Alternate Threshold for Facilities With Low Annual Reportable
Amounts; Toxic Chemical Release Reporting; Community Right-To-Know
[Federal Register: November 30, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 372
[OPPTS-400087A; FRL-4920-5]
RIN 2070-AC70
Alternate Threshold for Facilities With Low Annual Reportable
Amounts; Toxic Chemical Release Reporting; Community Right-To-Know
Agency: Environmental Protection Agency (EPA).
Action: Final rule.
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ENVIRONMENTAL PROTECTION AGENCY
Summary: EPA is establishing an alternate threshold for those
facilities with low annual reportable amounts of a listed toxic
chemical. These are facilities that would otherwise meet reporting
requirements under section 313 of the Emergency Planning and Community
Right-to-Know Act of 1986 (EPCRA). A facility that meets the current
section 313 reporting thresholds, but estimates that the total annual
reportable amount of the chemical does not exceed 500 pounds per year,
can take advantage of an alternate manufacture, process, or otherwise
use threshold of 1 million pounds per year, for that chemical, provided
that certain conditions are adhered to. EPA is establishing this
alternate threshold in response to petitions received from the Small
Business Administration and the American Feed Industry Association, and
in consideration of the future management of the Toxic Release
Inventory (TRI).
Dates: This rule is effective November 22, 1994, except for 40 CFR
372.27 and 372.95 which have not been approved by the Office of
Management and Budget (OMB) and are not effective until OMB has
approved them. When approval is received, EPA will publish notice of
the effective date.
FOR FURTHER INFORMATION CONTACT: Tim Crawford, Project Manager, Mail
Code 7408, 401 M St., SW., Washington, DC 20460 for specific
information on this rule, or for more information on EPCRA section 313,
the Emergency Planning and Community Right-to-Know Hotline,
Environmental Protection Agency, Mail Code 5101, 401 M St., SW.,
Washington, DC 20460, Toll free: 1-800-535-0202, in Virginia and
Alaska: 703-412-9877 or Toll free TDD: 1-800-553-7672.
SUPPLEMENTARY INFORMATION:
I. Introduction
A. Statutory Authority
This rule is issued under section 313(f)(2) and section 328 of the
Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA), 42
U.S.C. 11023(f)(2) and 11048. EPCRA is also referred to as Title III of
the Superfund Amendments and Reauthorization Act of 1986 (SARA).
Section 313 of EPCRA, 42 U.S.C. 11023, requires certain facilities
which manufacture, process, or otherwise use listed toxic chemicals in
excess of the applicable threshold quantities to report their
environmental releases of such chemicals annually. The threshold
quantities are established in section 313(f)(1). EPA has authority to
revise these threshold amounts pursuant to section 313(f)(2); however,
such revised threshold amounts must obtain reporting on a substantial
majority of total releases of the chemical at all facilities subject to
section 313. A revised threshold may be based on classes of chemicals
or categories of facilities.
Beginning with the 1991 reporting year, such facilities also began
reporting source reduction and recycling data for listed chemicals,
pursuant to section 6607 of the Pollution Prevention Act, 42 U.S.C.
13106. This information is submitted on EPA Form 9350-1 (Form R) and
compiled in an annual Toxic Release Inventory (TRI). Each covered
facility must file a separate Form R for each listed chemical
manufactured, processed, or otherwise used in excess of the reporting
thresholds established in section 313(f)(1). Section 328, 42 U.S.C.
11048, provides EPA with general rulemaking authority to develop
regulations necessary to carry out the purposes of the Act.
B. Background
On August 8, 1991, the Small Business Administration (SBA)
petitioned EPA to exempt from TRI reporting requirements, facilities
reporting relatively low volumes of chemicals released and transferred
off-site. The petition proposed that EPA establish a tiering system
within the list of reportable chemicals under EPCRA section 313. The
petition suggested a division of the list to be based on a combination
of chemical toxicity and amounts reported to TRI. Those chemicals
deemed to have high toxicity concerns and/or are reported in relatively
low volumes nationally, would have a lower ``exemption'' threshold
(such as 10 pounds for the sum of releases and transfers) or would be
reported on a much more simplified form. Those chemicals with lower
toxicity concerns and are reported in relatively high volumes would be
subject to a much higher ``exemption'' level, such as 5,000 pounds for
the sum of releases and transfers.
EPA published this petition as a notice in the Federal Register of
October 27, 1992, (57 FR 48706), and received a substantial number of
comments. Copies of these comments are available in the TSCA docket,
OPPTS docket number 400072.
EPA received a similar request in a petition from the American Feed
Industry Association (AFIA) on February 14, 1992. AFIA requested an
exemption of Standard Industrial Classification (SIC) code 2048 from
TRI reporting. The general basis of this request is that facilities in
SIC code 2048, ``Prepared Feeds and Feed Ingredients for Animals and
Fowls, Except Dogs and Cats,'' have such small releases of the listed
chemicals (primarily feed additives) that the industry as a whole does
not contribute information that furthers the purposes of EPCRA,
therefore, the imposition of TRI reporting on the feed industry is
unfair. The AFIA petition suggested, as an alternative to their request
of an SIC code deletion, that EPA adopt the approach proposed in the
SBA petition.
EPA published the AFIA petition as a notice in the Federal Register
of April 13, 1993 (58 FR 19308), and again received a substantial
number of comments. These comments are available in the TSCA docket,
OPPTS docket number 400077.
EPA decided to focus on a revision of current reporting
requirements that would be applied to all industries subject to section
313, as opposed to a revision restricted to target industrial sectors
or SIC codes. EPA therefore considers this rule as a response to both
the AFIA and SBA petitions.
As part of the pre-proposal process, which included consideration
of the comments received, EPA held a public meeting on February 16,
1994, to present its analytical findings and open discussions regarding
reduced reporting for facilities with low volumes of releases and
transfers. Comment was taken on a variety of positions. Results from
EPA's preliminary analysis are presented in an issues paper, Toxic
Release Inventory--Small Source Exemption (January 27, 1994) (Issues
paper), which can be obtained in the TSCA docket, OPPTS docket number
400072, along with copies of the testimony presented at the public
meeting. A copy of the Issues Paper can also be found in OPPTS docket
number 400087.
C. Summary of the Proposed Rule
EPA issued a proposed rule on July 28, 1994 (59 FR 38524), to
establish a higher manufacture, process, or otherwise use threshold for
those facilities having low volumes of specific chemicals for the sum
of amounts released and transferred off-site for the purpose of
treatment and/or disposal. Facilities qualifying for the low release
and transfer criterion and that manufacture, process, or otherwise use
less than the higher ``alternate'' threshold would be eligible to
submit a certification statement instead of a full Form R report. The
certification statement would be made available to provide the
regulated community, compliance programs, and other interested parties
basic information concerning which facilities were manufacturing,
processing, or otherwise using a TRI chemical at current section 313
reporting quantities, but whose sum of amounts released or transferred,
for the purpose of treatment and/or disposal, were below 100 pounds. A
facility meeting the above conditions and choosing to submit a
certification statement would be required to maintain records
substantiating the calculations that establish the facility's
eligibility to apply the alternate threshold.
EPA issued the proposal in part as a response to both the SBA and
AFIA petitions, but the burden relief provided by the proposal was also
a result of EPA's consideration of the future management of the overall
TRI program. As stated in the proposal, EPA is in the process of
significantly expanding the TRI program to add many additional
chemicals to the list. EPA is also in the process of evaluating
industry sectors not currently covered by TRI for addition. Both of
these actions are expected to substantially increase the level of
current reporting. The increase in reporting has obvious information
management implications for EPA as well as for States. Today's action
will make a significant portion of the current Form R data management
capacity available for data on additional chemicals and from new
sources. EPA believes this will also help increase the long-term
efficiency and utility of the data system while preserving a basic link
for the public between facility location and reportable TRI chemicals.
EPA's proposal offered several alternatives to those advanced by
the SBA and AFIA petitions. All aspects of the proposal were available
for public comment. EPA requested specific comment on the following
issues: (1) What should form the basis to determine which facilities or
reports should be eligible for burden reduction (for example, should a
category of facilities be based on the sum of amounts released and
transferred or based on the sum of total waste generated for a given
chemical); (2) what volume level should determine the eligible
``category''; (3) what should be the alternate manufacture, process, or
otherwise use thresholds; (4) what should constitute the certification
statement and how often it should be submitted; and (5) what would be
the impacts of such a reporting modification. These issues and the
comments received are addressed in unit III. of this preamble.
D. Summary of the Final Rule
EPA is establishing an alternate threshold for those facilities
with a low amount of a listed toxic chemical in their ``annual
reportable amount'' (in the proposal, this amount was referred to as
``total waste''). Contingent upon OMB approval, the alternate threshold
rule will be effective for activities beginning January 1, 1995. EPA
will publish a technical amendment in the Federal Register when the
reporting additions have been approved by OMB. This reporting
modification will enable facilities otherwise meeting reporting
requirements under section 313 of EPCRA to take advantage of a higher
threshold than those set out in 40 CFR 372.25 for any listed toxic
chemical, if the annual reportable amounts of that toxic chemical did
not exceed 500 pounds for the combined total quantities released at the
facility, disposed within the facility, treated at the facility (as
represented by amounts destroyed or converted by treatment processes),
recovered at the facility as a result of recycle operations, combusted
for the purpose of energy recovery at the facility, and amounts
transferred from the facility to off-site locations for the purpose of
recycle, energy recovery, treatment, and/or disposal. These volumes
correspond to the sum of amounts reportable for data elements on EPA
Form R (EPA Form 9350-1;Rev. 12/4/93) as Part II column B or sections
8.1 (quantity released), 8.2 (quantity used for energy recovery on-
site), 8.3 (quantity used for energy recovery off-site), 8.4 (quantity
recycled on-site), 8.5 (quantity recycled off-site), 8.6 (quantity
treated on-site), and 8.7 (quantity treated off-site).
The alternate threshold applies to a defined category of facilities
on a per chemical basis. The alternate manufacture, process, or
otherwise use threshold for a specific chemical at a facility meeting
the category definition would be an amount greater than 1 million
pounds per year. Specifically, if a facility manufactures, processes,
or otherwise uses 1 million pounds or less of a chemical annually, and
if 500 pounds or less of that chemical is present in their annual
reportable amount, then the alternate reporting option is available to
that facility for that chemical. Other chemicals at the facility that
do not meet the criteria for the alternate threshold would continue to
be reported on Form R as currently required.
