Emergency Planning and Community Right-to-Know Programs;
Amendments to Hazardous Chemical Reporting Thresholds for Gasoline and
Diesel Fuel at Retail Gas Stations
[Federal Register: February 11, 1999 (Volume 64, Number 28)]
[Rules and Regulations]
[Page 7031-7047]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11fe99-22]
[[Page 7031]]
_______________________________________________________________________
Part IV
Environmental Protection Agency
_______________________________________________________________________
40 CFR Parts 9 and 370
Emergency Planning and Community Right-to-Know Programs; Amendments to
Hazardous Chemical Reporting Thresholds for Gasoline and Diesel Fuel at
Retail Gas Stations; Final Rule
[[Page 7032]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 9 and 370
[FRL-6300-5]
RIN 2050-AE58
Emergency Planning and Community Right-to-Know Programs;
Amendments to Hazardous Chemical Reporting Thresholds for Gasoline and
Diesel Fuel at Retail Gas Stations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In today's final rule, EPA is raising the thresholds that
trigger Material Safety Data Sheet (MSDS) reporting and annual chemical
inventory reporting under sections 311 and 312 of the Emergency
Planning and Community Right-To-Know Act of 1986 (EPCRA), for gasoline
and diesel fuel stored entirely underground at retail gas stations that
comply with requirements for underground storage tanks (USTs). Today's
final rule promulgates new threshold levels of 75,000 gallons for
gasoline and 100,000 gallons for diesel fuel. These new thresholds will
relieve most retail gas stations from reporting gasoline and diesel
fuel under EPCRA. The change is intended to reduce reporting burdens
while preserving the important public health and safety benefits of the
hazardous chemical reporting requirements.
EFFECTIVE DATE: February 11, 1999.
ADDRESSES: Copies of materials relevant to this rulemaking are
contained in the CERCLA Docket Office--Docket Number 300RR-IF1, 1235
Jefferson Davis Highway, Crystal Gateway #1, First Floor, Arlington, VA
22202. The docket, which contains the administrative record for 40 CFR
part 370, is available for inspection between the hours of 9 a.m. and 4
p.m., Monday through Friday, excluding Federal holidays. You can make
an appointment to review the docket by calling 703/603-9232. You may
copy a maximum of 266 pages from any regulatory docket at no cost. If
the number of pages copied exceeds 266, however, you will be charged an
administrative fee of $25 and a charge of $0.15 per page for each page
after 266. The docket will mail copies of materials to you if you are
outside of the Washington, DC metropolitan area.
FOR FURTHER INFORMATION CONTACT: The RCRA/UST, Superfund, and EPCRA
Hotline (the Hotline) at 800/424-9346 (in the Washington, DC
metropolitan area, contact 703/412-9810). The Telecommunications Device
for the Deaf (TDD) Hotline number is 800/535-7672 (in the Washington,
DC metropolitan area, 703/412-3323). Also contact John Ferris or Meg
Victor, Chemical Emergency Preparedness and Prevention Office (CEPPO),
MC 5104, U.S. EPA, 401 M Street SW, Washington, DC 20460, 202/260-4043
or 202/260-1379, respectively. You may wish to visit the CEPPO Internet
site at www.epa.gov/ceppo.
SUPPLEMENTARY INFORMATION: The contents of the SUPPLEMENTARY
INFORMATION section of today's preamble are:
I. Entities Affected by This Rule
II. Introduction
A. Statutory Authority for This Rulemaking
B. Background of this Rulemaking
III. Discussion of the Final Rule
A. General Discussion
B. Changes to the Proposal
IV. Discussion of Public Comments Received on the Proposal
A. Access to Right-to-Know Information on Retail Gas Stations
B. Knowledge of Locations and Hazards at Retail Gas Stations
C. Need for Information on Gas Stations for Emergency Planning
and Response
D. Relationship of This Rule to the Underground Storage Tank
Program
E. Effect of This Rule on the Funding of State and Local
Programs
F. State or Local Thresholds for Gasoline and Diesel Fuel
G. Alternative Thresholds for Gasoline and Diesel Fuel
H. Zero Threshold for Reporting in Response to Requests for
Information
I. Effect of the Timing of This Rule on State and Local Programs
J. Effect of This Rule on the Regulatory Burden to Emergency
Planners and Industry
K. Thresholds for Other Facilities/Chemicals
L. Gasoline and Diesel Fuel Thresholds in Gallons Rather Than
Pounds
M. Defining Gasoline and Diesel Fuel
N. ``Retail Gas Station'' Definition
V. Regulatory Analysis
A. Executive Order 12866
B. Executive Order 12875
C. Executive Order 12898
D. Executive Order 13045
E. Executive Order 13084
F. Regulatory Flexibility Act
G. Paperwork Reduction Act
H. Unfunded Mandates Reform Act
I. National Technology Transfer and Advancement Act
J. Congressional Review Act
I. Entities Affected by This Rule
Two general categories of entities are affected by this rule. These
categories are industry and state, local, and tribal governments.
Within these general categories the rule affects numerous entities,
including:
------------------------------------------------------------------------
Examples of potentially regulated
Category entities
------------------------------------------------------------------------
Industry..................... Retail gas stations.
State, Local, and Tribal State Emergency Response Commissions
Governments. (SERCs), Tribal Emergency Response
Commissions (TERCs), Local Emergency
Planning Committees (LEPCs), and fire
departments receive the information
provided under EPCRA sections 311 and
312.
------------------------------------------------------------------------
This table is not exhaustive, but rather it provides a guide for
readers affected by this action. To determine whether this action
affects your facility, you should carefully examine section 370.20 in
today's rule, which explains the applicability of this rule. If you
have questions regarding the applicability of this action to a
particular entity, consult the Hotline or the people listed in the
preceding FOR FURTHER INFORMATION CONTACT section.
II. Introduction
A. Statutory Authority for This Rulemaking
This final rule is issued under the Emergency Planning and
Community Right-To-Know Act of 1986 (EPCRA), which was enacted as Title
III of the Superfund Amendments and Reauthorization Act of 1986 (Pub.
L. 99-499), (SARA).
B. Background of This Rulemaking
EPCRA establishes a program to (1) encourage state and local
planning for responding to releases of hazardous chemicals and to (2)
provide the public, local governments, fire departments, and other
emergency officials with information concerning chemical releases and
the potential chemical risks in their communities. EPCRA section 311
requires facilities that have hazardous chemicals above specified
thresholds to provide either MSDSs for
[[Page 7033]]
those chemicals or a list of those chemicals to their State Emergency
Response Commission (SERC), Local Emergency Planning Committee (LEPC),
and local fire department. (For purposes of brevity in this document,
the term ``SERC'' is meant to include Tribal Emergency Response
Commissions (TERCs)). Under EPCRA section 312, these facilities must
also report annually to the SERC, LEPC, and local fire department on
the quantities and locations of hazardous chemicals they have on site
above specified thresholds. Hazardous chemicals are those that meet the
criteria developed by the U.S. Occupational Safety and Health
Administration (OSHA) (except as provided in EPCRA 311(e)). EPA
estimates that approximately 850,000 facilities are subject to
reporting under EPCRA sections 311 and 312.
Facilities must report under section 312 either Tier I or Tier II
inventory information. Tier I inventory information is the minimum
information that facilities must report to comply with section 312, and
includes information on the general types and locations of hazardous
chemicals at the facility. Tier II inventory information is more
specific information on amounts and locations of hazardous chemicals at
the facility. A facility can choose to report Tier II inventory
information, and must report it if requested by the SERC, LEPC or fire
department, or if a state or local law requires it.
On October 15, 1987 (52 FR 38344) and July 26, 1990 (55 FR 30632),
EPA published final rules setting reporting requirements and threshold
quantities for reporting under EPCRA sections 311 and 312. A facility
must report on a hazardous chemical only if at any time during the
prior year it had a quantity of the chemical equal to or greater than
the threshold. For extremely hazardous substances (EHSs) (listed in 40
CFR part 355), the threshold is the lesser of 500 pounds or the
threshold planning quantity listed in 40 CFR part 355. For all non-EHS
hazardous chemicals, the threshold quantity has been 10,000 pounds
(today's rule changes the 10,000 pound threshold in certain situations
for gasoline and diesel fuel, which are non-EHS hazardous chemicals).
However, if the LEPC requests MSDSs or the SERC, LEPC or fire
department requests inventory information from a facility, the
threshold for reporting in response to requests is zero (as established
in the October 15, 1987 rule, 52 FR 38365). In other words, a facility
with any quantity of a hazardous chemical is required to provide this
information upon request by a SERC, LEPC or fire department.
On June 8, 1998 (63 FR 31267), EPA proposed raising the thresholds
for gasoline and diesel fuel stored entirely underground at retail gas
stations in compliance with the underground storage tank (UST)
regulations. EPA proposed the higher thresholds because input from
stakeholders and the experience gained through the first 10 years of
EPCRA implementation indicated that emergency responders and the public
are generally aware of the hazards of gasoline and diesel fuel and know
the locations of retail gas stations. Therefore, nationwide annual
reporting for these operations would not be necessary to meet the
objectives of EPCRA sections 311 and 312. The proposed thresholds would
provide relief from annual reporting for approximately 193,000 retail
gas stations. The proposal gave the public 90 days to comment.
Today, EPA is adopting the proposed thresholds of 75,000 gallons
for gasoline (all grades combined) and 100,000 gallons for diesel fuel
(all grades combined) when these fuels are stored entirely underground
at retail gas stations that are in compliance with the UST
requirements.
EPA proposed other changes in the June 8, 1998, notice in addition
to raising the gasoline and diesel fuel reporting thresholds. At this
time the Agency has not reached a final decision on these other
proposed changes, and they are not addressed in this rule.
III. Discussion of the Final Rule
This section of the notice provides a brief summary of the final
rule, including the Agency's rationale for promulgating the rule and
some issues involved in this rulemaking. The following section in this
notice, which is called ``Discussion of Public Comments Received on the
Proposal,'' provides a summary of the public comments received on the
proposal, and of the Agency's responses to the comments. If you are
interested in a more detailed discussion of the rule, the Agency's
rationale, and the issues involved in the rulemaking, you should read
the ``Discussion of Public Comments Received on the Proposal'' section
in this notice. You can review an even more detailed summary of the
public comments and the Agency's responses, entitled ``Comment Response
Summary: EPCRA Sections 311-312 Proposal to Raise Reporting Thresholds
for Gasoline and Diesel Fuel,'' which is available from the CERCLA
Docket Office in docket number 300RR-IF1 (for the address of the docket
office, see the ADDRESSES section in this notice).
A. General Discussion
EPCRA sections 311(b) and 312(b) give EPA authority to establish
threshold quantities for the reporting of hazardous chemicals. These
statutory provisions give EPA discretion to base the thresholds on
classes of chemicals or categories of facilities.
Today's final rule amends 40 CFR 370.20, which contains the
applicability provisions for the hazardous chemical reporting
requirements under EPCRA sections 311 and 312. Section 370.20 is
amended to provide new threshold levels for gasoline and diesel fuel at
retail gas stations (subject to certain criteria as discussed below),
and to provide a definition for ``retail gas station.'' Section 370.20
is also reformatted to make it easier to understand the requirements.
