[Federal Register Volume 61, Number 125 (Thursday, June 27, 1996)]
[Proposed Rules]
[Pages 33588-33618]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16392]
[[Page 33587]]
_______________________________________________________________________
Part II
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 372
Addition of Facilities in Certain Industry Sectors; Toxic Chemical
Release Reporting; Community Right-to-Know; Proposed Rule
Emergency Planning and Community Right-to-Know; Notice of Public
Meeting; Notice
Federal Register / Vol. 61, No. 125 / Thursday, June 27, 1996 /
Proposed Rules
[[Page 33588]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 372
[OPPTS-400104; FRL-5379-3]
RIN 2070-AC71
Addition of Facilities in Certain Industry Sectors; Toxic
Chemical Release Reporting; Community Right-to-Know
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to add seven industry groups to the list of
industry groups subject to the reporting requirements under section 313
of the Emergency Planning and Community Right-to-Know Act of 1986
(EPCRA) and section 6607 of the Pollution Prevention Act of 1990 (PPA).
These industry groups are metal mining, coal mining, electric
utilities, commercial hazardous waste treatment, chemicals and allied
products-wholesale, petroleum bulk stations-wholesale, and solvent
recovery services. EPA believes that the addition of these industry
groups to EPCRA section 313 will significantly add to the public's
right-to-know about releases and other waste management activities of
toxic chemicals in their communities. EPA believes that these industry
groups meet the criteria of EPCRA section 313(b)(1)(B). Reporting for
these sectors will be required for the first full year following
publication of the final rule.
DATES: Written comments on this proposed rule must be received on or
before August 26, 1996.
ADDRESSES: Written comments should be submitted in triplicate to: OPPT
Docket Clerk, TSCA Document Receipt Office (7407), Office of Pollution
Prevention and Toxics, Environmental Protection Agency, Rm. E-G099, 401
M St., SW., Washington, DC 20460. Comments containing information
claimed as confidential must be clearly marked as confidential business
information (CBI). If CBI is claimed, three additional sanitized copies
must also be submitted. Nonconfidential versions of comments on this
proposed rule will be placed in the rulemaking record and will be
available for public inspection. Comments should include the docket
control number for this proposal, OPPTS-400104 and the EPA contact for
this proposal. Unit VII. of this preamble contains additional
information on submitting comments containing information claimed as
CBI.
Comments and data may also be submitted electronically by sending
electronic mail (e-mail) to: oppt.ncic@epamail.epa.gov. Electronic
comments must be submitted as an ASCII file avoiding the use of special
characters and any form of encryption. Comments and data will also be
accepted on disks in WordPerfect 5.1 file format or ASCII file format.
All comments and data in electronic form must be identified by the
docket number OPPTS-400104. No CBI should be submitted through e-mail.
Electronic comments on this proposed rule may be filed online at many
Federal Depository Libraries. Additional information on electronic
submissions can be found in Unit VII. of this document.
FOR FURTHER INFORMATION CONTACT: Tim Crawford at 202-260-1715, e-mail:
crawford.tim@epamail.epa.gov or Brian Symmes at 202-260-9121, e-mail:
symmes.brian@epamail.epa.gov for specific information regarding this
proposed rule. For further information on EPCRA section 313, contact
the Emergency Planning and Community Right-to-Know Hotline,
Environmental Protection Agency, Mail Stop 5101, 401 M St., SW.,
Washington, DC 20460, Toll free: 1-800-535-0202, in Virginia and
Alaska: 703-412-9877 or Toll free TDD: 800-553-7672.
SUPPLEMENTARY INFORMATION:
I. Introduction
A. Regulated Entities
Entities potentially regulated by this proposed action are those
facilities within the industry groups being proposed for addition to
the list of Standard Industrial Classification (SIC) codes which
manufacture, process, or otherwise use chemicals listed at 40 CFR
372.65 and meet the reporting requirements of section 313 of the
Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA), 42
U.S.C. 11023 and section 6607 of the Pollution Prevention Act of 1990
(PPA), 42 U.S.C. 13106. Some of the potentially regulated categories
and entities include:
------------------------------------------------------------------------
Examples of regulated
Category entities
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Industry; facilities that manufacture, Metal mining, Coal mining,
process, or otherwise use certain Electric utilities,
chemicals. Commercial hazardous waste
treatment, Chemicals and
allied products-wholesale,
Petroleum bulk stations-
wholesale, Solvent recovery
services, Manufacturing.
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
proposed action. This table lists the types of entities that EPA is now
aware could potentially be regulated by this proposed action. Other
types of entities not listed in the table could also be regulated. To
determine whether your facility would be regulated by this action, you
should carefully examine this proposal and the applicability criteria
in part 372 subpart B of Title 40 of the Code of Federal Regulations.
B. Statutory Authority
This proposed rule is issued under sections 313(b) and 328 of
EPCRA, 42 U.S.C. 11023 et seq. EPCRA is also referred to as Title III
of the Superfund Amendments and Reauthorization Act of 1986 (SARA)
(Pub. L . 99-499).
C. Background
Section 313 of EPCRA requires certain facilities manufacturing,
processing, or otherwise using listed toxic chemicals to report their
environmental releases of such chemicals annually. Beginning with the
1991 reporting year, such facilities also must report source reduction
and recycling data for such chemicals, pursuant to section 6607 of the
PPA, 42 U.S.C. 13106. Section 313(b)(1)(A) specifically applied these
reporting requirements to owners and operators of facilities that have
10 or more full time employees and that are in Standard Industrial
Classification (SIC) codes 20 through 39. EPCRA section 313(b)
authorizes EPA to add facilities and industry groups to the EPCRA
section 313 list. The purpose of this proposed rule is to expand the
universe of industry groups that are subject to EPCRA section 313 and
PPA section 6607.
[[Page 33589]]
II. Preparation for Expansion of Section 313 Industry Groups
A. General Background
In 1986, Congress enacted EPCRA to ensure that the presence,
management, and routine and emergency releases of toxic chemicals in
the United States were well understood. It was evident that there were
facilities in the United States where toxic chemicals were
manufactured, used and stored--but knowledge of this was undisclosed to
emergency response teams, state and local governments, and perhaps most
importantly, the citizens who lived and shared common neighborhoods
with these facilities.
At the core of these new provisions was the concept of a facility-
specific, chemical-based inventory. This inventory, termed the Toxics
Release Inventory (TRI), created a national data base identifying
facilities and their annual accidental and routine releases of toxic
chemicals. Prior to EPCRA, this information was not readily available
to the federal government, state governments, emergency preparedness
teams or the general public, and often did not become available until
after serious accidents occurred or until major impacts on human health
and the environment were evident. This ``after-the-fact'' disclosure of
information did little to help plan or prevent such serious health and
environmental impacts.
EPCRA section 313 currently requires certain manufacturing
facilities in SIC codes 20 through 39 to report annually on their
releases, transfers, and other waste management practices for more than
600 listed toxic chemicals and chemical categories (hereafter ``toxic
chemicals''). Information on the release (including disposal),
transfer, and other waste management activities of these chemicals,
which is provided to EPA and States, is then made publicly available
through a variety of means, including an annual report issued by EPA.
The data that EPA receives from these approximately 23,000
facilities have provided the public, industry, and all levels of
government with critical information related to toxic chemical releases
and transfers that occur within their communities and across the United
States. These data have become an essential component of facility
planning and community preparedness and response. Further, these data
allow States, communities and the public to engage in an informed way
in environmental decision making. The TRI data are a yardstick by which
progress can be measured by industry and local communities and
governments. These data enable all interested parties to establish
credible baselines, to set realistic goals for environmental progress,
and to measure progress in meeting these goals over time.
Data about releases and other waste management activities of toxic
chemicals at the community level were generally nonexistent prior to
EPCRA. While permit data are generally cited as a public source of
environmental data, they are often difficult to obtain, are not cross-
media and present only a limited perspective on the facility's overall
performance. While other sources of data are often cited as substitutes
for TRI data, EPA is unaware of any other publicly available,
nationwide data base that provides multi-media, facility-specific
release and waste information to the public. With EPCRA, and the real
gains in understanding it has produced, communities now know what a
subset of industrial facilities in their area release or otherwise
manage as waste for listed toxic chemicals.
EPCRA section 313 facility coverage is currently limited to
facilities in the manufacturing sector, i.e., in SIC codes 20 through
39. These manufacturing facilities account for only a small portion of
the toxic chemicals released or handled as waste in the United States.
Facilities currently covered by EPCRA section 313 account for only 0.4
percent of the facilities in the United States (Ref. 14). In 1989, the
Office of Technology Assessment estimated that the TRI represents 5
percent of toxic releases to the environment. Adding non-manufacturing
industries to the EPCRA section 313 list of facilities will provide
basic information to millions of Americans on releases and other waste
management information on toxic chemicals from additional industrial
facilities in their communities.
As discussed in detail in Unit III.A. of this preamble, Congress
gave EPA clear authority to expand TRI, both in terms of the chemicals
reported and the facilities required to report. The limited list of
chemicals and facilities identified in the original legislation was
meant as a starting point, or a core program. Congress recognized that
the TRI program would need to evolve to meet the needs of a better
informed public and to fill information gaps that would become apparent
over time.
In implementing the expansion of the TRI program, EPA is pursuing
the course set by Congress. The information EPA is seeking to provide
the public through this proposal currently is largely unavailable.
While many non-manufacturing facilities may be subject to various
reporting requirements at the Federal, State, and local levels, these
reporting systems are not comparable to TRI. These systems, which were
reviewed as part of the analysis for this proposal, have been found to
be limited in scope, content, coverage, and accessibility compared to
TRI. Many do not focus on the collection and dissemination of
information but are used to support other regulatory activities, such
as the issuance of permits. While other reporting systems may serve
their statutorily mandated purposes, none provide accessible data on
releases to all media from such a large number of facilities.
Therefore, these existing data systems, which may serve other useful
purposes, do not provide as useful information for communities on toxic
chemicals as TRI does. Moreover, duplication between TRI data and data
contained in other systems is minimal, data contained in those other
systems often reflect permitted releases rather than actual releases,
and these data may represent wastestream level data rather than the
chemical-specific data that comprises TRI.
In a critical analysis of the TRI program, the Congressional
General Accounting Office (GAO) in 1991 noted that EPA had not used its
statutory authority to expand the types of facilities required to
report under EPCRA section 313. GAO recognized that the value of the
TRI program could be enhanced significantly by expanding the program's
reporting requirements to cover industries outside the manufacturing
sector, and noted that industry group expansion is supported by a
variety of stakeholders. More discussion of the GAO's report, entitled
Toxic Chemicals: EPA's Toxic Release Inventory Is Useful But Can Be
Improved (hereafter GAO Report), can be found in Unit III.A. of this
preamble (Ref. 2).
EPA has undertaken a number of actions to expand and enhance TRI.
These actions include expanding the number of reportable toxic
chemicals by adding 286 toxic chemicals and chemical categories to the
EPCRA section 313 list in 1994. At the same time, EPA sought to reduce
burden for facilities with low annual reportable amounts of toxic
chemicals by establishing an alternate reporting threshold that allows
facilities with 500 pounds or less of reportable releases and other
wastes to file a certification statement instead of the standard TRI
report, the Form R. Further, a new category of facilities was added to
TRI on August 3, 1993 through Executive Order 12856, which requires
Federal
[[Page 33590]]
facilities meeting threshold requirements to file annual TRI reports,
regardless of SIC code.
EPA first announced its intention to consider the expansion of TRI
to include additional industry groups at a public meeting held on May
29, 1992 (57 FR 19126). Today's proposal to expand the coverage of TRI
to include additional industry groups has been undertaken in order to
provide new and valuable information on toxic chemicals in the U.S. The
proposed industry groups are responsible for substantial use, release
and generation of EPCRA section 313 chemicals as waste, and are engaged
in activities similar to or related to activities conducted at
facilities within the manufacturing sector that currently reports. This
action is proposed in order to more completely account for releases,
transfers, and waste management in the U.S., and to provide the public,
all levels of government, and the regulated community with information
that will improve decision making, measurement of pollution, and the
understanding of the environmental consequences of toxic chemical
emissions.
On August 8, 1995, the President issued a directive to EPA for
``continuation on an expedited basis of the public notice and comment
rulemaking proceedings to consider whether, as appropriate and
consistent with section 313(b) of EPCRA, 42 U.S.C. 11023(b), to add to
the list of Standard Industrial Classification (``SIC'') Code
designations of 20 through 39 (as in effect on July 1, 1985)'' (60 FR
41791). The President directed that EPA ``complete the rulemaking
process on an accelerated schedule.'' EPA is now proposing a number of
carefully selected industry segments for coverage under EPCRA section
313. Although EPA may be ``expediting'' this activity, it is doing so
only after lengthy deliberations and consultation with stakeholders.
EPA recognizes that expansion of TRI reporting to cover a broader
range of facilities raises some communication issues that may not be
presented by the original list of manufacturing facilities in SIC codes
20 through 39. For example, inclusion of certain waste management
facilities as proposed could mean that a facility's primary business
could equate to a reportable release. As discussed in Unit V.F.6. of
this preamble, this could lead to the misperception that an
uncontrolled release is taking place, when in reality the facility is
legally and responsibly managing waste materials. This type of
misperception is not a result intended or desired by EPA. Similarly, a
concern has been expressed by some that because waste management
activities may involve transfers from one facility to another that the
same material may appear more than once in the TRI data base. EPA
believes that, since transfers and releases are tracked separately,
this should not mislead the public, but seeks comment on the issue. As
this rulemaking proceeds, EPA will be evaluating how it presents--
including in its annual data release--and otherwise communicates the
information reported by these new facilities. When considering this
proposed rule, commenters are encouraged to address how best to
communicate information from the new industries in a way that continues
to serve the purposes of TRI without fostering misperceptions.
B. Outreach
Prior to this proposed rulemaking, EPA engaged in a significant and
comprehensive outreach effort. This outreach served to inform
interested parties, including industries under consideration, state
regulatory officials, environmental organizations, labor unions,
community groups, and the public of EPA's intention to propose adding
additional industry groups to the EPCRA section 313 list. The outreach
effort also allowed EPA to gather additional information that assisted
in the development of this proposed rulemaking. EPA has also received
substantial public comment regarding the Agency's proposed action, and
has considered these comments in its deliberations.
EPA recognized the need for comprehensive and thorough outreach
regarding this proposal. Consequently, EPA held two public meetings
prior to publication of this proposal. The first public meeting,
announcing EPA's intentions, was held on May 29, 1992. The second was
held on May 25, 1995. These meetings were announced in the Federal
Register (57 FR 19126, May 4, 1992 and 60 FR 21190, May 1, 1995). The
public meetings allowed interested parties, including representatives
of the industries included in this proposal, to voice opinions and
concerns regarding the facility expansion undertaking. EPA used these
meetings as an opportunity to inform interested parties about the
possibility of this proposed action and to make available information
regarding its analysis for comment. Issues papers, summaries,
statements submitted and additional public comments from these
meetings, are included in the public docket supporting this rulemaking.
In addition, over the course of the past 5 years, EPA has used the
regularly-held public meetings of the Forum on State and Tribal
Toxicities Action (FOSTTA), which represents state environmental
agencies, and the National Advisory Council on Environmental Policy and
Technology (NACEPT), which includes representatives from industry,
environmental organizations, states, and academia, to discuss the
expansion of the EPCRA section 313 industry group list. These groups
have provided EPA with substantive input prior to this proposal for
structuring its screening and analytical activities conducted in
support of this proposal. EPA has recently held discussions with other
state regulatory officials, in particular with the Interstate Mining
Compact Commission (IMCC). These discussions have allowed EPA to
understand more clearly state regulatory concerns regarding the
addition of certain industry groups. With the publication of this
proposal, EPA will be continuing the dialogue initiated in these
meetings.
EPA also recognized that public meetings were not the sole means to
engage in the substantive discussion of issues specific to the proposed
industries. Therefore, EPA initiated a series of formal and informal
meetings with industry representatives as well as with representatives
of environmental, community and labor organizations. Although meetings
with such groups have been held since 1992, EPA substantially increased
this element of its outreach effort since 1994, and continued to do so
until the publication of this proposal. The more formal of these
meetings, referred to as ``focus group meetings,'' involved
representatives of various trade associations and companies from the
various industry groups under consideration. These meetings primarily
involved discussions with EPA officials regarding the expansion of
EPCRA section 313 reporting requirements as well as issues specific to
the industries under consideration. A ``focus group meeting'' was also
held with environmental, labor and community organizations. EPA also
used these meetings as an opportunity to share data and additional
information collected as part of its expansion effort, and to solicit
comment regarding the analytic approach used in the screening process
(A description of the screening process is provided in Unit II.C. and
II.D of this preamble). Summaries of these meetings and lists of
participants are available in the public docket supporting this
rulemaking.
EPA officials have also held meetings with industry representatives
and others on a regular basis to discuss issues involved in this
proposed rulemaking.
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EPA has used these meetings as a means to keep interested parties
closely informed of progress in developing this proposed action, and to
gather information to assist the Agency in its activities. These
meetings are documented in the public docket supporting this
rulemaking.
EPA and other government officials have routinely discussed this
proposed action in public speaking engagements before a variety of
groups and organizations. Most notably, the President addressed
community groups in Baltimore, Maryland on August 8, 1995, regarding
the Administration's commitment to community right-to-know, including
his directive to the Administrator of EPA and Heads of Executive
Departments and Agencies to continue the expansion of the EPCRA section
313 industry group list. The President's statements concerning the
expansion of the TRI program were widely reported and increased public
awareness of EPA's efforts. Considerable media coverage, including
detailed trade press stories, has provided many more individuals,
businesses, and organizations with information regarding this proposed
action.
Unfunded mandates that may be imposed on other government entities
are of particular concern to the Agency, especially since issuance of
Executive Order 12875 (``Enhancing the Intergovernmental Partnership'')
and the Unfunded Mandates Reform Act of 1995 (compliance with this Act
is discussed in Unit XI.D. of this preamble). EPA has held discussions
with a wide range of state and local officials regarding this proposal,
particularly through FOSTTA as described above, and with
representatives of publicly-owned and operated facilities. EPA will
continue a constructive dialogue to ensure that unfunded mandates
issues are fully understood, analyzed, and addressed.
EPA recognizes that particular concerns have been raised regarding
the expansion of the EPCRA section 313 industry group list in so far as
the reporting requirements may affect small businesses. Many trade
associations and other industry organizations with which EPA has held
discussions include small businesses as members or participants. These
groups have represented the interests of some small businesses to EPA,
and have helped to inform businesses about EPA's intentions. In
addition, EPA has addressed forums such as the Small Business
Roundtable regarding this proposed action, and has briefed officials of
the Small Business Administration as well as EPA's Small Business
Omsbudsman and Regional Small Business Liaisons on this matter.
Activities specific to small businesses are documented in the public
docket supporting this rulemaking.
A variety of materials have been made available to interested
parties and the public regarding this proposed action. Widely
distributed Agency publications have provided updates regarding the
expansion of the TRI program. More specific materials, including
analytical products developed as part of this effort, have been
provided to industry groups and further disseminated at events such as
annual meetings. EPA is also aware of and appreciates the many industry
efforts to disseminate this information to members. Documentation of
these publications and materials, to the extent available, is included
in the public docket supporting this rulemaking.
EPA intends to continue its outreach efforts in regards to this
proposed action. The Agency has found outreach to be beneficial to all
parties and essential to sound public policy decisions. The Agency will
be providing additional forums for public comment by holding two public
meetings during the public comment period for this proposal.
C. Development of Industry Group Candidates
Prior to this proposed rulemaking, EPA conducted a screening
process designed to identify the best candidate industry groups in
order to focus on those industries potentially most relevant to further
the purposes of EPCRA section 313. The purpose of the screening process
was to focus the Agency's limited resources on those industries for
which reporting would be most beneficial to community right-to-know.
Provided below is a brief overview of the screening activities
conducted by EPA prior to this rulemaking. For a more detailed
discussion of the screening activities, refer to Development of SIC
Code Candidates: Screening Document, available in the public docket for
this rulemaking (Ref. 19).
EPA began the screening process by analyzing chemical waste
information routinely reported by industries and collected in several
existing EPA data systems. While the information reported in these data
systems have some inconsistencies with the type of information
collected on TRI, the data systems selected provided a reasonable
method of comparing industries by chemicals and estimated volumes for
industries regulated under each program (Ref. 5).
The initial screening activity ranked industries by the volume of
EPCRA section 313 chemicals found in each reporting system. Those 2-
digit SIC codes that made up 99 percent of the matched EPCRA section
313 chemical release estimates for non-manufacturing facilities were
selected from each reporting system. This list of 25 2-digit SIC codes
was referred to as the ``Tier I'' list, and included the following
Major Groups: Metal Mining; Coal Mining; Oil and Gas Exploration and
Production; Non-metal Mining; Heavy Construction; Railroad
Transportation; Motor Freight Transportation and Warehousing;
Transportation by Air; Pipelines, Except Natural Gas; Transportation
Services; Electric, Gas, and Sanitary Services; Wholesale Trade Durable
Goods; Wholesale Trade Nondurable Goods; Automotive Dealers and
Gasoline Service Stations; Business Services; Automotive Repair,
Service, and Parking; Miscellaneous Repair and Service; Health
Services; Educational Services; Engineering, Research, Management, and
Related Services; Services not elsewhere classified; Administration of
Environmental Quality and Housing Programs; Administration of Economic
Services; National Security and International Affairs; and
Nonclassifiable Establishments.
The Tier I list represents an extremely large number of diverse
individual industries. EPA began compiling information useful in
explaining what the industries in these Major Groups are and what
activities they conduct with emphasis on those activities that may
involve section 313 chemicals. This information was organized into
documents for each 2-digit SIC code and are referred to as ``industry
profiles'' (Refs. 6, 7, 8, 9, and 10).