To take advantage of the alternate threshold, a facility is
required to: (1) Submit an annual certification statement indicating
that the facility met the requirements for use of the alternate
threshold for the specific chemical and (2) maintain and make available
upon request accurate records substantiating the calculations
supporting the facility's claim of eligibility for the alternate
threshold for each chemical.
II. Explanation of this Threshold Modification
This final rule establishes an alternate threshold for purposes of
submitting reports under section 313 of EPCRA. The key factors that
govern the application of this alternate threshold are, the sum of
amounts of the listed toxic chemical in their annual reportable amount,
and the quantity of that chemical being manufactured, processed, or
otherwise used within the facility.
Current reporting thresholds set forth in EPCRA section 313(f)(1)
apply to the manufacture, process, or otherwise use of listed section
313 chemicals. In short, these are activity-based thresholds. EPCRA
section 313(f)(2) also provides EPA with the flexibility to revise the
established activity-based threshold amounts in section 313(f)(1) and
apply such revised thresholds to individual chemicals, classes of
chemicals, or categories of facilities. However, any modification of a
threshold must continue to obtain reporting on a substantial majority
of total releases of the chemical at all facilities subject to the
requirements of section 313.
This final rule first establishes a category of facilities based on
the annual sum of a listed toxic chemical in their annual reportable
amount. By establishing this category of facilities, a threshold
modification can then be applied selectively to that category. A
facility becomes part of this category if at least one toxic chemical,
otherwise reportable, does not exceed the 500 pound criterion for that
chemical in their annaual reportable amount. Annaul reportable amount
is defined as the combined total quantities released at the facility,
disposed within the facility, treated at the facility (as represented
by amounts destroyed or converted by treatment processes), recovered at
the facility as a result of recycle operations, combusted for the
purpose of energy recovery at the facility, and amounts transferred
from the facility to off-site locations for the purpose of recycle,
energy recovery, treatment, and/or disposal. These volumes correspond
to the sum of amounts reportable for data elements on EPA Form R (EPA
Form 9350-1; Rev. 12/4/93) as Part II column B or sections 8.1
(quantity released), 8.2 (quantity used for energy recovery on-site),
8.3 (quantity used for energy recovery off-site), 8.4 (quantity
recycled on-site), 8.5 (quantity recycled off-site), 8.6 (quantity
treated on-site), and 8.7 (quantity treated off-site).
A facility in this category is then eligible to take advantage of
an alternate manufacture, process, or otherwise use threshold of 1
million pounds for that specific chemical. Hence, if the facility meets
the criterion of having no more than 500 pounds in its annual
reportable amount of a listed toxic chemical, and for that chemical,
the facility does not exceed the manufacture, process, or otherwise use
threshold of 1 million pounds, then that facility may submit a
certification statement for that chemical in lieu of a full Form R. A
facility eligible to apply the alternate threshold and choosing to
submit a certification statement must keep records substantiating the
facility's eligibility determination. If EPA subsequently determines
that the facility was ineligible to apply the alternate threshold, then
the Agency can bring an enforcement action with respect to non-
reporting of Form R.
III. Issues Considered and Comment Summary
EPA received about 500 comments in response to EPA's Alternate
Threshold proposal (59 FR 38524). Approximately 400 of these comments
were submitted by industry or entities representing industry concerns.
The remaining comments were submitted by environmental and labor
organizations, public interests groups, state program representatives,
and private citizens. The following section is a discussion of the
major issues and points raised in comments received and EPA's
consideration of those comments that pertain to this final rule. The
major issues are discussed in the following order: Structure of the
facility category; poundage level for the category; alternate threshold
level; certification statement; recordkeeping requirements; covered
facility status; degree of burden reduction; and effective date. A
Response to Comment document, which addresses issues raised in the
comments and outlines EPA's response in greater detail, has been
prepared and is available through the TSCA docket (OPPTS-400087).
A. Facility Category
The reporting modification established by this rule is intended to
provide regulatory relief for facilities that report low amounts of
listed toxic chemicals in their annaul reportable amount. For reasons
stated in the proposal (59 FR 38524), this reporting modification is
intended to help focus both industry's and EPA's resources on the data
of greatest significance. EPA proposed to target this regulatory relief
at facilities where the sum of releases and a subset of the transfers
were below 100 pounds. However, EPA offered alternatives including use
of total waste as the basis of the eligible ``category.''
1. Category based on releases and certain transfers as proposed.
Many industry commenters voiced approval for the structure of the
category as initially proposed by EPA, but generally these commenters
urged the Agency to raise the volume level of the category. Several
comments submitted by industry requested that EPA consider all releases
to Publicly Owned Treatment Works (POTW) as zero releases or disregard
them from the calculations a facility must make in determining their
eligibility for the alternate threshold. A number of commenters from
industry said that EPA should only focus on amounts released and
referred to the language in the statute whichP states, . . . ``such
revised threshold shall obtain reporting on a substantial majority of
total releases of the chemical at all facilities . . . ,'' as
support.1 These commenters argued that transfers to POTWs and
landfills have little environmental effect and do not represent actual
environmental loadings. Many commenters from the animal feed and dairy
industries referred to their most frequently released chemicals, such
as sulfuric acid, arguing that amounts of these chemicals are almost
completely neutralized or adequately treated by recipient POTWs and
should not be considered a factor in a facility's eligibility. A
similar comment suggested that, if EPA is interested in amounts going
to or being handled by POTWs or landfills, the TRI should be expanded
to include these types of facilities.
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\ \Section 313(f)(2)--The Administrator may establish a
threshold amount for a toxic chemical different from the amount
established by section 313(f)(1). Such revised threshold shall
obtain reporting on a substantial majority of total releases of the
chemical at all facilities subject to the requirements of this
section. The amounts established under this paragraph may, at the
Administrator's discretion, be based on classes of chemicals or
categories of facilities.
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EPA disagrees with commenters who would limit the category to
direct releases at the facility only. EPA's rationale for proposing the
sum of releases and certain transfers was to cover direct as well as
potential environmental loadings associated with the wastes generated
by that facility. EPA can see no merit in the argument that transfers
to POTWs should be discounted as part of the category determination.
The ultimate entry into the environment of any particular chemical sent
to a POTW in wastes is highly dependent upon the type of treatment/
disposal process at that POTW. For example, ammonia may be destroyed by
tertiary treatment processes, but not all POTWs employ this process.
Additionally, many chemicals, such as most metals, are not converted to
less toxic forms during treatment processes, such as those employed by
POTWs, and may either pass directly through these treatment operations
and/or be directed to other media. Therefore, EPA believes that these
amounts, along with amounts handled by other management practices that
can potentially result in environmental releases, should be accounted
for and be part of a facility's eligibility determination.
Many commenters representing environmental and public interest
groups stated their concern over the amounts of materials that would
not be accounted for by EPA's proposed category approach. These
commenters urged EPA to eliminate the ``recycling loophole'' which can
be characterized by the removal from public access information on the
volumes associated with waste management activities such as materials
recycling. These commenters contend that not including this type of
information as a criterion in the facility category determination
undermines source reduction and is in conflict with national policy
established in the Pollution Prevention Act (PPA) of 1990. Some of
these commenters stated that the recycling loophole encourages burning
of toxic wastes that are often transferred to cement kilns, instead of
encouraging source reduction practices. Additional comments received
raised concerns over hazardous emissions that result from solvent
recycling operations, some of which are not listed within the
manufacturing SIC codes of 20 through 39, and therefore, are not
currently required to report to TRI. Commenters indicated that TRI
provides specific data on transfers of hazardous wastes for the purpose
of recycling. These data are important because they indicate where
releases from the further processing of such toxic chemicals may be
occurring.
A comment from a representative of a state's toxics reporting
program stated that significant amounts of currently reported
information within their state would no longer be reported if EPA's
category were implemented as proposed. Their analysis of the impact on
their state's reporting indicated that EPA's proposal would primarily
benefit larger businesses. This commenter noted that some facilities
operating in their state identified as meeting the 100 pound category
as proposed have reported off-site transfers for recycling of amounts
as high as 3 and 15 million pounds for a given chemical. This commenter
suggested that this ``recycling loophole'' could be eliminated by
including off-site transfers for recycling and those amounts burned for
energy recovery in the category determination.
As discussed below, EPA believes that there is merit in structuring
the category in such a way to include volumes associated with
management activities beyond releases and limited transfers as
proposed. Ultimately, the structure of the category should relate to
how well it serves to provide an optimal balance between burden
reduction for submitters and data preservation for users of the full
range of TRI data.
2. Category based on annual reportable amount. EPA's proposal
included an alternative that would establish a category based on the
total amount in wastes, which was referred to as total waste
generation. This category includes all amounts released on-site,
transferred off-site for treatment or disposal, recycled or burned for
energy recovery on- or off-site, and treated on-site. One commenter
from industry argued against using the total waste option, because the
purpose of the reporting modification should be concerned with
information relevant under EPCRA. This commenter went on to say that
the information collected under the PPA of 1990 is subsidiary to EPCRA
section 313 data elements. This commenter and several others from
industry stated that basing the category on total waste limits the
amount of burden reduction sought by this reporting modification, and
that adopting the total waste approach would actually serve as a
disincentive for applying more pollution prevention practices.
Similarly, commenters from industry said that creating a category
determination that does not include amounts sent off-site for recycling
or to incineration for energy recovery would encourage more facilities
to engage in these activities, as opposed to treating or directly
disposing of wastes. An industry representative said that not including
amounts sent off-site as part of the facility category determination is
particularly relevant when such wastes are recovered and are then
returned to the originator. This commenter along with several others
from industry said that excluding these amounts would encourage
facilities to participate in responsible/reasonable care types of
programs, which further pollution prevention goals.
One commenter said that the environmental releases from wastes
generated by a ``covered facility'' are likely to be included in the
calculation of environmental releases either (i) by the generator of
the waste, or (ii) by an off-site ``covered facility'' to which the
waste is sent for recycling or energy recovery. The commenter continued
by saying that since environmental releases are the ultimate focus of
the TRI program, the likelihood that they will be included in the
release calculations of some ``covered facility'' should allay fears
that toxic chemicals transferred off-site for recycling or energy
recovery would somehow escape the system.
