lead, mercury, manganese,

nickel, and zinc. Since the inception of

the program, EPA has interpreted

‘‘manufacture’’ to include coincidental

production of a listed toxic chemical.

Coincidental manufacture is the

generation of a listed toxic chemical as

a byproduct or impurity (53 FR 4504,

February 16, 1988). In the combustion of

coal and oil, metal compounds may be

produced from either the parent metal

or a metal compound contained in the

coal or oil. This may or may not involve

a change of valence state. A change in

valence state results in the manufacture

of a metal compound. Metal compounds

which are produced in the combustion

process are considered ‘‘manufactured’’

for purposes of EPCRA section 313. The

de minimis concentration exemption

does not apply to coincidental

manufacture (see 53 FR 4504, Februry

16, 1988; see also Refs. 8 and 2). Thus,

all quantities of the metal compound

manufactured in the combustion

process must be compared to the

‘‘manufacture’’ threshold.

Constituents of coal and oil fuels are

otherwise used in the combustion

process, including the EPCRA section

313 chemicals listed in the above

section, since they are combusted as

part of the fuel. Metal compounds may

be manufactured by the oxidation of

metals and metal compounds contained

in the fuel. In addition, a variety of

chemicals also listed in the above

section are otherwise used in

maintenance, cleaning, and purifying

operations. For example, several EPCRA

section 313 listed toxic chemicals are

otherwise used in corrosion control

such as copper compounds, hydrazine,

and zinc compounds, with data from

cooling tower waste blowdown streams

of coal-fired boilers indicating that

copper and zinc compounds may be

used in large quantities (Refs. 8 and 20).

In addition, brominated compounds,

ammonia, hydrochloric acid or chlorine

may be used to treat intake water.

Further, the water-side or steam-side of

the boiler (including the boiler tubes,

superheater, and condenser) requires

occasional cleaning. Formic acid, and

thiourea may all be used, along with

large volumes of abrasives. Ethylene

glycol is also otherwise used in

generating station chillers and in some

instances is applied to coal to prevent

coal piles from freezing (Refs. 8 and 20).

5. Types of information anticipated.

EPA recognizes that fuel composition

may vary, and that the quantity and

chemical composition of the wastes

produced from cleaning and

maintenance operations is dependent on
33602 Federal Register / Vol. 61, No. 125 / Thursday, June 27, 1996 / Proposed Rules

plant-specific factors such as plant size,

type of equipment used and age of

equipment. Based on EPA’s evaluation

of this industry, the Agency believes

that most section 313 chemicals present

in coal and oil fuels that are combusted

in these facilities are present in

concentrations below de minimis levels.

EPA anticipates limited reporting

resulting from the use of EPCRA section

313 chemicals in combustion of coal.

EPCRA section 313 listed toxic

chemicals that are components of No. 2

fuel oil above the de minimis

concentration limit that would be

reported as used in combustion include

biphenyl, napthalene, and members of

the polycyclic aromatic compounds

category. EPCRA section 313 listed toxic

chemicals in No. 6 fuel oil above the de

minimis concentration limit that would

be reported as used in combustion

include members of the polycyclic

aromatic compounds category. EPA also

anticipates reportable quantities of

EPCRA section 313 listed toxic

chemicals to be manufactured during

combustion processes involving coal

and oil. These include many of the

metal compounds such as cadmium,

chromium, and zinc compounds.

Further, EPA believes that some EPCRA

section 313 chemicals that are routinely

manufactured or otherwise used at coal/

oil-fired electric utility plants are not

exempt under current EPCRA section

313 exemptions.

EPCRA section 313 chemicals, which

EPA has preliminarily identified, that

are manufactured or otherwise used

above de minimis concentrations in

reportable activities include sulfuric

and hydrochloric acid aerosols,

hydrofluoric acid, formaldehyde,

chlorine, bromine, ethylene glycol,

hydrazine, and copper. Based on EPA’s

evaluation of this industry, EPA

anticipates reporting on releases and

other waste management information

relevant to the purposes of EPCRA

section 313. This type of routine

information regarding EPCRA section

313 chemicals is not publicly-available.

Indications exist that routine releases

occur at these facilities. This assessment

is based on the identification of reported

releases of EPCRA section 313

chemicals in other EPA data systems.

EPA also believes that quantities of

wastes containing EPCRA section 313

listed toxic chemicals are generated and

may result in reporting of waste

management information. Therefore,

EPA reasonably anticipates that

facilities in this industry may report

information relevant to the purposes of

EPCRA section 313 on releases and

other waste management information.

EPA estimates that reporting under

EPCRA section 313 from this industry

may result in 4,175 Form R reports and

1,392 Toxic Chemical Release

Certification Statements annually

submitted by 974 facilities. This number

of facilities estimated to report

represents 31 percent of all facilities

identified within this industry group.

6. Reporting considerations. Based on

EPA’s understanding of this industry,

facilities possess a wide range of

knowledge regarding the EPCRA section

313 chemicals involved in their

activities. While coal/oil-fired facilities

in SIC Code 4911 are clearly identified

as coal/oil-fired facilities and thus

would be subject to this proposed

action, facilities in SIC codes 4931 and

4939 may also engage in combustion of

waste to generate electricity. Any

facility in these SIC codes which

generates electricity through coal or oil

combustion in any proportion would be

subject to reporting requirements and

must determine if reporting thresholds

are exceeded. Facilities in SIC code

4911 engaged in electricity generation

using gas, nuclear, hydroelectric electric

or other sources such as solar and wind,

are not subject to these reporting

requirements.

EPA estimates the potential costs for

reporting for the first year by this

industry group to be $26.6 million and

$16.6 million in subsequent years.

7. Conclusions. For the reasons

identified above, EPA believes that

facilities in the electric utilities industry

in SIC codes 4911, 4931, 4939 satisfy

the requirements of EPCRA section

313(b)(1)(B) because EPA believes that

reporting for this industry group is

relevant for the purposes of EPCRA

section 313. Accordingly, EPA proposes

to add this industry group to the list of

industry groups required to report

pursuant to EPCRA section 313 and the

PPA section 6607.

E. Mining

1. Exemption of extraction activities.

Mining facilities conduct two primary

operations: extraction and beneficiation.

Both operations may occur within the

same facility. While EPA believes that

activities associated with beneficiation

include EPCRA section 313 reportable

activities and will result in reports

relevant to the purposes of EPCRA

section 313, it has not reached a similar

conclusion regarding extraction

activities, particularly in regards to coal

extraction. EPA interprets ‘‘extraction’’

for purposes of EPCRA section 313 to

mean the physical removal or exposure

of ore, coal, minerals, waste rock, or

overburden prior to beneficiation, and

encompasses all extraction-related

activities prior to beneficiation.

Included within these extraction

activities is removal of spoil. ‘‘Spoil’’ is

a non-technical term that refers to dirt

removed from a mine site. While the

term ‘‘spoil’’ apparently has different

connotations from mine to mine, it is, in

essence, considered a part of

overburden. The typical extraction

sequence includes the removal of any

unconsolidated overburden followed by

drilling, blasting, and mucking the

broken ore and waste rock material.

Extraction does not include

beneficiation, coal preparation, mineral

processing, in situ leaching or any

further activities.

As a result of EPA’s evaluation of coal

mining, the Agency believes, based on

currently available data, that facilities in

this industry which conduct extractiononly activities would not conduct

EPCRA section 313 reportable activities

and are unlikely to submit reporting

information. EPA bases this conclusion

on its belief that EPCRA section 313

chemicals are not present above de

minimis concentration levels during

coal extraction, and the use of EPCRA

section 313 chemicals in coal extraction

activities in concentrations above de

minimis is unlikely to occur.

Beneficiation, or preparation, of coal,

does however involve the use of EPCRA

section 313 chemicals, and the Agency

believes that reporting resulting from

coal preparation activities is likely.

Reporting requirements for coal mining

facilities where no further processing

occurs is likely to result in an

unnecessary imposition of burden

which would provide no additional

EPCRA section 313 information.

Therefore, EPA is proposing to exclude

extraction activities, as defined above,

conducted in SIC code 12 in all EPCRA

section 313 reporting requirements.

Facilities engaged in the extraction of

coal only would not be required to make

compliance determinations and report

releases and other waste management

information associated with these

extraction activities. Facilities engaged

in both extraction of coal and coal

preparation would be required to

perform compliance determinations,

and, to the extent then necessary, report

releases and other waste management

information associated with coal

preparation and any other activities

outside of extraction that are conducted

on-site. Facilities classified in SIC code

12 which engage in preparation only,

and do not engage in any extraction onsite would also be required to perform

compliance determinations and report

on releases and other waste

management activities. This exemption
Federal Register / Vol. 61, No. 125 / Thursday, June 27, 1996 / Proposed Rules 33603

would apply only to extraction as

defined above, and not to beneficiation

or any other activities conducted at

facilities in this industry. Further, this

exemption is proposed to apply only to

extraction activities in SIC code 12, and

not activities that occur in SIC code 10

metal mining. EPA is requesting

comment on this exemption of

extraction activities conducted in SIC

code 12 from the EPCRA section 313

reporting requirements.

EPA is also requesting comment

regarding whether this exemption

should be applied to metal mining

extraction as well. Data and information

concerning EPCRA section 313 chemical

activity in metal mining extraction

activities are limited. EPA believes that

metal mining extraction and coal

mining extraction are similar types of

operations, and that the use of EPCRA

section 313 chemicals in concentrations

above de minimis during extraction is

also unlikely in both industries.

Specifically, EPA does not have

information indicating that typical

overburden would contain EPCRA

section 313 chemicals in concentrations

above de minimis levels. Further, based

on EPA’s understanding of metal mining

operations at this time, EPA would not

expect these operations to have a great

deal of knowledge regarding the

constituents present in overburden.

During the comment period, EPA may

receive information confirming or

refuting this understanding. If, as EPA

suspects, overburden does not typically

contain EPCRA section 313 chemicals

above de minimis concentrations, there

would be little or no reporting

associated with the removal of

overburden. In the event EPA extends

the coal extraction exemption to metal

mining, the issue of ‘‘spoil,’’ or

reporting on overburden, becomes moot.

On the other hand, the composition of

extracted material is different in metal

mining and coal mining. EPA believes

that EPCRA section 313 chemicals are

often present above de minimis

concentrations in metal ore.

Consequently, these facilities, which

typically also conduct beneficiation on

site, may have EPCRA section 313

chemicals present in reportable volumes

during extraction as well as during

beneficiation. EPA is requesting

comment on whether the exemption of

extraction activities, including removal

of overburden, should also be applied to

metal mining extraction in SIC code 10.

2. Metal mining. EPA is proposing to

require facilities engaged in metal

mining to report under EPCRA section

313. This proposed requirement is

limited to facilities in SIC Code 10

(Metal Mining) except SIC Code 1081

Metal Mining Services. Facilities in SIC

code 1081 do not conduct reportable

activities; activities performed by firms

in SIC code 1081 primarily consist of

contracted services for mining

operations in the other SIC codes.

a. Description of industry. The metal

mining industry includes facilities

engaged primarily in exploring for

metallic minerals, developing mines,

and ore mining. Metal bearing ores are

valued chiefly for the metals they

contain, which are recovered for use as

such, or as constituents of alloys,

chemicals, pigments, or other products.

This industry also includes all ore

dressing and beneficiating operations,

whether performed at mills operated in

conjunction with the mines served, or at

mills, such as custom mills, operated

separately. These include mills which

crush, grind, wash, dry, sinter, calcine,

or leach ore, or perform gravity

separation or flotation operations (Refs.

4 and 6). EPA’s Office of Solid Waste

has produced a series of Technical

Resource Documents on extraction and

beneficiation of ores and minerals.

These documents have been included in

the public docket for reference.

Although this SIC code includes all

metal ore mining, the scope of mining

industries with a significant domestic

presence is concentrated in iron,

copper, lead, zinc, gold, and silver.

Metals generated from U.S. mining

operations are used domestically in a

wide range of manufactured products,

including automobiles, electrical and

industrial equipment, jewelry, and

photographic materials (Ref. 16).

b. Summary of evaluation. Based on

EPA’s evaluation of this industry, the

Agency believes that beneficiation

activities routinely involve the

manufacturing, processing or otherwise

use of EPCRA section 313 chemicals

and that the facilities within this SIC

code are likely to report information

relevant to the purposes of EPCRA

section 313. The present determination

is consistent with current reporting

guidance, and the application of

existing thresholds and exemptions

under EPCRA section 313. The Agency

anticipates reporting of releases and

other waste management information

from facilities.

c. Chemicals associated with metal

mining. A wide variety of chemicals are

found at mining facilities in SIC code

10. Various EPCRA section 313 listed

metals and metal compounds are found

in the ores that are mined and

beneficiated. The nature of the ore that

is mined by a particular facility is

extremely site specific. Further,

although relatively standardized

processes are used to recover the target

metal(s) from ores at various types of

mines, the chemicals used in these

recovery processes by specific facilities

(both in type and quantity) are strongly

influenced by the nature of the ore and

of the recovery process used.