The next step in the screening process involved a comparison
between industry groups currently reporting under section 313
(manufacturing industries) and those under consideration, in terms of
the types of activities they perform and the services they provide to
the manufacturing sector. One of the primary objectives of expanding
TRI coverage to additional industry groups is to fill in gaps
associated with chemical management activities currently reported under
EPCRA section 313. EPA determined that those industries that either
supply or otherwise manage chemicals and related materials both to and
from the point of manufacturing would further this objective. EPA
categorized all 25 major industry groups in terms of their relation to
manufacturing. This step in the screening process resulted in the
following list of candidates: metal mining; coal mining; oil and gas
exploration and production; non-metal
[[Page 33592]]
mining; motor freight transportation and warehousing; transportation by
air; pipelines, except natural gas; electric, gas, and sanitary
services; wholesale durable and non-durable goods; and business
services.
Once this candidate list was developed, EPA engaged in further
discussions with representatives of many of the industries on the list,
as well as environmental and labor organizations, state environmental
and regulatory representatives, and groups established to provide
feedback on TRI initiatives. These discussions provided an opportunity
to educate various industry groups about the TRI program, to obtain
feedback on the information developed to characterize their industry,
and to listen to concerns. A more detailed discussion of the outreach
activities conducted as part of this rulemaking can be found in Unit
II.B. of this preamble.
A greater level of specificity in the analysis was required to
better identify which industry groups and activities were of greater
importance in terms of their potential value to section 313 reporting.
To refine the analysis, EPA developed data reported in the reporting
data systems to the more specific 4-digit SIC code level. These data
were incorporated into a ranking model that allowed the management of
large volumes of information. For a more detailed discussion of the
ranking model, see Development of SIC Code Candidates: Screening
Document (Ref. 19).
The last stage in the screening process involved an overlay of
regulatory definitions and developments, existing program guidance, and
any exemptions pertinent to activities identified for the primary
candidates. This stage of the analysis allowed EPA to evaluate the
degree to which reporting would be expected to occur under EPCRA
section 313 for these candidate industry groups. EPA used information
developed for this analysis, along with input from specific industries
in making further reductions in the list of candidate industry groups
(Ref. 19).
As a result of this screening process, EPA eliminated SIC code 16,
heavy construction; SIC code 40, railroad transportation; SIC code 42,
motor freight, transportation, and warehousing; SIC code 45, air
transportation SIC code 46, pipelines, except natural gas; SIC code 47,
transportation services; SIC code 55, automotive dealers and gasoline
service stations; SIC code 75, automotive repair, service, and parking;
SIC code 80, health services; SIC code 82, educational services; and
SIC code 87 engineering, research, management, and related services;
SIC code 89, miscellaneous services; SIC code 95, administration of
environmental quality and housing programs; SIC code 96, administration
of economic services; SIC code 97, national security and international
affairs; and SIC code 99, nonclassifiable establishments.
D. Additional Considerations in Selecting Additional Industry Group
Candidates
In addition to the activities conducted as part of the screening
process described above, EPA also excluded certain industry groups from
consideration in this proposed action for a number of other reasons.
Provided below is a brief discussion of those additional industry
groups that were excluded after the application of the screening
process.
1. Impacts on intergovernmental entities. EPA considered potential
impacts on other governmental entities resulting from addition of
certain industry groups. As a result of issues raised by this
consideration, several industry groups were excluded from consideration
for addition under EPCRA section 313 at this time, including Municipal
Solid Waste Landfills (MSWLFs), Publicly-Owned-Treatment Works (POTWs),
and water supply systems. Each of these industry groups are part of the
Major Group SIC code 49, Electric Gas and Sanitary Services. Water
systems are classified within SIC code 4941, POTWs are classified
within SIC code 4952, and MSWLFs are classified within 4953. These
facilities are primarily operated by local municipalities and regional
governmental entities. Although each industry group may manage
significant quantities of EPCRA section 313 listed toxic chemicals, the
manner in which they manage these chemicals raises several cross-
governmental issues EPA is continuing to address. As a result, EPA is
not considering these industry groups at this time.
2. Economic considerations. EPA's economic analysis identified
several industry groups that may be adversely affected at a
substantially disproportionately high rate, if coverage under EPCRA
section 313 was extended to include them. Petroleum and petroleum
products wholesalers classified as SIC code 5172, farm supplies
classified as SIC code 5191, and paints, varnishes, and supplies
classified in SIC code 5198 may have a disproportionately large
economic impact if EPCRA section 313 reporting requirements were
extended to their industry (Ref. 20). Further, based on a preliminary
review, the projected value of reporting for these industry groups is
questionable. EPA continues to refine this information and explore
alternatives for these industry groups.
3. Non-listed primary chemical association. Two industries, non-
metal mining classified in SIC code 14 and wholesale durable goods
classified in SIC code 50, were excluded from further consideration for
this action based on the belief that the majority of activities
conducted by facilities operating in these industry groups are believed
to involve materials that are not EPCRA section 313 listed chemicals.
4. Standard facility unit. One industry group, oil and gas
extraction classified in SIC code 13, is believed to conduct
significant management activities that involve EPCRA section 313
chemicals. EPA is deferring action to add this industry group at this
time because of questions regarding how particular facilities should be
identified. This industry group is unique in that it may have related
activities located over significantly large geographic areas. While
together these activities may involve the management of significant
quantities of EPCRA section 313 chemicals in addition to requiring
significant employee involvement, taken at the smallest unit
(individual well), neither the employee nor the chemical thresholds are
likely to be met. EPA will be addressing these issues in the future.
EPA may reconsider at a later date some or all of the industry
groups which were excluded as a result of the considerations mentioned
above. For more detail regarding EPA's exclusion of these industry
groups, refer to Additional Considerations in Selecting Industries for
Addition to EPCRA Section 313 (Ref. 17).
For the industry groups outside of SIC codes 20 through 39 which
are not part of today's proposal, EPA requests comment on adding any of
these industry groups through a future rulemaking. Commenters should
take into account the current limitations of EPCRA section 313
reporting requirements, i.e, exemptions and thresholds, in addressing
whether these industries should be required to report under EPCRA
section 313.
III. EPCRA Section 313 Statutory Criteria
A. Statutory Construction
Recognizing that the American public has a right-to-know what is
happening in the environment near their homes, schools, and business,
Congress provided EPA with explicit statutory authority to expand the
categories of
[[Page 33593]]
facilities required to report under EPCRA section 313. Section
313(b)(1)(A) applies section 313 to facilities that are in SIC codes 20
through 39. Section 313(b)(1)(B) states:
The Administrator may add or delete Standard Industrial
Classification Codes for purposes of subparagraph (A), but only to
the extent necessary to provide that each Standard Industrial
Classification Code to which this section applies is relevant to the
purposes of this section.
EPA believes that this provision grants the Agency broad discretion to
add industry groups to the industries subject to the reporting
requirements under EPCRA section 313. The Conference Report restates
EPA's authority to add industry groups and provides additional
guidance:
[EPA's] authority is limited, however, to adding SIC codes for
facilities which, like facilities within the manufacturing sector
SIC codes 20 through 39, manufacture, process or use toxic chemicals
in a manner such that reporting by these facilities is relevant to
the purposes of this section (emphasis added) (Ref. 13).
Thus, the statute directs EPA, when adding industry groups, to
consider and be guided by the ``purposes'' of EPCRA section 313. While
EPCRA section 313 does not explicitly identify the purposes of the
section, the Conference Report makes clear that subsection (h) of
section 313
Describes the intended uses of the toxic chemical release forms
required to be submitted by this section and expresses the purposes
of this section. The information collected under this section is
intended to inform the general public and the communities
surrounding covered facilities about releases of toxic chemicals, to
assist in research, to aid in the development of regulations,
guidelines, and standards, and for other similar purposes.
(Conference Report at 299, Ref. 13)
Statements by Congress are consistent with this stated language. For
example, Congressman Edgar, a principal architect of EPCRA, stated
during debate on the Conference Report:
Congress recognizes a compelling need for more information about
the Nation's exposure to toxic chemicals. Until now, the success of
regulatory programs such as the Clean Air Act, the Resource
Conservation and Recovery Act, and the Clean Water Act has been
impossible to measure because no broad-based national information
has been compiled to indicate increases or decreases in the amounts
of toxic pollutants entering our environment. As a result, the
reporting provisions in this legislation should be construed
expansively to require the collection of the most information
permitted under the statutory language. Any discretion to limit the
amount of information reported should be exercised only for
compelling reasons. A second major principle of this program is to
make information regarding toxic chemical exposure available to the
public, particularly the local communities most affected. For too
long, the public has been left in the dark about its exposure to
toxic chemicals. Information that has been available under existing
environmental statutes such as the Clean Water Act or the Clean Air
Act, has been difficult to aggregate and interpret, which has made
it difficult, if not impossible, for the public to gain an overall
understanding of their toxic chemical exposure.
Consequently, the reporting requirements should be construed to
allow the public the broadest possible access to toxic chemical
information in formats that are straightforward and easy to
understand. (H. Rep. 99-975, 99th Cong., 2nd Sess., p. 5313 (Oct. 7,
1986)).
Section 313(b) specifies the facilities covered by the toxic
chemical release reporting requirement, but also provides the
Administrator with the discretion to include additional facilities
[either] by specifying additional SIC codes covered by this
section--section 313(b)(1)(B) [....] Congress designated facilities
in SIC codes 20-39 only as a starting point for this reporting
requirement. The principal consideration is whether the addition
would meet the objectives of this section to provide the public with
a complete profile of toxic chemical releases. The fact that
Congress applied the reporting requirement to those in the
manufacturing sector should not be considered a limiting criteria in
the Administrator's determination. (H. Rep. 99-975, 99th Cong., 2nd
Sess., p. 5315 (Oct. 7, 1986)).
Other supporters of EPCRA's community right-to-know provisions
echoed Congressman Edgar's view that broad dissemination of information
concerning the presence of toxic chemicals in the community is a
primary purpose of EPCRA section 313. See, for example, Senator
Stafford's statements during debate on the Conference Report:
But the bill goes beyond concern about accidental releases of
these toxic and hazardous chemicals. It also recognizes that the
public has a right to be informed about routine releases of these
chemicals to the air, and the water and the land (H. Rep. 99-975,
99th Cong., 2nd Sess., p. 5185 (Oct. 7, 1986)).
In implementing this section, the Administrator should keep in
mind that its primary purpose is to inform the public about routine
releases of toxic chemicals. The computer database [established by
EPA] must be managed in such a way as to maximize its accessibility
and utility to the public (H. Rep. 99 975, 99th Cong., 2nd Sess., p.
5186 (Oct. 7, 1986)).
EPA's reading of the Agency's broad statutory authority to add
industry groups to the industries required to report under EPCRA
section 313 is echoed in the GAO Report. This report, which represents
a critical analysis of the TRI program and provides recommendation on
the direction of the program in keeping with Congressional intent,
states that ``EPCRA authorizes EPA to revise the chemical list and to
require nonmanufacturers to report their emissions'' (Ref. 2). This
report further notes that many relevant industries currently are not
required to report under EPCRA section 313:
Many industries outside the manufacturing sector that use
substantial quantities of toxic chemicals annually are not currently
required to report their emissions . . . Because of these reporting
exemptions, many persons whom we contacted during our review
believed that the inventory's reporting requirements should be
revised. We found strong support among government officials, states,
reporting facilities, and environmental and public interest groups
for expanding the programs reporting requirements to cover
industries outside the manufacturing sector. Moreover, we found that
28 states and about half of all reporting facilities favored, for
example, requiring reporting by hazardous waste treatment, storage,
and disposal facilities (Ref. 2).
Because of this, GAO recommended that EPA expand the number of
industries that report under EPCRA section 313:
We believe that to maximize the inventory's usefulness to
policymakers and the public, the inventory data must be as
comprehensive as possible, with the data from additional emissions
sources and on additional toxic chemicals. The concerns EPA
expressed should be carefully considered. However, these concerns
should not override efforts to make the inventory more
comprehensive--especially since policymakers and the public need the
data to establish environmental priorities and to better measure
progress in reducing pollution (Ref. 2).
Based on the Agency's reading of the statute, pertinent legislative
history, and the GAO Report, EPA recognizes several purposes of the
EPCRA section 313 program, as envisioned by Congress, including: (1)
Providing a complete profile of toxic chemical releases and management;
(2) compiling a broad-based national data base for determining the
success of environmental regulations; and (3) ensuring that the public
has easy access to these data on releases of toxic chemicals to the
environment. EPA has considered these purposes when exercising its
broad discretion to add particular industries to the EPCRA section 313
reporting program.
B. Interpretation of Statutory Criteria
As discussed in Unit III.A. of this preamble, the Conference Report
on EPCRA section 313 provides guidance on EPA's authority to add
industry
[[Page 33594]]
groups to those industry groups that, ``like facilities within the
manufacturing sector SIC codes 20 through 39, manufacture, process or
use toxic chemicals in a manner such that reporting by these facilities
is relevant to the purposes this section'' (Conference Report, p.
5108). For purposes of this rulemaking, which is EPA's first use of
section 313(b)(1)(B), EPA has identified three primary factors that the
Agency considers as reasonable decision criteria for adding facilities
in industry groups under EPCRA section 313(b)(1)(B). The three primary
factors identified by EPA are the following: (1) Whether one or more
toxic chemicals are reasonably anticipated to be present at facilities
within the candidate industry group (``chemical'' factor), (2) whether
facilities within the candidate industry group manufacture, process, or
otherwise use these toxic chemicals (``activity'' factor), and (3)
whether facilities within the candidate industry group could reasonably
be anticipated to increase the information made available pursuant to
EPCRA section 313, or otherwise further the purposes of EPCRA section
313 (``information'' factor).
EPA believes that each of these three primary factors is important
in adding industry groups (referenced by SIC code) to EPCRA section
313(b)(1) because each will help ensure that adding the industry groups
will further the purposes of EPCRA section 313. Namely, each of these
primary factors ensures that EPA will be able to provide the public
with easy access to more complete information concerning toxic chemical
releases and other waste management data. This more complete picture
also will allow EPA, other Federal, state, and local governments,
regulated entities, and the public to measure the success of regulatory
and voluntary environmental initiatives. Therefore, EPA believes that
these decision criteria are relevant to the purposes of the statute and
are appropriate to use in making listing determinations pursuant to
EPCRA section 313(b)(1)(B).
A general discussion of each primary factor is included below, and
a more detailed discussion of how each primary factor was applied to
each industry group proposed for listing can be found in Unit V. of
this preamble. EPA is requesting comment on the use of these decision
factors for the EPCRA section 313 program.
1. Whether one or more listed toxic chemicals are reasonably
anticipated to be present at facilities within the candidate industry
group (``Chemical'' Factor). In addressing whether the chemical factor
is met, EPA will consider evidence indicating that facilities within an
industry group are reasonably anticipated to have involvement with one
or more EPCRA section 313 listed toxic chemicals as part of its routine
operations. Association with section 313 listed toxic chemicals
suggests that facilities within industry groups should be covered under
EPCRA section 313, given the purpose of EPCRA section 313 is to provide
information to the public about toxic chemicals in their communities.
2. Whether facilities within the candidate industry group
manufacture, process, or otherwise use EPCRA section 313 listed toxic
chemicals (``Activity'' Factor). In addressing the ``activity'' factor,
EPA will consider evidence indicating that facilities within the
candidate industry group manufacture, process, or otherwise use one or
more EPCRA section 313 listed toxic chemicals. This ``activity'' factor
relates directly to the manner in which EPCRA section 313 listed
chemicals are managed. To make this determination, EPA will use the
EPCRA section 313 statutory definitions of manufacturing and
processing. In addition, for purposes of determining whether facilities
within a candidate SIC code otherwise use a toxic chemical, EPA will
consult its regulatory definition and guidance for ``otherwise use.''
For this rulemaking, EPA examined whether its current guidance on
``otherwise use,'' which was developed for the manufacturing sector in
SIC codes 20 through 39, is appropriate for facilities in industry
groups outside SIC codes 20 through 39. Based on this review and other
considerations, the Agency is planning to modify its interpretation of
``otherwise use'' to include disposal, stabilization, and treatment for
destruction. See Unit IV. of this preamble for a more detailed
discussion of ``otherwise use.''
3. Whether facilities within the candidate industry group could
reasonably be anticipated to increase the information made available
pursuant to EPCRA section 313, or otherwise further the purposes of
EPCRA section 313 (``Information'' Factor). In addressing the
``information'' factor, EPA will consider any information that bears on
whether reporting by facilities within the candidate industry group
could reasonably be anticipated to increase the information made
available pursuant to EPCRA section 313, or otherwise further the
purposes of EPCRA section 313. The information considered for any
specific industry group will necessarily vary from industry group to
industry group based on the nature of the industry group and what
relevant information is available. Under this factor, EPA may consider
information relating to, but not limited to, one or more of the
following topics: (1) Whether the addition of the candidate industry
group will lead to reporting by facilities within that candidate
industry group (e.g., whether facilities within the candidate industry
group will conduct activities which exceed the reporting thresholds in
section 313(f)); (2) whether facilities within the candidate industry
group are likely to be subject to an existing statutory or regulatory
exemption from the requirement to file a Form R; (3) whether submitted
Form R reports from that industry group could be expected to contain
release and waste management data; or (4) whether a significant portion
of the facilities in the industry group would be expected to file a
Toxic Chemical Release Inventory Certification Statement (see 59 FR
61488, November 30, 1994).
EPA believes that the above three primary factors may be addressed
by evaluating data collected by EPA or other government agencies (e.g.,
National Institute of Occupational Safety and Health (NIOSH) and
Occupational Safety and Health Administration (OSHA)), as well as
information provided by facilities through case studies, surveys, or
site visits; facility records or operation plans; information on
materials in commerce; or common practices as found in the literature,
such as trade journals and industry reports; or other available
sources. Some of the pertinent EPA data systems include the Aerometric
Information Retrieval System (AIRS, collected under the Clean Air Act),
the Permit Compliance System (PCS, collected under the Clean Water
Act), and the Biennial Report System (BRS, collected under the Resource
Conservation and Recovery Act). While EPA cannot use these data to
estimate likely TRI releases and other waste management volumes, EPA
can and has used information from these and other sources, such as
those listed above, to assist in identifying appropriate candidates. In
the absence of any such data, EPA will rely on other relevant sources
of data.
For example, during EPA's evaluation of the electric services
industry group (SIC code 4911), 40 million pounds of releases or waste
volumes were identified in BRS, 31 million pounds in AFS, and 15
million pounds in PCS. EPA does not believe that this information can
be used to predict TRI data or that it is an adequate substitute for
TRI data; however, EPA did use this
[[Page 33595]]
information to identify the electric services industry group as a
candidate for inclusion in this proposed rule. See Appendix B:
Routinely Reported Information - Chemical Detail (Ref. 8), for similar
information on other candidate industry groups.
EPA recognizes that different industry groups may be regulated
under different statutory and regulatory regimes. An industry may have
very limited regulatory requirements that require their reporting of
chemical uses and management practices, for example, and, therefore,
this industry would not be represented in some data sources. This often
leads to different amounts and types of information being available to
the Agency from these sources. Thus, EPA recognizes that in some cases
the available data from these sources may not reflect an industry's
actual involvement with section 313 chemicals. For those industry
groups for which such information is limited, EPA believes that it is
appropriate to rely more heavily on sources of data other than
regulatory sources. EPA requests comment on other sources of
appropriate information.
IV. Clarification of Threshold Activities
A. Statutory Background
Only facilities that exceed certain chemical activity thresholds
(and that meet the SIC code and employee threshold criteria) are
required to report under EPCRA section 313. These thresholds are
detailed in section 313(f)(1) of EPCRA:
The threshold amounts for purposes of reporting toxic chemicals
under this section are as follows:
(A) With respect to a toxic chemical used at a facility, 10,000
pounds of the toxic chemical per year.
(B) With respect to a toxic chemical manufactured or processed
at a facility--
* * *
(iii) For the form required to be submitted on or before July 1,
1990, and for each form thereafter, 25,000 pounds of the toxic
chemical per year. EPCRA 313(f)(1), (emphases added).
In addition to the reporting thresholds specifically listed in EPCRA
section 313(f)(1), EPA has established an alternate threshold for
facilities with low reportable releases and wastes under section
313(f)(2).
EPCRA section 313 defines ``manufacture'' and ``process''; however,
the statute does not specifically define ``use'' or ``otherwise use.''
The only limitation Congress placed on what activities could be
considered ``use'' are those chemical activities that are exempt from
EPCRA section 313 reporting as provided in EPCRA section 327. These
exempted activities relate to the ``transportation, including the
storage incident to such transportation, of any substance or chemical
subject to the requirements including the transportation and
distribution of natural gas.''
Because the statutory language does not include a specific
definition of ``use,'' EPA has looked to other sources for guidance in
formulating the Agency's interpretation of the term. The dictionary
definitions of ``use'' are so encompassing that they can be argued to
cover nearly any activity impacting a toxic chemical. For example, the
Random House College Dictionary, Revised Edition (1982) includes a
broad range of definitions of the term, including ``to employ for some
purpose,'' ``to expend or consume in use,'' and ``to consume
entirely.'' Given the breadth in these definitions, EPA's
interpretation of what might be ``otherwise use'' activities could
capture a significant range of activities impacting a toxic chemical
subject to the relevant purposes of EPCRA section 313. Thus to
determine the appropriate scope of this definition, EPA has considered
Congress' stated purposes for enacting EPCRA section 313 as found in
the statutory language and the legislative history.
As discussed in Unit II.A. of this preamble, Congress wanted the
reporting requirements of EPCRA section 313 to be applied broadly, and
to provide the greatest amount of information to the public and
federal, state, and local governments. In furtherance of this goal,
Congress recognized that EPA may need to add chemicals and industry
groups to the chemicals and industry groups originally listed in EPCRA
section 313 to provide more complete chemical and facility profiles
important to the local public and for local decision making. Moreover,
Congress found information on chemical management activities relevant
to the needs of local communities in requiring that reporting include,
for example, information on waste streams and how they are handled.
