[Federal Register Volume 62, Number 84 (Thursday, May 1, 1997)]
[Rules and Regulations]
[Pages 23834-23892]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-11154]
[[Page 23833]]
_______________________________________________________________________
Part II
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 372
Addition of Facilities in Certain Industry Sectors; Revised
Interpretation of Otherwise Use; Toxic Release Inventory Reporting;
Community Right-to-Know; Final Rule
Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules
and Regulations
[[Page 23834]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 372
[OPPTS-400104D; FRL-5578-3]
RIN 2070-AC71
Addition of Facilities in Certain Industry Sectors; Revised
Interpretation of Otherwise Use; Toxic Release Inventory Reporting;
Community Right-to-Know
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is adding seven industry groups to the list of facilities
subject to the reporting requirements of 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 terminals and plants-wholesale, and solvent recovery
services. EPA believes that the addition of these industry groups to
the EPCRA section 313 list will significantly enhance the public's
knowledge about releases, transfers, and other waste management of
toxic chemicals. EPA is taking this action pursuant to its authority to
add to the list those facilities that meet the standard of EPCRA
section 313(b)(1)(B). Reporting for facilities within these industry
groups will be effective beginning with the 1998 reporting year. The
first reports from the added facilities must be submitted to EPA and
the States by July 1, 1999. EPA is also revising its interpretation of
the threshold activity, ``otherwise use'' and this interpretation is
reflected in the revised definition. This change is effective beginning
with the 1998 reporting year. The first reports from any covered
facilities using the revised interpretation must be submitted on or
before July 1, 1999. Finally, EPA is announcing it will initiate an
intensive stakeholder process to comprehensively evaluate the current
reporting forms and reporting practices.
EFFECTIVE DATE: This rule is effective December 31, 1997, for the
reporting year beginning on January 1, 1998.
FOR FURTHER INFORMATION CONTACT: Tim Crawford at 202-260-1715, e-mail:
crawford.tim@epamail.epa.gov for specific information regarding this
final rule. For further information on EPCRA section 313, contact the
Emergency Planning and Community Right-to-Know Information 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: 1-800-553-7672.
SUPPLEMENTARY INFORMATION:
I. Introduction
A. Regulated Entities
Entities regulated by this final action are those facilities within
the Standard Industrial Classification (SIC) codes being added by this
rule and certain facilities in SIC codes 20 through 39, 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. 13106. 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 terminals
and plants-wholesale,
Solvent recovery services,
Manufacturing.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be regulated by this action. Other types of entities
not listed in the table could also be regulated. To determine whether
your facility is regulated by this action, you should carefully examine
this final rule and the applicability criteria in part 372 subpart B of
Title 40 of the Code of Federal Regulations.
B. Statutory Authority
This final rule is issued under sections 313(b) and 328 of EPCRA,
42 U.S.C. 11023(b) and 11048. EPCRA is also referred to as Title III of
the Superfund Amendments and Reauthorization Act of 1986 (SARA) (Pub.
L. 99-499).
Section 313 of EPCRA requires certain facilities manufacturing,
processing, or otherwise using listed toxic chemicals to report certain
facility-specific information about such chemicals, including the
annual quantities of the chemicals entering each environmental medium.
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 Pollution Prevention Act (PPA), 42 U.S.C 13106.
The information reported under section 313 of EPCRA and section 6607 of
PPA provides the input for a publicly available data base, the Toxics
Release Inventory (TRI). Section 313(b)(1)(A) specifically applied
these reporting requirements to owners and operators of facilities that
have 10 or more full time employees (FTEs) and that are in 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
final rule is to expand the universe of facilities that are subject to
reporting under EPCRA section 313 and PPA section 6607.
II. Background of this Rulemaking
A. General Background
On June 27, 1996 (61 FR 33588) (FRL-5379-3), EPA issued a proposal
in the Federal Register to add seven industry groups to the list of
facilities subject to the reporting requirements of section 313 of
EPCRA and section 6607 of PPA (hereafter collectively referred to as
``EPCRA section 313 reporting requirements''). Those industry groups
are metal mining, coal mining, electric utilities, commercial hazardous
waste treatment, chemicals and allied products-wholesale, petroleum
bulk plants and terminals-wholesale, and solvent recovery services. As
discussed in the proposed rule (at 61 FR 33592), Congress gave EPA
clear authority to expand TRI, both in terms of the chemicals reported
and the facilities required to report. The initial list of chemicals
and facilities identified in the original legislation was meant as a
starting point. Congress recognized that the TRI program would need to
evolve to meet the information needs of a better informed public and to
fill information gaps that would become more apparent over time. The
information EPA is seeking to provide to the public through this action
is generally unavailable at present. While many of these non-
manufacturing facilities may be subject to various reporting
requirements at the Federal, State, and local levels, none of these
reporting systems are comparable to TRI.
EPA first announced its intention to consider the expansion of TRI
to include facilities in additional industry groups at a public meeting
held on May
[[Page 23835]]
29, 1992 (57 FR 19126). EPA's initiative to expand the coverage of TRI
to include additional industry groups was undertaken to more completely
account for the use, management, and disposition of EPCRA section 313
toxic chemicals 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 and health consequences of toxic
chemical releases and other waste management activities. EPA's proposal
was intended to address this issue. The industry groups being finalized
today are responsible for the ``manufacture,'' ``process,'' ``otherwise
use,'' release and other waste management of substantial quantities of
EPCRA section 313 chemicals, and are engaged in activities similar to
or related to activities conducted at facilities within the
manufacturing sector that currently report.
B. Outreach
Prior to the proposed rule, EPA engaged in a significant and
comprehensive outreach effort. This outreach served to inform
interested parties, including industry groups under consideration,
state regulatory officials, environmental organizations, labor unions,
community groups, and the general public of EPA's intention to propose
adding industry groups to the EPCRA section 313 list. The outreach
effort also allowed EPA to gather additional information that assisted
in the development of the proposed rule. EPA held two formal public
meetings in 1992 and 1995 prior to the proposed rule (57 FR 19126 and
60 FR 21190), and held three public meetings during the comment period
for the proposal (61 FR 33619 and 61 FR 40637). In addition, EPA used
the regularly-held public meetings of the Forum on State and Tribal
Toxics Action (FOSTTA), which represents state environmental agencies,
and the National Advisory Council on Environmental Policy and
Technology, which includes members from industry, environmental
organizations, states, and academia, to discuss the expansion of EPCRA
section 313 reporting requirements to new industry groups.
EPA used a number of other approaches to gather and share
information regarding the expansion of EPCRA section 313 reporting
requirements prior to publication of its proposal. Beginning in 1994,
EPA held a considerable number of meetings with interested parties
regarding this initiative, including what were referred to as ``focus
group meetings,'' and routinely met with interested parties. EPA also
provided considerable information regarding its intentions to expand
EPCRA section 313 reporting requirements through the annual TRI Data
Release, notices in the Federal Register, public statements by EPA
officials, media coverage, data and analytical analyses provided to
industry, and significantly, a Presidential address on August 8, 1995,
that set out very clearly the Administration's commitment to the
expansion of community right-to-know. EPA received substantial public
comment prior to the proposal, and considered these comments in its
deliberations to develop the proposal. Additional information regarding
EPA's outreach may be found at Unit II.B. of the proposal (61 FR 33590)
and in supporting documents included in the Public Docket.
C. Development of Industry Group Candidates
Prior to the proposed rule, EPA designed and executed a screening
process intended to identify those industry groups potentially most
relevant to the purposes of EPCRA section 313. EPA began its screening
process by analyzing what limited chemical use, release and waste
management information was already available for those industries. EPA
reviewed several existing EPA data systems, including the Aerometric
Information Retreival System (AIRS), the Biennial Report System (BRS),
and the Permit Compliance System (PCS). The initial screening activity
ranked industries at the 2-digit SIC code level by the volume of EPCRA
section 313 chemicals identified in these systems which could be
estimated for each of the data reporting systems (see 61 FR 33591).
Those 2-digit SIC codes that made up 99 percent of the matched EPCRA
section 313 chemical release volumes 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 for further consideration.
The Tier I list represented an extremely large number of diverse
individual industries. EPA collected and compiled information detailing
the specific activities conducted by facilities within each of the 2-
digit SIC codes, identified on the Tier I list with emphasis on those
activities that may involve section 313 chemicals. This industry-
specific information for each 2-digit SIC code, as well as chemical-
specific data were integrated into documents referred to as ``industry
profiles.'' The next phase in the screening process compared the types
of activities they perform to the EPCRA section 313 threshold
activities and the services these industry groups provide to the
manufacturing sector. To further refine the analysis, EPA collected and
assessed data reported in EPA data systems at the more specific 4-digit
SIC code level. These data were then incorporated into a ranking model
that allowed the analysis of large volumes of information, further
increasing the level of specificity and detail of this analysis. The
last stage in the screening process overlayed regulatory definitions,
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 EPCRA section 313 reporting
would be expected to occur for these ``candidate industry groups.''
Additional detail regarding the screening process is provided in Unit
II.C. of the proposal (see 61 FR 33591).
EPA did not include certain industry groups for consideration in
the proposal based on a number of unresolved issues, which were
referred to as ``additional considerations'' in the proposal. Among
these issues included significant intergovernmental impacts; economic
considerations; non-listed primary chemical association (i.e.,
questions remain regarding the industry's routine involvement with
EPCRA section 313 listed toxic chemicals); and the definition of a
standard facility unit. Discussion of these issues is found at Unit
II.D. of the proposal (see 61 FR 33592).
D. Statutory Construction
Congress provided EPA with explicit statutory authority to expand
the categories of facilities required to report to TRI beyond those
specified in section 313(b)(1)(A), which applies EPCRA section 313 to
facilities that are in SIC codes 20 through 39. The seven additional
industry groups were proposed based on the authority provided in EPCRA
section 313(b)(1)(B), which 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, but not
unlimited, discretion to add industry groups to the facilities subject
to EPCRA section 313 reporting requirements where EPA finds that
reporting by these industries would be relevant to the purposes of
EPCRA section 313. Thus, the statute directs
[[Page 23836]]
EPA, when adding industry groups, to consider and be guided by the
``purposes'' of EPCRA section 313. EPCRA section 313(h) states that:
The release forms required under this section are intended to
provide information to the Federal, State, and local governments and
the public, including citizens of communities surrounding covered
facilities. The release form shall be available... to inform persons
about releases of toxic chemicals to the environment; to assist
governmental agencies, researchers, and other persons in the conduct
of research and data gathering; to aid in the development of
appropriate regulations, guidelines, and standards; and for other
similar purposes.
Based on the Agency's reading of the statute, pertinent legislative
history, and a General Accounting Office (GAO) report critically
analyzing the TRI program, the proposal identified several purposes of
the EPCRA section 313 program, as envisioned by Congress, including:
(1) Providing a complete profile of toxic chemical releases and other
waste management activities; (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 considered these purposes when
exercising its discretion to add particular industries to EPCRA section
313. Additional discussion of EPA's statutory authority for its
proposed action can be found at Unit III.A. of the proposal (see 61 FR
33592).
III. Summary of Proposal
A. Interpretation of Statutory Standard
For purposes of the proposed rule, which was EPA's first use of
section 313(b)(1)(B), EPA identified three primary factors to consider
in determining whether the statutory standard would be met by addition
of the candidate 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 can 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). Additional discussion of this
interpretation of statutory standard may be found at Unit III.B. of the
proposal (see 61 FR 33593).
B. Clarification of Threshold Activities
EPA proposed to modify its interpretation of activities considered
``otherwise used'' as it applies to activity thresholds under EPCRA
section 313(f). In 1988, EPA promulgated a definition of ``otherwise
use'' that recognized the purposes of the statute and the statutory
definitions of ``manufacture'' and ``process.'' The definition of
``otherwise use'' included certain activities that were not
``manufacturing'' or ``processing.'' See 40 CFR 372.3.
However, given that section 313 originally applied to those
facilities which principally operate in the manufacturing sector, past
reporting guidance was tailored to address the principal activities
conducted by manufacturing facilities. That guidance instructed
facilities not to include the amounts treated (including treatment for
destruction and waste stabilization) or disposed toward the
``manufacture,'' ``process,'' or ``otherwise use'' threshold. However,
as EPA considered its interpretive guidance on ``otherwise use'' for
purposes of its industry expansion initiative, EPA was concerned that,
as a result of its past guidance, the public may not have access to
information relating to the use and releases and other waste management
activities of toxic chemicals by facilities within SIC codes 20 through
39 that are receiving materials for purposes of treatment for
destruction, stabilization, or disposal. This guidance would also
result in information gaps relating to the use and releases and other
waste management activities of toxic chemicals by facilities within the
candidate industry groups.
Therefore, EPA proposed modifying its interpretation of activities
considered ``otherwise used'' to include treatment for destruction,
disposal, and waste 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 purposes of further
waste management.
EPA proposed to define ``treatment for destruction'' to mean the
destruction of the toxic chemical such that the substance is no longer
a toxic chemical subject to EPCRA section 313 reporting requirements.
EPA proposed to define ``waste stabilization'' consistent with the
definition at 40 CFR 265.1081, the definition that is used in the
Resource Conservation and Recovery Act (RCRA) program. For purposes of
EPCRA section 313, the definition would be interpreted to apply to any
EPCRA section 313 listed toxic chemical or waste containing any EPCRA
section 313 listed toxic chemical. Also, for purposes of the EPCRA
section 313 ``otherwise use'' reporting threshold, EPA proposed to
interpret disposal to include underground injection, placement in
landfills/surface impoundments, land treatment, or other intentional
land disposal. A more thorough discussion of this clarification of
threshold activities is found at Unit IV. of the proposal (see 61 FR
33595).
C. Technical Review
For each industry group proposed for addition to EPCRA section 313,
EPA conducted an extensive assessment. The information summarized in
the proposed rule for each industry group describes the key data
elements upon which EPA relied to determine that the addition of
facilities in the industry group was relevant to the purposes of EPCRA
section 313. This information may be found at Units V.A through V.G. in
the proposed rule (see 61 FR 33598). EPA's assessment of these
industries is based on the Office of Management and Budget Standard
Industrial Classification (OMB SIC) Manual, 1987 (Ref. 4). EPA is aware
that OMB has recently revised the classification system (see 62 FR
17288). EPA will issue a notice in the Federal Register that will cross
reference the OMB SIC Manual 1987 and OMB's recent revisions to
identify manufacturing sector groups and industry groups added to
today's rule. The following is a brief summary for each of the proposed
industry groups:
EPA proposed to require that facilities operating in SIC code 5169,
Wholesale Nondurable Goods--Chemicals and Allied Products, Not
Elsewhere Classified (hereafter ``Chemicals and Allied Products''), be
subject to the EPCRA section 313 reporting requirements. Facilities
within this industry group receive EPCRA section 313 chemicals in bulk,
take possession of those chemicals and reformulate, blend, and
repackage materials containing section 313 chemicals for further
distribution in commerce.
EPA proposed to require that petroleum facilities in SIC code 5171
be subject to the EPCRA section 313 reporting requirements. 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, blend, and
[[Page 23837]]
repackage petroleum products prior to distribution in commerce.
EPA proposed to require that coal and oil-fired electric utility
plants in SIC code 49 be subject to the EPCRA section 313 reporting
requirements. 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
requested additional comment on whether to add SIC code 4960-Steam and
Air Conditioning Supply.1 Nuclear, hydroelectric, gas and
other non coal/oil-fired electric generating stations typically do not
generate power for distribution in commerce by combusting fuel
containing EPCRA section 313 listed toxic chemicals. EPA proposed to
add only those facilities within this industry group which combust
fuels containing EPCRA section 313 listed toxic chemicals. While EPA
recognized 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. Thus,
EPA chose, at this time, to limit its proposal to the addition of coal
and oil-fired plants in the proposed rulemaking.
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1This SIC code was misnumbered although correctly described in
the proposal; the correct SIC code is 4961.
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EPA also proposed to require that facilities engaged in metal
mining be subject to the EPCRA section 313 reporting requirements. The
proposed addition was limited to facilities in SIC code 10-Metal Mining
except SIC code 1081-Metal Mining Services. Facilities in SIC code 1081
generally do not conduct threshold activities; activities performed by
facilities in SIC code 1081 primarily consist of contracted services
for mining operations in the other SIC codes.
EPA also proposed to require that facilities engaged in coal mining
be subject to the EPCRA section 313 reporting requirements. The
proposed addition was limited to facilities 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 threshold activities or
routinely handle large volumes of EPCRA section 313 chemicals.
EPA believed that activities associated with beneficiation in both
metal and coal mining operations include EPCRA section 313 threshold
activities and would result in reports relevant to the purposes of
EPCRA section 313. 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 only extraction are unlikely to submit
reporting information. EPA based 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. Therefore, EPA proposed to
exempt extraction activities conducted by facilities in SIC code 12
from all EPCRA section 313 reporting requirements. EPA proposed to
interpret ``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 activities
related to extraction prior to beneficiation.
EPA also requested comment regarding whether a similar exemption
should be applied to metal mining extraction as well. Based on existing
data, EPA believed 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 unlikely in both industries. However, EPA recognized that
the composition of extracted material is different in metal mining and
coal mining and EPA believed that EPCRA section 313 chemicals can be
present above de minimis concentrations in metal ore.
EPA proposed to require that facilities classified within SIC code
4953, which are also regulated under the RCRA Subtitle C program, be
subject to the EPCRA section 313 reporting requirements. Facilities
operating in SIC code 4953 that are regulated under RCRA (the primary
federal law addressing waste management) subtitle C, are engaged
primarily in the collection, transportation, treatment for destruction,
stabilization, and/or disposal of hazardous waste containing EPCRA
section 313 toxic chemicals and include incinerators, underground
injection facilities, waste treatment plants, hazaradous waste
landfills, and other facilities designed for the treatment for
destruction, stabilization, and disposal of hazardous waste.
EPA proposed to require that facilities engaged in solvent recovery
operations be subject to the EPCRA section 313 reporting requirements.
These facilities are classified in SIC code 7389 Business Services, Not
Elsewhere Classified, and are primarily engaged in solvent recovery
activities involving EPCRA section 313 chemicals.
D. Comment Period
Upon publication of the proposed rule, EPA initially provided a 60-
day comment period. EPA then granted an additional 30 days to allow
interested parties further time for preparation of their comments.
During the comment period, EPA held three public meetings: August 7,
1996, in San Francisco; August 14, 1996, in Washington, DC (61 FR
33619) (FRL-5382-3); and August 19, 1996, in Chicago (61 FR 40637)
(FRL-5390-9). While the meetings held in San Francisco and Washington,
DC were intended to solicit comment from all interested parties, the
meeting held in Chicago was primarily intended to provide an
opportunity for comment on the potential impacts on small entities of
the proposed action. The public docket includes summaries of these
public meetings, unedited transcripts, and copies of written statements
provided by speakers. In addition, at the request of some interested
parties, EPA staff met with representatives of several firms, trade
associations, and non-governmental organizations to discuss the
proposed rule. Summaries of these meetings are also included in the
public docket.
IV. Summary of Final Rule
In this action, EPA is adding seven industry groups to the list of
facilities subject to the EPCRA section 313 reporting requirements.
These industry groups are metal mining ((SIC code 10 (except 1011,
1081, and 1094)), coal mining ((SIC code 12 (except 1241)), electric
utilities (SIC codes 4911 (limited to facilities that combust coal and/
or oil for the purpose of generating electricity for distribution in
commerce), 4931 (limited to facilities that combust coal and/or oil for
the purpose of generating electricity for distribution in commerce),
4939 (limited to facilities that combust coal and/or oil for the
purpose of generating electricity for distribution in commerce)),
commercial hazardous waste treatment (SIC code 4953 (limited to
facilities regulated under the RCRA Subtitle C, 42 U.S.C. section 6921
et seq.)), chemical and allied products-wholesale (SIC code 5169),
petroleum bulk terminals and plants (also known as stations)-wholesale
(SIC code 5171), and solvent recovery services (SIC code 7389 (limited
to facilities primarily engaged in solvents recovery services on a
contract or fee basis)). EPA finds that each of these industry groups
meets the
[[Page 23838]]
EPCRA section 313(b)(1)(B) standard. EPA believes that the addition of
these industry groups will further the goals of EPCRA section 313 and
significantly add to the public's knowledge about the use and
disposition of toxic chemicals in their communities.
The proposed rule and the record supporting the rulemaking contain
information on EPA's review of these industry groups. That background
information will not be repeated here. However, to the extent that
comments were received on these issues, those comments are briefly
addressed in this document. In addition to general comments and
comments pertaining to a number of the proposed industry groups, EPA
received specific technical comments on each of the industry groups.
Detailed responses to comment are contained in Response to Comments
Received on the June 27, 1996 Proposed Rule to Expand the EPCRA Section
313 List of Industry Groups (hereinafter Response to Comments document,
Ref. 15).
EPA is not including SIC code 1011 (Metal Mining: Iron Ores) in
this rulemaking based on the information available to EPA as discussed
in Unit V.H.2. of this preamble. EPA received comments requesting that
EPA specifically exclude SIC Code 1011 Iron Ore Mining. EPA may
reconsider the addition of this industry segment at a future date in
light of additional information.
In addition, EPA is deferring final action on SIC code 1094 (Metal
Mining: Uranium-Radium-Vanadium Ores) until a later date. EPA received
comments during the inter-agency review process under Executive Order
(E.O.) 12866 for this expansion initiative that raised difficult
technical and policy issues which will require additional time to
address. The Agency does not believe that it would be in the spirit of
community right-to-know to delay final action on all of the remaining
industry groups, pending completion of work on SIC code 1094. EPA will
make a final determination as to whether this industry group should be
added to EPCRA section 313. If EPA's final decision is to add this
industry group, EPA will accomplish this through a future rulemaking.
The public comment that has been received specific to this deferred
industry segment will be addressed as part of the future rulemaking
discussed above.
These additions are effective beginning on January 1, 1998, as
discussed in Unit V.D. of this preamble. EPA believes that this
schedule permits the preparation of sector-specific guidance and
sufficient time for newly affected facilities to become familiar with
the rule.
V. Summary of Public Comments
The public comment period for the proposed rule (61 FR 33588)
closed September 25, 1996. EPA received 2,715 comments, including 470
from industry, 86 from trade associations, 60 from environmental
groups, 1,875 from private citizens, 5 from Federal agencies, 43 from
State agencies, 108 from public interest groups, 18 from labor groups,
14 from universities, and 36 from associations. Detailed responses to
these comments are contained in the Response to Comments document (Ref.
15).
In addition to comments supporting the proposed expansion of
industry groups, EPA received comments in the following major areas:
EPA's screening process used to identify potential candidates; EPA's
interpretation of authority under EPCRA section 313; application of the
statutory criteria; compliance with existing laws and policies; EPA's
interpretation of release; reporting exemptions; duplicative reporting;
general technical comments; and industry-specific comments.
A. Statutory Authority
While many commenters support EPA's exercise of its authority to
add industry groups to EPCRA section 313, a number of commenters argue
that EPA's authority to add industry groups to the TRI program is
severely restricted. Some of these commenters argue that language in
EPCRA section 313(b)(1)(B) limits EPA to adding industry groups only to
the extent it is ``necessary'' under that provision. Others state that
EPA may add or delete only those industries within the traditional
manufacturing sector SIC codes 20 through 39, which were made subject
to the TRI program by Congress pursuant to the statute at EPCRA section
313(b)(1)(A). On similar reasoning, still other commenters argue that
EPA's authority to add industrial classifications is limited to those
that are in some manner ``like'' or ``akin'' to those within the
traditional manufacturing sector.
EPA believes that in EPCRA section 313(b)(1)(B), Congress gave EPA
the authority to add industry groups to the TRI program, whenever the
Agency reasonably finds that reporting by facilities within those
groups would be relevant to the purposes of the TRI program. EPCRA
section 313(b)(1)(B) provides that:
The [EPA] may add or delete [SIC] Codes. . .but only to the
extent necessary to provide that each [SIC code] to which [section
313] applies is relevant to the purposes of [section 313].
EPA believes that this provision gives authority to the Agency to add
industry groups and provides guidance for the identification of the new
sectors--i.e., where EPA finds that reporting by facilities within
those groups would be relevant to the purposes of EPCRA section 313.
Although the statute does use the term ``to the extent necessary'' in
describing EPA's authority, the use of the phrase ``relevant to the
purposes'' of section 313 indicates that rather than having to find
that it is somehow ``necessary'' to add an industrial group to those
reporting under EPCRA section 313, it is ``necessary'' for EPA to find
that potential reporting by that group would be relevant to the
purposes of EPCRA section 313 in order to exercise its authority to add
that group.
The legislative history of section 313(b)(1)(B) confirms EPA's
interpretation of the statutory text. The Senate-passed bill
encompassed reporting by only those facilities within SIC codes 20
through 39, whereas the House legislation contemplated that any
facilities handling above-threshold amounts of reportable chemicals
would be subject to the reporting requirements. The Conference
Committee that developed the language eventually enacted into law
stated as follows:
The conference substitute combines elements of the Senate and
House amendments. Coverage of facilities is based on SIC Codes 20-
39, except that [EPA] may add or delete SIC Codes to the extent
necessary to achieve the purposes of this section. . . .
Subparagraph 313(b)(1)(B) of the conference substitute provides
that:
[EPA] may add or delete SIC codes specified for coverage in the
legislation. This authority is limited, however, to adding SIC codes
for facilities which, like facilities withing 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 [section 313].
Conf. Rep. 99-962 at 292. Thus, the Conference Report clearly indicates
that where EPA finds that the addition of an industry group to the TRI
program would be relevant to the purposes of that program, section
313(b)(1)(B) authorizes EPA to add that group to those subject to EPCRA
section 313 reporting.
EPA does not agree with comments that the additional industry
groups must be within the traditional manufacturing sector, or must be
like or akin to that sector in the way they ``manufacture,''
``process,'' or ``otherwise use'' toxic
[[Page 23839]]
chemicals. The question under section 313(b)(1)(B) is whether potential
reporting by an additional group would be relevant to the purposes of
the TRI program. While the Conference Report did refer to adding SIC
codes for facilities which are ``like facilities within the
manufacturing sector,'' id., EPA believes the relevant similarity is
not the operational nature of the industry group, but in the
informational value of reporting on toxic chemical use, management, and
disposition--i.e., the language in the statute and Conference Report
communicates Congress' intent that EPA may expand the SIC code coverage
to include other facilities that will contribute to the TRI data base
information on the use and disposition of toxic chemicals in the United
States. By including SIC Codes 20 through 39, Congress made a judgment
that reporting by those industries would be relevant to the purposes of
the TRI program; Congress then authorized EPA to include additional SIC
codes, where EPA finds that reporting by those industries would also be
relevant to the TRI program. There is no indication that Congress
intended TRI to forever remain only a Manufacturers' Toxics Release
Inventory. In this rule, even though EPA believes that EPCRA permits
addition of industry groups composed of facilities that
``manufacture,'' ``process,'' or ``otherwise use'' toxic chemicals in a
manner different from facilities within the traditional manufacturing
sector, the Agency has limited the addition to industry groups that
have significant ties to the manufacturing sector.
In addition to the general comments regarding EPA's authority to
add industry groups to the EPCRA 313 facility list, commenters raise
some more specific authority questions. These, along with EPA's
responses, are summarized below. Further detail is provided in the
Response to Comments document (Ref. 15).
Several commenters read the statutory provision regarding addition
of facilities, in conjunction with a discussion in the Conference
Report, to indicate that EPA may add industry groups only if those
groups manufacture, process, or otherwise use listed chemicals in a
manner similar to facilities in SIC codes 20 through 39. EPA disagrees
with the conclusion drawn by the commenters. The discussion at issue,
[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 otherwise use toxic
chemicals in a manner such that reporting by these facilities is
relevant to the purposes of this section. [S]imilarly, the authority
to delete SIC codes from within SIC codes 20 through 39 is limited
to deleting SIC codes for facilities which, while within the
manufacturing sector SIC codes, manufacture, process or use toxic
chemicals in a manner more similar to facilities outside the
manufacturing sector[,]
must be read in context. By prefacing the sentence on deletion with
``similarly,'' Congress is connecting it to the prior sentence on
addition, and directing EPA to use the same basic criterion--relevance
to the purposes of EPCRA section 313--for both addition and deletion of
industry groups. The use of the manufacturing/non-manufacturing
dichotomy in the deletion sentence reflects the content of the EPCRA
section 313 facility list at the time, rather than a congressional
intent to limit for all time the authority to add non-manufacturing
industry groups to the TRI program. At the time this statement was
made, the only facilities eligible for deletion were those in SIC codes
20 through 39. Therefore, the only frame of reference for the
discussion was the manufacturing sector. Under those circumstances, it
is reasonable for Congress to have used the distinction between
manufacturing and non-manufacturing to describe EPA's authority to
delete facilities from the EPCRA section 313 list. As discussed above,
EPA does not believe that this distinction is controlling for purposes
of adding facilities to the section 313 list because EPA does not
believe that operational similarity to the manufacturing sector is a
necessary correlate of ``relevant to the purposes'' of EPCRA section
313.
Other commenters argue that Congress' adoption of the PPA evinces a
congressional intent to require reporting only from industries that are
capable of source reduction. EPA agrees that the reporting required
under PPA section 6607 is an extension of reporting required under
EPCRA section 313. Thus, facilities required to report under EPCRA
section 313 are also required to report for purposes of PPA section
6607. However, EPA disagrees with commenters' conclusion that adoption
of the PPA in 1990 characterizes Congress' intent in its previous
adoption of EPCRA section 313. In fact, in enacting the PPA, Congress
specifically provided that ``[n]othing in [the PPA] shall be construed
to modify or interfere with implementation'' of EPCRA. PPA section
6609(a), 42 U.S.C. section 13108(a).
Many commenters interpret EPA's authority to add industry groups to
be limited to those groups composed of facilities likely to report
releases of EPCRA section 313 toxic chemicals resulting in immediate
human exposures or significant risks to public health. These commenters
apparently believe that reporting is only relevant to the purposes of
EPCRA section 313 if it communicates information about local risks to
the local public. Commenters argue that absent such a finding relative
to a candidate industry group, reporting by the group will mislead the
public about the nature of the risks relative to the information on
TRI.
EPA does not agree that the Agency must evaluate the potential for
local, human exposures, and risks to determine whether a candidate
industry group may be added under EPCRA section 313(b)(1)(B). As
discussed above, EPCRA section 313(b)(1)(B) authorizes the addition of
industry groups where reporting by such industry groups is relevant to
the purposes of EPCRA section 313, which are described in EPCRA section
313(h) to include informing ``the public, including citizens of
communities surrounding covered facilities. . . about releases of toxic
chemicals to the environment; to assist governmental agencies,
researchers, and other persons in the conduct of research and data
gathering; [and] to aid in the development of appropriate regulations,
guidelines, and standards.'' 42 U.S.C. section 11023(h). Thus, as EPA
explained in its proposal, the Agency concludes from the language of
the statute and the legislative history that there are three functional
purposes for the EPCRA section 313 reporting program: (1) To provide a
complete profile of the disposition of toxic chemicals through
reporting of toxic chemical releases and waste management activities;
(2) to compile such information into a broad-based national data base
for use in determining the success of environmental programs; and (3)
to ensure that the public has easy access, in an understandable format,
to the data base and raw information (see 61 FR 33593). Neither EPCRA
section 313(h) nor its legislative history indicates that the purpose
of EPCRA section 313 is for the federal government to collect only that
information from only that sector of industry that releases EPCRA
section 313 toxic chemicals such that, from the federal government's
perspective, there is significant local human exposure and human risk
from those releases. Therefore, EPA does not believe that EPCRA section
313(b)(1)(B) requires a determination of the potential for significant
exposures or risk to the local
[[Page 23840]]
human population from the release of toxic chemicals from facilities
within candidate industries.
Federal and local perspectives on what may be an acceptable risk
are likely to be very different. The roles of local government and the
federal government differ significantly in terms of ensuring
environmental quality. In passing EPCRA, Congress determined that it is
for the public to take the information reported on the use and releases
and other waste management of toxic chemicals, and to determine whether
there is a need for any response given other factors, such as economic
and environmental conditions, or particularly vulnerable human or
ecological populations. Congress did not intend the federal government
to consider these local factors prior to determining whether certain
information should be made available to the public, or prior to
determining whether an industry group should be added.
Moreover, while human exposure and risk may be viewed by some as
the focus of EPCRA section 313, they were not Congress' sole concern in
enacting that section. EPA believes that environmental considerations
are also important. That Congress looked beyond human exposures and
risks when enacting EPCRA section 313 is amply demonstrated by the fact
that chemicals can be included on the EPCRA section 313 list based on
environmental effects alone.
