E6-14849. Reportable Quantity Adjustment for Isophorone Diisocyanate

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is taking direct final action to adjust the reportable quantity (RQ) for Isophorone Diisocyanate (IPDI). Reportable quantities for many Extremely Hazardous Substances (EHS) under the Emergency Planning and Community Right-to-Know Act (EPCRA) were adjusted to their threshold planning quantities (TPQ) in a final rule on May 7, 1996. On September 8, 2003, EPA modified the TPQ for IPDI to 500 pounds.

However, EPA inadvertently omitted an RQ adjustment for this substance. Therefore, EPA is now adjusting the RQ for IPDI to be 500 pounds.

DATES:

This final rule is effective on November 13, 2006, unless EPA receives adverse comments by October 11, 2006. If adverse comment is received, EPA will publish a timely withdrawal of this direct final rule in the Federal Register informing the public that the rule will not take effect.

ADDRESSES:

EPA has established a docket for this action under Docket ID No. EPA-HQ-SFUND-2005-0520. All documents in the docket are listed on the www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy at the Superfund Docket, EPA/DC, EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is [phone], and the telephone number for the Superfund Docket is [phone]. Note: The EPA Docket Center suffered damage due to flooding during the last week of June 2006. The Docket Center is continuing to operate. However, during the cleanup, there will be temporary changes to Docket Center telephone numbers, addresses, and hours of operation for people who wish to make hand deliveries or visit the Public Reading Room to view documents. Consult EPA's Federal Register notice at 71 FR 38147 (July 5, 2006) or the EPA Web site at http://www.epa.gov/​epahome/​dockets.htm for current information on docket operations, locations and telephone numbers. The Docket Center's mailing address for U.S. mail and the procedure for submitting comments to www.regulations.gov are not affected by the flooding and will remain the same.

FOR FURTHER INFORMATION CONTACT:

Sicy Jacob, Office of Emergency Management, 5104A, Environmental Protection Agency, 1200 Pennsylvania Avenue NW.; telephone number: [phone]; fax number: [phone]; e-mail address: [e-mail].

SUPPLEMENTARY INFORMATION:

EPA is publishing this rule without prior proposal because we view the RQ adjustment for IPDI as non-controversial. We anticipate no adverse comments since this adjustment is consistent with the approach we used in the May 7, 1996 final rule for setting RQs for other EHSs. We believe conforming the RQ to the TPQ will have no impact on human health and the environment since the TPQ methodology as explained in both the interim final rule (November 17, 1986, 51 FR 41570) and the final rule (April 22, 1987, 52 FR 13378) is based on the possibility of harm from release.

This direct final rule will be effective on November 13, 2006 without further notice, unless we receive adverse comment by October 11, 2006. In the “Proposed Rules” section of today's Federal Register publication, we are publishing a separate document that will serve as the proposal to adjust the RQ for IPDI, if adverse comments are filed. If EPA receives adverse comment on this chemical-specific RQ adjustment, we will publish a timely withdrawal in the federal Register and will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting on this action must do so at this time.

I. What Is the Authority for This Action?

Section 328 of the Emergency Planning and Community Right-to-Know Act (EPCRA) of 1986 authorizes the Administrator to issue regulations to carry out the statute, including EPCRA section 304.

II. What Is the General Background for This Action?

The Emergency Planning and Community Right-to-Know Act (EPCRA) was established to encourage state and local planning and preparedness for spills or releases of Extremely Hazardous Substances (EHSs) and to provide the public and local governments with information concerning chemical releases and the potential chemical risks in their communities. EPCRA contains provisions requiring facilities to report the presence, use and releases of EHSs (described in sections 302 and 304) and hazardous and toxic chemicals (described in sections 311, 312, and 313 respectively). The implementing regulations for these statutory requirements are codified in 40 CFR parts 355, 370 and 372.

Section 302 of EPCRA directs EPA to publish the list of EHSs and their threshold planning quantities (TPQs). EPA published a final rule with the list of EHSs and their TPQs on April 22, 1987 (52 FR 13378). The list of EHS is defined in section 302(a)(2) as the “list of substances published in November, 1985 by the Administrator in Appendix A of the Chemical Emergency Preparedness Program Interim Guidance.” This list was established by EPA to identity chemical substances which could cause serious irreversible health effects from accidental releases (52 FR 13378). Under section 302, a facility which has present an EHS in excess of its TPQ must notify its state emergency response commission (SERC) and work with the local emergency planning committee (LEPC) on emergency planning activities.

Section 304 of EPCRA requires immediate reporting of certain releases of EHSs and hazardous substances listed under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to SERCs and LEPCs, similar to the release reporting provisions of CERCLA section 103. A facility is required to notify the SERC and the LEPC if the release of an EHS or hazardous substance occurs at or above the reportable quantity (RQ). In the 1987 Federal Register notice, EPA also published the RQs for EHSs. Many of the EHSs are also listed as CERCLA hazardous substances and their RQs are established under CERCLA.

CERCLA section 103 requires facilities to notify the national response center of any release of a hazardous substance in an amount equal to or in excess of its RQ. EPCRA section 304 notification is in addition to the CERCLA section 103 notification. Although similar, the purpose of both reporting requirements is somewhat different. Information derived from CERCLA section 103 can be used for Federal planning and coordination of response entities and for federal contingency plans. EPCRA reporting generally is designed to enhance local and state emergency response capability to protect the public in the event of dangerous chemical releases. The potential hazards posed by EHSs make state and local notification critical to effective and timely emergency response in the community.