EPA disagrees with commenters stating that information collected
under the PPA is subsidiary to data mandated by EPCRA section 313. EPA
believes that the PPA data are an enhancement of the basic data
gathered by EPCRA section 313. The purpose of this enhancement was to
provide the public with a more complete picture of the amount of toxic
chemicals in facility waste streams, which can highlight the potential
for source reduction. EPA believes that including a broader category of
amounts reportable to TRI in a facility's determination will not
discourage facilities from implementing pollution prevention
activities, and that the inclusion of this broader category of amounts
will encourage facilities to practice source reduction measures where
possible, which is the primary goal of pollution prevention.2
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\ \Pollution Prevention Act of 1990, section 6602(a)(4) ``Source
reduction is fundamentally different and more desirable than waste
management and pollution control. The Environmental Protection
Agency needs to address the historical lack of attention to source
reduction.''
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Comments from the environmental community, labor organizations,
states, and private citizens voiced strong opposition to EPA's proposed
category because it did not include amounts being recycled or burned
for energy recovery. These commenters were concerned about the removal
from public access of information regarding the further processing of
hazardous materials and the emissions that may result. A number of
commenters urged EPA to continue to collect the information on
materials sent off-site for the purpose of recycling and/or energy
recovery which were not included in EPA's proposed approach. A few
public interest groups submitted comments that described hazardous
materials recycling as a hazardous activity, and urged EPA to continue
to collect information on materials being sent to these facilities.
Noting cases where these facilities have created serious environmental
problems, a few other comments came from individuals and local interest
groups living near facilities where hazardous waste recycling and
burning occurs. These commenters stress the need for their communities
to have access to information regarding materials being sent to these
facilities. Some urged EPA to list these types of facilities for direct
TRI reporting.
Several commenters stated that EPA has the authority, through the
PPA and EPCRA, to collect and make available information regarding
chemicals being recycled and burned for energy recovery and urged that
EPA continue to do so.
EPA believes that a category based on either releases and transfers
or annual reportable amounts will satisfy the section 313(f)(2)
requirement for reporting on ``total releases'' because ``annual
reportable amounts,'' as defined in this rule, encompasses releases.
However, EPA agrees with the commenters concerned with the amounts of
materials that are not part of the category based on releases and
transfers. As noted in the proposal, amounts associated with waste
management activities for those facilities fitting a category
description based only on releases and transfers can be substantial.
EPA carefully weighed these comments regarding the structure of the
category and has determined that a category based on annual reportable
amounts is more consistent with the goals of EPCRA than the release and
transfer option.
EPA's proposal presented an analysis of the volumes of materials
managed as waste that would be affected (i.e., not reported in detail)
under a reporting modification based on a facility category of releases
and transfers or annual reportable amounts.
Table 1.--Comparison of Impact on Data Between Proposal and Final Rule (1992 Data)
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Data affected*\1\ (Percent of 1992 Data)
1992 Data -------------------------------------------------
Proposed Final
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Number of Form Rs 83,000 62,500 (-25%) 63,000 (-24%)
Pounds of Releases and Transfers 4,400,000,000 222,700 (0.01 %) 2,209,800 (0.05%)
Pounds of Annual Reportable Amounts 37,000,000,000 6,105,310,400 (16.7%) 2,505,600 (0.01%)
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1Pounds of releases/transfers and annual reportable amounts not reported on Form R and percentage of national
amounts, if the alternate threshold had been available and used by all eligible facilities for 1992 reporting.
There was a substantial difference in the annual reportable amount
data associated with the forms, as defined by the two basic category
approaches. As presented in EPA's proposal, the total waste volume
(annual reportable amount) associated with the forms identified by a
category based on releases and transfers (at a level of less than 100
pounds), was estimated to be 2.2 billion pounds based on 1991 data.
This represented approximately 6.3 percent of this data nationally. The
same category, in terms of 1992 data, as seen in Table 1 above,
affected approximately 6.1 billion pounds of annual reportable amount
information, or 16.7 percent of this data nationally. In comparison, a
category based on annual reportable amounts not exceeding 500 pounds
would apply to very nearly the same number of Form Rs. However, based
on 1991 data, these forms had only 2.7 million pounds of annual
reportable amounts associated with them. The forms fitting the same
category for 1992 reporting, as seen in Table 1 above, have an
estimated 2.5 million pounds of annual reportable amount data
associated with them (Ref. 4). EPA believes that the significant
increase in volumes of annual reportable amounts reported in 1992 as
compared to 1991 can be attributed to a greater amount of recycling and
on-site treatment activities reported by those facilities that have
releases and transfers of less than 100 pounds. Additionally, some of
the volume differences may also be attributed to more accurate
reporting given that 1992 was the second year that the data associated
with the PPA was required.
EPA believes that the disparity in amounts of data associated with
the forms defined by a category based on releases and transfers and a
category based on annual reportable amounts is great enough to discount
an approach based on only releases and transfers for treatment and/or
disposal. Hence, EPA agrees with those commenters who have stressed the
need to retain information on amounts of materials being treated,
recycled, or burned for energy recovery both on-site and off-site. EPA
has therefore structured the category in this final rule to be based on
the sum of amounts reported during the calendar year as represented by
the following: The combined total of quantities released at the
facility, disposed within the facility, treated at the facility (as
represented by amounts destroyed or converted by treatment processes),
recovered at the facility as a result of recycling operations,
combusted for the purpose of energy recovery at the facility, and
amounts transferred from the facility to off-site locations for the
purpose of recycle, energy recovery, treatment, and/or disposal. These
volumes correspond to the sum of amounts reportable for data elements
on EPA Form R (EPA Form 9350-1; Rev. 12/4/93) as Part II column B or
sections 8.1 (quantity released), 8.2 (quantity used for energy
recovery on-site), 8.3 (quantity used for energy recovery off-site),
8.4 (quantity recycled on-site), 8.5 (quantity recycled off-site), 8.6
(quantity treated on-site), and 8.7 (quantity treated off-site).
Certain commenters stated their objection to inclusion of these
amounts, using the rationale that doing so would discourage pollution
prevention. EPA believes that inclusion of these amounts is in keeping
with the goal and national policy of pollution prevention. EPA believes
that this information should be available to the public and other
interested parties, who are concerned with the operations that
generate, receive, and further process large amounts of these
materials. The public has demonstrated a strong concern about these
operations, and TRI provides a reliable accounting of reportable
constituents and their estimated amounts from those facilities required
to report to TRI. EPA further believes that requiring facilities to
account for pollution prevention efforts, including source reduction
activities, can serve to inform industry and the users of the data
about the level of progress being made at a particular facility and
within a given industry.
EPA believes that a category based on annual reportable amounts
will more appropriately focus the burden reduction benefit of this rule
on facilities that have limited the entry of toxic chemicals into waste
streams, rather than on facilities that could derive the benefit by
shifting toxic chemicals from one management practice to another. EPA
also believes that a category based on annual reportable amounts will
retain a higher degree of specificity of the toxic chemical data while
still allowing for the burden reducing ``conversion'' of a substantial
number of full Form R reports to certification statements.
3. Category based on a chemical list division. Many commenters from
industry supported the approach put forth in the SBA petition to treat
listed chemicals differently. This approach was referred to in EPA's
proposal as the ``split list'' approach. These commenters stress that
only by distinguishing among chemical toxicities can EPA effectively
determine what information can be exempted on the basis of a chemical's
relative and potential impact. They argue that only by making
distinctions among chemicals on the basis of their human health and/or
environmental impacts can EPA properly determine what information is
vital to a community's right-to-know, as opposed to chemical accounting
for the sake of reporting. A few of these commenters supported EPA's
example of splitting the listed chemicals primarily based on their
Occupational Safety and Health Administration (OSHA) carcinogen
classification, as presented in EPA's Issues Paper (Ref. 3). Several of
these industry commenters who support the ``split list'' approach
suggested that EPA establish a simplified petitioning system that would
allow parties to submit requests to move chemicals from one list to
another.
One commenter stated that current risk assessments are overly
reliant on cancer rates and ignore too many other health problems,
including adverse reproductive outcomes such as birth defects,
developmental abnormalities, low birth weights, and behavioral
abnormalities. This commenter also cites adverse effects on the human
immune system, neurological diseases, as well as asthma and other
respiratory diseases. In addition, other commenters noted that adverse
impacts on the ecosystem, including wildlife reproductive effects
(e.g., from endocrine disruptors), need to be considered when
discussing toxicity.
Many of the commenters from the environmental community stressed
their concern over losing any data or limiting the public's access to
information on toxic chemicals that persist in the environment or have
carcinogenic, developmental, or other serious health impacts. Several
commenters described EPA's alternate threshold as inappropriate and
insisted on full reporting on ``small releases'' of persistent toxic
chemicals such as mercury or highly toxic chemicals such as phosgene.
Other commenters supported the addition of highly toxic chemicals and
are in favor of setting a much lower reporting threshold in order to
receive reports on these chemicals. A few commenters urged EPA to add
these types of chemicals to TRI and require reporting for any amounts
released. One commenter objected to EPA's proposed reporting change,
stressing that it is based on the fallacious assumption that ``small''
releases do not pose risks to public health and the environment and
therefore the public does not need explicit information regarding such
releases.
For the purpose of this category structure, EPA chose to make no
distinction among listed chemicals. EPA is not attempting to apply
risk-based concepts in this rulemaking. EPA does recognize that there
are wide variations in the hazards associated with the chemicals on the
list. EPA is concerned that the current threshold structure may be
masking important data on releases and waste management activities of
certain chemicals that may exhibit bioaccumulative properties or direct
toxicity even at low levels. EPA may consider a future modification of
current thresholds to more fully capture information on chemicals that
persist in the environment and bioaccumulate.
It is, therefore, EPA's intention to establish a reporting
modification in this rulemaking that creates a degree of reporting
relief without substantially limiting the information currently
collected and made available through TRI. It is also EPA's intention
that this reporting modification apply to all industries subject to
reporting and to all listed toxic chemicals without regard to their
relative hazard.
4. Chemical-specific issues. Several commenters from the feed
industry repeated their position that the chemicals for which the
majority of their reports are submitted are Food and Drug
Administration (FDA) approved nutrient additives for animal feed, and
are generally recognized as safe (GRAS) by the scientific community.
