TUESDAY October 27, 1992 Part VII Environmental Protection Agency Part 372 Thresholds; Toxic Chemical Release Inventory; Community Right-to-Know; Proposed Rule (This reprint was prepared from the electronic file that accompanied the original signed documents transmitted to the Office of the Federal Register. This file was certified to be a true copy of the original.) (This document appeared at 57 FR 48706-48709.) Federal Register / Vol. 57, No. 208 / Tuesday, October 27, 1992 / Proposed Rules ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 372 [OPPTS - 400072; FRL - 4161 - 8] Thresholds; Toxic Chemical Release Inventory; Community Right-to-Know AGENCY: Environmental Protection Agency (EPA). ACTION: Notice of receipt of petition. SUMMARY: EPA is providing notice of receipt of a petition to review the threshold structure under section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA) of 1986. The petition, submitted by the Small Business Administration (SBA), requests that EPA change the threshold structure under EPCRA section 313 to exempt facilities with small source releases that meet specified release-based thresholds from the requirement to report releases. EPA is soliciting written comments on this issue. DATES: Written comments must be received by EPA on or before December 28, 1992. ADDRESSES: Three copies of comments identified with the document control number (OPPTS - 400072) must be submitted to: TSCA Public Docket Office (TS - 793), Office of Pollution Prevention and Toxics, Rm. NE - G004, Environmental Protection Agency, 401 M St., SW., Washington, DC 20460. FOR FURTHER INFORMATION CONTACT: Tamara McNamara, Economics and Technology Division (TS - 779), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 401 M St., SW., Washington, DC 20460, (202) 260 - 5997. SUPPLEMENTARY INFORMATION: Electronic Availability: This document is available as an electronic file on The Federal Bulletin Board at 9 a.m. the day of publication in the Federal Register. By modem dial 202 - 512 - 1387 or call 202 - 512 - 1530 for disks or paper copies. This file is available in Postscript, Wordperfect 5.1 and ASCII. I. Background Section 313 of the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA), 42 U.S.C. 11023, requires certain facilities manufacturing, processing, or otherwise using listed toxic chemicals above threshold amounts to report their environmental releases and transfers of such chemicals annually. Facilities covered are those in Standard Industrial Classification (SIC) codes 20 - 39 (the manufacturing sector), which exceed an activity threshold for a listed toxic chemical and have 10 or more full-time employees. Beginning with the 1991 reporting year, such facilities also must report pollution prevention and recycling data for such chemicals, pursuant to section 6607 of the Pollution Prevention Act, 42 U.S.C. 13107. Under EPCRA section 313(f)(1), the threshold amounts for reporting are 25,000 pounds per year for manufacturing (includes importing), 25,000 pounds per year for processing, or 10,000 pounds per year for otherwise using a toxic chemical. According to section 313(f)(2), EPA ``may establish a threshold amount for a toxic chemical different from the amount established'' by section 313(f)(1), provided that such revised thresholds ``obtain reporting on a substantial majority of total releases of the chemical at all facilities subject to the requirements of this section.'' II. Notice of Receipt of Petition Since the Agency first promulgated the regulations for EPCRA section 313 in 1988, (40 CFR part 372), EPA and the public's knowledge regarding releases of toxic chemicals into the environment has increased greatly. The Agency and the public have gained valuable knowledge regarding the sources and amounts of toxic chemicals released. The preamble to the EPCRA section 313 final rule states that EPA may consider changing the reporting thresholds based on several years of data collection (February 16, 1988, 53 FR 4508). The purpose of this notice is to announce the Agency's receipt of a petition requesting the review and reevaluation of the current threshold structure under EPCRA section 313. This reevaluation should be based upon information and experience acquired over the past 4 years in dealing with the Toxics Release Inventory (TRI). EPA is soliciting written comments on the issues raised in the petition. The SBA petitioned the EPA to exclude facilities with ``small source releases.'' The following is the text of the SBA petition, a copy of which is available in the Docket (see the public record section of this notice). I. Introduction Section 313 implements the public's ``right to know'' by providing an emissions inventory from facilities either using more than 10,000 pounds per year or