Based on EPA’s evaluation of this

industry, it believes that the EPCRA

section 313 chemicals associated with

the metal mining industry which may

be expected to be reported under this

proposed action include constituents of

ore such as copper, antimony, silver,

lead, zinc, cadmium, mercury,

chromium, manganese, and nickel and

their compounds; flotation reagents

such as cyanide compounds, copper

sulfate, and zinc sulfate; agglomeration

agents such as chlorine; elution acids

such as nitric acid; electrowinning

agents such as cyanide compounds and

lead nitrate; and beneficiation agents

such as cyanide compounds (Refs. 6, 16,

18, and 20).

d. Manufacture, process or otherwise

use activities involving EPCRA section

313 chemicals. Metal mining includes

extraction and beneficiation steps

during the preparation of a specific

metal concentrate. Extraction involves

the removal or exposure of the ore from

surface and underground deposits prior

to beneficiation. The typical extraction

sequence includes the removal of any

unconsolidated overburden followed by

drilling, blasting, and mucking the

broken ore and waste rock material.

Beneficiation is the preparation of a

specific metal concentrate. The purpose

of beneficiation is to concentrate the

sought after metal in the ore by

separating the values from the other

materials in the ore (Ref. 6). The most

common beneficiation methods include

gravity concentration, milling and

floating, leaching, dump leaching, and

magnetic separation (Refs. 6 and 16).

EPA interprets ‘‘ore beneficiation’’ for

purposes of EPCRA section 313 to mean

the preparation of ores to regulate the

size of the product, to remove unwanted

constituents, or to improve the quality,

purity, or grade of a desired product.

(Ref. 16) Under regulations drafted

pursuant to the Resource Conservation

and Recovery Act (RCRA, 40 CFR

261.4), beneficiation is restricted to the

following activities: crushing; grinding;

washing; dissolution; crystallization;

filtration; sorting; sizing; drying;

sintering; pelletizing; briquetting;

calcining to remove water and/or carbon

dioxide; roasting; autoclaving, and/or

chlorination in preparation for leaching;

gravity concentration; magnetic

separation; electrostatic separation;

flotation; ion exchange; solvent

extraction; electrowinning;

precipitation; amalgamation; and heap,
33604 Federal Register / Vol. 61, No. 125 / Thursday, June 27, 1996 / Proposed Rules

dump, vat, tank, and in situ leaching.

(40 CFR 261.4) EPA’s interpretation of

‘‘beneficiation’’ for EPCRA section 313

purposes should be read consistent with

the RCRA definition and guidance.

Beneficiation of ore is, in essence, the

preparation of the constituents of the

ore. In many mining operations, such as

lead, silver, and copper, the primary

metal is a constituent of the ore (i.e.

lead, silver, and copper) and is a toxic

chemical. There may be other

constituents of the ore that are also toxic

chemicals. Because beneficiation of the

ore is preparation of the constituents,

any beneficiation of ore containing toxic

chemicals is also preparation of all of

the toxic chemical constituents. If the

preparation of the toxic chemical

constituent is for distribution in

commerce, the toxic chemical is

‘‘processed’’ for purposes of EPCRA

section 313.

In addition, other EPCRA section 313

chemicals may be otherwise used

during the beneficiation operations. For

example, cyanide leaching, using

solutions of sodium and potassium

cyanides as leaching agents, to extract

gold from gold ore, represents an

otherwise use of EPCRA section 313

chemicals.

e. Types of information anticipated.

EPA recognizes that the nature of the

ore mined and the preparation of its

constituents is site-specific and

therefore variable.

EPA’s evaluation of this industry

indicates that facilities routinely handle

large volumes of EPCRA section 313

chemicals and that there is reason to

believe that routine releases occur based

on data in existing EPA data systems.

For example, releases to air of toxic

chemicals including arsenic, antimony,

lead, and copper were reported in EPA’s

AIRS-AFS data base. EPA reasonably

anticipates, therefore, that facilities in

this industry may report information on

releases and other waste management

consistent with the purpose of EPCRA

section 313. As a result, information on

the presence, management, and releases

of toxic chemicals will be available to

interested communities, governments,

and individuals, that was previously

unavailable to the public.

EPA estimates that reporting under

EPCRA section 313 from this industry

may result in 1,176 Form R reports

annually by 328 facilities. This number

of facilities estimated to report

represents 31 percent of all facilities

identified within this industry group.

f. Reporting considerations. Because

the activities in this industry,

particularly beneficiating, are similar to

processing activities performed in

currently covered facilities, no new

guidance is required to enable facilities

in this industry to comply with EPCRA

section 313 reporting requirements.

EPA estimates the potential costs for

reporting for the first year by this

industry group to be $6.5 million and

$3.8 million in subsequent years.

g. Conclusions. For the reasons

identified above, EPA believes that

facilities in the metal mining industry in

SIC code 10 except SIC code 1018

satisfy the requirements of EPCRA

section 313(b)(1)(B) because EPA

believes that reporting for this industry

group is relevant for the purposes of

EPCRA section 313. Accordingly, EPA

proposes to add this industry group to

the list of industry groups required to

report pursuant to EPCRA section 313

and the PPA section 6607.

3. Coal mining. EPA is proposing to

require establishments engaged in coal

mining to report under EPCRA section

313. This proposed requirement is

limited to establishments in SIC code 12

Coal Mining except SIC code 1241 Coal

Mining Services. EPA does not believe

that SIC code 1241 includes facilities

which conduct reportable activities or

routinely handle large volumes of

EPCRA section 313 chemicals.

a. Description of industry. The coal

mining industry includes

establishments primarily engaged in

producing bituminous coal, anthracite,

and lignite. Included are mining

operations and preparation plants (also

known as cleaning plants and

washeries), whether or not such plants

are operated in conjunction with mine

sites (Ref. 7). Coal is extracted from

surface and underground mines;

production from surface mines is

increasing as production from

underground mines decreases. The

sequence of steps in coal production is

similar to metal mining and includes

extraction and beneficiation. Facilities

in these SIC codes may manufacture,

process, or otherwise use EPCRA

section 313 chemicals when conducting

blasting activities; extraction of coal and

impurities; and preparation activities,

including cleaning to reduce ash and

sulfur content, washing, crushing,

screening, and loading (Ref. 20).

b. Summary of evaluation. Based on

EPA’s evaluation of this industry, the

Agency believes that beneficiation and

processing operations performed in coal

preparation plants routinely involve

manufacturing, processing, or the

otherwise use of EPCRA section 313

chemicals and that the facilities within

this SIC code are likely to report

information relevant to the purposes of

EPCRA section 313. The present

determination is consistent with current

reporting guidance, and the application

of existing thresholds and exemptions

under EPCRA section 313. The Agency

anticipates reporting of releases and

other waste management information

from facilities in this industry.

c. Chemicals associated with coal

mining. There are three sources of

EPCRA section 313 chemicals in SIC

code 12: (1) EPCRA section 313

chemicals that are commonly found in

coal; (2) EPCRA section 313 chemicals

that are subsequently used during the

coal preparation process; and (3) EPCRA

section 313 chemicals incidental to coal

production, e.g., explosives, acid mine

drainage. Metals and minerals present

in coal may include antimony, arsenic,

barium, cadmium, chromium, copper,

lead, manganese, mercury, nickel,

selenium, silver, vanadium (fume or

dust), and zinc (fume or dust) and their

compounds. Chemicals used during coal

preparation may include

tetrachloroethylene, 1,1,1-

trichloroethane, phenanthrene,

dichlorodifluoromethane, xylene, and

ethylene glycol. Chemicals incidental to

coal production include ammonium

nitrate and fuel oil, used for explosives.

Fuel oil may contain EPCRA section 313

chemicals as constituents.

Based on EPA’s evaluation of this

industry, the Agency believes that the

EPCRA section 313 chemicals

associated with coal mining which may

be expected to be reported under this

proposed action are primarily associated

with coal preparation plants and would

include tetrachloroethylene, 1,1,1-

trichloroethane, phenanthrene,

dichlorodifluoromethane, xylene, and

ethylene glycol (Ref. 20).

d. Manufacture, process, or otherwise

use activities involving EPCRA section

313 chemicals. Coal beneficiation, also

known as coal preparation, is the

process of upgrading raw coal using

physical methods to improve the energy

value and remove impurities such as

pyrite and non-coal mineral material. It

is intended to produce a standardized

product and reduce ash and sulfur

content. The extent of upgrading is

determined by the intended end use and

compliance with emission standards

(Ref. 7). Coal is crushed and slurried

with water at coal preparation plants to

separate organics from inorganic

impurities. The inorganic impurities are

denser than the combustible, organic

fraction of the coal, and the density

difference is used to separate the

inorganic fractions using cyclones and

dense-medium tanks. Flotation tanks are

also used to remove pyrite from finely

ground coal. The coal-water slurry is

introduced into a series of flotation cells

spragged with air from below. Alcohols

are used to create a froth, and kerosene
Federal Register / Vol. 61, No. 125 / Thursday, June 27, 1996 / Proposed Rules 33605

or diesel fuel is added to collect the coal

into the froth, leaving the pyrite behind.

At the completion of the cleaning steps,

the coal is dried using hot gases from a

coal burning furnace.

While the possibility exists that the

coincidental manufacture of EPCRA

section 313 chemicals may occur as a

result of chemical reactions during

either extraction or beneficiation

operations, EPA has not identified

instances where this occurs routinely.

EPA, as part of its evaluation of this

industry, has not determined that

processing, as defined in EPCRA section

313, routinely occurs for EPCRA section

313 listed toxic chemicals above de

minimis concentrations. However, EPA

has identified routine activities

involving EPCRA section 313 toxic

chemicals. Beneficiation of coal

routinely involves the otherwise use of

EPCRA section 313 chemicals to aid in

separating coal from impurities during

coal preparation processes. The use of

these chemicals during the

beneficiation, or preparation, activities

described above constitute the

otherwise use of chemicals. EPA

believes, based on its evaluation, that

these activities will be the primary

source of EPCRA section 313

information from these facilities.

e. Types of information anticipated.

Based on EPA’s evaluation of this

industry, the Agency believes that coal

mining facilities routinely handle large

volumes of EPCRA section 313

chemicals and that there is reason to

believe that routine releases occur based

on data in existing EPA data systems.

For example, routine releases to air were

reported in EPA’s Aerometric

Information Retrieval System (AIRS)

Facility Subsystem (AFS) of ethylene

glycol and dichlorodifluoromethane for

facilities in SIC code 12 (Ref. 18). EPA

reasonably anticipates, therefore, that

facilities in this industry will report

information on releases and other waste

management activities of EPCRA section

313 chemicals such as

tetrachloroethylene, xylene, and

ethylene glycol. As a result, information

on the presence, management and

releases of toxic chemicals will be

available to interested communities,

governments, and individuals, that was

previously unavailable to the public.

EPA estimates that reporting under

EPCRA section 313 from this industry

may result in 642 Form R reports

annually submitted by 321 facilities.

This number of facilities estimated to

report represents 10 percent of all

facilities identified within this industry

group.

f. Reporting considerations. Because

the activities conducted by facilities

within this industry sector, particularly

coal preparation or beneficiation, are

similar to manufacturing, processing,

and otherwise use activities performed

in currently covered facilities, no new

guidance is required to enable facilities

in this industry to comply with EPCRA

section 313 reporting. There may be

activities other than those discussed

here that should be examined by a

reporting facility for reporting purposes.

For example, although coal contains

EPCRA section 313 constituents, EPA

believes that these constituents

generally exist in concentrations below

de minimis levels, and therefore may be

exempt from reporting as the

constituents are further processed with

the coal. However, in the event that coal

preparation plants process a product

other than coal, for further distribution

in commerce, and that product contains

EPCRA section 313 chemicals above de

minimis concentrations, the facility may

need to file a Form R for that chemical.

EPA estimates the potential costs for

reporting for the first year by this

industry group to be $5.4 million and

$2.5 million in subsequent years.

g. Conclusion. For the reasons

identified above, EPA believes that

facilities in the coal mining industry in

SIC code 12 except SIC code 1241

satisfy the requirements of EPCRA

section 313(b)(1)(B). Accordingly, EPA

proposes to add this industry group to

the list of industry groups required to

report pursuant to EPCRA section 313

and the PPA section 6607.

