[Federal Register Volume 61, Number 125 (Thursday, June 27, 1996)]
[Proposed Rules]
[Pages 33588-33618]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16392]



[[Page 33587]]


_______________________________________________________________________

Part II





Environmental Protection Agency





_______________________________________________________________________



40 CFR Part 372



Addition of Facilities in Certain Industry Sectors; Toxic Chemical 
Release Reporting; Community Right-to-Know; Proposed Rule



Emergency Planning and Community Right-to-Know; Notice of Public 
Meeting; Notice

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

[[Page 33588]]



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 Right-to-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: <a href="/cdn-cgi/l/email-protection#b4dbc4c4c09adad7ddd7f4d1c4d5d9d5ddd89ad1c4d59ad3dbc2"><span class="__cf_email__" data-cfemail="a0cfd0d0d48ecec3c9c3e0c5d0c1cdc1c9cc8ec5d0c18ec7cfd6">[email protected]</span></a>. 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: 
<a href="/cdn-cgi/l/email-protection#3e5d4c5f4958514c5a104a57537e5b4e5f535f5752105b4e5f10595148"><span class="__cf_email__" data-cfemail="ee8d9c8f9988819c8ac09a8783ae8b9e8f838f8782c08b9e8fc0898198">[email protected]</span></a> or Brian Symmes at 202-260-9121, e-mail: 
<a href="/cdn-cgi/l/email-protection#ff8c8692929a8cd19d8d969e91bf9a8f9e929e9693d19a8f9ed1989089"><span class="__cf_email__" data-cfemail="3a494357575f49145848535b547a5f4a5b575b5356145f4a5b145d554c">[email protected]</span></a> 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:

                                                                        
------------------------------------------------------------------------
                                               Examples of regulated    
                 Category                             entities          
------------------------------------------------------------------------
Industry; facilities that manufacture,     Metal mining, Coal mining,   
 process, or otherwise use certain          Electric utilities,         
 chemicals.                                 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.

[[Page 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 ``after-the-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, facility-specific 
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 non-manufacturing 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

[[Page 33590]]

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 
regularly-held 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.

[[Page 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-to-know, 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-to-know. 
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

[[Page 33592]]

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

[[Page 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 broad-based 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

[[Page 33594]]

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

[[Page 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.

[[Page 33596]]

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 facility-operated 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

[[Page 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

[[Page 33598]]

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-the-evidence 
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.

[[Page 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

[[Page 33600]]

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

[[Page 33601]]

section 313 listed toxic chemicals. While EPA recognizes that non coal/
oil-fired 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

[[Page 33602]]

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 extraction-only 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 on-site would also be required to perform compliance 
determinations and report on releases and other waste management 
activities. This exemption

[[Page 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,

[[Page 33604]]

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

[[Page 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).

[[Page 33606]]

    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 constituent-specific 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

[[Page 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.

[[Page 33608]]

    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:
    <a href="/cdn-cgi/l/email-protection#731d101a10331603121e121a1f5d1603125d141c05"><span class="__cf_email__" data-cfemail="5d333e343e1d382d3c303c343173382d3c733a322b">[email protected]</span></a>


    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

[[Page 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

[[Page 33610]]

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

[[Page 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 Non-Manufacturing 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).

[[Page 33612]]

    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 first-order 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

[[Page 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 off-site 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 over-
estimate. 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.

[[Page 33614]]

    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 <a href="/cdn-cgi/l/email-protection#c0a0a0a6a1b2ada5b2eeb3a1aea4b980a5b0a1ada1a9aceea5b0a1eea7afb6">``<span class="__cf_email__" data-cfemail="117770637c74633f62707f7568517461707c70787d3f7461703f767e67">[email protected]</span></a>.'' 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

[[Page 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 cost-effective, 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 Non-Manufacturing 
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

[[Page 33616]]

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                                  
----------------------------------------------------------------------------------------------------------------
                                                     Annual                  Industry Costs ($ million per year)
                                     ---------------------------------------------------------------------------
       Regulatory Alternative             Number of                                                             
                                          Reporting      Number of Reports      First Year      Subsequent Year 
                                          Facilities                                                            
----------------------------------------------------------------------------------------------------------------
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                                                 
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                  Percent of                         Industry Costs ($ million per year)
                                            Number of          Number of        Facilities in     Annual Number of -------------------------------------
               Industry                   Facilities in        Reporting           Industry           Reports                                           
                                             Industry          Facilities         Reporting                             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
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 33617]]



                                                          Table 3.--First Year Burden and Cost                                                          
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                         Average Time (hours)                                                           
                  Activity                   ---------------------------------------------------------------------------           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                
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 33618]]



                                                       Table 4.--Subsequent Year Burden and Costs                                                       
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                 Average Time (hours)                                                   
                      Activity                       ---------------------------------------------------------------------------       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 Sec. 372.3, by alphabetically adding the following 
definitions to read as follows:


Sec. 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 Sec. 372.22, by revising paragraph (b) to read as follows:


Sec. 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 multi-establishment 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 multi-establishment 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 Sec. 372.38, by adding paragraph (g) to read as follows:


Sec. 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 Sec. 372.25 or 372.27, or determining the 
amounts to be reported under Sec. 372.30.
[FR Doc. 96-16392 Filed 6-26-96; 8:45 am]
BILLING CODE 6560-50-F


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