See, e.g., 42 U.S.C. 11023(g). Given the primary goal of providing
information to the public on listed toxic chemicals present, released,
and managed in communities, EPA does not believe that it is reasonable
to conclude that Congress would intend any provision of EPCRA section
313 to be interpreted to significantly limit the information available
to the public. Because interpreting the definition of ``use'' narrowly
can have the unintended impact of limiting the amount and kind of
information readily available to local communities, EPA believes that
the term ``otherwise use'' should be interpreted broadly. Consistent
with this belief, EPA promulgated the broad definition of ``otherwise
use or use'' in 40 CFR 372.3.
B. Regulatory Background
In 1988, to address the lack of a statutory definition, EPA
promulgated a definition of ``otherwise use'' in the regulations
implementing EPCRA section 313:
Otherwise use or use means any use of a toxic chemical that is
not covered by the terms manufacture or process and includes use of
a toxic chemical contained in a mixture or trade name product.
Relabeling or redistributing a container of a toxic chemical where
no repackaging of the toxic chemical occurs does not constitute use
or processing of the toxic chemical (53 FR 4525, February 16, 1988).
However, in the preamble to the final rule, EPA distinguished its
interpretation of ``otherwise use'' from ``processing'' by stating that
``otherwise use'' involves a non-incorporative activity.
EPA is interpreting otherwise using a [listed] toxic chemical to
be activities that support, promote, or contribute to the facility's
activities, where the chemical does not intentionally become part of
a product distributed in commerce. (53 FR 4506.)
EPA also recognized that it was appropriate to place some
limitations on those quantities of toxic chemicals that should be
included in a facility's threshold calculations. These exemptions were
based on review of comments and questions received on the proposed rule
and in workshops held prior to the publication of the final rule. The
following uses of chemicals are currently exempt from section 313
threshold determinations and from the EPCRA section 313 reporting
requirements. (40 CFR 372.38; 53 FR 4528, February 16, 1988).
(1) Use as a structural component of the facility. This type of use
refers to materials containing listed section 313 chemicals that may be
present at a facility but that are not involved in the processes
conducted by the facility for purposes of their chemical properties. An
example of this type of case is use of copper in copper pipes. EPA
believes this type of activity is an ancillary use of copper which
would not add to the purposes served by providing information to the
public.
(2) Use of products for routine janitorial or facility grounds
maintenance. Examples include uses of janitorial cleaning supplies,
fertilizers, and pesticides similar in type or concentration to
consumer products.
[[Page 33596]]
EPA believes that these types of chemical uses are incidental to the
function of the facility. While grounds maintenance may be seen as a
contributing activity to the facility overall, it is not a necessary
action that promotes the function or purpose of the facility.
(3) Personal uses by employees or other persons at the facility of
foods, drugs, cosmetics, or other personal items containing toxic
chemicals, including supplies of such products within the facility such
as in a facility-operated cafeteria, store, or infirmary.
(4) Use of products containing toxic chemicals for the purpose of
maintaining motor vehicles operated by the facility. For similar
reasons provided for the janitorial and facility grounds maintenance
exemption, the use of materials containing listed section 313 chemicals
for the purpose of maintaining motor vehicles is believed by EPA to be
an incidental chemical use relative to the overall function of
facilities currently covered under section 313.
(5) Use of toxic chemicals present in process water as drawn from
the environment or from municipal sources or toxic chemicals present in
air used either as compressed air or as part of combustion. While air
and water may be necessary ingredients in particular manufacturing or
processing activities, EPA determined that the generally small
quantities of listed section 313 chemicals that each may contain would
not be reportable. EPA established this exemption both to reduce the
burden on the reporting industry and to have industry focus on those
quantities of toxic chemicals over which they exercise some control.
(6) Uses of articles. The inclusion of the article exemption was
for the expressed purpose of exempting articles that contain listed
toxic chemicals from threshold and reporting determinations. EPA
determined that it is appropriate to exempt chemicals that are
contained in articles as defined by a modification of the definition in
the OSHA Hazard Communication Standard (HCS). The HCS places a
condition on the use of things classified as articles such that when
they are used they do not result in any section 313 listed chemical
releases. EPA has further modified the OSHA HCS definition such that
any use or processing of the articles that results in releases makes
the activity ineligible for the exemption.
(7) Use of toxic chemicals in certain laboratory activities. This
exemption allows the exclusion of amounts of chemicals from threshold
calculations that are manufactured, processed or otherwise used in
laboratory activities conducted under the supervision of a technically
qualified individual. This exemption was provided in part to be
consistent with other sections of EPCRA, specifically sections 311 and
312, as well as the OSHA HCS. EPA limited this exemption to non-
specialty chemical production laboratories and non-pilot plant scale
operations. EPA expressed some concerns over the releases of chemicals
from exempted laboratory activities in the final rule and stated that
the Agency would review these types of facilities for potential future
coverage.
At this time, EPA is not proposing a change to any of the
exemptions listed above. EPA may, however, reconsider the application
of these exemptions in the future. (For additional information on these
exemptions contact the EPCRA Hotline at the telephone number or address
listed in the FOR FURTHER INFORMATION CONTACT unit of this document.)
The exemptions promulgated by EPA to date are intended to exclude
from threshold and reporting calculations those activities that are not
principal to the primary function of the facility. The exemptions were
provided to allow facilities to focus on those chemical management
activities that support, promote, or significantly contribute to the
primary purpose of the facility. EPA believes that these activities are
ones over which the facility has primary control.
C. Current ``Otherwise Use'' Interpretive Guidance
EPCRA section 313 reporting guidance has been developed to assist
covered facilities in complying with section 313. This reporting
guidance has been provided to reporting facilities as responses to
questions to EPA's EPCRA Hotline, as response to letters from subject
facilities, and distribution of a ``Question and Answer'' document. For
some reference to these other sources of information on ``otherwise
use'' see the document EPCRA Section 313 Otherwise Use Activities (Ref.
21).
Given that the original section 313 facilities list was limited to
those facilities which principally operate in the manufacturing sector,
the reporting guidance was tailored to address the principal activities
conducted by manufacturing facilities. In particular, facilities were
instructed not to consider amounts of chemicals treated or disposed in
calculating ``otherwise use'' reporting thresholds. Although current
guidance instructs facilities to include the amounts of listed
chemicals released during treatment or disposal in a facility's release
and waste management estimates (assuming that the facility exceeds a
manufacture, process, or otherwise use threshold for the chemical
elsewhere at the facility), current guidance instructs facilities not
to include the amounts treated or disposed toward the ``manufacture,''
``process,'' or ``otherwise use'' threshold.
Current guidance was not based on an evaluation of activities
actually conducted by manufacturing facilities, but instead was
conceived with the mind that the industrial classification system
places facilities primarily engaged in waste treatment and disposal
activities outside the manufacturing sector, and therefore, were not
subject to the original EPCRA section 313 requirements.
D. Proposed Changes to Interpretive Guidance
As the focus of EPCRA section 313 expands to include industry
groups whose primary activities are similar to or support manufacturing
either as inputs (e.g., energy) or outputs (e.g., waste treatment), EPA
reconsidered its interpretive guidance on otherwise use for facilities
within SIC code 20 through 39, and facilities within the industry
groups being proposed. EPA is concerned that, based on current
guidance, the public may not have access to information relating to
releases of toxic chemicals from facilities within SIC codes 20 through
39 that are receiving materials for the purposes of treatment for
destruction, stabilization, or disposal. As a result, EPA believes that
it is appropriate to develop guidance addressing this concern. Further,
EPA believes it is appropriate to develop guidance that is consistent
with the primary activities conducted by facilities within the
candidate industry groups. Therefore, EPA is modifying its
interpretation of activities considered ``otherwise used'' as it
applies to activity thresholds under section 313 to include treatment
for destruction, disposal, and waste stabilization (hereafter referred
to as ``stabilization'') when the EPCRA section 313 facility engaged in
these activities receives materials containing any chemical (not
limited to EPCRA section 313 listed toxic chemicals) from one or more
other facilities (regardless of whether the generating and receiving
facilities have common ownership) for the purposes of further waste
management activities.
EPA interprets waste stabilization consistent with the definition
at 40 CFR 265.1081, except that for purposes of EPCRA section 313 the
definition
[[Page 33597]]
should be interpreted to apply to any EPCRA section 313 listed toxic
chemical or waste containing any EPCRA section 313 listed toxic
chemical. A synonym for waste stabilization is waste solidification.
EPA interprets ``treatment for destruction'' to mean the destruction of
the toxic chemical such that the substance is no longer a toxic
chemical subject to reporting under EPCRA section 313. Also, for
purposes of the EPCRA section 313 ``otherwise use'' reporting
threshold, disposal would include underground injection, placement in
landfills/surface impoundments, land treatment, or other intentional
land disposal. See ``Toxic Chemical Release Inventory Reporting
Instructions'' (1995 version) at p. 35 for a list of activities to be
reported under ``Transfers Off-site for Purposes of Disposal.''
The following are four examples of this revised interpretation.
Example 1: For example, a facility receives a material containing
22,000 pounds of chemical ``A.'' Chemical ``A'' is an EPCRA section 313
listed toxic chemical. The facility treats for destruction chemical
``A.'' Included among the various activities covered by EPA's revised
interpretation of ``otherwise use'' is the ``treatment for
destruction'' of a toxic chemical received by the facility from off-
site. Because the facility received and treated for destruction
chemical ``A,'' the amount of chemical ``A'' treated for destruction
would be included in the calculation of the amount of chemical ``A''
``otherwise used'' at the facility. In this case, 22,000 pounds of
chemical ``A'' would be considered ``otherwise used.'' Thus, because
the facility ``otherwise used'' chemical ``A'' above the 10,000 pound
statutory threshold for ``otherwise use,'' the facility would be
required to report all releases of, and management activities
involving, chemical ``A.''
Example 2: Assume now that the same facility, in treating for
destruction chemical ``A,'' manufactures 11,000 pounds of chemical
``B.'' Chemical ``B'' is also an EPCRA section 313 listed toxic
chemical. This manufacture of chemical ``B'' is below the
``manufacturing'' reporting threshold. However, the facility disposes
of chemical ``B'' on-site. Included among the various activities
covered by EPA's revised interpretation of ``otherwise use'' is the
disposal of a toxic chemical that is produced from the management of a
waste that is received by the facility. In this example, because the
facility received from off-site a material containing a chemical that
is treated for destruction (i.e., chemical ``A'') and during that
treatment produced and subsequently disposed of chemical ``B,'' the
disposal of chemical ``B'' under EPA's revised interpretation would be
considered ``otherwise used.'' Because the facility disposed of, or
otherwise used, 11,000 pounds of chemical ``B,'' the 10,000 pound
statutory threshold for ``otherwise use'' is met. Thus, the facility
would need to report all releases of, and management activity
involving, chemical ``B.''
Example 3: As another example, a facility produces on-site a
material containing 22,000 pounds of chemical ``C.'' Chemical ``C'' is
not an EPCRA section 313 listed toxic chemical. Also, chemical ``C''
was not manufactured as a result of managing a waste received from off-
site. The facility treats for destruction chemical ``C'' and during
treatment manufactures 11,000 pounds of chemical ``D.'' Chemical ``D''
is an EPCRA section 313 listed toxic chemical. The facility
subsequently disposes of chemical ``D.'' In this example, although the
facility disposes of chemical ``D,'' the 11,000 pounds of chemical
``D'' is not considered ``otherwise used'' under EPA's revised
interpretation because the material from which chemical ``D'' is
produced (i.e., the material containing the 22,000 pounds of chemical
``C'') was not received by the facility from off-site. Thus, in
disposing of chemical ``D,'' the facility does not exceed the 10,000
pound statutory threshold for ``otherwise use.''
Example 4: However, based on Example 3, if chemical ``C'' were
received from off-site or was created in waste management activities
conducted on materials received from off-site, the disposal of chemical
``D'' would be considered an ``otherwise use'' activity involving
chemical ``D.'' Therefore, the disposal of the 11,000 pounds of
chemical ``D'' would exceed the 10,000 pound statutory threshold for
``otherwise use,'' and the facility would need to report all releases
and management activities involving, chemical ``D.''
EPA requests comment on its revised interpretation as explained by
these examples.
EPA believes that this modified interpretation of ``otherwise use''
better serves the purposes of providing communities with information
that assists them in making decisions. EPA believes that these waste
management activities represent activities that generate, use, and are
the source of significant releases of listed toxic chemicals. Thus, EPA
believes that current guidance, which allows amounts of listed
chemicals that are disposed, stabilized, or treated for destruction to
be reported only when the chemical exceeds thresholds elsewhere at the
facility, potentially excludes from reporting a large amount of listed
chemicals managed at certain facilities.
In addition, this modification of the interpretation of ``otherwise
use'' is consistent with EPA's approach for interpreting
``manufacture.'' For example, EPA's regulatory definition of
``manufacture'' and current guidance includes as ``manufacturing'' the
amount of a listed toxic chemical that is coincidentally manufactured
during waste treatment or disposal by the facility (40 CFR 372.3).
Therefore, the amounts of these chemicals must be counted toward the
manufacturing threshold. Further, assuming that the manufacturing
threshold is met under EPCRA section 313, the facility must report the
amount of that manufactured chemical that is released or otherwise
managed as waste. EPA believes that modifying the interpretation of
``otherwise use'' to include activities such as treatment for
destruction, stabilization, and disposal makes that definition more
consistent with EPA's guidance on calculating manufacturing thresholds.
Finally, EPA believes that current guidance that omits amounts
disposed, stabilized, or treated for destruction is inconsistent with
the spirit of EPCRA when applied to the additional facilities proposed
for listing in this action. Excluding such activities from the
interpretation of ``otherwise use'' would prevent the dissemination of
information deemed useful in serving the public's interest and the
purposes of section 313.
Because EPA believes that most facilities in SIC codes 20 through
39 dispose or treat only waste that was already manufactured,
processed, or otherwise used at their facility, the Agency does not
believe that this change in guidance will affect the EPCRA section 313
reporting status of a significant number of facilities within the
manufacturing sector. There is one category of facilities in the
manufacturing sector that could be affected by this revised guidance.
Specifically, it could affect those facilities in the manufacturing
sector that receive wastes from other facilities and manage those
wastes through treatment or disposal. Under the revised guidance, the
quantity of EPCRA section 313 listed toxic chemicals that undergo these
activities must be included in the ``otherwise use'' threshold, whereas
currently such facilities are instructed to exclude from the
``otherwise use'' threshold determination the quantity of
[[Page 33598]]
the toxic chemical treated for destruction, stabilized, or disposed.
EPA requests comment on its revised interpretation of ``otherwise
use.'' EPA also requests comment on the number of facilities within the
manufacturing sector that would be affected by this revised
interpretation.
An alternative to modifying the scope of ``otherwise use'' through
reporting guidance is amending the regulatory definition of ``otherwise
use'' or ``use'' consistent with this modified approach. As noted
above, the current regulatory definition of ``otherwise use'' is very
broad and covers EPA's revised interpretation. While EPA does not
believe a change in the regulatory definition is necessary to clarify
its interpretation, EPA is requesting comment on whether it should
amend the regulatory text to make clear this revision. The regulatory
definition would read as follows:
Otherwise use or use means any use of a toxic chemical that is
not covered by the terms ``manufacture'' or ``process'', and
includes treatment for destruction, stabilization (without
subsequent distribution in commerce), disposal, and other use of a
toxic chemical, including a toxic chemical contained in a mixture or
trade name product. Except that
(1) Facilities engaged in treatment for destruction,
stabilization, or disposal are not using a toxic chemical in these
activities unless the facility receives materials from other
facilities for purposes of further waste management activities.
(2) Relabeling or redistributing a container of a toxic chemical
where no repackaging of the toxic chemical occurs does not
constitute use of the toxic chemical.
EPA requests comment on whether the regulatory definition of
``otherwise use'' should be amended.
An alternative interpretation is including in the definition of
``otherwise use'' all disposal, treatment for destruction, and
stabilization, regardless of whether the facility receives materials
from off-site for the purposes of treatment for destruction,
stabilization, or disposal. This alternative approach may affect those
facilities that manufacture or process a listed chemical below the
25,000 pound threshold, but that treat or dispose of more than 10,000
pounds of that chemical; the disposal is the activity that would cause
the facility to exceed the otherwise use threshold. The Agency requests
comment on the number of facilities in this category that may be
affected by this alternate approach for modifying EPA's guidance, and
or whether this alternative interpretation and whether it would better
serve the purposes of EPCRA section 313.
E. Relationship Among Manufacture, Process, and Otherwise Use
EPA believes that the revised interpretation and change in
reporting guidance is consistent with the general focus of section 313
on the collection and dissemination of information relating to the
activities involving toxic chemicals in a community. Further, EPA
believes that toxic chemicals that are disposed, stabilized, or treated
for destruction are more appropriately considered otherwise used, as
opposed to manufactured or processed.
Under EPCRA section 313, ``manufacture'' means to produce, prepare,
import, or compound a chemical listed under section 313, including
coincidental production of a toxic chemical. Thus, disposal,
stabilization, or treatment for destruction of a toxic chemical,
whether or not it was produced at the facility, is not appropriately
considered manufactured.
EPCRA section 313 defines ``process'' as ``the preparation of a
toxic chemical, after its manufacture, for distribution in commerce-
(I) in the same form or physical state as, or in a different form or
physical state from, that in which it was received by the person so
preparing such chemical, or (II) as part of any article containing the
toxic chemical.'' Although the act of treatment of a chemical contained
in a waste may closely relate to many of the activities described by
the processing definition, the statute provides a limitation that the
chemical be incorporated into a product that is further distributed in
commerce. In a case where a facility receives a chemical that is
contained in a ``waste,'' and the facility recovers the chemical from
the ``waste'' and distributes the chemical in commerce, EPA believes
the facility is processing the chemical. In a case where a facility
receives a waste containing a toxic chemical and disposes or treats for
destruction the toxic chemical on-site, EPA does not believe the
facility is processing the toxic chemical because the toxic chemical is
not distributed in commerce. EPA requests comment on the relationship
of ``manufacture,'' ``process,'' and EPA's revised interpretation of
``otherwise use.''
EPA requests comment on all aspects of the Agency's broadening of
the concept of ``otherwise use.''
V. EPA's Technical Review
A. Introduction
Data on the candidate industry groups were reviewed for evidence
indicating whether EPCRA section 313 listed toxic chemicals are present
at facilities within that industry group, whether facilities within
that industry group manufacture, process, or otherwise use listed toxic
chemicals, and whether listing facilities within that industry group
could reasonably be anticipated to increase the available information
on TRI.
For each industry group proposed for addition to EPCRA section 313
in this rulemaking, EPA conducted an extensive assessment. Only after
this careful review was a final determination made as to whether to
propose to list the industry group pursuant to EPCRA section
313(b)(1)(B). The information summarized below for each industry group
describes the key data elements upon which EPA relied to determine that
the addition of the facility sector is relevant to the purposes of
EPCRA section 313 pursuant to section 313(b)(1)(B) criteria. A more
extensive review of the existing data base for each industry group
proposed for listing, which reflects the entire weight-of-the-evidence
considered by EPA, is contained in the following support documents and
in the record supporting this proposed rulemaking: ``SIC Code Profile
10: Metal Mining'' (Ref. 6); ``SIC Code Profile 12: Coal Mining'' (Ref.
7); ``SIC Code Profile 49: Electric, Gas, and Sanitary Services'' (Ref.
8); ``SIC Code Profile 51: Wholesale Trade - Nondurable Goods'' (Ref.
9); ``SIC Code Profile 73: Business Services'' (Ref. 10); and
``Economic Analysis of the Proposed Rule to Add Certain Industries to
EPCRA Section 313'' (Ref. 20). These documents contain a complete list
of the references that were used in support of these proposed
additions. Each industry group is identified by facility sector name
and SIC code.
EPA requests comment on the industry groups proposed for addition.
In addition, EPA requests comment on any issues that may be specific to
any of the individual industry groups.
B. Chemicals and Allied Products - Wholesale
EPA is proposing to require facilities operating in SIC code 5169,
Wholesale Nondurable Goods--Chemicals and Allied Products, Not
Elsewhere Classified (hereafter ``Chemicals and Allied Products''), be
subject to EPCRA section 313. Facilities within this industry group
receive EPCRA section 313 chemicals in bulk, take possession of those
chemicals and reformulate, introduce chemical additives, or repackage
materials containing section 313 chemicals. These activities fall
within the statutory definition of ``process,'' and are currently being
reported by facilities operating in the manufacturing sector.
[[Page 33599]]
1. Description of industry. Facilities operating in SIC code 5169,
Wholesale Nondurable Goods--Chemicals and Allied Products, not
elsewhere classified, consists of facilities engaged primarily in the
consolidation of a variety of bulk chemicals and packaged products
prior to their distribution to a variety of destinations including
retailers, other wholesale facilities, and in some cases to
manufacturing facilities for industrial use or for product formulation.
Goods managed by facilities in the Chemicals and Allied Products
industry group may include any of a number of EPCRA section 313 listed
chemicals.
2. Summary of evaluation. Based on EPA's evaluation of this
industry, the Agency believes that reformulation and repackaging
activities conducted by facilities in the Chemicals and Allied Products
industry group routinely involve the manufacture, processing, or
otherwise use of EPCRA section 313 chemicals and that the facilities
within this industry group are likely to report information relevant to
the purposes of EPCRA section 313. The present determination is
consistent with current reporting guidance, and the application of
existing thresholds and exemptions under EPCRA section 313. The Agency
anticipates reporting of releases and other waste management
information from facilities operating in SIC code 5169.
3. Chemicals associated with the Chemicals and Allied Products
industry group. Facilities classified in the Chemicals and Allied
Products industry group, are involved in the wholesale distribution and
management of a variety of chemicals from such industrial chemical
categories as alkalines and chlorine, industrial gases, specialty
cleaning and sanitation preparations, noncorrosive products and
materials, and industrial salts and polishes. Included within these
industrial chemical categories are such specific EPCRA section 313
chemicals as chlorine, sodium cyanide, formaldehyde, and methyl ethyl
ketone to name a few (Refs. 1 and 3). EPA's analysis has identified
several EPCRA section 313 listed toxic chemicals that are commonly
managed by facilities operating in the Chemicals and Allied Products
industry group (Ref. 20). Based on this finding, EPA believes that a
strong indication exists that those facilities classified in the
Chemicals and Allied Products industry group are involved with EPCRA
section 313 listed toxic chemicals on a routine basis.