manufacturing (or processing) more than 25,000 pounds per year of any of approximately 300 toxic chemicals or classes of chemicals. Facilities subject to this reporting requirement are required to complete a detailed toxic chemical release form for these specific chemicals. The purpose of this reporting requirement is to inform government officials and the public about releases of toxic chemicals into the environment. The preamble to the TRI final rule states that EPA may consider changing the reporting thresholds based on several years of data collection.Id. Three years have passed and there are sufficient data which indicate that the thresholds should be changed.Memo, ``Significance of Small Source Release in Total Releases and Transfers for TRI Chemicals - Preliminary Data Tables - 1988 TRI Data,'' from Kevin Bromberg, Small Business Administration to Mary Ellen Weber, Environmental Protection Agency, February 28, 1991.In response to these memos, EPA notified SBA that the agency may address the thresholds issue when it proposes to add additional SIC codes to the TRI requirement.Section 313 now applies only to manufacturing facilities, SIC codes 20 - 39, with more than 9 employees.EPA does recognize that the purpose of 313 is to implement the right to know about the release of toxic chemicals into the community. EPA has the authority to alter these reporting thresholds, as long as a ``substantial majority of total releases of chemical at all facilities whose compliance subject to the requirements'' is reported.Section 313(g) of the Superfund Amendments and Reauthorization Act of 1986. The objective of right to know is served by producing data about releases of potential concern to the community. Currently, EPA implementation of SARA mandates a collection of both significant and insignificant data. It unreasonably includes many small facilities whose compliance with present 313 regulations is overly burdensome. The TRI data base is not meaningfully improved by countless entries of zero or de minimis release figures, as it now appears with the current Congressionally-specified thresholds. Based on 1988 data, the Office of Advocacy estimated that EPA could generally exclude facilities with releases and transfers of less than 5,000 pounds annually for the vast majority of 313 chemicals and still satisfy the right to know objectives and the statutory requirements. Our data indicate that approximately 90% of the reports and less than 90% of facilities could be excluded.Memo, ``Significance of Small source Releases in Total Releases and Transfers for TRI Chemicals - Preliminary Data Tables - 1988 TRI Data,'' from Kevin Bromberg, Small Business Administration, to Mary Ellen Weber, Environmental Protection Agency, February 28, 1991 (enclosed). In this memorandum, we advised EPA to use all available data and examine releases separately from transfers. The suggested 5,000 pound exemption level is only approximate. It is highly dependent on where the level is only approximate. It is highly dependent on where the line is drawn between high release (5,000 pound exemption level) and low release chemicals (10 pound exemption level). Many small facilities which could be exempted lack the time, expertise and money that compliance requires. EPA should employ its authority to eliminate small sources from the application of current reporting and regulatory requirements. This is particularly important now, as the Senate Environment and Public Works Committee considers a vast expansion of the universe of reporting facilities without a significant examination of the levels of releases, the most important factor. II. Failure to Act Will Needlessly Impair the Effectiveness of the 313 Program Revising TRI thresholds to eliminate small sources would be more efficient, providing substantial benefits to EPA. At present, 313 includes facilities with de minimis emissions, which do not present environmental risk. The current scheme depletes scarce EPA financial resources and diminishes EPA's ability to deal with other important environmental issues. An efficient and fair reporting system would result if TRI was revised to cover only the facilities which collectively release a substantial majority of 313 chemicals (high release quantity chemicals) and could adopt a lower threshold, such as ten pounds, for the remaining chemicals (low release quantity chemicals).Id.Using these two thresholds, TRI will capture 85% or more of the releases, a ``substantial majority'' under SARA. Such a revision of thresholds would eliminate approximately 90% of the reports and a much lower percentage of facilities.Id. This modification would not allow effective information collection of a substantial majority of the releases, thus complying with 313. In