For gasoline and diesel fuel, when stored entirely underground at a
retail gas station that is in compliance with all applicable UST
requirements (40 CFR part 280 or requirements of the state UST program
approved by the Agency under 40 CFR part 281), the new minimum
thresholds for reporting under EPCRA sections 311 and 312 are 75,000
gallons for gasoline and 100,000 gallons for diesel fuel. In order for
a retail gas station to be eligible to apply the new thresholds for
reporting for a given calendar year, the facility must have been in
compliance with UST requirements at all times during that year. For
purposes of this rule, EPA defines ``retail gas station'' as ``a retail
facility engaged in selling gasoline and/or diesel fuel principally to
the public, for motor vehicle use on land.'' This rule is effective
beginning with the 1998 calendar year reporting, which is due on or
before March 1, 1999.
Over the years since EPCRA was enacted, EPA has heard from many
stakeholders that the section 311 and 312 reports for gasoline and
diesel fuel from retail gas stations are unnecessary for emergency
planning and community right-to-know purposes. Stakeholders have
pointed out that the public and emergency planners and responders are
generally aware of the locations of gas stations and of the hazards of
gasoline and diesel fuel, without the need for EPCRA reporting.
Further, they have pointed out that some of the information reported by
retail gas stations under EPCRA sections 311 and 312 duplicates some of
the information already reported under UST requirements. EPA has
evaluated this issue, and believes that section 311 and 312 reporting
is not warranted nationwide, for gasoline and diesel fuel stored
entirely underground
[[Page 7034]]
at retail gas stations that are in compliance with the UST
requirements.
As discussed in EPA's June 8, 1998, proposed rule, the Agency
believes that gasoline and diesel fuel, when stored entirely
underground at retail gas stations that are in compliance with UST
requirements, present a special situation for which separate reporting
thresholds under EPCRA sections 311 and 312 are warranted. Factors
contributing to this special situation, and which EPA considered in
establishing the higher reporting thresholds, include: (1) The public
and local emergency officials are generally familiar with the location
of retail gas stations, are aware that these facilities have gasoline
and diesel fuel, and can typically discern the general storage location
of the gasoline and diesel fuel at the facility; (2) the public and
local emergency officials generally are aware of the hazards associated
with gasoline and diesel fuel; (3) retail gas stations typically store
gasoline and diesel fuel in tanks that are entirely underground, which
generally mitigates the risk of catastrophic release; and (4)
underground storage tanks are regulated under the Underground Storage
Tank (UST) program of the Resource Conservation and Recovery Act
(RCRA), so a comprehensive regulatory program is in place that
establishes standards for the safe performance and operation of USTs,
including a requirement to notify government agencies of the presence
of such tanks. Although each of these factors alone wouldn't
necessarily warrant separate higher thresholds, in combination these
factors present a special situation for gasoline and diesel fuel stored
at retail gas stations. For these reasons, EPA has raised the threshold
levels for reporting under EPCRA sections 311 and 312, for gasoline and
diesel fuel stored entirely underground at retail gas stations that are
in compliance with UST requirements. The new threshold levels will
relieve retail gas stations that have typical quantities of gasoline
and diesel fuel from routinely reporting these fuels under EPCRA. Gas
stations having unusually large inventories will continue to report
their gasoline and diesel fuel.
Although EPCRA section 311 and 312 reporting will not be required
nationwide for gasoline and diesel fuel stored at retail gas stations
meeting the criteria in this rule, some state or local governments may
want such reporting. For example, some state or local agencies may find
it convenient for emergency planning purposes to receive information on
retail gas stations reported annually on an inventory form. State or
local emergency officials who want to obtain this information can still
receive it under EPCRA regulations upon request, because this rule does
not amend the threshold for reporting in response to a request, which
is zero. See 40 CFR 370.20 for the zero threshold provision. Those
state or local governments that want retail gas stations to report
routinely can also establish state or local laws with lower reporting
thresholds than the new federal thresholds promulgated today.
In addition to hazardous chemical reporting, state or local
emergency officials may also be able to obtain information on retail
gas stations from their state UST offices and other sources, such as
telephone listings, chambers of commerce, or trade associations. EPA
believes that communications between local emergency planners and
facility owners or operators need not be restricted to EPCRA section
311 and 312 reporting.
In establishing new EPCRA sections 311 and 312 reporting thresholds
for gasoline and diesel fuel, EPA seeks to strike a balance between the
value of information generated for the public and emergency planners
and responders, and the burden of generating that information. EPA
believes that excluding the majority of retail gas stations from the
requirement to report routinely under EPCRA sections 311 and 312 will
promote a more manageable EPCRA program, while still protecting the
public health and safety of individuals in the community and emergency
response officials. Retail gas stations are a large portion of the
regulated community under EPCRA sections 311 and 312. Relieving the
majority of retail gas stations from routine EPCRA reporting will
reduce the quantity of paperwork that SERCs, LEPCs and fire department
file, allowing them to focus their resources on other facilities. Since
information on the chemical hazards at retail gas stations is already
generally known, and can be accessed by means other than EPCRA
reporting, emergency planning and response activities will not be
impaired.
In addition to the new threshold levels for gasoline and diesel
fuel under EPCRA sections 311 and 312, EPA's June 8, 1998, notice
proposed other changes to the regulations at 40 CFR parts 355 and 370.
At this time, the Agency is only finalizing the new thresholds for
gasoline and diesel fuel at retail gas stations. The Agency has not
reached any decision on any other of the changes proposed in the June 8
notice. The Agency also has not reached any decision on any other
issues that arose in the public comments on the June 8 notice,
including new thresholds for gasoline and diesel fuel stored at
facilities other than retail gas stations, or new thresholds for other
types of fuels.
Today's rule becomes effective upon publication in the Federal
Register. The Administrative Procedure Act (APA) generally requires
that a rule not become effective until at least 30 days after its
publication. See 5 U.S.C. Sec. 553(d). The APA exempts from this
requirement a rule ``that grants or recognizes an exemption or relieves
a restriction.'' Today's rule provides relief from routine EPCRA
reporting on gasoline and diesel fuel to all qualifying gas stations.
Therefore the rule qualifies for the effective date exemption provided
by the APA.
B. Changes to the Proposal
Plain Language Format
On June 8, EPA proposed to re-write and reorganize all of the
regulations at 40 CFR parts 355 and 370 in ``plain language'' format,
to make the regulations easier to understand and to use. EPA is not
finalizing the proposed ``plain language'' regulatory language at this
time. The final rule published today, which amends 40 CFR 370.20, is
written in a format consistent with the current language in the CFR.
Therefore, the final regulatory language raising the gasoline and
diesel fuel thresholds is in a format different from that of the
proposed language. Although today's rule is not written in the ``plain
language'' format that was proposed in the June 8 notice, EPA has
reorganized section 370.20 to make it easier to understand. While all
of section 370.20 has been reorganized, the only substantive regulatory
changes that EPA has made to that section are the new gasoline and
diesel fuel thresholds. When EPA promulgates 40 CFR parts 355 and 370
in ``plain language'' format, today's rule will be reformatted
accordingly.
Definition of Retail Gas Station
For the purposes of today's rule, EPA defines ``retail gas
station'' as ``a retail facility engaged in selling gasoline and/or
diesel fuel principally to the public, for motor vehicle use on land.''
This definition is added to 40 CFR section 370.20. The final definition
published today is different from the proposed definition in several
ways, as discussed below.
EPA's final definition of ``retail gas station'' does not
explicitly include convenience stores, although the proposed definition
included them specifically. Any convenience store that is a ``retail
facility engaged in selling
[[Page 7035]]
gasoline and/or diesel fuel principally to the public'' is included in
EPA's definition of ``retail gas station.'' EPA has chosen to
promulgate a broad definition of ``retail gas station'' for the purpose
of this rule, rather than listing specific facilities such as truck
stops or convenience stores that retail gasoline, to avoid excluding
other facilities by implication.
EPA has added the phrase ``for motor vehicle use on land'' to the
definition of ``retail gas station'' as it was published in the
proposed rule. The Agency added this phrase to clarify that gas
stations in marinas and airports that sell fuel for boats or airplanes
are not intended to be included in the definition of ``retail gas
station'' for the purposes of this rule at this time.
EPA has added ``and/or diesel fuel'' to the definition to clarify
that ``retail gas station'' includes those facilities that sell diesel
fuel primarily to the public.
EPA changed the phrase ``retail gasoline facility principally
engaged in selling gasoline to the public,'' to ``retail facility
engaged in selling gasoline and/or diesel fuel principally to the
public,'' in the final definition because the proposed definition might
have led to interpretations that were more narrow than the Agency's
intended meaning of the term. EPA made this change to clarify that a
facility's primary sales need not necessarily be of gasoline or diesel
fuel in order to be considered a ``retail gas station'' for purposes of
this rule. In other words, the facility does not have to make the
majority of its sales in gasoline or diesel fuel. However, the majority
of the facility's sales of gasoline and/or diesel fuel must be to the
public, to be considered a ``retail gas station'' for purposes of this
rule.
Compliance With UST Requirements
In EPA's proposed rule, the new gasoline and diesel fuel thresholds
applied only to gasoline or diesel fuel ``at a retail gas station, when
stored in tanks entirely underground and in compliance with the UST
regulations at 40 CFR part 280 * * *'' The final rule language,
however, limits applicability of the new thresholds to gasoline or
diesel fuel ``that was in tank(s) entirely underground, at a retail gas
station that was in compliance at all times during the preceding
calender year with all applicable Underground Storage Tank (UST)
requirements (40 CFR part 280 or requirements of the state UST program
approved by the Agency under 40 CFR part 281) * * *'' EPA made several
clarifying changes to the proposed language, as discussed below.
First, the final rule language clarifies that to be eligible for
the new gasoline and diesel fuel thresholds, a retail gas station must
be in compliance with either the Federal UST requirements at 40 CFR
part 280 or, the state UST requirements of the program approved by EPA
to operate in lieu of the Federal UST program. Second, the final rule
clarifies that, in order for a retail gas station to be eligible to
apply the new thresholds for reporting for a given calendar year, the
facility must have been in compliance with UST requirements at all
times during that year. And third, the final rule clarifies that an
entire retail gas station must be in compliance with applicable UST
requirements to apply the new thresholds.
If a retail gas station was temporarily out of compliance with UST
requirements at any time during a particular calendar year, the
facility is ineligible to use the new gasoline and diesel fuel
thresholds for reporting for that calendar year. Instead, it must use
the standard 10,000 pound hazardous chemical thresholds for any
gasoline or diesel fuel it had during that year.
A retail gas station that was in compliance with UST requirements
at all times during the preceding year--and is therefore eligible for
that year to apply the new thresholds to their gasoline and diesel fuel
that are stored entirely underground--applies gasoline and diesel fuel
thresholds as follows:
--If the gas station had present at least 10,000 pounds of gasoline or
diesel fuel stored in tank(s) not entirely underground, the gas station
owner/operator must report the gasoline or diesel fuel. The owner/
operator must report on the total gasoline or diesel fuel at the
facility, regardless of whether it is stored aboveground or
underground.