4. Manufacture, process, or otherwise use activities involving
EPCRA section 313 chemicals. Some of the facilities within the
Chemicals and Allied Products industry group are involved in the
preparation of EPCRA section 313 listed toxic chemicals, or mixtures
containing EPCRA section 313 listed toxic chemicals, after their
manufacture, for distribution in commerce. The type of preparation
activities conducted by facilities classified in the Chemicals and
Allied Products industry group include reformulation and or repackaging
prior to being distributed.
For example, a facility may purchase and distribute organic
chemicals, which are mostly liquids and many of which may be EPCRA
section 313 listed toxic chemicals. The chemicals are transferred
into various size containers for resale. In addition to any material
losses during the transfer, some toxic chemical wastes may be
generated as pumps and hoses are flushed. As another example, a
facility may routinely blend chemicals (many of which may be EPCRA
section 313 listed toxic chemicals) to formulate, for example,
lacquer thinner for autobody shops. Some facilities may routinely
handle 27 or more EPCRA section 313 listed toxic chemicals.
EPA believes that these types of preparation activities of EPCRA
section 313 listed toxic chemicals clearly fit within the statutory
definition of process and would constitute a reportable activity under
EPCRA section 313. EPA believes that those facilities whose management
of EPCRA section 313 chemicals is limited to the receipt and
distribution of products containing EPCRA section 313 listed toxic
chemicals without the products being reformulated or repackaged would
not be required to submit Form R reports for these chemicals because
these activities do not meet the definition of manufacture, process, or
otherwise use. Also, EPA does not believe that the limited act of
storage of a chemical constitutes a reportable activity under EPCRA
section 313.
5. Types of information anticipated. Based on EPA's analysis,
releases and other waste management information resulting from the
reformulation and repackaging of EPCRA section 313 chemicals and
products containing section 313 chemicals are anticipated. Reports are
expected for formaldehyde, methyl ethyl ketone, and methanol. As
discussed below, facilities in this industry group engage in many of
the same activities as facilities in SIC codes 20 through 39.
Therefore, it is reasonable to believe that these similar activities
would result in similar types of release and waste management
information. For example, while releases can and do occur from
accidents, inadequate storage procedures, or damages during transport,
EPA is not proposing the inclusion of this industry based solely on
these activities (Ref. 3).
Based on data required by the Massachusetts Toxic Use Reduction
Act, which requests similar information to that required under EPCRA
section 313, evidence suggests that facilities operating within the
Chemicals and Allied Products industry group will report on a number of
EPCRA section 313 chemicals (Ref. 3). Based on these data, it appears
that these facilities will report primarily on releases to air of
volatile compounds likely originating from reformulation and
repackaging activities. Based on the Massachusetts data, 8 facilities
reported a primary SIC code of 5169 and submitted a total of 50 reports
that were also EPCRA section 313 chemicals. These 8 facilities reported
an average of 6.25 reports per facility as compared to the average
number of reports for currently listed manufacturing facilities of 3.7.
The total releases reported were approximately 75,450 pounds for 17
listed chemicals. The median facility release to air was approximately
3,180 pounds of listed toxic chemicals (Ref. 3).
EPA estimates that reporting under EPCRA section 313 from this
industry may result in 8,354 Form R reports and 2,785 Toxic Chemical
Release Certification Statements annually submitted by 782 facilities.
This number of facilities estimated to report represents 9 percent of
all industries facilities within this industry group.
6. Reporting considerations. Some facilities, which are primarily
classified as manufacturers (SIC codes 20 through 39) but that also
warehouse and distribute their products, are currently reporting
release and waste management information associated with these
activities that are similar to those conducted by facilities whose
primary classification is in SIC code 5169. EPA believes that
facilities operating in the Chemicals and Allied Products industry
group (SIC code 5169) that are engaged in the manufacture, process, or
otherwise use of EPCRA section 313 listed toxic chemicals above
reporting thresholds should also be required to inform the public about
releases and other waste management activities of EPCRA section 313
listed toxic chemicals.
EPA estimates the potential costs for reporting for the first year
by this industry group to be $51.5 million and $33.5 million in
subsequent years.
7. Conclusion. For the reasons identified above, EPA believes that
facilities in the Chemicals and Allied Products industry group in SIC
code 5169 satisfy the requirements of EPCRA
[[Page 33600]]
section 313(b)(1)(B) because EPA believes that reporting for this
industry group is relevant for the purposes of EPCRA section 313.
Accordingly, EPA proposes to add this industry group to the list of
industry groups required to report pursuant to EPCRA section 313 and
the PPA section 6607.
C. Petroleum Bulk Stations and Terminals - Wholesale
EPA is proposing to require petroleum bulk stations and terminals
in SIC code 5171 to report under EPCRA section 313. This industry group
includes facilities that receive petroleum products and petroleum
additives that contain EPCRA section 313 chemicals, take possession of
those chemicals and reformulate the products and/or repackage those
petroleum products prior to their distribution in commerce.
1. Description of industry. The petroleum industry maintains many
bulk stations and terminals that manage a variety of refined petroleum
products. The types of petroleum products managed by these facilities
include crude oil, motor gasoline, diesel, heating fuel, aviation jet
fuel, asphalt, and liquid petroleum hydrocarbons. The primary functions
of these facilities include storage, mixing, blending, distribution,
and sale of refined petroleum products (Ref. 9).
2. Summary of evaluation. Based on EPA's evaluation of this
industry, the Agency believes that the mixing, blending, repackaging,
and preparation activities conducted by facilities in the petroleum
bulk stations and terminals industry routinely involve the manufacture,
process, or otherwise use of EPCRA section 313 listed toxic chemicals
and that facilities within this industry group are likely to report
information relevant to the purposes of EPCRA section 313. The present
determination is consistent with current reporting guidance, and the
application of existing thresholds and exemptions under EPCRA section
313. EPA anticipates reporting of releases and other waste management
information from facilities in this industry group.
3. Chemicals associated with the industry. Bulk petroleum terminals
principally manage refined petroleum products prior to their
distribution in commerce. The types of petroleum products managed by
bulk terminals are likely to include one or more EPCRA section 313
chemicals. Based on EPA's analysis, EPCRA section 313 listed toxic
chemicals in gasoline managed by bulk terminals that are likely to be
present include benzene, cyclohexane, ethyl benzene, toluene, 1,2,4-
trimethylbenzene, and xylene. Section 313 chemicals present in crude
oil, No. 2 fuel oil, diesel and No. 6 fuel oil include benzene,
phenanthrene, and benz(a)anthracene (Refs. 9 and 20).
4. Manufacture, process, or otherwise use activities involving
EPCRA section 313 chemicals. Bulk petroleum terminals serve as an
intermediate point in the commerce cycle of the petroleum industry.
Based on EPA's analysis, facilities operating in SIC 5171 take
possession of refined petroleum products and perform mixing, blending,
and reformulation activities prior to their distribution in commerce.
EPA believes that the mixing, blending, and reformulation activities,
of petroleum products containing EPCRA section 313 listed toxic
chemicals, prior to their distribution in commerce clearly fits within
the EPCRA section 313 statutory definition of processing.
Facilities in this industry group may also introduce petroleum
additives in order to reformulate the product prior to distribution.
This activity involves the intentional incorporation of an EPCRA
section 313 listed toxic chemical into a product prior to distribution.
Thus, EPA believes that this activity constitutes processing of an
EPCRA section 313 listed toxic chemical as defined by the statutory
definition. In addition, EPCRA section 313 chemicals may be otherwise
used during normal facility maintenance activities (excluding exempt
routine janitorial or facilities grounds maintenance activities) (Ref.
9).
5. Type of information anticipated. Storage, mixing, blending, and
product transfer are among the activities during which significant
releases of EPCRA section 313 chemicals are likely to occur at bulk
terminal facilities. These releases are likely to be in the form of
fugitive air emissions, tank sludges, or spills into surface water,
groundwater, or land of section 313 chemicals contained in petroleum
products. EPA anticipates information on these and other waste
management practices for chemicals such as, cyclohexane, ethyl benzene,
toluene, 1,2,4-trimethylbenzene, xylene, phenanthrene, and
benz(a)anthracene (Ref. 20). While storage tanks at bulk terminals are
generally equipped with internal floating roofs and other features
designed to reduce loss of volatile components, losses of some section
313 chemicals resulting from tank breathing still occur. Based on EPA's
analysis, a small bulk terminal manages on average an annual throughput
of 36.5 million gallons, and is estimated to process petroleum products
in sufficient quantities to exceed the EPCRA section 313(f) reporting
thresholds for all EPCRA section 313 listed toxic chemicals that are
components of gasoline, No. 2 fuel oil/diesel, No. 6 fuel oil, and
crude oil. In addition, EPA estimates that some bulk terminals will
also exceed the EPCRA section 313(f) reporting thresholds for EPCRA
section 313 listed toxic chemicals contained in petroleum additives
(Ref. 20).
EPA estimates that reporting under EPCRA section 313 from this
industry may result in 12,394 Form R reports annually submitted by
3,842 facilities. This number of facilities estimated to report
represents 34 percent of all facilities identified within this industry
group.
6. Reporting considerations. Based on EPA's analysis, many of the
activities conducted by petroleum bulk stations and terminals meet the
definition of manufacture, process, or otherwise use. EPA believes that
current interpretations of manufacture, process, or otherwise use will
apply directly to facilities operating in this industry segment with
minimal inconsistencies.
EPA estimates the potential costs for reporting for the first year
by this industry group to be $69.3 million and $40.7 million in
subsequent years.
7. Conclusions. For the reasons identified above, EPA believes that
facilities in the SIC code 5171 petroleum bulk stations and terminals
satisfy the requirements of EPCRA section 313(b)(1)(B) because EPA
believes that reporting for this industry group is relevant for the
purposes of EPCRA section 313. Accordingly, EPA proposes to add this
industry group to the list of industry groups required to report
pursuant to EPCRA section 313 and the PPA section 6607.
D. Electric Utilities
EPA is proposing to require coal and oil-fired electric utility
plants in SIC code 49 to report under EPCRA section 313. These
facilities are classified in SIC code 4911 Electric Services, SIC code
4931 Electric and Other Services Combined, and SIC code 4939
Combination Utilities, Not Elsewhere Classified. EPA is requesting
comment on whether to add SIC code 4960 Steam and Air Conditioning
Supply. Although information is limited on this industry group, EPA
expects the activities conducted by this industry group to be similar
to those conducted in SIC codes 4911, 4931, and 4939.
Due to the fact that nuclear, hydroelectric, gas and other non
coal/oil-fired electric generating stations do not use fuel containing
EPCRA section 313 listed toxic chemicals, EPA is proposing to add only
those facilities within this industry group which combust fuels
containing EPCRA
[[Page 33601]]
section 313 listed toxic chemicals. While EPA recognizes that non coal/
oil-fired electric generating stations may otherwise use EPCRA section
313 chemicals in maintenance, cleaning, and purifying operations, and
that information on releases and other waste management data from these
activities may have some value, these support activities are not the
primary function of the facility. EPA also recognizes that generating
facilities may switch fuels as part of normal operations, including
switching between natural gas and other fossil fuels. Natural gas does
not contain EPCRA section 313 listed toxic chemicals above de minimis
concentrations, and EPA would not expect reporting to result from the
combustion of natural gas. However, any facility which combusts coal or
oil in whatever percentage of its fuel use, and whether for primary or
back-up generation, would become a covered facility for purposes of
EPCRA section 313, and be required to make a compliance determination.
Thus, EPA has chosen, as a matter of prioritizing, to propose the
addition of only coal and oil-fired plants at this time.
1. Description of industry. The electric services industry includes
facilities which generate electricity with different fuels: fossil
fuels (i.e., coal, oil and natural gas); gas turbines; internal
combustion turbines; nuclear; hydroelectric; and other sources
including geothermal, wind, and solar. The combination electric
services industry includes electric generating facilities that receive
50 to 95 percent of their revenues from electricity sales. Both
industries generate electricity primarily through the combustion of
fossil fuels (Ref. 8).
2. Summary of evaluation. Based on EPA's evaluation of this
industry, the Agency believes that electric generation routinely
involves the manufacture, process, or otherwise use of EPCRA section
313 listed toxic chemicals and that the facilities within SIC code 49
which generate electricity by combusting coal and oil are likely to
report information relevant to the purposes of EPCRA section 313. The
present determination is consistent with current reporting guidance,
and the application of existing thresholds and exemptions under EPCRA
section 313. The Agency anticipates reporting of releases and other
waste management information from facilities within this industry
group.
3. Chemicals associated with electric utilities. A variety of
chemicals are associated with electricity generation. Coal and oil used
to generate electricity may include EPCRA section 313 listed toxic
chemicals as constituents. Among the EPCRA section 313 listed toxic
chemicals which may be found in coal and oil are polycyclic aromatic
compounds, chlorine, benzene, toluene, ethylbenzene, manganese, xylene,
nickel, biphenyl, and naphthalene. Also, the following EPCRA section
313 metals and their compounds may be found in coal and oil: beryllium,
cadmium, selenium, antimony, arsenic, copper, lead, barium, chromium,
vanadium, zinc, and mercury and their compounds. In addition, other
EPCRA section 313 listed toxic chemicals may be present in maintenance,
cleaning, and purification operations. These may include copper
compounds, hydrazine, zinc compounds, hydrochloric and sulfuric acid
(aerosols), brominated compounds, formic acid, ammonia, thiourea,
methylene chloride, and ethylene glycol (Ref. 20).
4. Manufacture, process or otherwise use activities involving EPCRA
section 313 chemicals. While differing in some important respects, all
conventional steam electric generating stations rely on the same basic
process. Fuel is ignited and burned within a boiler chamber composed of
thousands of feet of water-filled tubes. The heat of combustion heats
the water in the boiler tubes, creating high temperature and high
pressure steam. The steam passes through turbines causing the turbine
blades to rotate. A shaft connected to the turbine blades drives
electric generators, yielding electric power. In this fashion, the
chemical energy of the coal or oil is converted to heat energy through
combustion, then to mechanical energy in the turbines, and finally to
electrical energy in the generators. Transmission lines, substations,
and switching stations channel generated electricity to various end
users. A range of maintenance, cleaning, and purifying operations are
also conducted (Ref. 8).
Electric services and combination electric utilities manufacture or
otherwise use a variety of EPCRA section 313 listed toxic chemicals, as
part of the combustion process and as part of maintenance, cleaning,
and purification operations. The combustion of coal creates certain
EPCRA section 313 listed toxic chemicals, including formaldehyde,
hydrogen chloride, hydrochloric acid (aerosol), primary sulfates
(including sulfuric acid aerosol), hydrogen fluoride, hydrofluoric
acid, and the following metals and their compounds, arsenic, beryllium,
cadmium, chromium, copper, lead, mercury, manganese, and nickel.
Similarly, the combustion of fuel oil manufactures sulfuric acid
aerosols, formaldehyde, and the following metals and their compounds,
arsenic, beryllium, cadmium, chromium, copper, lead, mercury,
manganese, nickel, and zinc. Since the inception of the program, EPA
has interpreted ``manufacture'' to include coincidental production of a
listed toxic chemical. Coincidental manufacture is the generation of a
listed toxic chemical as a byproduct or impurity (53 FR 4504, February
16, 1988). In the combustion of coal and oil, metal compounds may be
produced from either the parent metal or a metal compound contained in
the coal or oil. This may or may not involve a change of valence state.
A change in valence state results in the manufacture of a metal
compound. Metal compounds which are produced in the combustion process
are considered ``manufactured'' for purposes of EPCRA section 313. The
de minimis concentration exemption does not apply to coincidental
manufacture (see 53 FR 4504, Februry 16, 1988; see also Refs. 8 and 2).
Thus, all quantities of the metal compound manufactured in the
combustion process must be compared to the ``manufacture'' threshold.
Constituents of coal and oil fuels are otherwise used in the
combustion process, including the EPCRA section 313 chemicals listed in
the above section, since they are combusted as part of the fuel. Metal
compounds may be manufactured by the oxidation of metals and metal
compounds contained in the fuel. In addition, a variety of chemicals
also listed in the above section are otherwise used in maintenance,
cleaning, and purifying operations. For example, several EPCRA section
313 listed toxic chemicals are otherwise used in corrosion control such
as copper compounds, hydrazine, and zinc compounds, with data from
cooling tower waste blowdown streams of coal-fired boilers indicating
that copper and zinc compounds may be used in large quantities (Refs. 8
and 20). In addition, brominated compounds, ammonia, hydrochloric acid
or chlorine may be used to treat intake water. Further, the water-side
or steam-side of the boiler (including the boiler tubes, superheater,
and condenser) requires occasional cleaning. Formic acid, and thiourea
may all be used, along with large volumes of abrasives. Ethylene glycol
is also otherwise used in generating station chillers and in some
instances is applied to coal to prevent coal piles from freezing (Refs.
8 and 20).
5. Types of information anticipated. EPA recognizes that fuel
composition may vary, and that the quantity and chemical composition of
the wastes produced from cleaning and maintenance operations is
dependent on
[[Page 33602]]
plant-specific factors such as plant size, type of equipment used and
age of equipment. Based on EPA's evaluation of this industry, the
Agency believes that most section 313 chemicals present in coal and oil
fuels that are combusted in these facilities are present in
concentrations below de minimis levels. EPA anticipates limited
reporting resulting from the use of EPCRA section 313 chemicals in
combustion of coal. EPCRA section 313 listed toxic chemicals that are
components of No. 2 fuel oil above the de minimis concentration limit
that would be reported as used in combustion include biphenyl,
napthalene, and members of the polycyclic aromatic compounds category.
EPCRA section 313 listed toxic chemicals in No. 6 fuel oil above the de
minimis concentration limit that would be reported as used in
combustion include members of the polycyclic aromatic compounds
category. EPA also anticipates reportable quantities of EPCRA section
313 listed toxic chemicals to be manufactured during combustion
processes involving coal and oil. These include many of the metal
compounds such as cadmium, chromium, and zinc compounds. Further, EPA
believes that some EPCRA section 313 chemicals that are routinely
manufactured or otherwise used at coal/oil-fired electric utility
plants are not exempt under current EPCRA section 313 exemptions.
EPCRA section 313 chemicals, which EPA has preliminarily
identified, that are manufactured or otherwise used above de minimis
concentrations in reportable activities include sulfuric and
hydrochloric acid aerosols, hydrofluoric acid, formaldehyde, chlorine,
bromine, ethylene glycol, hydrazine, and copper. Based on EPA's
evaluation of this industry, EPA anticipates reporting on releases and
other waste management information relevant to the purposes of EPCRA
section 313. This type of routine information regarding EPCRA section
313 chemicals is not publicly-available. Indications exist that routine
releases occur at these facilities. This assessment is based on the
identification of reported releases of EPCRA section 313 chemicals in
other EPA data systems. EPA also believes that quantities of wastes
containing EPCRA section 313 listed toxic chemicals are generated and
may result in reporting of waste management information. Therefore, EPA
reasonably anticipates that facilities in this industry may report
information relevant to the purposes of EPCRA section 313 on releases
and other waste management information.
EPA estimates that reporting under EPCRA section 313 from this
industry may result in 4,175 Form R reports and 1,392 Toxic Chemical
Release Certification Statements annually submitted by 974 facilities.
This number of facilities estimated to report represents 31 percent of
all facilities identified within this industry group.
6. Reporting considerations. Based on EPA's understanding of this
industry, facilities possess a wide range of knowledge regarding the
EPCRA section 313 chemicals involved in their activities. While coal/
oil-fired facilities in SIC Code 4911 are clearly identified as coal/
oil-fired facilities and thus would be subject to this proposed action,
facilities in SIC codes 4931 and 4939 may also engage in combustion of
waste to generate electricity. Any facility in these SIC codes which
generates electricity through coal or oil combustion in any proportion
would be subject to reporting requirements and must determine if
reporting thresholds are exceeded. Facilities in SIC code 4911 engaged
in electricity generation using gas, nuclear, hydroelectric electric or
other sources such as solar and wind, are not subject to these
reporting requirements.
EPA estimates the potential costs for reporting for the first year
by this industry group to be $26.6 million and $16.6 million in
subsequent years.
7. Conclusions. For the reasons identified above, EPA believes that
facilities in the electric utilities industry in SIC codes 4911, 4931,
4939 satisfy the requirements of EPCRA section 313(b)(1)(B) because EPA
believes that reporting for this industry group is relevant for the
purposes of EPCRA section 313. Accordingly, EPA proposes to add this
industry group to the list of industry groups required to report
pursuant to EPCRA section 313 and the PPA section 6607.
E. Mining
1. Exemption of extraction activities. Mining facilities conduct
two primary operations: extraction and beneficiation. Both operations
may occur within the same facility. While EPA believes that activities
associated with beneficiation include EPCRA section 313 reportable
activities and will result in reports relevant to the purposes of EPCRA
section 313, it has not reached a similar conclusion regarding
extraction activities, particularly in regards to coal extraction. EPA
interprets ``extraction'' for purposes of EPCRA section 313 to mean the
physical removal or exposure of ore, coal, minerals, waste rock, or
overburden prior to beneficiation, and encompasses all extraction-
related activities prior to beneficiation. Included within these
extraction activities is removal of spoil. ``Spoil'' is a non-technical
term that refers to dirt removed from a mine site. While the term
``spoil'' apparently has different connotations from mine to mine, it
is, in essence, considered a part of overburden. The typical extraction
sequence includes the removal of any unconsolidated overburden followed
by drilling, blasting, and mucking the broken ore and waste rock
material. Extraction does not include beneficiation, coal preparation,
mineral processing, in situ leaching or any further activities.