One commenter supporting these points added that the industry's
handling practices for these chemicals further reduce losses that might
otherwise occur, which should lessen concern over adverse affects
resulting from the use or processing of these chemicals. One commenter
requested that EPA establish a separate reporting threshold for ``by-
products,'' such as ammonia generated from rendering operations, and
suggested a 100,000 pound level for these chemicals.
A few specialty industries, such as the cold storage industry,
which uses ammonia for refrigeration units, claim that their industry
accounts for only a fraction of the volume of ammonia produced
nationally. These commenters make the point that their use of this
chemical is safe, does not threaten the environment, and the reporting
of the emissions associated with these uses serves no benefit.
One commenter believes EPA should modify the processing threshold
to exclude chemicals intentionally added when making products for
distribution if the total facility releases and transfers are less than
4 percent of the use volume of the chemical in the calendar year. This
commenter states that this step will promote use reduction and release
reduction by facilities where processing of toxic chemicals is
essential for the manufacture of their product.
As indicated in the above section, many of the comments submitted
by the environmental community urged EPA to collect and make available
through TRI information on any amounts of chemicals that could affect
serious impacts on human health and the environment.
For many of the same reasons given in the above discussion
concerning a possible list division, EPA intends that the regulatory
relief provided by this rule be applied to all facilities and all
listed toxic chemicals, rather than only those that are not highly
toxic. EPA believes that the intent of EPCRA section 313 is to place
the decisionmaking on whether a facility's releases are acceptable to a
community in the hands of the community. Therefore, EPA does not
believe that it should make distinctions among the listed chemicals on
the basis of inherent toxicity.
Avoiding further complication in the use of TRI data is also a
significant consideration in how this burden reduction amendment is
structured. EPA strongly believes that an individual interested in
accessing TRI data should be able to locate and understand the
information contained in the data base with as few encumbrances as
possible. Singling out specific chemicals and chemicals managed by
specific processes from how other chemicals are reported, could
unnecessarily complicate the use of the data. While many of the issues
raised by the commenters concerning specific chemicals may have merit,
EPA does not believe it would be productive to further complicate this
rule amendment by making particular exceptions for specific chemicals
or handling practices.
B. Level of the Category
In addition to the basis on which a category of facilities would be
structured, EPA asked for comment on the poundage level proposed and
offered alternatives. Although a few commenters supported EPA's
proposed level of less than 100 pounds for the sum of releases and
transfers, most of the commenters from industry preferred a higher
level, while some commenters generally opposed to the reporting
modification said they could accept a level such as zero or 10 pounds
as long as total waste were not excluded and other conditions were met.
A federal Agency, along with one chemical manufacturer, submitted
comments in support of EPA's proposed level, while comments submitted
by the feed industry generally supported a release and transfer level
of 500 pounds. This level was supported by these commenters based on
the types of chemicals handled by their industry. One chemical
specifically mentioned was sulfuric acid, which some commenters said,
``would not be of great concern for releases at 500 pounds or less.''
Some of the other commenters supported the 500 pound level based on the
level of accuracy of data collected by TRI.
A few industry commenters said that EPA's proposed level was too
low to benefit their specific industry and urged EPA to elevate the
level. A trade association, among others, criticized EPA's proposal as
lacking adequate justification. Several of these commenters said that
EPA's selection of approach and level were unfounded, while others
disagreed that there was a ``natural break'' in the data, as EPA
described at the 100 pound level. Some commenters identified other
levels in the data that they thought indicated a more appropriate level
for selection. Several industry commenters questioned EPA's sincerity
in providing any level of significant burden reduction. One commenter
stated that EPA's proposed level is based on the impact of total waste
information affected, which does not necessarily relate to actual
volumes of total waste generated.
One commenter said that EPA should set the category level at 500
pounds because it currently accepts range reporting of 0-499 pounds and
adopting a ``low-level'' release category of less than 500 pounds is
effectively no different than allowing a facility to use a range code.
Other commenters supporting the 500 pound level describe the data loss
as not unreasonable.
Several commenters said that EPA's proposed level does not allow a
margin of error in estimating releases, and therefore, many facilities
will be forced to submit actual release amounts on Form R and will not
be able to take advantage of the alternate threshold.
Additional comments were submitted that stated the application of a
less than 100 pound category on chemicals with relatively low
toxicities was not consistent with EPA's Common Sense Initiative, and
that a 5,000 pound release of a chemical such as an acidic cleaner over
the course of 1 year is insignificant. These commenters stress that
chemicals such as this do not bioaccumulate, are not carcinogenic, and
do not damage the environment at the levels used by their industry.
Commenters supporting the split list approach are in favor of an
elevated poundage level for chemicals of low toxicity and a much lower
poundage level for those chemicals determined to have higher toxicity
or hazard concerns. Many of these commenters urge EPA to apply the
SBA's 5,000 pound level to the low toxicity chemicals and a 10 pound
level for chemicals considered to be of greater concern. Some
commenters supporting the split list approach argued that the adoption
of a 5,000 pound level for low toxicity chemicals could improve data
quality and further lessen the burden on industry and EPA. Some
commenters suggested variations on the levels suggested by the SBA
petition, such as 1,000 pounds for low toxicity chemicals and 0 to 500
pounds for chemicals with high toxicities.
One commenter supporting a 5,000 pound split list approach assumed
that if all of the amounts released and transferred (for the purpose of
treatment and/or disposal) which EPA estimated would not be reported on
under its proposal were located at a single facility using one chemical
of ``typical'' toxicity, the concentrations of those releases would be
below OSHA permissible exposure limits if the distance to the
facility's fenceline was 470 meters or more. The commenter continued
with this supposition to make the point that for a 5,000 pound release
and transfer category level, within no single location (zip code) would
there be a loss of an amount great enough to trip a Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA)
reportable quantity (RQ) for a single facility, at least for two states
researched by the commenter. This argument is premised on the amount
released and transferred, for a given chemical under the 5,000 pound
category level, being evenly distributed over a facility's annual
operations while not exceeding the maximum amount released within a
single 24-hour period of a chemical of ``typical'' toxicity. The
commenter used ammonia as an example. This argument would not apply for
chemicals with CERCLA RQ values below 100 pounds, which would exclude
approximately 150 currently listed TRI chemicals (Ref. 2).
Additionally, a CERCLA listed chemical released in excess of its RQ
value as part of a facility's routine operations, as presented in the
example, would require an application for continuous release
notification, or the facility would be required to report each instance
that the amount released exceeded the chemical's RQ value.
Many other comments submitted by industry supported a level of
5,000 pounds, making no toxicity distinctions among listed chemicals.
This was broadly supported by referring to the percentage of release
and transfer (for the purpose of treatment and/or disposal only) data
that would still be collected. These commenters referred to EPA's
analysis relating to volumes of chemicals released on-site and sent
off-site for the purpose of treatment and/or disposal that would be
affected based on a range of category levels. Many commenters contend
that by establishing the category level at less than 5,000 pounds, only
an additional 0.7 percent of the data for releases and transfers would
be affected, as compared with a facility category set at less than 100
pounds for releases and transfers. Many of these commenters said that
their facility had never received a request for information or had any
knowledge of the public's interest in releases of low amounts, adding
that resources necessary to provide this information could be used more
beneficially.
A comment submitted by a chemicals manufacturer supporting the
5,000 pound threshold said that such a threshold would not
significantly reduce the quantity of aggregate releases and transfers
that their facilities currently report.
A trade association submitted comment in support of a total waste
approach, but proposed a level matching that of a conditionally exempt
small quantity generator as defined in the RCRA program, which would be
less than 2,645 pounds.
Conversely, some commenters argued that EPA should be focusing on
expansion of community right-to-know and should lower reporting
thresholds to collect data on small releases of highly toxic chemicals
that are currently unavailable to the public in a comprehensive format.
An environmental organization criticized the alternate threshold
proposal for not including amounts transferred to recycling and energy
recovery facilities. This organization voiced support for a total waste
approach, but with a threshold of 10 pounds. Citing data presented in
EPA's proposal, this commenter states that a facility category based on
total waste at a 10 pound level corresponds to approximately 10,000
forms, which represents substantial regulatory relief for businesses
without reducing the public's access to important information which
they have a right-to-know. A major trade union voiced approval of this
approach, provided that a facility also indicate into which media a
chemical was released.
As discussed in the preceding section, EPA has decided to base the
facility category on the annual reportable amount rather than the
amount released plus limited transfers. After considering the multiple
factors related to the selection of a category level, EPA has selected
an annual reportable amount of not greater than 500 pounds. In choosing
a poundage level, EPA sought a level that provides a reasonable balance
between preserving the detail of data available to the public and
providing facilities with a realistic option for burden reduction. EPA
believes that a level of 500 pounds or less represents a reasonable
cut-off for this annual reportable amount approach. EPA estimates that
20,100 Form Rs would have been affected for the 1992 reporting year by
the alternate threshold for a category based on an annual reportable
amount of no more than 500 pounds. This number of forms is essentially
identical to the number that would have been eligible for the proposed
approach.
Based on 1992 data, the amounts reported on Form Rs identified as
coming from facilities that would meet the facility category of annual
reportable amounts not exceeding 500 pounds, account for less than 1
percent of annual reportable amounts reported nationally. While the
amounts reported by facilities fitting EPA's proposed category and
level account for nearly 17 percent of annual reportable amounts
reported nationally. These data also indicate several additional
impacts that EPA believes are important in determining which level is
appropriate.
EPA believes that a comparison of impacts at the county level is
relevant to EPA's decision. Based on 1992 data, an estimated 250
counties would have greater than 50 percent of all of their annual
reportable amount data affected by a category based on releases and
transfers at a 100 pound level, as EPA proposed. Under a category based
on annual reportable amounts not exceeding 500 pounds, about 90
counties are estimated to have greater than 50 percent of their annual
reportable amount data affectedP (Ref. 1 ). Perhaps more importantly,
the number of counties that would have a volume of over 1 million
pounds of their annual reportable amount data affected, based on the
proposed release and transfer category, is estimated to be greater than
278, while the category based on annual reportable amounts not
exceeding 500 pounds has no counties where annual reportable amounts
greater than 1 million pounds would be affected (Ref. 1).
Selection of the 500 pound level is consistent with current range
reporting. Current reporting guidance allows facilities to submit
estimated amounts pertaining to releases on-site or transfers off-site
in terms of three range codes. These range codes correspond to poundage
amounts of 1-10, 11-499, and 500-999 pounds. Range codes can be used in
as many reporting fields as the estimated amount applies for amounts
released or transferred. While range codes are not currently available
for reporting PPA data, establishing a category of facilities based on
annual reportable amounts effectively extends range reporting to these
activities. Submission of a certification statement is different from
receipt of a Form R that indicates amounts in ranges. The certification
will not provide the detail as to which media the chemical was released
or otherwise directed as does Form R.