--If the gas station had present at least 75,000 gallons of gasoline or
100,000 gallons of diesel fuel stored in tank(s) entirely underground,
the gas station owner/operator must report the gasoline or diesel fuel.
The owner/operator must report on the total gasoline or diesel fuel at
the facility, regardless of whether it is stored aboveground or
underground.
--If the gas station had neither 10,000 pounds of gasoline or diesel
fuel stored in tank(s) not entirely underground, nor 75,000 gallons of
gasoline or 100,000 gallons of diesel fuel stored in tank(s) entirely
underground, the gas station need not report any gasoline or diesel
fuel.
If a retail gas station temporarily ceases operations for an entire
calendar year, then for that year the facility does not fit EPA's
definition of a retail gas station (for the purposes of this rule, a
facility must be ``* * * engaged in selling gasoline and/or diesel fuel
principally to the public * * *'' to be considered a retail gas
station). Such a facility would be subject to the standard 10,000 pound
reporting thresholds for gasoline and diesel fuel under EPCRA sections
311 and 312 for that calendar year, regardless of whether its gasoline
and diesel fuel are stored entirely underground, and regardless of
whether the facility was in compliance with UST requirements for that
year. If a retail gas station ceases operations only for a portion of a
calendar year the facility still may apply the new gasoline and diesel
fuel thresholds (provided the facility meets all of the criteria in
today's rule, including complying with UST requirements).
If a retail gas station closes any or all of its underground tanks
either permanently or temporarily, the tanks must be closed in
compliance with applicable UST requirements. A facility cannot apply
the new gasoline and diesel fuel thresholds if it has closed
underground tanks not in compliance with UST requirements.
A facility is not in compliance with the UST requirements (and
therefore not eligible for the higher EPCRA thresholds of today's rule)
when it first fails to meet the UST requirements. For example, if an
owner or operator of a retail gas station has a tank system that was
not in compliance with UST requirements that went into effect in
December of 1998 (see 40 CFR 280.21(a) and 281.31), that owner or
operator cannot apply the new thresholds in today's rule for the EPCRA
section 312 report that is due March 1, 1999.
For more information on compliance with UST requirements and the
relationship between this rule and the UST program see section IV.D in
this preamble, which discusses the public comments received on this
issue and the Agency's responses.
IV. Discussion of Public Comments Received on the Proposal
EPA received 164 comments related to the new thresholds for
gasoline and diesel fuel from a variety of stakeholders, primarily
state and local government, industry, and the public. The number of
commenters in each group is as follows: industry, 20 commenters; SERCs
and state government agencies, 17 commenters; LEPCs and local
government agencies, 47 commenters; public interest groups, 2
commenters; individuals, 73 commenters; tribal governments, 2
[[Page 7036]]
commenters; professional organizations, 1 commenter; and Federal
agencies, 1 commenter. A complete summary of all comments and EPA's
responses to them is presented in ``Comment Response Summary: EPCRA
Sections 311-312 Proposal to Raise Reporting Thresholds for Gasoline
and Diesel Fuel,'' which is available from the docket (see ADDRESSES
above). The major issues raised by the commenters and the Agency's
responses to them are described below.
A. Access to Right-to-Know Information on Retail Gas Stations
Several commenters stated that the proposal decreases ready access
to community right-to-know information concerning retail gas stations
and their hazards. EPA believes that the public and emergency response
officials have a general knowledge of the locations of retail gas
stations in their communities, and a general knowledge of the hazards
associated with gasoline and diesel fuel. Routine reporting under EPCRA
is not necessary nationwide for the public and emergency planners and
responders to have knowledge of gas stations. Retail gas stations
prominently advertise the presence of gasoline and diesel fuel at their
facilities, encourage the public to come on site, and often permit the
public to dispense the gasoline and diesel fuel themselves.
Further, any SERC, LEPC, fire department, or member of the public
that wants more specific information on retail gas stations may obtain
it in several ways. First, this rule does not change the existing
requirements for providing MSDSs and inventory information upon
request. The SERC, LEPC or fire department having jurisdiction over a
facility may ask a facility's owner or operator to submit inventory
information, and the owner or operator must comply with such a request
(the threshold is zero for reporting in response to such a request).
Additionally, any person may obtain MSDS or inventory information with
respect to a specific facility by requesting it (MSDS requests are made
to the LEPC; inventory information requests are made to the SERC or
LEPC). If the SERC or LEPC does not have the requested information, it
must request the information from the facility. (However, in the case
of a facility that doesn't store more than 10,000 pounds of the
substance, the statute provides that a person's request for inventory
information must include a statement of need, and the SERC or LEPC has
discretion on whether to request the information from the facility.
Note that the new higher thresholds for reporting for gasoline and
diesel fuel don't affect this statutory 10,000 pound level.) Facilities
must provide requested information to the SERC or LEPC making the
request, and SERCs and LEPCs then must make the requested information
available.
SERCs, LEPCs, fire departments, and members of the public also can
obtain information on retail gas stations from other sources. They can
contact their UST offices, or can take advantage of information
available elsewhere in telephone listings, chambers of commerce, or
trade associations to obtain information on gas stations in their
planning areas. Finally, state or local governments that want to
receive inventory information routinely from retail gas stations can
set lower thresholds for gas and diesel fuel at retail gas stations
under state or local laws.
In summary, the public can still receive information on gas
stations from their SERCs or LEPCs. If those agencies do not have the
requested information, generally they must request it from the facility
and provide it to the person making the request. At the same time,
EPCRA is not the only source of information on retail gas stations. The
public can also obtain information on retail gas stations from other
agencies, such as UST agencies.
EPA acknowledges that in some cases some information on retail gas
stations may now be less readily available, but this does not justify
nationwide the substantial burdens of routine reporting by retail gas
stations. The purposes of EPCRA reporting are to provide information to
state and local emergency officials for planning for chemical
emergencies, and to provide information to the public on the potential
chemical risks in their communities. Since information on retail gas
stations is generally known to emergency responders and the public, and
more specific information is available, the general purpose of EPCRA
reporting is satisfied without the need for retail gas stations to
report routinely.
The Agency recognizes that some SERCs, LEPCs or fire departments
send EPCRA section 312 reporting packages to retail gas stations that
have submitted section 312 reports for the previous reporting year.
Sending such reporting packages to retail gas stations could be
considered requesting information from specific facilities under EPCRA
section 312, for which the reporting threshold is zero (see 40 CFR
370.20). Retail gas stations receiving such packages should contact the
SERC, LEPC or fire department that sent the package, to determine if
they are required to report.
B. Knowledge of Locations and Hazards at Retail Gas Stations
A number of commenters supported the proposed increases in
reporting thresholds for gasoline and diesel fuel, asserting that the
public and emergency responders are aware of the locations of retail
gasoline stations independent of EPCRA reporting. Others emphasized
that the public and emergency responders are knowledgeable about the
hazards of gasoline and diesel fuel. However, a number of commenters
disagreed and argued that the public and emergency responders are not
aware of the locations or hazards associated with gasoline and diesel
fuel.
EPA believes the public and emergency response officials already
have a general knowledge of the locations of retail gas stations, and
of the general storage locations for gasoline and diesel fuel at gas
stations. Retail gas stations prominently advertise the locations of
their facilities, and the presence of gasoline and diesel fuel at these
facilities. The general storage location for the gasoline and diesel
fuel can be determined by the location of the fuel pumps at a facility.
EPA further believes the public and emergency response officials
already have a general knowledge of the hazards associated with
gasoline and diesel fuel storage at retail gas stations. Gasoline and
diesel fuel are common substances that are widely used by the public,
and so are familiar to them. Further, routine reporting under EPCRA is
not necessary to obtain more specific hazard information. Anyone
requiring more specific hazard information on gasoline and diesel fuel
(beyond the fire and explosion hazards that are already well known) may
obtain it in several ways.
First, this rule does not change the existing requirements for
providing upon request MSDSs and inventory information on gasoline and
diesel fuel at gas stations--all individuals may obtain MSDS or
inventory information with respect to a specific facility by requesting
it (MSDS information is requested from the LEPC; inventory information
is requested from the SERC or LEPC). Second, some facilities provide
hazard labeling voluntarily at their fuel pumps. EPA encourages this
practice, which makes some hazard information and warning immediately
available to the consumer at the point of use. In addition, some MSDS
information may be obtained from other sources--for example, some
businesses post MSDSs for their products on the Internet. In summary,
information on the hazards of gasoline and diesel fuel has been
available, is well known, and
[[Page 7037]]
will continue to be available upon request without routine EPCRA
reporting.
Several commenters described the hazards posed by gasoline and
diesel fuel at retail gas stations and noted that the proposal did not
eliminate these hazards. One commenter argued that by raising the
threshold level EPA is suggesting that these facilities no longer pose
a risk. A few organizations noted that petroleum-based substances are
involved in a substantial number of chemical emergencies.
EPA recognizes that hazards exist at retail gas stations and does
not suggest that state and local agencies stop planning for emergencies
involving such facilities. State and local agencies set their own
priorities for emergency planning, based on their assessment of local
chemical risks and resources. However, EPA believes that routine
reporting by retail gas stations is not necessary nationwide for
emergency planners to plan for emergencies involving retail gas
stations. The public and local emergency officials are generally
familiar with the locations of gas stations, the gasoline and diesel
fuel stored at gas stations, and the hazards of those products. EPA's
objective is to find a sound balance between the burden of collecting
information and the value of that information. As noted previously,
state and local emergency officials who want to obtain this information
can receive it upon request under EPCRA regulations (the threshold for
reporting in response to a request is zero; see 40 CFR 370.20); they
may be able to obtain information from their state UST offices; and
they can require the information under state or local law and can
consult available sources such as telephone listings and trade
associations, for locations or other information on gas stations.
One commenter asked whether LEPCs can request information on
components of gasoline that are hazardous, such as benzene or MTBE. If
a SERC or LEPC specifically requests a facility to complete a Tier II
report, the SERC or LEPC could specify that the facility report based
on the components of the gasoline. However, the retail gasoline station
may not know the concentration of the various constituents that make up
gasoline because MSDSs are not required to contain this information.
Finally, several of the comments addressed the risk of ground water
contamination. EPA recognizes that protecting groundwater is critical
and understands that USTs have the potential to contaminate
groundwater. However, the UST program is the regulatory program that
provides for the protection of groundwater from leaking underground
storage tanks. EPA's UST requirements (codified at 40 CFR part 280), as
well as the requirements of state UST programs approved by EPA,
establish standards for the safe performance and operation of USTs to
protect groundwater.
C. Need for Information on Gas Stations for Emergency Planning and
Response
Many SERCs, LEPCs, and fire departments commented that they do not
need inventory information reported on retail gas stations, and that
managing the gas station data takes limited resources away from more
hazardous, less familiar situations. With higher Federal thresholds for
gasoline and diesel fuel, SERCs, LEPCs and fire departments still have
the flexibility to obtain the information that they need from gas
stations for emergency planning and community right-to-know purposes,
while those that do not want or need such information can implement a
program that directs their resources elsewhere. Because SERCS, LEPCs
and fire departments receive only the information that they need, this
rule reduces their burden in administering EPCRA as well as minimizing
the burden on retail gas stations.