Some commenters argue that reporting by a candidate industry is not
relevant to EPCRA section 313 if reporting will lead the local public
to conclude that a particularly successful environmental program, such
as a pollution prevention effort, is in fact not successful. EPA
disagrees with the conclusion that the local public necessarily will be
misled by having access to the information reported on TRI. Misuse or
misinterpretation of information does not mean that the basis for
collecting the information is invalid. EPA believes that the
appropriate solution to this issue for TRI is education and outreach,
rather than a decision not to include an otherwise eligible industry
group on TRI. As discussed in Unit V.I.2. of this preamble, EPA has
taken steps and continues to take aggressive measures to assure that
the information reported is unbiased and is communicated in a
responsible manner. Moreover, while EPA agrees that compilation of the
information required to be reported on TRI is, in part, a valuable tool
for use by the federal government for measuring the success of its
environmental programs, EPA believes that the public should have the
opportunity to disagree with the federal government's assessments of
its own environmental programs, or with the federal or state
government's standards established under those programs. Information
provided on TRI allows for broader public involvement on such issues.
Some commenters conclude that where there is limited existing
knowledge of the constituents of the materials handled by facilities
within a candidate industry group, and estimation is infeasible or
inconsistently applied, reporting by the candidate industry is not
relevant to EPCRA section 313 because it is not likely to provide
meaningful data. EPA recognizes that EPCRA section 313 does not require
reporting to be based on actual monitoring where such monitoring is not
already required under other provisions of law. See EPCRA section
313(g). Further, EPCRA permits reports to be based on readily available
monitoring information or, where monitoring data are not readily
available, on reasonable estimates. EPA agrees that the legislative
history shows that reporting based on estimation was permitted to
alleviate burdens that might be imposed by monitoring requirements.
However, EPA believes that Congress recognized that while reporting
based on estimation is not as exact as reporting based on monitoring,
estimation can result in information that is useful to the public.
Otherwise, one would have to conclude that Congress knowingly required
industries to report information that was not possible to develop or
that was not useful for the purposes outlined in EPCRA section 313(h).
Specific comments on this issue particular to each industry added are
addressed in the industry-specific responses to comments.
Other commenters argue that where reporting from the candidate
industry is not likely to assist in the preparation of emergency plans
or to result in reporting of emergency releases, addition of the
candidate industry is not relevant to the purposes of EPCRA section
313. Others argue that the information reported by the added industries
is likely to overwhelm the local emergency officials. EPA disagrees
with these comments. EPCRA section 313 is concerned with the public's
right to know about the use, management, and disposition of toxic
chemicals. Separate provisions, EPCRA sections 311 and 312, 42 U.S.C.
11021 and 11022, are intended to address a community's preparedness for
emergencies resulting from accidental releases of hazardous chemicals.
While section 313 data can be used to complement sections 311 and 312
data to provide a more comprehensive understanding, TRI was designed to
stand alone. The information reported on TRI is available to the
public, and thus, is available to the local emergency officials.
However, it is not directly reported to such officials and therefore is
not likely to overwhelm them with information not relevant to
accidental releases.
Finally, several commenters argue that unless a specific activity
involving a toxic chemical by the candidate industry group is
specifically identified within the statutory definitions of
``manufacturing'' or ``processing,'' Congress did not intend to require
reporting from that industry group. Specifically, the mining community
commented that Congress did not consider ore extraction or
beneficiation to be within the statutory definitions of ``manufacture''
or ``process.'' Commenters believe that Congress was aware of
differences between the terms extraction and beneficiation, and
``manufacturing'' and ``processing,'' and would have added extraction
and beneficiation activities to the definitions of either
``manufacturing'' or ``processing'' if it meant them to be included.
Commenters conclude that the non-inclusion of these terms is evidence
of Congress' plain intent not to subject SIC code 10 to reporting.
EPA disagrees with commenters' reading of congressional intent
because first, for an industry group to be added to the EPCRA section
313 list, activities at facilities in that group may fall within the
statutory definitions of either ``manufacture'' or ``process'' or
within ``otherwise use,'' which EPA believes is a broad category of
additional industries. EPA also disagrees with commenters' specific
conclusion that because the definitions of ``manufacture'' and
``process'' as they appear in the statute do not expressly contain the
words beneficiation or extraction that Congress specifically intended
to exclude the mining industry from any EPCRA section 313 reporting
requirement. Again, legislative history does not support this
interpretation of the statute. Nor do the commenters point to any
general rules of statutory construction that would support their
interpretation. In other sections of EPCRA, where Congress intended to
exempt a particular activity, it did so expressly, for example, in
providing an exemption for the transportation and distribution of
natural gas in section 327 of EPCRA. 42 U.S.C. 11047. Had Congress
intended to exclude mining activities, EPA believes it is reasonable
[[Page 23841]]
to conclude that Congress would have expressly provided such an
exemption. In the absence of such exemptions, EPA believes that
Congress intended the phrase ``manufacture, process, or otherwise use''
of toxic chemicals to encompass a broad scope of activities involving
toxic chemicals, the reporting of which would be relevant to the
public-information purposes of section 313.
B. Screening Process for Candidate Industries
The screening analysis used by EPA to identify candidate industries
for this rulemaking consisted of several procedures used to prioritize
and focus on those industries whose potential addition to EPCRA section
313 would most likely result in significant environmental and public
information benefits. This analysis was not used to select industries
for addition, but was used to help organize and evaluate potentially
significant chemical uses, and to identify and prioritize industry
groups that warranted further consideration. Further details of the
screening process are included in Unit II.C. of this preamble and in
the proposed rule.
Commenters raised a number of issues regarding EPA's screening
process. Although EPA has responded to these comments, it is important
to note that the screening process itself was not a part of this
rulemaking, but was a process used to identify candidate industry
groups for further consideration in this rulemaking.
Several commenters raised a variety of issues and concerns related
to EPA's use of data collected under existing regulatory programs.
These comments ranged from an assertion that the data collected in
these systems and the manner in which the data were summarized are
entirely inappropriate for EPA's TRI industry screening and selection
processes, to the view that these data systems already provide
information equivalent to TRI, so that extension of EPCRA section 313
reporting requirements to these industries is redundant and
unnecessary.
One commenter disagreed with EPA's determination that ``the
methodologies used to develop the volume data were applied consistently
across industries reporting within each system...[which] allows a
relative comparison among industries'' (Ref. 10), based on EPA's
statement in the screening document that each of the data systems used
contain biases and limitations. The commenter stated that there is no
reason to believe that the biases and limitations that EPA describes
will have consistent impacts across the industries being evaluated. The
commenter further contends that EPA ``is simply dismissing these very
serious problems with the data systems by saying that the systems are
only being used to extrapolate data for relative comparisons [and that
this approach] overlooks this fundamental problem with using these data
systems to estimate releases of TRI chemicals.''
Based on many of the comments, it is evident that the commenters
had confused EPA's use in the screening process of the data from other
regulatory programs with the bases for EPA's determination that
candidate industries met the statutory standard for addition. EPA did
not use the data extracted from other regulatory programs in the
screening process to project the amounts of EPCRA section 313 chemicals
``released,'' or to determine whether candidate industry groups met the
statutory standard for addition. As EPA stated in the screening
document, ``[it] does not necessarily believe that the data contained
in these systems equate to the information on amounts of toxic
chemicals managed by facilities as that reported under section 313''
(Ref. 10). Rather, ``data contained in these systems can be used as
indicators of which industries are routinely involved with EPCRA
section 313 chemicals,'' Id., and to evaluate the degree to which
reporting would be expected to occur. EPA used those data only for
those purposes. The ``relative comparison'' cited by the commenter was
limited to an evaluation of which industries may or may not routinely
handle section 313 chemicals, based on indications of chemical
associations developed from the data systems. EPA believes that its use
of the data systems from other regulatory programs was valid for this
purpose. EPA has provided responses, in the Response to Comments
document (Ref. 15), to the major issues raised by commenters regarding
specifics involved with the use of data extracted from other regulatory
programs.
Some of the comments received focused on the ranking model that was
developed to screen candidate industry groups. Specifically one
commenter questioned EPA's use of the model in identifying candidate
industries and based on results generated by the ranking model,
questioned EPA's decision to include particular industries in the
proposal. In particular, the commenter questioned why some industries,
such as some of the 4-digit SIC codes in the metal mining industry, are
being added when they appeared lower in rank compared to other
industries that are not being added.
In the proposed rule, EPA did not base its determination that
individual industries met the statutory standard for addition on the
ranking model results. Many of the industries that appeared to be
ranked higher than some other industries were screened out for a
variety of reasons, such as a lack of information to adequately
determine whether the industry conducts activities that would be
reportable on the TRI. The ranking model was one method used as part of
the screening process to identify the candidate industries that would
be further considered for addition to the TRI program. Industries which
were not proposed for one of the above mentioned reasons may be
included in future EPCRA expansion activities.
A number of commenters stated that they believe that TRI-like
information already exists and EPA should focus its efforts on making
those data available. EPA expended a significant amount of resources in
extracting and evaluating the data from existing data bases for
purposes of their use in the screening analysis. EPA's experience with
these data, along with many of the other comments received, reinforce
EPA's belief that data equivalent to TRI data do not currently exist
for the new industry sectors and that the extension of TRI to these
industries is necessary to provide the public greater access to
information on the use, management, and disposition of chemicals within
their communities.
A few commenters stated that EPA failed to evaluate information
collected by states in the analyses supporting this rulemaking. Another
commenter asserted that EPA failed to take advantage of experience
gained by those states that have expanded their TRI-like programs. EPA
disagrees with these comments. Generally, the commenters failed to
distinguish between analyses EPA conducted as part of the screening
used to identify potential candidate industries and the ``selection
factors'' and information on which EPA relied to determine whether
candidate industries met the statutory standard for addition. The
extent to which EPA relied on state data to support the addition of
individual industries is addressed in the industry specific-sections of
this notice and the Response to Comments document (Ref. 15). What
follows below, is an explanation of the extent to which EPA relied on
state experience in its screening analyses and in applying its
selection factors.
The Agency has followed closely the activities of Massachusetts,
Minnesota,
[[Page 23842]]
and Arizona in their expansion of their state right-to-know programs.
Some of the experience gained by these states was determined to be
relevant to the federal right-to-know program, and in those instances
the information was either considered during the screening, or was
taken into account when EPA applied its selection factors. However, for
both purposes, EPA often found the type of information generated or
evaluated by state activities to be limited in scope, or more relevant
to considering specific facilities for addition pursuant to EPCRA
section 313(b)(2).
For example, Minnesota's Emergency Response Commission (MERC) used
the following criteria to make industry additions to their program: (1)
Number of facilities in industry; (2) percent of facilities in SIC code
that would likely report; (3) number of toxic chemicals in reportable
quantities; (4) amount of releases and transfers; and (5) technical
difficulty in reporting (Ref. 3). EPA evaluated each of the criteria
used by MERC and considered several of them during the screening. EPA
also considered these state criteria when identifying factors that it
would consider in this rulemaking to determine whether candidate
industries met the EPCRA section 313(b)(1)(B) standard for addition.
(See Unit V.C. of this preamble for a discussion of EPA's consideration
of the selection factors used in this rulemaking). EPA did not use
element one, the number of facilities in the industry. EPA does not
believe that such a consideration is appropriate for a program designed
to address local information needs; the number of total facilities
nationwide within a particular industry group may not be relevant to a
community in which a particular facility or cluster of facilities is
located. The second element used by MERC, percent of facilities in SIC
code likely to report, was included during EPA's screening analysis,
and its association with EPA's selection factors is discussed in Unit
V.C. of this preamble. The number of toxic chemicals in reportable
quantities, the third element MERC evaluated, was considered in the
ranking model as part of the screening process. For example, as
described in Development of SIC Candidates: Screening Document (Ref.
10), a significant element in the ranking model was composed of
instances where facilities were matched with toxic chemicals which are
carcinogens as defined in 29 CFR 1910.1200(d)(4). The fourth element,
amount of releases and transfers, is information that EPA believes is
not readily available nationally in a form comparable to TRI data;
however, to the extent appropriate, EPA used existing information on
permitted emissions to evaluate the potential association of industries
with EPCRA section 313 toxic chemicals for purposes of screening for
candidate industries. Further discussion is provided in the Response to
Comments document (Ref. 15). The fifth and last element considered by
MERC was the technical difficulty posed by unique circumstances in
reporting TRI type information. EPA did not use this element as part of
the screening process but did consider it in subsequent assessment
activities prior to selecting industries for inclusion in the proposed
rule.
EPA received several comments on its application of ``additional
considerations'' to industries listed as candidate industries as a
result of the screening process. A number of these comments took issue
with EPA's use of these additional considerations to limit the
candidate industries considered for inclusion in the proposal. EPA did
not apply the additional considerations as selection factors. Rather,
these considerations represent several issues EPA continued to address
for particular industry groups, while it proceeded with the rulemaking
for the remaining candidate industries. Some of these considerations
are addressed further in Unit V.H. of this preamble, relating to
specific industries and in the Response to Comments document (Ref. 15).
C. Application of Statutory Standard
As discussed in Unit III.B. of the preamble to the proposed rule
(see 61 FR 33593-95), EPA's interpretation of its authority to add
industrial groups to the TRI program under EPCRA section 313(b)(1)(B)
led the Agency to develop three primary factors that it believes to be
suitable for use in this rulemaking to determine whether to add
particular candidate industries. Those factors consist of: (1) Whether
one or more listed toxic chemicals are reasonably anticipated to be
present at facilities in that industry (chemical factor); (2) whether
facilities within the candidate industry group ``manufacture,''
``process,'' or ``otherwise use'' EPCRA section 313 listed toxic
chemicals (activity factor); and (3) whether addition of facilities
within the candidate industry group reasonably can be anticipated to
increase the information made available pursuant to EPCRA section 313
or to otherwise further the purposes of EPCRA section 313 (information
factor). EPA interprets section 313(b)(1)(B) as authorizing the Agency
to add industries where including them in the TRI program would advance
the public-information purposes of that program (See Unit II.D. and
V.A. of this preamble for further discussion), and EPA believes that
the selection factors developed for this rulemaking help ensure that
the industries selected for inclusion in the program will in fact
further the purposes of section 313. Identifying facilities that are
known to handle listed section 313 toxic chemicals on a routine basis
(chemical factor), makes it likely that a candidate industry might have
reportable information. Determining that facilities routinely conduct
activities that meet the definitions of ``manufacture,'' ``process,''
or ``otherwise use'' under section 313 (activity factor) serves to
increase the likelihood that facilities within an industry group are
involved with listed toxic chemicals is likely to result in their
reporting to TRI. Finally, the information factor takes into account
more specific details regarding the nature of each industry's
activities involving listed chemicals, to evaluate their likelihood of
reporting information that will serve the purposes of the statute.
A number of comments were received that took issue with EPA's
development and application of the factors used to select the
industries for addition to EPCRA section 313. Some commenters
criticized EPA's selection factors, stating that they are not relevant
to section 313 and its purposes. Two commenters stated, ``[the] three
criteria [selected by EPA] embody the position that there are no limits
to its authority to add to the list of industries.'' Similarly, a third
commenter asserted that the criteria appear to be too broad with little
detail in explaining why they were chosen. A number of other commenters
stated that EPA's methodology and selection criteria are flawed,
artificial, meaningless, and/or inconsistent with legislative history
and depart from the purposes of the statute, as well as being
inappropriately and arbitrarily applied. At the same time, EPA received
a number of comments that challenged the use of any factors, asserting
that instead of adding individual industrial groups EPA should require
any facility exceeding the thresholds to comply with the EPCRA section
313 reporting requirements.
EPA disagrees that its selection factors ``embody the position that
there are no limits to its authority to add to the list of
industries,'' or otherwise conflict with its statutory authority. As
discussed in Unit V.A., EPA believes that its authority to add
industries is broad but not unlimited. Consequently,
[[Page 23843]]
EPA's factors are intended to guide EPA's exercise of discretion to
ensure that its decision is reasonable, and limited to adding
industries whose addition serves to further the purposes of EPCRA
section 313, but not to limit or otherwise restrict EPA's ability to
add industry sectors beyond the statutory language. The selection
factors used by EPA were used to limit additions to only those industry
groups or specific facilities that are likely to provide information
relevant to purposes served by EPCRA section 313. In addition, as
discussed in both the preamble to the proposed rule at 61 FR 33592-
33595, and in this document in Unit V.A., EPA disagrees that EPA's
selection factors are in any way inconsistent with the legislative
history. EPA also disagrees that it inappropriately or arbitrarily
applied its selection factors. Where commenters raised issues with
regard to the application of the selection factors to particular
industries, EPA has responded in the specific industry section of the
Response to Comments document (Ref. 15).
One commenter stated that the approach used for determining the
presence of EPCRA section 313 toxic chemicals at candidate facilities
is flawed because of questions about the reliability of data bases used
for EPCRA section 313 toxic chemical release estimates. As noted above
in Unit II.C. and V.B. of this preamble, the three primary data bases
(AIRS, BRS, and PCS) were used in the screening process to identify
which industries may routinely manage EPCRA section 313 toxic
chemicals. They were not used to project an industry group's amount of
toxic chemical releases or in any other way to determine, during the
industry selection process, whether candidate industries met the EPCRA
standard for addition. The information supporting EPA's evaluation of
the chemical factor was taken from the industry process information
contained in the industry profiles and economic analysis, each of which
contains numerous additional references. EPA's use of AIRS data in its
economic analysis is discussed in the Economic Analysis (Ref. 12) and
Response to Comments document (Ref. 15).
Several other commenters stated that EPA's activity factor should
be modified to include the manner in which industries manage EPCRA
section 313 toxic chemicals in relation to how such chemicals are
managed within the manufacturing sector. These commenters asserted that
the ``manufacturing,'' ``processing,'' or ``otherwise use'' activities
conducted by industries to be added must be similar to those conducted
by facilities within the manufacturing sector. EPA does not believe
that Congress intended to confine the TRI program to industries which
handle toxic chemicals in the same ways as the manufacturing sector
because, among other reasons, Congress itself applied the program to
the manufacturing sector and then authorized EPA to apply the program
to additional sectors. This issue is discussed further in Unit V.A. of
this preamble. Therefore, as discussed in Unit III.B.2. of the preamble
to the proposed rule, EPA applied the activity factor to determine
whether facilities in each candidate industry ``manufacture,''
``process,'' or ``otherwise use'' listed toxic chemicals, as those
terms are defined in the statute and EPA regulations and guidance.
Another commenter suggested that EPA expand the third factor
(information) to include additional considerations: (1) That the
information is otherwise unavailable or less accessible to the public
or government, and (2) that the information provided has practical
utility such as allowing agencies to properly plan for and respond to
emergencies and understand risks associated with activities conducted
at a particular facility.
EPA is required by regulations issued to implement the Paperwork
Reduction Act (PRA) to certify that the information to be reported
pursuant to this rule will have practical utility and that it will not
be duplicative. Consequently, EPA believes that including such
considerations as selection factors would not provide any additional
information. EPA has addressed the extent to which the information that
will be reported under this rule is otherwise unavailable or less
accessible to the public or government and has practical utility in
Unit V.I.1. of this preamble.
Several other commenters suggested that prior to adding an industry
group, EPA make a determination as to the amounts of chemicals that are
anticipated to be reported as released or otherwise generated or
handled by that industry. EPA generally does not have available to it
this type of information for industry groups not currently reporting to
TRI. Moreover, EPA does not believe that this is a factor that is
appropriate for selecting industry groups. During the analyses
conducted for this rulemaking, EPA went to considerable lengths in
attempting to determine amounts of toxic chemicals that might be
released or otherwise managed by facilities not currently reporting
under EPCRA section 313. As discussed elsewhere in this preamble, EPA
believes that this type of information is generally not readily
available for the industries being added, and that efforts to estimate
it may result in potentially significant errors and are typically met
with criticism. As a result, EPA selected industry groups by using
available information to identify industries that are likely to manage
listed chemicals in a reportable manner, such that addition of those
groups would most likely further the purposes of making TRI data
available. As discussed in Unit VII. of this preamble, EPA will
initiate an intensive stakeholder process to comprehensively evaluate
the current reporting forms and reporting practices.
Several commenters suggest that EPA consider risk or the level of
exposure in adding industries to EPCRA section 313. Among such comments
were those stating that TRI must inform the public whether toxic
chemical releases pose a threat to the public and not simply present
the public with unqualified and misleading information. EPA believes
that a risk-based approach to EPCRA section 313 reporting is at odds
with the basic premise of EPCRA section 313, which is to get
information about the use, disposition, and management of toxic
chemicals into the public domain, enabling the users of this
information to evaluate the information and draw their own conclusions
about risk. This is discussed further in Unit V.A. of this preamble.
EPA is sensitive to industry's concern about the TRI data being
misunderstood or misused, and will be continuing its separate efforts
to promote better understanding and appropriate use of this
information.
One commenter believes that the burden of reporting should be a
criterion in selecting industry categories. This commenter also stated
that EPA should consider not only costs to facilities to report, but
the number of small businesses in the industry and the capability of
facilities to report. This commenter further claimed that Executive
Order 12866 requires EPA to incorporate costs and related factors in
the selection criteria.
EPA is separately required to consider anticipated regulatory
impacts and costs under Executive Order 12866, the Unfunded Mandates
Reform Act (UMRA) (Pub. L. 104-4), and the Regulatory Flexibility Act
(RFA) (5 U.S.C. 601 et seq.). EPA takes very seriously its obligations
to consider costs and impacts on small entities. EPA's evaluation of
informational considerations took into account, among other things, the
capability of facilities in each candidate industry to report
meaningful information under TRI. EPA
[[Page 23844]]
believes that it has met its obligations under these and other separate
provisions in this action. The Agency also considers it important to
note that the size of a business does not necessarily correspond to its
impacts on public health or the environment, or the relevance in
reporting by that entity. However, in this action, EPA has done its
best to balance the need for public information with the circumstances
of small businesses and their ability to meet EPCRA section 313
reporting requirements. These matters are discussed further in Unit
V.I.4. of this preamble and in the Economic Analysis (Ref. 12).
In contrast to comments received from industry, some members of the
environmental community commented that EPA is being too confining in
expanding the TRI program on an industry group by industry group basis,
which limits the expansion of public information to slow and
incremental steps. These commenters assert that EPA should abandon the
process of adding individual industry groups, and should instead
require any facility exceeding the EPCRA section 313 reporting
thresholds to comply with current reporting requirements, while
steadily lowering the reporting thresholds over time. EPA believes
there are a number of practical problems with the commenters'
suggestion. Section 313 requires that in order for a facility to be
required to report, the facility must be in an SIC code that is subject
to the reporting requirements. Section 313(b) lays out separate
standards for adding additional SIC codes and particular facilities; in
addition, EPA can only proceed by rulemaking.
Aside from the fact that EPA lacks the resources to make the
findings for all facilities or SIC codes in a single rule, EPA believes
that it is important to expand the section 313 program in an orderly
manner to ensure that the statutory requirements are met. It may not be
appropriate or relevant to add all industry groups or facilities.
Further, EPA believes it important to expand the section 313 program in
an orderly manner to optimize the information previously collected by
TRI. EPA believes that incremental additions may provide greater
continuity to the wealth of information maintained and made available
in TRI. Therefore, in this action EPA sought to add industries that are
likely to provide relevant section 313 information on a range of
activities and from a variety of industry groups related to
manufacturing.
D. First Year's Reporting and Effective Date
A number of commenters have suggested that EPA delay or defer
reporting for at least 1 full calendar year, while others have
suggested that 2 years would be more appropriate. These commenters are
concerned about adequate time to familiarize themselves with the EPCRA
section 313 reporting requirements; a perceived lack of outreach on
EPA's part; and pending industry studies which may provide more
information on toxic releases.
EPA has reviewed and evaluated each of these comments and believes
that delaying the first year's reporting has merit. Thus, EPA believes
that it is appropriate to make the requirements of this rule effective
on January 1, 1998, for reports due on or before July 1, 1999. EPA
believes that the regulated community, EPA, and the states require time
to understand and prepare for implementing this change. The regulated
community will need an opportunity to become fully aware of these new
requirements and understand how it can apply to their data development
and their own data management systems for EPCRA section 313 compliance
purposes. In addition, EPA believes that it is reasonable to provide
additional time for the newly affected industry groups to become
familiar with the additional requirements under EPCRA section 313, and
that this additional time will promote more accurate and consistent
reporting among these groups.
A number of commenters believe that EPA should delay reporting for
the new industry groups until EPA develops exposure and risk
evaluations for each. While EPA takes seriously its responsibility to
provide the public with guidance on how to use the TRI data in
conjunction with appropriate hazard, exposure and risk information, EPA
does not believe that it should perform or use nationwide risk
estimates to influence what data should be available to individual
communities across the United States. TRI was designed in part to
provide local communities with facility-specific information about
releases and other waste management of toxic material within their
community. The release patterns and resultant exposures are as unique
as each community. Multiple facilities, each with small releases, can
add up to a large release in a specific geographic area. An EPA
decision, based on a nationwide risk estimate, may deprive that
community of information that is vital to protecting public health at
the local level. A one size fits all risk assessment, as suggested by
the commenters, undermines the intent and the utility of the TRI.
A set of commenters have raised the concern that EPA did not
conduct adequate outreach to the potentially regulated community and
that EPA did not apprise the potentially regulated community of the
planned publication of the proposed rule. EPA strongly disagrees with
these comments and believes that the record of meetings held on this
issue reflects a concerted effort by EPA to involve all potentially
affected parties, early and often. EPA began publicly discussing the
expansion of the industry groups subject to EPCRA section 313 reporting
as early as 1991. TRI facility expansion was a major topic of
discussion at a TRI Data Use Conference in January of 1992, a
conference where many industry representatives interacted with Agency
staff in discussion of this issue. EPA held the first of a number of
public meetings on TRI facility expansion on May 29, 1992, and again in
1993, highlighted facility expansion in its Data Use Conference and in
the Administrator's nationwide Pollution Prevention Policy Statement.
In 1994, the Agency embarked on an extensive series of focus groups
with individual industries that expressed an interest in working with
EPA and in 1995, at another public meeting, laid out the Agency
strategy for selecting industries as well as a ``short list'' of
potential candidates. EPA has identified at least 65 events since 1991
that have served as outreach to the potentially regulated community.
Some of these events have been focused on small business, others on a
particular industry sector and others more generally on the potentially
regulated community. EPA's proposed rule, issued on June 27, 1996, was
thus simply one more step in a series of efforts to inform and educate
the potentially regulated community of EPA's intentions.
Commenters have expressed concern that if EPA does not delay or
defer reporting for 1 year after the effective date, newly added
industries will not have had ample time to familiarize themselves with
basic EPCRA section 313 reporting requirements. As noted above, EPA is
not requiring reporting for the newly added industries for the 1997
reporting year. EPA will work with the newly added industry groups to
maximize the amount of assistance that is available to them. EPA is
committed to continuing its work with industry trade associations,
individual companies and facilities and professional trainers to assure
that guidance, both technical and
[[Page 23845]]
interpretive, is available to the new sectors.
In addition, EPA will develop sector-specific guidance documents
for each of the newly affected industry groups and make these documents
available no later than November 1997. These documents will provide the
newly affected industry groups with a greater understanding of how the
reporting requirements associated with EPCRA section 313 relate to
specific activities conducted by their industry. These documents should
also help resolve many of the issues raised by commenters prior to
initiating reporting activities, and should assist them in reporting in
a more cost-effective and less burdensome manner. EPA will also develop
such helpful guidance for all affected industry groups and will publish
this additional guidance in the Federal Register no later than November
1997.
Some commenters believe that EPA should defer reporting until
certain studies being under taken by the industry are complete and
available for Agency review. For example, electric utilities have
encouraged EPA to delay inclusion of utilities until after a study of
toxic emissions from utilities is complete. EPA appreciates that this
type of study may provide additional information regarding certain
types of releases for certain chemicals. This and the other studies
mentioned, however, do not deal with the multi-media nature of releases
that are core to EPCRA, nor are they designed to provide annual release
information to the public. They are designed to address issues of
potential risk and exposure, both important pieces of additional
information which EPA believes should be made available to communities.
EPA looks forward to receiving and reviewing these studies and will
work with the industry to communicate the risk and exposure findings to
local communities and others who use the TRI data.
E. Reporting Threshold Clarifications
1. De minimis exemption. Several commenters contend that for the
purposes of this rulemaking, EPA should interpret the de minimis
exemption to apply to the manufacture of byproducts. In addition, they
contend that to do otherwise would be inconsistent with past guidance.
EPA disagrees with the commenters. The de minimis exemption allows
facilities to disregard certain minimal concentrations of chemicals in
mixtures they ``process'' or ``otherwise use'' in making threshold and
release determinations for section 313 reporting. The de minimis
exemption does not apply to the ``manufacture'' of a chemical except if
that chemical is ``manufactured'' as an impurity and remains in the
product distributed in commerce below the appropriate de minimis level.
As illustrated by the preamble to the final rule implementing the
reporting provisions of EPCRA section 313 (53 FR 4500, February 16,
1988), EPA has explicitly stated since the beginning of the program,
that the de minimis exemption does not apply to the ``manufacture'' of
byproducts. In the preamble to the 1988 final rule, EPA explained (see
53 FR 4501), that the ``de minimis limitation does not apply to the
byproducts produced coincidentally as a result of manufacturing,
processing, use, waste treatment, or disposal.'' EPA further explains
at 53 FR 4504, its decision about the application of the de minimis
exemption to impurities and byproducts.
EPA has distinguished between toxic chemicals which are
impurities that remain with another chemical that is processed,
distributed, or used, from toxic chemicals that are byproducts
either sent to disposal or processed, distributed, or used in their
own right. EPA also considers that it would be reasonable to apply a
de minimis concentration limitation to toxic chemicals that are
impurities in another chemical or mixture....Because the covered
toxic chemical as an impurity ends up in a product, most producers
of the product will frequently know whether the chemical is present
in concentrations that exceed the de minimis level, and, thus may be
listed on the Material Safety Data Sheet (MSDS) for that product
under the OSHA HCS.
This final rule does not adopt a de minimis concentration
limitation in connection with the production of a byproduct. EPA
believes that the facility should be able to quantify the annual
aggregate pounds of production of a byproduct which is not an
impurity because the substance is separated from the production
stream and used, sold, or disposed of, unlike an impurity which
remains in the product. 53 FR at 4504.
That language is consistent with guidance EPA has provided on the de
minimis exemption. For example, on pages 15 and 16 of EPA's 1995 Toxic
Chemical Release Inventory Reporting Form R and Instructions (EPA 745-
K-96-001), a document that is distributed annually to the regulated
community, EPA states the following:
EPA included the de minimis exemption in the [1988] rule as a
burden-reducing step, primarily because facilities are not likely to
have information on the presence of a toxic chemical in a mixture or
trade name product beyond that available in the product's MSDS. For
threshold determinations, the de minimis exemption applies to: A
listed toxic chemical in a mixture or trade name product received by
the facility. . . .The de minimis exemption does not apply to: A
toxic chemical manufactured at the facility that does not remain in
a product distributed by the facility. A threshold determination
must be made on the annual quantity of the toxic chemical
manufactured regardless of the concentration. For example,
quantities of formaldehyde created as the result of waste treatment
must be applied toward the threshold ``for manufacture'' of this
toxic chemical, regardless of the concentration of the toxic
chemical in the waste.
EPA believes that there is nothing in EPA's discussion for purposes
of today's action or the proposed rule that is inconsistent with the
regulatory text at 40 CFR 372.38(a), the preamble to that regulatory
text, or EPA's long-standing guidance on the de minimis exemption.
One commenter requested that EPA clarify whether the de minimis
exemption applies to EPCRA section 313 toxic chemicals present as
constituents of wastes received from off-site at RCRA subtitle C
permitted facilities. Another commenter stated that if EPA adopts an
interpretation of ``otherwise use'' to include certain waste treatment
activities, then EPA must indicate that the de minimis exemption
applies the same way to wastes received from other facilities as it
does to any other mixture or trade name product. Other commenters asked
whether the same de minimis concentrations applies to EPCRA section 313
toxic chemicals that are constituents of hazardous waste.
The de minimis exemption applies solely to mixtures. In
promulgating this exemption, EPA provided the following rationales for
adopting a de minimis exemption for mixtures:
[Commenters] asserted that it would be both unreasonable and
extremely burdensome for processors and users of [mixtures and trade
name products] to have to account for these quantities in developing
threshold determinations. In addition, commenters asserted that is
would be equally as burdensome for suppliers of these products to
have to determine and disclose small percentages of section 313
chemicals in their products beyond that currently required under the
OSHA HCS. . . .
EPA believes that it is necessary to provide a de minimis
limitation to help reduce the burden both on the part of the user
and the supplier of such products....Second, EPA does not expect
that the processing and use of mixtures containing less than the de
minimis concentration would, in most instances, contribute
significantly to the threshold determinations and releases of listed
toxic chemicals from any given facility. (53 FR 4509)
For purposes of the de minimis exemption, EPA's long-standing
interpretation for facilities with SIC codes 20 through 39 has been
that the term ``mixture'' does not include wastes; this means that the
de minimis
[[Page 23846]]
exemption does not apply to the ``processing'' or ``otherwise use'' of
a waste stream. EPA has chosen to retain this interpretation for this
rulemaking for a number of reasons, even though this means that the de
minimis exemption will not be available to RCRA Subtitle C treatment,
storage, and disposal facilities (TSDs) for many of the activities at
their facilities.