F. RCRA Subtitle C Hazardous Waste

Facilities

EPA is proposing to require facilities

regulated under RCRA Subtitle C that

are classified in SIC code 4953 to report

under EPCRA section 313.

1. Description. Facilities operating in

SIC code 4953 that are regulated under

RCRA subtitle C (the primary federal

law addressing hazardous waste

mangement), are engaged primarily in

the collection, transportation, treatment

for destruction, stabilization, and/or

disposal of RCRA subtitle C hazardous

waste. These facilities include

incinerators, underground injection

facilities, waste treatment plants,

landfills, and other facilities designed

for the treatment for destruction,

stabilization, and disposal of hazardous

waste.

2. Summary of evaluation. EPA has

determined that facilities regulated

under RCRA subtitle C that are

classified in SIC code 4953 conduct

activities that routinely involve the

management of EPCRA section 313

chemicals. Based on EPA’s revised

interpretation of activities considered as

otherwise use as discussed in Unit IV.

of this preamble, EPA believes that

facilities regulated under RCRA Subtitle

C that are classified in SIC code 4953

manage as waste a substantial volume of

EPCRA section 313 chemicals. Under

the revised otherwise use interpretation

articulated in Unit IV. of this preamble,

amounts of section 313 chemicals

treated for destruction, stabilization, or

disposal would be considered otherwise

use for purposes of threshold

determinations and the amounts

released or managed as a waste would

be subject to reporting under EPCRA

section 313, provided that the

appropriate EPCRA section 313(f)

threshold is met.

3. Chemicals associated with the

industry. Facilities regulated under

RCRA subtitle C that are classified in

SIC code 4953 manage an extremely

large number and quantity of EPCRA

section 313 chemicals. The EPCRA

section 313 list of toxic chemicals

includes 195 specifically listed

chemicals that are also regulated as

hazardous waste under RCRA (40 CFR

261.33(e) and 40 CFR 261.33(f)). The

EPCRA section 313 list of toxic

chemicals also contains two chemical

categories that are also regulated under

the RCRA program. Therefore, the

number of EPCRA section 313

chemicals that may be managed and

potentially reported by facilities within

this industry group is rather large.

4. Manufacture, process, or otherwise

use activities involving EPCRA section

313 chemicals. Facilities regulated

under RCRA subtitle C that are within

SIC code 4953 receive waste containing

section 313 chemicals for the purposes

of storage, treatment for destruction,

stabilization, and disposal. These

facilities manage a substantial amount

of EPCRA section 313 chemicals

contained in waste. While these

activities result in the generation of and

in limited cases may include the use of

EPCRA section 313 chemicals, the vast

majority of section 313 chemicals

managed by these facilities are in the

amounts managed as waste.

As stated in Unit IV. of this preamble,

EPA is modifying its interpretation of

‘‘otherwise use’’ to include the

treatment for destruction, stabilization,

or disposal of EPCRA section 313

chemicals. Given this interpretation,

most of the activities conducted by

facilities regulated under RCRA subtitle

C that are in SIC code 4953 will be

considered otherwise use. In addition,

some EPCRA section 313 listed toxic

chemicals may be coincidentally

manufactured in the treatment of

hazardous waste streams (Ref. 20).
33606 Federal Register / Vol. 61, No. 125 / Thursday, June 27, 1996 / Proposed Rules

Some EPCRA section 313 listed toxic

chemicals that may be manufactured,

processed, or otherwise used by

facilities in this industry group include:

hydrochloric acid, hydrofluoric acid

and sulfuric acid (aerosol), which may

be coincidentally manufactured during

some treatment for destruction

activitives; chlorine, which is used in

some treatment operations (Ref. 20); and

numerous other chemicals otherwise

used under EPA’s revised interpretation,

such as chlorobenzene,

dichlorobenzene, formaldehyde, and

metals (e.g., lead) and their compounds.

5. Types of information anticipated.

Congress created EPCRA section 313 to

provide a unique function—to make

multimedia information on releases of

toxic chemicals and other waste

management activities readily available

to communities. Although at that time,

existing statutes provided some

information, sponsers of EPCRA section

313 recognized that existing information

did not serve the need of providing

publicly available information on

releases and other waste management

activities of toxic chemicals in a

consistent and comprehensive format

for all media.

EPA and the states currently collect much

of [the information to be collected by the

section], and a number of states and cities

have instituted similar inventories...

However, many states and the EPA do not

have so-called multimedia inventories. The

information may be scattered in air files,

water files and on RCRA manifest forms,...but

not pulled together in one place to provide

a complete and usable picture of total

environmental exposure. (Senator

Lautenberg, Ref. 11).

Similarly, the sponsors also

recognized that industries that were the

initial focus of EPCRA section 313 (i.e.,

facilities in SIC codes 20 through 39)

were already subject to extensive

regulations, but determined that these

industries should be included in those

initially subject to EPCRA section 313

reporting.

With respect to the contents of the toxic

release inventory form, estimates of releases

into each environmental medium must be

provided. This shall include any releases into

the air, water, as well as releases from waste

treatment and storage facilities. This should

include all releases of toxic chemicals in

surface waters whether or not such releases

are pursuant to Clean Water Act permits.

Similarly, all toxic chemicals dumped into

and disposal facilities must be reported

whether or not such facilities are regulated

under the Resource Conservation and

Recovery Act. (Congressman Edgar,

Congressional Record, p. 15316-15317

October 8, 1986)

While EPA recognizes that facilities

regulated under RCRA subtitle C are

subject to considerable regulation, EPA

believes that requiring these facilities to

report under EPCRA section 313 does

not constitute a significant overlap with

other regulations. Although the

permitting process makes some

chemical management information on a

facility-specific basis available to the

public, the type of information collected

from facilities regulated under RCRA

subtitle C is typically at the waste

stream level and not at the constituentspecific level. This is very different from

the type of information collected under

EPCRA section 313. The information

collected under EPCRA section 313 is

chemical-specific and in contrast to

RCRA data is designed to be used by the

public.

EPA has been encouraged to consider

the addition of waste treatment and

disposal facilities to EPCRA section 313

since the initial passage of the statute.

Comments received on the proposed

rule (53 FR 4504) to implement EPCRA

section 313 reporting included strong

support for the addition of the

commercial waste treatment industry.

Given the purpose of EPCRA section

313 (providing the public with

information on toxic chemicals), EPA

believes it is appropriate to expand the

focus of the TRI program to include

information from facilities that treat for

destruction, stabilize, and/or dispose of

toxic chemicals. Certainly, facilities

regulated under RCRA subtitle C are

locations where substantial quantities of

concentrated toxic chemicals are

collected, and treated for destruction,

stabilized, and/or disposed. As

discussed above, Congress intended that

the information provided by EPCRA

section 313 reporting would include

releases from waste treatment and

disposal facilities regardless of whether

these releases were permitted or not.

Therefore, it is EPA’s belief that the

inclusion of RCRA subtitle C facilities

operating within SIC code 4953 under

EPCRA section 313 reporting

requirements is appropriate and will

add significantly to the information that

is available on how and where toxic

chemical wastes are released and

managed.

As stated above, facilities regulated

under RCRA subtitle C that are within

SIC code 4953 manage a large number

of EPCRA section 313 chemicals, often

in large quantities. The types of

treatment activities and concentrations

of chemicals in waste received will

greatly affect the types and amounts of

section 313 chemicals released or

managed as a waste from any particular

facility. As a whole, EPA anticipates

that facilities operating in this industry

group will contribute more release and

management information on a per

facility basis than any other industry

group currently reporting or being

proposed for addition by this

rulemaking.

EPA estimates that reporting under

EPCRA section 313 from this industry

may result in 6,637 Form R reports and

74 Toxic Chemical Release Certification

Statements annually by 164 facilities.

This number of facilities estimated to

report represents 100 percent of all

facilities identified within this industry

group.

6. Reporting consideration. EPA’s

revised interpretation of ‘‘otherwise

use’’ can significantly impact the

information reported by facilities within

this industry group. See Unit IV.D. of

this preamble for reporting examples.

EPA estimates the potential costs for

reporting for the first year by this

industry group to be $31.2 million and

$21.5 million in subsequent years.

The Agency believes it is important to

provide the public with TRI information

from the hazardous waste management

industry. However, the Agency

recognizes that facilities in this industry

present specific issues with regard to

reporting under EPCRA section 313.

Placement of a toxic chemical into a

RCRA hazardous waste landfill is

reported as a release under EPCRA

section 313, even though disposal of

hazardous waste in that landfill is a

permissible waste management activity

under RCRA. Through its outreach

efforts in developing this proposal, EPA

discussed the hazardous waste

management industry’s concerns with

the differing perceptions of the term

‘‘release.’’ Although RCRA does not

define the term ‘‘release,’’ some may

perceive that term, when used in the

RCRA context, to indicate failure of the

hazardous waste management unit, such

as a landfill. For TRI purposes, EPCRA

section 329 defines ‘‘release’’ to mean

‘‘spilling, leaking, pumping, pouring,

emitting, emptying, discharging,

injecting, leaching, dumping, or

disposing into the environment

(including the abandonment or

discarding of barrels, containers, and

other closed receptacles) of any

hazardous chemical, extremely

hazardous substance, or toxic

chemical.’’ Disposal includes

underground injection, placement in

landfills/surface impoundments, land

treatment, or other intentional land

disposal. (See ‘‘Toxic Chemical Release

Inventory Reporting Instructions’’ (1995

version) at p. 35 for a list of activities

to be reported under ‘‘Transfers Off-site

for Purposes of Disposal.’’)

The Agency is mindful of the concern

that TRI release information involving
Federal Register / Vol. 61, No. 125 / Thursday, June 27, 1996 / Proposed Rules 33607

hazardous waste management activities

not be misleading. For example, the

public should not construe a release

into a landfill reported under EPCRA

section 313 to mean that a landfill has

failed. In developing the final rule, EPA

will consider approaches to assist the

public in understanding the proper

meaning of reporting data from the

hazardous waste management industry.

EPA requests comment on approaches

to address this concern.

Although facilities that receive

hazardous waste are provided with

information on the constituents of that

hazardous waste, these facilities may be

provided with limited information on

EPCRA section 313 listed chemicals and

the exact quantities of those

constituents. EPA requests comment on

the quantity of constituents, difficulty

and costs of reporting, and ways to aid

facilities in reporting under EPCRA

section 313, in the least burdensome

manner, on those constituents that are

EPCRA section 313 listed toxic

chemicals.

7. Conclusion. For the reasons

identified above, EPA believes that

those RCRA subtitle C facilities in SIC

code 4953 satisfy the requirements of

EPCRA section 313(b)(1)(B) because

EPA believes that reporting for this

industry sector is relevant for the

purposes of EPCRA section 313.

Accordingly, EPA proposes to add this

industry group to the list of industry

groups required to report pursuant to

EPCRA section 313 and the PPA section

6607.

G. Solvent Recovery Services

EPA is proposing to require facilities

engaged in solvent recovery operations

to report under EPCRA section 313.

These facilities are classified in SIC

code 7389 Business Services, not

elsewhere classified, that are primarily

engaged in solvent recovery activities.

1. Description of the industry. Solvent

recovery is the act of removing

contaminants and reconditioning a

previously used industrial solvent to a

form suitable for reuse. Solvent recovery

is a beneficial activity that ultimately

reduces wastes and the demand for raw

materials. However, the activities used

to recover solvents may result in

significant releases and other waste

management activities involving EPCRA

section 313 chemicals.

Many facilities are engaged in solvent

recovery, in part due to the widespread

use of solvents, the value of the

material, and the technologies available.

Most facilities conducting solvent

recovery operations are primarily

engaged in other activities, making the

number of facilities primarily engaged

in solvent recovery relatively few. Many

facilities identified as operating within

the manufacturing sector conduct

solvent recovery operations and may

currently report under EPCRA section

313 those releases and waste

management activities that result from

their solvent recovery operations (Ref.

20).

2. Summary of evaluation. Based on

EPA’s evaluation of facilities primarily

engaged in solvent recovery operations,

the Agency believes their associated

activities routinely involve the

manufacturing, processing, or otherwise

use of EPCRA section 313 listed toxic

chemicals. This determination is

consistent with current reporting

guidance and the application of existing

exemptions under EPCRA section 313.

EPA anticipates reporting of releases

and other waste management

information from facilities primarily

engaged in solvent recovery operations.