As a result of EPA's evaluation of coal mining, the Agency
believes, based on currently available data, that facilities in this
industry which conduct extraction-only activities would not conduct
EPCRA section 313 reportable activities and are unlikely to submit
reporting information. EPA bases this conclusion on its belief that
EPCRA section 313 chemicals are not present above de minimis
concentration levels during coal extraction, and the use of EPCRA
section 313 chemicals in coal extraction activities in concentrations
above de minimis is unlikely to occur. Beneficiation, or preparation,
of coal, does however involve the use of EPCRA section 313 chemicals,
and the Agency believes that reporting resulting from coal preparation
activities is likely. Reporting requirements for coal mining facilities
where no further processing occurs is likely to result in an
unnecessary imposition of burden which would provide no additional
EPCRA section 313 information. Therefore, EPA is proposing to exclude
extraction activities, as defined above, conducted in SIC code 12 in
all EPCRA section 313 reporting requirements. Facilities engaged in the
extraction of coal only would not be required to make compliance
determinations and report releases and other waste management
information associated with these extraction activities. Facilities
engaged in both extraction of coal and coal preparation would be
required to perform compliance determinations, and, to the extent then
necessary, report releases and other waste management information
associated with coal preparation and any other activities outside of
extraction that are conducted on-site. Facilities classified in SIC
code 12 which engage in preparation only, and do not engage in any
extraction on-site would also be required to perform compliance
determinations and report on releases and other waste management
activities. This exemption
[[Page 33603]]
would apply only to extraction as defined above, and not to
beneficiation or any other activities conducted at facilities in this
industry. Further, this exemption is proposed to apply only to
extraction activities in SIC code 12, and not activities that occur in
SIC code 10 metal mining. EPA is requesting comment on this exemption
of extraction activities conducted in SIC code 12 from the EPCRA
section 313 reporting requirements.
EPA is also requesting comment regarding whether this exemption
should be applied to metal mining extraction as well. Data and
information concerning EPCRA section 313 chemical activity in metal
mining extraction activities are limited. EPA believes that metal
mining extraction and coal mining extraction are similar types of
operations, and that the use of EPCRA section 313 chemicals in
concentrations above de minimis during extraction is also unlikely in
both industries. Specifically, EPA does not have information indicating
that typical overburden would contain EPCRA section 313 chemicals in
concentrations above de minimis levels. Further, based on EPA's
understanding of metal mining operations at this time, EPA would not
expect these operations to have a great deal of knowledge regarding the
constituents present in overburden. During the comment period, EPA may
receive information confirming or refuting this understanding. If, as
EPA suspects, overburden does not typically contain EPCRA section 313
chemicals above de minimis concentrations, there would be little or no
reporting associated with the removal of overburden. In the event EPA
extends the coal extraction exemption to metal mining, the issue of
``spoil,'' or reporting on overburden, becomes moot.
On the other hand, the composition of extracted material is
different in metal mining and coal mining. EPA believes that EPCRA
section 313 chemicals are often present above de minimis concentrations
in metal ore. Consequently, these facilities, which typically also
conduct beneficiation on site, may have EPCRA section 313 chemicals
present in reportable volumes during extraction as well as during
beneficiation. EPA is requesting comment on whether the exemption of
extraction activities, including removal of overburden, should also be
applied to metal mining extraction in SIC code 10.
2. Metal mining. EPA is proposing to require facilities engaged in
metal mining to report under EPCRA section 313. This proposed
requirement is limited to facilities in SIC Code 10 (Metal Mining)
except SIC Code 1081 Metal Mining Services. Facilities in SIC code 1081
do not conduct reportable activities; activities performed by firms in
SIC code 1081 primarily consist of contracted services for mining
operations in the other SIC codes.
a. Description of industry. The metal mining industry includes
facilities engaged primarily in exploring for metallic minerals,
developing mines, and ore mining. Metal bearing ores are valued chiefly
for the metals they contain, which are recovered for use as such, or as
constituents of alloys, chemicals, pigments, or other products. This
industry also includes all ore dressing and beneficiating operations,
whether performed at mills operated in conjunction with the mines
served, or at mills, such as custom mills, operated separately. These
include mills which crush, grind, wash, dry, sinter, calcine, or leach
ore, or perform gravity separation or flotation operations (Refs. 4 and
6). EPA's Office of Solid Waste has produced a series of Technical
Resource Documents on extraction and beneficiation of ores and
minerals. These documents have been included in the public docket for
reference.
Although this SIC code includes all metal ore mining, the scope of
mining industries with a significant domestic presence is concentrated
in iron, copper, lead, zinc, gold, and silver. Metals generated from
U.S. mining operations are used domestically in a wide range of
manufactured products, including automobiles, electrical and industrial
equipment, jewelry, and photographic materials (Ref. 16).
b. Summary of evaluation. Based on EPA's evaluation of this
industry, the Agency believes that beneficiation activities routinely
involve the manufacturing, processing or otherwise use of EPCRA section
313 chemicals and that the facilities within this SIC code are likely
to report information relevant to the purposes of EPCRA section 313.
The present determination is consistent with current reporting
guidance, and the application of existing thresholds and exemptions
under EPCRA section 313. The Agency anticipates reporting of releases
and other waste management information from facilities.
c. Chemicals associated with metal mining. A wide variety of
chemicals are found at mining facilities in SIC code 10. Various EPCRA
section 313 listed metals and metal compounds are found in the ores
that are mined and beneficiated. The nature of the ore that is mined by
a particular facility is extremely site specific. Further, although
relatively standardized processes are used to recover the target
metal(s) from ores at various types of mines, the chemicals used in
these recovery processes by specific facilities (both in type and
quantity) are strongly influenced by the nature of the ore and of the
recovery process used.
Based on EPA's evaluation of this industry, it believes that the
EPCRA section 313 chemicals associated with the metal mining industry
which may be expected to be reported under this proposed action include
constituents of ore such as copper, antimony, silver, lead, zinc,
cadmium, mercury, chromium, manganese, and nickel and their compounds;
flotation reagents such as cyanide compounds, copper sulfate, and zinc
sulfate; agglomeration agents such as chlorine; elution acids such as
nitric acid; electrowinning agents such as cyanide compounds and lead
nitrate; and beneficiation agents such as cyanide compounds (Refs. 6,
16, 18, and 20).
d. Manufacture, process or otherwise use activities involving EPCRA
section 313 chemicals. Metal mining includes extraction and
beneficiation steps during the preparation of a specific metal
concentrate. Extraction involves the removal or exposure of the ore
from surface and underground deposits prior to beneficiation. The
typical extraction sequence includes the removal of any unconsolidated
overburden followed by drilling, blasting, and mucking the broken ore
and waste rock material.
Beneficiation is the preparation of a specific metal concentrate.
The purpose of beneficiation is to concentrate the sought after metal
in the ore by separating the values from the other materials in the ore
(Ref. 6). The most common beneficiation methods include gravity
concentration, milling and floating, leaching, dump leaching, and
magnetic separation (Refs. 6 and 16). EPA interprets ``ore
beneficiation'' for purposes of EPCRA section 313 to mean the
preparation of ores to regulate the size of the product, to remove
unwanted constituents, or to improve the quality, purity, or grade of a
desired product. (Ref. 16) Under regulations drafted pursuant to the
Resource Conservation and Recovery Act (RCRA, 40 CFR 261.4),
beneficiation is restricted to the following activities: crushing;
grinding; washing; dissolution; crystallization; filtration; sorting;
sizing; drying; sintering; pelletizing; briquetting; calcining to
remove water and/or carbon dioxide; roasting; autoclaving, and/or
chlorination in preparation for leaching; gravity concentration;
magnetic separation; electrostatic separation; flotation; ion exchange;
solvent extraction; electrowinning; precipitation; amalgamation; and
heap,
[[Page 33604]]
dump, vat, tank, and in situ leaching. (40 CFR 261.4) EPA's
interpretation of ``beneficiation'' for EPCRA section 313 purposes
should be read consistent with the RCRA definition and guidance.
Beneficiation of ore is, in essence, the preparation of the
constituents of the ore. In many mining operations, such as lead,
silver, and copper, the primary metal is a constituent of the ore (i.e.
lead, silver, and copper) and is a toxic chemical. There may be other
constituents of the ore that are also toxic chemicals. Because
beneficiation of the ore is preparation of the constituents, any
beneficiation of ore containing toxic chemicals is also preparation of
all of the toxic chemical constituents. If the preparation of the toxic
chemical constituent is for distribution in commerce, the toxic
chemical is ``processed'' for purposes of EPCRA section 313.
In addition, other EPCRA section 313 chemicals may be otherwise
used during the beneficiation operations. For example, cyanide
leaching, using solutions of sodium and potassium cyanides as leaching
agents, to extract gold from gold ore, represents an otherwise use of
EPCRA section 313 chemicals.
e. Types of information anticipated. EPA recognizes that the nature
of the ore mined and the preparation of its constituents is site-
specific and therefore variable.
EPA's evaluation of this industry indicates that facilities
routinely handle large volumes of EPCRA section 313 chemicals and that
there is reason to believe that routine releases occur based on data in
existing EPA data systems. For example, releases to air of toxic
chemicals including arsenic, antimony, lead, and copper were reported
in EPA's AIRS-AFS data base. EPA reasonably anticipates, therefore,
that facilities in this industry may report information on releases and
other waste management consistent with the purpose of EPCRA section
313. As a result, information on the presence, management, and releases
of toxic chemicals will be available to interested communities,
governments, and individuals, that was previously unavailable to the
public.
EPA estimates that reporting under EPCRA section 313 from this
industry may result in 1,176 Form R reports annually by 328 facilities.
This number of facilities estimated to report represents 31 percent of
all facilities identified within this industry group.
f. Reporting considerations. Because the activities in this
industry, particularly beneficiating, are similar to processing
activities performed in currently covered facilities, no new guidance
is required to enable facilities in this industry to comply with EPCRA
section 313 reporting requirements.
EPA estimates the potential costs for reporting for the first year
by this industry group to be $6.5 million and $3.8 million in
subsequent years.
g. Conclusions. For the reasons identified above, EPA believes that
facilities in the metal mining industry in SIC code 10 except SIC code
1018 satisfy the requirements of EPCRA section 313(b)(1)(B) because EPA
believes that reporting for this industry group is relevant for the
purposes of EPCRA section 313. Accordingly, EPA proposes to add this
industry group to the list of industry groups required to report
pursuant to EPCRA section 313 and the PPA section 6607.
3. Coal mining. EPA is proposing to require establishments engaged
in coal mining to report under EPCRA section 313. This proposed
requirement is limited to establishments in SIC code 12 Coal Mining
except SIC code 1241 Coal Mining Services. EPA does not believe that
SIC code 1241 includes facilities which conduct reportable activities
or routinely handle large volumes of EPCRA section 313 chemicals.
a. Description of industry. The coal mining industry includes
establishments primarily engaged in producing bituminous coal,
anthracite, and lignite. Included are mining operations and preparation
plants (also known as cleaning plants and washeries), whether or not
such plants are operated in conjunction with mine sites (Ref. 7). Coal
is extracted from surface and underground mines; production from
surface mines is increasing as production from underground mines
decreases. The sequence of steps in coal production is similar to metal
mining and includes extraction and beneficiation. Facilities in these
SIC codes may manufacture, process, or otherwise use EPCRA section 313
chemicals when conducting blasting activities; extraction of coal and
impurities; and preparation activities, including cleaning to reduce
ash and sulfur content, washing, crushing, screening, and loading (Ref.
20).
b. Summary of evaluation. Based on EPA's evaluation of this
industry, the Agency believes that beneficiation and processing
operations performed in coal preparation plants routinely involve
manufacturing, processing, or the otherwise use of EPCRA section 313
chemicals and that the facilities within this SIC code are likely to
report information relevant to the purposes of EPCRA section 313. The
present determination is consistent with current reporting guidance,
and the application of existing thresholds and exemptions under EPCRA
section 313. The Agency anticipates reporting of releases and other
waste management information from facilities in this industry.
c. Chemicals associated with coal mining. There are three sources
of EPCRA section 313 chemicals in SIC code 12: (1) EPCRA section 313
chemicals that are commonly found in coal; (2) EPCRA section 313
chemicals that are subsequently used during the coal preparation
process; and (3) EPCRA section 313 chemicals incidental to coal
production, e.g., explosives, acid mine drainage. Metals and minerals
present in coal may include antimony, arsenic, barium, cadmium,
chromium, copper, lead, manganese, mercury, nickel, selenium, silver,
vanadium (fume or dust), and zinc (fume or dust) and their compounds.
Chemicals used during coal preparation may include tetrachloroethylene,
1,1,1-trichloroethane, phenanthrene, dichlorodifluoromethane, xylene,
and ethylene glycol. Chemicals incidental to coal production include
ammonium nitrate and fuel oil, used for explosives. Fuel oil may
contain EPCRA section 313 chemicals as constituents.
Based on EPA's evaluation of this industry, the Agency believes
that the EPCRA section 313 chemicals associated with coal mining which
may be expected to be reported under this proposed action are primarily
associated with coal preparation plants and would include
tetrachloroethylene, 1,1,1-trichloroethane, phenanthrene,
dichlorodifluoromethane, xylene, and ethylene glycol (Ref. 20).
d. Manufacture, process, or otherwise use activities involving
EPCRA section 313 chemicals. Coal beneficiation, also known as coal
preparation, is the process of upgrading raw coal using physical
methods to improve the energy value and remove impurities such as
pyrite and non-coal mineral material. It is intended to produce a
standardized product and reduce ash and sulfur content. The extent of
upgrading is determined by the intended end use and compliance with
emission standards (Ref. 7). Coal is crushed and slurried with water at
coal preparation plants to separate organics from inorganic impurities.
The inorganic impurities are denser than the combustible, organic
fraction of the coal, and the density difference is used to separate
the inorganic fractions using cyclones and dense-medium tanks.
Flotation tanks are also used to remove pyrite from finely ground coal.
The coal-water slurry is introduced into a series of flotation cells
spragged with air from below. Alcohols are used to create a froth, and
kerosene
[[Page 33605]]
or diesel fuel is added to collect the coal into the froth, leaving the
pyrite behind. At the completion of the cleaning steps, the coal is
dried using hot gases from a coal burning furnace.
While the possibility exists that the coincidental manufacture of
EPCRA section 313 chemicals may occur as a result of chemical reactions
during either extraction or beneficiation operations, EPA has not
identified instances where this occurs routinely. EPA, as part of its
evaluation of this industry, has not determined that processing, as
defined in EPCRA section 313, routinely occurs for EPCRA section 313
listed toxic chemicals above de minimis concentrations. However, EPA
has identified routine activities involving EPCRA section 313 toxic
chemicals. Beneficiation of coal routinely involves the otherwise use
of EPCRA section 313 chemicals to aid in separating coal from
impurities during coal preparation processes. The use of these
chemicals during the beneficiation, or preparation, activities
described above constitute the otherwise use of chemicals. EPA
believes, based on its evaluation, that these activities will be the
primary source of EPCRA section 313 information from these facilities.
e. Types of information anticipated. Based on EPA's evaluation of
this industry, the Agency believes that coal mining facilities
routinely handle large volumes of EPCRA section 313 chemicals and that
there is reason to believe that routine releases occur based on data in
existing EPA data systems. For example, routine releases to air were
reported in EPA's Aerometric Information Retrieval System (AIRS)
Facility Subsystem (AFS) of ethylene glycol and dichlorodifluoromethane
for facilities in SIC code 12 (Ref. 18). EPA reasonably anticipates,
therefore, that facilities in this industry will report information on
releases and other waste management activities of EPCRA section 313
chemicals such as tetrachloroethylene, xylene, and ethylene glycol. As
a result, information on the presence, management and releases of toxic
chemicals will be available to interested communities, governments, and
individuals, that was previously unavailable to the public.
EPA estimates that reporting under EPCRA section 313 from this
industry may result in 642 Form R reports annually submitted by 321
facilities. This number of facilities estimated to report represents 10
percent of all facilities identified within this industry group.
f. Reporting considerations. Because the activities conducted by
facilities within this industry sector, particularly coal preparation
or beneficiation, are similar to manufacturing, processing, and
otherwise use activities performed in currently covered facilities, no
new guidance is required to enable facilities in this industry to
comply with EPCRA section 313 reporting. There may be activities other
than those discussed here that should be examined by a reporting
facility for reporting purposes. For example, although coal contains
EPCRA section 313 constituents, EPA believes that these constituents
generally exist in concentrations below de minimis levels, and
therefore may be exempt from reporting as the constituents are further
processed with the coal. However, in the event that coal preparation
plants process a product other than coal, for further distribution in
commerce, and that product contains EPCRA section 313 chemicals above
de minimis concentrations, the facility may need to file a Form R for
that chemical.
EPA estimates the potential costs for reporting for the first year
by this industry group to be $5.4 million and $2.5 million in
subsequent years.
g. Conclusion. For the reasons identified above, EPA believes that
facilities in the coal mining industry in SIC code 12 except SIC code
1241 satisfy the requirements of EPCRA section 313(b)(1)(B).
Accordingly, EPA proposes to add this industry group to the list of
industry groups required to report pursuant to EPCRA section 313 and
the PPA section 6607.
F. RCRA Subtitle C Hazardous Waste Facilities
EPA is proposing to require facilities regulated under RCRA
Subtitle C that are classified in SIC code 4953 to report under EPCRA
section 313.
1. Description. Facilities operating in SIC code 4953 that are
regulated under RCRA subtitle C (the primary federal law addressing
hazardous waste mangement), are engaged primarily in the collection,
transportation, treatment for destruction, stabilization, and/or
disposal of RCRA subtitle C hazardous waste. These facilities include
incinerators, underground injection facilities, waste treatment plants,
landfills, and other facilities designed for the treatment for
destruction, stabilization, and disposal of hazardous waste.
2. Summary of evaluation. EPA has determined that facilities
regulated under RCRA subtitle C that are classified in SIC code 4953
conduct activities that routinely involve the management of EPCRA
section 313 chemicals. Based on EPA's revised interpretation of
activities considered as otherwise use as discussed in Unit IV. of this
preamble, EPA believes that facilities regulated under RCRA Subtitle C
that are classified in SIC code 4953 manage as waste a substantial
volume of EPCRA section 313 chemicals. Under the revised otherwise use
interpretation articulated in Unit IV. of this preamble, amounts of
section 313 chemicals treated for destruction, stabilization, or
disposal would be considered otherwise use for purposes of threshold
determinations and the amounts released or managed as a waste would be
subject to reporting under EPCRA section 313, provided that the
appropriate EPCRA section 313(f) threshold is met.
3. Chemicals associated with the industry. Facilities regulated
under RCRA subtitle C that are classified in SIC code 4953 manage an
extremely large number and quantity of EPCRA section 313 chemicals. The
EPCRA section 313 list of toxic chemicals includes 195 specifically
listed chemicals that are also regulated as hazardous waste under RCRA
(40 CFR 261.33(e) and 40 CFR 261.33(f)). The EPCRA section 313 list of
toxic chemicals also contains two chemical categories that are also
regulated under the RCRA program. Therefore, the number of EPCRA
section 313 chemicals that may be managed and potentially reported by
facilities within this industry group is rather large.
4. Manufacture, process, or otherwise use activities involving
EPCRA section 313 chemicals. Facilities regulated under RCRA subtitle C
that are within SIC code 4953 receive waste containing section 313
chemicals for the purposes of storage, treatment for destruction,
stabilization, and disposal. These facilities manage a substantial
amount of EPCRA section 313 chemicals contained in waste. While these
activities result in the generation of and in limited cases may include
the use of EPCRA section 313 chemicals, the vast majority of section
313 chemicals managed by these facilities are in the amounts managed as
waste.
As stated in Unit IV. of this preamble, EPA is modifying its
interpretation of ``otherwise use'' to include the treatment for
destruction, stabilization, or disposal of EPCRA section 313 chemicals.
Given this interpretation, most of the activities conducted by
facilities regulated under RCRA subtitle C that are in SIC code 4953
will be considered otherwise use. In addition, some EPCRA section 313
listed toxic chemicals may be coincidentally manufactured in the
treatment of hazardous waste streams (Ref. 20).
[[Page 33606]]
Some EPCRA section 313 listed toxic chemicals that may be
manufactured, processed, or otherwise used by facilities in this
industry group include: hydrochloric acid, hydrofluoric acid and
sulfuric acid (aerosol), which may be coincidentally manufactured
during some treatment for destruction activitives; chlorine, which is
used in some treatment operations (Ref. 20); and numerous other
chemicals otherwise used under EPA's revised interpretation, such as
chlorobenzene, dichlorobenzene, formaldehyde, and metals (e.g., lead)
and their compounds.
5. Types of information anticipated. Congress created EPCRA section
313 to provide a unique function--to make multimedia information on
releases of toxic chemicals and other waste management activities
readily available to communities. Although at that time, existing
statutes provided some information, sponsers of EPCRA section 313
recognized that existing information did not serve the need of
providing publicly available information on releases and other waste
management activities of toxic chemicals in a consistent and
comprehensive format for all media.
EPA and the states currently collect much of [the information to
be collected by the section], and a number of states and cities have
instituted similar inventories... However, many states and the EPA
do not have so-called multimedia inventories. The information may be
scattered in air files, water files and on RCRA manifest
forms,...but not pulled together in one place to provide a complete
and usable picture of total environmental exposure. (Senator
Lautenberg, Ref. 11).
Similarly, the sponsors also recognized that industries that were
the initial focus of EPCRA section 313 (i.e., facilities in SIC codes
20 through 39) were already subject to extensive regulations, but
determined that these industries should be included in those initially
subject to EPCRA section 313 reporting.
With respect to the contents of the toxic release inventory
form, estimates of releases into each environmental medium must be
provided. This shall include any releases into the air, water, as
well as releases from waste treatment and storage facilities. This
should include all releases of toxic chemicals in surface waters
whether or not such releases are pursuant to Clean Water Act
permits. Similarly, all toxic chemicals dumped into and disposal
facilities must be reported whether or not such facilities are
regulated under the Resource Conservation and Recovery Act.