Many other commenters, primarily LEPCs and SERCs, addressed the
need to continue current reporting thresholds for retail gas stations
to ensure the continued availability of information needed for
emergency planning and response. Commenters mentioned a need to receive
notice of changes in ownership or contact information, and a need for
specific information on locations and amounts stored at retail gas
stations.
EPA believes that local emergency planners can include gas stations
in their emergency plans without the need for nationwide annual
reporting under EPCRA sections 311 and 312. Local emergency officials
are generally familiar with the location of retail gas stations, are
aware that gasoline and diesel fuel are stored at gas stations, and can
discern the general storage location of the gas and diesel fuel at gas
stations. Also, as noted above, they can obtain the information from
sources other than EPCRA reporting.
Some comments supported the use of current inventory reporting to
enable local agencies to track changes in emergency contact
information, including 24-hour emergency contacts. EPA does not believe
that the need by some SERCs, LEPCs, and fire departments for 24-hour
emergency contact reporting justifies retaining EPCRA sections 311 and
312 reporting nationwide for gas and diesel fuel at retail gas
stations. State or local governments that need the 24-hour emergency
contact information may obtain it from retail gas stations by
requesting inventory information under EPCRA 312; they could tailor
their requests to require only the emergency contact information (by
indicating in a request that the respondent may comply with the request
by providing only the specified information). State or local
governments can also require gas stations to report emergency contact
information under state or local law. Other means exist for obtaining
contact information, including state UST offices, fire inspection
reports, chamber of commerce information, telephone listings, or trade
associations.
Many states collect annual fees or insurance premiums for
registered USTs, so the potential exists for an annual update of
emergency contact information at the time that the fees are submitted.
EPA encourages EPCRA and UST offices to work together toward obtaining
24-hour emergency contact information from gas stations for those EPCRA
programs desiring this information.
Some comments suggested that EPA still require that retail gas
stations report annually some basic information, such as owner or
operator name and emergency contacts. One commenter suggested that full
reporting be required on a specified interval, such as every three
years. Several commenters suggested that EPA require one-time-only
reporting for retail gas stations, with additional reports only if
substantive information changes or the facility goes out of business.
Another commenter suggested that gas stations submit an annual
certification that they qualify for the higher thresholds.
EPA has determined that routine reporting under EPCRA sections 311
and 312 is not needed nationwide for gasoline and diesel fuel stored at
retail gas stations under the criteria set forth in the rule. State and
local governments, however, may choose to implement state or local laws
to tailor EPCRA programs to suit their own needs and resources. For
example, state or local governments could require gas stations to
report less frequently than yearly, make an ``initial'' or ``one-time-
only'' notification, or submit annual certifications under state or
local laws. EPA believes that it is better to allow state and local
agencies to decide whether this information is needed from retail gas
stations and have them seek the information through state or local
statutes or other means.
[[Page 7038]]
Gas stations already must make an initial notification for their
gasoline and diesel fuel USTs under the Federal UST regulations (40 CFR
part 280). This is a ``one-time-only'' notification such as that
suggested by the commenters. EPA encourages coordination between UST
program offices and EPCRA program offices to disseminate UST
information to EPCRA agencies and the public. EPA expects that, as
cooperative relationships develop between EPCRA program offices and UST
program offices, access to UST information will increase.
A few commenters argued that the proposal weakens the relationship
between LEPCs and fire departments and owners/operators of gas
stations. One commenter feared that the proposed rule would cause
confusion and make LEPCs look bad. EPA understands the importance of
communications between LEPCs/fire departments and gas station owners/
operators. LEPCs and fire departments can contact gas station owners/
operators to maintain communications, and can (and many routinely do)
conduct inspections in their local planning districts. Communications
between LEPCs and retail gas stations need not (and ideally should not)
be restricted to formal yearly reporting. EPA does not believe that
EPCRA routine reporting under sections 311 and 312 is the most
efficient way for the local agencies and retail gas stations to
communicate.
D. Relationship of This Rule to the Underground Storage Tank Program
The new EPCRA thresholds apply only to gasoline and diesel fuel in
tanks entirely underground at retail gas stations that comply with
Federal UST requirements (40 CFR part 280) or, if applicable,
requirements of the state UST program approved by the Agency under 40
CFR part 281. The UST program establishes standards for the safe
performance and operation of USTs, and requires facilities to make UST
notifications. Some of the information reported under UST duplicates
some of the information reported under EPCRA, and can be valuable for
emergency planning purposes.
States with UST programs approved under 40 CFR part 281 are
authorized to administer their state UST program in lieu of the Federal
program. State UST programs may be implemented by regulation or by
statute. Approximately half of the states currently have approved state
UST programs. All approvals and withdrawals of approvals are published
in the Federal Register. Whether or not a state operates an approved
UST program, UST notification forms are submitted to the state (or
territory), not to EPA. Retail gas stations on Indian Lands must comply
with the Federal UST requirements (40 CFR part 280).
EPA provides addresses and phone numbers for state and territorial
UST contacts on the Internet at www.epa.gov/swerust1/states/
statcon1.htm, and through the RCRA/UST, Superfund & EPCRA Hotline, at
(800) 424-9346. Information about state UST program approval (including
a list of approved states) may be accessed at www.epa.gov/swerust1/
states/spa1.htm.
Free plain language publications are available to help people
understand the Federal UST requirements. Such publications, for example
``Musts for USTs,'' are available through the RCRA/UST, Superfund &
EPCRA Hotline, and at EPA's Office of Underground Storage Tanks (OUST)
Internet site at www.epa.gov/oust.
Availability and Usefulness of UST Information
Some commenters expressed support for the proposal by saying that
state UST databases can be used as a right-to-know resource. Others,
however, commented that the UST reporting does not provide adequate
emergency planning information, and therefore is not a proper
substitute for EPCRA routine reporting.
The Federal UST regulations (40 CFR part 280) require the following
information in the UST notifications: name, address, and phone number
of the owner of the UST(s); address of the facility at which the UST(s)
are located; name, title, and phone number of a contact person at the
tank location; type of notification (for example, amended or
subsequent); certification; tank information, including status of
tank(s), estimated age, estimated total capacity, material of
construction, internal protection, external protection, and piping; and
substance currently or last stored in greatest quantity by volume.
(There are additional information requirements for tank(s) installed
after December 22, 1988.) Much of this information can be valuable for
emergency planning purposes. In addition, many of the states require
additional information from UST facilities, beyond the information
required under the Federal regulations.
Furthermore, EPA does not intend that UST information will be the
sole source of emergency planning information for retail gas stations.
As discussed above, those emergency planners that want information from
gas stations have a number of other options for obtaining information
from those facilities.
A number of commenters also feared that UST information may not be
readily accessible to LEPCs, emergency responders, and the public.
Several commenters suggested that EPA make UST information more
accessible or modify the UST form. Commenters suggested that the UST
form should be submitted to EPCRA agencies to ensure that the UST data
are available. One commenter asked whether EPA would collect UST data
and make it available to EPCRA agencies. Another commenter suggested
that underground storage tank rules should be modified to guarantee
public access to UST information.
The states and territories receive UST notification forms. EPA sees
no need to duplicate the collection of UST information and provide such
information to state and local EPCRA agencies. It would be more
efficient and would encourage working relationships if state and local
emergency planners request UST information directly from state UST
agencies. EPA also notes that a change to the UST regulations would be
outside the scope of this rulemaking.
EPA understands that in the majority of states, UST information is
currently not reported directly to LEPCs or other emergency planners
and responders. The Agency encourages increased coordination between
UST program offices and EPCRA program offices desiring information on
retail gas stations, to improve communication of UST information to
SERCs, LEPCs, and fire departments.
States may choose to combine the UST and EPCRA reporting forms and
in fact are encouraged to do so, provided that all of the requirements
for both programs are met. Any comprehensive form would need to satisfy
the requirements for contents of submission, timing of submission, and
recipients of the submission for both the UST and EPCRA programs. The
preamble to the June 8, 1998, proposal (63 FR 31267) provides further
guidance on this issue.
Although states may choose to collect and disseminate information
on retail gas stations through their UST programs, EPA has determined
that on a nationwide basis it is not necessary to require that gas
stations report annually under EPCRA sections 311 and 312. EPA believes
both the public and emergency responders are already aware of most of
the information that is submitted under EPCRA sections 311 and 312 for
gas stations, specifically the identity of the chemical stored and the
hazards associated with the chemical.
[[Page 7039]]
Entirely Underground Tanks
Several organizations supported the proposal to increase reporting
thresholds for gasoline and diesel fuel in entirely underground tanks.
However, several other commenters argued that the phrase ``entirely
underground tanks'' will cause confusion, because EPA's UST regulations
also apply to partially underground storage tanks. A few commenters
wrote that EPA should not limit the thresholds to ``entirely
underground'' tanks. They noted that aboveground tanks are subject to
fire protection standards and other rules, such as Spill Prevention,
Control, and Countermeasures (SPCC) rules, that minimize environmental
risk from such tanks. These commenters also stated that aboveground
tanks pose less of a risk to groundwater.
The new EPCRA reporting thresholds for gasoline and diesel fuel at
retail gas stations apply only to fuel stored in tanks that are
entirely underground, because entirely underground storage of gasoline
and diesel fuel offers an added level of protection from certain
emergencies in comparison to aboveground storage. If an underground
storage tank and piping holding gasoline or diesel fuel fails,
releasing a large quantity of fuel, the fuel remains under the ground,
away from air and ignition sources. Releases below ground can be
detected by monitoring (required under UST regulations) so that
emergency response action can be taken to recover the fuel and minimize
contamination. By contrast, if an aboveground tank or pipeline fails,
releasing a large quantity of gasoline or diesel fuel, the fuel will
quickly spread and form a pool on the surface of the ground or on paved
areas and evaporate, potentially exposing people to harmful vapors.
Since a pool of fuel can mix with air, an explosion or large fire can
occur if an ignition source is available. Further, aboveground tanks
and piping are vulnerable to collision with vehicles, severe weather,
and static discharge (lightning). For these reasons, the higher
thresholds apply only to gasoline and diesel fuel when they are stored
entirely underground.
The Federal UST regulations at 40 CFR 280.12 define an underground
storage tank as any tank system that has over 10 percent of its volume
underground. Because the UST program and the new EPCRA gasoline and
diesel thresholds apply to different universes of tanks, the EPCRA rule
cannot use the UST definition in promulgating the new reporting
thresholds. Although this rule (codified in 40 CFR part 370) does refer
to entirely underground tanks, it neither provides a definition of an
underground storage tank nor changes the existing definition under the
UST program.
Storage tanks that are entirely underground are included within the
definition of UST and would be subject to the UST requirements. EPA has
made compliance with the UST requirements an additional condition for
applicability of the new gasoline and diesel fuel reporting thresholds
under EPCRA.
One commenter argued that EPA should not cover aboveground tanks
that are located far from populations. This comment is outside of the
scope of this rulemaking. EPA also notes that EPCRA 311 and 312 provide
access to hazardous chemical information in all covered facilities, and
do not limit the information solely to chemicals that could affect the
population outside the storage site boundaries. One important reason
for this is that emergency responders use EPCRA information for
planning for responses within the facility boundary.