3. Chemicals associated with the

industry. Solvents appropriate for

recovery include alcohols, aliphatics,

aromatics, chlorinated hydrocarbons,

chloroflorocarbons, ketones, and other

flammable and non-flammable

compounds. Many solvents commonly

recovered are also EPCRA section 313

listed toxic chemicals and include

carbon tetrachloride, chloroform,

methanol, methyl ethyl ketone,

methylene chloride, perchloroethylene,

toluene and xylene. Industrial uses of

solvents typically result in the

introduction of chemical contaminants

such as pigments, ink, resin, oil, grease,

metals and dirt. A number of processes

are used to separate contaminants to

recover the economically beneficial

solvent. These include distillation,

stripping, thin-film evaporation and

extraction. The type of process applied

is generally dependent on the solvent

and type of contamination (Ref. 10).

4. Manufacture, process, or otherwise

use activities involving EPCRA section

313 chemicals. The recovery of an

EPCRA section 313 listed toxic chemical

from a mixture for further distribution

or commercial use is processing of that

chemical. This is the primary function

of most solvent recovery businesses.

The type of separation method(s)

applied by some facilities may also

involve the otherwise use of EPCRA

section 313 listed toxic chemicals.

Under current EPCRA section 313

guidance, the use of a chemical to react

with another chemical constitutes a use

(provided the first chemical does not

become incorporated and distributed in

commerce). In addition, some of the

contaminants contained in a spent

solvent mixture may also include

EPCRA section 313 chemicals. The

disposal of a listed toxic chemical

removed from the spent solvent is the

otherwise use of that toxic chemical

under the revised interpretation

articulated in this rulemaking (see Unit

IV. of this preamble).

5. Types of information anticipated.

Based on the type of process used,

various releases of solvent, contaminant,

and chemicals used to aid in the

recovery of the solvent may occur.

Releases can include: light ends or

vapors from process units or solvent

holding tanks, heavy ends or still

bottoms and sludge, and oil from

various other process units. Other

wastes such as descaling solutions and

caustic streams are generated during

routine maintenance and feed stock

switch over operations. Some of these

wastes generated may contain section

313 chemicals and are generated or are

used in quantities large enough that

reporting may result. Some of these

chemicals are carbon tetrachloride,

perchloroethylene, and xylene. While

EPA’s proposed broader interpretation

of ‘‘otherwise use’’ may capture the

disposal of spent toxic chemicals, based

on EPA’s analysis, contaminants

removed from spent solvent mixtures

are not likely to be present in quantities

that would exceed reporting thresholds,

and subsequently no reports are

expected on these chemicals (Ref. 20).

In addition, based on EPA’s analysis,

the process of recovering spent solvents

is considered to be most economical

when preformed on a larger scale, and

therefore, it is estimated that all

operations primarily engaged in solvent

recovery will process enough of one or

more of the EPCRA section 313

chemicals identified in Unit V.G.3. of

this preamble to exceed reporting

thresholds (Ref. 10).

EPA estimates that reporting under

EPCRA section 313 from this industry

may result in 85 Form R reports

annually submitted by 17 facilities. This

number of facilities estimated to report

represents 43 percent of all facilities

identified within this industry group.

6. Reporting consideration. While

EPA wishes to encourage alternatives to

disposal such as recycling, the Agency

believes that the releases and waste

management information resulting from

facilities primarily involved in solvent

recovery operations should be made

publicly available. EPA believes that the

activities conducted by facilities

primarily engaged in solvent recovery

are very similar if not identical to

solvent recovery activities conducted by

currently reporting facilities and that

statutory reporting definitions, as well

as reporting guidance, will directly

apply to these operations.
33608 Federal Register / Vol. 61, No. 125 / Thursday, June 27, 1996 / Proposed Rules

EPA estimates potential costs for

reporting for the first year by this

industry group to be $0.4 million and

$0.3 million in subsequent years.

7. Conclusions. For the reasons

identified above, EPA believes that

facilities that are primarily engaged in

solvent recovery operations in SIC code

7389 satisfy the requirements of EPCRA

section 313 (b)(1)(B) because EPA

believes that reporting for this industry

group is relevant for the purposes of

EPCRA section 313. Accordingly, EPA

proposes to add this industry group to

the list of industry groups required to

report pursuant to EPCRA section 313

and the PPA section 6607.

VI. Request for Public Comment

EPA requests comment on any aspect

of this proposal. In particular, EPA

requests specific comment as detailed in

the following paragraphs.

EPA requests comment on the

information considered for each of the

industry groups proposed for addition

in Unit V. of this preamble. In addition,

EPA requests comment on any issues

that may be specific to any of the

individual industry groups.

EPA is requesting comment on the use

of the criteria used in today’s proposal

for listing decisions for the EPCRA

section 313 program.

EPA requests comment on the

sufficiency of the evidence and any

additional information for each of the

industry groups proposed for addition.

In addition, EPA requests comment on

any issues that may be specific to any

of the individual industry groups.

EPA requests comment on the

exemption for extraction activities

under the coal mining industry sector.

EPA is also requesting comment

regarding whether this exemption

should be applied to metal mining

extraction as well.

EPA is requesting comment on

requiring reporting from those facilities

in SIC code 4953 that have interim

status under RCRA subtitle C.

EPA is requesting comment on

whether to add SIC code 4960 Steam

and Air Conditioning Supply. Although

information is limited on this industry

group, EPA expects the activities

conducted by this industry group to be

similar to those conducted in SIC codes

4911, 4931, and 4939.

The Agency is mindful of the concern

that TRI release information involving

hazardous waste management activities

not be misleading. For example, the

public should not construe a release

into a landfill reported under EPCRA

section 313 to mean that a landfill has

failed. In developing the final rule, EPA

will consider approaches to assist the

public in understanding the proper

meaning of reporting data from the

hazardous waste management industry.

EPA requests comment on approaches

to address this concern.

Although facilities that receives

hazardous waste are provided with

information on the constituents of that

hazardous waste, these facilities may be

provided with limited information on

the exact quantities of those

constituents. EPA requests comment on

ways to aid facilities in reporting under

EPCRA section 313, in the least

burdensome manner, on those

constituents that are EPCRA section 313

listed toxic chemicals.

EPA requests comment on the

alternatives to reduce impacts on small

facilities in SIC code 5169 and facilties

regulated under RCRA subtitle C that

are classified within SIC code 4953.

EPA requests comment on whether any

of the alternatives presented in this

proposed rule would accomplish the

stated objective of EPCRA section 313

while minimizing significant impact on

small entities.

For the industry groups outside of SIC

codes 20 through 39 which are not part

of today’s proposal, EPA requests

comment on adding any of these

industry groups through a future

rulemaking. Commenters should take

into account the current limitations of

EPCRA section 313 reporting

requirements, i.e., exemptions and

thresholds, in addressing whether these

industries should be required to report

under EPCRA section 313.

EPA requests comment on all aspects

of the Agency’s broadening of the

concept of ‘‘otherwise use.’’

Specifically, EPA requests comment on

(1) the Agency’s proposed modification

of the reporting guidance for ‘‘otherwise

use,’’ (2) whether the regulatory

definition of ‘‘otherwise use’’ should be

amended, (3) the Agency’s alternate

approach to modifying the reporting

guidance for ‘‘otherwise use;’’ and (4)

the number of facilities in SIC codes 20

through 39 that may be affected by

EPA’s alternate approach to modifying

the reporting guidance for ‘‘otherwise

use.’’

EPA requests comment on its revised

interpretation as explained by these

examples, and by the additional

examples described in the document

entitled Interpretive Guidance for

Revised Interpretation of Otherwise Use.

This document is in the public docket.

EPA requests comment on whether

the treatment for destruction,

stabilization, and disposal fit within the

statutory definition of ‘‘process.’’

Comments should be submitted to the

address listed under the ADDRESSES

section. All comments must be received

on or before August 26, 1996.

VII. Rulemaking Record

A record has been established for this

rulemaking under docket number

‘‘OPPTS–400104’’ (including comments

and data submitted electronically as

described below). A public version of

this record, including printed, paper

versions of electronic comments, which

does not include any information

claimed as confidential business

information (CBI), is available for

inspection from noon to 4 p.m., Monday

through Friday, excluding legal

holidays. The public record is located in

the TSCA Nonconfidential Information

Center, Rm. NE-B607, 401 M St., SW.,

Washington, DC 20460.

Electronic comments can be sent

directly to EPA at:

ncic@epamail.epa.gov

Electronic comments must be

submitted as an ASCII file avoiding the

use of special characters and any form

of encryption.

The official record for this

rulemaking, as well as the public

version, as described above will be kept

in paper form. Accordingly, EPA will

transfer all comments received

electronically into printed, paper form

as they are received and will place the

paper copies in the official rulemaking

record which will also include all

comments submitted directly in writing.

The official rulemaking record is the

paper record maintained at the address

in ‘‘ADDRESSES’’ at the beginning of

this document.

VIII. Public Meeting

EPA will hold two 1-day public

meetings, one in San Francisco, CA and

one in Washington, DC, to discuss the

issues presented above. The tentative

agenda for this public meeting will

include a discussion of the issues

presented in Unit VII. of this preamble.

Specific information on these public

meetings are contained in a notice of

public meeting published elsewhere in

this issue of the Federal Register.

IX. Economic Analysis

EPA has prepared an economic

analysis of the impact of this action,

which is contained in a document

entitled Economic Analysis of the

Proposed Rule to Add Certain Industries

to EPCRA Section 313 (Ref. 20). This

document is available in the public

docket for this rulemaking. The analysis

assesses the costs, benefits, and

associated impacts of the rule, including

potential effects on small business and

the environmental justice implications
Federal Register / Vol. 61, No. 125 / Thursday, June 27, 1996 / Proposed Rules 33609

of the rule. The major findings of the

analysis are briefly summarized here.

A. Market Failure

Federal regulations are used to correct

significant market failures. Markets will

fail to achieve socially efficient

outcomes when differences exist

between market values and social

values. Two of the causes of market

failure are externalities and information

asymmetries. In the case of negative

externalities, the actions of one

economic entity impose costs on parties

that are ‘‘external’’ to the market

transaction. For example, entities may

release toxic chemicals without

accounting for the consequences to

other parties, such as the surrounding

community. The market may also fail to

efficiently allocate resources in cases

where consumers lack information.

Where information is insufficient

regarding toxic releases, individuals’

choices regarding where to live and

work may not be the same as if they had

more complete information. Since firms

ordinarily have a disincentive to

provide complete information on their

releases of toxic chemicals, the market

fails to allocate society’s resources in

the most efficient manner. This

proposed rule is intended to correct the

market failure created by the lack of

information available to the public

about the releases and transfers of toxic

chemicals in their communities, and to

help address the externality created

when choices regarding toxic chemical

releases and transfers have not fully

considered external effects.

Through requiring the provision of

data on toxic chemical releases and

waste management practices, TRI

overcomes firms’ disincentive to

provide information on their toxic

chemical releases. TRI serves to inform

the public of the toxic chemical releases

in their communities. Individuals can

then make choices that better optimize

their well-being. Some choices made by

a more informed public, including

consumers, corporate lenders, and

communities, may effectively lead firms

to internalize into their business

decisions at least some of the costs to

society of their releases. In addition, by

identifying hot spots, setting priorities

and monitoring trends, TRI data can

also be used to make more informed

decisions regarding the design of more

efficient regulations and voluntary

programs, which moves society towards

an optimal allocation of resources.

If EPA were to take no action, i.e., not

add industries to TRI, the market failure

(and the associated social costs)

resulting from the lack of information

on releases and waste management

practices would continue. EPA believes

that adding the proposed industry

groups to the EPCRA section 313 list of

facilities will improve the scope of

multi-media data on releases and

transfers of toxic chemicals. This, in

turn, will provide information to

communities, empower communities to

play a meaningful role in environmental

decision-making, improve the quality of

environmental decision-making by

government officials, and provide useful

information to facilities themselves.

EPA believes that this is a sound

rationale for proposing the addition of

industry groups to the EPCRA section

313 list.

B. Existing Reporting Requirements

The Toxics Release Inventory

includes multimedia data on releases,

transfers and pollution prevention

activities for over 600 toxic chemicals.

While there are no national data bases

that are comparable to the whole of TRI,

several data sources exist that contain

media-specific data on releases and

transfers. Sources maintained by EPA

include the AIRS Facility Subsystem

(AFS) of the Aerometric Information

Retrieval System (AIRS), which tracks

air emissions from industrial plants; the

Permit Compliance System (PCS),

which tracks permit compliance and

enforcement status of facilities regulated

by the National Pollutant Discharge

Elimination System (NPDES) under the

Clean Water Act; and the Biennial

Reporting System (BRS), maintained by

the Office of Solid Waste and

Emergency Response (OSWER). Other

sources include the chemical inventory

data collected under section 312 of

EPCRA and Clean Air Act Title V

operating permits.