EPA's rationale for whether a facility could apply the de minimis
exemption to ``processing'' or ``otherwise use'' activities was based
on the likelihood that parties would have knowledge of the constituents
of a mixture at levels below the levels required by the OSHA Hazard
Communication Standards (HCS). For example, EPA determined that for
manufactured by-products, additional factors made it likely that a
facility would be able to characterize the individual constituents
based on readily available information, notwithstanding that such
levels of characterization were not required by the HCS. EPA noted in
the 1988 preamble that:
EPA believes that the facility should be able to quantify the
annual aggregate pounds of a byproduct which is not an impurity
because the substance is seperated from the production stream and
used, sold, or disposed of. . .'' (53 FR 4505)
Further, it is clear from the 1988 preamble that EPA originally
equated the term ``mixtures'' with trade name products, and these
products have certain unique attributes that EPA believes generally are
not applicable to wastes. For example, manufacturers of trade name
products may have an incentive not to provide information on
constituents below de minimis levels out of concerns about protecting
trade secret information. Consequently, it was highly likely that
facilities ``processing'' or ``otherwise using'' such products would
have no way of determining whether such constituents were present,
without potentially extensive sampling of the product. By contrast,
waste generators have no similar commercial incentive to conceal the
components of the wastes they ship off-site to TSDs. Moreover, as noted
in Unit V.H.5. of this preamble, TSDs are required under RCRA
regulations to conduct routine sampling of the wastes they manage, and
EPA believes that facilities have an incentive to regularly conduct
monitoring to ensure that they remain within their permit.
Moreover, if facilities genuinely have no information on the
constituents of the wastes they manage, they are not required to
collect such information in order to comply with the EPCRA section 313
reporting requirements.
EPA plans to review the de minimis exemption and the assumptions
upon which it is based, in light of data that will be collected under
this rule, and the additional facilities' experiences in reporting.
Subject to the results of its review, EPA may elect to initiate
rulemaking to modify the exemption.
2. Interpretation of the ``otherwise use'' reporting threshold.
Several commenters contend that EPA should modify the regulatory
definition of ``otherwise use'' to reflect EPA's revised
interpretation. They contend that revision of the definition of
``otherwise use'' would be the best way to clarify the meaning of the
term.
While EPA believes that the current regulatory definition of
``otherwise use'' is very broad and covers EPA's revised
interpretation, EPA is amending the definition of ``otherwise use'' to
reflect EPA's revised interpretation in order to minimize any
difficulties in interpreting the meaning of the term.
One commenter contends that ``EPA needs to clarify that when a
facility receives both `on-site' waste and `off-site' wastes, only the
`off-site' waste is used in determining reporting thresholds.''
EPA agrees that threshold determinations for ``otherwise use''
should not include quantities of the toxic chemical stabilized,
disposed, or treated for destruction unless the facility received the
toxic chemical for purposes of waste management or generated the toxic
chemical during waste management of a material received from off-site.
As a result of comments, EPA is clarifying its interpretation of
``otherwise use'' and incorporating its interpretation into a revised
definition as follows:
``Otherwise use'' means any use of a toxic chemical, including a
toxic chemical contained in a mixture, trade name product, or waste
that is not covered by the terms ``manufacture'' or ``process.''
Otherwise use of a toxic chemical does not include disposal,
stabilization (without subsequent distribution in commerce), or
treatment for destruction unless:
(1) The toxic chemical that was disposed, stabilized, or treated
for destruction was received from off-site for the purposes of
futher waste management; or
(2) The toxic chemical that was disposed, stabilized, or treated
for destruction was manufactured as a result of waste management
activities on materials received from off-site for the purposes of
further waste management activities. Relabeling or redistributing of
the toxic chemical where no repackaging of the toxic chemical occurs
does not constitute use or processing of the toxic chemical.
One commenter contends that EPA should clarify that threshold
determinations are based on the sum of treatment for destruction,
stabilization and disposal at the site, not each of these activities
individually.
To determine whether a facility exceeds an activity threshold for a
listed toxic chemical, the facility must sum all quantities of the
chemical for each reporting activity. For example, to determine whether
the facility exceeds the ``otherwise use'' activity threshold for a
listed EPCRA section 313 toxic chemical, the facility must sum all
quantities of the chemical that undergo an ``otherwise use'' activity.
The facility should compare the sum to the 10,000 pound threshold. If
there are several ``otherwise use'' activities that involve the EPCRA
section 313 chemical, the facility should not compare the quantity of
the chemical in each activity to the otherwise use threshold. For
example, a facility that receives quantity ``X'' of an EPCRA section
313 toxic chemical for purposes of further waste management treats for
destruction quantity ``X-Y'' of an EPCRA section 313 toxic chemical,
disposes of quantity ``Y'' of the EPCRA section 313 toxic chemical, and
also ``otherwise uses'' a third separate quantity, ``Z,'' of the EPCRA
section 313 toxic chemical as a catalyst. The facility should sum the
quantities that are treated for destruction, disposed, and used as a
catalyst and should compare this quantity (``X''+``Z'') to the
``otherwise use'' threshold.
Waste Management Incorporated (WMI) comments that EPA's
interpretation of ``otherwise use'' to include disposal, explicitly
contradicts the plain meaning of the statute. WMI states that ``[w]e do
not believe that any reasonable construction of `use' means `disposal,'
`discard,' or `abandon.''' The commenter states that ``[w]e believe the
presence of the adjective `otherwise' means `use' must in some way be
akin to `manufacture' or `process,' i.e., the `use' must add value.''
Finally, WMI argues that Congress's failure to include the terms,
``manage,'' ``handle,'' or ``possess,'' in EPCRA section 313 implies a
specific legislative intent to exclude disposal.
EPCRA section 313 defines ``manufacture'' and ``process,'' but not
``otherwise use.'' As EPA noted in the preamble to the proposed rule,
because Congress did not provide a definition of ``otherwise use,'' and
did not provide an explanation or discussion of the term in the
legislative history, EPA interpreted the term to most appropriately
meet the intent of EPCRA section 313.
EPA first considered the plain language of the statute. The
statutory context indicates that the term ``otherwise'' was intended to
capture all ``uses'' of a chemical that are not
[[Page 23847]]
``manufacturing'' or ``processing.'' Contrary to the commenters'
suggestion, the effect of the term ``otherwise'' is to distinguish
these uses from ``manufacturing'' and ``processing.'' If Congress
considered ``otherwise use'' to be akin to ``manufacture'' or
``process,'' there would have been no reason to apply a different
threshold to this activity. Further, EPA considers the commenter's
definition of manufacture and processing--as activities that only ``add
value to another product or the chemical itself''--to be too narrow.
EPA believes that this interpretation is inconsistent with the
statutory definition of ``manufacture,'' which includes importation of
a toxic chemical. 42 U.S.C. section 11023(b)(1)(C)(I). Importation does
not add value to a toxic chemical; rather it is a service that benefits
a particular facility, just as a facility that manages wastes received
from other facilites provides a service that benefits particular
facilities. Similarly, the commenter's interpretation would not address
all of the concepts included within the definition of ``processing.''
The definition of ``processing'' encompasses the concept that a
facility intends to obtain a commercial benefit from its activities
with the toxic chemical: the term ``process'' is restricted to the
preparation of the chemical ``for distribution in commerce.'' 42 U.S.C.
section 11023(b)(1)(C)(ii) (emphasis added). Consistent with the
commercial benefit concept embodied by the definitions of
``manufacturing'' and ``processing,'' EPA's revised interpretation
includes uses beneficial in providing a product or a service. This
would clearly encompass a RCRA Subtitle C facility, which employs EPCRA
section 313 chemicals, when it manages or disposes of wastes received
from off-site generators for the purpose of obtaining a commercial
benefit. EPA's inclusion of disposal within the definition of
``otherwise use'' is consistent with the Congressional definitions of
``manufacture'' and ``process,'' as all of these activities benefit the
facility engaging in them.
EPA also considered the relevant goals and purposes of reporting
under EPCRA section 313. As EPA discusses in Unit V.A. of this
preamble, the relevant purposes of EPCRA include informing the public
of the use, release and other waste management activities of toxic
chemicals in their community. Congress wanted the reporting
requirements of EPCRA to be applied broadly, and to provide the
greatest amount of information to the public and federal, state, and
local governments. Moreover, Congress found information on chemical
management activities relevant to the needs of local communities in
requiring that information include, for example, information on waste
streams and how they are handled. See, e.g., 42 U.S.C. section
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 Congress would intend any
provision of EPCRA section 313 to be interpreted to significantly limit
the information to the public. Because interpreting the definition of
``otherwise use'' narrowly can have the unintended impact of limiting
the amount and kind of information readily available to the public, EPA
believes that the term ``otherwise use'' should be interpreted more
broadly than EPA has interpreted it in the past.
EPA also disagrees that the failure to include a term such as
``manage'' implies Congressional intent to exclude waste management
activities. Where Congress intended to exempt specific activities, it
did so explicitly, as, for example, exempting transportation activities
in EPCRA section 327. Accordingly, EPA believes it is reasonable to
assume that, had Congress intended to exclude waste management
activities, it would have provided a similar exemption.
The American Petroleum Institution (API), in comments on the
Information Collection Request (ICR) for this rulemaking, contends that
the revised interpretation of ``otherwise use'' has several problems.
API believes that EPA's definition of ``treatment for destruction'' is
inconsistent with the interpretation of ``otherwise use.'' The
commenter contends that under the interpretation of ``otherwise use,''
a ``non-listed'' chemical that is received from off-site can trigger
reporting if it is ``treated for destruction.'' If a chemical is ``non-
listed,'' any process using the chemical could be ``treatment for
destruction'' because the chemical already is a ``substance that is no
longer a toxic chemical subject to reporting under EPCRA section 313.''
EPA believes that the commenter misunderstands the proposed
definition of ``treatment for destruction.'' In the proposed rule at 61
FR 33597, EPA proposed to define ``treatment for destruction'' as
follows:
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.
By use of the words ``no longer a toxic chemical subject to EPCRA
section 313 reporting,'' it is clear that ``treatment for destruction''
involves the destruction of a listed toxic chemical. Therefore, any
process, even a destruction activity, on a ``non-listed'' chemical
would not be ``treatment for destruction.''
In addition, based on the comment provided, EPA believes there may
be some confusion regarding the reporting requirements of EPCRA section
313. The commenter mistakenly believes that EPCRA section 313 activity
threshold determinations and reporting are not limited to toxic
chemicals that are listed at 40 CFR 372.65. No reports are required for
chemicals that are not on that list. An activity on a non-listed
chemical does not trigger reporting for a listed or ``non-listed''
chemical. Further, for threshold determinations under EPCRA section
313, a facility need only consider activities that occur at that
facility. The commenter appears to believe that a facility that
receives for further waste management a chemical that is not listed at
40 CFR 372.65 must assume that some precursor to that chemical was an
EPCRA section 313 chemical that was ``treated for destruction'' and
consider activities involving those ``non-listed'' chemicals in
threshold determinations. This does not follow, most obviously because
the ``non-listed'' chemical may not have been made by the destruction
of a listed toxic chemical. Moreover, even if the precursor to the
chemical were a listed toxic chemical, the reporting facility would not
be required to include the ``treatment for destruction'' of a chemical
by and at another facility in its calculations of the ``otherwise use''
activity threshold.
Further, EPA believes there may be some confusion regarding EPA's
revised interpretation of ``otherwise use'' and proposed definition of
``treatment for destruction,'' and guidance for calculating activity
thresholds. In the proposed rule (see 61 FR 33598), EPA interpreted
``otherwise use'' 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
[[Page 23848]]
the toxic chemical occurs does not constitute use of the toxic
chemical.
The interpretation of ``otherwise use'' includes the phrase ``the
facility receives materials from other facilities for purposes of
further waste management activities.'' EPA purposely used the word
``materials'' rather than ``EPCRA section 313 listed toxic chemicals''
to avoid a situation where a facility that receives materials for
further waste management would not report on an EPCRA section 313 toxic
chemical that it treated for destruction, stabilized or disposed. This
situation could exist if EPA were to limit its interpretation of
otherwise use by replacing ``materials'' with ``EPCRA section 313
listed toxic chemicals.'' This situation is illustrated in the
following example.
Facility ``X'' receives chemical A from off-site. Chemical A is
not an EPCRA section 313 listed toxic chemical. The facility treats
for destruction chemical A. Since chemical A is not an EPCRA section
313 listed toxic chemical, this activity is not reportable. In
treating for destruction chemical A, 11,000 pounds of chemical B,
which is an EPCRA section 313 listed toxic chemical, is
``manufactured,'' and subsequently disposed on-site. (Note that the
quantity of chemical B ``manufactured'' is less than the 25,000
pound ``manufacturing'' threshold).
Absent EPA's clarification in the proposed interpretation, the quantity
of chemical B disposed is not otherwise used, because chemical A, which
was the material received from off-site for further waste management,
is not an EPCRA section 313 listed toxic chemical. In contrast, as EPA
has proposed ``otherwise use,'' the disposal of chemical B in the
example above would be a reportable activity.
The proposed rule contains several alternatives to EPA's
interpretation of otherwise used. A commenter contends that the
interpretation of ``otherwise use'' that EPA chose was more burdensome
than the alternative in which there was no ``condition that the
chemicals originate off-site.'' EPA disagrees with the commenter's
statement that it chose an option that is more burdensome than the
alternative discussed. The alternate interpretation discussed in the
proposed rule 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.'' (see 61 FR
33598). The alternative affects a larger universe than the
interpretation EPA chose because the alternative requires that every
covered facility compare the quantities of an EPCRA section 313 listed
toxic chemical that it treats for destruction, stabilizes, or disposes
with the ``otherwise use'' threshold. The interpretation that EPA chose
requires only those facilities, that either receive an EPCRA section
313 toxic chemical from other facilities for purpose of further waste
management or manufactures an EPCRA section 313 toxic chemical as a
result of waste management activities conducted on materials received
from off-site, to compare the quantities of that EPCRA section 313
listed toxic chemical that it treats for destruction, stabilizes, or
disposes with the ``otherwise use'' threshold.
The American Automobile Manufacturers Association (AAMA) contends
that if EPA's proposed interpretation of ``otherwise used'' is
promulgated, then manufacturing facilities in SIC codes 20 through 39
would have to calculate threshold determinations in two ways--how much
is destroyed in control equipment such as oven incinerators, as well as
how much is ``manufactured/processed or otherwise used.'' They contend
that EPA should exclude on-site treatment and Clean Air Act (CAA)/Clean
Water Act (CWA) control equipment at non-treatment, stabilization, and
disposal facilities (TSD) facilities for purposes of performing
otherwise use threshold determinations.
EPA does not agree that all treatment for destruction that occurs
at facilities will be considered as ``otherwise use'' activities.
``Treatment for destruction'' of an EPCRA section 313 toxic chemical
constitutes an ``otherwise use'' only if the EPCRA section 313 toxic
chemical is received from other facilities for purposes of further
waste management activities or if the EPCRA section 313 toxic chemical
is produced as a result of the waste management of a material received
from off-site.
Also, EPA does not believe that there will be two groups of
threshold determinations as AAMA describes. As ``otherwise use'' is
defined, for certain cases ``treatment for destruction' is considered
an ``otherwise use'' activity. There is nothing distinctive about EPA's
approach for ``otherwise use'' as compared to its approach for
interpreting ``manufacture'' or ``process.'' Further, EPA does not
believe that it is appropriate to exclude on-site treatment and
destruction of listed toxic chemicals in CAA/CWA control equipment at
non-TSD facilities if: (1) The EPCRA section 313 toxic chemical that
was treated for destruction was received by the facility from off-site
for purposes of further waste management or (2) the EPCRA section 313
toxic chemical that was treated for destruction was ``manufactured'' as
a result of waste management activities on materials received from
other facilities for the purposes of further waste management
activities. EPA believes that to do so would perpetuate a loophole that
exists in reporting on EPCRA section 313 toxic chemicals. EPA believes
that the public has a right-to-know about these releases and other
waste management activities.
Amoco states that the definition of ``otherwise use'' should not be
changed to capture the commercial hazardous waste treatment and solvent
recovery industries as these sectors can be easily accommodated by
``manufacture'' and ``process'' definitions.
EPA is not revising its interpretation of ``otherwise use'' simply
to ``capture'' a particular industry as the commenter has suggested.
Rather, EPA is revising its interpretation to close an informational
gap created by EPA guidance. EPA's revision will ensure reporting of
information about the handling of chemicals that is valuable for the
public to know, and therefore relevant to the purposes of EPCRA section
313. EPA is revising its interpretation of ``otherwise use'' because,
as stated at 61 FR 33596, of the proposed rule, ``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.''
EPA acknowledged the same concerns for the candidate industries,
including RCRA Subtitle C treatment and disposal facilities and solvent
recovery facilities. Thus, EPA announced its intent to revise the past
interpretation of ``otherwise use'' for all industries subject to EPCRA
section 313 to rectify the loss of information from certain facilities
within SIC codes 20 through 39 and the potential loss of information
from added facilities.
Amoco also suggests that the activities within the commercial
hazardous waste treatment and solvent recovery industries can be
``easily accommodated by `manufacture' and `process' definitions.''
EPA agrees that pursuant to current statutory and regulatory
definitions, facilities within the hazardous waste treatment and
solvent recovery industries ``manufacture'' and ``process'' EPA section
313 toxic chemicals. For example, these facilities may coincidentally
manufacture section 313 toxic chemicals during waste
[[Page 23849]]
management activities. These facilities may also ``process'' section
313 toxic chemicals during solvent recycling operations. In addition,
under EPA's past interpretation of ``otherwise use,'' these facilities
``otherwise use'' EPCRA section 313 during waste management activities
to neutralize chemicals wastes or to facilitate the waste management
process. These activities and the information expected to be reported
as a result of these activities serve as independent bases for adding
these industries.
However, EPA disagrees that ``treatment for destruction,''
``stabilization'' (without subsequent distribution in commerce) and
``disposal'' are ``manufacture'' or ``processing.'' The definitions of
``manufacture'' and ``process'' as defined in the final rule
implementing the reporting requirements of EPCRA section 313 (40 CFR
372.3) are as follows:
Manufacture means to produce, prepare, import, or compound a
toxic chemical. Manufacture also applies to a toxic chemical that is
produced coincidentally during the manufacture, processing, use, or
disposal of another chemical or mixture of chemicals, including a
toxic chemical that is separated from that other chemical or mixture
of chemicals as a byproduct, and a toxic chemical that remains in
that other chemical or mixture of chemicals as an impurity.
Process means the preparation of a toxic chemical, after its
manufacture, for distribution in commerce:
(1) 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 substance, or
(2) As part of an article containing the toxic chemical. Process
also applies to the processing of a toxic chemical contained in a
mixture or trade name product.
EPA does not believe that the definitions of ``manufacture'' or
``process'' as currently written, should incorporate the activities of
treatment for destruction, stabilization, or disposal. The definition
of ``manufacture'' includes produce, a synonym of which is create. EPA
believes that neither stabilization nor disposal of a listed toxic
chemical is the creation of that chemical. Nor does EPA believe that
treatment for destruction of a listed toxic chemical is creation of
that listed toxic chemical. EPA also does not believe that these
activities can be considered to be the preparation, importation, or
compounding of a toxic chemical. ``Process'' requires that the toxic
chemical either in the same form or physical state as, or in a
different form or physical state be prepared for distribution in
commerce. EPA believes that disposal on-site, stabilization without
subsequent distribution in commerce, and treatment for destruction do
not involve the preparation of a toxic chemical for distribution in
commerce. Thus, these would not be considered ``processing''
activities.
The Department of Energy requested guidance on how one would report
under EPCRA section 313 on the constituents of waste if the origin or
the chemical constituents of the waste received from offsite are
unknown. For example, the Department of Energy has a backlog of wastes
remaining from the research, development and production of nuclear
weapons that is currently in storage awaiting treatment or disposal. A
substantial volume of these ``legacy wastes'' is radioactive mixed
waste (i.e., waste that contains both a hazardous (as defined under
RCRA) and a radioactive component), and the Department is concerned
that for some of these wastes it does not have information that will
allow it to identify the individual toxic chemical constituents of
these wastes. The Department is concerned that, if records cannot be
found to identify the origin and individual toxic chemical constituents
of this waste, in order to complete the TRI reporting, additional
characterization would be needed that could increase the potential for
worker exposure to radioactive material.
In the case where there is no readily available information on
either the presence or concentration of toxic chemicals in wastes, a
potential reporter is not required to undertake activities to
characterize these wastes in order to make threshold determinations and
report releases of toxic chemicals in these wastes, provided that these
characterization activities are not otherwise required either by other
regulations or as part of the facility's treatment or disposal
activities. Under EPCRA section 313, a facility is only required to use
the best available information when making threshold determinations and
release and other waste management calculations.
3. Coincidental manufacture definitions and related reporting
issues. Many commenters state that during combustion of coal or oil,
metals and metal compounds in these fuels simply undergo a change in
the valence state. They contend that this change should not be
considered to be ``coincidental manufacture'' of a chemical. They claim
this is a new interpretation of ``manufacture'' as defined in EPCRA
section 313 that is inconsistent with previous guidance and that was
``proposed'' in order to capture releases from combustion processes at
electric utilities.
EPA disagrees with the commenters. In the proposed rule, EPA
discusses ``manufacture'' as it applies to coal and oil combustion, EPA
stated that:
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 (emphasis added). (61 FR 33601).
EPA disagrees that this is a new interpretation of manufacture. If a
metal undergoes a valence state change, a metal compound will be
``manufactured'' since the metal ion that results from the change in
valence state of the metal will combine with another element. For
example, if copper(0) (i.e., copper in valence state 0) changes valence
state to copper(+2) (i.e., copper in valence state +2) then the
copper(+2) will combine with some other element such as oxygen. The
resulting product, in this case copper oxide, is a metal compound and
thus, a metal compound has been ``manufactured.'' In order to produce
the copper compound from copper, there must be a change in the valence
state of the metal. As cited above, EPA also stated that the
``manufacture'' of metal compounds ``may or may not involve a change of
valence state.'' For example, if copper sulfate, in which copper's
valence state is +2, is converted to copper oxide during combustion, no
change in the valence state of copper occurs (i.e., the copper in
copper oxide still has a +2 valence state), but a new metal compound
(copper oxide) has been manufactured. There may also be cases in which
the metal compound is not changed at all during combustion. For
example, if beryllium oxide is in the coal and remains as beryllium
oxide after combustion of the coal, then no manufacture of a metal
compound has occurred. In any event, the test of whether a metal
compound has been ``manufactured'' is not whether there has been a
change in the valence state of the metal but whether a metal compound
has in fact been ``manufactured'' as a result of the combustion of the
coal or oil. If a metal is converted to a metal compound or if one
metal compound is converted to another metal compound, then a metal
compound has been ``manufactured.''
In the proposed rule, EPA did not propose either a new definition
or interpretation of ``manufacture'' in order to capture releases from
electric utilities. The information provided in
[[Page 23850]]
the proposed rule concerning valence state changes and the
``manufacture'' of metal compounds was included to ensure that parties
affected by the proposed addition of certain new industries would
understand that during the combustion of coal and oil it is possible to
``coincidentally manufacture'' EPCRA section 313 toxic chemicals,
including metal compounds. The discussion of ``manufacture'' in the
proposed rule and as outlined above is consistent with the definition
of ``manufacture'' used under EPCRA section 313. For example, on page 8
of EPA's 1995 Toxic Chemical Release Inventory Reporting Form R and
Instructions (EPA 745-K-96-001) it is stated that ``The term
manufacture also includes coincidental production of a toxic chemical
(e.g., as a byproduct or impurity) as a result of the manufacture,
processing, otherwise use, or treatment of other chemical substances.''
This statement is consistent with the definition of ``manufacture''
codified at 40 CFR part 372, which is consistent with the statutory
definition found in EPCRA section 313(b)(1)(C)(I). As discussed in more
detail in the Response to Comments document (Ref. 15), EPA has provided
guidance to facilities within the manufacturing sector that a chemical
that is created during combustion is considered to be ``coincidentally
manufactured'' as a byproduct. This includes guidance that is specific
to coal combustion.
There is nothing unique or special about the ``coincidental
manufacture'' of toxic chemicals, including metal compounds, during
combustion processes, such as the combustion of coal. Clearly
combustion processes can result in the ``coincidental manufacture'' of
toxic chemicals. In fact, standard manufacturing processes for making
metal compounds can be similar to combustion processes, such as the
combustion of coal. For example, zinc oxide is ``manufactured'' by
burning (oxidizing) zinc vapor (Ref. 2). In addition, metal compounds
are often ``manufactured'' from other metal compounds with or without a
valence state change. For example, there is no change of the valence
state of the metal in the ``manufacture'' of barium carbonate from
barium sulfide (i.e., barium has a +2 valence state in both the
carbonate and the sulfide) (Ref. 2, Vol. 3, page 466), yet this is
clearly the ``manufacture'' of a metal compound. Therefore, if a metal
is converted to a metal compound or if a metal compound is converted to
another metal compound as the result of the combustion of coal, a metal
compound has been ``manufactured'' as defined under EPCRA section 313.
Several commenters state that the statutory definition of
``manufacture'' found in EPCRA section 313(b)(1)(C)(I) does not include
``coincidental manufacture'' and that the definition at 40 CFR 372.3
should be consistent with the statutory definition. EPA disagrees with
the commenters. The definition of ``manufacture'' found under EPCRA
section 313(b)(1)(C)(I) reads as follows:
The term manufacture means to produce, prepare, import, or
compound a toxic chemical.
This definition does not preclude the ``coincidental manufacture''
of a chemical. A chemical that is ``coincidentally manufactured'' can
certainly be considered as having been produced. When EPA finalized the
rule implementing the reporting requirements of EPCRA section 313, the
definition of ``manufacture'' was clearly interpreted to include the
``coincidental manufacture'' of a chemical (53 FR 4500, February 16,
1988). EPA does not believe that there is any inconsistency between the
statutory definition and the definition as explained in the 1988 final
rule. EPA addressed this issue in that final rule See 53 FR 4504.
4. Interpretation of waste management activities. A number of
commenters contend that ``a regulatory definition or interpretation of
`management activity'. . .is needed.'' One commenter, WMI states that
it is concerned with the ``lack of clarity'' because there are waste
management activities that are conducted at hazardous waste facilities
that do not involve treatment and disposal. WMX also suggests that the
Agency ``clarify that if the only `management activity' which occurs is
storage, container transfer or tank transfer, then these activities do
not fall under the `otherwise use' definition as proposed, and thus
would not require reporting.''
EPA interprets waste management to include the following
activities: recycling, combustion for energy recovery, treatment for
destruction, waste stabilization, and release, including disposal.
Waste management does not include the storage, container transfer, or
tank transfer if no recycling, combustion for energy, treatment for
destruction, waste stabilization or release of the chemical occurs at
the facility.
EPA's interpretation of the terms ``recycling,'' ``combustion for
energy recovery,'' ``treatment for destruction,'' and ``waste
stabilization'' are discussed in Ref. 13. ``Combustion for energy
recovery,'' ``treatment for destruction,'' and ``waste stabilization''
are also discussed in Units IV.E.6., IV.E.7., and IV.E.8.,
respectively, of this preamble. EPCRA section 329(8) defines
``release.''
Some commenters believe that EPA should define ``waste,''
particularly because EPA is adding a segment of the waste management
industry. AAMA believes that EPA should ``provide clear guidance for
all covered facilities with respect to the definition of waste,
especially in the context of recycling.'' The Chemical Manufacturers
Association (CMA) contends that EPA ``should define a waste stream
under the PPA reporting requirements so there is not ambiguity about
which wastes really are wastes.''
EPA is providing guidance on waste management activities in the
document entitled Interpretations of Waste Management Activities:
Recycling, Combustion for Energy Recovery, Treatment for Destruction,
Waste Stabilization, and Release (Ref. 13). EPA will provide regulatory
definitions on waste when it reproposes the PPA reporting requirements
in the near future.
5. Recycling as a process activity. WMI and Safety Kleen support
EPA's interpretation of recycling as a process activity. The Department
of Energy contends that the ``interpretation of the term ``processing''
to include toxic chemicals contained in materials being recovered/
recycled and subsequently distributed in commerce is new and that this
interpretation raises issues needing clarification.'' They question
whether this interpretation applies only to wastes received from off-
site or from all recovery/recycling operations. They also question how
they should report if the recovery operation takes place in one
reporting year and the reuse operation takes place in a future
reporting year.
EPA's interpretation of ``processing'' stated in the proposal is
not new. In the proposed rule, EPA stated that the recovery of an EPCRA
section 313 listed toxic chemical for further distribution or
commercial use is ``processing'' of that chemical. This interpretation
applies to recycling activities where the EPCRA section 313 listed
toxic chemical that is recovered is distributed in commerce. If a
facility recycles an EPCRA section 313 listed toxic chemical and uses
that material at the facility, e.g., as a solvent, and the EPCRA
section 313 listed toxic chemical is not distributed in commerce, the
chemical is ``otherwise used.'' This guidance is not new to this
rulemaking. EPA has provided this guidance on recycling activities that
have occurred at covered facilities since the inception of the program.
EPA has not changed its interpretation of
[[Page 23851]]
``processing'' to include recycling of an EPCRA section 313 toxic
chemical only if the recycled material was received from off-site. Nor
did EPA state in the proposed rule that it intended to change its
interpretation.
In response to the question about the recovery and reuse taking
place in different reporting years, a recovered toxic chemical does not
need to be reused during the same reporting year to be reported as
``recycled.'' This is illustrated in the following examples.
Facility ``X'' removes chromium from sludge created during
wastewater treatment. The chromium that is recovered from the sludge
and is reused at the facility. Assuming all of these steps occur at
the facility within the same reporting year, the quantity of
chromium recovered from the sludge and reused is considered to be
recycled within that reporting year. As a second example, facility
``X'' treats the wastewaters, recovers the chromium from the sludge
and then stores the reusable chromium during the 1997 reporting
year. During the 1998 reporting year, the chromium is reused. EPA
considers the chromium to be recycled in the 1997 reporting year
because that is when it was recovered into a usable product.
A broader discussion of recycling is available in the document
entitled Interpretations of Waste Management Activities: Recycling,
Combustion for Energy Recovery, Treatment for Destruction, Waste
Stabilization, and Release (Ref. 13).
6. Combustion for energy recovery vs. treatment for destruction.
Safety Kleen states that it believes that ``treatment for destruction,
disposal, or stabilization is appropriately considered to be `otherwise
use' when it applies to operations that are associated with disposal
operations.'' However, Safety Kleen is concerned that waste-derived
fuel blending operations could inappropriately be considered to be
``treatment for destruction.'' Safety Kleen states ``[w]aste-derived
fuels are organic chemical waste streams which contain significant
amounts of heat value (generally greater than 5,000 British Thermal
Units (Btu) per pound) but with contamination levels that make it
either impractical or not cost effective to recover the primary
constituents from them. These fuel streams are burned as an alternative
fuel in cement kilns, for example, reducing the kilns' energy
dependence on coal or other fossil fuels.'' Safety Kleen considers the
blending of the waste-fuel streams to be analogous to the preparation
and distribution in commerce of a chemical mixture. Therefore, Safety
Kleen considers this activity to be ``processing.'' Safety Kleen also
requests that the ``otherwise use'' definition be modified to make it
clear the ``otherwise use'' applies only to ``treatment for
destruction'' if there is no subsequent distribution in commerce.
EPA believes that the commenter interprets ``treatment for
destruction'' as including the preparation of an EPCRA section 313
toxic chemical in waste for destruction because: (1) Combustion of
waste-derived fuels is an activity that results in the destruction of a
chemical(s), and (2) the commenter requests that the definition of
``otherwise use'' be modified so that it is clear the otherwise use
only applies to ``treatment for destruction'' if there is no subsequent
distribution in commerce. EPA believes that the commenter contends that
the preparation of a waste fuel which will subsequently be distributed
in commerce and destroyed could be construed as ``treatment for
destruction,'' even though no destruction of the subject EPCRA section
313 toxic chemical will occur during blending operations. EPA believes
that in discussing waste-derived fuels that have heat values of greater
than 5,000 Btus and that are combusted in cement kilns, the commenter
is implicitly referring to ``combustion for energy recovery.'' As
discussed below, for purposes of reporting on the management of wastes
under the PPA, EPA differentiates ``treatment for destruction'' from
``combustion for energy recovery.'' EPA believes that in addition to
bringing up a number of issues associated with how threshold
determinations are made for ``processing,'' ``treatment for
destruction,'' and ``otherwise use,'' the commenter also introduces the
issue of how ``treatment for destruction'' and ``combustion for energy
recovery'' are reported on the Form R.
EPA agrees with the commenter that the act of fuel blending is not
in itself now considered ``otherwise use'' nor would it be considered
``otherwise use'' under EPA's revised interpretation of that term. If a
facility blends and subsequently distributes in commerce a waste-
derived fuel, the facility is ``processing'' the EPCRA section 313
toxic chemicals that are constituents of that waste-derived fuel.