EPA does not believe that the fact that a commenter has received no
inquiries from the public demonstrates that the information is not of
value. Because the data are kept in a publically available database,
there is no need for individuals to contact a company in order to
access and use the information.
Finally, EPA believes a category based on annual reportable amounts
not exceeding 500 pounds will limit the loss of detailed information
currently available, while providing industry with a reasonably
attainable level. As EPA's analysis indicates in Table 1 in unit
III.A.2. of this preamble, that the approach selected is estimated to
apply to approximately 25 percent of the currently reported
submissions.
C. Alternate Threshold Level
EPA proposed that facilities which meet current section 313
reporting requirements for a listed toxic chemical, but estimate for
that chemical the sum of amounts released and transferred (for the
purpose of treatment and/or disposal only) is below 100 pounds per
year, could take advantage of an alternate manufacture, process, or
otherwise use threshold of 1 million pounds per year, for that
chemical. The proposed 1 million pound alternate threshold received
considerable comment. Comments were primarily directed at the
proposal's impact on those facilities with low releases and limited
transfers but which have high volume chemical uses. The following unit
addresses comments on the alternate threshold in terms of: (1)
Application of the alternate threshold; (2) impact on high volume
chemical users; and (3) alternatives to the proposed approach.
1. Application of the alternate threshold. Several commenters
requested that EPA clarify whether the Agency intends the application
of the alternate threshold to apply in the same manner as current
threshold applications for submitting Form R. In particular, commenters
wanted clarification that the 1 million pound alternate threshold
applies in a mutually exclusive manner to either manufacture, or
process, or otherwise use of the toxic chemical within the facility.
EPA confirms that the application of the alternate threshold
applies in the same manner as current thresholds apply in making
compliance determinations for submitting Form R. This is reflected in
Sec. 327.27(c) of the regulatory text. That is, the alternate threshold
represents the amount that the facility manufactures, or processes, or
otherwise uses of the listed toxic chemical. If the facility meets the
eligibility criteria for the category and does not exceed 1 million
pounds of manufacture, or process, or otherwise use, then the facility
may be eligible for reduced reporting. In a multi-establishment
facility situation, the owner or operator must determine the total
amount of the same listed toxic chemical that is, for example,
otherwise used within all establishments of the facility and then
compare it to the alternate threshold. Owners or operators of
facilities should also be aware that the calculation of the low volume
category amount, annual reportable amounts not exceeding 500 pounds in
total wastes, must be based upon a whole facility determination, and
must include all activities occurring within all establishments within
the facility, unless otherwise exempt.
Several commenters saw no apparent rationale for the million pound
threshold, since, as one commenter stated, EPA has not collected
threshold data for EPCRA section 313 reported chemicals. One commenter
states that EPA should eliminate the million pound per year
``manufacture, process, or otherwise use'' threshold, since one of the
key objectives for the EPA proposal is to reduce reporting of de
minimis releases; this commenter sees no reason to establish an
additional qualification threshold related to chemical usage, which
goes beyond the Congressional intent for EPCRA to keep the public
informed of releases to the environment.
Another commenter stated that the 1 million pound threshold is
unnecessary because this rulemaking focuses on amounts released not
used. The volume of a listed chemical which a facility manufactures,
processes, or uses should have no bearing on whether that facility
qualifies for the proposed de minimis category based on releases, since
no appreciable benefit is gained by either the public or the regulated
community if releases are below the facility category level.
As described in unit II of this preamble, EPA is issuing this rule
under the authority of section 313(f)(2) to reduce the reporting burden
for those facilities that have relatively low amounts of listed
chemicals in annual reportable amounts. To accomplish this, EPA is
establishing a category of facilities based on certain criteria that
would be eligible to use an alternate threshold. It is by the
application of a higher manufacture, process, or otherwise use
alternate threshold that determines the eligibility of facilities
within the category to elect to submit a certification statement in
lieu of a Form R for those chemicals to which the category criteria apply.
2. Impact on high volume chemical users. Many commenters criticized
the proposed alternate threshold level for penalizing high volume
chemical users with low releases and transfers, providing these
facilities with no incentive for pollution prevention while displaying
a bias against facilities reporting within certain SIC codes. Some
believe the regulation should serve as an opportunity for EPA to reward
or encourage companies with low releases, instead of subjecting
facilities to a threshold which many view as still too low. One firm
conducted an analysis indicating that facilities operating in the metal
and metal fabrication industries (SIC codes 33 and 34) account for
approximately 21 percent of all Form Rs submitted under TRI. Under the
proposed rule, these facilities would have been unable to take
advantage of the alternate threshold at a disproportionate rate due to
their large volumes of materials recycled and further processed that
would have exceeded the proposed 1 million pound threshold. Several
commenters from the feed industry said that facilities in this industry
can regularly process 1 million pounds or more of feed ingredients that
contain TRI chemicals but are able to keep their releases typically
below 100 pounds. These commenters ask why these operations should be
penalized for their high efficiency.
Some commenters expressed the belief that EPA's proposed alternate
threshold had been arbitrarily selected and was not clearly defined.
Several commenters emphasize that EPA should set the alternate
threshold level high enough to allow all facilities with qualifying low
releases to utilize the burden reduction intended by this rulemaking.
Some of these commenters recommended alternatives such as a 10 and 50
million pound thresholds instead of EPA's 1 million pound proposed level.
One commenter said that EPA appears to be unaware of the
fundamental reality that production throughput does not relate to
amounts released. This commenter repeated the position that EPA should
reward large facilities that control their releases by allowing them to
qualify for the same benefit.
Through this rule, EPA intends to provide a reporting modification
that delivers some degree of regulatory relief while continuing to
capture relevant data. The 1 million pound alternate threshold
represents an attempt to balance these two concerns.
Many commenters from the environmental community and others
commented that the structure of the regulation put forth in EPA's
proposal would allow facilities to handle volumes of up to 1 million
pounds per chemical without the public having access to this
information. These commenters were concerned about those amounts that
would not be included in the facility category, such as amounts
recycled as EPA proposed, and that the amount of a chemical managed by
these activities would only be limited by the level of the alternate
manufacture, process, or otherwise use thresholds.
EPA believes that concerns raised by commenters, about the proposed
approach affecting potentially very large amounts of information on
chemicals in waste streams (i.e., they would not be reported), has been
mitigated by establishing a facility category based on annual
reportable amounts. By establishing the category based on annual
reportable amounts, only amounts managed in waste streams up to the
level established for the category are eligible for reduced reporting.
In contrast, EPA's proposed approach would have allowed a facility to
conduct such waste management activities as on-site treatment well
beyond the category level of 100 pounds and submit a certification
statement so long as the facility did not exceed the alternate
threshold of 1 million pounds.
EPA has established the alternate threshold for manufacture,
process, or otherwise use of 1 million pounds in order to provide those
facilities with annual reportable amounts not exceeding 500 pounds per
chemical with a lower burden reporting option, while preserving more
detailed data for facilities that manufacture, process, or otherwise
use larger volumes of chemicals. A 1 million pound alternate threshold
for amounts manufactured or processed, with annual reportable amounts
not exceeding 500 pounds, represents an efficiency of 99.95 percent and
EPA believes this level is likely to include the vast majority of
facilities meeting the category. EPA also believes that establishing
the alternate threshold at 1 million pounds is an effective means to
retain more detailed information where exceedingly large volumes of
toxic chemicals are managed.
3. Alternatives to the proposed approach. Many commenters offered
alternatives to the proposed activity threshold. One commenter
suggested that EPA consider a straight revision of the otherwise use
threshold from the current 10,000 pound level to 25,000 pounds in order
to simplify the rule.
EPA considered revising the otherwise use threshold in its initial
analysis of this rulemaking. By revising the otherwise use threshold,
only those forms pertaining to chemicals used would be affected and the
reduced reporting would not apply to chemicals manufactured or
processed. Additionally, where a revision of the otherwise use
threshold may be easier to implement than the alternate threshold
established by this rule, it does not provide the ability to consider
and make allowances for the types of information that will be affected.
For example, the current reporting thresholds allow a facility to have
uses of a chemical in amounts up to 10,000 pounds and not be required
to report to TRI. Uses of a chemical can result in direct releases or
transfers of nearly all of the amounts used. By raising the otherwise
use threshold to 25,000 pounds, a facility could potentially release up
to 25,000 pounds of a given constituent and the public would not have
access to that information through TRI.
Two commenters believe EPA should modify the ``otherwise use''
threshold to exclude chemicals contained in closed systems that are not
released under normal use activities. Reporting under section 313 is
often required when a listed chemical contained in a closed system is
charged or recharged in amounts that exceed the ``otherwise use''
threshold of 10,000 pounds. The commenters state that the inclusion of
this type of ``otherwise use'' in threshold determinations does not
meet the intent of EPCRA, since releases may not occur in the same year
that the facility's activity meets the reporting threshold. The
commenters further state that pollution prevention is generally not
applicable to these kinds of closed systems, with the exception of use
of a substitute chemical--which may or may not be less toxic, and may
be controlled by other laws and regulations. These commenters argue
that the exclusion of closed systems from the threshold determination
parallels other EPA guidance on exemptions for use of an article, and
is in keeping with the intent of EPCRA.
EPA believes the type of activity described by this commenter
should continue to be a covered use under TRI. These types of uses can
involve handling of significant quantities of a listed chemical. EPA
has provided an interpretation that only requires considering amounts
toward the otherwise use threshold in those years when such large
volumes are handled, such as when refrigeration systems are recharged.
D. Certification Statement
EPA proposed that each qualifying facility that chooses to apply
the alternate threshold must file an annual certification statement for
that listed toxic chemical instead of a Form R. The proposal outlined
two primary purposes of a certification statement. A certification
statement serves as a means of informing the public about the presence
and general magnitude of combined releases and transfers of a listed
toxic chemical by a facility at a lower burden than submitting a Form
R. It also serves to satisfy the statutory intent of section 313(f)(2)
which requires that reporting be obtained on a substantial majority of
releases of a chemical. The proposed elements of the certification
statement included signature of a senior management official, facility
identification, location and certain other linkage data, the chemical
identity, and an indication of any trade secrecy claim.