addition, this policy would save EPA millions of dollars in administrative costs by avoiding the collection of unneeded data. The General Accounting Office estimated EPA's cost of administering 313 as $19 million in FYI 1990.U.S. General Accounting Office, ``EPA's Toxic Release Inventory is Useful but Can be Improved'', June 1991, GAO/RCED -91-121. If these data were removed from TRI, the EPA would have approximately a 90% reduction in administrative costs, specifically the costly printing, mailing and processing of thousands of forms. The money saved could be used to improve Federal compliance and enforcement as well as state and local participation. This threshold revision would also result in a more accurate data base. Information accuracy should not be subordinate to quantity. An unreliable data base would defeat the purpose of the ``Right to Know'' legislation. Large facilities, which are better able to compile accurate results and account for more than 85% of the releases, would still be required to report. A reliable data base is important to meet right to know objectives. III. There is a Critical Need For Immediate EPA Action Recent congressional and EPA activity, as detailed below, require EPA to expedite achievement of these threshold revisions. A. Storm water proposals: The proposed general permit for storm water dischargers unreasonably singles out 313 facilities for special and onerous requirements even though there is no evidence that such facilities are any more likely to have high risk storm water discharges than any other facilities. This rule has the potential to impose costs of more than $10,000 - $100,000 annually per facility on thousands of small businesses, without any positive effects on the environment.``An Evaluation of the Draft General Stormwater Regulations on Small Organic Chemical Plants,'' The Advent Group, Inc., June 1991. This report demonstrates that chemical plants face costs exceeding $100,000 annually. Costs at other facilities are expected to be lower but exceeding $10,000 annually. B. Hazardous Pollution Prevention Planning Act of 1991, S. 761: This bill requires all 313 facilities to implement a Hazardous Pollution Prevention Plan. This plan, at a minimum, will require an extensive analysis of the production process and an examination of economic impacts of chemical use for each 313 toxic chemical. It also requires the creation of goals for reduction in the use of chemicals, the identification of technologies, procedures, and training programs to achieve these reduction goals, and an implementation schedule. There is no reason to apply these extensive and burdensome requirements to sources which have insignificant releases. C. Resource Conservation and Recovery Act Amendments of 1991, S. 976: These Amendments require all 313 facilities to submit a toxics use and source reduction plan. The legislation also requires facilities to write a performance report every two years documenting toxics use and source reduction activities. A facility that fails to implement the plan or achieve its objectives may be required to audit its practices and to modify its plan to implement improved toxics use and source reduction practices. As stated above, a reduction plan does not make sense for facilities with insignificant releases. D. Water Pollution Prevention and Control Act of 1991, S. 1081: This bill requires 313 reporters to conduct costly environmental audits by certified auditors. Compliance with the 313 reporting requirements could result in financial duress for many small facilities. E. Peak Releases of Toxic Chemicals: Both Congress and EPA are considering a requirement for facilities to report ``peak'' or short term release figures for the release of toxic chemicals. It is illogical to report short term releases for facilities with de minimis long term releases. De minimis facilities have an annual release figure which is so low that the peak daily release is of no environmental significance. Current new requirements alone will impose costs of up to tens of thousands of dollars annually on each TRI facility with only minimal environmental benefits. The Federal government and the states will save substantial enforcement and implementation resources by avoiding the imposition of these unnecessary requirements. EPA should use its discretionary authority to exempt small businesses from these inappropriate regulations by revising the 313 thresholds. IV. Failure to Revise the Thresholds Inhibits TRI Reporting The rigid and inappropriate application of TRI and other rules to small business TRI reporters provides a disincentive for small sources to report under 313. There is a perverse inequity for small businesses that do comply. If a business complies, it will be overburdened by the TRI