(Congressman Edgar, Congressional Record, p. 15316-15317 October 8,
1986)
While EPA recognizes that facilities regulated under RCRA subtitle
C are subject to considerable regulation, EPA believes that requiring
these facilities to report under EPCRA section 313 does not constitute
a significant overlap with other regulations. Although the permitting
process makes some chemical management information on a facility-
specific basis available to the public, the type of information
collected from facilities regulated under RCRA subtitle C is typically
at the waste stream level and not at the constituent-specific level.
This is very different from the type of information collected under
EPCRA section 313. The information collected under EPCRA section 313 is
chemical-specific and in contrast to RCRA data is designed to be used
by the public.
EPA has been encouraged to consider the addition of waste treatment
and disposal facilities to EPCRA section 313 since the initial passage
of the statute. Comments received on the proposed rule (53 FR 4504) to
implement EPCRA section 313 reporting included strong support for the
addition of the commercial waste treatment industry. Given the purpose
of EPCRA section 313 (providing the public with information on toxic
chemicals), EPA believes it is appropriate to expand the focus of the
TRI program to include information from facilities that treat for
destruction, stabilize, and/or dispose of toxic chemicals. Certainly,
facilities regulated under RCRA subtitle C are locations where
substantial quantities of concentrated toxic chemicals are collected,
and treated for destruction, stabilized, and/or disposed. As discussed
above, Congress intended that the information provided by EPCRA section
313 reporting would include releases from waste treatment and disposal
facilities regardless of whether these releases were permitted or not.
Therefore, it is EPA's belief that the inclusion of RCRA subtitle C
facilities operating within SIC code 4953 under EPCRA section 313
reporting requirements is appropriate and will add significantly to the
information that is available on how and where toxic chemical wastes
are released and managed.
As stated above, facilities regulated under RCRA subtitle C that
are within SIC code 4953 manage a large number of EPCRA section 313
chemicals, often in large quantities. The types of treatment activities
and concentrations of chemicals in waste received will greatly affect
the types and amounts of section 313 chemicals released or managed as a
waste from any particular facility. As a whole, EPA anticipates that
facilities operating in this industry group will contribute more
release and management information on a per facility basis than any
other industry group currently reporting or being proposed for addition
by this rulemaking.
EPA estimates that reporting under EPCRA section 313 from this
industry may result in 6,637 Form R reports and 74 Toxic Chemical
Release Certification Statements annually by 164 facilities. This
number of facilities estimated to report represents 100 percent of all
facilities identified within this industry group.
6. Reporting consideration. EPA's revised interpretation of
``otherwise use'' can significantly impact the information reported by
facilities within this industry group. See Unit IV.D. of this preamble
for reporting examples.
EPA estimates the potential costs for reporting for the first year
by this industry group to be $31.2 million and $21.5 million in
subsequent years.
The Agency believes it is important to provide the public with TRI
information from the hazardous waste management industry. However, the
Agency recognizes that facilities in this industry present specific
issues with regard to reporting under EPCRA section 313. Placement of a
toxic chemical into a RCRA hazardous waste landfill is reported as a
release under EPCRA section 313, even though disposal of hazardous
waste in that landfill is a permissible waste management activity under
RCRA. Through its outreach efforts in developing this proposal, EPA
discussed the hazardous waste management industry's concerns with the
differing perceptions of the term ``release.'' Although RCRA does not
define the term ``release,'' some may perceive that term, when used in
the RCRA context, to indicate failure of the hazardous waste management
unit, such as a landfill. For TRI purposes, EPCRA section 329 defines
``release'' to mean ``spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, leaching, dumping, or disposing into
the environment (including the abandonment or discarding of barrels,
containers, and other closed receptacles) of any hazardous chemical,
extremely hazardous substance, or toxic chemical.'' Disposal includes
underground injection, placement in landfills/surface impoundments,
land treatment, or other intentional land disposal. (See ``Toxic
Chemical Release Inventory Reporting Instructions'' (1995 version) at
p. 35 for a list of activities to be reported under ``Transfers Off-
site for Purposes of Disposal.'')
The Agency is mindful of the concern that TRI release information
involving
[[Page 33607]]
hazardous waste management activities not be misleading. For example,
the public should not construe a release into a landfill reported under
EPCRA section 313 to mean that a landfill has failed. In developing the
final rule, EPA will consider approaches to assist the public in
understanding the proper meaning of reporting data from the hazardous
waste management industry. EPA requests comment on approaches to
address this concern.
Although facilities that receive hazardous waste are provided with
information on the constituents of that hazardous waste, these
facilities may be provided with limited information on EPCRA section
313 listed chemicals and the exact quantities of those constituents.
EPA requests comment on the quantity of constituents, difficulty and
costs of reporting, and ways to aid facilities in reporting under EPCRA
section 313, in the least burdensome manner, on those constituents that
are EPCRA section 313 listed toxic chemicals.
7. Conclusion. For the reasons identified above, EPA believes that
those RCRA subtitle C facilities in SIC code 4953 satisfy the
requirements of EPCRA section 313(b)(1)(B) because EPA believes that
reporting for this industry sector is relevant for the purposes of
EPCRA section 313. Accordingly, EPA proposes to add this industry group
to the list of industry groups required to report pursuant to EPCRA
section 313 and the PPA section 6607.
G. Solvent Recovery Services
EPA is proposing to require facilities engaged in solvent recovery
operations to report under EPCRA section 313. These facilities are
classified in SIC code 7389 Business Services, not elsewhere
classified, that are primarily engaged in solvent recovery activities.
1. Description of the industry. Solvent recovery is the act of
removing contaminants and reconditioning a previously used industrial
solvent to a form suitable for reuse. Solvent recovery is a beneficial
activity that ultimately reduces wastes and the demand for raw
materials. However, the activities used to recover solvents may result
in significant releases and other waste management activities involving
EPCRA section 313 chemicals.
Many facilities are engaged in solvent recovery, in part due to the
widespread use of solvents, the value of the material, and the
technologies available. Most facilities conducting solvent recovery
operations are primarily engaged in other activities, making the number
of facilities primarily engaged in solvent recovery relatively few.
Many facilities identified as operating within the manufacturing sector
conduct solvent recovery operations and may currently report under
EPCRA section 313 those releases and waste management activities that
result from their solvent recovery operations (Ref. 20).
2. Summary of evaluation. Based on EPA's evaluation of facilities
primarily engaged in solvent recovery operations, the Agency believes
their associated activities routinely involve the manufacturing,
processing, or otherwise use of EPCRA section 313 listed toxic
chemicals. This determination is consistent with current reporting
guidance and the application of existing exemptions under EPCRA section
313. EPA anticipates reporting of releases and other waste management
information from facilities primarily engaged in solvent recovery
operations.
3. Chemicals associated with the industry. Solvents appropriate for
recovery include alcohols, aliphatics, aromatics, chlorinated
hydrocarbons, chloroflorocarbons, ketones, and other flammable and non-
flammable compounds. Many solvents commonly recovered are also EPCRA
section 313 listed toxic chemicals and include carbon tetrachloride,
chloroform, methanol, methyl ethyl ketone, methylene chloride,
perchloroethylene, toluene and xylene. Industrial uses of solvents
typically result in the introduction of chemical contaminants such as
pigments, ink, resin, oil, grease, metals and dirt. A number of
processes are used to separate contaminants to recover the economically
beneficial solvent. These include distillation, stripping, thin-film
evaporation and extraction. The type of process applied is generally
dependent on the solvent and type of contamination (Ref. 10).
4. Manufacture, process, or otherwise use activities involving
EPCRA section 313 chemicals. The recovery of an EPCRA section 313
listed toxic chemical from a mixture for further distribution or
commercial use is processing of that chemical. This is the primary
function of most solvent recovery businesses.
The type of separation method(s) applied by some facilities may
also involve the otherwise use of EPCRA section 313 listed toxic
chemicals. Under current EPCRA section 313 guidance, the use of a
chemical to react with another chemical constitutes a use (provided the
first chemical does not become incorporated and distributed in
commerce). In addition, some of the contaminants contained in a spent
solvent mixture may also include EPCRA section 313 chemicals. The
disposal of a listed toxic chemical removed from the spent solvent is
the otherwise use of that toxic chemical under the revised
interpretation articulated in this rulemaking (see Unit IV. of this
preamble).
5. Types of information anticipated. Based on the type of process
used, various releases of solvent, contaminant, and chemicals used to
aid in the recovery of the solvent may occur. Releases can include:
light ends or vapors from process units or solvent holding tanks, heavy
ends or still bottoms and sludge, and oil from various other process
units. Other wastes such as descaling solutions and caustic streams are
generated during routine maintenance and feed stock switch over
operations. Some of these wastes generated may contain section 313
chemicals and are generated or are used in quantities large enough that
reporting may result. Some of these chemicals are carbon tetrachloride,
perchloroethylene, and xylene. While EPA's proposed broader
interpretation of ``otherwise use'' may capture the disposal of spent
toxic chemicals, based on EPA's analysis, contaminants removed from
spent solvent mixtures are not likely to be present in quantities that
would exceed reporting thresholds, and subsequently no reports are
expected on these chemicals (Ref. 20). In addition, based on EPA's
analysis, the process of recovering spent solvents is considered to be
most economical when preformed on a larger scale, and therefore, it is
estimated that all operations primarily engaged in solvent recovery
will process enough of one or more of the EPCRA section 313 chemicals
identified in Unit V.G.3. of this preamble to exceed reporting
thresholds (Ref. 10).
EPA estimates that reporting under EPCRA section 313 from this
industry may result in 85 Form R reports annually submitted by 17
facilities. This number of facilities estimated to report represents 43
percent of all facilities identified within this industry group.
6. Reporting consideration. While EPA wishes to encourage
alternatives to disposal such as recycling, the Agency believes that
the releases and waste management information resulting from facilities
primarily involved in solvent recovery operations should be made
publicly available. EPA believes that the activities conducted by
facilities primarily engaged in solvent recovery are very similar if
not identical to solvent recovery activities conducted by currently
reporting facilities and that statutory reporting definitions, as well
as reporting guidance, will directly apply to these operations.
[[Page 33608]]
EPA estimates potential costs for reporting for the first year by
this industry group to be $0.4 million and $0.3 million in subsequent
years.
7. Conclusions. For the reasons identified above, EPA believes that
facilities that are primarily engaged in solvent recovery operations in
SIC code 7389 satisfy the requirements of EPCRA section 313 (b)(1)(B)
because EPA believes that reporting for this industry group is relevant
for the purposes of EPCRA section 313. Accordingly, EPA proposes to add
this industry group to the list of industry groups required to report
pursuant to EPCRA section 313 and the PPA section 6607.
VI. Request for Public Comment
EPA requests comment on any aspect of this proposal. In particular,
EPA requests specific comment as detailed in the following paragraphs.
EPA requests comment on the information considered for each of the
industry groups proposed for addition in Unit V. of this preamble. In
addition, EPA requests comment on any issues that may be specific to
any of the individual industry groups.
EPA is requesting comment on the use of the criteria used in
today's proposal for listing decisions for the EPCRA section 313
program.
EPA requests comment on the sufficiency of the evidence and any
additional information for each of the industry groups proposed for
addition. In addition, EPA requests comment on any issues that may be
specific to any of the individual industry groups.
EPA requests comment on the exemption for extraction activities
under the coal mining industry sector. EPA is also requesting comment
regarding whether this exemption should be applied to metal mining
extraction as well.
EPA is requesting comment on requiring reporting from those
facilities in SIC code 4953 that have interim status under RCRA
subtitle C.
EPA is requesting comment on whether to add SIC code 4960 Steam and
Air Conditioning Supply. Although information is limited on this
industry group, EPA expects the activities conducted by this industry
group to be similar to those conducted in SIC codes 4911, 4931, and
4939.
The Agency is mindful of the concern that TRI release information
involving hazardous waste management activities not be misleading. For
example, the public should not construe a release into a landfill
reported under EPCRA section 313 to mean that a landfill has failed. In
developing the final rule, EPA will consider approaches to assist the
public in understanding the proper meaning of reporting data from the
hazardous waste management industry. EPA requests comment on approaches
to address this concern.
Although facilities that receives hazardous waste are provided with
information on the constituents of that hazardous waste, these
facilities may be provided with limited information on the exact
quantities of those constituents. EPA requests comment on ways to aid
facilities in reporting under EPCRA section 313, in the least
burdensome manner, on those constituents that are EPCRA section 313
listed toxic chemicals.
EPA requests comment on the alternatives to reduce impacts on small
facilities in SIC code 5169 and facilties regulated under RCRA subtitle
C that are classified within SIC code 4953. EPA requests comment on
whether any of the alternatives presented in this proposed rule would
accomplish the stated objective of EPCRA section 313 while minimizing
significant impact on small entities.
For the industry groups outside of SIC codes 20 through 39 which
are not part of today's proposal, EPA requests comment on adding any of
these industry groups through a future rulemaking. Commenters should
take into account the current limitations of EPCRA section 313
reporting requirements, i.e., exemptions and thresholds, in addressing
whether these industries should be required to report under EPCRA
section 313.
EPA requests comment on all aspects of the Agency's broadening of
the concept of ``otherwise use.'' Specifically, EPA requests comment on
(1) the Agency's proposed modification of the reporting guidance for
``otherwise use,'' (2) whether the regulatory definition of ``otherwise
use'' should be amended, (3) the Agency's alternate approach to
modifying the reporting guidance for ``otherwise use;'' and (4) the
number of facilities in SIC codes 20 through 39 that may be affected by
EPA's alternate approach to modifying the reporting guidance for
``otherwise use.''
EPA requests comment on its revised interpretation as explained by
these examples, and by the additional examples described in the
document entitled Interpretive Guidance for Revised Interpretation of
Otherwise Use. This document is in the public docket.
EPA requests comment on whether the treatment for destruction,
stabilization, and disposal fit within the statutory definition of
``process.''
Comments should be submitted to the address listed under the
ADDRESSES section. All comments must be received on or before August
26, 1996.
VII. Rulemaking Record
A record has been established for this rulemaking under docket
number ``OPPTS-400104'' (including comments and data submitted
electronically as described below). A public version of this record,
including printed, paper versions of electronic comments, which does
not include any information claimed as confidential business
information (CBI), is available for inspection from noon to 4 p.m.,
Monday through Friday, excluding legal holidays. The public record is
located in the TSCA Nonconfidential Information Center, Rm. NE-B607,
401 M St., SW., Washington, DC 20460.
Electronic comments can be sent directly to EPA at:
ncic@epamail.epa.gov
Electronic comments must be submitted as an ASCII file avoiding the
use of special characters and any form of encryption.
The official record for this rulemaking, as well as the public
version, as described above will be kept in paper form. Accordingly,
EPA will transfer all comments received electronically into printed,
paper form as they are received and will place the paper copies in the
official rulemaking record which will also include all comments
submitted directly in writing. The official rulemaking record is the
paper record maintained at the address in ``ADDRESSES'' at the
beginning of this document.
VIII. Public Meeting
EPA will hold two 1-day public meetings, one in San Francisco, CA
and one in Washington, DC, to discuss the issues presented above. The
tentative agenda for this public meeting will include a discussion of
the issues presented in Unit VII. of this preamble. Specific
information on these public meetings are contained in a notice of
public meeting published elsewhere in this issue of the Federal
Register.
IX. Economic Analysis
EPA has prepared an economic analysis of the impact of this action,
which is contained in a document entitled Economic Analysis of the
Proposed Rule to Add Certain Industries to EPCRA Section 313 (Ref. 20).
This document is available in the public docket for this rulemaking.
The analysis assesses the costs, benefits, and associated impacts of
the rule, including potential effects on small business and the
environmental justice implications
[[Page 33609]]
of the rule. The major findings of the analysis are briefly summarized
here.
A. Market Failure
Federal regulations are used to correct significant market
failures. Markets will fail to achieve socially efficient outcomes when
differences exist between market values and social values. Two of the
causes of market failure are externalities and information asymmetries.
In the case of negative externalities, the actions of one economic
entity impose costs on parties that are ``external'' to the market
transaction. For example, entities may release toxic chemicals without
accounting for the consequences to other parties, such as the
surrounding community. The market may also fail to efficiently allocate
resources in cases where consumers lack information. Where information
is insufficient regarding toxic releases, individuals' choices
regarding where to live and work may not be the same as if they had
more complete information. Since firms ordinarily have a disincentive
to provide complete information on their releases of toxic chemicals,
the market fails to allocate society's resources in the most efficient
manner. This proposed rule is intended to correct the market failure
created by the lack of information available to the public about the
releases and transfers of toxic chemicals in their communities, and to
help address the externality created when choices regarding toxic
chemical releases and transfers have not fully considered external
effects.
Through requiring the provision of data on toxic chemical releases
and waste management practices, TRI overcomes firms' disincentive to
provide information on their toxic chemical releases. TRI serves to
inform the public of the toxic chemical releases in their communities.
Individuals can then make choices that better optimize their well-
being. Some choices made by a more informed public, including
consumers, corporate lenders, and communities, may effectively lead
firms to internalize into their business decisions at least some of the
costs to society of their releases. In addition, by identifying hot
spots, setting priorities and monitoring trends, TRI data can also be
used to make more informed decisions regarding the design of more
efficient regulations and voluntary programs, which moves society
towards an optimal allocation of resources.
If EPA were to take no action, i.e., not add industries to TRI, the
market failure (and the associated social costs) resulting from the
lack of information on releases and waste management practices would
continue. EPA believes that adding the proposed industry groups to the
EPCRA section 313 list of facilities will improve the scope of multi-
media data on releases and transfers of toxic chemicals. This, in turn,
will provide information to communities, empower communities to play a
meaningful role in environmental decision-making, improve the quality
of environmental decision-making by government officials, and provide
useful information to facilities themselves. EPA believes that this is
a sound rationale for proposing the addition of industry groups to the
EPCRA section 313 list.
B. Existing Reporting Requirements
The Toxics Release Inventory includes multimedia data on releases,
transfers and pollution prevention activities for over 600 toxic
chemicals. While there are no national data bases that are comparable
to the whole of TRI, several data sources exist that contain media-
specific data on releases and transfers. Sources maintained by EPA
include the AIRS Facility Subsystem (AFS) of the Aerometric Information
Retrieval System (AIRS), which tracks air emissions from industrial
plants; the Permit Compliance System (PCS), which tracks permit
compliance and enforcement status of facilities regulated by the
National Pollutant Discharge Elimination System (NPDES) under the Clean
Water Act; and the Biennial Reporting System (BRS), maintained by the
Office of Solid Waste and Emergency Response (OSWER). Other sources
include the chemical inventory data collected under section 312 of
EPCRA and Clean Air Act Title V operating permits.
TRI data cannot be replicated using these alternative sources. Even
if information from these data bases could be combined to form an
analog of the data contained in TRI, none of these sources provides
release and transfer or pollution prevention data that could replace
the data reported on TRI. In addition, these other data collections
differ in the information collected, the chemical and facility
coverage, the various thresholds and reporting frequencies, and how the
data are reported. The definitional consistency provided by TRI creates
important advantages over any emissions data system that might be
assembled from non-TRI sources. These other data sources perform the
functions for which they were designed, but they were not intended to
serve the same purposes as TRI. For all these reasons, EPA has
concluded that while there may be some degree of overlap between the
reporting required under EPCRA section 313 and PPA section 6607 and
that required under other statutes, these reporting requirements do not
duplicate or conflict with each other.
C. Regulatory Alternatives
EPA evaluated a number of options in the course of developing this
proposed rule. The options were created by varying the scope of the
expansion (i.e., choosing alternative industry groups) and modifying
selected structural elements of the program (i.e., modifying the
guidance for otherwise use, changing the de minimis exemption for
certain industries under consideration, etc.). This analysis was based
on the options under consideration before the completion of the
screening process described in Unit II.C. and II.D. of this preamble.
The following alternatives summarize the scope of EPA's analysis.
Alternative I.A
Comprehensive industry coverage. Includes the following industries
at the 2-digit SIC code level: mining; transportation; electric,
sanitary and gas services; and wholesale trade. Also includes solvent
recovery services. Maintains current interpretation of otherwise use.
Alternative I.B
Same industries as Alternative I.A, but with revised interpretation
of otherwise use.
Alternative II.A
Limited industry coverage, with a mix of 2-digit and 4-digit SIC
codes. Includes the following industries: metal mining; coal mining;
electric services, electric and other services combined; combination
utilities; commercial hazardous waste treatment; storage and disposal
facilities that are RCRA subtitle C facilities; chemical and allied
products - wholesale; and petroleum bulk stations and terminals -
wholesale. Also includes solvent recovery services. Maintains current
interpretation of otherwise use.
Alternative II.B
Same industries as Alternative II.A, but with revised
interpretation of otherwise use.
Alternative III.A:
Modified limited industry coverage. A mix of 2-digit and 4-digit
SIC codes, with certain exemptions and limitations. Includes the
following industries: metal mining, excluding mining services; coal
mining, excluding mining services and extraction activities; coal- and
oil-fired electric utilities; commercial hazardous waste treatment,
storage and disposal facilities that are RCRA subtitle C facilities;
chemical and allied products - wholesale; petroleum bulk stations and
[[Page 33610]]
terminals - wholesale; and solvent recovery services. Maintains current
interpretation of otherwise use.
Alternative III.B
Same industries as Alternative III.A, but with revised
interpretation of otherwise use. This is the proposed alternative.
Alternative IV.A
Same industries as Alternative I.A, but with limited reporting from
mines. The threshold determination for those toxic chemicals being
extracted or mined would be required only for the primary product
distributed in commerce.
Alternative IV.B
Same industries as Alternative I.A, but with expanded reporting
from mines. Mining and extraction of ore would be interpreted as
manufacturing, not processing, so that the de minimis exemption would
not apply to other constituents in the ore.
Alternative V
Same industries as Regulatory Alternative I.A, but with expanded
reporting from electric utilities. The de minimis exemption would not
be applied to constituents of fuels at electric utilities.