Compliance With UST Requirements
Prior to this rule, retail gas stations had to report on gasoline
and diesel fuel regardless of whether they complied with the UST
requirements or whether their tanks were leaking. The new gasoline and
diesel fuel thresholds provide an incentive to these facilities to
comply with UST requirements. Simply being regulated under the UST
program is not sufficient for applicability of the new gasoline and
diesel fuel thresholds--the new thresholds only apply to gasoline and
diesel fuel stored entirely underground at retail gas stations that are
in compliance with Federal UST requirements (40 CFR part 280) or
requirements of the state UST programs approved by EPA under 40 CFR
part 281.
Many commenters agreed with EPA that compliance with RCRA's UST
regulations minimizes the risk of accidental release of hazardous
chemicals. All USTs must comply with regulations concerning: (1)
Design, construction, installation and notification; (2) general
operating requirements; (3) release detection; (4) release reporting,
investigation, and confirmation; (5) release response and corrective
action; (6) out of service USTs and closure; and (7) financial
assurance (for USTs containing petroleum). Therefore, a comprehensive
regulatory program (including notifications to government entities) is
in place that establishes standards for the safe performance and
operation of USTs. Limiting use of the new gasoline and diesel fuel
thresholds to those facilities in compliance with the UST program
assures that only those facilities less likely to face failure of their
USTs are relieved from routine reporting under EPCRA sections 311 and
312.
A number of commenters asked EPA for clarification on issues
related to how non-compliance with UST requirements affects the gas and
diesel fuel thresholds. Commenters asked whether compliance with UST
requirements includes compliance with state UST programs approved by
EPA under 40 CFR part 281. Some commenters were concerned about who was
responsible for determining that a facility was in compliance with the
UST requirements; a few stated that LEPCs, SERCs, and fire departments
did not have the resources or expertise to make such determinations.
Commenters asked that EPA clarify whether temporary non-compliance
affects eligibility for the higher thresholds.
Today's final rule clarifies that applicability of the new gasoline
and diesel fuel thresholds is contingent upon compliance with Federal
UST requirements (40 CFR part 280) or, if applicable, the requirements
of the state UST program approved by EPA under 40 CFR part 281.
If a retail gas station is not in compliance with all applicable
UST requirements at any time during a calendar year, it may not apply
the new higher gasoline and diesel fuel thresholds for EPCRA reporting
for that calendar year. If that retail gas station exceeded the 10,000-
pound reporting threshold for gasoline or diesel fuel during that year,
it is subject to EPCRA penalties if it does not properly report under
EPCRA sections 311 and 312.
A facility is not in compliance with the UST requirements (and
therefore not eligible for the higher EPCRA thresholds of today's rule)
when it first fails to meet the UST requirements. For example, if an
owner or operator of a retail gas station has a tank system that was
not in compliance with UST requirements that went into effect in
December of 1998 (see 40 CFR 280.21(a) and 281.31), that owner or
operator can not apply the new thresholds in today's rule for the EPCRA
section 312 report that is due March 1, 1999.
An entire retail gas station must be in compliance with all
applicable UST requirements to apply the new thresholds. If one tank at
a retail gas station is out of compliance with UST requirements then
that facility may not apply the new gasoline and diesel thresholds,
even if other tanks at the facility are in compliance with the
requirements.
[[Page 7040]]
LEPCs, SERCs, and fire departments are not required to make the
determination themselves on whether a facility is in compliance with
UST requirements, but may obtain compliance information from state UST
programs. State UST program databases are in general available to EPCRA
agencies, although data quality, availability, and searchability vary
from state to state. EPA believes that the information generated
through the UST and EPCRA programs, both of which regulate the safe
operation of retail gas stations, should be coordinated to reduce
duplication of effort, and in pursuit of good government and sound
public policy. EPA encourages both programs to more closely coordinate
information sharing efforts at the state and local levels.
The fact that a retail gas station files an EPCRA section 311 or
312 report is not an admission that it is out of compliance with UST
requirements. A facility may voluntarily submit its MSDS or hazardous
chemical inventory information to local emergency planners.
A commenter asked how a decision in the plaintiff's favor in a
citizen suit for violation of UST requirements at a retail gas station
would affect the applicability of the new higher thresholds for
gasoline and diesel fuel under EPCRA. If a court found a retail gas
station out of compliance with UST regulations, that facility could not
apply the new gasoline and diesel fuel thresholds for reporting for any
calendar year during which the facility was out of compliance with such
UST requirements.
E. Effect of This Rule on the Funding of State and Local Programs
EPA understands that some states generate funds for support of
state or local EPCRA programs through fees collected from facilities
that comply with section 312. Such states may lose revenue since the
majority of retail gas stations will no longer report their gasoline
and diesel fuel inventories due to EPA's new thresholds.
Some commenters in support of the proposal stated that funding
should not be an issue in EPA's decision to promulgate the change in
reporting thresholds for gasoline and diesel fuel. However, other
organizations noted that lack of funding is an important issue for the
proposed threshold changes.
The goals of reporting under EPCRA sections 311 and 312 are to
provide information to the public on the hazardous chemicals present in
their communities and to provide information for emergency planning.
The EPCRA statute does not address the collection of fees for EPCRA
reporting.
State and local governments establish fee programs under state or
local laws and such programs are not attributable to this or other
EPCRA rules.
Although EPCRA does not provide for annual Federal funds for state
implementation of the EPCRA program, some Federal funds are available
to support emergency planning and community right-to-know programs (for
example, Hazardous Materials Emergency Preparedness Grants administered
through the U.S. Department of Transportation).
F. State or Local Thresholds for Gasoline and Diesel Fuel
EPA's June 8 proposal explained that although the new gasoline and
diesel fuel thresholds would provide relief from routine reporting
under EPCRA, state and local governments always may choose to establish
lower thresholds under their own laws. Some commenters requested that
EPA not encourage states to set their own thresholds. They feared that
the proposal would be ineffective in accomplishing the intended
reduction in paperwork burdens, because states would use their
threshold setting authorities to set lower gasoline and diesel fuel
thresholds. One commenter suggested that EPA issue non-binding guidance
to encourage states to use EPA's thresholds.
EPCRA section 321 specifically states that EPCRA does not preempt
any state or local law. If a state or local government chooses to
impose different reporting requirements (for example, different
information, different thresholds) or fees to cover state or local
costs, EPA has no authority to change these state rules. These state or
local rules do not replace EPCRA requirements, but rather are in
addition to the Federal reporting rules. States or local governments
may elect to merge their requirements with EPCRA reporting (for
example, by asking for additional information or requiring the
submission of EPCRA forms for chemicals held at lower thresholds), but
these state rules do not alter the basic requirements all covered
facilities must meet to comply with EPCRA sections 311 and 312.
State and local governments have always had the authority to
establish lower thresholds for reporting under state or local law. EPA
merely points out that state or local governments have authority to set
lower thresholds if this suits their emergency planning and community
right-to-know needs. States and local governments have their own
circumstances, needs, resources, and issues concerning emergency
planning and community right-to-know.
Because many state and local entities do support EPA's proposal,
EPA expects that many gas stations will see reporting burden relief.
EPA believes that raising the reporting thresholds for gasoline and
diesel fuel at retail gas stations will still achieve the goals of
planning for chemical emergencies and providing right-to-know
information (since the information is available elsewhere), while
enabling all planners and responders to concentrate on the priorities
and needs in their own communities.
One state agency commented that it is difficult to establish more
stringent thresholds at the state level. Nevertheless, neither EPCRA
nor other Federal laws prohibit states from using their own authorities
to enact state or local laws establishing lower thresholds for
reporting. Any substantive or procedural limitations that states impose
upon their own authority to promulgate lower thresholds are matters of
state and local laws. It is neither feasible nor appropriate for EPA to
characterize the difficulty of state or local political decisions.
Any state or local government that wants to continue to receive
gasoline and diesel fuel reporting from retail gas stations at a 10,000
pound threshold can do so by enacting state or local laws, or by using
the authority to request information from facilities (for which the
reporting threshold is zero; see 40 CFR 370.20).
G. Alternative Thresholds for Gasoline and Diesel Fuel
Several commenters supported the proposed threshold levels for
gasoline and diesel fuel as appropriate. However, a number of
commenters stated that the thresholds are arbitrary because they do not
correspond to the inventory range values on the Tier II form or to an
amount that could pose a threat as the result of a release. Other
commenters stated that the proposal unfairly excludes the largest
retail gas stations, even though these facilities meet the criteria
described by EPA with regard to awareness of their hazards among the
public and responders and coverage by UST regulations.
The new gasoline and diesel fuel thresholds promulgated in this
rule are 75,000 gallons for gasoline and 100,000 gallons for diesel
fuel. The Agency's intent is to establish new thresholds corresponding
to amounts just higher than the typical total amounts of gasoline and
diesel fuel held at retail gas stations, so that facilities with
typical
[[Page 7041]]
inventories would be relieved from reporting. EPA based the new
thresholds on data showing that the following were typical fuel
capacities at retail stations: gas stations--approximately 32,000
gallons of gasoline overall (all grades combined), and approximately
8,000 gallons of diesel fuel overall; truck stops that retail fuel to
the public--approximately 60,000 gallons of gasoline overall, and
90,000 gallons of diesel fuel overall. [See Memorandum to the Docket
re: Gas Station Capacity and Universe. Dated October 8, 1997 (300RR-
IF1-2-26) in Docket 300RR-IF1 to this rule.]
The majority of retail gas stations, including truck stops, will
have gasoline and diesel fuel inventories below the new thresholds.
However, facilities with unusually large inventories will exceed the
thresholds and will continue to be subject to routine reporting under
EPCRA sections 311 and 312. EPA believes that the public and emergency
officials are generally aware of the approximate quantities stored at
typical gas stations (including truck stops), so emergency planning can
occur without the need for routine reporting nationwide. In contrast,
because the public and emergency officials may not be aware of the
amount stored at facilities with atypically large inventories, those
retail gas stations are still subject to annual EPCRA reporting.
One commenter suggested that EPA adopt only one threshold for
gasoline and diesel fuel, that of 100,000 gallons. EPA decided to
distinguish between gasoline and diesel fuel to specify the thresholds
because the typical amounts of gasoline and diesel fuel found at retail
gas stations differ. The Agency believes that 75,000 and 100,000
gallons are the upper bound quantities for gasoline and diesel fuel
respectively that are stored at typical retail gas stations. Retail gas
stations with unusually large inventories of gasoline or diesel fuel
are still required to report, since they store atypical amounts of
gasoline and/or diesel fuel. Providing a single 100,000-gallon
threshold for both gasoline and diesel fuel would extend the reporting
exclusion to stations holding unusually large quantities of gasoline.
In addition, some commenters argued that EPA should regulate
gasoline and diesel fuel under EPCRA in a manner consistent with the
Spill Prevention, Control, and Countermeasures (SPCC) regulations at 40
CFR 112. Under the SPCC regulations, the capacity (for underground
storage of oil, including gasoline and diesel fuel) that triggers the
requirement for development of an SPCC plan is 42,000 gallons.