However, if subsequent to blending the waste-derived fuel, that same
facility combusted on-site the waste-derived fuel in an energy recovery
unit, e.g., a cement kiln, the facility would be ``otherwise using''
the EPCRA section 313 constituents of the waste-derived fuel. Note that
this facility is ``otherwise using'' the EPCRA section 313 toxic
chemicals that are constituents of the waste-derived fuel regardless of
whether the facility generated the waste-derived fuel or received it
from another facility for purposes of waste management. Since the
inception of the program, EPA has considered that an EPCRA section 313
listed toxic chemical that is a constituent of a fuel that is combusted
on-site is being ``otherwise used'' (see EPA's 1995 Toxic Chemical
Release Inventory Reporting Form R and Instructions (EPA 745-K-96-001),
page 23). If the facility that blended the waste-derived fuel
distributes this fuel in commerce, the facility that receives and
combusts the waste-derived fuel would compare the quantities of the
EPCRA section 313 listed toxic chemicals in this fuel with the
``otherwise use'' threshold, provided that the receiving facility is a
covered facility.
Thus, for purposes of identifying whether an ``otherwise use''
activity is being conducted, EPA distinguishes between the ``otherwise
use'' of an EPCRA section 313 toxic chemical through the ``treatment
for destruction'' and the ``otherwise use'' of an EPCRA section 313
toxic chemical that is a constituent of waste-derived fuels combusted
in an energy recovery unit. Under EPA's existing guidance on
``otherwise use,'' an EPCRA section 313 toxic chemical that is a
constituent of waste-derived fuel combusted in an energy recovery
device is ``otherwise used'' by the facility, regardless of the origin
of the waste-derived fuel. The EPCRA section 313 chemical that is a
constituent of the waste-derived fuel is considered ``otherwise used''
for energy recovery because it is combusted in an energy recovery unit.
This is simply one application of EPA's guidance on the ``otherwise
use'' of EPCRA section 313 toxic chemicals in any fuel. EPA's revised
definition of ``otherwise use'' also considers the ``treatment for
destruction'' of an EPCRA section 313 toxic chemical to be ``otherwise
use,'' but only if the facility destroying the toxic chemical received
the chemical from another facility for waste management purposes or if
the toxic chemical was produced as a result of managing waste materials
received from another facility.
However, EPA notes that once the ``otherwise use'' threshold has
been met, for reporting the activity under section 6607 of the PPA the
combustion of the EPCRA section 313 toxic chemical in waste-derived
fuel is reported as ``combustion for energy recovery'' only if certain
conditions are met. Under EPA's interpretation of ``combustion for
energy recovery,'' EPCRA section 313 toxic chemicals that have
significant heat value and that are combusted in an energy recovery
unit are ``combusted for
[[Page 23852]]
energy recovery.'' EPA believes that while ``combustion for energy
recovery'' can be considered ``treatment for destruction'' of the toxic
chemical because it results in the destruction of the EPCRA section 313
toxic chemical, it can also be considered to have aspects of
``recycling'' because it may also result in the beneficial reuse of the
chemical. Therefore, EPA believes that quantities of an EPCRA section
313 toxic chemical in waste that are combusted in an energy recovery
unit should not be considered to be solely the ``treatment for
destruction'' of the toxic chemical. EPA believes that for the purposes
of the PPA, reporting quantities ``combusted for energy recovery''
should be restricted to devices where energy is produced from the
combustion of the toxic chemical and harnessed. Such a restriction
distinguishes, in keeping with PPA section 6607, between combustion of
an EPCRA section 313 toxic chemical for the purpose of producing energy
and destruction of the toxic chemical with no recovery of energy. EPA
also believes that a threshold for the heating value of the toxic
chemical should be set to determine whether the chemical should be
reported as ``combusted for energy recovery'' or ``treated for
destruction.'' EPA believes that the threshold applied should be the
same threshold used in EPA's RCRA enforcement guidance to distinguish
between energy recovery and incineration (48 FR 11158, March 16, 1983),
of 5,000 Btus per pound.
Specifically, EPA interprets ``combustion for energy recovery'' as
the combustion of a toxic chemical that (1) is (i) a RCRA hazardous
waste or waste fuel, (ii) a constituent of a RCRA hazardous waste or
waste fuel, or (iii) a spent or contaminated ``otherwise used''
material; and that (2) has a heating value greater than or equal to
5,000 Btus per pound in an ``energy or materials recovery device.'' EPA
believes that the Btu value of the toxic chemical is the value listed
either in (i) ``Design Institute of Physical Property Data Pure
Component Data Compilation'', 1988; (ii) Domalski, Eugene S. and
Hearing, Elizabeth D. ``Estimation of the Thermodynamic Properties of
C-H-N-O-S Halogen Compounds at 298.15 K. Journal of Physical and
Chemical Reference Data, V22 #4, 1993; (iii) Domalski, Eugene S.
``Selected Values of Heats of Combustion and Heats of Formation of
Organic Compounds Containing the Elements C, H, N, O, P, and S.''
Journal of Physical and Chemical Reference Data, V22 #4, 1972; (iv)
``CRC Handbook of Chemistry and Physics'', 1988; or in the absence of
such listing, generated by EPA using either the American Society for
Testing Materials (ASTM) Computer Program for Chemical Thermodynamic
and Energy Release Evaluation Version 7.0, 1994, or the National
Institute of Standards and Technology Estimation of the Chemical
Thermodynamic Properties for Organic Compounds at 298.15K, 1994.
EPA considers an ``energy or materials recovery device'' to be an
industrial furnace or boiler as defined in 40 CFR 372.3.
EPA considers any toxic chemical that is burned and meets the
criteria described in part (1) of the interpretation, but which has a
heating value less than 5,000 Btus per pound, as provided in part (2)
of the definition interpretation, to be ``treated for destruction''
rather than ``combusted for energy recovery.'' This is regardless of
the type of device in which it is combusted. A discussion of this
interpretation is provided in Ref. 13.
EPA believes revision of its proposed definition of ``treatment for
destruction'' is necessary in response to the comments received and to
reflect the difference between ``treatment for destruction'' and
``combustion for energy recovery.'' EPA's revised definition for
``treatment for destruction'' follows.
Treatment for destruction means the destruction of the toxic
chemical in waste such that the substance is no longer the toxic
chemical subject to reporting under EPCRA section 313. This does not
include the destruction of a toxic chemical in waste where the toxic
chemical has a heat value greater than 5,000 British thermal units
and is combusted in any device that is an industrial furnace or
boiler as defined at 40 CFR 260.10.
EPA reiterates that an EPCRA section 313 toxic chemical that has a
heat value of 5,000 Btus or less and that is a constituent of a waste-
derived fuel is ``otherwise used,'' regardless of the origin of the
waste material, if that waste-derived fuel is combusted in an energy
recovery unit.
7. Treatment for destruction. One commenter believes that there is
substantial confusion over the definition of ``treatment for
destruction.'' The commenter contends that it is clear that this
definition includes processes such as incineration and the commenter
believes that acid or alkaline neutralization and cyanide destruction
may qualify. However, the commenter is uncertain whether treatment
activities such as fuel blending, clarification, precipitation,
biological treatment and carbon absorption will be covered. These
processes are considered ``treatment'' under current RCRA regulations.
EPA has defined ``treatment for destruction'' as ``the destruction
of the toxic chemical in waste such that the substance is no longer the
toxic chemical subject to reporting under EPCRA section 313. . . .''
EPCRA section 313 and PPA section 6607 reporting data elements are
generally chemical-specific not waste stream-specific. Thus, reporting
on ``treatment for destruction'' activities and consideration of
``treatment for destruction'' activities for purposes of the
``otherwise use'' threshold under EPCRA section 313 focus on treatment
of the chemical not treatment of the wastestream. As such, ``treatment
for destruction'' only includes activities that chemically change the
listed EPCRA section 313 toxic chemical. EPA believes that this
includes acid or alkaline neutralization if the EPCRA section 313
listed toxic chemical is the entity which reacts with the acid or base.
EPA does not consider the EPCRA section 313 toxic chemical to be
``treated for destruction'' if the waste stream is neutralized, but a
component of the waste stream other than the EPCRA section 313 listed
toxic chemical is the entity which reacts with the acid or base. As
discussed in Unit V.E.6. of this preamble, fuel blending is often a
``processing'' activity. EPA believes that biological treatment can
result in the destruction of an EPCRA section 313 listed toxic
chemical. More generally for EPCRA section 313 purposes, EPA believes
that ``treatment for destruction'' should not include preparation of
the EPCRA section 313 toxic chemical for disposal or removal of the
toxic chemical from waste streams. Further, EPA believes that
``treatment for destruction'' should not include physical removal or
other activities intended to render the stream more suitable for
further ``otherwise use'' or ``processing,'' such as a distillation or
sedimentation unit. Additional guidance on this issue is provided in
Ref. 13.
8. Waste stabilization. In the preamble to the proposed rule, EPA
stated that it interpreted waste stabilization consistent with the
definition at 40 CFR 265.1081, except that for purposes of EPCRA
section 313 the definition should be interpreted to apply to any EPCRA
section 313 listed toxic chemical or waste containing any EPCRA section
313 listed toxic chemical. 61 FR 33596-97. EPA noted that as provided
in Sec. 265.1081, a synonym for waste stabilization is waste
solidification. Id. at 33597. One commenter states that in a Federal
Register notice of February 9, 1996 (61 FR 4903), EPA removed waste
[[Page 23853]]
solidification from the definition of waste stabilization at
Sec. 265.1081. EPA does not agree that the new language excludes
solidification from the definition of waste stabilization; rather, it
simply excludes one specific activity, the addition of absorbent
material without mixing or agitation, from the general stabilization
definition.
EPA further does not agree that the specific activity excluded from
the general definition of waste stabilization in Sec. 265.1081 should
be excluded from that definition for EPCRA section 313 purposes. That
activity was excluded because the addition of absorbent material
without mixing or agitation would not be expected to result in
emissions of volatile organic compounds. However, for purposes of
``otherwise use'' under section 313, that activity constitutes such use
in the same manner as any other waste stabilization activity.
Therefore, for purposes of EPCRA section 313, EPA defines ``waste
stabilization'' consistently with the general definition found at 40
CFR section 265.1081, which provides that waste stabilization is a
physical or chemical process used to either reduce the mobility of
hazardous constituents in a hazardous waste or eliminate free liquids
in the waste, and that this process includes mixing the hazardous waste
with binders or other materials, and curing the resulting hazardous
waste and binder mixture.
The commenter also suggests that a more appropriate definition of
waste stabilization is located at 40 CFR 268.42 Table 1. That table
does not define waste stabilization, but identifies waste stabilization
as one type of technology-based treatment standard applicable to RCRA
hazardous wastes prior to land disposal. For purposes of defining waste
stabilization as a type of ``otherwise use'' of a toxic chemical, EPA
believes that the general approach used in the definition at 40 CFR
265.1081, as discussed above, is appropriate.
F. Definitional Interpretations and Reporting Considerations
1. Reporting of releases. EPA has received approximately 50
comments on the issue of the Agency's interpretation of ``release.''
The following is a brief summary of some of the major issues raised in
those comments. Detailed responses to comments specific to mining, RCRA
Subtitle C facilities, utilities, and underground injection wells are
available in the Response to Comments document (Ref. 15).
A number of the commenters argue that EPA is unlawfully expanding
the definition of ``release.'' They contend that EPA has incorrectly
interpreted release to include, for example, the disposal of EPCRA
section 313 listed toxic chemicals in mining materials, ash, and sludge
on-site to land; the disposal of EPCRA section 313 listed toxic
chemicals into a RCRA Subtitle C facility; and the injection of EPCRA
section 313 listed toxic chemicals into underground injection wells,
particularly, Class I and II injection wells. They further contend that
in The Fertilizer Institute v. EPA, 935 F.2d 1303 (DC Cir. 1991)
(``TFI''), the court rejected EPA's expansive definition of
``release.'' Since the definition of ``release'' in EPCRA is identical
to the definition of ``release'' in CERCLA, these commenters argue that
TFI prohibits EPA from defining ``release'' under EPCRA to apply to any
of the above scenarios.
EPA believes that EPCRA section 313 does authorize the Agency to
require that the land-based disposal of toxic chemicals, including the
examples cited above, be reported on Form R as releases. The statute
directs EPA to publish a ``uniform toxic chemical release form'' and
specifies that the form is to provide for the submission of, inter
alia, ``[t]he annual quantity of the toxic chemical entering each
environmental medium.'' EPCRA section 313(g)(1). The statute broadly
defines both ``release'' to mean ``any spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping,
leaching, dumping or disposing into the environment,'' EPCRA section
329(8) (emphasis added); and ``environment'' to ``include water, air
and land and the interrelationship which exists among and between
water, air, and land and all living things.'' Id. section 329(2). Under
EPCRA, EPA interprets annual reportable quantity to include
``releases.'' EPA interprets ``release'' to include the land-based
disposal of toxic chemicals given the definition of ``release''
includes a wide variety of activities and the encompassing definition
of ``environment'' includes the land, both surface and subsurface. Even
if ``release'' were to be construed more narrowly, EPCRA does not limit
the Form R requirements to ``releases'' but calls for facilities to
report all amounts of listed toxic chemicals ``entering each
environmental medium'' annually. EPCRA section 313(g)(1)(C)(iv). EPA
does not believe that it is appropriate in this context to exclude such
disposals simply because the disposal area is intended to contain the
toxic chemicals in or on the land.
EPA has interpreted section 313(g)( 1)C)(iv) in this way from the
inception of the TRI program. Ever since reporting was first required,
for reporting year 1987, Form R has included data elements specific to
releases to land on-site: Section 5.5, entitled ``Release to Land On-
site,'' is divided into four subsections: landfill; land treatment/
application farming; surface impoundment; and other disposal. Further,
in EPA's guidance document entitled 1995 Toxic Chemical Release
Inventory Reporting Form R and Instructions (EPA 745-K-96-001), which
is provided to the regulated community every year, EPA has consistently
described releases to land to include disposal in landfills, surface
impoundments, land treatment/application farming, and other disposal.
Form R also includes a data element specific to underground injection,
Section 5.4 entitled ``Underground injections on-site,'' and the
guidance document specifically states that this data element includes
the ``total annual amount of the toxic chemical that [is] injected to
all wells, including Class I wells, at the facility.''
EPA's interpretation of its statutory authority to collect
disposals or injections to land as releases is supported by the
Conference Report, in which the House and Senate conferees emphasized
that ``[r]eporting on releases to each environmental medium under
subsection (g)(1)(C)(iv). . . shall include, at a minimum, releases to
the air, water (surface water and groundwater), land (surface and
subsurface), and waste treatment and storage facilities. Conf. Rep. at
298 (emphasis added). Representative Edgar, the principal House author
of EPCRA, further clarified this issue in stating that ``all toxic
chemicals dumped into land disposal facilities must be reported whether
or not such facilities are regulated under [RCRA].'' 132 Cong. Rec. at
H9595 col. 1 (October 8, 1996). EPA believes that this legislative
history confirms that Congress intended the release forms to include
the land-based disposal of toxic chemicals. This is true whether or not
the area receiving waste is intended to contain it, and therefore EPA
disagrees with some commenters' assertion that there must be a direct
physical contact between a listed toxic chemical and the land (or any
other environmental medium) before a ``release'' reportable under EPCRA
section 313 can occur.
EPA also does not agree with commenters' position that The
Fertilizer Institute deprives the Agency of authority to require
disposal of toxic chemicals to be reported as releases under EPCRA
section 313. That case involved a challenge to EPA's interpretation of
``release'' under CERCLA section 101(22) to include
[[Page 23854]]
disposal to unenclosed containment structures, such that CERCLA's
section 103(a) reporting requirement would be triggered by such
disposal. In response to that challenge, EPA argued that the threat of
an actual release from such a structure was great enough to justify
reporting a disposal into it as an actual release. Based on specific
provisions of CERCLA, however, the court rejected that position,
emphasizing that CERCLA ``expressly distinguish[es] between threats of
releases and actual releases,'' TFI, 935 F.2d at 1310, and concluding
that ``[u]nder CERCLA's provisions, nothing less than the actual
release of a hazardous material into the environment triggers its
reporting requirements,'' Id.
EPA believes that The Fertilizer Institute does not affect EPA's
authority to promulgate today's rule under EPCRA. Although one relevant
term, ``release,'' is defined in a similar way in both EPCRA and
CERCLA, other relevant provisions of EPCRA are defined differently and
more broadly. First, while CERCLA section 101(8) defines
``environment'' to mean (in addition to certain specified waters)
surface and ground water, land surface and subsurface strata and air,
EPCRA defines environment more broadly to ``include'' all such media
and the ``interrelationship which exists among and between water, air,
and land and all living things.'' EPCRA section 329(2) (emphasis
added). Second, while CERCLA section 103(a) requires notification only
of an actual release, EPCRA requires each annual facility report to
include, at a minimum, not only the quantity of toxic chemicals
``entering each environmental medium,'' and a number of other things,
such as amounts of toxic chemicals present and the waste treatment and
disposal methods used. EPCRA section 313(g)(1)(C). Moreover, the
purposes of the reporting requirements in each statute are
significantly different: as The Fertilizer Institute court noted,
CERCLA was enacted ``[t]o address the growing dangers caused by the
unregulated dumping and storage of hazardous wastes.'' TFI, 935 F.2d at
1306. To ``establish a program for appropriate environmental response
action,'' CERCLA ``vested the EPA with the authority to investigate and
respond to the release, or threatened release, of hazardous wastes into
the environment.'' Id. In turn, the court stated that the purpose of
the CERCLA reporting requirement is ``[t]o effectuate the EPA's
response authority.'' Id. By contrast, in discussing the information
required to be reported under EPCRA, the House and Senate conferees
stated that ``[t]he purpose of this reporting requirement is to obtain
available information about releases of listed toxic chemicals to the
environment.'' Conf. Rep. at 298. This statement is reinforced by the
broad variety of intended uses of the release forms that are discussed
in the statutory text, at EPCRA section 313(h). For all of these
reasons, EPA believes that the holding of The Fertilizer Institute is
limited to the context and terms of CERCLA, and should not be extended
to the reporting requirements of EPCRA.
EPA also received comments stating that because EPA uses the word
``release,'' TRI data will lead to the misperception that a reported
EPCRA section 313 ``release'' necessarily results in an actual exposure
of people or the environment to a toxic chemical. These comments have
been received from the mining interests, RCRA Subtitle C hazardous
waste facilities, utilities and other industries. Although EPA provides
clear descriptions of TRI data for public use, the Agency recognizes
that the potential exists for the data in TRI to be mischaracterized
and/or misunderstood. However, EPA does not believe that the potential
for mischaracterization and/or misunderstanding justifies not adding
new industry groups to the TRI. EPA will continue to attempt to provide
the public with the means for correctly interpreting the TRI data.
In addition, the Agency modified Form R for the 1996 reporting year
in order to address some of the commenters' concerns about public
misperception and to better help the public understand the nature of
the various methods of disposal. First, EPA does recognize the
difference in the management and regulatory oversight provided by the
Underground Injection Control program of Class I wells from other forms
of injection into the land. As a consequence, EPA has redesigned Form R
to distinguish Class I injection well data from data for other classes
of injection wells in a way that makes that distinction clear for the
public. The Agency has redesigned Form R to distinguish disposals to
RCRA Subtitle C landfills from disposals to other landfills. In
addition, the title of Section 5 of the Form R, previously named
``Releases of the Toxic Chemical to the Environment On-Site'' has been
changed to reflect the statutory language to ``Quantities of the Toxic
Chemical Entering Each Environmental Medium.''
Beyond the changes which EPA has made on the form for 1996, the
Agency will be working with industry, states, academia and other non-
governmental organizations as part of the stakeholder process as
described in Unit VII. of this preamble to identify other modifications
to the form which will make it a more effective tool for communicating
information about releases and transfers of chemicals to the public.
Issues that will be addressed include changes to section 8, currently
named ``Source Reduction and Recycling Activities,'' to better reflect
pounds of waste generated as distinguished from pounds of waste
managed, changes to the nomenclature for underground injection and land
disposal as well as modifications that may result from finalization of
the PPA reporting requirements for Form R.
2. Double counting issues. Several commenters contend that
modification of the interpretation of ``otherwise use'' will result in
double counting of wastes reported in section 8 of Form R. Others
contend that this double counting in section 8 already exists and that
the modification of ``otherwise use'' will only increase the magnitude
of the problem. All of the comments are specific to the total waste
reported by the facility in section 8 of Form R. None of the commenters
contend that double counting will result for on-site releases.
Eastman contends that the Form R should be modified so that only
the facility responsible for generating a waste would report on the
EPCRA section 313 listed toxic chemical in that waste. If wastes are
transferred to another facility for purposes of further waste
management, the commenter believes that the receiving facility should
not report unless a ``new waste'' is generated. CMA contends that EPA's
proposed reporting requirements will result in significant double
counting if all wastes managed are summed ``across the facilities.''
They believe that if EPA aggregates Form R section 8 data nationally,
only the on-site activities should be included.
CMA further suggests that three new data elements should be
included in section 8 of the Form R: ``Total waste management
activities,'' ``Quantity generated onsite,'' and ``Quantity received
from offsite.'' Based on examples that they provide, the data element
``Total waste management activities'' represents the sum of the current
sections 8.1-8.7; ``Quantity generated onsite'' represents the quantity
of the EPCRA section 313 listed toxic chemical that was actually
produced as waste at the site. Quantity received from off-site is the
quantity of the EPCRA section 313 listed toxic chemical as waste
managed on-site that was received from another facility.
The information in section 8 of Form R is the quantity of the EPCRA
section
[[Page 23855]]
313 listed toxic chemical that is managed as waste material by the
reporting facility; it is not limited to the quantity of the EPCRA
section 313 chemical that is generated as waste by the reporting
facility. The information collected under section 8 of Form R is
collected under the authority of section 6607 of the PPA, which
specifically relates to the management of EPCRA section 313 toxic
chemicals in waste. EPA does not believe that the PPA is intended to
limit the reporting of EPCRA section 313 toxic chemicals managed in
waste to the quantities that are generated at the facility. The
information on the EPCRA section 313 toxic chemicals in waste managed
by the facility would be incomplete if the facility were to report only
that fraction of managed waste that was generated by the facility.
Thus, EPA believes that if the wastes currently reported in section 8
are totaled across the nation, double counting of the wastes that are
managed will not occur. Even assuming someone were to represent
national totals of section 8 waste data as waste generated, this
rulemaking does not introduce this misuse of the section 8 information.
One type of information that section 8 data capture is how
different facilities manage a quantity of an EPCRA section 313 toxic
chemical in waste. Currently, facilities in SIC code 20 through 39 may
send wastes to other facilities in SIC code 20 through 39 for the
purposes of recycling, combustion for energy recovery, treatment, and
disposal. The first facility would report in section 8 of Form R on
quantities of the EPCRA section 313 listed toxic chemical sent off-site
for waste management. If the second facility exceeded the reporting
threshold for that chemical elsewhere at the facility then that
facility would report on the quantities managed. However, the
management activity and quantity of the EPCRA section 313 toxic
chemical associated with that activity reported in section 8 by the
first facility would not necessarily be reported the same way by the
second facility. For example, facility A reports that 1,000,000 pounds
of an EPCRA section 313 toxic chemical is sent off-site for recycling
to facility B. Facility B recycles 800,000 pounds of the 1,000,000
pounds received from facility A; treats for destruction 150,000 pounds
and emits 50,000 pounds. While the reported total quantity of the EPCRA
section 313 toxic chemical managed as waste will be the same for both
facilities, how each facility managed the waste is clearly different.
This information on waste management thus provides the public with
useful information on toxic chemicals.
In addition, any apparent issue with double counting of total waste
generated may be overstated by the commenters. For example, the
facility generating the waste may not file a Form R because it may not
have exceeded an activity threshold or may not have conducted a
reportable activity.
While EPA disagrees with the commenters, EPA believes that CMA's
proposed addition of data elements to section 8 may be an efficient way
to address the commenters' concerns about double counting. It would
continue to allow the data user to assess wastes managed by the
facility but would minimize the perception that the wastes reported in
section 8 were generated by the reporting facility. As discussed above,
EPA plans to revise the Form R in the near future in conjunction with
rulemaking in connection with the PPA reporting requirements. EPA will
seriously consider the data elements included in CMA's comments. Once
EPA includes data elements that are similar (or the same) as those
suggested by the commenter, EPA will report separately national totals
of waste generated from national totals of waste managed.
G. Industries Not Included in this Final Rule
A significant number of commenters urged EPA to add other
industries which are not included in this rulemaking. These comments
primarily support EPA's proposal, but state the belief that EPA should
fully exercise its authority to add other industries, and that
reporting by a number of other industries is justified. A number of
commenters support the addition of other industries such as dry
cleaners, gas stations, and airports.
As discussed in Unit II.C. of this preamble, EPA considered a
number of industries during the screening process conducted prior to
this rulemaking. Also, as discussed in Unit V.A. of this preamble, EPA
has broad authority to add other industries, and may consider doing so
in the future. EPA selected the industry groups included in this final
rule as a matter of prioritizing in order to focus the Agency's efforts
and resources, but recognizes that other industries may also
``manufacture,'' ``process,'' or ``otherwise use'' listed toxic
chemicals in ways relevant to the reporting purposes of EPCRA section
313. Therefore, reporting by facilities in these other non-included
industries may be determined to be relevant to the purposes of EPCRA
section 313.
Since EPA did not include the industries suggested by commenters in
its proposal, it will not directly address the particular issues
associated with each industry which commenters have recommended
including under EPCRA section 313. In general, EPA has questions
regarding how the Agency should respond to the different situations
these industries might face in reporting under EPCRA section 313. EPA
recognizes the concerns many commenters expressed regarding the lack of
information on toxic chemical releases from facilities in other
industries. However, EPA believes that any expansion should be
approached in a measured and orderly fashion.
A number of commenters from environmental and community groups
urged EPA to remove some of the constraints to reporting in its
program, such as lowering the current exemption for de minimis
concentrations, particularly for classes of chemicals. Such a step may
potentially make it more likely that some industry groups not included
in this rule would provide more information under EPCRA section 313
reporting requirements. In the future, EPA will consider changes to the
de minimis exemption, but is not addressing the issue in this rule,
because the Agency believes that this issue requires further analysis
and rulemakings. EPA may consider such a step in the future.
A number of commenters support EPA's decision not to include oil
and gas exploration and production in its proposal, and urge EPA not to
propose adding this industry in the future. EPA considered the
inclusion of this industry group prior to its proposal, and indicated
in the proposal that one consideration for not including it was concern
over how a ``facility'' would be defined for purposes of reporting in
EPCRA section 313 (61 FR 33592). This issue, in addition to other
questions, led EPA to not include this industry group. EPA will
continue its dialogue with the oil and gas exploration and production
industry and other interested parties, and may consider action on this
industry group in the future.
Some commenters from environmental and community groups urged EPA
to abandon the SIC code system entirely in order to capture all
facilities which use toxic chemicals. These commenters cite the ability
of facilities to avoid reporting under EPCRA section 313 by identifying
their facilities in non-covered SIC codes. EPA discusses the so-called
``SIC code loophole'' in Unit V.I.3. of this preamble, and more fully
in the Response to Comment document (Ref.
[[Page 23856]]
15). EPA does not believe that abandoning the SIC code system entirely,
and then covering all facilities which manufacture, process, or
otherwise use EPCRA section 313 chemicals, is a workable alternative at
this point in time. Resource constraints, legal questions, burden for
facilities, and compliance and enforcement issues all combine to bring
into question the Agency's ability to expand EPCRA section 313
reporting in such a fashion.
H. Industry-Specific Comments for Industry Groups that Are Being
Finalized in Today's Action
1. Comments regarding the proposed addition of mining. EPA is
finalizing the addition of Metal Mining (SIC codes 1021, 1031, 1041,
1044, 1061, 1099) and Coal Mining (SIC codes 1221, 1222, 1231) to the
EPCRA section 313 list of covered industries. EPA believes that
reporting by facilities in these industry groups is relevant to the
purposes of EPCRA section 313. EPA received considerable comment
regarding the addition of these industry groups, both for and against
this action. A majority of the substantive comments received from
mining trade associations, state agencies, and mining companies
primarily address whether subjecting mining facilities to EPCRA section
313 reporting requirements is consistent with the authority or purposes
of EPCRA section 313, and whether such reporting would provide data of
little or no value at considerable burden to the industry. A
significant number of industry commenters incorporated the comments of
the National Mining Association (NMA) by reference. The comments in
favor of the proposal address the lack of data available regarding the
environmental consequences of mining and the need for that data, and
the lack of inclusion of this industry under other Agency reporting
requirements.
In summary, concerns that commenters raise regarding EPA's
authority to specifically add mining facilities can be classified as:
(a) Mining activities are not similar to activities in the
manufacturing sector; (b) mining does not involve the ``manufacture,''
``process,'' or ``otherwise use'' of EPCRA section 313 toxic chemicals;
and (c) the data provided by mining facilities would be of little value
or benefit. These concerns are raised in conjunction with the addition
of both metal and coal mining, and are addressed in the following
section. Following this general section, two sections discuss more
industry-specific comments, the first dealing with metal mining, and
the second with coal mining. Several major concerns raised by mining
industry commenters, such as duplicative reporting requirements, were
raised by a number of other commenters, and are addressed generally in
other units of this rule. Additional detail is available in the
Response to Comments document (Ref. 15).
a. Lack of similarity to manufacturing. Several commenters believe
that EPA has the authority to add only those industries engaging in
activities which are similar to activities conducted at currently
covered manufacturing facilities, or which are manufacturing-like.
These arguments are based on the commenters' reading of the statute and
the relevant legislative history of EPCRA section 313. These commenters
believe clear distinctions exist between mining and activities that
occur in the manufacturing sector. Mining removes EPCRA section 313
metals from their place in nature, while manufacturing industries more
typically make products that are toxic chemicals or that are made out
of or with the assistance of toxic chemicals. Commenters believe that
EPA based its proposal on the false premise that mining activities are
``virtually indistinguishable'' from manufacturing activities in SIC
codes 20 through 39.
As discussed in Unit V.A. of this preamble, EPCRA section 313 does
not limit the addition of industry groups to EPCRA section 313 to those
groups that are like or similar to manufacturing facilities. Rather,
Congress applied section 313 to every designated facility classified in
Division D: Manufacturing, of the SIC code system, while giving EPA the
authority to add other facilities, which by definition, would not be
manufacturing facilities. Thus, clearly, Congress authorized EPA to add
industries which are outside of the traditional manufacturing sector.
The statute permits EPA to add industry groups if reporting by the
industry groups is relevant to the purposes of section 313. EPA
believes that reporting of information on the ``manufacture,''
``process,'' ``otherwise use,'' and release and other waste management
of toxic chemicals at coal and metal mining facilities is relevant to
the purposes of EPCRA section 313. Therefore section 313 authorizes the
addition of these industries.
EPA recognizes that there are distinctions between mining and
manufacturing; however, there are significant similarities as well.
Both manufacturing and mining facilities are engaged in the
``manufacture,'' ``process,'' or ``otherwise use'' of EPCRA section 313
toxic chemicals, and both industry groups can provide information on
the release and waste management of EPCRA section 313 toxic chemicals
from the ``manufacture,'' ``process,'' or ``otherwise use'' activities.
This information is relevant to the purposes of EPCRA section 313. The
application of the terms ``manufacture,'' ``process,'' and ``otherwise
use'' to the mining sector is consistent with the application of those
terms to the manufacturing sector. As discussed in more detail below,
EPA believes that the extraction of listed chemicals constitutes
``processing'' for distribution in commerce. Further preparation of
those listed chemicals for distribution in commerce during
beneficiation also constitutes ``processing'' as defined in section
313.
b. Mining does not include the manufacture, process, or otherwise
use of chemicals. Several commenters believe that while EPA may have
the authority to expand the list of industry groups subject to EPCRA
section 313, it does not have the authority to add industries which do
not ``manufacture,'' ``process,'' or ``otherwise use'' EPCRA section
313 chemicals, and which do not engage in activities which are similar
to activities conducted by facilities within the manufacturing sectors.
These commenters argue that the threshold activity definitions in EPCRA
section 313 for ``manufacture,'' ``process,'' and ``otherwise use'' do
not apply to mining, for a number of reasons, including that mining is
the removal of naturally-occurring materials from the earth and does
not create or compound EPCRA section 313 chemicals. Because ore or coal
is not created (i.e., ``manufactured''), it cannot be ``processed''
during beneficiation or preparation because ``processing'' must occur
``after manufacture'' as defined in EPCRA section 313. Further, some
argue that the term ``otherwise use'' has no application because it
must occur in the context of the ``manufacturing'' and ``processing''
conducted by the manufacturing sector.
EPA believes that these commenters are incorrect in their
interpretation of the terms ``manufacture,'' ``process,'' or
``otherwise use.'' As defined in EPCRA section 313(b)(1)(C),
``manufacture'' means to produce, prepare, compound, or import a listed
toxic chemical, and ``process'' means the preparation of a listed toxic
chemical, after its manufacture, for distribution in commerce. The term
``otherwise use'' is not defined in the statute, but EPA has
interpreted the term by regulation to encompass any activity involving
a listed toxic chemical at a facility that does not fall under the
definitions of ``manufacture'' or ``process.''
[[Page 23857]]
``Manufacture'' of a specific listed toxic chemical includes its
production. EPA interprets ``production'' to include creation.