1. General reactions to the certification statement concept. Many
commenters, primarily those representing the regulated community,
oppose the concept of a certification statement. Several commenters
stated that EPA should comply with the spirit and purpose of the
Paperwork Reduction Act and not require an annual certification. Two
commenters stated that numerous other environmental requirements,
including the basic TRI thresholds, allow for self-determination with
requirements, and question why this rule should be different. Others
commenters raised similar concerns. For instance, if the facility meets
the ``exemption'' standard, then recordkeeping should be sufficient for
the purposes of an inspection.
EPA would like to reiterate that the proposal of an alternate
threshold was not developed to establish a wholesale exemption from
section 313 reporting requirements. Because the statute does not
provide expressed authority to establish a specific release-based
threshold, EPA has used the alternate threshold authority in section
313(f)(2) to grant some regulatory relief to small sources. Section
313(f)(2) requires that a revised threshold based on a facility
category concept retain reporting on a ``substantial majority'' of
releases. Therefore it would not be sufficient to simply rely on
recordkeeping as a means of satisfying the law. A certification
statement serves the purposes of right-to-know by providing the public
with the basic information that a facility manufactures, processes, or
otherwise uses a listed chemical in excess of current thresholds in
section 313(f)(1), that the annual reportable amount is between 0 and
500 pounds, and that the facility did not exceed the alternate
threshold for reporting. This information will be made available in the
TRI data base. Company records supporting such determinations are
available to EPA inspectors.
Several commenters representing environmental and public interest
groups supported the concept of a certification statement. This support
is generally associated, however, with a particular low volume amount
that establishes the category. For example, one commenter states that a
certification statement is appropriate, but the proposed level is too
high. Another commenter states that annual certification should be
provided, but only if the level is set at 10 pounds or below. Another
commenter states that ``at most, EPA should allow annual certification
where a facility's releases, all transfers, and waste streams are zero,
or 10 pounds, if simple check boxes show where the chemical went (land,
water, air, recycling, etc.).'' Another commenter states that annual
certification is reasonable only if there is no loophole for recycling
and energy recovery, that source reduction goals are not undermined,
and that small release quantities are truly small. A commenter from a
state government indicated that a certification statement would ensure
that the present universe of facilities covered by their State
pollution prevention rules would remain intact.
EPA, in this final action, has adopted a certification statement
approach and the basis of the low volume category has been shifted to
an annual reportable amount approach. EPA does not believe, however,
that implementation of a certification statement should be made
contingent upon the setting of a particular poundage value for the
category level. EPA believes that a certification statement is
necessary in order to maintain public right-to-know and to meet the
statutory ``substantial majority'' of releases requirement. The
certification statement relates to a range volume for a given chemical
contained in the annual reportable amount that can have multiple
connections to quantitative line items as reported or Form R. However,
EPA does not agree that additional check boxes are needed in the
certification statement. EPA believes that the category and level
established in this final rule are such that replacement of full Form
Rs, for those eligible reports, with certification statements provides
the public with an adequate level of information.
2. Frequency of certification. In the proposed rule, frequency of
certification would track the annual requirement for submission of Form
R. EPA requested comment on the appropriateness of certification
statements received less frequently than on an annual basis. Commenters
representing environmental and public interest groups supported annual
certification. Many commenters representing the regulated community
stated that industries should be able to submit the certification only
once, arguing that a facility that takes advantage of the alternate
threshold will likely remain eligible year after year, and if they
become ineligible, they will submit a Form R. These commenters stated
that during facility inspections, EPA could require facilities to
perform detailed calculations to verify eligibility and that such
detailed calculations to support the certification should not be
required each year.
Other commenters recommended a 3 or 5-year certification schedule.
Several commenters, many from the metal plating industry, favor a 3-
year certification with appropriate recordkeeping. Commenters from
industry generally believe that annual certification at any level is
not necessary and does little to reduce the burden of reporting.
However, one commenter representing an industry which generally opposed
the certification statement, indicated that if EPA were to require such
a statement that it should be annual. The reason given is that there is
a greater likelihood of missed filings under a bi-annual or tri-annual
schedule and the consequent exposure to enforcement.
In this final rule, EPA has retained an annual schedule for
submission of the certification statements. EPA believes that a one-
time or multi-year approach would not provide the data continuity
necessary for providing the TRI data annually to the public. In
addition, EPA does not believe that it should present the information
to the public in the TRI data base from such certification activity
unless it is based upon a positive submission by the facility. For
example, lack of receipt of a certification statement during one of the
``out years'' can mean one of two things. The facility could still be
within the eligibility limits of the alternate threshold, or it could
be beyond such limits and has not submitted a Form R. EPA is sensitive
to the cost considerations of an annual certification schedule.
However, this cost is in general a lower cost than for Form R
submission each year. Also, if operations do not change significantly
from year-to-year, as commenters indicate, then the subsequent year
determination of eligibility should not be a time-consuming data
development process.
Development of the information needed for a facility's
certification statements will generally involve only a one-time (one-
chemical) collection burden. In addition, most of the information on
the certification statement is very similar, if not identical to the
facility identification section of the current Form R. Furthermore, the
Agency plans to develop streamlined methods for submitting the
certification statements beginning with the 1995 reporting year. The
Agency's Automated Form R magnetic media submission software will be
modified to include the ability to create the certification statement.
This software is already designed to allow importation of data
previously filed. Once created or imported, the data will remain
accessible for all subsequent filing unless there has been a change in
the basic facility identification information. Even then, changing the
data will be straight-forward. The only additional variable will be the
name of the listed toxic chemical to which the certification statement
applies.
3. Representing certification statements in the data base. EPA
plans to enter the data from these certification statements into its
regular TRI data bases. The data will be marked to indicate that it
represents certification statements rather than Form Rs. In this way, a
geographic or chemical search will be able to show the presence of a
facility and the chemical for which it is applying the alternate
threshold. Quantitative analyses using certification statement data
could be done in one of several ways. The user could make a ``worst
case'' assumption and choose to count a total of 500 pounds of the
chemical released from that facility. An alternative would be to use a
midpoint of 250 pounds total release, similar to the treatment of
current range reports.
EPA received comment from a federal agency that requested that the
regulatory language of the proposal be changed prior to the final rule
that would allow facilities to submit a single certification for
multiple chemicals meeting the alternate threshold criteria.
At this time, EPA is requiring that a facility submit a unique
certification statement for each chemical meeting the alternate
threshold conditions. Facilities may assert a trade secrecy claim for a
chemical identity on the certification statement as on the Form R.
Reports submitted on a per chemical basis protect against the
disclosure of trade secrets. Certification statements with trade
secrecy claims, like Form Rs with similar claims, will be separately
handled upon receipt to protect against disclosure. Comingling trade
secret chemical identities with non-trade secret chemical identities on
the same submission increases the risk of disclosure. Also, processing
techniques currently in place make handling of one form with more than
one chemical difficult and be more likely to create submission errors
on the part of Form R reporters, as well as handling errors by EPA.
E. Covered Facility
Several commenters requested clarification from the Agency
regarding the status of a facility that may take advantage of the
alternate threshold. These commenters were concerned that the preamble
discussion in the proposal seemed to indicate that those facilities
taking advantage of an alternate threshold were not covered facilities
for purposes of TRI reporting, yet language in the proposed section
372.27(a) states that ``. . . a covered facility may apply an alternate
reporting threshold . . . .''
1. Applicability to ``piggy-back'' requirements. Several commenters
questioned whether a facility that utilizes the alternate threshold is
a section 313 ``covered facility'' as outlined in 40 CFR 372.22. The
primary concern expressed by these commenters relates to so called
``piggy-back'' requirements of other state or federal laws or
regulations. For example, a state law or regulation may cite a section
313 ``covered facility'' as a facility that must pay a fee, submit
additional information, or conduct facility pollution prevention planning.
40 CFR 372.22 of the regulations, ``covered facilities for toxic
chemical release reporting,'' defines the facilities for which a Form R
must be submitted. A facility that can take advantage of the alternate
threshold may or may not be a ``covered facility'' for purposes of any
specific toxic chemical. It will depend upon the factual situation and
the choices made by the owner/operator. The following examples
illustrate common situations/choice combinations:
(i) A facility that fits within the category description, and
manufactures, processes or otherwise uses 1 million pounds or less of a
listed toxic chemical annually, and whose owner/operator elects to take
advantage of the alternate threshold is not a covered facility and no
Form R is required.
(ii) The facility described in example (i) that fits within the
category description, and manufactures, processes, or otherwise uses 1
million pounds or less of a toxic chemical annually, but whose owner/
operator elects not to use the alternate threshold is a covered
facility subject to the thresholds under section 313(f)(1) for which a
Form R must be submitted.
(iii) A facility that fits within the category description, but
that manufactures, processes, or otherwise uses more than 1 million
pounds of a toxic chemical annually must still submit Form R and,
therefore, remains a covered facility. In this final rule, Sec. 372.22
has been amended to reflect this interpretation.
The Agency wants to make it clear, however, that its determination
on this issue may not necessarily mitigate the impact of piggy-back
requirements. The ultimate impact of being a ``covered facility'' can
vary depending upon how the linkage is constructed in the specific
state or other federal requirement. For example, where a state
requirement is based upon the number of Form R reports submitted to the
state (e.g., report-based filing fee), the submission of certification
statements instead of Form R reports could provide an incremental
burden reduction. Conversely, if the state requirement is based upon
the submission of at least one Form R report, a facility may be subject
to the same degree of piggy-back burden irrespective of the existence
of the alternate threshold. In this scenario, it is only those
facilities who could substitute certification statements for all of
their Form R reports that may benefit. Under any circumstance, a state
could modify its requirements to adjust for certification statements,
and EPA has no control over such state actions. Owners/operators should
contact the appropriate state authorities for guidance.
EPA's determination on this issue in no way limits or affects its
ability to bring enforcement actions against a facility. If a facility
wishes to take advantage of the alternate threshold, then it must
determine that its annual reportable amount did not exceed 500 pounds
of the chemical for that year, it must file a certification statement,
and it must keep appropriate records. Therefore, if the facility fails
to submit either a certification statement or a Form R, the facility is
a non-reporter and faces penalties up to $25,000 per day per violation
(see EPCRA section 325(c), 42 U.S.C. 11045). In addition, even if the
facility files a certification statement, the Agency can bring an
enforcement action based upon the inadequacy of required records or a
determination that the facility's calculation of annual reportable
amount was incorrect.
