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Section 313(e) of EPCRA provides for petitions asking the Administrator to add or delete chemicals from the list of those subject to reporting requirements, but does not refer to petitions concerning individual SIC Codes. Nonetheless, considering the Administrator's clear authority to delete a SIC Code, this AFIA Petition is certainly within the spirit of Section 313(e), and AFIA requests EPA to process it according to any administrative mechanisms established under section 313(e). The balance of this Petition sets forth the justification for this request. Section II discusses the effect that listing under section 313 is having on AFIA members. Section III describes the operations of the animal feed industry, and  {OX Section IV provides figures on the de minimis nature of any releases of reportable chemicals from this industry. Section V discusses EPA's power and responsibility to exempt SIC Codes from reporting requirements. Section VI suggests some possible alternatives to simple exemption of SIC Code 2048 facilities. Finally, three Appendices provide important background information: Appendix A contains section 313 of EPCRA; Appendix B describes operational practices in the animal feed industry; and Appendix C sets forth the FDA's regulations on Current Goodz0*%% Manufacturing Practices (CGMPs).  yO II. The Impact of Listing Under Section 313 This Petition is not based on any concern that communities hosting AFIA members' facilities will react negatively  {O to our 313(a) reports. As is described in more detail below, for the most part these reports show zero or de minimis  yO releases. AFIA is seriously concerned with the paperwork, which is burdensome. However, the crux of our concern is that the list of covered SIC Codes contained in section 313(b) is being adopted by other, unrelated state and federal programs, often with little attention to the appropriateness of applying the new program to the particular operations included under the SIC Codes. As a result:  yO   Many such programs are not properly applicable to AFIA operations. The cumulative burden of trying to comply with these requirements, or of trying to explain on a piecemeal basis why the requirements are inappropriate, is becoming onerous. This difficulty is especially acute at the state level, where simply trying to keep up with legislative and regulatory proposals, let alone comment on all of them, imposes a substantial administrative and financial burden on any association of small businesses.  yO   AFIA members fear that the repeated implication that their operations pose risks of the release of toxic substances, even though this is untrue, will damage their standing in local communities.  yOJ   Subjecting SIC Code 2048 facilities to the reporting requirements of section 313(a) does not further the purposes of EPCRA, and imposition of these burdens on us for no discernible environmental benefit seems fundamentally irrational and unfair. Some specific examples of the ways in which inclusion within section 313 reporting requirements is affecting AFIA members are:  yO2   The Pollution Prevention Act [42 U.S.C. 13101 - 09] requires all reporters under section 313 of EPCRA to file an extensive report and source reduction plan. (As described in the next section, animal feed producers have already reduced their use of the reportable chemicals to the minimum needed for good animal nutrition, and source reduction is not only impossible but undesirable.)  yOR   EPA's proposed general permit for storm water dischargers imposes serious requirements on section 313 facilities, regardless of their realistic potential for discharges into storm water. [56 FR 40980 (Aug. 16, 1991). See particularly proposed section VI(D)(7)(b)(iii).] (In 1989, AFIA members' reports under section 313 showed only one release to storm water, and this was the result of street repairs that closed off a drain, which caused rain to flood the mill.)  yO:   Proposed amendments to RCRA [S. 976] would also require a toxics use and source reduction plan.  yO   Recent laws in New Jersey [S. 2220, enacted Aug. 1991] and Minnesota [S.F. 2173, enacted 1991] require development of pollution prevention plans by TRI reporters.  yO   In Iowa, a regulation to tax air toxic emissions requires Section 313 reporters to pay a $25 per ton fee on emissions. [ARC 2540A, emergency rule enacted under section 455B.133 of the Code of Iowa (1991).] One feed industry facility spent time and resources to determine that it owed the state 15 cents.  yO   The proposed Federal Water Pollution Prevention and Control Act of 1991 [S. 1081] would require businesses reporting under section 313 to retain certified auditors to conduct environmental audits.  