Production of that listed chemical may occur naturally, or by
industrial process. Metals contained in ores are produced by natural
processes. Consequently, EPCRA section 313 chemicals which exist in
nature have been ``manufactured'' at some point, as defined under EPCRA
section 313. The preparation of toxic chemicals contained in the ore
for distribution in commerce occurs after it has been ``manufactured''
(i.e., produced). The preparation of that EPCRA section 313 toxic
chemical involves its separation from its natural state. Therefore, the
extraction for distribution in commerce of the toxic chemical is
``processing'' under EPCRA section 313. Other activities, such as
beneficiation, are also processing under EPCRA section 313 because the
listed toxic chemical is being further prepared for distribution in
commerce. EPA's belief that toxic chemicals which exist in metal ores
are ``manufactured,'' and that subsequent extraction and beneficiation
for distribution in commerce is the ``processing'' of those toxic
chemicals, is consistent with EPCRA section 313 and EPA's current
guidance on the activity definitions, as well as with current
compliance practices by manufacturing facilities in SIC codes 20
through 39. Further, other EPCRA section 313 toxic chemicals may also
be ``manufactured'' during beneficiation if chemical reactions take
place--intentionally or unintentionally--which produce other listed
toxic chemicals. In addition, EPCRA section 313 toxic chemicals are
``otherwise used'' during the extraction or beneficiation activities at
many of the covered mining facilities.
In applying the EPCRA section 313 processing definition to the
mining industry, metal ore can be thought of as similar to crude oil as
a material entering commerce. Petroleum refineries, which are currently
covered under EPCRA section 313, process crude oil which has been
extracted from the earth and which typically contains, in its natural
state, EPCRA section 313 listed chemicals. These naturally occurring
EPCRA section 313 listed toxic chemicals may continue with the crude
oil as it is further processed. The constituents may be incorporated
into products such as gasoline and fuel oil. For EPCRA section 313
purposes, the toxic chemicals such as benzene and toluene that may be
found as constituents of crude oil are being prepared by the
refineries, after being ``manufactured,'' for distribution in commerce.
Because Congress listed several naturally occuring materials in the
original EPCRA section 313 toxic chemical list, EPA believes that
Congress intended for facilities to report on activities involving
these materials.
c. Value and benefit of reporting from mining facilities. Several
commenters assert that little or no benefit will result from reporting
under the EPCRA section 313 reporting requirements by the mining
industry. Various commenters make a number of arguments as to why
little or no benefit will result from reporting. They observe that
mining facilities are overwhelmingly located in rural areas and in many
cases are distant from population centers; therefore no ``community''
typically exists which will benefit from the data. These commenters
generally argue that if there is no ``community'' nearby, then
reporting by mining facilities would not be relevant to the purposes of
EPCRA section 313, since the purpose of section 313 is to provide
information to communities on toxic chemical releases. Many of these
commenters contend that EPA did not take the location of mining
facilities into account in reaching its determination to propose coal
and metal mining.
EPA does not dispute that many mining facilities are located in
rural areas, and accepts that some, but not all, mining operations are
located significant distances from the nearest dwelling. EPA also
acknowledges that a major goal of EPCRA section 313 reporting
requirements is to provide data and information to local communities.
However, a number of commenters also assert that the general public has
a right to know about information regarding toxic chemical releases and
waste management information from mining operations because of the
benefits that this currently unavailable information will provide to
the public. EPA agrees, and this is one of the primary reasons EPA has
undertaken this action. Given the purposes described in EPCRA section
313(h), the information collected under EPCRA section 313 is for the
benefit of the public, including communities around covered facilities.
Coverage under EPCRA section 313 is not based solely on proximity to
sizable or urban populations. EPA believes that even small or rural
populations may derive benefit from EPCRA section 313 data, and the
``community'' which may benefit from data is broader than the
individual citizens living or working in close proximity to mining
operations. Further, an additional intent of TRI is also to provide
information on chemicals that cause ecological toxicity. EPA believes
that information on the releases of chemicals ``manufactured,''
``processed,'' or ``otherwise used'' by the mining industry in rural
areas is consistent with that intent. Thus, EPA acknowledges that a
significant consideration in advancing its proposal was to provide
information to communities, but in keeping with EPCRA section 313, EPA
considers ``community'' to identify more than the most local human
populations.
One commenter, the Mineral Policy Center notes that, ``the need for
more information is especially compelling in the case of mining,
because TRI will fill a void in valuable information about mining's
toxic releases. One of the chief reasons for this lack of information
is that mining wastes have been exempted from treatment as hazardous
wastes under the Resource Conservation and Recovery Act . . . At
present, there is no available alternative source of information--such
as state programs--on the industry's toxic releases.''
This commenter further observes that the benefits of TRI data
include: enabling people to make more educated choices about where to
live and work; enabling people to take the necessary measures to
prevent exposures to EPCRA section 313 toxic chemicals; using the data
to apply pressure through the media and to public officials to address
mining's pollution problems; using the data to conduct better research
on the environmental and health impacts of mining wastes; and using the
data in the mining industry as a gauge to measure progress in reducing
releases and in applying technologies to reduce or recover toxic
chemicals from mining wastes that pose serious health and environmental
risks.
EPA believes that the public will benefit from the information that
will result from this rule. The public, including small communities and
communities distant from mining operations but which may be impacted in
some manner by those operations, do not have access to facility-
specific and chemical-specific information such as provided under EPCRA
section 313, either at the federal or state level. With this
information, the public will have improved knowledge of chemicals
involved in mining, and can use that information to better assess
environmental and human health risks.
Several commenters argue that reporting of so-called ``releases''
will mislead the public into believing that these ``releases'' pose
risks or have significant impacts on the environment.
EPCRA section 313 is not a risk-based reporting system, and EPA
makes no determination, through this action, of
[[Page 23858]]
the risks to human health or the environment from mining activities.
``Risk'' is not an EPCRA section 313 standard for addition of
facilities. However, TRI data, in combination with other information,
can and was intended by Congress to be used to help determine potential
risks. As the National Mining Association has noted in an attachment to
its comments, ``some mining operations may present legitimate risks to
health and the environment.''
EPA recognizes that TRI data regarding releases may sometimes be
mischaracterized or misperceived, as discussed in Unit V.F.1. of this
preamble. Congress intended EPCRA section 313 reporting to provide the
public with information about the use, management, and disposition of
toxic chemicals. Reporting by mining facilities will increase the
universe of information available, and the public can use TRI data in
concert with other information to better understand the risks
associated with releases of toxic chemicals from mining facilities. EPA
believes that, in light of the possibility that public misperceptions
might arise through TRI data, EPA must continue to improve its outreach
and education efforts regarding the data collected under EPCRA section
313. As noted above, EPA will initiate a stakeholder process to
consider these issues.
2. Metal mining. As stated above, EPA received considerable
substantive comment which urged EPA to withdraw metal mining from this
rulemaking. EPA also received comments urging EPA to include metal
mining.
a. De minimis concentrations of section 313 chemicals in metal
mining. Nearly every industry commenter contends that, for most metal
mining operations, and especially for precious metal mines,
concentrations of metals and metal compounds in waste rock and ore are
significantly below the de minimis concentration and including these
facilities will require facilities to consider de minimis amounts for
reporting purposes. Several commenters state that other EPCRA section
313 listed chemicals ``manufactured,'' ``processed,'' or ``otherwise
used'' at metal mining sites typically would not exceed de minimis
thresholds. Many industry commenters believe that EPA's statements
regarding de minimis concentration levels in ore and waste rock are in
some cases inaccurate and in others are based on limited and atypical
data. Some commenters also assert that there are contradictions in
EPA's supporting documentation regarding whether chemicals are present
above or below de minimis levels. These commenters believe that EPA has
therefore based its decision to add metal mining on faulty assumptions
and limited or flawed data.
EPA agrees that in some cases metal and metal compound
concentrations in ores may be below de minimis concentrations, while in
other cases, metal and metal compound concentrations may be above de
minimis concentrations. EPA bases its conclusion on a variety of
sources. For example, in the Economic Analysis (Ref. 12), EPA
identified EPCRA section 313 chemicals such as compounds of lead, zinc,
nickel and manganese in ores at concentrations above de minimis levels,
while gold ores are not anticipated to contain EPCRA section 313
chemicals above de minimis concentrations. However, the concentration
of EPCRA section 313 toxic chemicals found in ores may also increase
during processing or beneficiation activities and under current
guidance, facilities are required to consider amounts processed above
de minimis concentrations toward threshold and release calculations.
When a facility ``processes'' or ``otherwise uses'' EPCRA section 313
chemicals that remain below the appropriate de minimis levels for the
chemicals, the facility does not have to consider these amounts for
threshold or release calculations. If the chemical concentrations
exceed de minimis during processing, at that point the facility must
consider amounts of the toxic chemical toward threshold and release
calculations.
Nevertheless, the fact that concentrations of the toxic chemical
are above or below de minimis levels in waste rock is dispositive only
for purposes of determining whether the toxic chemicals in the waste
rock trigger an activity threshold. In making that determination the
toxic chemicals in the waste rock must first be subject to a threshold
activity (i.e., the de minimis exemption applies only if the EPCRA
section 313 toxic chemical is ``manufactured,'' ``processed,'' or
``otherwise used''). Simply being present in concentrations below the
appropriate de minimis level does not result in an exemption from
reporting of the releases of these chemicals. For example, other
activity on-site could trigger reporting for an EPCRA section 313 toxic
chemical. While extraction of waste rock without subsequent
distribution in commerce is not a threshold activity, disposal of the
waste rock, and therefore the EPCRA section 313 toxic chemical in the
waste rock, must be reported, if the appropriate threshold for that
chemical is exceeded at the facility.
In order to provide additional assistance to the commenters in
understanding the de minimis exemption and its application to mining
activities, EPA has provided, in the Response to Comments document
(Ref. 15) a description of the exemption and some examples of its
application.
One commenter, the Nevada Mining Association (NvMA), provided data
about the total percent concentrations of metal compounds in ore and
waste rock from a number of mines in the western U.S. While these data
indicate that section 313 chemicals were not generally present above de
minimis concentrations in ore and waste rock in selected samples, it
was not clear in NvMA's comments what type of mines these samples were
taken from, i.e., were these samples taken from gold mines, copper
mines, or other metal mines. EPA cannot determine the accuracy or
validity of these data, but accepts that these data suggest that, at
least in some cases, concentrations of the EPCRA section 313 chemicals
in target ore and waste rock may be below de minimis levels. However,
EPA is not certain how generally applicable these data are to the metal
mining industry as a whole without a clearer understanding of what
types of metal mines the samples were taken from, the collection
methods, and the laboratory testing methods used to collect and process
these samples. Most industry commenters limited themselves to general
statements regarding their belief that section 313 chemicals are
generally below de minimis concentrations in ore, waste rock, or
overburden, without providing data. In certain situations, an EPCRA
section 313 listed toxic chemical that is present below these de
minimis concentrations that is ``processed'' or ``otherwise used'' does
not have to be factored into threshold determinations. Therefore, if a
gold mine in Nevada has no EPCRA section 313 chemicals present above de
minimis concentrations in its processed ore, which industry commenters
claim is typically the case, then the amounts of those chemicals
``processed'' are not attributable to thresholds or release
determinations. Further, provided that an activity threshold for the
chemical is not exceeded at the facility, the disposal of those
chemicals contained in waste rock would not be reportable as well.
b. Extraction exemption for metal mining. In its proposal, EPA
requested comment on whether an exemption for extraction activities
should be provided for metal mining, in a manner similar to the
exemption proposed for coal mining. Industry commenters support an
exemption for metal mining
[[Page 23859]]
extraction from EPCRA section 313 reporting requirements, while some
commenters specifically urged EPA to not grant an exemption. While
industry commenters generally believe the entire industry should be
exempt from the EPCRA section 313 reporting requirements, they also
offer a number of arguments for exempting extraction.
Several commenters conclude that extraction should be exempted
because EPCRA section 313 listed toxic chemicals will not typically
exceed de minimis concentrations; extraction is not ``manufacturing''
or ``processing;'' and without an exemption, metal mining facilities
would be faced with a substantial compliance burden because of the
volume of materials moved in extraction and the need to continually
assess EPCRA section 313 toxic chemical levels to determine whether
reporting thresholds may be exceeded. Industry commenters believe that
releases from extraction pose little risk, and reporting associated
with extraction will be misleading and mask other more significant
releases. In contrast, one commenter argues that an exemption will
result in a truncated TRI that would fail to capture one of the largest
sources of toxic releases from mining, resulting from the disposal of
waste rock.
EPA is not granting an exemption for metal mining extraction. As
stated above, EPA believes that the extraction of ore containing EPCRA
section 313 chemicals for their subsequent distribution in commerce
constitutes the ``processing'' of those listed chemicals. In addition,
EPA believes that EPCRA section 313 chemicals may be present above de
minimis concentrations in ore. EPA recognizes that this may not be the
case for some metal mines, and that concentration levels may vary
significantly. However, EPA believes, based on the Agency's current
understanding, that overburden contains EPCRA section 313 chemicals in
negligible amounts and that reporting is unlikely to provide the public
with any valuable information. Consequently, EPA is exempting the EPCRA
section 313 chemicals in overburden from EPCRA section 313 reporting
requirements. EPA will not require compliance determinations or
reporting of releases or waste management information for listed
chemicals which may be present in overburden removed prior to removal
of waste rock or extraction of the target ore. EPA defines
``overburden'' as unconsolidated material that overlies a deposit of
useful materials or ores. EPA believes that this action will reduce the
compliance burden on metal mining facilities while not depriving the
public of any valuable information regarding toxic chemicals.
EPA considers waste rock as distinct from overburden for purposes
of reporting under EPCRA section 313. Waste rock is generally
considered that portion of the ore body that is barren or submarginal
rock or ore which has been mined but is not of sufficient value to
warrant treatment and is therefore removed ahead of the milling
processes. Waste rock is part of the ore body and may, depending on
economic conditions, become a valuable source of a metal. It may also
be further distributed in commerce for other uses such as road
construction. Waste rock may contain similar constituents as the target
ore. In other words, waste rock can become target ore depending on
changes in the value of the metals being mined. Waste rock may
typically contain lower concentrations of metals and other constituents
than the target ore. Releases associated with extraction or further
preparation of the waste rock are reportable provided that a threshold
is exceeded at the facility for the listed toxic chemicals that are
constituents of the waste rock. This would occur under two general
scenarios. In the first scenario, the waste rock is distributed in
commerce, e.g., to be used in highway construction. In that particular
case, the extraction and further preparation of the waste rock is for
distribution in commerce, and thus is ``processing.'' In this case, if
the concentration of the listed toxic chemical in the waste rock is
below de minimis, than any quantities of that listed toxic chemical in
the waste rock extracted or further prepared would be exempted from
threshold and release and other waste management calculations. If above
de minimis, than the quantities would count toward these calculations.
In the second general scenario, the waste rock is disposed of to the
land on-site and elsewhere at the facility a threshold is exceeded for
the listed toxic chemicals in the waste rock. In this case, the
releases of the EPCRA section 313 toxic chemical associated with the
extraction of the waste rock would be reportable.
c. Iron ore mining. Two commenters requested that EPA specifically
exclude SIC code 1011 Iron Ores from this rulemaking. These commenters
cite the exemption of facilities in this SIC code from reporting
requirements in the state of Minnesota as support. Minnesota previously
extended EPCRA section 313 reporting requirements to a number of
industry groups outside of SIC codes 20 through 39, including SIC code
1011. Subsequently, Minnesota issued an exemption for iron ore for
mining facilities in SIC code 1011. These commenters indicate that the
Minnesota Emergency Response Commission specifically found: (1) Toxic
chemical releases and transfers from SIC 1011 facililities in Minnesota
were not of sufficient quantities to warrant reporting; (2) based on a
review of the information, no facilities were expected to meet the
threshold reporting levels; and (3) facilities do not make intensive
use of toxic chemicals for processing their product. These commenters
believe that EPA should grant an exemption, or exclude iron ore mining
facilities from this rule, for the same reasons the state of Minnesota
granted an exemption. The commenters believe that, based on the
findings in Minnesota, reporting by iron ore mining facilities is not
relevant to the purposes of EPCRA section 313, and that these
facilities do not meet the EPCRA section 313 standard for addition.
EPA is not including this SIC code in this final rule. Based on the
information available to EPA, listed toxic chemicals do not appear to
be ``processed'' or ``otherwise used'' above de minimis concentrations,
nor does it appear that listed toxic chemicals are coincidentally
manufactured above the ``manufacturing'' threshold during the
extraction or beneficiation of iron ores. Therefore, EPA has not
included SIC code 1011 in the list of facilities covered under EPCRA
section 313 in this action. However, EPA does not believe that the
rationale articulated by the state of Minnesota in exempting this SIC
code from coverage in its program is consistent with the EPCRA section
313 standard for addition of industry groups. For instance, EPA has
concerns regarding the interpretation of the article exemption under
EPCRA section 313 which Minnesota used. This interpretation may have
been used to exclude activities which were likely to be reportable
under the federal program. EPA may reconsider the addition of this
industry segment at a future date in light of additional information.
One commenter asked EPA to exclude an ilmenite mining facility from
reporting under EPCRA section 313. The commenter claims no EPCRA
section 313 chemicals are ``manufactured,'' ``processed,'' or
``otherwise used'' above de minimis concentrations at that facility.
However, the commenter did not provide any additional information to
substantiate this assertion. Ilmenite mining facilities are included in
SIC code 1099 Miscellaneous Metal Ores, Not Elsewhere Classified. This
SIC code classification contains a variety of somewhat unrelated metal
mining facilities and includes facilities which extract and beneficiate
a variety of metal
[[Page 23860]]
ores, and when taken as a group, EPA believes facilities in this
classification are likely to provide reporting relevant to EPCRA
section 313. Based on EPA's understanding of the activities conducted
by facilities in this SIC code, including ilmenite mining, the Agency
cannot conclude that this one facility is unlike other facilities in
SIC code 1099. EPA received no additional comment specifically
addressing ilmenite mining, or other mining segments in this 4-digit
SIC code. If the commenter is correct regarding the lack of section 313
chemicals present above de minimis concentrations, its facility would
likely not have to file any report, even though covered. EPA recognizes
that coverage may still represent a burden to the particular facility;
however, at this point, the commenter has not provided enough
information to rebut EPA's conclusion that the body of information on
ilmenite mining and the miscellaneous metal mining facilities in SIC
code 1099 supports addition of this 4 digit industry group. The
commenter's particular facility would not be different from many
manufacturing facilities which, although covered under EPCRA section
313, do not file annual reports, presumably because they do not exceed
chemical activity thresholds or they engage in exempt activities.
3. Coal mining. EPA received a number of comments specifically
opposing the addition of coal mining to the EPCRA section 313 reporting
system, but also received a number of comments specifically urging EPA
to include this industry.
a. Use of chemicals in coal mining. Some commenters state that
EPCRA section 313 chemicals are not ``routinely'' used in coal
preparation activities. Only at selected steps in some coal preparation
processes are these chemicals employed. While EPA recognizes that coal
itself is not an EPCRA section 313 listed chemical, EPCRA section 313
toxic chemicals are generally ``otherwise used'' during coal
preparation. As discussed in the Economic Analysis (Ref. 12), a number
of EPCRA section 313 chemicals which are ``otherwise used'' during coal
preparation include tetrachloroethylene, trichloroethane, 1,1,1-
phenanthrene, dichlorodifluoromethane, xylene, acrylamide, and
constituents of fuel oil. EPA believes, based on available data, that
many coal preparation facilities within this industry ``otherwise use''
these chemicals. EPA recognizes that coal preparation practices may
vary between facilities and by type of coal being prepared. If a
particular facility does not ``otherwise use'' an EPCRA section 313
chemical in excess of the threshold, it does not have to report on the
releases and waste management of that chemical, provided it does not
otherwise exceed the ``manufacturing'' or ``processing'' threshold for
that chemical.
b. Coal preparation facilities should be exempt. One commenter,
ARCO, argues that their coal preparation plants in the western U.S. do
not typically use EPCRA section 313 toxic chemicals, and are distinct
from coal beneficiation plants. According to the commenter, the purpose
of coal preparation plants is to crush and size coal to customer
specifications, and EPA should exempt these plants or declare that no
chemicals are used at these types of coal preparation facilities.
EPA disagrees with the commenter's suggestion that coal preparation
is a distinct activity from coal beneficiation. Coal ``preparation'' is
a general term used in the coal mining industry to describe 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. EPA understands that these activities also describe
what some in the coal and metal mining industry may call beneficiation.
However, in general, coal ``preparation'' and coal ``beneficiation''
are used predominantly to describe any activity subsequent to
extraction to prepare the coal for use. Thus, while the commenter may
distinguish crushing and grinding activities from the other preparatory
and beneficiation activities, EPA does not believe that this
distinction is generally made within the coal mining industry.
Further, EPA has not categorically concluded that every coal
preparation facility ``otherwise uses'' EPCRA section 313 listed
chemicals, or that every coal preparation facility will ``otherwise
use'' listed chemicals in excess of the ``otherwise use'' threshold.
However, EPA believes that there are standard practices within the coal
mining industry that involve the ``otherwise use'' of section 313
listed chemicals during coal preparation activities. Given this
information, EPA anticipates that facilities preparing coal are likely
to provide information relevant to the reporting purposes of EPCRA
section 313.
Thus, because the industry is not generally severable as described
by the commenter, and because EPA believes that coal preparation can,
and in many cases does, involve the ``otherwise use'' of section 313
listed chemicals, EPA does not believe it would be appropriate to
exempt coal preparation facilities as requested by commenter. For the
same reasons, EPA cannot generally conclude that coal preparation
facilities do not ``otherwise use'' section 313 chemicals.
To the extent that commenter's facilities solely conduct the
crushing or grinding activities described by it, EPA agrees with
commenter that these particular activities generally do not involve the
``otherwise use'' of section 313 listed toxic chemicals. The facility
would be required to consider these crushing and grinding activities
and other non-extraction activities in its threshold and reporting
calculations. However, because these activities do not generally
involve the ``manufacture,'' ``process,'' or ``otherwise use'' of a
section 313 listed chemical above threshold quantities, the compliance
determination that the facility has to do to determine that there is no
need to file a report should be simple and straightforward. Only those
coal preparation facilities which ``manufacture,'' ``process,'' or
``otherwise use'' section 313 listed toxic chemicals above thresholds
would be reporting releases and other waste management information. If
facilities engage in extraction and coal preparation (or
beneficiation), they must determine whether any threshold has been
exceeded as the result of non-extraction activities, including coal
preparation. EPA believes that existing activity thresholds and
exemptions provide sufficient means for facilities such as the
commenter's to minimize the burden of compliance.
One commenter, the Kentucky Resources Council, argues that the
inclusion of coal processing operations is an appropriate and important
mechanism to track the generation and disposal of coal processing
wastewaters and sludges, and that the inclusion of information from
coal preparation plants will permit better tracking of these
wastestreams.
EPA agrees that adding coal preparation or beneficiation facilities
will provide a useful means of tracking toxic chemical releases and
waste management at these facilities, but notes that wastewater and
sludges from these operations may or may not be reportable when
released, depending on the presence and concentration of EPCRA section
313 toxic chemicals in the materials ``processed'' or ``otherwise
used.''
Two commenters believe that the purpose of EPCRA section 313 cannot
be served by requiring marginal users of diesel fuel, such as coal
preparation facilities, to report on their inventories while ignoring
far larger sources, which are ``exempt'' from EPCRA section 313
reporting requirements. The commenters believe that such
[[Page 23861]]
information from coal preparation facilities would be inherently
misleading and unnecessarily burdensome, and that diesel oil and
kerosene do not contain section 313 chemicals in concentrations above
de minimis levels. The commenters believe it is inherently
contradictory for EPA to exempt diesel fuel that is used to power
mobile equipment at all EPCRA section 313 covered facilities, but
require the fuel to be reported if it is used in coal preparation.
EPA's treatment of the ``otherwise use'' of EPCRA section 313 toxic
chemicals in fuel oil in coal preparation is consistent with its
guidance to all other industries otherwise using EPCRA section 313
toxic chemicals in fuel oil. All uses of EPCRA section 313 toxic
chemicals in fuel oil must be counted towards thresholds and release
reporting unless they are exempt under one of the use exemptions
defined under 40 CFR 372.38, such as toxic chemicals in fuels used in
the maintenance of motor vehicles. Currently, manufacturing facilities
which use fuels as part of their production processes are required to
make ``otherwise use'' threshold determinations for the constituents of
these fuels. Consequently, EPA believes reporting on the use of fuel
oil by coal mining facilities is consistent with current reporting
guidance issued in the past for the manufacturing industry.
EPA estimates that No. 2 fuel oil and diesel fuel will contain at
least one listed toxic chemical above de minimis concentrations, based
on data included in the Economic Analysis (Ref. 12). If EPCRA section
313 chemicals that are ``processed'' or ``otherwise used'' are present
in a mixture such as No. 2 fuel oil below de minimis concentrations,
they do not have to be factored into threshold or release
determinations by the facility.
Several commenters believe that coal preparation requires careful
definition or there is a real risk that what they see as the proposed
rule's vague approach will wipe out the intended exemption for coal
extraction. These commenters believe EPA has confused beneficiation and
preparation in the proposal, and that without distinguishing those
activities which involve the use of chemicals as ``preparation,'' EPA
is not actually exempting extraction because some activities defined as
beneficiation, such as the breaking or crushing of coal, are conducted
during extraction. A commenter strongly recommends that EPA employ a
definition which states that, ``the term `coal preparation plant' means
a facility where coal is subjected to chemical processing or cleaning
in order to separate the coal from its impurities and then is loaded
for transit to a consuming facility.''
In its proposal, EPA defined beneficiation in order to clarify the
distinction between extraction and beneficiation. EPA used a definition
consistent with the RCRA definition found at 40 CFR 261.4, which
restricts beneficiation to certain activities, among which is crushing.
EPA's proposal did not limit reporting coverage to only coal
preparation (or beneficiation) activities. Rather, EPA proposed to
exempt extraction activities and include coal preparation (and
beneficiation) activities, activities that take place subsequent to
extraction. To the extent that the commenter's facilities solely
conduct the crushing or grinding activities described by it, EPA agrees
with the commenter that these particular activities generally do not
involve the ``otherwise use'' of section 313 listed toxic chemicals.
Although the facility would be required to consider these crushing and
grinding activities and other non-extraction activities in its
threshold and reporting calculations, because these activities do not
generally involve the ``manufacture,'' ``process,'' or ``otherwise
use'' of a section 313 listed chemical above threshold quantities, the
compliance determination that the facility has no need to file a report
should be simple and straightforward. Only those coal preparation
facilities which ``manufacture,'' ``process,'' or ``otherwise use''
section 313 listed toxic chemicals above thresholds would be reporting
releases and other waste management information. If facilities engage
in extraction and coal preparation (or beneficiation), they must
determine whether any threshold has been exceeded as the result of non-
extraction activities, including coal preparation. EPA believes that
existing activity thresholds and exemptions provide sufficient means
for facilities such as the commenter's to minimize the burden of
compliance.
c. Number of facilities and representativeness of data. One
commenter believes that the inclusion of coal preparation plants would
also be contrary to EPA's ``screening criteria'' since more than 50
percent of the coal mining and processing facilities would be exempt by
reason of employing fewer than 10 employees. This commenter believes
EPA has exempted other industries on the premise that a substantial
portion of the facilities within these industries would be exempt and
that similar treatment is in order for an industry where more than half
the facilities would be exempt.
EPA used its screening process to set priorities and to focus
attention on those industry groups whose potential addition to EPCRA
section 313 would result in significant environmental and public
informational benefits. EPA did not screen industries based on whether
a significant portion of facilities within an industry group might be
likely to report. Rather, EPA focused on the informational value of
adding candidate industries. In addition, EPA did not ``exempt''
industries not included in the proposal. These facilities were simply
not included in this action. Further, EPCRA section 313 provides an
exemption for facilities with fewer than 10 full-time employees in
order to reduce burden on small facilities. Currently, out of the more
than 300,000 manufacturing facilities in the U.S., roughly 23,000 filed
section 313 Form Rs for the 1994 reporting year. In other words, less
than 10 percent of manufacturing facilities actually report under EPCRA
section 313. EPA estimates in its Economic Analysis that, based on 1992
data, approximately 342 coal preparation facilities were in operation
in the U.S., and out of that number, 321, or approximately 94 percent,
are expected to file reports (Ref. 12). (EPA's draft Industry Profile
for Coal Mining stated that 610 plants were in operation in 1991, which
was an incorrect figure. The correct figure is 345 which is reflected
in the revised industry profile) Regardless, the possibility of less
than half of the facilities in a given industry filing reports would
not by itself cause EPA not to add that industry. EPA does not agree
with the commenter's premise that unless a substantial number of
facilities within an industry group are likely to file, reporting by
those that do file would be valueless.
d. Extraction exemption for coal mining. In EPA's proposal to
include the coal mining group, the Agency proposed to exempt coal
mining extraction activities from coverage under EPCRA section 313.
Industry commenters supported this exemption and agreed with EPA's
understanding that coal extraction activities do not typically involve
the presence or use of listed toxic chemicals in reportable
concentrations, while a number of commenters urged EPA to withdraw its
proposed exemption for coal mining extraction. EPA did not receive any
additional information which would change its understanding of coal
mining extraction from those comments objecting to the exemption. Many
of the environmental consequences of coal extraction which these
commenters cite,
[[Page 23862]]
based on EPA's understanding of the comments, are not likely to be
reported under EPCRA section 313, primarily because section 313
chemicals are unlikely to be present above de minimis concentrations,
or the sources of the releases, which concern commenters are abandoned
or non-working mines and therefore would not be likely to trigger
reporting.
EPA believes it is appropriate to exempt coal extraction activities
from all EPCRA section 313 reporting requirements. EPA does not agree
that coal extraction does not involve the presence or use of listed
toxic chemicals. EPA does, however, believe that the presence and use
of these chemicals during coal extraction is likely to be in
concentrations below de minimis. As a result, facilities that extract
coal for distribution in commerce would be able to take the de minimis
exemption for the listed toxic chemicals in the coal. Consequently,
little or no information would be provided by these facilities. EPA may
reconsider this exemption at a later date in light of additional
information. 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 to
encompass all extraction-related activities prior to beneficiation. If
an EPCRA section 313 toxic chemical that is a constituent of coal or
overburden is ``processed'' or ``otherwise used'' in SIC code 12 during
extraction, a facility is not required to consider the quantity
``processed'' or ``otherwise used'' when determining whether an
applicable threshold has been met, or determining the amounts to be
reported.
4. Comments regarding the proposed addition of electric utilities.
EPA is finalizing the addition of coal- and oil-fired electric
utilities in SIC codes 4911, 4931, and 4939 to the EPCRA section 313
list of covered industries. EPA believes that reporting by facilities
in this industry is relevant to the purposes of EPCRA section 313. EPA
received considerable comment in support of the addition of this
industry, generally expressed in the context of support for the
addition of all of the proposed industry groups. EPA also received
significant comment opposing this addition from electric utility
companies and trade associations. A majority of the comments received
from the industry address whether subjecting electric utility
facilities to EPCRA section 313 reporting requirements is consistent
with the authority or purposes of EPCRA section 313, whether the EPCRA
section 313 definitions can be applied reasonably to electric
utilities, and whether such reporting will provide data of little or no
value at considerable burden to the industry. Industry commenters also
addressed concerns about the scope of facility coverage, the
``coincidental manufacture'' of metal compounds in combustion, and the
disposal of combustion byproducts, among other issues. Further detail
concerning the public comments received is in Ref. 15.
a. Activity definitions. Many industry commenters believe that the
existing definitional framework of the EPCRA section 313 reporting
program is tailored to manufacturers and does not suit the activities
of the non-manufacturing industries such as electric utilities. Some
commenters object that EPA considers the combustion process to be the
``manufacture'' of a ``product'' as those terms are commonly understood
and that the intent of Congress was to apply the section 313 reporting
requirements only to those industries that ``manufacture'' or
``process'' toxic chemicals. Commenters believe that, logically,
substances present or incidentally formed during combustion (e.g.,
stack gases, fly ash, and bottom ash) are not ``manufactured'' or
``otherwise used,'' and that ``coincidental manufacture'' during
combustion should not apply because the primary function of an electric
generation facility is not the manufacturing of any chemical or mixture
of chemicals.
EPA believes the existing regulatory and definitional framework of
the EPCRA section 313 reporting program can be applied reasonably,
logically, and effectively to non-manufacturing industries. In keeping
with the EPCRA section 313(b)(1)(B) standard, EPA has acted to add
those industry groups which, like facilities within manufacturing
sector SIC codes 20 through 39, ``manufacture,'' ``process,'' or
``otherwise use'' toxic chemicals in a manner such that reporting by
these facilities is relevant to the purposes of section 313. EPA
believes the addition of coal and oil-fired electric generating
facilities to the EPCRA section 313 reporting program is consistent
with the legislative intent.