2. Applicability to partial facility reports. Commenters asked
whether the alternate threshold certification process applied in the
same manner as Form R reporting in the case of such partial facility
reports. Currently the regulations at Sec. 372.30(c) allow separate
reports to be filed for the same chemical by establishments within a
multi-establishment facility. This was allowed as a convenience for
such multi-establishment facilities because these separate
establishments may operate independently of one another and would find
it easier to file reports on their own operations than to have to
consolidate reporting data across several such operating units.
However, this is only allowed if there has been a total facility
threshold determination for the manufacture, process, or otherwise use
of a listed chemical. Form R contains a check box for a question
relating to whether the report is a ``partial facility'' report.
For the purposes of the certification statement, the facility must
also make its determination based upon the entire facility's operations
including all of its establishments. If the facility as a whole is able
to take advantage of the alternate threshold, a single certification is
required. EPA can see no benefit in allowing a facility with multiple
establishments to submit more than one certification statement for each
of the chemicals for which it is eligible. The eligibility to submit a
certification statement is made on a whole facility determination.
Thus, all of the information necessary to make the determination has
been assembled to the facility level. No other detail is required by
the certification statement and, therefore, no apparent benefit is
provided to the facility in having it submit multiple statements
containing duplicative information.
EPA also believes that multiple submissions of certification
statements for the same chemical from the same facility provides a
greater opportunity for the data to be misinterpreted. If, for example,
a user of the data were interested in a facility's chemical management
practices and found more than one certification for the same chemical,
as it would appear in the data base, then the user might incorrectly
assume that the facility managed the maximum annaul reportable amount
of 500 pounds for that chemical times the number of certification
statements appearing in the data base for the same chemical from
another establishment. For these reasons, EPA is not extending
``partial facility'' or multiple submissions of the certification
statement by multi-establishment facilities.
3. Loss of eligibility for the threshold and relationship to prior
year reporting. A commenter questioned whether the facility was
required to submit prior year data under section 8 of Form R if in a
subsequent reporting year the facility became ineligible to take
advantage of the alternate threshold. EPA's determination on this issue
is that the facility would not be required to include prior year data.
This is because the facility was not specifically obligated to develop
such data and submit it on Form R. This would be similar to a situation
in which a facility fell below the statutory threshold for an activity
and was not required to file Form R for a preceding year. The facility
may enter ``NA'' in these blocks of column A of section 8 of Form R.
However, EPA encourages facilities to provide such data voluntarily. A
facility may have developed specific determinations regarding amounts
that contributed to the total waste determination in order to take
advantage of the alternate threshold for that prior year. Given this,
the facility could fill in the appropriate blocks of column A without
significant additional burden.
F. Degree of Burden Reduction
A majority of commenters indicated that the proposal would provide,
at best, only minimal regulatory relief from current reporting burden.
Others indicated that, while they support the concept of this proposal,
it will not relieve the reporting burden placed on either large or
small businesses. In addition, some commenters considered EPA's
estimates of net savings to the regulated community to be overstated.
Most of the comments received concerning burden relief focussed on four
aspects that, in the commenters' view, are unrelieved by EPA's
proposal: (1) Data elements required to complete the annual
certification; (2) level of effort required to document eligibility for
submitting a certification statement; (3) failure of EPA to account for
facilities manufacturing, processing, or otherwise using chemicals in
excess of the alternate threshold; and (4) relief from additional
regulations at the state and local level, which are predicated upon
eligibility for reporting in TRI.
1. Data elements required to complete the annual certification.
Commenters' most frequent contention was that only minimal burden
reduction would be available through the alternate threshold. The
reason given by commenters was that filing the annual certification
statement would require that all calculations required when filing Form
R would still be necessary in order to document eligibility for the
alternate threshold. The only reduction in burden, argue commenters,
would be associated with the actual preparation and mailing of Form R.
EPA emphasizes that information regarding source reduction
activities (including, for example, prior and subsequent year estimates
required under section 8 of Form R) and certain other data (including,
for example, location of transfer recipients; waste treatment method
and efficiency) would not be required under the rule. Some commenters
believe that many facilities eligible for the alternate threshold will
perform such calculations in any event, to ensure that a complete Form
R submission can be prepared in case their eligibility cannot be
maintained from year-to-year. EPA stresses that these calculations for
previous and subsequent years are not required, and concludes that
meaningful burden reduction is available through the alternate
threshold to facilities choosing to file the certification statement.
2. Level of effort required to document eligibility for the
alternate threshold. Some commenters expressed concern regarding the
level of effort needed to document a claim of eligibility under the
proposed rule, fearing that increased stringency will be applied to
recordkeeping requirements. Consequently, the additional burden and
cost associated with this increased stringency, commenters argue, could
prevent many facilities from taking advantage of the exemption. While
EPA recognizes that facility operators may perceive a level of burden
in documenting eligibility for the alternate threshold in excess of
current requirements, EPA does not intend to seek greater precision in
estimates from facilities eligible for the alternate threshold. Since
facility operators have presumably filed Form Rs in the past,
estimation procedures and recent records of calculations and
submissions most likely exist for most facilities; thus, new or
additional procedures should not need to be established. Consequently,
EPA disagrees with these commenters, and sees no reason why
recordkeeping requirements associated with the alternate threshold
should deter eligible facilities from filing the annual certification
statement.
3. Failure of EPA to account for facilities manufacturing,
processing, or otherwise using chemicals in excess of the alternate
threshold. One commenter explained that EPA's aggregate estimate of
savings attributable to the alternate threshold were overstated due to
the Agency's assumption that all facilities identified as meeting the
category criteria were in fact eligible to file the certification
statement under the alternate threshold. The commenter noted that many
facilities with low level releases would be ineligible to file the
annual certification statement because they would exceed the proposed 1
million pound alternate manufacture, process, or otherwise use threshold.
EPA acknowledges this, and agrees that, to the extent that there
are facilities that satisfy the category criteria but do not meet
threshold requirements, aggregate savings are overstated. While data
are not available to estimate the frequency of occurrence of such
facilities, EPA is confident that the overall impacts of the assumption
are minor.
Conversely, EPA's estimates may understate savings due to the
effect of range reporting on the analysis. That is, the number of
facilities estimated to meet the category criteria likely excludes many
facilities satisfying the criteria because many take advantage of the
option of range reporting when filing Form R. Since facilities may
report releases within a range of 11-499 pounds to each media type, EPA
cannot know for certain the number of facilities for which the annual
reportable amount would be limited to 500 pounds. Where range reporting
was used, EPA assumed actual releases to be the midpoint of 250 pounds;
thus, facilities with actual releases below this amount would be
excluded if reporting for more than two media types.
4. Impact of other regulatory requirements. Many commenters pointed
out that burden is also a function of ``piggyback'' state or federal
requirements that reference TRI reporting as a trigger for additional
reporting, submission of fees, or development of facility plans for
pollution prevention. Commenters urge EPA to clearly state that those
who take advantage of the alternate threshold are not considered to be
``covered facilities'' and should not be subject to additional
``piggyback'' regulations.
As discussed in unit III.E.1. of this preamble, the covered
facility determination relative to these other requirements is a
chemical-specific determination. If all potential Form R reports can be
converted to certification statements, EPA estimates that approximately
3,800 facilities would no longer be ``covered facilities'' for purposes
of Form R reporting. In addition, approximately 6,000 other facilities
would be eligible to convert one or more of their Form R reports to a
certification statement (Ref. 4). However, facilities that can take
advantage of the alternate threshold are required to report under EPCRA
section 313 for purposes of submission of the alternate threshold
certification statement for a specific chemical. The ultimate
mitigation of the burden associated with the piggyback requirements
will relate to the specific way in which those requirements reference
TRI submitters or forms.
G. Effective Date
Some commenters suggested that EPA consider alternatives to the
effective date of the proposal. Suggestions included a retroactive date
corresponding to the effective date of EPCRA, in essence applying the
alternate threshold to all past reports under section 313. Others felt
that no delays in promulgating this rule should prevent its application
in reporting year 1995. Another commenter indicated that EPA should
deliberate as long as is necessary to complete the analysis that
supports this rule, while a few commenters requested that the effective
date of the rule be applied to reporting year 1994.
Contingent upon OMB approval, the alternate threshold rule is
effective for reporting on activities beginning January 1, 1995, with
the first receipt of certifications due on or before July 1, 1996. EPA
will publish a technical amendment in the Federal Register when the
reporting additions have been approved by OMB. As with any major
changes in reporting requirements, EPA believes that both the regulated
community, EPA, and the states require time to understand and prepare
for implementing this change. The regulated community will need an
opportunity to become fully aware of the alternate threshold and
understand how it can apply to their data development and their own
data management systems for TRI compliance purposes. EPA and the states
need time to make necessary modifications in data systems to
incorporate the certification statements. Also, changes to the Agency's
automated reporting software have to be made and tested in order to add
the certification statement feature.
IV. Rulemaking Record
The record supporting this rule is contained in the TSCA docket,
number OPPTS-400087. All documents, including an index of the docket,
are available in the TSCA Nonconfidential Information Center (NCIC),
also known as the TSCA Public Docket Office from 12 noon to 4 p.m.,
Monday through Friday, excluding legal holidays. The NCIC is located at
EPA Headquarters, Rm. NE-B607, 401 M St., SW., Washington, DC 20460.
V. References
(1) Regulatory Impact Analysis of the EPCRA Section 313 Alternate
Threshold Final Rule; USEPA, (October 17, 1994).
(2) Title III List of Lists, Consolidated List of Chemicals Subject
to Reporting Under the Emergency Planning And Community Right-To-Know
Act; USEPA, 560/492-011, (January 1992).
(3) Toxic Release Inventory-Small Source Exemption Issues Paper;
prepared by the Office of Pollution Prevention and Toxics, (January 27,
1994).
(4) TRI Data: Summary of Estimated Impacts (1991 verses 1992).
VI. Regulatory Assessment Requirements
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 review by the Office of Management and Budget
(OMB) and the requirements of the Executive Order. Under section 3(f),
the order defines as ``significant'' those regulatory actions likely to
lead to a rule (1) Having an annual effect on the economy of $100
million or more, or adversely and materially affecting a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local or tribal governments or communities
(also referred to as ``economically significant''); (2) creating
serious inconsistency or otherwise interfering with an action taken or
planned by another agency; (3) materially altering the budgetary
impacts of entitlements, grants, user fees, or loan programs; or (4)
raising novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in this Executive
Order.