EPCRA section 304(a) provides that chemicals on the EHS list which do not have an RQ assigned to them by regulation will have a reportable quantity of l pound. Certain EHSs (i.e., those that are not also CERCLA hazardous substances with RQs assigned under CERCLA) were assigned the statutory RQ of one pound in the April, 1987 final rule. On August 30, 1989 (54 FR 35988), EPA proposed to revise the RQs for these EHSs. In a final rule published on May 7, 1996, (61 FR 20473), EPA raised the statutory reportable quantities for these EHSs, assigning the RQ for each hazardous substance to be the same as their TPQs.

In the May, 1996 final rule, EPA used the TPQ methodology to adjust the RQs (see 61 FR 20473). As explained in that rulemaking, the Agency believes EHS RQs should be based on a hazardous substance's potential for immediate effects; this approach reflects the fact that EPCRA reporting of EHS releases is required because EHSs are acutely toxic and can potentially pose an immediate hazard upon release. The TPQ methodology, designed specifically for EHSs, is based on such effects, utilizing a “level of concern” based upon short-term exposure concentrations that could lead to serious irreversible health effects. Where the TPQ for an EHS (that is not a CERCLA hazardous substance) represents a quantity that could cause serious health consequences if an accident were to occur with that quantity, the Agency believes it is appropriate to set the RQs for that EHS using a consistent risk-based approach. In this manner, the Agency can harmonize EHS reporting requirements for purposes of EPCRA section 302 (using TPQs) and EPCRA section 304 (using RQs).

III. What Is the Revision in This Action?

On September 8, 2003 (68 FR 52978), EPA modified the TPQ for Isophorone Diisocyanate (IPDI) (CAS No. 4098-71-9) to 500 pounds. IPDI was one of the EHSs RQ that was adjusted using the TPQ methodology. When the TPQ for IPDI was modified in September 2003, EPA inadvertently did not make a corresponding RQ adjustment for IPDI. Currently, the RQ for this chemical is set at 100 pounds.

The RQ should have been changed to be consistent with the adjusted TPQ, which is 500 pounds. Therefore, consistent with the approach described in the May, 1996 final rule, EPA is amending the rules to ensure the RQ for this chemical is the same as its TPQ.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

This action is not a “significant regulatory action” under the terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the EO.

B. Paperwork Reduction Act

This action does not impose any new information collection burden. Rather, it reduces burden on those facilities that may have an accidental release of this chemical below 500 pounds. OMB has previously approved the information collection requirements contained in the existing regulations, 40 CFR part 355, under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control number 2050-0092, EPA ICR No. 1395.06. A copy of the OMB approved Information Collection Request (ICR) may be obtained from Susan Auby, Collection Strategies Division; U. S. Environmental Protection Agency (2822T); 1200 Pennsylvania Avenue., NW., Washington, DC 20460 or by calling [phone].

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a 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 in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of today's rule on small entities, a small entity is defined by the Small Business Administration by category of business using North American Industrial Classification System (NAICS) and codified at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of today's direct final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the rule on small entities.” 5 U.S.C. 603 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule.

This action does not have any significant economic impact on small entities. This action is intended to reduce burden on facilities that may have an accidental release of Isophorone Diisocyanate below 500 pounds. We have therefore concluded that today's direct final rule will relieve regulatory burden for all affected small entities.

D. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year.

Before promulgating an EPA rule for which a written statement is needed, section 205 of UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law.

Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted.

Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

EPA has determined that this action contains no regulatory requirements that might significantly or uniquely affect small governments. As explained above, this action would reduce burden on those facilities that may have accidental releases of Isophorone Diisocyanate in small quantities. Therefore, we have determined that today's rule is not subject to the requirements of sections 202, 203 or 205 of UMRA.

E. Executive Order 13132: Federalism

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

This action does not have federalism implications. It would not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This action would not preempt State law or regulations. Thus, Executive Order 13132 does not apply to this rule.

F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249), November 9, 2000, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This action does not have tribal implications, as specified in Executive Order 13175.

This action is intended to reduce burden on regulated entities that may have releases of this chemical in small quantities. Thus, Executive Order 13175 does not apply to this rule.

G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks

Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866; and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children.

H. Executive Order 13211: Actions that Significantly Affect Energy Supply, Distribution, or Use

This action is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

I. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards such as materials specifications, test methods, sampling procedures, and business practices that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

This action does not involve technical standards. Therefore, NTTAA does not apply.

J. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 355

• Environmental Protection
• Chemicals
• Hazardous Substances
• Extremely Hazardous Substances
• Reportable Quantities

Dated: August 31, 2006.

Stephen L. Johnson,

Administrator.

For the reasons set out in the preamble, part 355 of title 40 of the Code of Federal Regulations is amended as follows:

PART 355—EMERGENCY PLANNING AND NOTIFICATION

1. The authority citation for part 355 continues to read as follows:

Authority: 42 U.S.C. 11002, 11004, and 11048.

Appendix A—[Amended]

2. In Appendix A, the table is amended by revising the entry for CAS No.“4098-71-9” (chemical name—Isophorone Diisocyanate) to read as follows:

Appendix A to Part 355—The List of Extremely Hazardous Substances and Their Threshold Planning Quantities

[Alphabetical Order]

CAS No.	Chemical name	Notes	Reportable quantity (pounds)	Threshold planning quantity (pounds)
*         *         *         *         *         *         *
4098-71-9	Isophorone Diisocyanate		500	500
*         *         *         *         *         *         *

3. In Appendix B, the table is amended by revising the entry for CAS No. “4098-71-9” (chemical name—Isophorone Diisocyanate) to read as follows:

Appendix B to Part 355—The List of Extremely Hazardous Substances and Their Threshold Planning Quantities

[CAS No. Order]

CAS No.	Chemical name	Notes	Reportable quantity (pounds)	Threshold planning quantity (pounds)
*         *         *         *         *         *         *
4098-71-9	Isophorone Diisocyanate		500	500
*         *         *         *         *         *         *