EPA believes that electric utilities engage in activities which
involve or result in the ``manufacture,'' ``process,'' or ``otherwise
use'' of EPCRA section 313 toxic chemicals, as do activities conducted
by the manufacturing sector. In particular, EPA disagrees with the
commenters that the existing definitional framework does not apply to
the combustion process. Coal and oil-fired electric utilities combust
fuel to generate electricity, a product which is distributed in
commerce. As discussed in Unit V.E.3. of this preamble, the combustion
process involves the ``otherwise use'' of EPCRA section 313 toxic
chemicals in the fuel, and results in the ``coincidental manufacture''
of EPCRA section 313 toxic chemicals; both of these chemical activities
are similar to activities conducted and reported by manufacturing
facilities. Electric utilities also ``otherwise use'' EPCRA section 313
toxic chemicals in cleaning, maintenance, and purification activities
in a manner similar to activities carried out by manufacturing
facilities.
One commenter states that considering combustion byproducts to be
``manufactured'' is contrary to the logic and rationale that EPA
appropriately used for excluding nuclear and gas plants from the
proposed expansion. The commenter states that, according to EPA,
cleaning, purification and maintenance activities using section 313
chemicals at non-coal/oil-fired electric utilities are support
activities which ``are not the primary function of the facility'' (see
61 FR 33601). The commenter goes on to state that because of the
secondary nature of these cleaning, purification, and maintenance
activities, nuclear, gas and hydroelectric facilities were not included
in the TRI expansion. The commenter states that combustion byproducts
should be considered in the same light as these excluded secondary
activities, because the creation of combustion byproducts is incidental
to the production of electricity and their presence/formation is not
the primary purpose for burning coal and oil.
As stated in the proposal, EPA proposed to add coal and oil-fired
electric generating facilities because their primary function involves
the combustion of fuels containing EPCRA section 313 chemicals and
production of TRI chemicals during combustion. The commenter seems to
conclude that, because EPA did not consider the ``otherwise use'' of
EPCRA section 313 chemicals in support activities alone to be
sufficient justification for adding non-coal/oil-fired electric
utilities to EPCRA section 313 chemicals at this time, EPA therefore
must believe that such use of EPCRA section 313 chemicals is not of
sufficient importance to warrant reporting under EPCRA section 313.
This is not correct. EPA's decision to not to include nuclear,
hydroelectric, and natural gas facilities simply was an attempt to
prioritize industry groups for this initial expansion effort by
including only those
[[Page 23863]]
industry groups whose primary functions or activities involve the
``manufacture,'' ``process,'' and ``otherwise use'' of EPCRA section
313 chemicals. EPA's screening process and comments raised on the
screening process are more fully described and addressed in Unit IV.B.
of this preamble and in the Response to Comments document (Ref. 15).
As the proposal made clear, coal and oil-fired electric generating
facilities will be required to factor into their threshold
determinations and reporting calculations the quantities of EPCRA
section 313 chemicals used in support activities such as cleaning,
maintenance, and purification, in addition to chemicals ``otherwise
used'' and ``coincidentally manufactured'' in the combustion process.
This is consistent with the existing reporting requirements for
manufacturing facilities, which must factor into their threshold
determinations and release calculations all ``manufacture,''
``process,'' and ``otherwise use'' of EPCRA section 313 chemicals, with
the exception of quantities specifically exempted at 40 CFR 372.38.
Thus, the commenter is wrong in characterizing activities such as
cleaning, maintenance and purification at electric utilities as
``excluded'' from EPCRA section 313 reporting. Further, the Agency does
not agree with the commenter that the use of EPCRA section 313
chemicals in activities such as cleaning, maintenance and purification
at non-coal and oil-fired facilities is in any way analogous to the
``coincidental manufacture'' of EPCRA section 313 chemicals in the
combustion process at coal or oil-fired facilities. The ``coincidental
manufacture'' of EPCRA section 313 chemicals directly results from the
combustion of coal or oil to generate electricity, which is the primary
purpose of the facility. The fact that the ``coincidental manufacture''
of these byproducts is not actually the purpose of combusting the fuel
is irrelevant. Therefore, the Agency disagrees that ``coincidental
manufacture'' of EPCRA section 313 chemicals in the combustion of coal
or oil is incidental, or should be disregarded as a basis for addition
of these utilities.
b. Facility coverage. Most industry commenters express concern that
EPA's explanation of which electric utility facilities in SIC codes
4911, 4931, and 4939 would be required to report was vague and did not
adequately explain the scope of facility coverage. The commenters
believe that EPA was ambiguous and inconsistent in its proposed
exclusion of gas, nuclear, and hydroelectric electric utilities. The
commenters point out that EPA proposed that any facility in SIC codes
4911, 4931, and 4939 which combusts coal or oil in whatever percentage
of its fuel use, and whether for primary or backup generation, would
become a covered facility for purposes of EPCRA section 313. The
commenters contend that many non-coal/oil-fired electric utility
facilities would be considered covered facilities under such a
definition, despite EPA's stated intention to exclude them from
coverage.
The commenters point out a number of purposes for which non-coal/
oil-fired electric utility facilities would combust some quantity of
coal or oil, including: support activities, such as heating the
facility; start-up; emergency power generation (for maintaining
operation of facility equipment in an emergency); periodic testing of
emergency power equipment; periodic testing of backup power generation
capability; and backup power generation when supply of the primary fuel
source is curtailed. Commenters request clarification of which of these
activities would subject a non-coal/oil-fired electric utility facility
to EPCRA section 313 reporting requirements, and/or state their
objections to facility coverage because of such activities.
In particular, many commenters recommend that EPA exempt from the
reporting requirements all non-coal/oil-fired facilities which
infrequently burn coal or oil for ancillary support operations or for
backup power generation. A number of commenters recommend that EPA
adopt for facility coverage purposes the definition of ``gas-fired''
which appears in the Clean Air Act Acid Rain implementation rules (40
CFR 72.2), exempting from EPCRA section 313 coverage facilities which
burn natural gas or other gaseous fuel for at least 90 percent of the
unit's average annual heat input during the previous 3 calendar years
and for at least 85 percent of annual heat input in each of those 3
years. Several commenters recommend that EPA include in EPCRA section
313 reporting only those electric utility facilities which combust coal
or oil for 50 percent or more of the fuel combusted or the electricity
produced.
EPA's intention in the proposal was to include only those
facilities in SIC codes 4911, 4931, and 4939 which combust coal or oil
in any quantity to generate the electricity that the facility supplies
to its customers, whether such combustion is for primary or backup
power generation. EPA understands that the language in the proposal has
been interpreted by some commenters to cover facilities EPA did not
intend to add to EPCRA section 313 at this time (i.e., electric
utilities that are essentially non-coal/oil-fired, but that use coal or
oil only to provide electricity for support activities at the
facility). EPA continues to believe that this rule should focus on
electric utilities that use coal or oil for performing the primary
function of the facility (i.e., generating the electricity the facility
supplies to its customers). As a means of describing the universe of
facilities it intends, EPA is using the phrase ``limited to facilities
that combust coal and/or oil for the purpose of generating power for
distribution in commerce'' for this industry in order to clearly limit
coverage to facilities that combust coal or oil to generate electricity
the facility supplies to its customers. Accordingly, in today's final
rule, EPA has amended the facility coverage language for SIC codes
4911, 4931, and 4939 to read ``(limited to facilities that combust coal
and/or oil for the purpose of generating power for distribution in
commerce).''
Combusting coal or oil for on-site support purposes (such as
heating the facility), for testing or operation of emergency backup
power systems (meaning systems designed to supply power to the facility
itself in the event of an emergency), or for start-up purposes (i.e.,
to heat the boiler to an operational temperature prior to switching to
the primary fuel) will not subject facilities to the EPCRA section 313
reporting requirements, provided such combustion of coal or oil does
not itself generate power for distribution in commerce.
EPA does not agree with the commenters who recommend that EPA
exempt non-coal/oil-fired facilities that combust limited quantities of
coal or oil for the purposes of generating power for distribution in
commerce, such as backup or peak power generation. EPA believes it is
appropriate to include as covered facilities all facilities which burn
any quantity of coal or oil to generate power for distribution in
commerce. EPA does not agree with commenters who state that facility
coverage should be based on the percentage use of coal and/or oil.
Particularly in the case of large facilities, exempting facilities
which burn 10 percent to 15 percent coal or oil, or 50 percent as some
commenters recommend, could mean exempting facilities which burn very
large quantities of coal or oil, even if such quantities are not large
in percentage terms. Under such an exemption, a large facility which
burns a comparatively low percentage quantity of coal or oil could be
exempt from the reporting
[[Page 23864]]
requirements even if it burned more coal or oil than a small facility
which was 100 percent coal or oil-fired and therefore was subject to
section 313 requirements. Such a result would not be sensible from a
public right-to-know standpoint.
EPA believes that the proper mechanism for relieving reporting
burden for facilities which combust only limited quantities of coal or
oil is the existing activity threshold system under EPCRA section
313(f)(1). (The employee threshold found at EPCRA section 313(b)(1)(A)
will also provide burden relief for small electric utility facilities
with fewer than 10 full-time employee equivalents.) Any facility which
combusts only limited quantities of coal or oil for the purpose of
generating power for distribution in commerce may be unlikely to exceed
any reporting threshold, unless the facility also ``manufactured,''
``processed,'' or ``otherwise used'' significant quantities of listed
chemicals in other activities at the facility. Therefore, such a
facility would not likely incur the burden of EPCRA section 313
reporting. The Edison Electric Institute and other commenters point out
that such facilities would have to expend resources to determine or
demonstrate that thresholds were not exceeded, even though exceeding
the thresholds would be unlikely. Commenters also state that non-coal/
oil-fired facilities with coal/oil-fired backup generation capability
would have to develop information throughout the year as if section 313
applied to them, since they could not be sure that they would not have
to operate their backup generating systems during a given year. EPA
acknowledges that facilities which combust small quantities of coal and
oil would have to expend a certain amount of resources to determine
that thresholds were not exceeded. However, EPA believes that
facilities would already track the quantity of each fuel type used, and
that this would be a major component of both the compliance
determination and the calculation of release and other waste management
quantities. Moreover, establishing the facility definitions recommended
by some commenters only adds another layer of compliance
determinations. In addition, EPA points out that, pursuant to EPCRA
section 313(g)(2), facilities when reporting ``may use readily
available data (including monitoring data) collected pursuant to other
provisions of law, or, where such data are not readily available,
reasonable estimates of the amounts involved.'' The statute does not
require the facility to obtain data beyond that which is readily
available. A facility which combusts oil or coal late in the reporting
year and thus becomes a covered facility because of that combustion of
coal or oil would need only to use readily available data or make
reasonable estimates in reporting under EPCRA section 313. In this
case, these facilities would use the information it has collected
throughout the year to support the end of the year threshold
determinations and release and other waste management reporting
estimates. Facilities which may or may not be subject to EPCRA section
313, depending on whether they combust coal or oil in a given year,
would not have any greater burden of tracking information during the
course of the year than a facility which knows that it will not be a
covered facility. Facilities which may or may not be subject to EPCRA
section 313, depending on whether they combust coal or oil in a given
year, would only incur a compliance and reporting burden if they did in
fact combust coal or oil that year, at which point they would have to
perform threshold determinations and, possibly, release and other waste
management calculations using the information available to them. EPA
also points out that it intends to develop reporting guidance for the
industry which will reduce burden on industry by assisting industry in
making compliance determinations and reporting calculations based on
information such as fuel quantity and type. EPA believes its approach
for defining the utilities covered best balances the reporting
interests of the public with the concerns expressed by the commenters
given the existing burden reduction mechanisms in the statute and
regulations.
A number of industry and trade association commenters state that
EPA should define facility coverage for electric utilities in much the
same way as multi-establishment complexes have been defined for
manufacturing facilities under EPCRA section 313. According to the
commenters, the preamble to the proposed rule suggested that EPA would
not apply its existing ``multi-establishment rule'' to electric utility
facilities that have both covered and non-covered plants within SIC
codes 4911, 4931, and 4939 located at a single facility, and that EPA
failed to provide a reasoned explanation for this inconsistent
treatment. Some commenters believe that electric utilities should be
allowed to divide such a facility into establishments and make a
separate compliance determination for each establishment. One
commenter, the Class of '85 Regulatory Response Group, recommended that
EPA specifically exempt non-coal/oil-fired generating stations that are
located on contiguous property and under common ownership with coal/
oil-fired generating stations.
EPA disagrees with the commenters and believes the Agency is
consistent in its application of the multi-establishment provision.
Prior to this rulemaking, multi-establishment facilities with
establishments in two or more different SIC codes would have been
subject to reporting requirements, if: (1) All establishments are in a
covered SIC code; (2) if the sum of products shipped and/or produced
from those establishment(s) in a covered SIC code is greater than 50
percent of the total value of all products shipped and/or produced at
the facility; or (3) one establishment in a covered SIC code
contributes more in terms of value of products shipped and/or produced
than any other establishment at the facility (see 53 FR 4526).
Establishments are defined as part of the SIC code system. The
Standard Industrial Classification Manual (Ref. 4) indicates that the
SIC codes 4911, 4931, and 4939 do not have an ``establishment''
distinction based on fuel type. Consequently, a facility using
different fuel types, or operating two generators on different fuel
types, is still considered a single establishment (i.e., within a
single SIC code). For electric utilities, the multi-establishment
provision applies only if a generating station is part of a facility
with another establishment in a different SIC code, and the economic
conditions described above are met by the establishment in the
different SIC code. EPA believes that the multi-establishment provision
can be applied consistently and similarly to electric utilities, and
that there is no justification for interpreting the multi-establishment
provision differently for facilities in this industry. EPA also
believes it would be inappropriate to develop a specific exemption for
non-coal or oil-fired generating units located on contiguous or
adjacent property and under the same ownership as one or more coal/oil-
fired units. The effect of such an exemption would be to divide a
single establishment at a facility into covered and non-covered
sections, which is inconsistent with the existing reporting
requirements for manufacturing industries.
The American Public Power Association states that EPA should
exclude electric utilities owned by local communities and regional
governmental entities from the EPCRA section 313
[[Page 23865]]
reporting requirements. According to the commenter, EPA recognized the
special circumstances of local government control of facilities when it
decided to exclude from the proposal several industry groups primarily
operated by local municipal and regional governmental entities.
According to the commenter, there is little distinction between those
excluded industry groups and publicly-owned electric utility systems.
The commenter also stated that reporting of EPCRA section 313 toxic
chemicals by publicly-owned utilities would be better left to the
discretion of the local government entities that own and control them,
because these governing bodies would be better able to define and
implement reporting programs that are responsive to the needs of local
citizens.
EPA did not include in the proposal several industry groups based
on several ``additional considerations'' (see 61 FR 33592). None of the
considerations were used to determine whether candidate industry groups
met the statutory standard for addition. EPA may consider these
industry groups in a future rulemaking. The publicly-owned facilities
the commenter cites were not included for a number of reasons,
including the potential impacts on other governmental entities. While
EPA acknowledges this concern about impacts on other governmental
entities is also relevant to publicly-owned electric utilities, EPA
points out that this consideration was just one of many factors taken
into account in screening industries. In evaluating this industry for
addition, EPA judged that publicly-owned electric utilities conduct
operations which are virtually indistinguishable from their investor-
owned counterparts and that there are not other general issues meriting
deferral of the utility industry. EPA does not believe that any
significant difference exists between publicly-owned and privately-
owned electric utilities for purposes of reporting under EPCRA section
313. Therefore, EPA believes it is appropriate to include both
publicly- and privately-owned electric utilities in this facility
expansion rule.
One commenter requests clarification regarding whether a facility
which combusts oil and exceeds thresholds would have to include
releases from natural gas combustion conducted at the same facility. If
the facility combusts oil to generate power for distribution in
commerce, the facility is a covered facility for purposes of EPCRA
section 313. A covered facility must apply toward activity thresholds
the quantities of listed toxic chemicals ``manufactured,''
``processed,'' or ``otherwise used'' in all non-exempt activities at
the facility, including natural gas combustion, which is not itself an
exempt activity. The EPCRA section 313 reporting exemptions are
codified at 40 CFR 372.38. If the facility exceeds a threshold for any
listed chemical, it must include in its Form R for that chemical the
release and other waste management quantities resulting from all non-
exempt activities.
A number of industry commenters point out that facilities which
combust only small quantities of coal or oil may exceed the ``otherwise
use'' threshold only for chemicals used in support operations such as
maintenance and cleaning. These commenters question whether this
contradicts EPA's purpose in excluding non-coal or oil-fired
facilities, which might also report on these same uses. Some of these
commenters believe it is inconsistent of EPA to rely on ``otherwise
use'' activities to justify adding coal and oil-fired facilities but
not to add non-coal or oil-fired facilities which also conduct these
activities. One commenter requests that EPA specifically exempt the
``otherwise use'' of chemicals in these support operations.
EPA is adding coal and oil-fired facilities because their primary
function involves the combustion of fuels containing EPCRA section 313
chemicals and generation of toxic chemicals during that combustion. As
covered facilities, these facilities must report on releases and other
waste management activities of all EPCRA section 313 chemicals for
which they exceed thresholds, excluding only certain specifically
exempt activities codified at 40 CFR 372.38. This is consistent with
the existing reporting requirements and guidance for manufacturing
facilities. EPA does not agree that it is inconsistent to require coal
and oil-fired facilities to report for support operations, when non-
coal/oil-fired facilities will not have to report for similar support
operations because they will not be considered covered facilities. EPA
recognized in the proposal that reporting associated with the
``otherwise use'' of chemicals in support activities at non-coal or
oil-fired facilities has some value. However, as a matter of
prioritizing, EPA did not include nuclear, hydroelectric and natural
gas facilities in this action because their primary function does not
involve the combustion of fuels containing listed chemicals in
reportable concentrations.
Two commenters observe that EPA discussed conventional oil-fired
steam generation but did not discuss oil turbines in its proposal. One
commenter requested that EPA clarify whether oil turbines are covered,
and another believes EPA should exempt oil turbines from coverage since
many of the EPCRA section 313 constituents in oil are consumed during
combustion and turbines do not use listed chemicals in the large
quantities associated with boiler operation and maintenance.
EPA described only conventional steam generation in the proposed
rule because this is a common method of producing electric power.
However, in describing this method of power generation, EPA did not
mean to imply that only this method was subject to the EPCRA section
313 reporting requirements. EPA clearly stated that ``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. . . .'' Facilities which combust oil in oil turbines to
generate electricity for distribution in commerce would fall within SIC
codes 4911, 4931, and 4939, and therefore would be considered covered
facilities. Because facilities generating electricity using oil
turbines fall within SIC codes 4911, 4931, and 4939, and because the
combustion of oil in oil turbines results in the ``coincidental
manufacture'' of EPCRA section 313 chemicals, EPA sees no reason to
exclude such facilities from EPCRA section 313 coverage.
One commenter points out that some facilities may combust
alternative fuels, including solid and liquid waste, used oil, and
fuels derived from the processing of coal or oil. The commenter
requests clarification about the applicability of the EPCRA section 313
reporting requirements to facilities which burn such fuels. An electric
utility facility which combusts used oil, or solid or liquid waste
containing coal or oil, would be considered a covered facility under
EPCRA section 313. Because the commenter did not provide specific
information about the alternative fuels ``derived from the processing
of coal or oil,'' EPA cannot provide the requested clarification for
such fuels. EPA will examine issues surrounding the combustion of
alternative fuels, including waste oil and fuels derived from the
processing of coal or oil, in its development of reporting guidance for
this industry.
c. Public misperception of risk. Most industry commenters believe
that requiring electric utilities to report emissions under EPCRA
section 313 is inappropriate because such emissions are not hazardous
and pose little risk to the public. The commenters state that emissions
and combustion byproducts from utilities have been studied by EPA
[[Page 23866]]
and others and been proven not to pose a significant risk to human
health or the environment. The commenters argue that because TRI data
are provided as annual volume estimates without regard to factors such
as chemical concentration, toxicity, or exposure potential, the data
for electric utility combustion activities would be so oversimplified
and unqualified that it would lead to public misperception of risk. A
number of industry commenters state that TRI reporting does not take
into consideration the fact that releases are regulated and permitted
to ensure that health risks are controlled. Other industry commenters
express concern that the large volume of reported releases from
electric utilities could dwarf and obscure other, possibly more
hazardous releases from other industries, such as the manufacturing
industries which were the original subject of EPCRA section 313.
EPCRA section 313 is not a risk-based reporting system, and EPA
makes no determination, through this action, of the risks to human
health or the environment from fuel combustion or other activities at
electric utilities. Further, any determination by EPA or others that a
particular type of release from a facility does not pose an
unacceptable risk does not constitute a reason to exclude from EPCRA
section 313 such releases or the facility responsible for it. ``Risk''
is not an EPCRA section 313 criterion for addition of facilities.
Congress intended EPCRA section 313 reporting to provide the public
with information about toxic chemical release volumes. Reporting by
electric utilities will increase the universe of information available
to the public about toxic chemical releases. The public will be able to
use this information, in combination with other information, to better
understand any potential risks from electric utility operations. EPA
recognizes that TRI release data may sometimes be mischaracterized or
misperceived. EPA believes that, to the extent public misperceptions
arise through TRI data, EPA must continue to improve its outreach and
education efforts regarding the data collected under EPCRA section 313.
EPA does not agree that large release volumes reported by one industry
would ``obscure'' or improperly direct attention away from release
volumes reported by other industries; however, to the extent that this
may occur, EPA believes the appropriate solution is outreach and
education to better explain the significance of other factors than
volume of release, not denying the public access to the information at
all. As noted previously, EPA will initiate a stakeholder process to
consider these and other issues.
d. Combustion byproducts. Many commenters state that most trace
metals and other impurities in coal and oil would be present below de
minimis concentrations and therefore would not be subject to reporting
under the ``otherwise use'' activity. The commenters maintain that
combustion processes do not ``manufacture'' toxic chemicals and that
including combustion under the definition of manufacture is in effect
an attempt to remove the de minimis exemption for metals that exist as
impurities in fuels.
EPA believes that all of the constituents of coal and oil are
subject to the ``otherwise use'' activity thresholds when combusted for
energy production and may be subject to the de minimis exemption for
this activity. Therefore, toxic chemicals present in coal and oil
``otherwise used'' below de minimis levels would not be subject to
reporting under the otherwise use activity. However, as discussed in
Unit V.E.3. of this preamble, the combustion of metals and metal
compounds in coal and oil does ``coincidentally manufacture'' new metal
compounds as byproducts and thus these combustion processes are not
eligible for the de minimis exemption. The combustion of coal and oil
by electric utilities produces both a product (the energy produced) and
byproducts (e.g., ash and combustion gases). Under EPCRA section 313,
``manufactured'' impurities that remain with a product are subject to
the de minimis exemption, but ``manufactured'' byproducts that do not
remain with the product are not subject to the de minimis exemption
(see Unit V.E.1. of this preamble). In the case of the combustion of
coal and oil there are no chemicals that remain in the product (energy)
as impurities; therefore, all of the chemicals that are produced during
combustion are byproducts that are separate from the product and
therefore not eligible for the de minimis exemption.
e. Determination of threshold and release quantities. Many
commenters state that it is not possible to determine changes in the
valence state of metals that occur as a result of combustion, and that
little information exists on what metal compounds are in coal and oil
prior to combustion and what metal compounds are in the ash byproducts.
The commenters state that the constituents of coal and oil and
combustion byproducts vary, and since no monitoring or testing is
required under EPCRA section 313, and is probably not possible,
facilities will be forced to make threshold and release determinations
based on various theories of what happens during combustion. The
commenters state that for these reasons the determination of threshold
and release quantities is difficult, if not impossible, and therefore,
the data will be inconsistent and of little value to the public.
EPA disagrees with the commenters' statements regarding their
inability to determine threshold and release quantities of EPCRA
section 313 metal compounds ``manufactured'' as a result of the
combustion of coal and oil. It is not necessary to measure the changes
in the valence state of the metals that take place at the time of
combustion or as a result of combustion in order to determine if EPCRA
section 313 reportable metals or metal compounds have been
``manufactured.'' As has been discussed in Unit V.E.3. of this
preamble, the test is not whether a metal's valence state has changed,
but rather whether a new metal compound has been created. The
determination of threshold quantities can be done by either estimating
or measuring the metal compounds that exist after combustion occurs. As
the commenters correctly state, EPCRA section 313 does not require any
additional monitoring or testing; calculations are to be based on
readily available data which may include monitoring data collected
pursuant to other provisions of law, or if such data are not readily
available, reasonable estimates can be used.
The issues raised by the commenters mainly relate to the
determination of reporting thresholds rather than reporting of releases
and transfers. EPA does not believe that it is difficult to accurately
determine threshold quantities. Even if there were some difficulty in
determining threshold quantities, EPA does not believe that is
sufficient reason to exempt facilities from the reporting requirements
of EPCRA section 313. In the absence of better facility-specific
information, estimates can be used to determine whether thresholds have
been exceeded. Data on what happens to the metal constituents in coal
and oil indicate that most, if not all metals, are present as some form
of metal compound that does not usually survive the combustion process
(see Unit V.E.3. of this preamble and Refs. 1 and 16). Therefore, for
estimating the amount of metal compounds manufactured from the
combustion of coal and oil, EPA believes that, in the absence of better
facility-specific information, a facility may assume that all of the
metals present in the coal or oil are converted
[[Page 23867]]
to the lowest weight metal oxide (per unit of the metal) possible for
each metal. For example, for purposes of threshold determinations only,
if the average concentration of chromium in coal were 0.001 lb per ton,
then its combustion would produce 0.0015 lbs of chromium (III) oxide
(Cr2O3) per ton of coal combusted which would be
counted towards the manufacturing threshold for chromium compounds. In
order to determine threshold quantities, the same kind of calculation
can be performed for all metals in coal and oil. EPA believes that it
is unlikely that use of this estimation method would require reporting
by any facilities that are not exceeding thresholds because at least
some, if not many, of the metal compounds ``manufactured'' as a result
of combustion will be heavier than the lowest weight metal oxide (Ref.
15).
One exception to the use of metal oxides for threshold
determinations may be mercury. Data indicate that substantial amounts
(approximately 90 percent) of the mercury in coal and oil is
volatilized as the metal itself rather than converted to a metal
compound (Refs. 1 and 16). However, this makes little difference in
threshold calculations since in mercury oxide (HgO), the oxygen only
accounts for 7.4 percent of the compound's weight. Therefore, using the
metal itself or the metal oxide as the basis for threshold calculations
for mercury will make little difference in the threshold
determinations. Since the data indicate that most mercury remains
volatilized as elemental mercury after combustion, the weight of the
metal, rather than that of the metal oxide, can be used in threshold
determinations, and this amount then applied towards the
``manufacture'' activity reporting threshold for mercury.
With regard to the reporting of release and transfer quantities,
for the metal compound categories, the weight of the EPCRA section 313
metal itself, not the weight of the entire metal compound, is used to
report quantities released and transferred. Therefore, it is not
necessary to know what metal compounds have been ``manufactured'' in
order to report on releases and other waste management activities of
the EPCRA setion 313 metal. The only information needed is the amount
of the EPCRA section 313 metals in the stack emissions and ash
byproducts. Information on typical concentrations of metals in stack
emissions and ash byproducts from the combustion of coal and oil is
available (Refs. 1 and 16) and can be used as a basis for estimating
quantities released per ton of coal or oil combusted. Again, if better
facility-specific information is not available, then estimates can be
used based on the average content of stack emissions and ash byproducts
from coal or oil combustion. This information can come from data on the
coal or oil the facility actually uses or if this is not available,
then data on the average metal content of coal and oil can be used.
Even estimates that vary from facility to facility will ultimately
provide the public with better information than if nothing is reported
concerning releases and other waste management that result from fuel
combustion by electric utilities.
f. Disposal of combustion byproducts. Many industry commenters
believe that toxic chemical constituents in electric utility combustion
byproducts should not be subject to EPCRA section 313 reporting. The
commenters state that EPA studies have concluded that such combustion
byproduct ash is not a hazardous waste under RCRA and can be disposed
of as any other non-hazardous waste. The commenters believe that
reporting releases of EPCRA section 313 toxic chemicals in ash and
sludge will mislead the public about risk from these substances.
Several commenters stated that ash landfills and disposal units are
highly regulated and are designed to protect the public and
environment; one commenter suggested EPA require reporting only for
quantities of listed toxic chemicals which migrate out of such units.
In its ``Final Regulatory Determination on Four Large-Volume Wastes
from the Combustion of Coal by Electric Utility Power Plants'' (58 FR
42466, August 9, 1993), EPA specifically concluded that regulation
under subtitle C of RCRA is inappropriate for fly ash, bottom ash,
boiler slag, and flue gas emission control waste because of the limited
risks posed by these substances and the existence of generally adequate
state and federal regulatory programs. However, in this determination,
the Agency did not conclude that ash and sludge from coal and oil
combustion pose no risk. Rather, EPA stated that it ``believes that the
potential for damage from these wastes is most often determined by
site- or region-specific factors and that the current State approach to
regulation is thus appropriate.'' In making the disposal of toxic
chemicals contained in combustion byproduct ash a Form R reportable
activity under the EPCRA section 313 reporting requirements, EPA is not
drawing any conclusion about the risk of those wastes to communities.
Rather, the Agency is providing the data on these wastes, as well as on
metal wastes resulting from the removal of sulfur dioxide from flue gas
emissions, to the public to allow the public to use the data, as well
as information on the hazards of chemicals, site-specific information
that will affect exposure, and other data on non-TRI sources of the
chemical to determine if there is a risk. EPA acknowledges that
reporting the disposal in a secure landfill or impoundment of
constituents in combustion byproduct ash without explanation
potentially could result in public misperception of the risks of such
disposal. However, the Agency continues to believe that expanding the
TRI reporting system to include additional industry sectors will
provide the public with a more complete picture of toxic chemical
releases, and that this increased information is intended to lessen,
not increase, the possibility for misperception of toxic chemical
risks.
EPA recognizes that TRI data may sometimes be mischaracterized or
misperceived, but EPA believes that any such misperceptions are best
addressed through continued and improved outreach and education
efforts. The Agency has also made some changes to the EPCRA section 313
reporting form for the 1996 reporting year in order to address some of
the concerns about public misperception and to better help the public
understand the nature of the various releases to land. These changes
are discussed in more detail in Ref. 15. As mentioned above, EPA will
initiate a stakeholder process to discuss the reporting forms and other
issues, including whether it should add an element relating to the
intra-land movement of waste from landfills and possibly surface
impoundments, and whether such reporting would enable the public to
better characterize relative risks from the various forms of land
disposal.
Many commenters object to the requirement that electric utilities
report for combustion byproduct ash, when the Agency chose to exclude
from EPCRA section 313 reporting non-hazardous waste facilities in SIC
code 4953 which dispose of the same ash. Numerous commenters argue that
it is inconsistent to require utilities which dispose of their ash
onsite to report the quantities of listed chemicals in it, while
utilities which sell or otherwise distribute their ash in commerce for
reuse would not have to report these quantities.
The commenters are correct that certain facilities within SIC code
4953 which typically dispose of utility combustion byproduct ash were
not included in this expansion initiative and therefore would not have
to report disposal of this ash. However, EPA did not ``exclude'' these
facilities from
[[Page 23868]]
coverage under EPCRA section 313; EPA simply chose not to add these
facilities at this time. As EPA stated in the proposed rule, ``these
facilities are primarily operated by local municipalities and regional
government 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.'' EPA goes on to
say that it ``may reconsider at a later date some or all of the
industry groups which were excluded as a result of the considerations
mentioned above.'' EPA also points out that any EPCRA section 313
covered facility which disposes of combustion byproduct ash would have
to report for the EPCRA section 313 chemicals contained in that ash if
the facility exceeded an activity threshold for the chemical. This
requirement is not unique to electric utility facilities.
The commenters are correct that under the existing EPCRA section
313 reporting regulations, toxic chemicals contained in a substance
which is disposed of on-site must be reported, while toxic chemicals
contained in the same substance would not be reported if the substance
is sold as a product. EPA recognizes that the public may have an
interest in and benefit from knowing about the presence of toxic
chemicals in products produced by facilities. EPA issued an Advance
Notice of Proposed Rulemaking (61 FR 51322, October 1, 1996) (FRL-5387-
6) concerning the possible collection of this and other types of
information. Following a series of public meetings and evaluation of
public comment, EPA will determine whether and how to proceed on that
initiative.
g. Addition of SIC code 4961. In the proposal, EPA requested
comment on whether to add SIC code 4961, Steam and Air Conditioning
Supply, to EPCRA section 313. (This SIC code was misnumbered as 4960
although correctly described in the proposal.) Four commenters opposed
the addition of SIC code 4961. No comments were received in support of
adding this industry, and no comments were received which provided any
additional information about this industry group. Therefore, EPA has
not included this industry in this rule. EPA may reconsider this
industry group in a future rulemaking in light of additional
information.
5. Commercial hazardous waste treatment and disposal. EPA is adding
to the list of industry groups covered under EPCRA section 313,
facilities in SIC code 4953 which are regulated under the RCRA Subtitle
C. EPA received a variety of comments regarding the inclusion of these
facilities. Many of the concerns raised by industry representatives,
such as the classification of waste disposal as a release under section
313, deferring the effective date of reporting, and considering
treatment, stabilization, and disposal as an ``otherwise use'' under
section 313, relate to more than one industry and therefore have been
addressed in separate sections of this preamble. Other comments that
raise major issues with this industry sector are addressed below. All
of the issues are addressed in greater detail in the Response to
Comments document (Ref. 15).