TRI data cannot be replicated using

these alternative sources. Even if

information from these data bases could

be combined to form an analog of the

data contained in TRI, none of these

sources provides release and transfer or

pollution prevention data that could

replace the data reported on TRI. In

addition, these other data collections

differ in the information collected, the

chemical and facility coverage, the

various thresholds and reporting

frequencies, and how the data are

reported. The definitional consistency

provided by TRI creates important

advantages over any emissions data

system that might be assembled from

non-TRI sources. These other data

sources perform the functions for which

they were designed, but they were not

intended to serve the same purposes as

TRI. For all these reasons, EPA has

concluded that while there may be some

degree of overlap between the reporting

required under EPCRA section 313 and

PPA section 6607 and that required

under other statutes, these reporting

requirements do not duplicate or

conflict with each other.

C. Regulatory Alternatives

EPA evaluated a number of options in

the course of developing this proposed

rule. The options were created by

varying the scope of the expansion (i.e.,

choosing alternative industry groups)

and modifying selected structural

elements of the program (i.e., modifying

the guidance for otherwise use,

changing the de minimis exemption for

certain industries under consideration,

etc.). This analysis was based on the

options under consideration before the

completion of the screening process

described in Unit II.C. and II.D. of this

preamble. The following alternatives

summarize the scope of EPA’s analysis.

Alternative I.A

Comprehensive industry coverage.

Includes the following industries at the

2-digit SIC code level: mining;

transportation; electric, sanitary and gas

services; and wholesale trade. Also

includes solvent recovery services.

Maintains current interpretation of

otherwise use.

Alternative I.B

Same industries as Alternative I.A,

but with revised interpretation of

otherwise use.

Alternative II.A

Limited industry coverage, with a mix

of 2-digit and 4-digit SIC codes.

Includes the following industries: metal

mining; coal mining; electric services,

electric and other services combined;

combination utilities; commercial

hazardous waste treatment; storage and

disposal facilities that are RCRA subtitle

C facilities; chemical and allied

products - wholesale; and petroleum

bulk stations and terminals - wholesale.

Also includes solvent recovery services.

Maintains current interpretation of

otherwise use.

Alternative II.B

Same industries as Alternative II.A,

but with revised interpretation of

otherwise use.

Alternative III.A:

Modified limited industry coverage. A

mix of 2-digit and 4-digit SIC codes,

with certain exemptions and

limitations. Includes the following

industries: metal mining, excluding

mining services; coal mining, excluding

mining services and extraction

activities; coal- and oil-fired electric

utilities; commercial hazardous waste

treatment, storage and disposal facilities

that are RCRA subtitle C facilities;

chemical and allied products -

wholesale; petroleum bulk stations and
33610 Federal Register / Vol. 61, No. 125 / Thursday, June 27, 1996 / Proposed Rules

terminals - wholesale; and solvent

recovery services. Maintains current

interpretation of otherwise use.

Alternative III.B

Same industries as Alternative III.A,

but with revised interpretation of

otherwise use. This is the proposed

alternative.

Alternative IV.A

Same industries as Alternative I.A,

but with limited reporting from mines.

The threshold determination for those

toxic chemicals being extracted or

mined would be required only for the

primary product distributed in

commerce.

Alternative IV.B

Same industries as Alternative I.A,

but with expanded reporting from

mines. Mining and extraction of ore

would be interpreted as manufacturing,

not processing, so that the de minimis

exemption would not apply to other

constituents in the ore.

Alternative V

Same industries as Regulatory

Alternative I.A, but with expanded

reporting from electric utilities. The de

minimis exemption would not be

applied to constituents of fuels at

electric utilities.

Table I in Unit XI of this preamble

provides a summary of the number of

facilities estimated to submit reports

under EPCRA section 313, the number

of reports they are anticipated to submit,

and the associated costs under each

regulatory alternative. Costs are lower

after the first year because facilities will

be familiar with the reporting

requirements, and many will be able to

update or modify information reported

on the previous year’s report instead of

originating data for the first time. See

Unit XI.C. of this preamble for more

information on costs for different

compliance tasks under EPCRA section

313.

In proposing this rule, EPA has sought

to balance the right of the public to

know about releases and other

generation of toxic chemicals as waste

in their neighborhoods and the benefits

provided by the expanded knowledge

with the costs which the rule will

impose on industry, including the

impact on small entities.

D. Proposed Alternative

Table II in Unit XI of this preamble

displays the results by industry for the

proposed option (which is Alternative

III.B in Unit IX.C.). EPA estimates that

a total of 6,400 facilities will submit

38,000 reports, which include both

Form Rs and Toxic Chemical Release

Inventory Certification Statements (see

59 FR 61488, November 30, 1994). Total

incremental compliance costs are also

presented in Table II by industry sector.

As shown, aggregated costs in the first

year are estimated to be $191 million; in

subsequent years they are estimated to

be $118 million per year.

EPA’s quantitative analysis does not

include the effect on facilities in SIC

codes 20 through 39 of changing the

guidance for otherwise use to include

disposal, stabilization, and treatment for

destruction. As indicated in Unit IV.D.

of this preamble, EPA does not believe

that this change in guidance will affect

the EPCRA section 313 reporting status

of a significant number of facilities in

the manufacturing sector. Facilities in

the manufacturing sector may be

affected if they receive wastes from

other facilities, manage these wastes

through treatment or disposal and do

not manufacture, process or otherwise

use the chemicals under current

definitions, or do so below the reporting

threshold. The Agency is requesting

comment on the extent to which the

revised interpretation may affect

facilities that currently report on TRI.

EPA will incur additional costs for

adding new industry groups under

EPCRA section 313. These costs include

developing policy and guidance for the

new industries, providing outreach and

training, processing the reports that are

submitted, disseminating the resulting

information and performing compliance

and enforcement audits. The total costs

to EPA are estimated to be $2.7 million

per year.

E. Associated Requirements

There are various state and federal

requirements that are triggered by other

statutes and regulations when a facility

files a report under EPCRA section 313.

The associated requirements include

state taxes and fees, state pollution

prevention planning requirements, and

special requirements for certain NPDES

storm water permits. While these

associated requirements are discussed

in the economic analysis, they are not

costs of the proposed rule, and are not

treated as such in the analysis.

Sixteen states have fees, taxes or

pollution prevention requirements

associated with the requirement to file

a Form R. EPA’s economic analysis

includes a conservative estimate that the

proposed rule could result in total

payments of $1 million to $8 million per

year in fees and taxes by affected

facilities. It is important to note that

these fees and taxes do not necessarily

equate with social costs, since payments

that do not result in the consumption of

a resource (e.g., labor) are transfer

payments and do not represent costs to

society. Insufficient information was

available to classify the fee payments as

either social costs or transfer payments.

Nor did EPA attempt to estimate the

benefits of these fees and taxes (which

are used in some states to fund technical

assistance programs and grants, and

which may also result in a more

efficient allocation of resources in and

of themselves by working as economic

incentives to reduce emissions).

Although the state fees, taxes and

pollution prevention planning

requirements are associated with

EPCRA section 313 reporting, they are

not required by this rulemaking. EPA

has not included the costs or benefits of

associated state requirements along with

the costs and benefits of the rule,

because it is inappropriate to do so.

States which have these requirements

may wish to assess the benefits and

costs of applying them to new

industries.

EPA has also established associated

requirements for some facilities

applying for certain storm water permits

under the NPDES program. These

NPDES storm water permit

requirements are based on the coverage

of EPCRA section 313 at the time the

permits were issued. The NPDES

requirements do not apply to industries

or chemicals that are added to the

EPCRA section 313 list until the time of

permit renewal (which occurs every 5

years), and may not apply in subsequent

permits, depending on the Agency’s

decisions at the time those permits are

issued.

EPA has not estimated the aggregate

costs of the associated requirements for

new facilities. It would also be

inappropriate to making a listing

determination under EPCRA section 313

on the basis of these NPDES

requirements. There will be no impact

at the current time, because there will

be no changes to the NPDES

requirements while the current permits

are in effect. Moreover, the costs and

benefits of the special requirements are

best considered when the NPDES storm

water permits are reissued, and a

decision can be made on whether they

should be applied in subsequent

permits.

F. Benefits

In enacting EPCRA and PPA, Congress

recognized the significant benefits of

providing information on toxic chemical

releases. TRI has proven to be one of the

most powerful forces in empowering the

federal government, state governments,

industry, environmental groups and the

general public to fully participate in an

informed dialogue about the

environmental impacts of toxic

chemicals in the United States. TRI’s

publicly available data base provides
Federal Register / Vol. 61, No. 125 / Thursday, June 27, 1996 / Proposed Rules 33611

quantitative information on toxic

chemical releases, transfers, recycling,

and treatment. With the collection of

this information starting in 1987 came

the ability for the public, government,

and the regulated community to

understand the magnitude of chemical

emissions in the United States, and to

assess the need to reduce these releases

and transfers. TRI enables all interested

parties to establish credible baselines, to

set realistic goals for environmental

progress over time, and to measure

progress in meeting these goals over

time. The TRI system has become a

neutral yardstick by which progress can

be measured by all stakeholders.

The proposed rule to expand the

number and type of reporting facilities

subject to TRI is intended to build upon

the past success of the program. The

information reported to TRI increases

knowledge of the levels of toxic

chemicals released to the environment

and the pathways of exposure,

improving scientific understanding of

the health and environmental risks of

toxic chemicals; allows the public to

make informed decisions on where to

work and live; enhances the ability of

corporate leaders and purchasers to

more accurately gauge a facility’s

potential environmental liabilities;

provides reporting facilities with

information on unregulated emissions

that can be used to save money as well

as reduce emissions; and assists federal,

state, and local authorities in making

better decisions on acceptable levels of

toxics in communities.

There are two types of benefits

associated with TRI reporting — direct

and follow-on. The first type of benefit

is direct, the pure value of information

on releases, transfers and other waste

management practices. It is expected

that this rulemaking will generate

benefits by providing the public with

access to information that otherwise

would not be available to them. The

direct benefits of the rule itself include

improvements in access, understanding,

awareness and decision-making related

to the provision and distribution of

information.

The second types of benefit derive

from changes in behavior that result

from the information reported to TRI.

The changes in behavior, including

reductions in the releases and changes

in the waste management practices for

toxic chemicals, yield health and

environmental benefits. These changes

in behavior come at some cost to

industry, and the net benefits of the

follow-on activities are the difference

between the benefits of decreased

chemical releases and transfers and the

costs of the actions needed to achieve

the decrease. These follow-on activities,

however, are not required by the rule.

Because the current state of

knowledge about the economics of

information is not highly developed,

EPA has not attempted to monetize the

pure information benefits of adding new

industry groups to the list of industries

required to report to TRI. Furthermore,

because of the inherent uncertainty in

the chain of events, EPA has also not

attempted to predict the changes in

behavior that result from the

information, or the resultant net benefits

(i.e., the difference between benefits and

costs). EPA does not believe that there

are adequate methodologies to make

reasonable monetary estimates of either

type of benefits.

Rather, EPA assessed the potential for

the proposed rule to generate benefits

comparable to those generated by the

currently reporting industries by

seeking data on certain characteristics of

releases and other waste management

activities, specifically air release data,

which could be compared among the

various sectors currently subject to, and

proposed for, addition to EPCRA section

313.

EPA analyzed release data collected

under authority of the Clean Air Act and

maintained in the Aerometric

Information Retrieval System (AIRS).

The analysis compared estimated air

releases of toxic chemicals from

manufacturing facilities (currently

subject to TRI reporting) to those from

facilities proposed for addition to

EPCRA section 313. While limitations in

the data set and methodology did not

permit estimates of potential TRI

releases to be developed, the analysis

clearly indicated that substantial

volumes of TRI chemical releases will

be captured by expanding the coverage

to include the additional industry

groups being proposed. EPA believes

this evidence supports its preliminary

determination that the industry groups

proposed for addition are likely to

generate useful information as part of

the TRI program. The experience of the

past seven years shows that reporting on

TRI by manufacturing facilities has

produced real gains in understanding

about exposure to toxic chemicals. EPA

believes that reporting by the industry

groups being proposed for addition will

yield similar benefits.

X. References

1. D B. Standard Industrial

Classification Manual SIC 2+2. Dun and

Bradstreet Information Services, (1988).

2. GAO/RCED. Report to Congress

Toxic Chemicals: EPA’s Toxic Release

Inventory Is Useful but Can Be

Improved, Government Accounting

Office, Washington, DC, 91-121, (1991).