Commenters argued that if the thresholds for gasoline or diesel fuel
were to be raised, they should not be higher than 42,000 gallons.
EPA does not believe that the thresholds established for EPCRA
sections 311 and 312 reporting need to be consistent with the Spill
Prevention, Control, and Countermeasures (SPCC) program, because these
programs serve very different purposes. The EPCRA reporting thresholds
should be based on the purpose to be served by the information
reported. The purpose of the SPCC program is to help prevent discharges
of oil from certain aboveground and underground storage facilities. The
SPCC program requires regulated facilities to prepare SPCC plans that
address the facility's design, operation, and maintenance procedures
established to prevent spills from occurring, as well as
countermeasures to control, contain, clean up, and mitigate the effects
of an oil spill that could affect navigable waters and adjoining
shorelines. The SPCC reporting quantity was established commensurate
with this purpose. In contrast, the purpose of EPCRA sections 311 and
312 reporting is to provide information to the public about the
presence of hazardous chemicals in their community and to emergency
planners and responders for emergency planning, prevention, and
response. EPA believes that EPCRA's purposes are served by the
threshold levels proposed in this rulemaking.
Further, the purpose of the increase in the EPCRA thresholds for
gasoline and diesel fuel, when stored in tanks entirely underground in
typical amounts at facilities that are in compliance with the UST
program, is to exclude facilities where emergency response officials
and the public are generally aware of the approximate gasoline and
diesel fuel quantities stored at those facilities. Thus, the increased
thresholds for retail gas stations will promote a more manageable EPCRA
program while still providing the information needed to protect the
public health and safety of individuals in the community and emergency
response officials. The SPCC threshold proposed by commenters would not
fully serve this purpose because it is too low. If EPA adopted the SPCC
threshold, many retail gas stations that EPA intends to exclude would
continue to routinely report on their gasoline and diesel fuel
inventories under EPCRA, although emergency response officials and the
public are generally aware of the approximate quantities stored at
those facilities.
In addition, because EPA believes that the UST program offers
equivalent protection to the SPCC program, EPA has proposed regulations
(56 FR 54612, 54625, October 22, 1991) to exclude from SPCC coverage
underground storage tanks (as defined in section 112.2 of the SPCC
rule) currently subject to the technical requirements of the UST
program in 40 CFR part 280. Thus, the SPCC threshold quantities would
no longer be applicable to these tanks.
H. Zero Threshold for Reporting in Response to Requests for Information
EPCRA regulations provide that a facility owner or operator must
submit an MSDS to the LEPC upon request, and must submit Tier II
inventory information to the SERC, LEPC or fire department upon request
(see 40 CFR 370.21(d) and 370.25(c)). The regulations also specify that
the threshold for reporting in response to requests for MSDS or Tier II
inventory information is zero. In other words, a facility with any
quantity of a hazardous chemical is required to provide information
upon request by the SERC, LEPC or fire department. In the preamble to
the June 8 proposal, EPA pointed out that the zero threshold provision
is a useful tool that any SERCs, LEPCs or fire departments who want
information from retail gas stations can use to obtain such
information.
Several commenters on the proposal discussed the zero threshold
provision for reporting information in response to requests. A
commenter stated that EPA must maintain the zero reporting threshold
for requested information from retail gas stations. Another stated that
maintaining the zero threshold will encourage states to require annual
Tier II reporting, which will increase the burden on facilities (Tier
II information is more comprehensive than Tier I information).
The zero threshold provision for reporting in response to a request
for MSDS or Tier II inventory information has been in effect since
October 15, 1987, when EPA promulgated a final rule establishing the
reporting requirements under EPCRA sections 311 and 312 (52 FR 38344).
EPA has not proposed to change the zero threshold provision. Moreover,
EPA understands that most states require Tier II reports annually under
state laws or regulations; today's rule does not affect these state
requirements.
EPA has determined that routine reporting under EPCRA sections 311
and 312 is not needed nationwide for gasoline and diesel fuel stored at
retail gas stations under the criteria set forth in this rule. Some
state and local governments, however, may want MSDS or inventory
information from retail gas
[[Page 7042]]
stations. The zero threshold provision for reporting in response to
requests provides state and local agencies the flexibility to customize
the information that they receive to their emergency planning needs and
the needs of their communities. They can tailor their requests to
include any subset of the sections 311 and 312 information, by
indicating in a request that the respondent may comply with the request
by providing only the specified information. For example, they could
request only the emergency contact information. Also, they can request
that information be reported at any threshold level that suits their
needs, from zero up to the federal thresholds.
I. Effect of the Timing of This Rule on State and Local Programs
A few states suggested that if they want to continue to receive
routine EPCRA reports from retail gas stations, it will be difficult to
enact state legislation in time for it to be effective before EPA's
gasoline and diesel fuel threshold changes take effect. Some asked that
EPA allow time for outreach to facilities, or for state and local
officials to make adjustments to their programs.
EPA notes that the Agency has discussed the issue of raising the
thresholds for reporting of gasoline and diesel fuel for retail gas
stations for many years with state officials as a way to eliminate
duplication of reporting requirements with the UST programs. Recently,
EPA discussed this issue with state officials at the Hazardous Material
Spills Conference in April 1998. The proposal to raise the thresholds
was issued in June 1998; EPA has continued communicating with
stakeholders since the publication of the proposed rule. EPA indicated
its intent to raise these reporting thresholds effective for reports
due March 1, 1999, in a letter to SERCs dated November 30, 1998.
EPA acknowledges the difficulties in the timing of this rulemaking
for SERCs, LEPCs or fire departments that want to receive information
from retail gas stations, but does not believe that these outweigh the
benefits nationwide in reducing an unnecessary burden for all
communities. EPA is willing to work with states to assist with
compliance packages and in other ways during this transition period,
and so indicated in the November 30, 1998 letter to the SERCs. EPA does
not believe that continuing this reporting nationwide for an additional
year is justified. States still have authority to obtain the
information through requesting information under sections 311 and 312,
through the UST programs, and possibly using other existing state and
local statutes or establishing new ones.
J. Effect of This Rule on the Regulatory Burden to Emergency Planners
and Industry
Some commenters agreed with the Agency that the higher gasoline and
diesel fuel thresholds will decrease the regulatory burden to retail
gas stations, and the efforts of emergency planners that receive the
EPCRA reports. Other commenters stated that the proposed thresholds
will increase the burden to SERCs and LEPCs, noting in particular the
efforts associated with responding to public requests for information,
maintaining accurate lists of retail gas stations for planning
purposes, and ensuring compliance with UST requirements. Some
commenters stated that EPCRA reporting is not burdensome to gas
stations and, after the initial submission, requires only a minimal
amount of time annually.
The information collection analysis for this rule estimates a
decrease in the burden to facility respondents in complying with EPCRA
sections 311 and 312 of 587,389 hours per year. This estimate includes
the time (averaging approximately 2 hours per facility) necessary to
submit the Tier I form for the estimated 193,000 retail gas stations
now subject to the higher gasoline and diesel fuel thresholds, and the
time necessary for new retail gas stations to familiarize themselves
with the regulations (averaging approximately 10 hours per new
facility). EPA estimates an overall cost savings of more than $16
million dollars per year as a result of this rule. This figure includes
the reduction in costs to retail gas stations for complying, and the
reduction in costs to SERCs, LEPCs and fire departments for archiving
and maintaining information. EPA believes that, for SERCs, LEPCs and
fire departments that choose to manage EPCRA data for retail gas
stations, information management efforts will now be reduced because
they can tailor the collection of information to suit only their
particular needs.
Even if a retail gas station can simply copy their inventory forms
from the previous year, sign and re-date the forms, and submit them for
EPCRA compliance, the facility needs to spend time managing the
information before it is reported, ensuring the information is accurate
or modifying it to reflect changes, confirming the addresses of the
SERC, LEPC, and local fire department, and submitting the information.
Although the reduction in burden to an individual gas station by this
rulemaking may not seem large, the overall reduction nationwide is
significant.
EPA's analysis for this rule shows that the costs to SERCs, LEPCs
and fire departments nationwide will decrease by a total of
approximately $45,000, because of a reduction in the amount of
paperwork that will have to be managed under EPCRA. EPA believes that
the number of public requests to SERCs and LEPCs nationwide for MSDS
and inventory information (estimated to be over 17,000 per year) will
not change as a result of this rule. The reporting thresholds should
have no effect on a member of the public's interest in having
information on retail gas stations.
The Agency recognizes that some SERCs, LEPCs or fire departments
may consult other sources of information beyond routine EPCRA reporting
(such as state UST programs or requests for inventory information) in
developing their emergency plans and responding to public inquiries. It
is more efficient overall if only those SERCs, LEPCs or fire
departments that want or need the information obtain it, rather than
requiring reporting nationwide.
For those state or local governments that choose to enact state or
local laws to continue to receive hazardous chemical inventory reports
from gas stations, there will be effort involved in enacting such laws,
although this will be a one-time effort. The flexibility provided by
this rule allows those governments to decide where to allocate their
resources.
K. Thresholds for Other Facilities/Chemicals
In the proposal, EPA suggested that gasoline and diesel fuel stored
at retail gas stations under the criteria discussed in the rule present
a special situation for which separate reporting thresholds under EPCRA
sections 311 and 312 are warranted. In developing the proposal, EPA
considered whether any other chemicals or facilities should also be
relieved of routine EPCRA reporting, such as propane at propane
retailers; or gasoline or diesel fuel at motor pools, van and bus
lines, rental car facilities and other vehicle fleets, or marinas. EPA
did not propose to raise the reporting thresholds for any of these
other chemicals or facilities, but asked for public comment on whether
they should also be relieved from routine EPCRA reporting.
Many commenters stated that it would be inappropriate to raise the
EPCRA sections 311 and 312 reporting thresholds for facilities other
than retail gas stations. Others, however, requested that EPA expand
the applicability of the
[[Page 7043]]
increased reporting thresholds beyond retail gas stations to cover
other facilities. Types of facilities addressed in the proposal and
mentioned by the commenters include fueling stations for marinas,
rental car facilities, bus lines, motor pools, and other vehicle
fleets.
Some commenters suggested raising the thresholds for other types of
facilities that were not mentioned in the proposal, including
automobile and truck dealerships, aircraft service facilities, electric
utility operation centers, manufacturing and other non-retail
facilities, municipal and state fleet facilities (for example, school
bus and public works garages), Federal facilities, residential and
commercial buildings, and trucking terminals. Some commenters wrote
that promulgation of higher gasoline and diesel fuel thresholds for
retail gas stations will cause other industries to request similar
burden relief, which, if approved, would increase the emergency
planning burden on local agencies.
The Agency notes that this final rule only addresses and
promulgates higher reporting thresholds for gasoline and diesel fuel
when stored in tanks entirely underground at retail gas stations that
are in compliance with UST requirements. At this time EPA has not
reached a final decision on whether to expand the applicability of the
higher thresholds to other facilities. The standard 10,000-pound
reporting threshold continues to apply for gasoline, diesel fuel, and
other non-EHS hazardous chemicals stored at these other facilities.
(See below for a discussion of the definition of ``retail gas station''
for the purposes of this rule.)