yOB III. Operational Practices in t he Animal Feed IndustryB~f aE! # eJ\  PC 1P#эFor a more detailed discussion of the feed industry and the use of reportable chemicals, see Appendix B. Feed industry facilities process and blend combinations of ingredients into complete animal feed. They combine ingredients according to specific formulations dictated by professional animal nutritionists who are expert in determining the needs of each type of animal during each phase of its lifecycle. The basic processes used throughoutb"60*%% the feed industry --grinding, mixing, pelleting, extruding -- are similar and vary only according to plant volume, desired nutrient utilization, and customer preferences. At times the physical characteristics are changed to enhance nutrient utilization by the animal and to improve flowability or reduce dust at the point of use. The primary  yOX reportable chemicals in the feed industry include compounds of zinc, manganese, and copper.X~f aE # eJ\  PC 1P#эZinc compounds, manganese compounds and copper compounds, which are the substances most frequently reported by SIC 2048 facilities, are excluded from the hazardous chemical inventory reporting requirements of Section 312 because of the FDA exemption to the definition of hazardous chemical contained in Section 311(e)(1).Each is added to animal feed to provide livestock and poultry with proper nutrition. Every ingredient of feed products has either been approved by the Food and Drug Administration (FDA) or is generally recognized as safe (``GRAS'') by the scientific community. The processing of these ingredients is regulated by the FDA through Current Good Manufacturing Practices (CGMPs), which are quality control standards for the manufacture of products that are under FDA jurisdiction. [21 C.F.R. 225 - 26.] These standards address the conditions under which the product is produced, not the condition of the product itself. A product can be deemed adulterated if the conditions of production are inferior to those prescribed by FDA. CGMPs rely on good housekeeping, inventory controls and the ability to trace and locate product in the field if necessary. CGMPs require strict reconciliation of inventory and minimization of shrinkage, an emphasis that automatically minimizes releases  yOH to the environment.~H m aE # eJ\  PC 1P#эFDA's CGMP regulations are set forth in Appendix C.~ In theory, releases could result from exposure of feed ingredients to storm water, from discard, or from dust. In fact, the industry has procedures in place to ensure that any such releases are minimized:  yO   Facilities do not store reported chemicals outside. In every instance these materials are stored within the facility.  yO   With minor exceptions, all other feed ingredients are also stored inside facilities. Manufacturing is also  yOP performed indoors. Storm water is not a factor.MPd~f aE # eJ\  PC 1P#эA recent survey to gather information for a storm water group permit submittal found that only 2.4% of all SIC Code 2048 facilities store raw materials outside. In nearly every instance, such storage was for a limited period of time and/or was conducted in a locale with little rainfall, such as Nevada. In any event, the ingredients stored outside do not include reported chemicals. They included such materials as alfalfa, corn cobs, midds, rice hulls, distiller's grains, cottonseed hulls and wheat by-products.M  yOp   Discard of ingredients is non-existent or minimal. The preparation of animal feed is entirely pass-through in nature, in that the manufacturer tries to achieve 100 percent utilization of purchased ingredients, with none left over as waste.  yO   During the manufacturing process, dust collection systems and internal housekeeping practices are designed to capture any lost ingredients and recombine them back into the process. This minimizes releases. The primary methods of dust control are the baghouse, which is 95-99.9 percent efficient, and the cyclone, which is 80-95 percent efficient.  yO   The ingredients of feed arrive at a plant in bags or containers, or in bulk. Reportable chemicals are always in80*%% bags or containers and are immediately moved indoors; they do not arrive in bulk form. Also, at more than 70 percent of all facilities included in SIC Code 2048 the unloading facilities are covered.  yO   Finished product is shipped in both bag and bulk form. Nearly 87 percent of all facilities have covered loading areas, so the potential for escape of product is minimal. In addition, good housekeeping practices require immediate cleanup of any spillage.  