3. MADEP. Data Submitted by NonManufacturing Facilities in

Massachusetts in 1993. Massachusetts

Department of Environmental

Protection, Boston, MA (1993).

4. OMB. Standard Industrial

Classification Manual 1987. Executive

Office of the President, Office of

Management and Budget, Washington,

DC, (1987).

5. SAIC. Data Analysis

Documentation - All Systems (Draft).

Science Applications International

Corporation, Falls Church, VA (1996).

6. SAIC. SIC Code Profile 10 Metal

Mining (Draft). Science Application

International Corporation, Falls Church,

VA (1996).

7. SAIC. SIC Code Profile 12 Coal

Mining (Draft). Science Application

International Corporation, Falls Church,

VA (1996).

8. SAIC. SIC Code Profile 49 Electric,

Gas and Sanitary Services (Draft).

Science Application International

Corporation, Falls Church, VA (1996).

9. SAIC. SIC Code Profile 50-51

Wholesale Trade Durable and

Nondurable Goods (Draft). Science

Application International Corporation,

Falls Church, VA (1996).

10. SAIC. SIC Code Profile 73

Business Services (Draft). Science

Application International Corporation,

Falls Church, VA (1996).

11. U.S. Congress. Congressional

Record, Senate Debate on Passage, Vol.

131 (1985).

12. U.S. Congress. Congressional

Record, Debate Prior to Passage of

House Bill, Vol. 132 (1985).

13. U.S. Congress, House of

Representatives. Conference Report No.

962. 99th Cong., 2nd Session (1986).

14. USDOC. County Business Patterns

1993: United States. Department of

Commerce, Bureau of the Census,

Washington, DC, BP-93-1 (1995).

15. USEPA/OAR. Report to Congress:

Waste from Combustion of Coal by

Electric Utilities. U.S. Environmental

Protection Agency, Washington, DC

(1988).

16. USEPA/OECA. Office of

Compliance Sector Notebook Project:

Profile of the Metal Mining Industry.

U.S. Environmental Protection Agency,

Washington, DC, 310-R-95008, (1995).

17. USEPA/OPPT. Additional

Considerations in Selecting Industries

for Addition to EPCRA Section 313. U.S.

Environmental Protection Agency,

Washington, DC (1986).

18. USEPA/OPPT. Appendix B:

Routinely Reported Information -

Chemical Detail. U.S. Environmental

Protection Agency, Washington, DC

(1996).
33612 Federal Register / Vol. 61, No. 125 / Thursday, June 27, 1996 / Proposed Rules

19. USEPA/OPPT. Development of

SIC Code Candidates: Screening

Document. U.S. Environmental

Protection Agency, Washington, DC

(1996).

20. USEPA/OPPT. Economic Analysis

of the Proposed Rule to Add Certain

Industries to EPCRA Section 313. U.S.

Environmental Protection Agency,

Washington, DC (1996).

21. USEPA/OPPT. EPCRA Section 313

Otherwise Use Activities. U.S.

Environmental Protection Agency,

Washington, DC (1986).

22. USEPA/OPPT. Toxic Chemical

Release Inventory Reporting Form R and

Instructions (Revised 1995 Version).

U.S. Environmental Protection Agency,

Washington, DC, 745-K-96-001, (1996).

23. USEPA/OSWER. Report to

Congress: Wastes from the Extraction

and Beneficiation of Metallic Ores,

Phosphate Rock, Asbestos, Overburden

from Uranium Mining, and Oil Shale.

U.S. Environmental Protection Agency,

Washington, DC (1985).

XI. Regulatory Assessment

Requirements

A. Executive Order 12866

Pursuant to Executive Order 12866

(58 FR 51735, October 4, 1993), it has

been determined that this is a

‘‘significant regulatory action’’ because

the proposed action is likely to have an

annual effect of $100 million or more.

This action was submitted to OMB for

review, and any comments or changes

made during that review have been

documented in the public record.

B. Regulatory Flexibility Act

Pursuant to the Regulatory Flexibility

Act (5 U.S.C. 601 et seq.), the Agency

must consider whether a regulatory

action will have a significant adverse

economic impact on a substantial

number of small entities. Section 605(b)

requires the Agency to either certify that

a proposed regulatory action will not

have such an impact or prepare an

initial regulatory flexibility analysis.

EPA has prepared an Initial Regulatory

Flexibility Analysis (IRFA), which is

included as part of the economic

analysis for the proposed rule (Ref. 20).

The IRFA is summarized below.

1. Methodology. In preparing the IRFA

for this proposal, EPA has defined small

business as any firm having 10 to 49

employees, instead of using the Small

Business Administration’s (SBA’s)

definition of 500 employees or less.

Under the Regulatory Flexibility Act

(RFA), agencies have been authorized to

develop and apply alternative

definitions of small business where

appropriate and after providing the

public with notice of and an

opportunity to comment on the

alternative, in consultation with the

SBA. For TRI purposes, EPA adopted

the alternative definition of 10-to-49

employees in proposing and

promulgating the original TRI reporting

rule in 1987-88 (see 52 FR 21166, 53 FR

4523 and accompanying regulatory

impact analyses).

For today’s proposal, EPA has applied

the 10-to-49 employee definition to

maintain consistency in IRFA analyses

across TRI rulemakings. Nonetheless,

the economic analysis prepared for the

proposal also includes alternative

definitions of small entities, consistent

with the definition used by the Small

Business Administration (SBA).

Economic impacts on small entities

were calculated assuming that all TRI

reports are Form Rs (and not Toxic

Chemical Release Inventory

Certification Statements), which yields a

conservative estimate of costs (i.e., it is

likely to overestimate the true impacts).

Impacts were calculated in both the first

year of reporting and in subsequent

years.

The Agency estimates that of the

6,400 facilities potentially affected by

the proposed rule, no more than 72

percent are small entities. Thus,

approximately 4,600 of the 6,400

facilities potentially affected may need

to file at least one report. However,

approximately 15,000 small entities in

the industry groups being proposed

would not have to file a report because

they are expected to have less than 10

full-time employees, and thus would be

exempt from the requirement to file a

report. The overwhelming majority of

these entities are small businesses as

defined above (10 to 49 employees). A

small number of small entities are

utilities owned by small governmental

jurisdictions. For purposes of this

analysis, EPA has considered small

entities by industry sector, including

governmentally-owned utilities together

with private utilities.

To assess the potential impacts on

these small entities of expanding the

TRI program to additional industry

groups, EPA first conducted a

preliminary screening analysis. The

screening analysis used compliance

costs as a percentage of annual company

sales to measure potential impacts. This

methodology was based on the premise

that the cost impact percentage is a good

measure of a firm’s ability to afford the

costs attributable to a regulatory change.

For purposes of screening small entity

impacts, comparing compliance costs to

revenues provides a reasonable firstorder indication of the magnitude of the

regulatory burden relative to a

commonly available measure of a

company’s business volume. Where

regulatory costs represent a very small

fraction of a typical firm’s revenue (for

example, less than 1 percent), the

financial impacts of the regulation are

expected to be minimal. EPA is

currently in the process of considering

how to define the RFA statutory terms

‘‘significant impact’’ and ‘‘substantial

number.’’ Until EPA determines how

best to define those terms, the Agency

has decided for this proposal to prepare

an initial regulatory flexibility analysis

if compliance costs for a substantial

number of small entities would be

greater than 1 percent of sales.

Detailed analyses of certain SIC codes

were conducted when the screening

analysis indicated the proposed rule

would cross the analytical thresholds

stated above for potentially affected

industry groups. The methodology for

each respective detailed analysis was

tailored to reflect the unique

characteristics of each industry group

examined.

Based on the screening analysis, and

where appropriate on more detailed

analyses, EPA identified one group for

which an initial regulatory flexibility

analysis would be justified, the

chemical wholesaling industry (SIC

code 5169 - Chemicals Allied Products).

Because there are sufficient

uncertainties regarding the impacts on

another industry, RCRA subtitle C

hazardous waste facilities in SIC code

4953, EPA is also requesting comment

on the magnitude and incidence of the

impacts on this industry and the need

for and appropriateness of adopting

regulatory alternatives like those

described for SIC code 5169. For all

other potentially affected industry

groups, EPA found the likely impact of

the proposed rule either would be

compliance costs less than 1 percent of

sales or may not affect a substantial

number of small entities, or both.

Today’s action describes the reporting

and recordkeeping requirements

associated with the proposal. The

professional skills needed to comply

with those requirements are the same as

those required to comply with current

TRI reporting requirements. Those skills

were described in the regulatory

flexibility analyses for the 1988 TRI

reporting rule and today’s proposal.

2. SIC code 5169. Because facilities in

SIC code 5169 are chemical wholesalers,

they handle large numbers of chemicals,

including toxic chemicals listed under

EPCRA section 313. Facilities in this

industry are expected to report

primarily due to mixing, blending,

reformulating and repackaging of

EPCRA section 313 chemicals. EPA
Federal Register / Vol. 61, No. 125 / Thursday, June 27, 1996 / Proposed Rules 33613

estimates that about 10 percent of

chemical wholesalers will be required to

submit reports and that reporting

facilities will file between 1 and 27

reports each. The actual number of

reports per facility will be distributed

throughout this range. Based on the

revenue data for typical facilities,

impacts above 1 percent are predicted

for facilities reporting the high number

of reports in the first year, and for small

businesses reporting the high number of

reports in subsequent years. However,

EPA believes that relatively few

businesses in this industry will file the

high number of reports. The compliance

costs associated with EPCRA section

313 reporting could have a potentially

significant impact on the smaller and

less financially solvent companies in

this industry. The majority of

companies, however, will not have to

submit the maximum number of reports,

and will face lower costs.

3. Alternatives to reduce impacts on

small businesses in SIC code 5169.

Because of the potential for significant

impacts on a substantial number of

facilities in SIC code 5169, EPA’s

economic analysis includes a number of

alternatives to reduce the impact on

small businesses in this industry. While

the Agency could have elected not to

propose the addition of SIC code 5169,

thereby avoiding any small business

impacts from this proposed rule to

facilities in that group, the Agency has

chosen to include the industry group in

the proposal. EPA believes that

reporting from this industry group will

result in a significant amount of new

toxic chemical release information to

the public, particularly to communities

in which these facilities are located.

Moreover, the activities of this industry-

-handling chemicals--and its

involvement with TRI chemicals are

very similar to those of the

manufacturing universe already subject

to TRI reporting.

The alternatives EPA analyzed to

reduce the impact on small businesses

are described below.

Alternative 1. Expand eligibility for

the alternate threshold (59 FR 61488,

November 30, 1994) for facilities in SIC

code 5169 by increasing the annual

reportable amount from 500 pounds and

raising the alternate manufacture,

process and otherwise use threshold

from 1 million pounds. Some small

facilities in SIC 5169 with large

numbers of reports may still incur

significant impacts to determine their

eligibility for the alternate threshold.

EPCRA section 313(f)(2) requires that

any revision to the current reporting

thresholds continue to capture a

substantial majority of total releases of

each listed chemical or chemical

category. Because these facilities have

not reported under TRI in the past, the

Agency may not have sufficient

information about releases (both types

of chemicals and release levels) with

which to justify expanding the alternate

threshold eligibility for this industry

group. In addition, because of the type

of information submitted on the Toxic

Chemical Release Certification

Statement, the resulting data would be

of more limited utility than the data that

would otherwise be reported on Form R.

Alternative 2. Allow facilities in SIC

code 5169 an additional year before they

must begin reporting. EPA would use

this time to perform intensive outreach,

training and technical assistance to

industry. This alternative would result

in the loss of 1 year’s worth of data, in

return for a relatively modest reduction

in reporting burden.

Alternative 3. Require facilities in SIC

code 5169 to report only on air releases

and off-site transfers. State data indicate

that these two routes account for nearly

all of the releases and transfers from

facilities in SIC code 5169. Adopting

this option would mean forfeiting some

information that is reported pursuant to

EPCRA section 313 and all additional

information reported pursuant to the

PPA section 6607. This option,

therefore, appears to be inconsistent

with the existing authorities and

requirements under EPCRA section 313

and PPA section 6607. Further, to the

extent that facilities in this industry

actually report only air releases and offsite transfers under the current

requirements, EPA has overestimated

both compliance costs and small

business impacts in the standard

analysis.

Alternative 4. Expand the range

reporting option for facilities in SIC

code 5169 beyond the current 1,000

pound limit to a higher level such as

2,000, 5,000 or 10,000 pounds.