reporting and other related regulatory burdens. Noncompliers face no such burdens. These increased costs will place the complying facilities at a competitive disadvantage with those businesses which avoid reporting. As you know, it is extremely difficult for EPA and the states to identify noncompliers. In order to eliminate this competitive inequity, the small sources should be eliminated from TRI. V. Conclusion The 313 threshold levels should be immediately revised to exclude small sources and small businesses from unnecessary regulations. Small sources release an insignificant amount of 313 chemicals and have a minimal environmental impact. EPA should use its discretionary authority to exempt them while still complying with the 313 statute. Collection of these data needlessly drains the EPA's resources. Millions of dollars annually can be saved for more important EPA functions. The thresholds also should be revised because collection of this data results in an inaccurate data base, which detracts the ``Right to Know.'' Those smaller sources which do report must bear onerous regulatory costs that do not contribute to environmental quality. Those which do report subject themselves to the further inequity of being at a competitive disadvantage with those which do not report. For these reasons, the 313 threshold levels should be revised as soon as practical. III. Request for Public Comment EPA has identified certain issues associated with this petition for which the Agency is requesting public comment. A. Statutory Issue The authority granted the Administrator under section 313(f)(2) may not allow a release-based modification to the threshold structure of the type proposed by SBA. Section 313(f)(1) establishes reporting thresholds based on specified amounts of toxic chemicals manufactured, processed, or otherwise used at a facility. Section 313(f)(2) explicitly states that the Administrator can establish threshold amounts which differ from those established by the statute. Based on this language, section 313(f)(2) could be interpreted as contemplating only revisions to the types of amounts specified in the statute (i.e., manufacturing, processing, or use). In light of the statutory language, EPA requests comment on whether the statute could be interpreted to change the basis of the threshold structure by excluding facilities whose releases fall below a specified threshold. B. Burden on Small Businesses The current legislative threshold construct of EPCRA does address the issue of small businesses and small sources. The 10 full-time employee and activity-based thresholds in section 313(b)(1) exempt a portion of small businesses. EPA estimates that there are approximately 180,000 facilities in SIC codes 20 - 39. Actual reporting is by approximately 23,000 facilities. Therefore, the current activity thresholds effectively exclude 83 percent of the universe of potential submitters. Such excluded facilities would fall into one of three categories: A non-source (i.e., they do not handle a TRI listed chemical); a below-threshold source that is not a small business; or a below threshold source that is a small business. EPA does not have data on the distribution within these three categories in order to actually quantify how many small businesses are excluded from the reporting requirement by the current thresholds. EPA is requesting comment on the effectiveness of the current threshold structure to limit the burden on small businesses. Although the SBA petition requests that EPA exempt small sources from release reporting, setting a release-based threshold shifts the focus to the operation of the facility rather than its size. Therefore, any size facility could qualify for the exemption if its releases were under the threshold. This approach neither defines small businesses nor suggests an acceptable level of burden for those small businesses which meet the reporting criteria. EPA's analysis of the 1990 TRI data (Refs. 1, 2, and 3) show that 9,361 facilities submitted all forms with total releases and transfers less than 5,001 pounds. For approximately one-third of these facilities, EPA was able to cross reference the number of employees through the Facility and Compliance Tracking System (FACTS). Using 50 employees as a cut-off point for small businesses, EPA found that approximately one-half of the facilities qualified as ``small.'' A breakdown by SIC code shows that only one industry, SIC major group 29 the food industry, has a much greater than 50 percent number of facilities that reported all releases and transfers under 5,000 pounds. A majority of the industries were closer to a 50/50 split between those facilities reporting all forms under 5,000 pounds and those facilities submitting some reports below 5,000 pounds