yO IV. Level of Releases from the Animal Feed Industry Because of all the precautions discussed above, releases from feed manufacturing plants are slight. An informal survey showed that releases of reportable chemicals as a percentage of production in SIC Code 2048 facilities ranged  yO from 0 percent to 0.00073 percent.IL~f aE( # eJ\  PC 1P#эAn informal poll was taken of companies represented on the AFIA Safety & Health and Manufacturing Committees. Each was asked for the total tonnage for 1989 at the facility reporting under TRI. Release as a percentage of total tonnage was then calculated.I According to 1989 Toxic Release Inventory (TRI) data for SIC Code 2048 facilities, 43 percent of all reports showed 0 pounds released and nearly 49 percent of the reports reported releases of less than 10 pounds, as is shown  yO in Table 1: # dZ6X@K @# Table 1  Percent of Total Number Amount of Annual Release of SIC Code 2048 Percent of All Releases of Reportable Chemicals Facilities Reporting the By Facilities in 2048 Amount  0 lbs. 42.9% 0.0000%  g/   10 lbs 49.0% 0.0002%  g/$   1000 lbs 88.6% 0.0011% .MDSD/  g/ .MDNM/  5000 lbs 93.3% 0.0019%  # ]\  PC :HP# SIC Code 2048 facilities are also minor sources of releases of specific compounds. As Table 2 shows, in 1989, for the five compounds that are most frequently reported by 2048 facilities, the amounts released by these facilities  yO constituted the following percentages of total releases of the component from all reporting sources: # dZ6X@K @# Table 2  Releases by SIC Code 2048 Facilities Reportable Chemical as a % of Total Releases from All Sources  Zinc Compounds 0.0160% Manganese Compounds 0.0084% Copper Compounds 0.3700% Ammonia 0.4710%* Sulfuric Acid 0.0480% Phosphoric Acid 0.0100%  !0*%%Ԍ # ]\  PC :HP# *A single release from a single plant accounted for almost 3/4 of the Ammonia released. Without this incident, the figure for Ammonia would have been 0.1230%. For all reportable chemicals in 1989, releases to all media from SIC Code 2048 facilities accounted for just 0.21 percent of total releases reported by all industries. Furthermore, due to an oddity in reporting procedures in 1989, this figure represents an overestimate of releases from SIC Code 2048 facilities. The reporting form allowed for the reporting of ranges for releases of less than 1,000 pounds; these ranges were ``< 1'', ``1 - 499'', ``500 - 999''. If the reporter checked a range, the number entered into the TRI was the mid-point of that range. Consequently, a report of a release in the range of 1 - 499 was entered in the database as 250 pounds. For SIC Code 2048 facilities, 93 reports were entered as 250 pounds of release. An informal survey of AFIA members indicates that this greatly over-states the volume of releases -- that actual releases from these facilities were nearer 10 pounds than 250. If the figures are recalculated with 10 pounds substituted for 250 for these 93 facilities, then SIC Code 2048 facilities released only 0.01 percent (rather than 0.21 percent) of all releases from all industries.  yON V. EPA's Authority and Responsibility to Exempt SIC Codes  {O  Section 313(b)(1)(B) gives the Administrator authority to add or delete SIC Codes to the extent necessary to provide that each code to which the reporting requirements apply is relevant to the purposes of EPCRA. When Congress gives a power to the EPA, both the Agency and the regulated community are entitled to presume that there is a rational purpose behind the delegation and that Congress expects the Agency to use the power under appropriate circumstances. The obvious explanation for the power to delete SIC Codes under EPCRA is that Congress recognized that using SIC Codes as the basis for coverage is a rough-and-ready approach, and that fine-tuning might well be necessary. SIC Codes 20 to 39 include a broad collection of extremely diverse businesses. SIC Code 20 alone contains 54 four-digit subgroups, including not only AFIA's 2048 but such groups as ice cube manufacturers (2097), chewing gum makers (2067), and cookies (2052).  {O  In the Conference Report, Congress addressed EPA's authority to delete SIC codes: [T]he authority to delete . . . is limited to deleting SIC codes for facilities which, while within the manufacturing sector SIC codes, manufacture, process or use toxic chemicals in a manner more similar to facilities outside the manufacturing sector. For example, facilities within SIC code 2875 mix or blend for sale at the retail level various fertilizer products in response to specific customer needs. They may fall within SIC codes 20 through 39 because this activity may be classified as a ``mixing or blending,'' which generally is a manufacturing activity. Yet, given the retail context and the nature of the blending and mixing done by these specific facilities, reporting by such facilities may not be appropriate. Subparagraph 313(b)(1)(B) is intended to provide EPA the authority to address  {O issues regarding the coverage of such facilities. [1986 U.S. Code Cong. Admin. News 3385 - 86.] This passage is as applicable to SIC Code 2048 as to SIC Code 2875. Operations under SIC Code 2048, like those under SIC Code 2875, take products such as trace minerals and vitamins and blend them with corn, oats and soybean meal into nutritional animal feed. These same trace minerals are sold by retail establishments and elevators--SIC Codes 5191 and 5153 respectively -- to farmers to mix with grain products on the farm. The potential for spillage is just as small at the mill as it is at the retail establishment or the elevator. The importance of flexibility and of adjusting EPCRA requirements so as to exclude facilities that are not important sources of releases is supported by Congressional and Agency comments on a related issue, setting thresholds for reporting. Chairman Swift, during House consideration of the EPCRA, endorsed flexibility in the scope of the reporting program. He stated that one purpose of giving EPA flexibility on thresholds is to enable it to require reporting from only high-volume releasers in a situation where ``the releases from other facilities, though numerous, are very small.'' He went on to say:$0*%%Ԍ This flexibility is given to the Administrator in order to achieve the goal of obtaining useful reports on the majority of releases without placing undue burdens on facilities which contribute little to such releases.  {O [Congressional Record, Oct. 8, 1986, H9607.] Recognizing this intent of Congress as stated by Chairman Swift, EPA said in its Final Rule on reporting under EPCRA that: [T]he first few years' data should be evaluated to determine whether modifications of the threshold would meet the statutory test of obtaining reporting on a substantial majority of the releases (i.e., pounds released per year) of each chemical from subject facilities. EPA may consider changing the reporting thresholds based on several years of data collection. [53 Fed. Reg. 4508 (Feb. 16, 1988).] Finally, and most importantly, including SIC Code 2048 does not further the purposes of the EPCRA. EPA should consider the following:  yO   Analysis by Citizen Action of 1989 TRI data revealed that 100 companies accounted for 60 percent of the nation's toxic pollution. In contrast, SIC Code 2048 reporters with releases less than 5,000 pounds accounted for only an estimated 0.01 percent of total releases reportable under Section 313. These facilities could be relieved of reporting requirements while still adhering to the intent of Congress and the statute that ``thresholds shall obtain reporting on a substantial majority of total releases of the chemicals . . . .'' Also, requiring reporting by large numbers of low-release facilities creates a lot of ``noise'' in the system that distracts attention from those industries that are responsible for most of the pollution.  yOj   The TRI program is a good candidate for Administrator Reilly's risk reduction management plan. By measuring the ecological and human health impacts of toxic releases rather than a number of reports filed, EPA could shift many of the resources now used to administer the TRI program to programs that reduce significantly greater risks.  yO   EPA could save administrative costs by avoiding the collection of irrelevant data. The General Accounting Office (GAO) estimated EPA's cost of administering Section 313 at $19 million in FY 1990. [GAO, ``EPA's Toxic Release Inventory Is Useful But Can Be Improved,'' GAO/RCED-91-121 (June 1991).] The Small Business Administration (SBA) estimates that if the thresholds were modified, EPA would have an approximately 90 percent reduction in administrative costs. [SBA,``Petition To Revise Reporting Thresholds Under Section 313'' (Aug. 8, 1991).] There are no estimates on the savings from excluding SIC Code 2048, but, obviously, they would exist.  yOr   Reporting zero releases is like requiring all commercial and private pilots to report to the government on a daily basis that they did not have any accidents or like requiring hair spray manufacturers to label pump bottles with the amount of ozone saved from not using an aerosol can. While one can argue that the public wants, and has a right,  {O to know when releases are de minimis, there are more efficient ways to convey this information than by requiring thousands of reports. Environmental education programs can get the message across that no news is good news, and that the lack of reporting from a manufacturing facility means that releases are not a matter of concern. If the fact that releases are zero is in fact important information, then there is no logical reason to establish thresholds based on the use of chemicals. Every facility, no matter how little it used of chemical substances of concern, could be required to file a report saying that its releases were zero.  yOD VI. Alternative Approaches If EPA does not want simply to grant an exemption to facilities covered by SIC Code 2048, at least two alternative approaches exist.  yO,# A. An Exemption Based on Threshold Amount Released The Small Business Administration has petitioned EPA to exempt from the reporting requirements of 313(a) all$0*%% facilities that release less than 5,000 pounds annually of covered substances. [SBA, ``Petition To Revise Reporting Thresholds Under Section 313'' (Aug. 8, 1991).] AFIA endorses this request, insofar as it would apply to SIC Code 2048. For all of the reasons set forth in this Petition, establishing such a threshold for the substances used by AFIA members would cause no harm to the public health or the environment. AFIA wishes to point out that EPA has another option, however. If the Agency is uneasy with a blanket exemption for all industries based on the amount released, it could incorporate a cap on the amount released as a  yO condition of a section 313(b)(1)(B) exemption applicable to SIC Code 2048.