Adopting this alternative would reduce

the precision of the data in return for a

relatively modest reduction in reporting

burden.

Alternative 5. Require facilities in SIC

code 5169 to report on their throughput

for each chemical and on the types of

processes and equipment being used.

EPA would then combine this

information with emission factors to

develop release and transfer estimates.

This alternative would reduce the

reporting burden, because facilities in

this industry are presumed to track their

throughput and could readily identify

the activities and types of equipment

used. However, the resulting release

data would be of reduced utility to the

public, because they would be based on

average emission factors and would not

be specific to an individual facility.

Finally, this option appears to be

inconsistent with the existing

authorities and requirements under

EPCRA section 313 and PPA section

6607.

Alternative 6. Exempt small

businesses in SIC 5169 from reporting.

The overwhelming majority of

businesses in this industry are small;

however, it is anticipated that a

significant portion of reported releases

would be from small businesses.

Adopting this option could lead to

substantial gaps in information,

especially at the community level.

Furthermore, only those small firms

submitting a large number of reports

may face significant impacts. By

contrast, this alternative would

substantially reduce the amount of

information available without targeting

the relief to those particular facilities

facing high impacts (i.e., those

submitting a large number of reports).

EPA is seeking comment on the

alternatives to reduce impacts on small

facilities in SIC code 5169. EPA requests

comment on whether any of the

alternatives would accomplish the

stated objective of EPCRA section 313

while minimizing a potential economic

impact on small entities.

4. RCRA Subtitle C Facilities in SIC

Code 4953. The screening analysis

indicated that TRI reporting by facilities

in SIC code 4953 may impose a

compliance costs of more than one

percent of sales on some small facilities

in this SIC code if EPA revises the

guidance on otherwise use to include

disposal, stabilization, and treatment for

destruction. EPA is not highly confident

of the accuracy of the estimated number

of reports per facility if the guidance on

otherwise use is revised, and believes

that the current figure is an overestimate. Consequently, the actual

number of reports submitted by

facilities in SIC code 4953 and the costs

to prepare and submit them may be

considerably lower than estimated by

the screening analysis. Furthermore,

relatively few of the facilities in this

industry group are small businesses

according to the definition EPA has

used to develop this analysis (i.e., less

than 50 employees). Recognizing this

uncertainty, EPA is particularly

interested in comments and data related

to these issues. EPA will consider

alternatives, similar to those considered

for SIC code 5169, if there is sufficient

reason to believe that requiring RCRA

subtitle C facilities to report on TRI

would impose a significant burden on a

substantial number of small entities.

EPA seeks comment on this issue.
33614 Federal Register / Vol. 61, No. 125 / Thursday, June 27, 1996 / Proposed Rules

5. Conclusions. EPA has determined

that this regulatory action may impose

an adverse impact on small entities in

SIC code 5169 (Chemicals and Allied

Products Wholesale). EPA currently has

insufficient information to determine

the impact on affected RCRA subtitle C

facilities in SIC code 4953 that are small

entities. This action would not be

expected to have a significant impact on

a substantial number of small entities in

the remainder of the industries being

proposed. Information relating to this

determination has been provided to the

Chief Counsel for Advocacy of the Small

Business Administration, and is

included in the docket for this

rulemaking. Any comments regarding

the economic impacts that this proposed

regulatory action may impose on small

entities should be submitted to the

Agency at the address listed above.

C. Paperwork Reduction Act

The information collection

requirements in this proposed rule, as

well as Form R have been submitted for

approval to the Office of Management

and Budget (OMB) under the Paper

Work Reduction Act, 44 U.S.C. 3501 et

seq. An Information Collection Request

(ICR) document that covers the burden

associated with today’s proposal has

been prepared by EPA (ICR No. 1784.01)

and a copy may be obtained from Sandy

Farmer, OPPE Regulatory Information

Division; U.S. Environmental Protection

Agency (2136); 401 M St., S.W.;

Washington, DC 20460, by calling (202)

260-2740, or electronically by sending

an e-mail message to

‘‘farmer.sandy@epamail.epa.gov.’’ If

necessary, EPA may be augmenting the

docket with additional information.

This information would be collected

from industrial facilities in local

communities in order to provide basic

information to those communities and

the general public, as well as the

regulated community and all levels of

government, on releases and other waste

management practices involving listed

toxic chemicals. Collection of this data

would further EPA’s goal of enhancing

community right-to-know. Provision of

this information would be mandatory,

pursuant to EPCRA section 313 (42

U.S.C. 11023) and PPA section 6607 (42

U.S.C. 13106). Regulations codifying the

EPCRA section 313 reporting

requirements can be found at 40 CFR

part 372. Respondents may designate

the specific chemical identity of a

substance as a trade secret, pursuant to

EPCRA section 322 (42 U.S.C. 11042).

Regulations codifying the trade secret

provisions can be found at 40 CFR part

350. Currently, approximately 23,000

facilities report on TRI.

EPA’s economic analysis includes

burden and cost estimates for specific

compliance tasks under EPCRA section

313 (Ref. 20). Such tasks include rule

familiarization, completion of Form Rs

and Toxic Chemical Release Inventory

Certification Statements and

recordkeeping. Total burden and cost

can be calculated by combining these

estimates with the number of affected

facilities and reports predicted. The five

component tasks are described below.

The ICR submitted to OMB provides

burden and cost estimates for those

facilities proposed for addition in

today’s proposed rule.

1. Compliance determination.

Facilities must determine whether they

meet the criteria for section 313

reporting. Costs attributed to making

this determination result from time

required to become familiar with the

definitions, exemptions, and threshold

requirements under the TRI program, to

review the list of EPCRA section 313

chemicals, and to conduct preliminary

threshold determinations in order to

determine if the facility would be

required to report. These costs are also

applied to facilities that would not be

required to report, but that would incur

some cost to ascertain that fact. Thus,

the number of facilities undertaking

compliance determination activities

exceeds the number of reporting

facilities.

2. Rule familiarization. Facilities that

would be reporting under section 313

for the first time must read the reporting

package and become familiar with the

reporting requirements. This would

involve reading the instructions to the

Toxic Chemical Release Inventory

Reporting Form R, and may also involve

other activities such as consulting EPA

guidance documents. Costs for rule

familiarization would only be incurred

in the first year after a facility becomes

subject to reporting, since in subsequent

years the staff would be familiar with

the requirements that apply to their

facility.

3. Calculations and report

completion. Facilities that determine

they must report under section 313

would incur costs to retrieve, process,

review, and transcribe information to

complete Form R. Facilities qualifying

for the alternate reporting threshold may

file a Toxic Chemical Release Inventory

Certification Statement, a streamlined

form containing limited informational

requirements, which is estimated to

require less burden and cost to complete

than Form R. Report completion costs

would be somewhat higher in the first

year of reporting, relative to subsequent

years. In many instances the process in

subsequent years would consist of

updating data and modifying the

information reported on the previous

year’s report, rather than originating or

retrieving data for the first time.

4. Recordkeeping. Following

completion of the appropriate report,

additional labor costs are incurred for

record keeping, which would allow a

facility to use past information in

making calculations in subsequent

years.

Table III lists the estimated average

burden and cost for each of the tasks in

the first year of reporting. Table IV

describes the average burden and costs

in subsequent years. Economies of scale

for facilities filing multiple reports have

not been estimated. The time estimates

used by EPA are average values. As with

any average, some facilities will be

above the average and others will be

below it. EPA recognizes that large,

complex facilities may require more

than the average time to comply.

However, there are many other facilities

subject to the rule that are not large or

complex. These facilities will often have

a simpler compliance process. EPA

believes that its time estimates represent

reasonable averages.

For Form R, the industry reporting

burden for collecting this information

(including recordkeeping) is estimated

to average 74 hours per report in the

first year, at a cost of $4,587. In

subsequent years, the burden is

estimated to average 52.1 hours per

report at a cost of $3,023. For a Toxic

Chemical Release Inventory

Certification Statement, the burden is

estimated to average 49.4 hours per

report in the first year at a cost of

$3,101. In subsequent years, the burden

is estimated to average 34.6 hours per

report at a cost of $2,160.

These estimates include the time

needed to review instruction; search

existing data sources; gather and

maintain the data needed; complete and

review the collection of information;

and transmit or otherwise disclose the

information. The actual burden to a

specific facility may deviate from this

estimate depending on the complexity

of the facilitys operations and the

profile of the releases at the facility.

The proposed rule would result in an

estimated 6,428 additional respondents

submitting an estimated total of an

additional 33,463 Form Rs and 4,251

Toxic Chemical Release Inventory

Certification Statements. This results in

a total hour burden of 3.1 million hours

in the first year and 1.9 million hours

in subsequent years, at a total cost of

$191 million in the first year and $119

million in subsequent years.

Burden means the total time, effort, or

financial resources expended by persons
Federal Register / Vol. 61, No. 125 / Thursday, June 27, 1996 / Proposed Rules 33615

to generate, maintain, retain, or disclose

or provide information to or for a

Federal agency. This includes the time

needed to review instructions; develop,

acquire, install, and utilize technology

and systems for the purposes of

collecting, validating, and verifying

information, processing and

maintaining information, and disclosing

and providing information; adjust the

existing ways to comply with any

previously applicable instructions and

requirements; train personnel to be able

to respond to a collection of

information; search data sources;

complete and review the collection of

information; and transmit or otherwise

disclose the information.

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 for EPA’s regulations are listed

in 40 CFR part 9 and 48 CFR chapter 15.

Comments are requested on the

Agency’s need for this information, the

accuracy of the provided burden

estimates, and any suggested methods

for minimizing respondent burden,

including through the use of automated

collection techniques. Send comments

on the ICR to the EPA at the address

provided above, with a copy to the

Office of Information and Regulatory

Affairs, Office of Management and

Budget, 725 17th St., N.W., Washington,

DC 20503, marked ‘‘Attention: Desk

Officer for EPA.’’ Please remember to

include the ICR number in any

correspondence.

The collection of information and

other requirements under section 313 of

EPCRA and section 6607 of the PPA on

the Form R are covered under OMB

approval number 2070-0093, which was

issued on May 14, 1992. Although this

approval normally would have expired

on November 30, 1992, it remains in

effect until further Agency action

pursuant to the 1993 Department of

Veterans Affairs and Housing and Urban

Development and Independent Agencies

Appropriations Act, Pub. L. 102-389,

signed October 6, 1992, which states

that:

Notwithstanding the Paperwork Reduction

Act of 1980 or any requirements thereunder

the Environmental Protection Agency Toxic

Chemical Release Inventory TRI Form R and

instructions, revised 1991 version issued

May 19, 1992, and related requirements

(OMB No. 2070-0093), shall be effective for

reporting under section 6607 of the Pollution

Prevention Act of 1990 (Public Law 101-508)

and section 313 of the Superfund

Amendments and Reauthorization Act of

1990 (Public Law 99-499) until such time as

revisions are promulgated pursuant to law.

Facilities subject to this proposed rule

also would be eligible to submit a

certification statement under the Toxic

Release Inventory Certification

Statement. The Office of Management

and Budget (OMB) has approved the

information collection requirements for

the Toxic Release Inventory

Certification Statement under the

provisions of the Paperwork Reduction

Act, 44 U.S.C. 3501 et seq. and has

assigned OMB control number 2070-

0143 (EPA ICR No. 1704).

These ICR approvals for currently

reporting facilities remains in effect

until further Agency action.

D. Unfunded Mandates Reform Act and

Executive Order 12875 Unfunded

Mandates Reform Act

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), Pub. L.

104-4, establishes requirements for

Federal agencies to assess the effects of

their regulatory actions on state, local,

and tribal governments and the private

sector. Under section 202 of UMRA,

EPA must generally prepare a written

statement, including a cost-benefit

analysis for proposed and final rules

with ‘‘Federal mandates’’ that may

result in expenditures by state, local,

and tribal governments, in the aggregate,

or by the private sector, of $100 million

or more in any 1 year. Before

promulgating an EPA rule for which a

written statement is needed, section 205

of UMRA generally requires EPA to

identify and consider a reasonable

number of regulatory alternatives and

adopt the least costly, most costeffective, or least burdensome

alternatives that achieves the objectives

of the rule. The provisions of section

205 do not apply when they are

inconsistent with applicable law.

Moreover, section 205 allows EPA to

adopt an alternative other than the least

costly, most cost-effective, or least

burdensome alternative if the

Administrator publishes with the final

rule an explanation of why the

alternative was not adopted. Before EPA

establishes any regulatory requirements

that significantly or uniquely affect

small governments, including tribal

governments, it must have developed

under section 203 of UMRA, a small

government agency plan. The plan must

provide for notifying potentially

affected small governments, enabling

officials of affected small governments

to have meaningful and timely input

into the development of the regulatory

proposals with significant Federal

intergovernmental mandates, and

informing, educating, and advising

small governments on compliance with

the regulatory requirements.