Pursuant to the terms of this Executive Order, EPA has determined
that this rule is ``significant'' because of the novel policy issues
arising out of the statutory mandate to maintain reporting on a
substantial majority of releases if the reporting threshold under
section 313(f)(1) is modified. This action was submitted to OMB for
review, as required by Executive Order 12866, and any comments or
changes made in response to OMB suggestions or recommendations have
been documented in the public record.
EPA has prepared a Regulatory Impact Analysis (RIA) in conjunction
with this rulemaking. A copy of this document (titled ``Regulatory
Impact Analysis of the Final Rule for the Alternate Threshold for EPCRA
Section 313 Reporting'') is available in the TSCA Nonconfidential
Information Center (NCIC) (also known as the TSCA Public Docket
Office), for review and copying (see unit IV. of this preamble).
EPA has estimated that the alternate threshold will generate $19
million a year in savings. The savings from the final rule differ from
the savings from the proposed rule because the basis of the facility
category has been changed from releases and transfers to annual
reportable amounts, and the level has been changed from 100 pounds to
500 pounds. These differences are shown in Table 2 below.
EPA is issuing a final rule to add chemicals and chemical
categories to the EPCRA section 313 list. The alternate threshold is
estimated to save an additional $3 million per year for reporting on
these additional chemicals. Further information on the chemical
additions will be presented the Federal Register.
Table 2.--Summary of Cost Comparison Between Proposed and Final Rule
----------------------------------------------------------------------------------------------------------------
Final Rule (500lb.
Proposed Rule (100lb. Annual Reportable Final Rule with New
Release and Transfer) Amount) Chemicals
----------------------------------------------------------------------------------------------------------------
Number of facilities with one or more
reports affected 10,200 9,900 11,600
Number of facilities with all reports
affected 3,600 3,800 4,500
Number of reports affected 20,500 20,100 23,600
Industry savings per report affected $1,264 $912 $912
EPA savings per report affected $33.20 $33.20 $33.20
Annual industry savings $25.9 million $18.4 million $21.5 million
Annual EPA savings $0.7 million $0.7 million $0.8 million
----------------------------------------------------------------------------------------------------------------
Source--RIA.
The savings described in Table 2 above are only related to those
actions that are required under EPCRA section 313. There are other
requirements that are linked to reporting under EPCRA section 313, but
that are not required by it. EPA is aware of 13 states that place a fee
or tax on facilities that file a Form R or report to EPA under EPCRA
section 313, and 7 states that mandate pollution prevention plans from
such facilities. EPA has also created special requirements for certain
facilities with NPDES storm water permits that report under EPCRA
section 313.
The alternate threshold may also create savings related to the
linked requirements. Since a facility that can take advantage of the
alternate threshold is not a ``covered facility'' for purposes of a
specific Form R submission, the linkage to state requirements may no
longer hold. This will not necessarily increase net social benefits,
because the linked fees and taxes are transfers (and there will be a
corresponding decrease in state revenues), and the benefits of covering
these facilities under the pollution prevention planning requirements
may be lost. Moreover, these states may choose to reimpose the linked
requirements, even if the facilities have not filed a Form R.
B. Regulatory Flexibility Act
Pursuant to section 605(b) of the Regulatory Flexibility Act, 5
U.S.C. 605(b), the Administrator certifies that this rule will not have
a significant economic impact on a substantial number of small
entities. Because this rule will result in cost savings to facilities,
EPA certifies that small entities will not be significantly affected by
it.
C. Paperwork Reduction Act
The information collection requirements in this rule have been
submitted for approval to OMB under the Paperwork Reduction Act, 44
U.S.C. 3501 et seq. An Information Collection Request document has been
prepared by EPA (ICR No. 1704.01) and a copy may be obtained from Sandy
Farmer, Information Policy Branch, Mail Code 2136, EPA, 401 M St., SW.,
Washington, DC 20460 or by calling (202) 260-2740. These requirements
are not effective until OMB approves them and a technical amendment to
that effect is published in the Federal Register.
This collection of information has an estimated reporting burden
averaging 33 hours per response and an estimated annual recordkeeping
burden averaging 6 hours per respondent. These estimates include time
for reviewing instructions, searching existing data sources, gathering
and maintaining the data needed, and completing and reviewing the
collection of information.
List of Subjects in 40 CFR Part 372
Environmental protection, Community right-to-know, Reporting and
recordkeeping requirements, Toxic chemicals.
Dated: November 22, 1994.
Carol M. Browner,
Administrator.
Therefore, 40 CFR part 372 is amended as follows:
PART 372--[AMENDED]
1. The authority citation for part 372 continues to read as follows:
Authority: 42 U.S.C. 11023 and 11048.
2. In Sec. 372.10, by adding a new paragraph (d) to read as follows:
Sec. 372.10 Recordkeeping.
* * * * *
(d) Each owner or operator who determines that the owner operator
may apply the alternate threshold as specified under Sec. 372.27(a)
must retain the following records for a period of 3 years from the date
of the submission of the certification statement as required under
Sec. 372.27(b):
(1) A copy of each certification statement submitted by the person
under Sec. 372.27(b).
(2) All supporting materials and documentation used by the person
to make the compliance determination that the facility or establishment
is eligible to apply the alternate threshold as specified in Sec. 372.27.
(3) Documentation supporting the certification statement submitted
under Sec. 372.27(b) including:
(i) Data supporting the determination of whether the alternate
threshold specified under Sec. 372.27(a) applies for each toxic chemical.
(ii) Documentation supporting the calculation of annual reportable
amount, as defined in Sec. 372.27(a), for each toxic chemical,
including documentation supporting the calculations and the
calculations of each data element combined for the annual reportable
amount.
(iii) Receipts or manifests associated with the transfer of each
chemical in waste to off-site locations.
3. In Sec. 372.22, by revising paragraph (c) to read as follows:
Sec. 372.22 Covered facilities for toxic chemical release reporting.
* * * * *
(c) The facility manufactured (including imported), processed, or
otherwise used a toxic chemical in excess of an applicable threshold
quantity of that chemical set forth in Sec. 372.25 or Sec. 372.27.
4. In Sec. 372.25, by revising the introductory paragraph to read
as follows:
Sec. 372.25 Thresholds for reporting.
Except as provided in Sec. 372.27, the threshold amounts for
purposes of reporting under Sec. 372.30 for toxic chemicals are as
follows:
* * * * *
5. By adding new Sec. 372.27 to read as follows:
Sec. 372.27 Alternate threshold and certification.
(a) With respect to the manufacture, process, or otherwise use of a
toxic chemical, the owner or operator of a facility may apply an
alternate threshold of 1 million pounds per year to that chemical if
the owner or operator calculates that the facility would have an annual
reportable amount of that toxic chemical not exceeding 500 pounds for
the combined total quantities released at the facility, disposed within
the facility, treated at the facility (as represented by amounts
destroyed or converted by treatment processes), recovered at the
facility as a result of recycle operations, combusted for the purpose
of energy recovery at the facility, and amounts transferred from the
facility to off-site locations for the purpose of recycle, energy
recovery, treatment, and/or disposal. These volumes correspond to the
sum of amounts reportable for data elements on EPA Form R (EPA Form
9350-1; Rev. 12/4/93) as Part II column B or sections 8.1 (quantity
released), 8.2 (quantity used for energy recovery on-site), 8.3
(quantity used for energy recovery off-site), 8.4 (quantity recycled
on-site), 8.5 (quantity recycled off-site), 8.6 (quantity treated on-
site), and 8.7 (quantity treated off-site).
(b) If an owner or operator of a facility determines that the owner
or operator may apply the alternate reporting threshold specified in
paragraph (a) of this section for a specific toxic chemical, the owner
or operator is not required to submit a report for that chemical under
Sec. 372.30, but must submit a certification statement that contains
the information required in Sec. 372.95. The owner or operator of the
facility must also keep records as specified in Sec. 372.10(d).
(c) Threshold determination provisions of Sec. 372.25 and
exemptions pertaining to threshold determinations in Sec. 372.38 are
applicable to the determination of whether the alternate threshold has
been met.
(d) Each certification statement under this section for activities
involving a toxic chemical that occurred during a calendar year at a
facility must be submitted to EPA and to the State in which the
facility is located on or before July 1 of the next year.
6. By adding a new Sec. 372.95 to read as follow:
Sec. 372.95 Alternate threshold certification and instructions.
(a) Availability of the alternate threshold certification statement
and instructions. Availability of the alternate threshold certification
statement and instructions is the same as provided in Sec. 372.85(a)
for availability of the reporting form and instructions.
(b) Alternate threshold certification statement elements. The
following information must be reported on an alternate threshold
certification statement pursuant to Sec. 372.27(b):
(1) Reporting year.
(2) An indication of whether the chemical identified is being
claimed as trade secret.
(3) Chemical name and CAS number (if applicable) of the chemical,
or the category name.
(4) Signature of a senior management official certifying the
following: pursuant to 40 CFR 372.27, ``I hereby certify that to the
best of my knowledge and belief for the toxic chemical listed in this
statement, the annual reportable amount, as defined in 40 CFR
372.27(a), did not exceed 500 pounds for this reporting year and that
the chemical was manufactured, or processed, or otherwise used in an
amount not exceeding 1 million pounds during this reporting year.''
(5) Date signed.
(6) Facility name and address.
(7) Mailing address of the facility if different than paragraph
(b)(6) of this section.
(8) Toxic chemical release inventory facility identification number
if known.
(9) Name and telephone number of a technical contact.
(10) The four-digit SIC codes for the facility or establishments in
the facility.
(11) Latitude and longitude coordinates for the facility.
(12) Dun and Bradstreet Number of the facility.
(13) EPA Identification Number(s) (RCRA) I.D. Number(s) of the
facility.
(14) Facility NPDES Permit Number(s).
(15) Underground Injection Well Code (UIC) I.D. Number(s) of the
facility.
(16) Name of the facility's parent company.
(17) Parent company's Dun and Bradstreet Number.
[FR Doc. 94-29377 Filed 11-29-94; 8:45 am]
BILLING CODE 6560-50-F
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