Some commenters stated that EPA's application of the EPCRA section
313 reporting requirements to commercial RCRA Subtitle C hazardous
waste management facilities does not further the statutory purpose
underlying EPCRA section 313 because no additional information
concerning release of toxic chemicals will be provided. One commenter
asserted that the only releases occurring at RCRA facilities are
permitted releases to air and these are monitored and reported pursuant
to the CAA; permitted releases to water and these are monitored and
reported pursuant to the CWA; and unintended releases to the
environment which are monitored, reported, and subject to corrective
action under RCRA. The commenter stated that requirements under RCRA
incorporate public participation during the permitting process, which
ensure releases do not occur and that communities are well informed of
any and all toxic releases that do occur.
EPA disagrees with these commenters. The information about toxic
chemical releases to the environment that are permitted, monitored,
reported on, or otherwise regulated under other environmental statutes
is not available to the public in the same manner as information
reported to TRI. This includes information about releases regulated
under the CAA, the CWA, RCRA, and the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA). TRI consolidates
data addressing toxic chemical releases to all environmental media into
an inventory that is a single, multi-media data resource, consistently
defined and formatted, annually aggregated, and readily available to
the public.
Furthermore, permitting processes under other environmental
statutes, while providing opportunities for public participation, do
not afford the public the kind of information made available through
TRI. In fact, information reported to TRI is often used both by members
of the public to enhance their participation in these permit processes,
and by federal, state, and local government decision makers in
administering these permit processes. In addition, legislative history
indicates that Congress contemplated reporting under EPCRA section 313
to include activities and amounts permitted under other statutes such
as the CWA and RCRA, and that the reporting would result in a cross-
media inventory describing the disposition of EPCRA section 313 toxic
chemicals to land, air, and water. (See, for example, A Legislative
History of the Superfund Amendments and Reauthorization Act of 1986
(Pub. Law 99-499), Vol. II at 1083, and Vol. V at 4194, 4196-97, and
4200.)
Some commenters asserted that commercial RCRA Subtitle C hazardous
waste management facilities do not ``manufacture,'' ``process,'' or
``otherwise use'' listed EPCRA section 313 toxic chemicals, and
therefore, should not be included in TRI. Another commenter stated that
commercial TSDs do not meet EPA's activity factor because TSDs do not
``otherwise use'' chemicals and added that:
EPA concluded that the statute as originally written and
implemented did not apply to Subtitle C facilities that would not
ordinarily be subject to the rule. [Nothing] has changed other than
EPA's desire to include these facilities and waste management
activities in the section 313 reporting requirements. The Agency
identifies no new information needs that were not available when it
originally interpreted otherwise use to expressly exclude waste
management activities from reporting under section 313.
EPA disagrees with these commenters. As identified in the Economic
Analysis and Industry Profile, commercial RCRA Subtitle C hazardous
waste management facilities may ``manufacture,'' ``process,'' or
``otherwise use'' listed toxic chemicals. EPCRA section 313 toxic
chemicals are, for example, coincidentally manufactured during
hazardous waste incineration and ``otherwise used'' for injection of
hazardous waste or for hazardous waste treatment (Ref. 12). Further,
there may be facilities within this SIC code that also recycle spent
solvents for distribution in commerce and may therefore be
``processing'' EPCRA section 313 toxic chemicals. Finally, as noted in
the Economic Analysis, under EPA's revised
[[Page 23869]]
interpretation of ``otherwise use,'' numerous chemicals contained in
wastes received or generated from the management of wastes received are
treated for destruction, stabilized, or disposed are ``otherwise used''
(Ref. 12).
In addition, contrary to the commenters' assertion, the proposal
clearly explains the basis and purpose for EPA's revised interpretation
of ``otherwise use.'' As EPA notes in the proposal, EPA is revising its
interpretation of ``otherwise use'' to address the unintended
consequence of its previous interpretation. EPA states that it ``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.'' (61 FR 33596) As EPA clearly expresses, it was concerned
that its previous interpretation left a significant gap in the
information reported by facilities within SIC codes 20 through 39, and
did not want to perpetuate this informational gap when adding other
industry groups. Thus, although recognizing that RCRA Subtitle C
facilities could report information as a result of the ``manufacture,''
``processing,'' or ``otherwise use'' activities described above and in
support documents, EPA announced its intent to revise the
interpretation of ``otherwise use'' for all industries subject to EPCRA
section 313 to rectify this loss of information from facilities within
20 through 39 and the potential loss of information from any added
facilities. EPA believes that the addition of facilities within this
industry group and the revised interpretation will significantly add to
the public's right-to-know about the use and disposition of toxic
chemicals in their communities. EPA has provided further discussion of
its revised interpretation in Unit V.F.2. of this preamble.
Comments submitted by two industry representatives stated that TRI
reporting by commercial RCRA Subtitle C hazardous waste management
facilities will be highly inaccurate because information on
concentrations of constituents is not usually available for wastes
received from manufacturing facilities, or from contaminated media
received from CERCLA or RCRA corrective action and clean-up activities.
The commenters asserted that the RCRA reporting and manifest system
does not provide data on chemical concentrations in hazardous wastes,
and that the information that is provided may not pertain to the total
concentration of the compound or may be in range values that can be
extremely wide. These commenters also repeated statements made by
several others that, unlike manufacturing plants, it is impossible for
a RCRA hazardous waste treatment or disposal facility to review the
paperwork it receives and determine from it the quantities of chemicals
entering the facility. Similar comments stated that information
required from generators for wastes identifies if the waste may
contain, or may leach, certain chemical constituents above a minimum
level, or is generated by industry-specific processes. Accurate
chemical constituents are not necessary for processing wastes.
EPA believes, based in part on industry comments, that commercial
RCRA Subtitle C hazardous waste management TSDs receive and prepare
information on chemicals contained in wastes that is sufficient for
reporting under section 313, and that this information will be
beneficial as reported. Generators that send hazardous waste to
facilities for treatment, recovery, or disposal provide RCRA manifests
which contain a variety of detail on the wastes they transfer. While
this information is provided as a means to satisfy associated RCRA
requirements, EPA believes that in many instances this information can
contain significant detail and can be useful in developing constituent
specific estimates required under section 313. In addition, one set of
industry comments indicate that waste generators provide waste handlers
with information on the concentration ranges of constituents in waste.
Laidlaw utilizes a profile system in order to obtain information
from the waste generator that is needed to properly treat, store or
dispose of the hazardous waste. Variants of this type of system is
generally used by all members of the hazardous waste management
industry....Profiles typically provide information on RCRA hazardous
constituents present in the waste, including concentration ranges.
Laidlaw attached examples of these profiles. For example, the profile
for ``Line Rinse Mop Water'' lists the following constituents: Water -
50-80%, Methanol - 0-5%, Ethanol - 10-20%, Acetone - 0-2%, Isopropanol
- 3-15%, Tetrachloroethylene - 0-1%, n-Butyl alcohol - 0-1%, Mineral
spirits - 3-15%, Pyrethroids - 0-1%, Dirt - 1-5%. This range
information is analogous to the information on Material Safety Data
Sheets (MSDS) that the manufacturing sector uses to estimate the
constituents of mixtures. For example, an MSDS for ``Xylenes'' lists
the following constituents: m-Xylene - 40-65%, o-Xylene - 15-20%, p-
Xylene - 0-20%, Ethyl benzene - 15-25%.
Further, EPA believes that TSD facilities that receive hazardous
waste in many cases conduct additional analyses and develop profiles of
the wastes they receive for purposes of treatment or disposal in order
to ensure that the waste they receive meets their recovery, treatment
or disposal specifications, or to otherwise properly manage wastes
received. For example, TSDs are required under 40 CFR 264.13 and 265.13
to obtain a detailed chemical and physical analysis of a representative
sample of any hazardous, and certain non-hazardous, wastes prior to any
treatment, storage, or disposal, and to develop written waste analysis
plans that specify the frequency of sampling.
EPA also disagrees that it would be nearly impossible or extremely
expensive for TSDs to develop formulas to calculate concentrations of
toxic chemicals received in hazardous wastes. EPA expects that
developing toxic chemical concentration estimating techniques would not
be extremely difficult for hazardous wastes listed as toxic hazardous
wastes at 40 CFR 261.33(f) (``U-listings''), or acutely hazardous waste
listed at 40 CFR 261.33(e) (``P-listings''). These materials are
discarded commercial chemical products, off-specification species,
container residues, and spill residues and are likely to be present as
highly concentrated chemicals. These waste codes also represent a
significant portion of the RCRA hazardous waste manifests required to
accompany all shipments of hazardous waste to commercial RCRA Subtitle
C hazardous waste management facilities. Similarly, many of the RCRA
wastes listed at 40 CFR 261.31 and 40 CFR 261.32 are narrowly defined,
such as F007 (spent cyanide plating bath solutions from electroplating
operations) and K009 (distillation bottoms from the production of
acetaldehyde from ethylene), and relate directly to process-specific
waste steams that lend themselves readily to generic toxic chemical
concentration estimating procedures.
EPA agrees that concentrations of toxic chemicals vary widely for
RCRA hazardous wastes identified at 40 CFR 261.21 through 261.24 by
hazardous characteristics (corrosive, ignitable, reactive, and toxic)
and for contaminated media from Superfund or RCRA corrective action
clean-ups, and that these wastes may represent a large portion of the
total quantities of hazardous wastes received by commercial RCRA
Subtitle C hazardous waste management facilities. However,
[[Page 23870]]
TSDs are required to develop a significant amount of information
regarding the constituent composition of certain characteristic wastes
to ensure compliance with RCRA requirements such as the treatment
standards for underlying hazardous constituents. For example, 40 CFR
268.48 requires facilities to conduct routine sampling to ensure
compliance with the treatment standards for the listed hazardous
constituents. Despite the fact that concentration data available to
these facilities for these wastes may be variable in some cases, or
correspond to leachable fractions instead of total concentrations, EPA
nonetheless believes that these data, along with RCRA manifests, waste
profile reporting data, and facilities' knowledge of the waste
management processes they operate, provide a substantial basis for
facilities to develop reasonable estimates of annual quantities of each
RCRA hazardous constituent contained in these waste streams.
Furthermore, manufacturers currently reporting to TRI that operate on-
site RCRA Subtitle C hazardous waste management facilities have nearly
a decade of experience in developing reasonable release estimates
associated with these processes. Such experience, along with the actual
TRI reports provided by these facilities since 1987, can be drawn on to
support the endeavor. In addition, EPA has provided guidance to current
reporters in the proposed and final rules implementing the EPCRA
section 313 reporting requirements (52 FR 2115-2116, 53 FR 4510-4511)
and the 1995 Toxic Chemical Release Inventory Reporting Form R and
Instructions (EPA 745-K-96-001) for making threshold determinations on
the components of mixtures, which can be applied to wastes, even though
waste is not a mixture. EPA's guidance includes the following
scenarios: (1) The concentration range is known, (2) only the upper
bound concentration is known, (3) only the lower bound concentration is
known, and (4) when no concentration information is known.
Finally, many of the currently reporting manufacturers have worked
through trade associations and other cooperative mechanisms to develop
industry-specific estimating procedures that meet the EPCRA section 313
reporting requirements to provide reasonable release estimates based on
information generally in the possession of reporting facilities. EPA
believes similar cooperative endeavors could be initiated to develop
similar estimating procedures for commercial RCRA Subtitle C hazardous
waste management facilities, since the number of such facilities is
relatively small, allowing most if not all members to participate in
the endeavor.
Consequently, EPA believes that the combination of information
received with waste transfers and information developed by the facility
will enable TSD facilities to adequately determine their compliance
requirements under section 313 and that the additional waste management
information anticipated from these facilities will further the purposes
of TRI.
One commenter asserted that EPA's approach to TRI release reporting
at RCRA facilities is contrary to the fundamental goal of EPCRA,
because communities will be misled into believing that all wastes
placed in RCRA disposal units are released, and ``actual'' releases
from RCRA disposal units are not to be reported pursuant to 1995 Form R
instructions and guidance. Specifically, the commenter noted that
amounts placed in managed units, such as subtitle C landfills, will be
reported when they are disposed of, while the resulting emissions such
as the amounts that migrate or are emitted to air will not be reported.
EPA does not believe that the manner in which information will be
reported under section 313 by hazardous waste facilities will mislead
communities or will be contrary to the goals served by section 313.
Under section 313, facilities must report information on amounts of
listed chemicals in wastes, including details regarding the
environmental media into which releases occurred and the other measures
that were taken to manage the wastes annually. For example, if a
hazardous waste treatment facility exceeds the activity threshold for a
toxic chemical within a given year and during that year the entire
amount was disposed in a landfill and remained there, then the facility
would report the entire amount as being disposed in a landfill and the
information would appear as such. If the facility exceeded an activity
threshold for another toxic chemical that may be more volatile, the
facility would report the estimated amount disposed that remained in
the landfill as disposed in a landfill and the fraction that could be
estimated to have volatilized as released to air during the reporting
period.
In order to address industry concerns, EPA modified the Form R for
the 1996 reporting year in an effort to avoid public misperception and
to promote a better understanding of the differences among various
waste disposal methods. For additional detail regarding this reporting
modification, refer to Unit V.F.1. of this preamble. In addition, as
noted above, EPA will initiate a stakeholder process to consider these
and other issues.
A number of commenters stated that the distortion of disposal as
release would focus public attention on the end of the manufacturing
cycle (treatment and disposal), when there is virtually nothing that
commercial RCRA Subtitle C hazardous waste management facilities can do
to minimize or reduce the use of EPCRA section 313 toxic chemicals, and
that EPA will have missed the target of encouraging reduction and
minimization by shifting the focus away from the manufacturing cycle to
the waste treatment component which is least able to affect these
goals.
EPA fully supports source reduction and waste minimization
activities. One of the benefits of making information publicly
available through TRI, but which has been predominately limited to
sources within the manufacturing sector, has been the ability to detect
shifts in amounts of waste directly disposed as compared to amounts
being recycled for example. Encouraging reductions of toxic chemicals
in waste and applying pollution prevention practices, however, are not
the primary purposes under which section 313 was established. Section
313 was established in order to make publicly available information
regarding routine chemical releases, and the management and disposition
of listed chemicals within local communities, for all media, in one
location. By including hazardous waste treatment and disposal
facilities in TRI, the public will have ready access to more complete
information on the management and disposition of toxic chemicals in
their communities.
Several commenters proposed that, if EPA included commercial RCRA
Subtitle C hazardous waste management facilities under section 313, EPA
should delay reporting for their industry for 1 year and commence
coverage on January 1, 1998, in order for them to develop data
gathering systems.
EPA acknowledges that some commercial RCRA Subtitle C hazardous
waste management facilities may want to implement data management
strategies to best comply with TRI reporting. However, the Agency
believes that such modifications will take substantially less than a
year to implement, and that information corresponding to the portion of
the reporting year during which tracking modifications are being
developed can either be entered by facilities subsequent to completion
of the modifications or extrapolated for the missing period based on
information entered into such systems for the
[[Page 23871]]
duration of the reporting year. As noted in Unit V.D. of this preamble,
EPA is not requiring reporting by any of the added industry groups for
the reporting year 1997. This rule is effective December 31, 1997.
One commenter submitted a statement that TRI does not offer any
mechanism to indicate beneficial destruction of a listed section 313
chemical, and therefore, TRI does not reflect risk reduction provided
by the destruction, stabilization, recovery, or other treatment of
hazardous wastes.
EPA disagrees that TRI does not offer any mechanism to indicate
destruction, removal, or other management of EPCRA section 313 listed
chemicals. Facilities report in section 6 of Form R the quantities of
toxic chemicals discharged to Publicly Owned Treatment Works (POTWs)
(section 6.1) or transferred to other off-site locations for further
waste management (section 6.2). In section 6.2, facilities identify the
receiving waste management facility, the quantity of the toxic chemical
transferred to that facility, and the specific type of management
practice to be applied to destroy, treat, combust for energy recovery,
recover, or stabilize the toxic chemical in wastestreams (M codes).
Facilities report in section 7 of Form R more detailed information
describing on-site energy recovery and recycling of the toxic
chemicals, and waste treatment methods applied to the waste streams
containing the toxic chemical. In section 8 of Form R, facilities
report on waste management activities applied to the listed toxic
chemical. Facilities also report in section 8 whether and which types
of source reduction were implemented for each reported toxic chemical.
EPA believes that the sum of these information items does in fact
provide significant insights into the risk reduction provided by
information on methods used to manage the listed toxic chemical in
waste streams.
Additionally, RCRA Subtitle C facilities will be faced with a
unique opportunity to demonstrate their efficiency in reclaiming a
toxic chemical or destroying the toxic chemical through reporting under
section 313. Section 313 reporting by RCRA subtitle C facilities will
be based on their commercial treatment and disposal activities and the
amounts that they report as released will be amounts that are released
as a result of their treatment processes or amounts that they directly
dispose. A facility with an efficient treatment process will report
smaller amounts disposed or otherwise released than a facility with a
less efficient process.
Some commenters stated that expanding TRI to include commercial
RCRA Subtitle C hazardous waste management facilities will have the
effect of transferring the responsibility and liability for
characterizing hazardous wastes from generator to treatment, storage,
and disposal facilities, which is counter to RCRA philosophy and
inconsistent with 40 CFR Subpart C Supplier Notification Requirements.
Similarly, another commenter stated that expanding TRI to include
commercial RCRA Subtitle C hazardous waste management facilities will
have the effect of restructuring the entire RCRA waste characterization
scheme, a concept that was not contemplated or clearly proposed by this
rule.
EPA disagrees with the commenters that expanding the EPCRA section
313 facilities list to include commercial RCRA Subtitle C hazardous
waste management facilities will have either the effect of
restructuring the entire RCRA waste characterization scheme or
transferring the responsibility and liability for characterizing
hazardous wastes from waste generators to TSDs. As noted in both EPA's
proposal and this preamble, EPA believes that these facilities will be
able to meet EPCRA section 313 reporting requirements by determining
whether thresholds were likely to have been met and to prepare
reasonable estimates of annual quantities of toxic chemicals released/
disposed, treated, recovered, and recycled, by using information
already provided to them through existing practices, along with
information they develop for operational needs and for compliance with
other regulations.
While EPA anticipates that these facilities will undertake the
development of estimation procedures, drawing on these data to bridge
the difference between RCRA data resources and EPCRA section 313
requirements, the Agency does not agree that such endeavors, undertaken
by individual facilities or on a collaborative basis among several
facilities, amounts to or would have the effect of restructuring the
entire RCRA waste characterization scheme.
RCRA TSD facilities are required to prepare waste analysis plans in
accordance with 40 CFR 264.13 or 265.13 that establish procedures for
identification and characterization of incoming wastes. Data collected
by TSDs, as outlined in their site-specific waste analysis plans, which
typically detail the data needs for initial waste profiles, in concert
with shipment-specific information in the waste manifest, are believed
to be sufficient to meet the EPCRA section 313 reporting requirements.
No new RCRA waste characterization requirements are being established
in this rulemaking. Similarly, EPA does not believe that summarizing
these data at the chemical level by a receiving facility for TRI
reporting purposes will alter the liabilities imposed by RCRA, CERCLA,
and other environmental statutes, which require the generators of
hazardous waste to properly manage and identify their wastes.
One commenter proposed that EPA establish a higher reporting
threshold of 50,000 pounds for amounts injected into underground wells,
because the wastes injected are relatively dilute, compared to other
waste streams. The commenter described wastes injected as typically
composed of 90 to 95 percent water with the remainder composed of
soluble inorganic and dissolved organic fractions.
EPA would like to clarify that amounts considered toward thresholds
are based on the amount of the listed toxic chemical and not the volume
of the waste stream. Therefore, in the case described by the commenter,
only the toxic chemical fraction of the waste would be evaluated for
each individually listed chemical, and reporting would be limited to
the amounts of each chemical that exceeds threshold quantities.
Another commenter suggested that generators of hazardous wastes be
required to send to RCRA Subtitle C treatment and disposal facilities,
information on quantities of section 313 listed chemicals contained in
wastes.
Supplier notification requirements are not being amended by this
rulemaking. Supplier notification applies to chemicals contained in
mixtures or trade name products. 40 CFR 372.45. EPA does not consider
wastes to be ``mixtures or trade name products.'' In addition, EPA does
not believe that supplier notification is necessary for newly listed
industry groups to be able to reasonably comply with EPCRA section 313
reporting requirements and provide information of sufficient quality.
For this rulemaking, EPA selected industry groups that the Agency
believes currently possess adequate information to report under section
313. As stated throughout this preamble, EPA believes that existing
information provided to these facilities through RCRA manifests,
reporting requirements and facility practices, taken together with
facilities' knowledge of the waste management processes they operate,
provide a sufficient basis for them to develop reasonable estimates for
section 313 reporting. Accordingly,
[[Page 23872]]
EPA sees no reason at this time to extend supplier notification
requirements to the generators that transfer hazardous wastes to these
facilities.
One comment submitted by an industry representative stated that
they were concerned that EPA is excluding Municipal Solid Waste
Landfills and POTWs from reporting to TRI, even though these facilities
many manage significant quantities of EPCRA section 313 toxic
chemicals. The commenter stated that, unlike deep well injection
facilities, these types of facilities emit EPCRA section 313 toxic
chemicals which present high risks to surface and ground waters, about
which EPA has the duty to notify the public.
As stated in the proposed rule, other sections of this preamble,
and in the Response to Comments document (Ref. 15), EPA chose for a
number of reasons to defer considering whether to add several other
industries in this action. In electing not to exercise its authority to
extend the EPCRA section 313 reporting requirements to Municipal Solid
Waste Landfills and POTWs in this action, EPA has not made a
determination that these industry segments should not be included in
the section 313 facilities list. EPA will consider comments received
during this action regarding these and other industries not included in
today's action at a future date.
One commenter suggested that EPA exclude RCRA facilities that no
longer accept off-site hazardous wastes and have notified the lead RCRA
agency of their intention to close. The commenter noted that the RCRA
closure process provides adequate public notification opportunities and
comment on activities conducted at the facility.
EPA does not believe that a specific exemption should be granted
for facilities that are closing. Facilities that are no longer
receiving waste for treatment or disposal are potentially no longer
subject to the EPCRA section 313 reporting requirements. If no
threshold activities are conducted within a reporting year, then no
reporting is required.
6. Petroleum bulk terminals and stations. EPA is adding to the list
of industry groups covered under EPCRA section 313 SIC code 5171, bulk
petroleum stations and terminals. The major issues raised in comments
regarding this industry are addressed below. Greater detail can be
found in the Response to Comments document (Ref. 15). General issues
raised by commenters are addressed in separate sections of this
preamble.
Two commenters claim that EPA has not provided factual or
scientific justification for including SIC code 5171. One commenter
noted that the proposal spends less than one page discussing their
industry.
EPA disagrees with the commenters. The Agency has provided factual
and scientific justification for including facilities operating within
SIC code 5171. The discussion provided in the preamble to the proposed
rule was intentionally brief and limited to providing a summary of
EPA's findings for each industry group. However, EPA cited and has made
available several support documents that describe in detail information
relating to bulk petroleum facilities, and facilities identified in
each of the other industry groups being added. These support documents
include industry profiles (Refs. 6-10 in the proposed rule and Refs. 5-
7 and 18 in the final rule), which provide descriptions of activities
within the industries, and the Economic Analysis (Refs. 11 and 12)
which provides statistical and market information on the particular
industry as a whole, as well as projections of estimated impacts for
each industry group anticipated as a result of this rulemaking.
Many commenters state that bulk petroleum plants and terminals
provide different functions which involve different practices, and are
different types of facilities that should not be considered equivalent.
Many argue that the SIC code 5171 industry classification covers types
of facilities with unique differences and that EPA's action does not
adequately address these differences. Many commenters stated that for
this regulation, ``one size does not fit all.'' Most of the comments
from smaller companies state that implementing this action will put
them at an economic disadvantage as compared to larger facilities such
as many bulk terminals. Another commenter provides sales information
supporting the point that terminals have much greater throughput
quantities which allow them to spread costs over much larger profits.
Many of these commenters and others claim to be classified as ``small''
according to the Small Business Administration (SBA) definition and add
that if this action goes into effect as proposed, many companies will
be forced out of business, prices will increase, and, in some cases, a
gap in the market may be created limiting options for their present
customers.
EPA does not believe that the distinctions within the petroleum
distribution industry the commenters raise are sufficiently relevant to
the purposes of EPCRA section 313 to warrant a division among
facilities within SIC code 5171 for purposes of EPCRA section 313
reporting. While EPA recognizes that a substantial range in facility
size and in the quantity of product managed exist within SIC code 5171,
EPA believes that bulk terminals and bulk plants manage similar
mixtures containing EPCRA section 313 chemicals, often manage these
chemicals in a similar manner, and that each may reasonably be
anticipated to provide information that will appreciably further the
purposes of EPCRA section 313. In other words, both bulk terminals and
bulk plants meet the statutory standard for listing.
In addition, EPA believes that existing thresholds associated with
EPCRA section 313, such as the employee threshold, will reduce the
regulatory burden substantially for small companies within this
industry. These thresholds have reduced the burden for the
manufacturing industry. EPA also recognizes that existing exemptions
will reduce the reporting burden; for example, fuels that do not
contain EPCRA section 313 toxic chemicals above de minimis
concentrations will not be counted towards activity thresholds. Thus,
for facilities operating within SIC code 5171, EPA believes that
existing thresholds or exemptions such as the de minimis exemption will
serve to significantly reduce overall burden, and inherently recognize
the differences in facility sizes and products managed.
A number of commenters assert that the Agency has inadvertently and
unintentionally included small petroleum bulk plants in the proposed
expansion. These commenters state that EPA incorrectly assumed
marketers with small bulk plants would be classified as SIC code 5172,
despite the fact that all marketers with any size bulk plants are
classified as SIC code 5171 not SIC code 5172. Furthermore, they note
that EPA's economic analysis erroneously refers to ``bulk plants'' as a
synonym for SIC code 5172. They further state that unless this mistake
is corrected, EPA's action will result in a disproportionately large
economic impact on small marketers. Similar comments were submitted by
the Petroleum Transportation and Storage Association (PTSA) which state
that they believe EPA intended to capture only larger bulk plants and
terminals with average product throughput amounts of 36.5 million
gallons as compared to facilities with typical annual throughputs of 5
to 6 million gallons as evidenced by EPA support documents and EPA
discussions. PTSA further states that they believe the Agency intended
this rulemaking to be
[[Page 23873]]
much less expensive than it has the potential of being, and that the
Agency has not adequately considered the impact of the rule as
currently written, in part, because EPA's economic analysis mistakenly
classified 7,000 bulk plants in 5172, which actually operate within SIC
code 5171. Their comments also mention that small bulk plants are very
similar to facilities that operate in SIC code 5172, which were
specifically exempted. They state that bulk plants operating in SIC
code 5171 and facilities operating in SIC code 5172 share many
regulatory interests and their primary distinction is that facilities
in SIC code 5172 have access to terminals and do not need to have on-
site storage capacities.
The proposed rule (see 61 FR 33587) clearly specified the addition
of SIC code 5171, and included an industry description based on the SIC
code classification, which includes both petroleum bulk plants and
terminals. While some portions of EPA's economic analysis mistakenly
labeled certain facilities as operating in SIC code 5172, the
information used to estimate costs and economic impacts on the industry
was based on facilities classified as SIC code 5171. EPA's analysis did
not consider the 7,000 facilities identified by the commenter in
estimating the costs and economic impacts on 5171, because their
storage capacities are below 10,000 gallons and thus these facilities
are properly classified as 5172, or because the facilities, even though
they are properly classified as 5171, fall below the 10 full-time
employee threshold. Therefore, EPA's analysis included those bulk
plants that are properly classified in SIC code 5171 and that are
expected to report. Consequently, EPA believes that its economic
analysis accurately calculated the burden of reporting for this
industry group.
EPA would also like to clarify that SIC code 5172 was not
``specifically exempted'' from reporting to TRI. Rather, EPA deferred
further consideration of this industry prior to the proposal for
reasons identified as ``Additional Considerations,'' which were
discussed in the proposed rule (see 61 FR 33588) and in the Development
of SIC Code Candidates: Screening Document (Ref. 10).
Two commenters stated that EPA should have also included SIC code
5172 in this action. These commenters state that facilities in SIC code
5172, which they refer to as ``fixed based operators,'' provide
services to many major airports, among other locations. Commenters
state that these facilities are responsible for 10 to 20 percent of the
releases of ethylene glycol, and that by not listing this industry
group, EPA has missed an opportunity to capture a source of large
releases. These commenters also state that the distinctions between the
SIC codes 5171 and 5172 classifications are not that clear and by not
including both, EPA creates an incentive for facilities formally
classified in SIC code 5171 to reclassify themselves into SIC code
5172. These commenters note that EPA's proposed rule states that
facilities in SIC code 5172 ``may be adversely affected at a
substantially high rate'' but request that EPA explain how these
facilities would be adversely affected.
EPA believes that the distinctions between establishments
classified in SIC code 5171 and those classified in 5172 based on the
Bureau of the Census' 1992 Industry and Product Classification Manual
are adequate for the purposes of designating industry groups to report
under section 313 (Ref. 8). Petroleum wholesale facilities are assigned
to either SIC code 5171 or 5172 based on their storage capacity, which
is numerically defined. EPA believes this is a clear distinction.
EPA disagrees that its decision to defer further consideration of
5172 was based on a finding that these facilities ``may be adversely
affected at a substantially high rate.'' As noted in the proposal,
EPA's preliminary analysis indicated that, due to existing thresholds
and exemptions, ``the projected value of reporting for these industry
groups is questionable.'' (see 61 FR 33592) In addition, EPA's
preliminary analysis identified facilities in SIC code 5172 as possibly
having ``a disproportionately large economic impact if EPCRA section
313 reporting requirements were extended to their industry.'' (see 61
FR 33592) This finding is based on a projected estimate of the
anticipated cost to comply with this rule relative to the gross sales.
This finding is not an absolute determination, but was a consideration
in EPA's screening process that was taken into account in EPA's
decision to defer SIC code 5172 for further consideration in this
rulemaking.
Several commenters state that many facilities within SIC code 5171
do not perform mixing or blending activities. They state that storage
and simple redistribution should not be included in the processing
activities for threshold calculations. Several of these commenters
argue that this activity is analogous to ``transportation or storage
incidental to transportation'' which is exempt under section 313. Some
claim that no distinction should be made simply because a terminal
takes possession of the product it receives, and note that simply
taking possession of the product does not increase the possibility of
releases. Another commenter suggests that all transport and storage
incidental to transport of their product should not be subject to EPCRA
section 313 reporting or threshold calculations based on the EPCRA
section 327 transportation exemption. Based on their interpretation of
this exemption, they contend that most of the activities occurring at
bulk plants would not be covered, and therefore, these facilities do
not meet EPA's ``activity factor'' used to select industries.
Section 327 of EPCRA establishes an exemption for activities
involving the transportation and storage incidental to transportation
of listed chemicals for purposes of section 313 requirements. For the
purposes of EPCRA section 313, this exemption applies to chemicals
under active shipping. EPCRA section 313 toxic chemicals that are in
transit and held temporarily at facilities that do not take formal
possession or ownership of these chemicals are considered under
``active shipping'' and are exempt from the EPCRA section 313 reporting
requirements. When the receiving facility takes possession and
ownership of materials, these materials are no longer under active
shipping and, in terms of the EPCRA section 313 requirements,
potentially subject to reporting. EPA has determined that the
facilities operating within SIC code 5171 generally take possession and
ownership of the chemicals that they manage, that these chemicals are
not under active shipping, and therefore, not eligible for the
exemption established under section 327 (Ref. 12). The commenters have
provided no information to convince EPA to amend the information and
conclusions in EPA's Economic Analysis (Ref. 12).
Additionally, the EPCRA section 313 statutory ``processing''
definition is explicit in terms of what it includes. EPA would like to
clarify that amounts of listed EPCRA section 313 toxic chemicals
retained in storage are not counted toward activity thresholds, such as
``processing.'' However, when these amounts are transferred, such as
from a bulk storage unit to a truck, for further distribution in
commerce, the amounts of listed EPCRA section 313 toxic chemicals must
be considered toward the ``processing'' threshold because this is
considered repackaging of the EPCRA section 313 toxic chemicals. This
interpretation is consistent with EPA's guidance as it has pertained to
the manufacturing sector. Question 149 of the most recent
[[Page 23874]]
Question and Answer document developed for the TRI program includes the
following discussion: ``. . .the facility loads other tanker trucks
with gasoline which distribute the gasoline to service stations. . .are
the chemicals in the gasoline processed.'' EPA's response was:
``[s]ince the facility repackages the gasoline by transferring it
between trucks and bulk storage containers for further distribution in
commerce, the facility is processing the toxic chemicals in the
gasoline.'' (Ref. 17). Activities being conducted by facilities
operating within SIC code 5171 are directly analogous to those
previously interpreted for facilities within the manufacturing sector
who have reported on like activities.