Several commenters addressed propane retailers and propane,
suggesting that propane should not be eligible for a higher reporting
threshold. A few commenters suggested that raising the thresholds for
gasoline and diesel fuel may cause industry to request that thresholds
for other substances, such as propane, also be raised. Some commenters
requested that the higher threshold apply to kerosene. Most of these
commenters stated that kerosene is very similar to diesel fuel and,
thus, should be subject to the same 100,000-gallon proposed reporting
threshold. Commenters also mentioned other petroleum products,
including heating fuels (for example, #2 fuel oil), aviation fuel, and
other alternative fuels (for example, methanol- and ethanol-related
mixtures M85, E85, and E95).
This final rule only addresses and promulgates higher reporting
thresholds for gasoline and diesel fuel when stored in tanks entirely
underground at retail gas stations that are in compliance with UST
requirements. At this time the Agency has not reached a final decision
on whether to expand the applicability of the higher thresholds to
substances other than gasoline and diesel fuel. For the purposes of
this rule, however, EPA does not consider the substances listed by the
commenters to be included in the higher thresholds established for
gasoline and diesel fuel. (See below for a discussion of the meaning of
the terms ``gasoline'' and ``diesel fuel'' for the purposes of this
rule.) The standard 10,000-pound reporting threshold continues to apply
to all non-EHS hazardous chemicals, except gasoline and diesel fuel
stored at retail gas stations under the criteria set forth in this
rule.
L. Gasoline and Diesel Fuel Thresholds in Gallons Rather Than Pounds
A number of commenters addressed the Agency's decision to set the
proposed higher thresholds for gasoline and diesel fuel in gallons
instead of pounds. Many of these supported the change to gallons.
Others suggested that EPA change thresholds for all liquids to gallons
and that reporting should be in gallons as well.
This rulemaking addresses only new thresholds for gasoline and
diesel fuel held entirely underground at retail gas stations. The
Agency chose to express the thresholds in gallons instead of pounds to
make it easier for retail gas stations to make their compliance
determination, since their gasoline and/or diesel inventory is
typically expressed in gallons. EPA's proposal did not address other
issues that commenters have raised, including changing thresholds for
other liquids from pounds to gallons or reporting in gallons instead of
or in addition to pounds. These other changes are outside the scope of
this rulemaking.
EPA believes that very few retail gas stations will have
inventories over the new gasoline and diesel fuel thresholds and will
therefore need to report. For those who must report, consistent with
past practices and the reporting requirements of EPCRA, reporting as
required in Federal regulations is in pounds. States may (as some do
already) allow reporting in gallons, in pounds, or in both, consistent
with their statutes, past practices, and any reporting structures or
software they may have developed.
One commenter requested that the Agency eliminate all range codes
used to report inventory information, and require written inventory
amounts with all liquids in gallons and all dry chemicals in pounds.
EPA's proposed rule did not address elimination of or changes to the
codes; such a change is outside the scope of this rulemaking.
M. Defining Gasoline and Diesel Fuel
A number of commenters discussed whether ``gasoline'' and ``diesel
fuel'' should be defined for purposes of this rule. Some argued for
definitions; others agreed with the Agency that such definitions are
not needed. Among those supporting definitions, some stated that
kerosene should be included in the definition of diesel fuel as should
heating fuel and aviation fuel. One commenter asserted that lack of a
definition could lead to the application of the new thresholds to
alternative fuel mixtures that contain large concentrations of methanol
or ethanol.
The concepts of ``gasoline'' and ``diesel fuel,'' used as fuel in
motor vehicles (or motor vehicle type engines), are generally
understood by the regulated community and the public. Therefore, EPA
does not believe that formal definitions are needed for the purposes of
this rule. Definitions for ``gasoline'' and ``diesel fuel'' might be
too broad or too narrow for their use in this rule and would require
revisions for new gasoline or diesel fuel formulations. Codifying
formal definitions of ``gasoline'' and ``diesel fuel'' would add
unnecessary complexity to this rule since these terms are popularly
understood.
Alternative fuels containing different proportions of ethanol,
alternative fuels containing methanol, other alternative fuels,
aviation fuel, heating fuel, and kerosene are not generally described
as or called ``gasoline'' or ``diesel fuel'' and are not commonly
understood to be present at retail gas stations. One exception--EPA
includes gasohol within the term ``gasoline'' for purposes of this
rule. Gasohol, which is composed of at least 90 percent gasoline and up
to 10 percent ethanol, is commonly understood to be included in the
term ``gasoline.'' Therefore, this regulation, which establishes new
thresholds for gasoline and diesel fuel at retail gas stations, does
not apply to any alternative fuels (except for gasohol), aviation fuel,
heating fuel or kerosene. The standard hazardous chemical threshold of
10,000 pounds (or lower thresholds for EHSs) continues to apply to
these other fuels.
A few commenters suggested the need for clarification of the
Chemical Abstracts Service Registry Number (CASRN) for gasoline and
diesel fuel. EPA believes that listing CAS numbers for gasoline and
diesel fuel is unnecessary and could cause confusion for both gas
station operators and the
[[Page 7044]]
general public who may not be familiar with CAS numbers. As noted
above, the general public is familiar with the terms ``gasoline'' and
``diesel fuel'; specifying CAS numbers, which are unfamiliar to many
and subject to change, may cause confusion and will not add clarity.
EPA recognizes that there are various formulations of gasoline
throughout the year as well as differences in formulations throughout
the country, adding to possible confusion should EPA begin to specify
subsets of ``gasoline.''
N. ``Retail Gas Station'' Definition
Several comment letters discussed the definition proposed for
``retail gas station'' for this rule. One commenter stated that the
phrase ``retail gas station'' need not be defined because it is
commonly understood. Others objected to the inclusion of the phrase
``convenience store'' and argued for the inclusion of truck stops. For
the purposes of this rule, EPA defines ``retail gas station'' as ``a
retail facility engaged in selling gasoline and/or diesel fuel
principally to the public, for motor vehicle use on land.'' EPA asserts
that this definition is sufficient for the purposes of this rule
because the Agency's intended meaning is clearly understood by the
general public. The Agency believes that a definition of ``retail gas
station'' is necessary for the purposes of this rule to limit use of
the new gasoline and diesel fuel thresholds to those facilities that
meet the specific criteria set forth in the rule.
EPA has added the phrase ``for motor vehicle use on land'' to the
definition of ``retail gas station'' as it was published in the
proposed rule. The Agency added this phrase to clarify that gas
stations in marinas and airports that sell fuel for boats or airplanes
are not intended to be included in the definition of ``retail gas
station'' for the purposes of this rule at this time. EPA received some
comments suggesting that the new gasoline and diesel fuel thresholds be
applied to facilities other than ``retail gas stations.'' The Agency
has not reached a decision on whether to apply the new thresholds at
other facilities. The new thresholds apply only at ``retail gas
stations'' as defined in this rule.
A commenter suggested that ``truck stops'' be explicitly included
in the definition of ``retail gas station.'' EPA intends that any truck
stop that is a retail facility engaged in selling gasoline and/or
diesel fuel principally to the public is included in the definition of
``retail gas station'' for the purposes of this rule. Such a truck stop
is covered by EPA's definition of ``retail gas station'; therefore,
truck stops need not be explicitly included. Convenience stores that
retail gasoline to the public are also covered by EPA's definition of
``retail gas station,'' and need not be explicitly included. EPA has
chosen to promulgate a broad definition of ``retail gas station,''
rather than listing specific facilities such as truck stops or
convenience stores that retail gasoline, to avoid excluding other
facilities by implication.
One commenter suggested that EPA not include convenience stores
under the proposed rule because not all convenience stores sell
gasoline. EPA notes that convenience stores that sell gasoline and
diesel fuel satisfy the same criteria described in the proposal that
apply to other retail gas stations; namely, the public and local
emergency officials are generally familiar with the location of these
facilities and the hazards associated with the gasoline and diesel fuel
dispensed there, convenience stores typically store gasoline and diesel
fuel in tanks that are entirely underground, and these tanks are
regulated under RCRA's UST program. Convenience stores that are also
retail gas stations have recognizable pumps, which the public can
readily see. As with other retail gas stations, convenience stores that
retail gasoline and diesel fuel to the public advertise the presence of
these fuels at their facilities, invite the public to come on site, and
generally allow the public to dispense the fuels themselves.
A number of organizations submitted comments on the issue of
specific SIC/NAICS codes for retail gas stations covered by the
proposal. Some commenters supported the listing of specific SIC or
NAICS codes, while others did not think such codes were necessary or
useful. EPA has determined that SIC/NAICS codes are too restrictive and
should not be used to determine applicability of the new gasoline and
diesel fuel thresholds. SIC codes (to be replaced eventually with NAICS
codes) can change with shifts in the economy and, if specified, could
possibly include facilities not meeting the criteria for the new
thresholds. The use of multiple overlapping codes would only add
confusion.
V. Regulatory Analysis
A. Executive Order 12866
Under Executive Order 12866 [58 FR 51735, October 4, 1993], the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more
or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with
an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements,
grants, user fees, or loan programs or the rights and obligations of
recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of the Executive Order, it has been
determined that this rule is a ``significant regulatory action''
because it raises novel policy issues. Nevertheless, after reviewing
information regarding this action, OMB has waived review of this
action.
B. Executive Order 12875
Under Executive Order 12875, EPA may not issue a regulation that is
not required by statute and that creates a mandate upon a State, local
or tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments, or EPA consults with those governments. If EPA complies by
consulting, Executive Order 12875 requires EPA to provide to the Office
of Management and Budget a description of the extent of EPA's prior
consultation with representatives of affected State, local and tribal
governments, the nature of their concerns, any written communications
from the governments, and a statement supporting the need to issue the
regulation. In addition, Executive Order 12875 requires EPA to develop
an effective process permitting elected officials and other
representatives of State, local and tribal governments ``to provide
meaningful and timely input in the development of regulatory proposals
containing significant unfunded mandates.''
Today's rule does not create a mandate on State, local or tribal
governments. The rule does not impose any enforceable duties on these
entities. Accordingly, the requirements of section 1(a) of Executive
Order 12875 do not apply to this rule.
C. Executive Order 12898
Executive Order 12898 requires that each Federal agency make
achieving environmental justice part of its mission by identifying and
addressing, as
[[Page 7045]]
appropriate, disproportionately high and adverse human health or
environmental effects of its programs, policies, and activities on
minorities and low-income populations. EPA has determined that the
regulatory changes in this rule will not have a disproportionate impact
on minorities and low-income populations. This rule does not address
health or environmental risks or standards. Furthermore, this rule will
affect regulated entities (retail gas stations) that are located
throughout all communities, not only in low income or minority
communities.
D. Executive Order 13045
Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'': (62 FR 19885, April 23, 1997) applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under E.O. 12866, and (2) concerns an environmental health
or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
EPA interprets E.O. 13045 as applying only to those regulatory
actions that are based on health or safety risks, such that the
analysis required under section 5-501 of the order has the potential to
influence the regulation. This rule is not subject to E.O. 13045
because it does not establish an environmental standard intended to
mitigate health or safety risks. In addition, the rule is not subject
to the Executive Order because it is not economically significant as
defined in Executive Order 12866.