Table I in Unit XI of this preamble provides a summary of the
number of facilities estimated to submit reports under EPCRA section
313, the number of reports they are anticipated to submit, and the
associated costs under each regulatory alternative. Costs are lower
after the first year because facilities will be familiar with the
reporting requirements, and many will be able to update or modify
information reported on the previous year's report instead of
originating data for the first time. See Unit XI.C. of this preamble
for more information on costs for different compliance tasks under
EPCRA section 313.
In proposing this rule, EPA has sought to balance the right of the
public to know about releases and other generation of toxic chemicals
as waste in their neighborhoods and the benefits provided by the
expanded knowledge with the costs which the rule will impose on
industry, including the impact on small entities.
D. Proposed Alternative
Table II in Unit XI of this preamble displays the results by
industry for the proposed option (which is Alternative III.B in Unit
IX.C.). EPA estimates that a total of 6,400 facilities will submit
38,000 reports, which include both Form Rs and Toxic Chemical Release
Inventory Certification Statements (see 59 FR 61488, November 30,
1994). Total incremental compliance costs are also presented in Table
II by industry sector. As shown, aggregated costs in the first year are
estimated to be $191 million; in subsequent years they are estimated to
be $118 million per year.
EPA's quantitative analysis does not include the effect on
facilities in SIC codes 20 through 39 of changing the guidance for
otherwise use to include disposal, stabilization, and treatment for
destruction. As indicated in Unit IV.D. of this preamble, EPA does not
believe that this change in guidance will affect the EPCRA section 313
reporting status of a significant number of facilities in the
manufacturing sector. Facilities in the manufacturing sector may be
affected if they receive wastes from other facilities, manage these
wastes through treatment or disposal and do not manufacture, process or
otherwise use the chemicals under current definitions, or do so below
the reporting threshold. The Agency is requesting comment on the extent
to which the revised interpretation may affect facilities that
currently report on TRI.
EPA will incur additional costs for adding new industry groups
under EPCRA section 313. These costs include developing policy and
guidance for the new industries, providing outreach and training,
processing the reports that are submitted, disseminating the resulting
information and performing compliance and enforcement audits. The total
costs to EPA are estimated to be $2.7 million per year.
E. Associated Requirements
There are various state and federal requirements that are triggered
by other statutes and regulations when a facility files a report under
EPCRA section 313. The associated requirements include state taxes and
fees, state pollution prevention planning requirements, and special
requirements for certain NPDES storm water permits. While these
associated requirements are discussed in the economic analysis, they
are not costs of the proposed rule, and are not treated as such in the
analysis.
Sixteen states have fees, taxes or pollution prevention
requirements associated with the requirement to file a Form R. EPA's
economic analysis includes a conservative estimate that the proposed
rule could result in total payments of $1 million to $8 million per
year in fees and taxes by affected facilities. It is important to note
that these fees and taxes do not necessarily equate with social costs,
since payments that do not result in the consumption of a resource
(e.g., labor) are transfer payments and do not represent costs to
society. Insufficient information was available to classify the fee
payments as either social costs or transfer payments. Nor did EPA
attempt to estimate the benefits of these fees and taxes (which are
used in some states to fund technical assistance programs and grants,
and which may also result in a more efficient allocation of resources
in and of themselves by working as economic incentives to reduce
emissions).
Although the state fees, taxes and pollution prevention planning
requirements are associated with EPCRA section 313 reporting, they are
not required by this rulemaking. EPA has not included the costs or
benefits of associated state requirements along with the costs and
benefits of the rule, because it is inappropriate to do so. States
which have these requirements may wish to assess the benefits and costs
of applying them to new industries.
EPA has also established associated requirements for some
facilities applying for certain storm water permits under the NPDES
program. These NPDES storm water permit requirements are based on the
coverage of EPCRA section 313 at the time the permits were issued. The
NPDES requirements do not apply to industries or chemicals that are
added to the EPCRA section 313 list until the time of permit renewal
(which occurs every 5 years), and may not apply in subsequent permits,
depending on the Agency's decisions at the time those permits are
issued.
EPA has not estimated the aggregate costs of the associated
requirements for new facilities. It would also be inappropriate to
making a listing determination under EPCRA section 313 on the basis of
these NPDES requirements. There will be no impact at the current time,
because there will be no changes to the NPDES requirements while the
current permits are in effect. Moreover, the costs and benefits of the
special requirements are best considered when the NPDES storm water
permits are reissued, and a decision can be made on whether they should
be applied in subsequent permits.
F. Benefits
In enacting EPCRA and PPA, Congress recognized the significant
benefits of providing information on toxic chemical releases. TRI has
proven to be one of the most powerful forces in empowering the federal
government, state governments, industry, environmental groups and the
general public to fully participate in an informed dialogue about the
environmental impacts of toxic chemicals in the United States. TRI's
publicly available data base provides
[[Page 33611]]
quantitative information on toxic chemical releases, transfers,
recycling, and treatment. With the collection of this information
starting in 1987 came the ability for the public, government, and the
regulated community to understand the magnitude of chemical emissions
in the United States, and to assess the need to reduce these releases
and transfers. TRI enables all interested parties to establish credible
baselines, to set realistic goals for environmental progress over time,
and to measure progress in meeting these goals over time. The TRI
system has become a neutral yardstick by which progress can be measured
by all stakeholders.
The proposed rule to expand the number and type of reporting
facilities subject to TRI is intended to build upon the past success of
the program. The information reported to TRI increases knowledge of the
levels of toxic chemicals released to the environment and the pathways
of exposure, improving scientific understanding of the health and
environmental risks of toxic chemicals; allows the public to make
informed decisions on where to work and live; enhances the ability of
corporate leaders and purchasers to more accurately gauge a facility's
potential environmental liabilities; provides reporting facilities with
information on unregulated emissions that can be used to save money as
well as reduce emissions; and assists federal, state, and local
authorities in making better decisions on acceptable levels of toxics
in communities.
There are two types of benefits associated with TRI reporting --
direct and follow-on. The first type of benefit is direct, the pure
value of information on releases, transfers and other waste management
practices. It is expected that this rulemaking will generate benefits
by providing the public with access to information that otherwise would
not be available to them. The direct benefits of the rule itself
include improvements in access, understanding, awareness and decision-
making related to the provision and distribution of information.
The second types of benefit derive from changes in behavior that
result from the information reported to TRI. The changes in behavior,
including reductions in the releases and changes in the waste
management practices for toxic chemicals, yield health and
environmental benefits. These changes in behavior come at some cost to
industry, and the net benefits of the follow-on activities are the
difference between the benefits of decreased chemical releases and
transfers and the costs of the actions needed to achieve the decrease.
These follow-on activities, however, are not required by the rule.
Because the current state of knowledge about the economics of
information is not highly developed, EPA has not attempted to monetize
the pure information benefits of adding new industry groups to the list
of industries required to report to TRI. Furthermore, because of the
inherent uncertainty in the chain of events, EPA has also not attempted
to predict the changes in behavior that result from the information, or
the resultant net benefits (i.e., the difference between benefits and
costs). EPA does not believe that there are adequate methodologies to
make reasonable monetary estimates of either type of benefits.
Rather, EPA assessed the potential for the proposed rule to
generate benefits comparable to those generated by the currently
reporting industries by seeking data on certain characteristics of
releases and other waste management activities, specifically air
release data, which could be compared among the various sectors
currently subject to, and proposed for, addition to EPCRA section 313.
EPA analyzed release data collected under authority of the Clean
Air Act and maintained in the Aerometric Information Retrieval System
(AIRS). The analysis compared estimated air releases of toxic chemicals
from manufacturing facilities (currently subject to TRI reporting) to
those from facilities proposed for addition to EPCRA section 313. While
limitations in the data set and methodology did not permit estimates of
potential TRI releases to be developed, the analysis clearly indicated
that substantial volumes of TRI chemical releases will be captured by
expanding the coverage to include the additional industry groups being
proposed. EPA believes this evidence supports its preliminary
determination that the industry groups proposed for addition are likely
to generate useful information as part of the TRI program. The
experience of the past seven years shows that reporting on TRI by
manufacturing facilities has produced real gains in understanding about
exposure to toxic chemicals. EPA believes that reporting by the
industry groups being proposed for addition will yield similar
benefits.
X. References
1. D B. Standard Industrial Classification Manual SIC 2+2. Dun and
Bradstreet Information Services, (1988).
2. GAO/RCED. Report to Congress Toxic Chemicals: EPA's Toxic
Release Inventory Is Useful but Can Be Improved, Government Accounting
Office, Washington, DC, 91-121, (1991).
3. MADEP. Data Submitted by Non-Manufacturing Facilities in
Massachusetts in 1993. Massachusetts Department of Environmental
Protection, Boston, MA (1993).
4. OMB. Standard Industrial Classification Manual 1987. Executive
Office of the President, Office of Management and Budget, Washington,
DC, (1987).
5. SAIC. Data Analysis Documentation - All Systems (Draft). Science
Applications International Corporation, Falls Church, VA (1996).
6. SAIC. SIC Code Profile 10 Metal Mining (Draft). Science
Application International Corporation, Falls Church, VA (1996).
7. SAIC. SIC Code Profile 12 Coal Mining (Draft). Science
Application International Corporation, Falls Church, VA (1996).
8. SAIC. SIC Code Profile 49 Electric, Gas and Sanitary Services
(Draft). Science Application International Corporation, Falls Church,
VA (1996).
9. SAIC. SIC Code Profile 50-51 Wholesale Trade Durable and
Nondurable Goods (Draft). Science Application International
Corporation, Falls Church, VA (1996).
10. SAIC. SIC Code Profile 73 Business Services (Draft). Science
Application International Corporation, Falls Church, VA (1996).
11. U.S. Congress. Congressional Record, Senate Debate on Passage,
Vol. 131 (1985).
12. U.S. Congress. Congressional Record, Debate Prior to Passage of
House Bill, Vol. 132 (1985).
13. U.S. Congress, House of Representatives. Conference Report No.
962. 99th Cong., 2nd Session (1986).
14. USDOC. County Business Patterns 1993: United States. Department
of Commerce, Bureau of the Census, Washington, DC, BP-93-1 (1995).
15. USEPA/OAR. Report to Congress: Waste from Combustion of Coal by
Electric Utilities. U.S. Environmental Protection Agency, Washington,
DC (1988).
16. USEPA/OECA. Office of Compliance Sector Notebook Project:
Profile of the Metal Mining Industry. U.S. Environmental Protection
Agency, Washington, DC, 310-R-95008, (1995).
17. USEPA/OPPT. Additional Considerations in Selecting Industries
for Addition to EPCRA Section 313. U.S. Environmental Protection
Agency, Washington, DC (1986).
18. USEPA/OPPT. Appendix B: Routinely Reported Information -
Chemical Detail. U.S. Environmental Protection Agency, Washington, DC
(1996).
[[Page 33612]]
19. USEPA/OPPT. Development of SIC Code Candidates: Screening
Document. U.S. Environmental Protection Agency, Washington, DC (1996).
20. USEPA/OPPT. Economic Analysis of the Proposed Rule to Add
Certain Industries to EPCRA Section 313. U.S. Environmental Protection
Agency, Washington, DC (1996).
21. USEPA/OPPT. EPCRA Section 313 Otherwise Use Activities. U.S.
Environmental Protection Agency, Washington, DC (1986).
22. USEPA/OPPT. Toxic Chemical Release Inventory Reporting Form R
and Instructions (Revised 1995 Version). U.S. Environmental Protection
Agency, Washington, DC, 745-K-96-001, (1996).
23. USEPA/OSWER. Report to Congress: Wastes from the Extraction and
Beneficiation of Metallic Ores, Phosphate Rock, Asbestos, Overburden
from Uranium Mining, and Oil Shale. U.S. Environmental Protection
Agency, Washington, DC (1985).
XI. Regulatory Assessment Requirements
A. Executive Order 12866
Pursuant to Executive Order 12866 (58 FR 51735, October 4, 1993),
it has been determined that this is a ``significant regulatory action''
because the proposed action is likely to have an annual effect of $100
million or more. This action was submitted to OMB for review, and any
comments or changes made during that review have been documented in the
public record.
B. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.),
the Agency must consider whether a regulatory action will have a
significant adverse economic impact on a substantial number of small
entities. Section 605(b) requires the Agency to either certify that a
proposed regulatory action will not have such an impact or prepare an
initial regulatory flexibility analysis. EPA has prepared an Initial
Regulatory Flexibility Analysis (IRFA), which is included as part of
the economic analysis for the proposed rule (Ref. 20). The IRFA is
summarized below.
1. Methodology. In preparing the IRFA for this proposal, EPA has
defined small business as any firm having 10 to 49 employees, instead
of using the Small Business Administration's (SBA's) definition of 500
employees or less. Under the Regulatory Flexibility Act (RFA), agencies
have been authorized to develop and apply alternative definitions of
small business where appropriate and after providing the public with
notice of and an opportunity to comment on the alternative, in
consultation with the SBA. For TRI purposes, EPA adopted the
alternative definition of 10-to-49 employees in proposing and
promulgating the original TRI reporting rule in 1987-88 (see 52 FR
21166, 53 FR 4523 and accompanying regulatory impact analyses).
For today's proposal, EPA has applied the 10-to-49 employee
definition to maintain consistency in IRFA analyses across TRI
rulemakings. Nonetheless, the economic analysis prepared for the
proposal also includes alternative definitions of small entities,
consistent with the definition used by the Small Business
Administration (SBA). Economic impacts on small entities were
calculated assuming that all TRI reports are Form Rs (and not Toxic
Chemical Release Inventory Certification Statements), which yields a
conservative estimate of costs (i.e., it is likely to overestimate the
true impacts). Impacts were calculated in both the first year of
reporting and in subsequent years.
The Agency estimates that of the 6,400 facilities potentially
affected by the proposed rule, no more than 72 percent are small
entities. Thus, approximately 4,600 of the 6,400 facilities potentially
affected may need to file at least one report. However, approximately
15,000 small entities in the industry groups being proposed would not
have to file a report because they are expected to have less than 10
full-time employees, and thus would be exempt from the requirement to
file a report. The overwhelming majority of these entities are small
businesses as defined above (10 to 49 employees). A small number of
small entities are utilities owned by small governmental jurisdictions.
For purposes of this analysis, EPA has considered small entities by
industry sector, including governmentally-owned utilities together with
private utilities.
To assess the potential impacts on these small entities of
expanding the TRI program to additional industry groups, EPA first
conducted a preliminary screening analysis. The screening analysis used
compliance costs as a percentage of annual company sales to measure
potential impacts. This methodology was based on the premise that the
cost impact percentage is a good measure of a firm's ability to afford
the costs attributable to a regulatory change. For purposes of
screening small entity impacts, comparing compliance costs to revenues
provides a reasonable first-order indication of the magnitude of the
regulatory burden relative to a commonly available measure of a
company's business volume. Where regulatory costs represent a very
small fraction of a typical firm's revenue (for example, less than 1
percent), the financial impacts of the regulation are expected to be
minimal. EPA is currently in the process of considering how to define
the RFA statutory terms ``significant impact'' and ``substantial
number.'' Until EPA determines how best to define those terms, the
Agency has decided for this proposal to prepare an initial regulatory
flexibility analysis if compliance costs for a substantial number of
small entities would be greater than 1 percent of sales.
Detailed analyses of certain SIC codes were conducted when the
screening analysis indicated the proposed rule would cross the
analytical thresholds stated above for potentially affected industry
groups. The methodology for each respective detailed analysis was
tailored to reflect the unique characteristics of each industry group
examined.
Based on the screening analysis, and where appropriate on more
detailed analyses, EPA identified one group for which an initial
regulatory flexibility analysis would be justified, the chemical
wholesaling industry (SIC code 5169 - Chemicals Allied Products).
Because there are sufficient uncertainties regarding the impacts on
another industry, RCRA subtitle C hazardous waste facilities in SIC
code 4953, EPA is also requesting comment on the magnitude and
incidence of the impacts on this industry and the need for and
appropriateness of adopting regulatory alternatives like those
described for SIC code 5169. For all other potentially affected
industry groups, EPA found the likely impact of the proposed rule
either would be compliance costs less than 1 percent of sales or may
not affect a substantial number of small entities, or both.
Today's action describes the reporting and recordkeeping
requirements associated with the proposal. The professional skills
needed to comply with those requirements are the same as those required
to comply with current TRI reporting requirements. Those skills were
described in the regulatory flexibility analyses for the 1988 TRI
reporting rule and today's proposal.
2. SIC code 5169. Because facilities in SIC code 5169 are chemical
wholesalers, they handle large numbers of chemicals, including toxic
chemicals listed under EPCRA section 313. Facilities in this industry
are expected to report primarily due to mixing, blending, reformulating
and repackaging of EPCRA section 313 chemicals. EPA
[[Page 33613]]
estimates that about 10 percent of chemical wholesalers will be
required to submit reports and that reporting facilities will file
between 1 and 27 reports each. The actual number of reports per
facility will be distributed throughout this range. Based on the
revenue data for typical facilities, impacts above 1 percent are
predicted for facilities reporting the high number of reports in the
first year, and for small businesses reporting the high number of
reports in subsequent years. However, EPA believes that relatively few
businesses in this industry will file the high number of reports. The
compliance costs associated with EPCRA section 313 reporting could have
a potentially significant impact on the smaller and less financially
solvent companies in this industry. The majority of companies, however,
will not have to submit the maximum number of reports, and will face
lower costs.
3. Alternatives to reduce impacts on small businesses in SIC code
5169. Because of the potential for significant impacts on a substantial
number of facilities in SIC code 5169, EPA's economic analysis includes
a number of alternatives to reduce the impact on small businesses in
this industry. While the Agency could have elected not to propose the
addition of SIC code 5169, thereby avoiding any small business impacts
from this proposed rule to facilities in that group, the Agency has
chosen to include the industry group in the proposal. EPA believes that
reporting from this industry group will result in a significant amount
of new toxic chemical release information to the public, particularly
to communities in which these facilities are located. Moreover, the
activities of this industry--handling chemicals--and its involvement
with TRI chemicals are very similar to those of the manufacturing
universe already subject to TRI reporting.
The alternatives EPA analyzed to reduce the impact on small
businesses are described below.
Alternative 1. Expand eligibility for the alternate threshold (59
FR 61488, November 30, 1994) for facilities in SIC code 5169 by
increasing the annual reportable amount from 500 pounds and raising the
alternate manufacture, process and otherwise use threshold from 1
million pounds. Some small facilities in SIC 5169 with large numbers of
reports may still incur significant impacts to determine their
eligibility for the alternate threshold. EPCRA section 313(f)(2)
requires that any revision to the current reporting thresholds continue
to capture a substantial majority of total releases of each listed
chemical or chemical category. Because these facilities have not
reported under TRI in the past, the Agency may not have sufficient
information about releases (both types of chemicals and release levels)
with which to justify expanding the alternate threshold eligibility for
this industry group. In addition, because of the type of information
submitted on the Toxic Chemical Release Certification Statement, the
resulting data would be of more limited utility than the data that
would otherwise be reported on Form R.
Alternative 2. Allow facilities in SIC code 5169 an additional year
before they must begin reporting. EPA would use this time to perform
intensive outreach, training and technical assistance to industry. This
alternative would result in the loss of 1 year's worth of data, in
return for a relatively modest reduction in reporting burden.
Alternative 3. Require facilities in SIC code 5169 to report only
on air releases and off-site transfers. State data indicate that these
two routes account for nearly all of the releases and transfers from
facilities in SIC code 5169. Adopting this option would mean forfeiting
some information that is reported pursuant to EPCRA section 313 and all
additional information reported pursuant to the PPA section 6607. This
option, therefore, appears to be inconsistent with the existing
authorities and requirements under EPCRA section 313 and PPA section
6607. Further, to the extent that facilities in this industry actually
report only air releases and off-site transfers under the current
requirements, EPA has overestimated both compliance costs and small
business impacts in the standard analysis.
Alternative 4. Expand the range reporting option for facilities in
SIC code 5169 beyond the current 1,000 pound limit to a higher level
such as 2,000, 5,000 or 10,000 pounds. Adopting this alternative would
reduce the precision of the data in return for a relatively modest
reduction in reporting burden.
Alternative 5. Require facilities in SIC code 5169 to report on
their throughput for each chemical and on the types of processes and
equipment being used. EPA would then combine this information with
emission factors to develop release and transfer estimates. This
alternative would reduce the reporting burden, because facilities in
this industry are presumed to track their throughput and could readily
identify the activities and types of equipment used. However, the
resulting release data would be of reduced utility to the public,
because they would be based on average emission factors and would not
be specific to an individual facility. Finally, this option appears to
be inconsistent with the existing authorities and requirements under
EPCRA section 313 and PPA section 6607.
Alternative 6. Exempt small businesses in SIC 5169 from reporting.
The overwhelming majority of businesses in this industry are small;
however, it is anticipated that a significant portion of reported
releases would be from small businesses. Adopting this option could
lead to substantial gaps in information, especially at the community
level. Furthermore, only those small firms submitting a large number of
reports may face significant impacts. By contrast, this alternative
would substantially reduce the amount of information available without
targeting the relief to those particular facilities facing high impacts
(i.e., those submitting a large number of reports).
EPA is seeking comment on the alternatives to reduce impacts on
small facilities in SIC code 5169. EPA requests comment on whether any
of the alternatives would accomplish the stated objective of EPCRA
section 313 while minimizing a potential economic impact on small
entities.
4. RCRA Subtitle C Facilities in SIC Code 4953. The screening
analysis indicated that TRI reporting by facilities in SIC code 4953
may impose a compliance costs of more than one percent of sales on some
small facilities in this SIC code if EPA revises the guidance on
otherwise use to include disposal, stabilization, and treatment for
destruction. EPA is not highly confident of the accuracy of the
estimated number of reports per facility if the guidance on otherwise
use is revised, and believes that the current figure is an over-
estimate. Consequently, the actual number of reports submitted by
facilities in SIC code 4953 and the costs to prepare and submit them
may be considerably lower than estimated by the screening analysis.