and some reports above 5,000 pounds. EPA would like comments on the type of criteria that could be considered (e.g., the size of the facility, the volume of the release, a combination of the above, or some other criteria) to address SBA's concerns. Under SBA's proposal, small businesses that do meet the reporting criteria would still have a reporting burden. Even with a release-based threshold, facilities will still be required to determine if the chemical is covered under TRI, what activities the chemical is involved in at the facility, and calculate how much of the chemical is released before they can conclude they do not have to report. In this instance, the facility would be relieved of the actual filling out of the form and filing it with EPA and the State, but would still have to make the determination that the exclusion is applicable. EPA would like to receive comment on whether small businesses would find it difficult to make this determination and, if so, how the burden could be reduced. C. Appropriateness of Release Based Thresholds One of the purposes of EPCRA is to provide citizens with knowledge about chemicals in their communities. EPA would also like to receive comment on whether this type of modification to the threshold structure would limit public access to meaningful chemical release information. The Agency is aware of other concepts for release-based thresholds. Legislation has been introduced, on both the House and Senate sides, that could expand EPCRA section 313 reporting (e.g., S. 976 (Baucus); H.R. 2880 (Sikorski); S. 2123 (Lautenberg); S. 2360 (Durenberger)). The bills include a release-based structure to supplement, not replace, the activity-based thresholds. In addition to the current manufacture, process, or otherwise use activity levels, releases of 100 pounds for any covered metal or metal category and 2,000 pounds of other covered chemicals in a calendar year would trigger reporting. In taking this approach, the draft legislation proposes an inclusive release-based structure versus the exclusive SBA approach. The approach outlined by SBA in their petition is to exclude reports from facilities not meeting a release threshold for a given chemical. EPA is requesting public comment on the relative merit of release-based thresholds and how they may best be applied for the purposes of TRI reporting. EPA's analysis of 1990 TRI data (Refs. 1, 2, and 3) shows that approximately 10 percent of all forms submitted have no release or transfer values reported (i.e., the report only has zero releases or not applicable). SBA's proposal would eliminate reports with zero total releases and transfers. EPA requests comments on the effect that eliminating these reports would have on the usefulness of the TRI data. A large percentage of these zero reports were submitted for mineral acids which have been used in high volume but are effectively neutralized prior to release, and transfers of metals or metal compounds which were recycled/reused on-site or off-site. For reporting years 1991 and beyond, due to the elements mandated by the Pollution Prevention Act of 1990 (PPA), the amount of acid treated or metal recycled will appear on the Form R. Also, the amount of metal sent off-site for recycle is now required to be reported. In addition, reports of zero releases may indicate highly efficient processes which are important for pollution prevention purposes. An analysis of the 1990 TRI data (Refs. 1, 2, and 3) shows the following distribution of releases and transfers: 컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴 Range (pounds) Forms 컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴 0/NA 8,417 1-10 5,023 11-100 3,968 101-500 3,421 501-1000 6,795 1001-2000 5,262 2001-3000 2,844 3001-4000 2,031 4001-5000 1,590 5000 35,258 Total 1990 Forms 84,609 컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴 Based on this distribution, 49,351 forms were submitted with all releases and transfers below 5,000 pounds. This accounts for about 58 percent of the total number of forms submitted. This number will decrease for reporting years 1991 and beyond because additional off-site transfer amounts, particularly for treatment and recycle, will be reported on Form R. The PPA requires facilities to submit information on the amount of toxic chemicals entering waste streams. A low or no volume release figure is an ``end of pipe'' number that may or may not be reflective of amounts entering waste streams. One of the major purposes of the PPA reporting is to identify trends in waste management and the implementation of source reduction. EPA seeks comment on what impact a release-based threshold of the type proposed by SBA would have on meeting the objectives of the PPA. The Agency is requesting comment on