E. Executive Order 13084
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected officials and other
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.''
Today's rule does not significantly or uniquely affect the
communities of Indian tribal governments. This rule raises existing
reporting thresholds for gasoline and diesel fuel at retail gas
stations nationwide. In cases where the Indian tribal governments are
themselves subject to the reporting requirements, this rule reduces
their reporting burden. Accordingly, the requirements of section 3(b)
of Executive Order 13084 do not apply to this rule.
F. Regulatory Flexibility Act
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996), whenever an agency is required to publish a notice of rulemaking
for any proposed or final rule, it must prepare and make available for
public comment a regulatory flexibility analysis that describes the
effect of the rule on small entities (i.e., small businesses, small
organizations, and small governmental jurisdictions). This analysis is
unnecessary, however, if the agency's administrator certifies that the
rule will not have a significant economic impact on a substantial
number of small entities.
EPA has examined this rule's effect on small entities as required
by the Regulatory Flexibility Act and has determined that this action
will not have a significant economic impact on a substantial number of
small entities. This rule would reduce regulatory burdens for small
entities. The overall economic effect of this regulation has been
determined to equate to 587,389 hours of burden reduction at a total
cost saving of approximately $16 million per year to all regulated
entities. Therefore, this regulation will result in a cost savings.
Accordingly, the Agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
This rule, therefore, does not require a regulatory flexibility
analysis.
G. Paperwork Reduction Act
The Office of Management and Budget (OMB) has approved the
information collection requirements contained in this rule under the
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and
has assigned OMB control number 2050-0072.
EPA currently has an approved ICR (ICR No. 1352.06) of $66,435,442
for the existing EPCRA sections 311 and 312 reporting requirements (40
CFR part 370). This burden estimate is based on the estimates of
803,682 annual responses from 679,051 respondents. The average burden
for MSDS reporting under 40 CFR 370.21 is estimated at 12.8 hours for
new and newly regulated facilities and approximately 2 hours for those
existing facilities that obtain new or revised MSDSs or receive
requests for MSDSs from local governments. For new and newly regulated
facilities, this burden includes the time required to read and
understand the regulations, to determine which chemicals meet or exceed
reporting thresholds, and to submit MSDSs or lists of chemicals to
SERC, LEPCs, and local fire departments. For existing facilities, this
burden includes the time required to submit revised MSDSs and new MSDSs
to local officials. The average reporting burden for facilities to
perform Tier I or Tier II inventory reporting under 40 CFR 370.25 is
estimated to be approximately 3.2 hours per facility, including the
time to develop and submit the information. There are no recordkeeping
requirements for facilities under EPCRA sections 311 and 312. The
average burden for state and local governments to respond to requests
for MSDSs or Tier II information under 40 CFR 370.30 is estimated to be
0.25 hours per request.
As part of the President's program for reinventing government and
reforming regulatory policy, EPA is reducing the reporting burden
imposed by the EPCRA regulations at 40 CFR Part 370. EPA anticipates
that today's final rule will reduce the burden on facilities for part
370 from 2,960,215 hours to 2,372,826 hours, for a reduction of 587,389
hours under ICR number 1352.06. EPA estimates the overall cost savings
(including burden hour costs) from this rule to be more than $16
million. This figure includes estimated cost savings for facilities of
approximately $16 million nationwide; and estimated cost savings for
SERCs, LEPCs and fire departments of approximately $45,000 nationwide.
The savings for SERCs, LEPCs and fire departments result from a
reduction in the capitol costs needed to archive and maintain
information.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a
[[Page 7046]]
Federal agency. This includes the time needed to review instructions;
develop, acquire, install, and use 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.
In the ICR associated with this regulation (ICR number 1352.06),
the agency has decided to adjust the time necessary for SERCs and LEPCs
to respond to public inquiries from .17 hours to .25 hours. This
adjustment is not due to today's action, but rather the Agency is
taking this opportunity to make this adjustment because the Agency
believes that the average time of .25 hours per request more adequately
reflects the time necessary to respond to public inquiries.
EPA is also taking this opportunity to amend the table of currently
approved information collection request (ICR) control numbers issued by
OMB for various regulations. Today's changes amends the table to list
those information requirements promulgated under the Hazardous Chemical
Reporting: Community Right-to-Know which appeared in the Federal
Register on October 15, 1987 (52 FR 38333). The affected regulations
are codified at 40 Code of Federal Regulations (CFR) part 370. EPA will
continue to present OMB control numbers in a consolidated table format
to be codified in 40 CFR part 9 of the Agency's regulations, and in
each CFR volume containing EPA regulations. The table lists the section
numbers with reporting and recordkeeping requirements, and the current
OMB control numbers. This listing of the OMB control numbers and their
subsequent codification in the CFR satisfy the requirements of the
Paperwork Reduction Act (44 U.S.C. 3501 et seq.) and OMB's implementing
regulations at 5 CFR part 1320.
This ICR was previously subject to public notice and comment prior
to OMB approval. As a result, EPA finds that there is ``good cause''
under section 553(b)(B) of the Administrative Procedures Act (5 U.S.C.
553(b)(B)) to amend this table without prior notice and comment. Due to
the technical nature of the table, further notice and comment would be
unnecessary.
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.
H. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 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 the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the 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 alternative
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 why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the 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 in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
Today's rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for state, local and tribal
governments or the private sector. This rule does not impose an
enforceable duty on any state, local or tribal governments or the
private sector. For this same reason, EPA has determined that this rule
does not contain a Federal mandate that may result in expenditures of
$100 million or more for state, local and tribal governments, in the
aggregate, or the private sector in any one year. Thus, today's rule is
not subject to the requirements of sections 202 and 205 of UMRA.
EPA also has determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. The intent of this rule is to provide burden relief to
regulated entities, including small governments.
I. National Technology Transfer and Advancement Act
As noted in the proposed rule, Section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (``NTTAA''), Pub. L.
104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use
voluntary consensus standards in its regulatory activities unless to do
so would be inconsistent with applicable law or otherwise impractical.
Voluntary consensus standards are technical standards (e.g., materials
specifications, test methods, sampling procedures, and business
practices) that are developed or adopted by voluntary consensus
standards bodies. The NTTAA directs EPA to provide Congress, through
OMB, explanations when the Agency decides not to use available and
applicable voluntary consensus standards.
This action does not involve technical standards. Therefore, EPA
did not consider the use of any voluntary consensus standards.
J. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. This action is not
a ``major rule'' as defined by 5 U.S.C. 804(2). This rule will be
effective February 11, 1999.
List of Subjects in 40 CFR parts 9 and 370
Environmental protection, Chemicals, Community right-to-know,
Disaster assistance, Hazardous Substances, Intergovernmental relations,
Natural resources, Reporting and recordkeeping requirements, Superfund.
[[Page 7047]]
Dated: February 4, 1999.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, 40 CFR parts 9 and 370 are
amended as follows:
PART 9--OMB APPROVALS UNDER THE PAPERWORK REDUCTION ACT
1. The authority citation for part 9 continues to read as follows:
Authority: 7 U.S.C. 135 et seq., 136-136y; 15 U.S.C. 2001, 2003,
2005, 2006, 2601-2671; 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33
U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318, 1321, 1326, 1330,
1342, 1344, 1345 (d) and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR,
1971-1975 Comp. p. 973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g,
300g-1, 300g-2, 300g-3, 300g-4, 300g-5, 300g-6, 300j-1, 300j-2,
300j-3, 300j-4, 300j-9, 1857 et seq., 6901-6992k, 7401-7671q, 7542,
9601-9657, 11023, 11048.
2. Section 9.1 is amended by adding a new heading with entries in
numerical order to the table to read as follows:
Sec. 9.1 OMB approvals under the Paperwork Reduction Act.
* * * * *
------------------------------------------------------------------------
OMB control
40 CFR citation No.
------------------------------------------------------------------------
* * * * *
Hazardous Chemical Reporting: Community Right-to-Know
370.21..................................................... 2050-0072
370.25..................................................... 2050-0072
370.30..................................................... 2050-0072
* * * * *
------------------------------------------------------------------------
PART 370--HAZARDOUS CHEMICAL REPORTING: COMMUNITY RIGHT-TO-KNOW
1. The authority citation for part 370 continues to read as
follows:
Authority: Secs. 311, 312, 324, 325, 328, 329 of Pub. L. 99-499,
100 Stat. 1613, 42 U.S.C. 11011, 11012, 11024, 11025, 11028, 11029.
2. Section 370.20 is revised to read as follows:
Sec. 370.20 Applicability.
(a) General. The requirements of this subpart apply to any facility
that is required to prepare or have available a material safety data
sheet (MSDS) for a hazardous chemical under the Occupational Safety and
Health Act of 1970 and regulations promulgated under that Act.
(b) Minimum threshold levels. Except as provided in paragraph
(b)(5) of this section, the minimum threshold level for reporting under
this subpart shall be as specified in paragraphs (b)(1), (b)(2), (b)(3)
and (b)(4) of this section:
(1) The minimum threshold for reporting for extremely hazardous
substances is 500 pounds (or 227 kgs--approximately 55 gallons) or the
TPQ, whichever is lower.
(2) The minimum threshold for reporting for gasoline (all grades
combined) that was in tank(s) entirely underground, at a retail gas
station that was in compliance at all times during the preceding
calendar year with all applicable Underground Storage Tank (UST)
requirements (40 CFR part 280 or requirements of the state UST program
approved by the Agency under 40 CFR part 281), is 75,000 gallons (or
approximately 283,900 liters). For purposes of this part, retail gas
station means a retail facility engaged in selling gasoline and/or
diesel fuel principally to the public, for motor vehicle use on land.
(3) The minimum threshold for reporting for diesel fuel (all grades
combined) that was in tank(s) entirely underground, at a retail gas
station that was in compliance at all times during the preceding
calendar year with all applicable UST requirements (40 CFR part 280 or
requirements of the state UST program approved by the Agency under 40
CFR part 281), is 100,000 gallons (or approximately 378,500 liters).
(4) The minimum threshold for reporting for all other hazardous
chemicals is 10,000 pounds (or 4,540 kgs.)
(5) The minimum threshold for reporting in response to requests for
submission of an MSDS or a Tier II form under Secs. 370.21(d) and
370.25(c) of this part shall be zero.
(c) MSDS reporting. The owner or operator of a facility subject to
this subpart shall submit an MSDS on or before October 17, 1990 (or
within three months after the facility first becomes subject to this
subpart), for all hazardous chemicals present at the facility at any
one time in amounts equal to or greater than their thresholds.
(d) Inventory reporting. The owner or operator of a facility
subject to this subpart shall submit the Tier I form (or Tier II form)
on or before March 1, 1991 (or March 1 of the first year after the
facility first becomes subject to this subpart), and annually
thereafter, covering all hazardous chemicals present at a facility at
any one time during the preceding calendar year in amounts equal to or
greater than their thresholds.
[FR Doc. 99-3255 Filed 2-10-99; 8:45 am]
BILLING CODE 6560-50-U
![[logo] US EPA](https://webarchive.library.unt.edu/eot2008/20090514065759im_/http://www.epa.gov/epafiles/images/logo_epaseal.gif){kind=logo}