Furthermore, relatively few of the facilities in this industry group
are small businesses according to the definition EPA has used to
develop this analysis (i.e., less than 50 employees). Recognizing this
uncertainty, EPA is particularly interested in comments and data
related to these issues. EPA will consider alternatives, similar to
those considered for SIC code 5169, if there is sufficient reason to
believe that requiring RCRA subtitle C facilities to report on TRI
would impose a significant burden on a substantial number of small
entities. EPA seeks comment on this issue.
[[Page 33614]]
5. Conclusions. EPA has determined that this regulatory action may
impose an adverse impact on small entities in SIC code 5169 (Chemicals
and Allied Products Wholesale). EPA currently has insufficient
information to determine the impact on affected RCRA subtitle C
facilities in SIC code 4953 that are small entities. This action would
not be expected to have a significant impact on a substantial number of
small entities in the remainder of the industries being proposed.
Information relating to this determination has been provided to the
Chief Counsel for Advocacy of the Small Business Administration, and is
included in the docket for this rulemaking. Any comments regarding the
economic impacts that this proposed regulatory action may impose on
small entities should be submitted to the Agency at the address listed
above.
C. Paperwork Reduction Act
The information collection requirements in this proposed rule, as
well as Form R have been submitted for approval to the Office of
Management and Budget (OMB) under the Paper Work Reduction Act, 44
U.S.C. 3501 et seq. An Information Collection Request (ICR) document
that covers the burden associated with today's proposal has been
prepared by EPA (ICR No. 1784.01) and a copy may be obtained from Sandy
Farmer, OPPE Regulatory Information Division; U.S. Environmental
Protection Agency (2136); 401 M St., S.W.; Washington, DC 20460, by
calling (202) 260-2740, or electronically by sending an e-mail message
to farmer.sandy@epamail.epa.gov.'' If necessary, EPA may be
augmenting the docket with additional information.
This information would be collected from industrial facilities in
local communities in order to provide basic information to those
communities and the general public, as well as the regulated community
and all levels of government, on releases and other waste management
practices involving listed toxic chemicals. Collection of this data
would further EPA's goal of enhancing community right-to-know.
Provision of this information would be mandatory, pursuant to EPCRA
section 313 (42 U.S.C. 11023) and PPA section 6607 (42 U.S.C. 13106).
Regulations codifying the EPCRA section 313 reporting requirements can
be found at 40 CFR part 372. Respondents may designate the specific
chemical identity of a substance as a trade secret, pursuant to EPCRA
section 322 (42 U.S.C. 11042). Regulations codifying the trade secret
provisions can be found at 40 CFR part 350. Currently, approximately
23,000 facilities report on TRI.
EPA's economic analysis includes burden and cost estimates for
specific compliance tasks under EPCRA section 313 (Ref. 20). Such tasks
include rule familiarization, completion of Form Rs and Toxic Chemical
Release Inventory Certification Statements and recordkeeping. Total
burden and cost can be calculated by combining these estimates with the
number of affected facilities and reports predicted. The five component
tasks are described below. The ICR submitted to OMB provides burden and
cost estimates for those facilities proposed for addition in today's
proposed rule.
1. Compliance determination. Facilities must determine whether they
meet the criteria for section 313 reporting. Costs attributed to making
this determination result from time required to become familiar with
the definitions, exemptions, and threshold requirements under the TRI
program, to review the list of EPCRA section 313 chemicals, and to
conduct preliminary threshold determinations in order to determine if
the facility would be required to report. These costs are also applied
to facilities that would not be required to report, but that would
incur some cost to ascertain that fact. Thus, the number of facilities
undertaking compliance determination activities exceeds the number of
reporting facilities.
2. Rule familiarization. Facilities that would be reporting under
section 313 for the first time must read the reporting package and
become familiar with the reporting requirements. This would involve
reading the instructions to the Toxic Chemical Release Inventory
Reporting Form R, and may also involve other activities such as
consulting EPA guidance documents. Costs for rule familiarization would
only be incurred in the first year after a facility becomes subject to
reporting, since in subsequent years the staff would be familiar with
the requirements that apply to their facility.
3. Calculations and report completion. Facilities that determine
they must report under section 313 would incur costs to retrieve,
process, review, and transcribe information to complete Form R.
Facilities qualifying for the alternate reporting threshold may file a
Toxic Chemical Release Inventory Certification Statement, a streamlined
form containing limited informational requirements, which is estimated
to require less burden and cost to complete than Form R. Report
completion costs would be somewhat higher in the first year of
reporting, relative to subsequent years. In many instances the process
in subsequent years would consist of updating data and modifying the
information reported on the previous year's report, rather than
originating or retrieving data for the first time.
4. Recordkeeping. Following completion of the appropriate report,
additional labor costs are incurred for record keeping, which would
allow a facility to use past information in making calculations in
subsequent years.
Table III lists the estimated average burden and cost for each of
the tasks in the first year of reporting. Table IV describes the
average burden and costs in subsequent years. Economies of scale for
facilities filing multiple reports have not been estimated. The time
estimates used by EPA are average values. As with any average, some
facilities will be above the average and others will be below it. EPA
recognizes that large, complex facilities may require more than the
average time to comply. However, there are many other facilities
subject to the rule that are not large or complex. These facilities
will often have a simpler compliance process. EPA believes that its
time estimates represent reasonable averages.
For Form R, the industry reporting burden for collecting this
information (including recordkeeping) is estimated to average 74 hours
per report in the first year, at a cost of $4,587. In subsequent years,
the burden is estimated to average 52.1 hours per report at a cost of
$3,023. For a Toxic Chemical Release Inventory Certification Statement,
the burden is estimated to average 49.4 hours per report in the first
year at a cost of $3,101. In subsequent years, the burden is estimated
to average 34.6 hours per report at a cost of $2,160.
These estimates include the time needed to review instruction;
search existing data sources; gather and maintain the data needed;
complete and review the collection of information; and transmit or
otherwise disclose the information. The actual burden to a specific
facility may deviate from this estimate depending on the complexity of
the facilitys operations and the profile of the releases at the
facility.
The proposed rule would result in an estimated 6,428 additional
respondents submitting an estimated total of an additional 33,463 Form
Rs and 4,251 Toxic Chemical Release Inventory Certification Statements.
This results in a total hour burden of 3.1 million hours in the first
year and 1.9 million hours in subsequent years, at a total cost of $191
million in the first year and $119 million in subsequent years.
Burden means the total time, effort, or financial resources
expended by persons
[[Page 33615]]
to generate, maintain, retain, or disclose or provide information to or
for a Federal agency. This includes the time needed to review
instructions; develop, acquire, install, and utilize technology and
systems for the purposes of collecting, validating, and verifying
information, processing and maintaining information, and disclosing and
providing information; adjust the existing ways to comply with any
previously applicable instructions and requirements; train personnel to
be able to respond to a collection of information; search data sources;
complete and review the collection of information; and transmit or
otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
Comments are requested on the Agency's need for this information,
the accuracy of the provided burden estimates, and any suggested
methods for minimizing respondent burden, including through the use of
automated collection techniques. Send comments on the ICR to the EPA at
the address provided above, with a copy to the Office of Information
and Regulatory Affairs, Office of Management and Budget, 725 17th St.,
N.W., Washington, DC 20503, marked ``Attention: Desk Officer for EPA.''
Please remember to include the ICR number in any correspondence.
The collection of information and other requirements under section
313 of EPCRA and section 6607 of the PPA on the Form R are covered
under OMB approval number 2070-0093, which was issued on May 14, 1992.
Although this approval normally would have expired on November 30,
1992, it remains in effect until further Agency action pursuant to the
1993 Department of Veterans Affairs and Housing and Urban Development
and Independent Agencies Appropriations Act, Pub. L. 102-389, signed
October 6, 1992, which states that:
Notwithstanding the Paperwork Reduction Act of 1980 or any
requirements thereunder the Environmental Protection Agency Toxic
Chemical Release Inventory TRI Form R and instructions, revised 1991
version issued May 19, 1992, and related requirements (OMB No. 2070-
0093), shall be effective for reporting under section 6607 of the
Pollution Prevention Act of 1990 (Public Law 101-508) and section
313 of the Superfund Amendments and Reauthorization Act of 1990
(Public Law 99-499) until such time as revisions are promulgated
pursuant to law.
Facilities subject to this proposed rule also would be eligible to
submit a certification statement under the Toxic Release Inventory
Certification Statement. The Office of Management and Budget (OMB) has
approved the information collection requirements for the Toxic Release
Inventory Certification Statement under the provisions of the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control
number 2070-0143 (EPA ICR No. 1704).
These ICR approvals for currently reporting facilities remains in
effect until further Agency action.
D. Unfunded Mandates Reform Act and Executive Order 12875 Unfunded
Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on state, local, and tribal
governments and the private sector. Under section 202 of UMRA, EPA must
generally prepare a written statement, including a cost-benefit
analysis for proposed and final rules with ``Federal mandates'' that
may result in expenditures by state, local, and tribal governments, in
the aggregate, or by the private sector, of $100 million or more in any
1 year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of UMRA generally requires EPA to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, most cost-effective, or least burdensome alternatives
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective, or least burdensome alternative if the
Administrator publishes with the final rule an explanation of why the
alternative was not adopted. Before EPA establishes any regulatory
requirements that significantly or uniquely affect small governments,
including tribal governments, it must have developed under section 203
of UMRA, a small government agency plan. The plan must provide for
notifying potentially affected small governments, enabling officials of
affected small governments to have meaningful and timely input into the
development of the regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
EPA has determined that this proposed rule is likely to contain a
Federal mandate that may result in expenditures of $100 million or more
for the private sector in any 1 year. EPA has prepared, under section
202 of the UMRA, a written statement, entitled ``Unfunded Mandates
Reform Act Statement on Federal Mandate Imposed by the Expansion of the
Toxic Release Inventory to Include Certain Non-Manufacturing
Industries.'' This document is available in the docket for this
rulemaking.
EPA is proposing this rule under sections 313 and 328 of EPCRA. EPA
estimates that private expenditures will exceed the threshold of $100
million in all years and that public expenditures will fall well below
the threshold for all years. EPA prepared an economic impact analysis
of the proposal, entitled Economic Analysis of the Proposed Rule to Add
Certain Industries to EPCRA Section 313, in which it considered several
regulatory alternatives (Ref. 20). EPA estimates that the costs of the
proposed rule will be $190 million in the first year and $118 million
in subsequent years. Of this, only $8 million in the first year and $5
million in subsequent years is expected to consist of costs to state,
local, or tribal governments. These cost estimates are based on the
anticipated reporting from publicly-owned electric utilities that are
coal- or oil-fired.
EPA estimates that the proposed regulation is highly unlikely to
have any measurable effect on the national economy, nor is it expected
to have disproportionate budgetary effects on a particular segment of
the private sector. EPA has not identified any sources that are
available from either EPA or other Federal Agencies to pay for State,
local, or tribal government costs, nor has it identified any EPA or
Federal resources specifically intended to carry out the
intergovernmental mandate.
Section 203 of UMRA provides that before establishing any
regulatory requirements that might significantly or uniquely affect
small governments, the agency shall develop a small government agency
plan. Because costs to the public sector are estimated to be
considerably below $100 million in any year, EPA finds no significant
impacts on small governments; nor is the proposed rule expected to
uniquely affect them.
Because this proposed rule does not contain a significant Federal
intergovernmental mandate, the UMRA section 204 requirements are not
triggered. The Agency, however, has sought interaction with state and
local officials of the type contemplated by
[[Page 33616]]
section 204 of UMRA and Executive Order 12875, ``Enhancing the
Intergovernmental Partnership.'' EPA has conducted outreach to
organizations representing these entities, and will continue a
constructive dialogue to ensure that pertinent issues are addressed.
E. Executive Order 12898
Pursuant to Executive Order 12898 (59 FR 7629, February 11, 1994),
entitled Federal Actions to Address Environmental Justice in Minority
Populations and Low-Income Populations, the Agency has considered
environmental justice-related issues with regard to the potential
impacts of this proposed action on the environmental and health
conditions in low-income populations and minority populations.
In keeping with Executive Order 12898, as part of its analysis in
support of this proposed expansion of the TRI program to include new
industry groups, EPA has examined the distribution patterns of public
information on toxic chemical releases and transfers (which may have
substantial environmental impacts on surrounding communities). The
Agency believes that the Environmental Justice Analysis described below
is an important part of its overall environmental justice strategy, and
is in keeping with the spirit of the Executive Order. The Agency
interprets its responsibilities under the Order as they would apply to
this rulemaking activity to include exploring the distribution of
information benefits, in demographic terms, of the expansion.
To assess the implications of the rulemaking on environmental
justice, the Agency examined demographic characteristics for
populations residing in jurisdictions (counties or zip codes) where
facilities in the proposed industries are located. The analysis is
included as part of the economic analysis for the proposal (Ref. 20).
The analysis found that households with annual incomes less than
$15,000 and minority and urban populations are slightly over-
represented in communities containing facilities in the proposed
industry groups. The TRI expansion would also result in persons in a
large number of communities receiving TRI information about facilities
in their vicinity for the first time. By adding the proposed industry
groups, EPA will be creating informational benefits for certain
subpopulations that previously did not receive TRI information on
releases and transfers of toxic chemicals in their communities.
Table 1.--Summary of Regulatory Alternatives
----------------------------------------------------------------------------------------------------------------
Annual Industry Costs ($ million per year)
---------------------------------------------------------------------------
Regulatory Alternative Number of
Reporting Number of Reports First Year Subsequent Year
Facilities
----------------------------------------------------------------------------------------------------------------
I.A Comprehensive industries,
current otherwise use
interpretation..................... 49,174 110,217 793 349
I.B Comprehensive industries,
revised otherwise use
interpretation..................... 52,378 249,063 1,437 794
II.A Limited industries, current
otherwise use interpretation....... 8,354 37,077 176 116
II.B Limited industries, revised
otherwise use interpretation....... 8,385 43,637 206 137
III.A Proposed industries, current
otherwise use interpretation....... 6,397 31,154 149 98
III.B Proposed industries, revised
otherwise use interpretation....... 6,428 37,714 191 119
IV.A Comprehensive industries,
current otherwise use
interpretation, limited mining
reporting.......................... 49,127 109,695 791 347
IV.B Comprehensive industries,
current otherwise use
interpretation, expanded mining
reporting.......................... 50,602 120,905 846 383
V. Comprehensive industries, current
otherwise use interpretation,
expanded electric utility reporting 49,174 116,833 821 368
----------------------------------------------------------------------------------------------------------------
Table 2.--Summary of Reporting for Proposed Industries
--------------------------------------------------------------------------------------------------------------------------------------------------------
Percent of Industry Costs ($ million per year)
Number of Number of Facilities in Annual Number of -------------------------------------
Industry Facilities in Reporting Industry Reports
Industry Facilities Reporting First Year Subsequent Years
--------------------------------------------------------------------------------------------------------------------------------------------------------
Metal Mining.......................... 1,060 328 31% 1,176 6.5 3.8
Coal Mining........................... 3,312 321 10% 642 5.4 2.5
Electric Utilities.................... 3,213 974 30% 5,567 26.6 16.6
Hazardous Waste Treatment Disposal
Facilities........................... 164 164 100% 6,711 31.2 21.5
Chemicals & Allied Products Wholesale. 9,014 782 9% 11,139 51.5 33.5
Petroleum Bulk Stations & Terminals
Wholesale............................ 10,292 3,842 37% 12,394 69.3 40.7
Solvent Recovery Services............. 40 17 43% 85 0.4 0.3
Total................................. 28,021 6,428 23% 37,714 191.1 118.8
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 33617]]
Table 3.--First Year Burden and Cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
Average Time (hours)
Activity --------------------------------------------------------------------------- Average Cost
Managerial Technical Clerical
--------------------------------------------------------------------------------------------------------------------------------------------------------
Rule Familiarization........................ 12.0 22.5 0.0 $2,243 per facility
Compliance Determination.................... 4.0 12.0 0.0 $1,010 per facility
--------------------------------------------------------------------------------------------------------------------------------------------------------
Form R Calculations and Completion.......... 20.9 45.2 2.9 $4,330 per report
Certification Calculations and Completion... 16.5 27.7 2.2 $2,947 per report
Recordkeeping (Form R)...................... 0.0 4.0 1.0 $257 per report
Recordkeeping (Certification)............... 0.0 2.4 0.6 $154 per report
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 33618]]
Table 4.--Subsequent Year Burden and Costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Average Time (hours)
Activity --------------------------------------------------------------------------- Average Cost
Managerial Technical Clerical
--------------------------------------------------------------------------------------------------------------------------------------------------------
Compliance Determination............................ 1.0 3.0 0.0 $252 per facility
--------------------------------------------------------------------------------------------------------------------------------------------------------
Form R Calculations and Completion.................. 14.3 30.8 2.0 $2,946 per report
Certification Calculations and Completion........... 11.2 18.9 1.5 $2,006 per report
Recordkeeping (Form R).............................. 0.0 4.0 1.0 $257 per report
Recordkeeping (Certification)....................... 0.0 2.4 0.6 $154 per report
--------------------------------------------------------------------------------------------------------------------------------------------------------
List of Subjects in 40 CFR Part 372
Environmental protection, Community right-to-know, Reporting and
recordkeeping requirements, Toxic Chemicals.
Dated: June 21, 1996.
Carol M. Browner,
Administrator.
Therefore, it is proposed that 40 CFR part 372 be amended to read
as follows:
PART 372--[AMENDED]
1. The authority citation for part 372 would continue to read as
follows:
Authority: 42 U.S.C. 11013 and 11028.
2. In Sec. 372.3, by alphabetically adding the following
definitions to read as follows:
Sec. 372.3 Definitions.
* * * * *
Extraction means the physical removal or exposure of ore, coal,
minerals, waste rock, or overburden prior to beneficiation, and
encompasses all extraction-related activities prior to beneficiation.
Extraction does not include beneficiation, coal preparation, mineral
processing, in situ leaching or any further activities.
* * * * *
Treatment for destruction means the destruction of the toxic
chemical such that the substance is no longer a toxic chemical subject
to reporting under EPCRA section 313.
3. In Sec. 372.22, by revising paragraph (b) to read as follows:
Sec. 372.22 Covered facilities for toxic chemical release reporting.
* * * * *
(a) * * *
(b) The facility is in Standard Industrial Classification major
group codes 10 (except 1081), 12 (except 1241), and 20 through 39 and
industry codes 4911 (limited to facilities that combust coal and/or
oil), 4931 (limited to facilities that combust coal and/or oil), 4939
(limited to facilities that combust coal and/or oil), 4953 (limited to
facilities regulated under the Resource Conservation and Recovery Act,
subtitle C, 42 U.S.C. section 6921 et seq.), 5169, 5171, and 7389
(limited to facilities primarily engaged in solvents recovery services
on a contract fee basis) (as in effect on January 1, 1987) by virtue of
the fact that it meets one of the following criteria:
(1) The facility is an establishment with primary SIC major group
codes 10 (except 1081), 12 (except 1241), and 20 through 39 and
industry codes 4911 (limited to facilities that combust coal and/or
oil), 4931 (limited to facilities that combust coal and/or oil), 4939
(limited to facilities that combust coal and/or oil), 4953 (limited to
facilities regulated under the Resource Conservation and Recovery Act,
subtitle C, 42 U.S.C. section 6921 et seq.), 5169, 5171, and 7389
(limited to facilities primarily engaged in solvents recovery services
on a contract fee basis).
(2) The facility is a multi-establishment complex where all
establishments have major codes 10 (except 1081), 12 (except 1241), and
20 through 39 and industry codes 4911 (limited to facilities that
combust coal and/or oil), 4931 (limited to facilities that combust coal
and/or oil), 4939 (limited to facilities that combust coal and/or oil),
4953 (limited to facilities regulated under the Resource Conservation
and Recovery Act, subtitle C, 42 U.S.C. section 6921 et seq.), 5169,
5171, and 7389 (limited to facilities primarily engaged in solvent
recovery services on a contract fee basis).
(3) The facility is a multi-establishment complex in which one of
the following is true:
(i) The sum of the value of products shipped and/or produced from
those establishments that have a primary major code 10 (except 1081),
12 (except 1241), and 20 through 39 and industry codes 4911 (limited to
facilities that combust coal and/or oil), 4931 (limited to facilities
that combust coal and/or oil), 4939 (limited to facilities that combust
coal and/or oil), 4953 (limited to facilities regulated under the
Resource Conservation and Recovery Act, subtitle C, 42 U.S.C. section
6921 et seq.), 5169, 5171, and 7389 (limited to facilities primarily
engaged in solvent recovery services on a contract fee basis) is
greater than 50 percent of the total value of all products shipped and/
or produced from all establishments at the facility.
(ii) One establishment having primary major codes 10 (except 1081),
12 (except 1241), and 20 through 39 and industry codes 4911 (limited to
facilities that combust coal and/or oil), 4931 (limited to facilities
that combust coal and/or oil), 4939 (limited to facilities that combust
coal and/or oil), 4953 (limited to facilities regulated under the
Resource Conservation and Recovery Act, subtitle C, 42 U.S.C. section
6921 et seq.), 5169, 5171, and 7389 (limited to facilities primarily
engaged in solvent recovery services on a contract fee basis)
contributes more in terms of value of products shipped and/or produced
than any other establishment within the facility.
* * * * *
4. In Sec. 372.38, by adding paragraph (g) to read as follows:
Sec. 372.38 Exemptions
* * * * *
(g) Coal extraction activities. If a toxic chemical is
manufactured, processed, or otherwise used in extraction in SIC code
12, a person is not required to consider the quantity so manufactured,
processed, or otherwise used when determining whether an applicable
threshold has been met under Sec. 372.25 or 372.27, or determining the
amounts to be reported under Sec. 372.30.
[FR Doc. 96-16392 Filed 6-26-96; 8:45 am]
BILLING CODE 6560-50-F