the effect of this type of threshold revision on the enforcement program under EPCRA section 313. A release-based approach would require EPA, the States, or citizens to show that releases have occurred above and beyond a certain threshold. It is more burdensome to show that a release has occurred than whether an activity threshold has been exceeded. Activity thresholds are not only easier to determine but also may be verified through purchase/inventory records. In addition, EPCRA section 313 only requires facilities to report release estimates based on available data, which may or may not include monitoring data. This could pose potential enforcement problems for facilities who estimate their releases and transfers inaccurately and fail to report because they think they did not exceed the release threshold. D. Release Volume Issues EPA requests comments on the threshold levels proposed by SBA, i.e., 5,000 pounds (high release chemicals) or 10 pounds (low release chemicals). SBA suggests that releases below these levels would not pose significant risks. EPA is requesting comment on this issue. In particular, many non-metal compounds on the EPCRA section 313 list are associated with severe chronic effects. There are over 100 chemicals on the EPCRA section 313 list that are known or suspect human carcinogens. Other chemicals listed on the EPCRA section 313 list are associated with non-carcinogenic chronic effects that are induced in humans and/or animals at relatively low dose levels. In addition, others may induce effects at higher dose levels and are known to bioaccumulate. EPA requests comment on the appropriateness of the proposed levels for chemicals such as these, which constitute a majority of the EPCRA section 313 list. EPA would also like to request comment on how to factor into the threshold determination the effect that aggregate releases from small sources may have on a community when the same chemical is being released from several facilities in the area. This may increase the concentration of the chemical in the community even though individual releases from an individual source may be perceived as ``small.'' E. Alternatives EPA requests comment on alternative thresholds or other reporting provisions that would provide the public with information necessary to identify potentially hazardous situations and also provide further potential for burden reduction. For example, SBA's petition may eliminate reports from a facility altogether, which may reduce public awareness of the location and presence of listed toxic chemicals used in significant volumes. An alternative reporting mechanism might be the option to submit a ``short form'' where releases of a toxic chemical were below a certain level. That is, a facility would have to identify itself as meeting a reporting threshold for a toxic chemical but would not have to report releases and other detailed data unless so required by the Agency. This approach may provide some relief for facilities who must file under EPCRA section 313 and the PPA. Another alternative, suggested in a letter to EPA from the Small Business Coalition for A Responsible TRI Policy (Ref. 4), is a two-tier exemption scheme. This scheme proposes: (1) Exemption of reports of chemicals for ``non-highly toxic'' and high release volume chemicals for releases into any environmental media of less than 5,000 pounds per year, and (2) a ``short form'' TRI report, instead of an exemption, for releases of less than 5,000 pounds per year for ``highly toxic'' and low release volume chemicals. EPA is requesting public comment on these issues and the effect that a release-based modification to the threshold structure will have on the community right-to-know. IV. Public Docket A public record has been established and is available in the TSCA Public Docket Office from 8 a.m. to noon and 1 p.m. to 4 p.m., Monday through Friday, except legal holidays. The TSCA Public Docket Office is located in Rm. NE-G004, 401 M St., SW., Washington, DC. V. References 1. USEPA, OPPTS, IMD. Printout from the 1990 TRIS Database: Facilities with all Releases/Transfers <= 5000 pounds. (August 10, 1992): 152 pp. 2. USEPA, OPPTS, IMD. Printout from the 1990 TRIS Database: Chemicals within Release Ranges. (August 7, 1992): 52 pp. 3. USEPA, OPPTS, IMD. Printout from the 1990 TRIS Dababase: Breakdown by SIC Codes. (August 7, 1992): 2 pp. 4. Small Business Coalition for a Responsible Toxic Release Inventory Policy. Letter from K. Bromberg to S. Sasnett, ETD, OPPTS, USEPA, re: Small Business Petition to Modify TRI Threshold Structure. (August 14, 1992): 2 pp. Dated: October 14, 1992. Mark A. Greenwood, Director, Office of Pollution Prevention and Toxics. [FR Doc. 92 - 25904 Filed 10 - 26 - 92; 8:45 am] BILLING CODE 6560 - 50 - F