EPA has determined that this

proposed rule is likely to contain a

Federal mandate that may result in

expenditures of $100 million or more

for the private sector in any 1 year. EPA

has prepared, under section 202 of the

UMRA, a written statement, entitled

‘‘Unfunded Mandates Reform Act

Statement on Federal Mandate Imposed

by the Expansion of the Toxic Release

Inventory to Include Certain NonManufacturing Industries.’’ This

document is available in the docket for

this rulemaking.

EPA is proposing this rule under

sections 313 and 328 of EPCRA. EPA

estimates that private expenditures will

exceed the threshold of $100 million in

all years and that public expenditures

will fall well below the threshold for all

years. EPA prepared an economic

impact analysis of the proposal, entitled

Economic Analysis of the Proposed Rule

to Add Certain Industries to EPCRA

Section 313, in which it considered

several regulatory alternatives (Ref. 20).

EPA estimates that the costs of the

proposed rule will be $190 million in

the first year and $118 million in

subsequent years. Of this, only $8

million in the first year and $5 million

in subsequent years is expected to

consist of costs to state, local, or tribal

governments. These cost estimates are

based on the anticipated reporting from

publicly-owned electric utilities that are

coal- or oil-fired.

EPA estimates that the proposed

regulation is highly unlikely to have any

measurable effect on the national

economy, nor is it expected to have

disproportionate budgetary effects on a

particular segment of the private sector.

EPA has not identified any sources that

are available from either EPA or other

Federal Agencies to pay for State, local,

or tribal government costs, nor has it

identified any EPA or Federal resources

specifically intended to carry out the

intergovernmental mandate.

Section 203 of UMRA provides that

before establishing any regulatory

requirements that might significantly or

uniquely affect small governments, the

agency shall develop a small

government agency plan. Because costs

to the public sector are estimated to be

considerably below $100 million in any

year, EPA finds no significant impacts

on small governments; nor is the

proposed rule expected to uniquely

affect them.

Because this proposed rule does not

contain a significant Federal

intergovernmental mandate, the UMRA

section 204 requirements are not

triggered. The Agency, however, has

sought interaction with state and local

officials of the type contemplated by
33616 Federal Register / Vol. 61, No. 125 / Thursday, June 27, 1996 / Proposed Rules

section 204 of UMRA and Executive

Order 12875, ‘‘Enhancing the

Intergovernmental Partnership.’’ EPA

has conducted outreach to organizations

representing these entities, and will

continue a constructive dialogue to

ensure that pertinent issues are

addressed.

E. Executive Order 12898

Pursuant to Executive Order 12898

(59 FR 7629, February 11, 1994),

entitled Federal Actions to Address

Environmental Justice in Minority

Populations and Low-Income

Populations, the Agency has considered

environmental justice-related issues

with regard to the potential impacts of

this proposed action on the

environmental and health conditions in

low-income populations and minority

populations.

In keeping with Executive Order

12898, as part of its analysis in support

of this proposed expansion of the TRI

program to include new industry

groups, EPA has examined the

distribution patterns of public

information on toxic chemical releases

and transfers (which may have

substantial environmental impacts on

surrounding communities). The Agency

believes that the Environmental Justice

Analysis described below is an

important part of its overall

environmental justice strategy, and is in

keeping with the spirit of the Executive

Order. The Agency interprets its

responsibilities under the Order as they

would apply to this rulemaking activity

to include exploring the distribution of

information benefits, in demographic

terms, of the expansion.

To assess the implications of the

rulemaking on environmental justice,

the Agency examined demographic

characteristics for populations residing

in jurisdictions (counties or zip codes)

where facilities in the proposed

industries are located. The analysis is

included as part of the economic

analysis for the proposal (Ref. 20). The

analysis found that households with

annual incomes less than $15,000 and

minority and urban populations are

slightly over-represented in

communities containing facilities in the

proposed industry groups. The TRI

expansion would also result in persons

in a large number of communities

receiving TRI information about

facilities in their vicinity for the first

time. By adding the proposed industry

groups, EPA will be creating

informational benefits for certain

subpopulations that previously did not

receive TRI information on releases and

transfers of toxic chemicals in their

communities.

Table 1.—Summary of Regulatory Alternatives

Regulatory Alternative

Annual Industry Costs ($ million per year)

Number of Reporting FacilitiesNumber of Reports First Year Subsequent Year

I.A Comprehensive industries, current otherwise use interpretation ..................................................................................... 49,174 110,217 793 349

I.B Comprehensive industries, revised otherwise use interpretation ..................................................................................... 52,378 249,063 1,437 794

II.A Limited industries, current otherwise use interpretation .... 8,354 37,077 176 116

II.B Limited industries, revised otherwise use interpretation ... 8,385 43,637 206 137

III.A Proposed industries, current otherwise use interpretation 6,397 31,154 149 98

III.B Proposed industries, revised otherwise use interpretation 6,428 37,714 191 119

IV.A Comprehensive industries, current otherwise use interpretation, limited mining reporting ........................................ 49,127 109,695 791 347

IV.B Comprehensive industries, current otherwise use interpretation, expanded mining reporting ................................... 50,602 120,905 846 383

V. Comprehensive industries, current otherwise use interpretation, expanded electric utility reporting .............................. 49,174 116,833 821 368

Table 2.—Summary of Reporting for Proposed Industries

Industry Number of Facilities in Industry

Number of Reporting Facilities

Percent of Facilities in Industry

Reporting

Annual Number of

Reports

Industry Costs ($ million per year)

First Year Subsequent Years

Metal Mining .......... 1,060 328 31% 1,176 6.5 3.8

Coal Mining ........... 3,312 321 10% 642 5.4 2.5

Electric Utilities ...... 3,213 974 30% 5,567 26.6 16.6

Hazardous Waste

Treatment Disposal Facilities ... 164 164 100% 6,711 31.2 21.5

Chemicals & Allied

Products Wholesale .................... 9,014 782 9% 11,139 51.5 33.5

Petroleum Bulk

Stations & Terminals Wholesale 10,292 3,842 37% 12,394 69.3 40.7

Solvent Recovery

Services ............. 40 17 43% 85 0.4 0.3

Total ...................... 28,021 6,428 23% 37,714 191.1 118.8
Federal Register / Vol. 61, No. 125 / Thursday, June 27, 1996 / Proposed Rules 33617

Table 3.—First Year Burden and Cost

Activity

Average Time (hours)

Average Cost

Managerial Technical Clerical

Rule Familiarization ............................ 12.0 22.5 0.0 $2,243 per facility

Compliance Determination ................. 4.0 12.0 0.0 $1,010 per facility

Form R Calculations and Completion 20.9 45.2 2.9 $4,330 per report

Certification Calculations and Completion.16.5 27.7 2.2 $2,947 per report

Recordkeeping (Form R) .................... 0.0 4.0 1.0 $257 per report

Recordkeeping (Certification) ............. 0.0 2.4 0.6 $154 per report
33618 Federal Register / Vol. 61, No. 125 / Thursday, June 27, 1996 / Proposed Rules

Table 4.—Subsequent Year Burden and Costs

Activity

Average Time (hours)

Average Cost

Managerial Technical Clerical

Compliance Determination ............... 1.0 3.0 0.0 $252 per facility

Form R Calculations and Completion ................................................ 14.3 30.8 2.0 $2,946 per report

Certification Calculations and Completion ............................................ 11.2 18.9 1.5 $2,006 per report

Recordkeeping (Form R) .................. 0.0 4.0 1.0 $257 per report

Recordkeeping (Certification) ........... 0.0 2.4 0.6 $154 per report

List of Subjects in 40 CFR Part 372

Environmental protection,

Community right-to-know, Reporting

and recordkeeping requirements, Toxic

Chemicals.

Dated: June 21, 1996.

Carol M. Browner,

Administrator.

Therefore, it is proposed that 40 CFR

part 372 be amended to read as follows:

PART 372—[AMENDED]

1. The authority citation for part 372

would continue to read as follows:

Authority: 42 U.S.C. 11013 and

11028.

2. In § 372.3, by alphabetically adding

the following definitions to read as

follows:

§ 372.3 Definitions.

* * * * *

Extraction means the physical

removal or exposure of ore, coal,

minerals, waste rock, or overburden

prior to beneficiation, and encompasses

all extraction-related activities prior to

beneficiation. Extraction does not

include beneficiation, coal preparation,

mineral processing, in situ leaching or

any further activities.

* * * * *

Treatment for destruction means the

destruction of the toxic chemical such

that the substance is no longer a toxic

chemical subject to reporting under

EPCRA section 313.

3. In § 372.22, by revising paragraph

(b) to read as follows:

§ 372.22 Covered facilities for toxic

chemical release reporting.

* * * * *

(a) * * *

(b) The facility is in Standard

Industrial Classification major group

codes 10 (except 1081), 12 (except

1241), and 20 through 39 and industry

codes 4911 (limited to facilities that

combust coal and/or oil), 4931 (limited

to facilities that combust coal and/or

oil), 4939 (limited to facilities that

combust coal and/or oil), 4953 (limited

to facilities regulated under the

Resource Conservation and Recovery

Act, subtitle C, 42 U.S.C. section 6921

et seq.), 5169, 5171, and 7389 (limited

to facilities primarily engaged in

solvents recovery services on a contract

fee basis) (as in effect on January 1,

1987) by virtue of the fact that it meets

one of the following criteria:

(1) The facility is an establishment

with primary SIC major group codes 10

(except 1081), 12 (except 1241), and 20

through 39 and industry codes 4911

(limited to facilities that combust coal

and/or oil), 4931 (limited to facilities

that combust coal and/or oil), 4939

(limited to facilities that combust coal

and/or oil), 4953 (limited to facilities

regulated under the Resource

Conservation and Recovery Act, subtitle

C, 42 U.S.C. section 6921 et seq.), 5169,

5171, and 7389 (limited to facilities

primarily engaged in solvents recovery

services on a contract fee basis).

(2) The facility is a multiestablishment complex where all

establishments have major codes 10

(except 1081), 12 (except 1241), and 20

through 39 and industry codes 4911

(limited to facilities that combust coal

and/or oil), 4931 (limited to facilities

that combust coal and/or oil), 4939

(limited to facilities that combust coal

and/or oil), 4953 (limited to facilities

regulated under the Resource

Conservation and Recovery Act, subtitle

C, 42 U.S.C. section 6921 et seq.), 5169,

5171, and 7389 (limited to facilities

primarily engaged in solvent recovery

services on a contract fee basis).

(3) The facility is a multiestablishment complex in which one of

the following is true:

(i) The sum of the value of products

shipped and/or produced from those

establishments that have a primary

major code 10 (except 1081), 12 (except

1241), and 20 through 39 and industry

codes 4911 (limited to facilities that

combust coal and/or oil), 4931 (limited

to facilities that combust coal and/or

oil), 4939 (limited to facilities that

combust coal and/or oil), 4953 (limited

to facilities regulated under the

Resource Conservation and Recovery

Act, subtitle C, 42 U.S.C. section 6921

et seq.), 5169, 5171, and 7389 (limited

to facilities primarily engaged in solvent

recovery services on a contract fee basis)

is greater than 50 percent of the total

value of all products shipped and/or

produced from all establishments at the

facility.

(ii) One establishment having primary

major codes 10 (except 1081), 12 (except

1241), and 20 through 39 and industry

codes 4911 (limited to facilities that

combust coal and/or oil), 4931 (limited

to facilities that combust coal and/or

oil), 4939 (limited to facilities that

combust coal and/or oil), 4953 (limited

to facilities regulated under the

Resource Conservation and Recovery

Act, subtitle C, 42 U.S.C. section 6921

et seq.), 5169, 5171, and 7389 (limited

to facilities primarily engaged in solvent

recovery services on a contract fee basis)

contributes more in terms of value of

products shipped and/or produced than

any other establishment within the

facility.

* * * * *

4. In § 372.38, by adding paragraph (g)

to read as follows:

§ 372.38 Exemptions

* * * * *

(g) Coal extraction activities. If a toxic

chemical is manufactured, processed, or

otherwise used in extraction in SIC code

12, a person is not required to consider

the quantity so manufactured,

processed, or otherwise used when

determining whether an applicable

threshold has been met under § 372.25

or 372.27, or determining the amounts

to be reported under § 372.30.

[FR Doc. 96–16392 Filed 6–26–96; 8:45 am]

BILLING CODE 6560–50–F