~f aE # eJ\  PC 1P#эSBA's request is for a threshold based on the amount of a substance released, not on the amount used. Thus it is not made under section 313(f)(2), which allows EPA to revise the statutory thresholds based on the amount of a substance used by a facility. As noted in text, AFIA suggests that the cap on the amount released could be incorporated into a section 313(b)(1)(B) SIC Code exemption for facilities covered by SIC Code 2048.  yO B. The Exclusion of ``Articles'' EPA's regulations provide that a potential reporter may, in calculating the amount of a substance used for purposes of determining its obligation to report, exclude from the calculation the amount of the substance that is incorporated into a manufactured article. The definition of ``article'' is: [A] manufactured item: (1) which is formed to specific shape or design during manufacture; (2) which has end use functions dependent in whole or in part upon its shape or design during end use; and (3) which does not release a toxic chemical under normal conditions of processing or use of that item at the facility or establishments. [40 C.F.R. 372.3.] AFIA does not contend that this definition necessarily encompasses animal feeds, which are in pelletized or granular form. The obvious focus of the regulation is on products such as metal castings or other solid objects. [See  {O 53 Fed. Reg. at 4507 (Feb. 16, 1988); 53 Fed. Reg. at 29828 (Aug. 8, 1988).] However, for all the reasons discussed earlier in this Petition, feed products are squarely within the rationale for the exclusion of articles -- feed does not release a toxic chemical under normal conditions of processing or use. In this connection, it is interesting to note that the definition of ``article'' initially proposed by EPA would have stated specifically that fluids or particles cannot be articles. The final version eliminated this proviso in favor of the  {O language quoted above. [53 Fed. Reg. at 4507 col. 1 (Feb. 16, 1988).] The fair inference is that the Agency recognized that the crucial variable is the potential for release, not whether the substance is in particle form. AFIA suggests that the shape and design of animal feed is indeed sufficiently related to its use to bring it within the first two clauses of EPA's definition, given its clear conformance with the third. An alternative approach to solving the problems of SIC Code 2048 would be for EPA to interpret the article exemption as covering animal feed.  yO Conclusion For the reasons set forth above, AFIA petitions EPA to exclude facilities classified under SIC Code 2048 from reporting requirements under section 313(a) of EPCRA.  yO|  IV. Public Record The record supporting this notice is contained in the docket number OPPTS - 400077. All documents, including (0*%% an index of the docket, are available in the TSCA Nonconfidential Information Center (NCIC), also know as, TSCA Public Docket Office from 8 a.m. to noon and 1 p.m. to 4 p.m., Monday through Friday, excluding legal holidays. The TSCA NCIC is located at EPA Headquarters, Rm. E - G102, 401 M St., SW., Washington, DC 20460.  yO   V. Request For Public Comment EPA has identified several issues associated with this petition for which the Agency is requesting public comment.  {M@ A. SIC Code Exemption Criteria EPA would like to receive comments on the petition submitted by AFIA. Specifically, the Agency would like comment on the criteria that could be used to exempt this or any other SIC code from reporting in a determination under EPCRA section 313 (b)(1)(B). The statutory language refers to those SIC codes which are relevant to the purposes of section 313. The conference report states that the authority to delete SIC codes is limited to those facilities which manufacture, process, or otherwise use toxic chemicals in a manner more similiar to facilities outside the manufacturing sector (e.g., facilities that mix and blend fertilizer products for retail sale). Given the statutory standard and the guidance provided in the legislative history, how should EPA evaluate the particuliar activities in SIC code 2048? Taking into account both the statute and the legislative history, what are the minimum criteria EPA should consider in the development of criteria for an SIC code exemption? One option for developing these criteria would be to proceed on a case-by-case basis. Another option would be to develop general criteria that could fairly evaluate all SIC codes for potential exclusion from the EPCRA section 313 reporting requirements. AFIA suggests in their petition that a major factor to be considered should be total volume of reported releases from facilities within an SIC code. The Agency would like to receive comment on how this factor should be taken into account under section 313(b)(1)(B). Assuming consideration of releases is appropriate, what should be considered the cut-off point for these releases and how should that cut-off be selected? One possibility is for the facilities that are currently reporting to be ranked by release totals high to low and then a percentage threshold could be selected. Another issue for which the Agency is soliciting comment is determining whether the exemption should apply to only those facilities whose primary SIC code is 2048 or to activities covered by SIC code 2048 at facilities with a different primary SIC code. This could be the case for a multi-establishment facility or a facility that has SIC code 2048 for a secondary or tertiary SIC code. Comment is also being solicited on how the level of compliance within an industry and across all industries should be taken into consideration for an exemption of this type. The Agency would also like to receive comment on any other criteria which should be considered in addressing AFIA's concerns.  {MX B. Appropriateness of an SIC Code Exemption The AFIA petition states that ``EPA could save administrative costs by avoiding the collection of irrelevant data.'' The Agency would like comment on what the public considers irrelevant data currently reported under TRI. The AFIA petition states that over 90 percent of SIC code 2048 facilities release 5,000 pounds or less of the reported chemical. If an SIC code exemption were to be established on a release-based approach, EPA would also like to request comment on how to evaluate the effect that aggregate releases from these 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.'' Another issue identified by the Agency is the relative risks associated with the chemicals which are released by reporting facilities in an industry seeking an exemption. Should the specific toxic chemicals used and released by an industry have a role in the decision to exempt that industry from the TRI reporting requirements? For example,$ 0*%% an industry's releases of reportable toxic chemicals may be small, however, the toxicity of the chemcials may be high. The AFIA petition mentions that the primary chemicals reported by facilities in SIC code 2048 are zinc compounds, manganese compounds, and copper compounds. The Agency has concerns for these compounds for human health and environmental toxicity. In addition, metals and metal compounds do not readily degrade in the environment. Their persistence in the environment increases the likelihood of biological uptake of the metal and subsequent bioaccumulation. One other point which should be considered in determining the appropriateness of an exemption of this type is that any industry targeted for an exemption at the Federal level may still be required to report at the State level. EPCRA provisions do not preempt any State law. Therefore, an individual State may continue to require TRI data from an industry that is exempt from Federal reporting requirements.  {M` C. Alternatives EPA requests comment on alternative approaches for excluding reports submitted by SIC codes such as 2048. The AFIA petition mentions two alternatives to granting an exemption for a SIC code. The first, the idea of a release-based threshold, was the subject of a notice of receipt of petition published by EPA on October 27, 1992 (57 FR 48706). This approach would exempt reports from facilities if total releases of a listed chemical were less than an annual threshold level. The second alternative mentioned is to modify the article exemption to include the materials processed by those facilities within SIC code 2048. Animal feed is not considered an article by definition. In addition, the processing of listed toxic chemicals to produce an article is not exempt. Therefore, even if the article exemption was modified to cover animal feed, the processing of the chemicals used to produce the animal feed would still be reportable. Other possible alternatives may include an exemption for incorporation of listed chemicals into human or animal food products at levels regulated by the Food and Drug Administration (FDA). The petition states that ``every ingredient of feed products has either been approved by the Food and Drug Administration (FDA) or is generally recognized as safe (``GRAS'') by the scientific community.'' In addition, AFIA argues that almost all of the toxic chemicals processed by the facility are incorporated into a product. EPA would like comment on whether it would be appropriate to develop an exemption where the facility would be exempt if the amount of the chemical released is less than a certain percentage of the amount processed. This scenario might also apply to other SIC codes that incorporate listed TRI chemicals into product mixtures. The Agency would like to receive comment on any other approaches which may be utilized to reduce the reporting burden on these facilities while still providing communities information necessary to identify potentially hazardous situations and opportunities for pollution prevention. Dated: April 5, 1993.  yO  ,hJohn W. Melone,  {M 3  Acting Director, Office of Pollution Prevention and Toxics. 3 [FR Doc. 93 - 8567 Filed 4 - 12 - 93; 8:45 am]  yOx  BILLING CODE 6560 - 50 - F