Several commenters state that their industry is substantially
regulated under other environmental statutes, which removes the need
for the bulk petroleum distribution industry to be included under this
action. Some of the existing statutory and regulatory provisions cited
include CAA Title V, the National Standards for Hazardous Air
Pollutants (NESHAPS) for Source Category; gasoline distribution, and
the Marine Vapor Recovery Program; EPCRA sections 311 and 312; the Oil
Pollution Prevention Act; and 40 CFR part 112. These commenters state
that routine reporting and inspection requirements under these statutes
make EPCRA section 313 reporting by their industry unnecessary and
would result in duplicative reporting.
While bulk petroleum distribution facilities are regulated under
several existing environmental regulations, EPA does not believe that
current regulations satisfy the objectives sought by inclusion of
facilities under EPCRA section 313. A comparison between existing
regulations and the EPCRA section 313 reporting requirements was
prepared in support of the proposed rule and is discussed in Unit
V.I.1. of this preamble. EPA believes that these findings confirm that
similar information is not provided by other requirements, so that the
extension of section 313 reporting requirements to this industry is not
duplicative. Additionally, as discussed in Unit V.A. of this preamble,
Congress was well aware of the existing requirements that collect a
variety of information and, in enacting EPCRA section 313, determined
that there was a need to provide a single source of readily available
information regarding chemicals entering all environmental media.
Commenters from the bulk petroleum distribution companies suggest a
variety of alternatives to standard EPCRA section 313 reporting
requirements. These alternatives range from adopting definitions used
under existing regulations issued pursuant to other environmental
statutes, to modifying reporting definitions under section 313. Each of
these alternatives, if implemented, would exempt a portion of the
facilities operating within SIC code 5171. The most commonly suggested
alternative to EPA's proposed action is for EPA to establish a storage
capacity exemption. Most of the commenters proposed that facilities
with storage capacities of less than 150,000 gallons be excluded while
others suggested the Agency consider 200,000 gallons as a cut-off.
Several other commenters suggested that if a storage capacity exemption
were not acceptable, then the Agency should consider a throughput
exemption in order to provide regulatory relief to smaller facilities
that handle ``smaller'' bulk quantities.
EPA does not believe that a storage capacity qualifier is suitable
for adoption by the TRI program at this time. The amounts suggested by
commenters potentially equate to very large amounts of product
throughput, which EPA believes would deprive the public of useful
information that is not currently available. While a large portion of
the facilities operating in this industry primarily perform simple
product transfers, and amounts processed greatly influence the quantity
of releases or toxic chemicals in wastes which result, EPA believes
that existing thresholds and exemptions will adequately serve to remove
a substantial number of smaller facilities. Based on EPA's economic
analysis, 10,292 facilities have been identified as being classified in
SIC code 5171. With the application of existing thresholds, EPA
estimates that 3,842 will meet reporting requirements. Therefore the
existing thresholds are anticipated to exempt approximately 62 percent
of those facilities classified within SIC code 5171, which EPA believes
provides substantial burden reductions (Ref. 12).
Several commenters requested that EPA adopt the definition of bulk
gasoline terminals used under certain CAA regulations and thereby
exempt all bulk plants, or consider either a throughput level or
combination of the two in this rule. These commenters support any of
these alternatives over listing the entire 4-digit SIC code of 5171 and
argue that this would effectively exempt most if not all bulk plants
and could be structured to remove any small business issues.
Certain CAA regulations only apply to bulk gasoline terminals. For
example, under the New Source Performance Standards (NSPS) for gasoline
distribution, these are defined as establishments that receive
petroleum via ship, barge, or pipeline in amounts equal to or greater
than 20,000 gallons per day. This definition may effectively exclude
all petroleum bulk plants, regardless of the product throughput they
manage. However, contrary to the commenter's implication, the CAA
definitions do not equate to a determination that emissions from bulk
plants are insignificant. Nor are bulk plants exempt from all CAA
provisions; for example, bulk plants may still be covered by various
State Implementation Plans (SIPs). Further, EPA believes that exemption
under the CAA provides additional justification for the addition of SIC
code 5171. One of the purposes of EPCRA section 313 is to monitor the
success of existing environmental regulations, and by gathering TRI
data on emissions from bulk plants EPA could evaluate, for example,
whether CAA regulation may be warranted for some bulk plants under
section 112(k), which makes special provision for urban air toxics.
In addition, EPA believes that the purposes served by the CAA and
implementing regulations are unique and different from those associated
with EPCRA section 313. While the distinctions between petroleum bulk
terminals and plants may be appropriate for regulatory requirements
under the CAA, EPA believes that existing thresholds both for
activities and employee size provide adequate regulatory relief
appropriate for fulfilling the objectives of section 313.
Several commenters describe operations at typical bulk plants as
having relatively few employees physically located at the facility on a
regular basis. Some of these commenters noted that delivery personnel,
who are infrequently physically at the facility, will cause many
facilities to exceed the employee threshold and thereby be subject to
reporting. These commenters suggested that, as a result, facilities may
decide to no longer employ these personnel, but to use contracted
services, which must be an unintended result of this rulemaking.
Similar comments were submitted by another commenter which stated that
due to the low numbers of employees at many petroleum marketing
terminals, and the annual application of reporting requirements, many
facilities will ``teeter'' on the brink of coverage in any given year.
This will cause many facilities to engage in full-blown recordkeeping
and track their activities over the course of the year, even though
[[Page 23875]]
they may not be required to report. With the exception of actually
filling out Form Rs, which the commenter stated is a minor component,
the burden on the facility will be the same whether or not it is
covered. Likewise, with the annual fluctuations likely to occur, trend
analysis will not be possible, which will affect industry comparisons
and TRI overall.
EPA has received similar requests to make distinctions among
employees in order to increase the effect of this statutory exemption
for their industry. EPA believes that the employee threshold
established by Congress serves the purposes of EPCRA section 313. For
purposes of section 313, facilities with fewer than 10 ``full-time''
employee equivalents are not subject to any of the EPCRA section 313
reporting requirements. For purposes of section 313, a full-time
employee is defined as 2,000 work hours per year and the employee
threshold is based on the total number of work hours expended per year.
In order to determine the number of full-time employees working at a
facility, all hours worked by all employees during the calendar year,
including contract employees and sales and support staff working at the
facility, are totaled. The total number of hours worked during a
calendar year is then divided by the ``full-time'' employee number of
2,000 and if the result is 10 or greater, then the facility has
exceeded the employee threshold under section 313. The application of
the employee threshold to personnel based at the facility applies a
relatively consistent degree of equity in reporting. Even though this
threshold may exclude some facilities who manage and release
significantly larger amounts with fewer employees, EPA is not at this
time aware of another mechanism that can be implemented fairly across
the program. At this time, EPA believes that a modification to this
threshold, such as an exclusion for delivery operators or ``non-
process'' related staff, would potentially lead to greater inequalities
in how reporting requirements are applied.
The comment raising issues with facilities within the petroleum
distribution industry that have employee numbers that fluctuate above
and below the section 313 threshold, describes a situation that also
exists within the manufacturing industry and that has affected their
obligations under the EPCRA section 313 reporting requirements since
the TRI program has been in place. While it may be the case that the
petroleum distribution industry is particularly subject to employee
fluctuations, it may also be true that their product and customer
requirements are more consistent than other industries and therefore,
they may be better equipped to predict annual activities.
Another commenter states that if EPA decides to include petroleum
bulk terminals and stations in the final rule, the Agency should modify
the reporting frequency, so that after their initial report, facilities
in SIC code 5171 would only be required to report whenever a
predetermined threshold, such as change in storage capacity, loading
activities, or types of chemicals handled is triggered. This would
achieve the intent of the TRI program, while minimizing the burden
imposed upon the reporting facilities and the state and federal offices
that process these reports. Another commenter described the releases
from petroleum bulk stations as being consistent from year-to-year and
therefore, if EPA must have SIC code 5171 facilities report to TRI, it
should require a one-time filing by such facilities with an obligation
to amend that filing if there is a significant change at a facility.
EPCRA section 313(i) provides EPA with limited authority to modify
the reporting frequency and requires EPA to follow a complex
administrative procedure to do so. To modify the reporting frequency,
EPA must first notify Congress and then delay initiating the rulemaking
for at least 12 months. In addition, EPA must make a specific finding;
EPCRA section 313(i)(2) requires EPA to:
(A) make a finding that the modification is consistent with the
provisions of subsection (h) of [section 313] based on-
(i) experience from previously submitted toxic chemical release
forms,
(ii) determinations made under paragraph (3).
EPA believes that the determinations it currently could make pursuant
to paragraph (3) would not support a modification, because the Agency
does not have sufficient information to make the necessary findings in
paragraph (3). Specifically, paragraph 3(B) provides that EPA must
determine:
the extent to which information is (i) readily available to
potential users from other sources, such as State reporting
programs, and (ii) provided to the Administrator under another
Federal law or through as State program.
As EPA has noted elsewhere in this preamble, EPA does not believe that
equivalent information is publicly available in the same manner as TRI
data. Nor is it clear that EPA would have sufficient information to
make the necessary findings pursuant to EPCRA section 313(i)(3)(A) and
(C) because these facilities have not reported to TRI in the past.
Thus, EPA could not adopt the commenter's suggestion for purposes of
this rulemaking.
Moreover, even if EPA could adopt the commenter's suggestion in
this rulemaking, EPA would not. While some commenters have described
activities within the bulk petroleum distribution industry as being
consistent from year-to-year, EPA has received other comments stating
that many changes have occurred within this industry in terms of both
the chemical composition of some products and some management
practices. EPA believes that while some facilities in the bulk
petroleum industry have operations that are reasonably consistent,
others may not. EPA also believes that the same situation exists within
the manufacturing sector, although perhaps to a lesser extent. EPA
recognizes that one of the benefits of TRI information is its annual
collection of information which allows interested parties to access and
evaluate year-to-year fluctuations by facilities or industry groups.
EPA believes that to provide this benefit, annual reporting of
information is generally necessary. Further, EPA believes that while
activities may be relatively standard throughout an industry, and for a
particular facility, repeated routinely, it is fairly rare for amounts
of chemicals or products not to change. EPA also does not believe that
most facilities would desire that data from a previous year be applied
to a facility's report for another year without prior review by the
facility. EPA also believes that relatively consistent operations would
reduce the burden on facility's annual calculations in meeting
reporting requirements under section 313. Therefore, EPA believes that,
at this time, the best and most accurate means of providing TRI data is
to require each facility in this industry sector to submit that
information themselves annually.
Other commenters made various statements regarding the benefits
derived from the reporting anticipated from the bulk petroleum
industry. Many of these commenters note that greater benefits could be
derived by spending the resources that reporting will require on other
more environmentally beneficial activities. Another commenter stated
that residents around their facilities have not asked for this
information and that very little is actually emitted from their
facilities. This commenter states that their larger bulk petroleum
storage facilities with submerged loading and vapor recovery devices
have throughput of approximately 1.4 million gallons of
[[Page 23876]]
gasoline and that their operations emit approximately 800 pounds of
volatile organic compounds (VOCs) annually. This represents 2.1917
pounds per day, which they claim is less than the VOCs emitted from 1
gallon of applied oil base paint.
While a particular facility or company may not have received any
requests for information on their chemical releases and waste
management practices, EPA has received numerous comments supporting the
extension of section 313 reporting requirements to those industries
included in EPA's proposal, including SIC code 5171. For example, EPA
received comments from a state environmental agency and from a public
interest group encouraging EPA to include facilities in SIC code 5171
in this rule. Specifically, the comments submitted by the public
interest group stated that some toxic chemicals contained in petroleum
products, namely toluene, are now detectable in ambient samples in the
Phoenix, AZ area and stated that it would have been extremely useful to
have had TRI reports from bulk petroleum facilities located in the area
for risk assessments conducted by the state.
With regard to the commenter's estimated emissions, the amount of
product throughput described is far below the levels EPA believes are
representative of the average distribution facility. EPA does not
believe that the estimated annual releases characterized by the
commenter are representative of the petroleum distribution industry and
instead, refers the commenter to other sources including comments
submitted by an industry trade association. Estimates from a member
survey conducted by a trade association found that a typical bulk plant
had an average throughput of 9.4 million gallons per year.
Additionally, EPA questions whether the facilities operated by the
commenter, a regional agricultural supply and grain marketing
cooperative that have bulk petroleum storage and distribution elements,
are properly classified as SIC code 5171 (bulk petroleum facilities) as
opposed to SIC code 5191 (farm supplies) based on primary economic
activity. If they are more appropriately classified as SIC code 5191,
it would be inappropriate to compare these facilities to those whose
primary function involves bulk petroleum distribution. EPA also
questions whether the commenter's facilities would be subject to EPCRA
section 313 reporting requirements, even if some of their facilities
primarily function as petroleum distribution facilities. For these
reasons, EPA does not believe that the estimated annual releases
characterized above are representative of the petroleum distribution
industry (Ref. 15).
7. Chemical distributors. EPA is adding to the list of industry
groups covered under EPCRA section 313, facilities operating within SIC
code 5169, Wholesale Nondurable Goods--Chemicals and Allied Products,
Not Elsewhere Classified. Many of the major issues raised in comments
concerning the addition of SIC code 5169 related to preproposal
outreach activities conducted by EPA with the chemical distribution
industry. These comments and others specifically relating to chemical
distributors are addressed below. Other more general issues were
addressed in separate sections within this preamble. EPA has provided
greater detail in comments summarized and Agency responses in the
Response to Comments document (Ref. 15).
Many individual chemical wholesale distribution companies make
three general points in their comments: (1) EPA conducted almost no
outreach to chemical distributors before issuing the proposed rule, (2)
the chemical distribution industry should be given more time to gather
data and respond to EPA, and (3) EPA should eliminate chemical
distributors from this rule if EPA plans to make 1997 the first
reporting year under the rule.
EPA believes that adequate notice was provided regarding the
Agency's intention to expand the EPCRA section 313 reporting
requirements to several additional industries, including the bulk
chemical distribution facilities operating in SIC code 51. EPA also
believes that adequate opportunity existed for representatives from
this industry, and any of its member companies, to have contacted EPA
and requested discussions on EPA's intent to add SIC code 5169 to the
EPCRA section 313 list of covered facilities. EPA addresses these
comments in greater detail in the Response to Comments document (Ref.
15). As noted in Unit V.D. of this preamble, EPA is not making 1997 the
first reporting year.
The National Association of Chemical Distributors (NACD) asserts
that EPA's lack of consultation with the industry implies that EPA did
not have access to accurate information on several important factors
used in EPA's decisonmaking. According to NACD, such questions as
whether additional data exist on uses, releases, and other waste
management; what activities use significant volumes of EPCRA section
313 toxic chemicals; how many of these might meet reporting thresholds;
and whether data are available to assist in reporting have not been
adequately addressed. NACD does not support inclusion of SIC code 5169
and stated that ``if the Agency feels that it lacks adequate
information to make such a decision at this time, NACD urges the EPA to
defer consideration of SIC code 5169 facilities until a partnership can
form to develop a common-sense alternative to reporting to satisfy the
goal of right-to-know and considerations of NACD facilities.
EPA believes that it has adequate information to decide whether SIC
code 5169 meets the statutory standard for addition. EPA considered
existing data reported under state regulations, in addition to industry
specific information, and concluded that facilities operating within
the chemical distribution industry manage significant volumes of EPCRA
section 313 listed toxic chemicals, which may result in relevant
information on releases and wastes managed that would beneficially
contribute to furthering a right-to-know data base. As noted in the
proposal (see 61 FR 33599-33600), EPA believes that many facilities
within SIC code 5169 clearly conduct EPCRA section 313 reportable
activities. EPA believes that existing guidance will transfer directly
to assist facilities within this industry in making accurate threshold
determinations and to develop reasonable reporting estimates. However,
EPA invites the industry to assist in efforts to develop more specific
guidance tailored to facilities within their industry sector as
additional reporting needs are identified. EPA will initiate a
stakeholders process to discuss this and other issues.
Comments submitted by NACD refer to a letter they sent to EPA dated
July 25, 1996, which states that they believed a member survey was
needed because ``EPA appears to be relying upon incorrect data or
assumptions about the industry.'' The commenter, along with the SBA,
refer to EPA's use of data collected by Massachusetts' Toxic Use
Reduction Act (TURA), which are similar to the data collected by TRI
and which collect information from the chemical distribution industry.
Both commenters focus on the accuracy of one submission reported by one
chemical distribution facility in the Massachusetts data set, which EPA
included in limited summary statistics that appear in the preamble to
the rule.
EPA generally disagrees with these commenters. While it is true
that on December 6, 1996, the chemical distribution facility in
question requested a revision to a data submission to Massachusetts for
the 1992, 1993, and 1994 reporting year, to
[[Page 23877]]
report significantly lower methyl ethyl ketone (MEK) releases, EPA
disagrees that this demonstrates that EPA had insufficient information
about the industry to support the addition of SIC code 5169. The
particular facility discussed by the commenters reported lower releases
of MEK, they did not report that they do not ``manufacture,''
``process,'' or ``otherwise use'' any listed chemicals, or that they
should have filed no reports for the past years. The specific amounts
of releases reported were essentially irrelevant; EPA did not project
releases, and determine on that basis whether candidate industries met
the statutory standard. Rather, the TURA data were used to further
support EPA's determination that SIC code 5169 facilities are
reasonably anticipated to have involvement with one or more listed
chemicals, to process listed chemicals, and to file Form R reports that
could be expected to contain release data.
One commenter questions whether facilities in SIC code 5169
generally have the types of product transfer and release tracking
systems or programs in place to accurately track fugitive emissions and
indicated that it would be difficult to begin tracking this type of
information by January 1, 1997.
EPA does not disagree that many of the trade association's members
may not have the type of tracking system currently in place that the
facilities may want to implement, but emphasizes that the EPCRA section
313 reporting requirements require only the facility use its best
available information and estimation techniques. However, EPA believes
that most facilities have some sort of tracking system in place to
track their products. If additional tracking systems, or even any
tracking systems, are not in place on the date that these requirements
take effect January 1, 1998, the industry is required only to provide
the best estimates that can be made based on existing business
information.
A number of commenters argue that a significant portion of the
industry engages solely in product distribution and conducts no
``processing'' activities.
EPA agrees with the commenter that a significant portion of the
industry simply engages in product distribution without any actual
processing taking place, and such facilities should not have to file a
report. However, EPA has also documented that many facilities within
SIC code 5169 conduct reformulation and repackaging activities which
are ``processing'' activities. This is confirmed by other comments
received from the industry. EPA believes that these facilities engage
in reportable threshold activities and should be required to report
their releases and other waste management activities when thresholds
are exceeded.
An industry trade association argues that EPA's screening analysis
for facilities within SIC code 5169 is flawed because it defines
chemical distributor's reformulation and repackaging operations as
``processing'' under EPCRA section 313. NACD disagrees that these
activities are similar to the operations of SIC codes 20 through 39,
which result in reportable information on releases and waste management
activities. NACD therefore claims that SIC code 5169 does not satisfy
the Agency's ``activity factor.'' NACD refers to section 313(b)(1)(B)
and emphasizes that any addition is limited to ``the extent necessary
to provide that each SIC code is relevant to the purposes of the act.''
NACD repeats a portion of EPA's summary statement from the proposed
rule (see 61 FR 33599) that discusses the similarity of activities
conducted in the manufacturing section to those conducted in SIC code
5169. Many other commenters from this industry sector claim they
conduct no ``processing'' activities.
EPA disagrees with the commenter. EPA's interpretation and
application of the statutory standard for the purposes of this
rulemaking and how industries were screened and selected for inclusion
in this rulemaking is discussed in detail in Unit V.A. through V.C. of
this preamble.
Contrary to comments submitted on behalf of a trade association,
EPA believes that facilities in SIC code 5169 do conduct activities
that are similar to those performed and subsequently reported by
manufacturing facilities such as ``processing'' a toxic chemical as a
formulation component or repackaging. Based on 1994 TRI data,
manufacturing facilities submitted 18,465 forms indicating a toxic
chemical was ``processed'' as a formulation component and 3,782 forms
indicating the toxic chemical was repackaged. These are the types of
activities that EPA has identified as being performed by facilities
within the chemical distribution industry and EPA's determination is
confirmed in comments submitted by a trade association which stated,
``SIC code 5169 facilities generally engage in . . .operations
includ[ing]: (1) distributing; (2) warehousing; (3) repackaging; and
(4) blending or formulating.'' This commenter notes that ``blending''
in this context refers to creating products by adding two or more
precursor chemicals through a simple, non-reactive mixing process at
ambient pressure,'' which they compare to ``reactive or synthetic
operations conducted at elevated pressures by facilities in SIC codes
20-39.'' EPA disagrees with the commenter that the activities conducted
in SIC codes 20 through 39 are limited to the reactive-type operations
described by the commenter. There are many non-reactive processing
activities that occur in SIC codes 20 through 39, such as paint
formulation. Further, EPA disagrees that ``blending'' is synonymous
with ``chemical reaction.'' EPA believes that there is little, if any,
overlap between the two terms. In any event, reformulation and
repackaging activities clearly fit within the processing definition and
therefore meet EPA's ``activity factor.'' The fact that some chemical
distributors do not conduct activities that would be reportable
threshold activities under section 313 is not a reasonable basis to not
add those that do conduct such activities.
Most commenters from the chemical distribution industry requested
that their industry either be exempted from this rulemaking, be granted
an extension of the comment period, or that EPA defer reporting for
their industry for at least one year. The request for a deferment was
primarily based on the lack of earlier involvement with EPA prior to
publication of the proposal. A similar comment was made by a trade
association which stated that neither they nor their membership had
adequate time to evaluate the regulatory alternatives suggested by EPA.
A lengthier discussion on the issue of deferral can be found in Unit
V.D. of this preamble.
As stated previously, EPA believes sufficient notice was provided
to the chemical distribution industry so that it could adequately
respond to issues raised in the proposal, including the alternatives
suggested by EPA. EPA believes that this industry is uniquely well
informed with regard to considering the various issues raised by EPA's
proposal; for example, some of the alternatives posed by EPA were taken
from the chemical distribution industry's reporting experience in
Minnesota. In part as a result of requests from representatives from
the chemical distribution industry, EPA did extend the comment period
for 30 additional days in order to allow commenters more time to
prepare their comments. In addition, these requirements will not take
effect until January 1, 1998.
As part of EPA's obligation under the Regulatory Flexibility Act
(RFA), several alternatives were proposed for facilities operating
within SIC code 5169, due to potential economic impacts estimated to
result from this action. Some of the
[[Page 23878]]
commenters address these alternatives but raise concerns regarding the
actual relief that would be provided. One of the alternatives suggested
by EPA for this industry was to expand eligibility of the Alternate
Threshold, found at 40 CFR 372.95. A trade association stated that the
alternate threshold reporting option currently in place ``does little''
to ease the burden on facilities in SIC code 5169 for the reason that
many chemical warehousing facilities often exceed the 1 million pound
threshold that limits its application. SBA also proposed that this
reporting option be revised.
EPA believes that each of the alternatives suggested in the
proposed rule have significant drawbacks, while offering questionable
reductions in burden. Individual alternatives are discussed in detail
in EPA's Response to Comments document (Ref. 15).
EPA does not believe a revision of the existing Alternate Threshold
reporting option is appropriate at this time. Currently this reporting
option allows facilities which do not exceed 500 pounds of annual
reportable amounts to apply a 1 million pound manufacture, process, or
otherwise use threshold on a per chemical basis (referred to as an
alternate threshold). This threshold is far greater than the existing
25,000 pound manufacture or process threshold, or the 10,000 pound
otherwise use threshold. If a facility does not exceed the 1 million
pound alternate threshold then it may submit an abbreviated form, Form
A, rather than a full Form R.
EPA noted in the final rule establishing the Alternate Threshold
that part of its rationale for establishing the Alternate Threshold was
in response to the increased level of reporting that was expected in
response to the addition of numerous chemicals and industry sectors (59
FR 61489). This reporting option has only been in effect for activities
beginning on January 1, 1995. July 1, 1996, was the first opportunity
for facilities to apply this reporting option. The Office of Management
and Budget (OMB) has authorized the information collection period for
this reporting alternative until June 1998, in order to provide the
Agency additional time to sufficiently evaluate the benefits of the
existing reporting option and propose any adjustments through
rulemaking, if necessary. As EPA noted in the proposal, 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 the facilities
added in this rule have not reported in the past, also EPA noted in the
proposal that it 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.
EPA has not received any information since the publication of the
proposal to convince the Agency that it has sufficient information to
support the necessary findings. Indeed, the Massachusetts TURA data
indicates that facilities in SIC code 5169 are often below the 1
million pound threshold. Until EPA gains additional experience with the
existing Alternate Threshold and with the reporting from the newly
added industry sectors, the Agency does not believe that it is in a
position to expand the eligibility for this reporting option. EPA has
committed to review the Alternate Threshold in light of the Agency's
additional experience with this reporting option and with the reporting
from the newly added industries.
Numerous comments were also submitted that raised concerns over the
issue of confidential business information (CBI). A trade association
commented that none of the small business alternatives presented in the
proposal, offered acceptable options for protecting CBI. The
alternatives presented by EPA included an expansion of the range values
available for reporting, a modification of the data to be submitted
such that EPA could extrapolate estimates of releases and other waste
management for the industry and a reduction in data elements to be
reported by facilities in SIC code 5169. This commenter stated than
none of EPA's alternatives acknowledge or resolve the CBI problems that
they anticipate if distributors are included in the TRI program. The
type of throughput data, suggested in one of EPA's alternatives, is
claimed by the commenter to be a core business activity and as such,
disclosure on Form R or any alternative reporting system would allow
customers, suppliers, and competitors to either learn directly or
estimate confidential information that in turn would reveal sensitive
purchasing and marketing information that would jeopardize
competitiveness.
EPA does not agree that existing trade secret provisions in EPCRA
do not offer adequate protection for sensitive business information,
and that the existing reporting scheme is appropriate for SIC code
5169. EPA believes that the commenters' assertions are inconsistent
with the record developed from state TRI reporting programs, and with
the EPCRA sections 311, 312, and 313 programs. Chemical wholesalers are
currently required to report actual throughput under the Massachusetts
Toxic Use Reduction Act, and yet the commenters have neither asserted,
nor shown that any actual harm has resulted, nor otherwise provided
examples to substantiate their assertions of the serious CBI problems
that would result from TRI reporting. The commenters are also currently
required to report release data in Arizona and Minnesota; according to
the commenters, this should allow competitors to back-calculate
throughput, yet the commenters have not provided specific data or
examples to substantiate their assertions that TRI reporting would
release CBI. Further, the chemical wholesalers asked Minnesota to allow
them to use a simple method of estimation (emission factors) which
would appear to make back-calculation easier; again, they have shown no
actual harm resulting from reporting to the Minnesota TRI. The
commenters also currently report under section 312, which publicly
releases information that could theoretically be used to calculate
throughput, and they have not provided any information or examples to
support their allegations. In addition, there are facilities that have
a primary SIC code within 20 through 39, but that also have
establishments at their facilities that fall within SIC code 5169.
These facilities have not made a disproportionate number of trade
secret claims.
EPA is also not convinced that the information reported on TRI
would necessarily permit competitors to back-calculate. Notwithstanding
the commenter's assertion, facilities in SIC code 5169 conduct
activities other than repackaging; some product remains in original
containers, which is not reportable. Consequently, without additional
information, competitors would not know what fraction was actually
reported. Elsewhere in its comments, NACD also comments that reporting
is very burdensome, in large part because many variables influence
releases, and they would have to account for all of these variables in
compiling their reports. EPA disagrees with this characterization of
reporting, but notes that if this is accurate, it should not be
possible for competitors to back-calculate throughput, even with what
NACD claims is a ``reasonable degree of accuracy.''
8. Solvent recovery operations. EPA is adding to the list of
industry groups covered under EPCRA section 313, facilities that
operate within SIC code 7389, limited to facilities that are primarily
engaged in solvent recovery
[[Page 23879]]
services on a contract or fee basis. EPA received relatively few
comments on the proposed inclusion of this industry. Several commenters
do not support EPA's addition of solvent recyclers. Several commenters
support EPA's proposal to add those facilities within SIC code 7389
that are primarily engaged in solvent recovery activities. One of these
commenters notes that 36 Superfund sites and 83 damage incidents have
been recorded as resulting from facilities involved in solvent recovery
and hazardous waste recycling activities. In many cases, the comments
submitted by this industry raise issues that apply to more than this
industry and these have been addressed in other sections of this
Notice. Major issues relating to this industry are addressed below. In
each case, EPA has provided greater detail of comments and responses in
the Response to Comment document (Ref 15).
Safety-Kleen believes that by limiting the addition of solvent
recycling facilities to those that are in SIC Code 7389, EPA will
exclude a significant number of similar facilities that operate in
other industries. The commenter believes that EPA should require EPCRA
section 313 reporting by all industries that recover solvents received
from off-site, irrespective of SIC code and regardless of whether these
facilities are commercial recovery facilities.
EPA disagrees with the commenter. EPA believes that identifying
solvent recyclers other than by SIC code would cause confusion.
Further, EPA believes that through today's action, particularly in the
addition of facilities in SIC codes 5169, 4953, 7983 and through the
original SIC code coverage, the majority of facilities (in all SIC
codes) conducting solvent recovery operations that meet both the
chemical and employee thresholds will be covered. As discussed in the
Economic Analysis (Ref. 12) some facilities that conduct solvent
recovery operations have a primary SIC code within 20 through 39, and
therefore are already subject to section 313. The commenter lists
facilities that conduct commercial recycling activities that have
primary SIC codes in 5169 or 4953 that by this rulemaking are being
made subject to the EPCRA section 313 reporting requirements.
Facilities that are subject to the EPCRA section 313 reporting
requirements must consider all (non-exempted) manufacturing,
processing, and use activities when determining threshold, release and
other waste management quantities. Thus, a facility with a primary SIC
code of 20 through 39, 5169, or 4953 would not exclude from threshold
and release and other waste management determinations, quantities of
the chemical associated with activities not directly associated with
the ``primary'' SIC code of the facility. For example, a facility with
a primary SIC code of 4953 and a secondary SIC code of 7389 would not
exclude from threshold determinations those activities that occur
within the SIC code 7389 establishment. Nor would a facility with one
SIC code, e.g., 4953, that conducted activities similar to the
activities conducted by solvent recycling facilities in SIC code 7389
be able to exclude these activities from threshold determinations.
One commenter contends that the SIC code classification system is
being redesigned as the proposed North American Industrial
Classification System (61 FR 35384, July 5, 1996). They state that as
this redesign is scheduled for implementation in 1997, EPA should
postpone its addition of industry groups to EPCRA section 313 until the
reclassification has been completed and industries have had an
opportunity to evaluate their activities under the new classification
system.
As stated in Unit V.I.3. of this preamble, EPA will address the
impact of the revision of the current SIC code structure based on the
North American Industrial Classification System on both industries
added under this action and those currently within the manufacturing
sector, after the revision becomes final.
Several commenters contend that solvent recyclers should not be
added to EPCRA section 313 because they do not have the same amount and
type of information that the currently covered manufacturing facilities
have to make threshold and release and other waste management
determinations. They contend that manufacturing facilities have a
reporting advantage over solvent recovery facilities because the
manufacturing facilities control the composition of the raw materials
they purchase. They assert that manufacturers know both the identity of
the chemicals and their ``exact concentrations or ranges.'' In
contrast, they contend, the facilities that receive toxic chemicals in
waste rely on generator information and limited analysis necessary to
evaluate RCRA classifications. The commenters believe this information
is insufficient to make the determinations necessary for compliance
with the EPCRA section 313 reporting requirements. They believe that
inbound streams would have to be analyzed, and that the cost of this
analysis, which has not been considered by EPA, would be prohibitive.
One commenter claimed that in some cases standard methods do not exist
for determining the amount of some EPCRA section 313 chemicals or
compounds within a category.
Generators that send hazardous waste to facilities for treatment,
recovery or disposal provide RCRA manifests which contain a variety of
detail on the wastes they transfer. While this information is provided
as a means to satisfy associated RCRA requirements, EPA believes that
in many instances this information can contain significant detail and
can be useful in developing constituent specific estimates required
under the EPCRA section 313 reporting requirements. Further, EPA
believes that those facilities that receive hazardous waste for the
purposes of recovery, treatment or disposal in many cases conduct
additional analyses to ensure that the waste they receive properly meet
their recovery, treatment or disposal specifications. In addition,
comments provided by Laidlaw indicate that waste generators provide
waste handlers with information on the concentration ranges of
constituents in waste. ``Laidlaw utilizes a profile system in order to
obtain information from the waste generator that is needed to properly
treat, store or dispose of the hazardous waste. Variants of this type
of system is generally used by all members of the hazardous waste
management industry. . .Profiles typically provide information on RCRA
hazardous constituents present in the waste, including concentration
ranges.'' Laidlaw attached examples of these profiles. For example the
profile for ``Line Rinse Mop Water'' lists the following constituents:
Water - 50-80%, Methanol - 0-5%, Ethanol - 10-20%, Acetone - 0-2%,
Isopropanol - 3-15%, Tetrachloroethylene - 0-1%, n-Butyl alcohol - 0-
1%, Mineral spirits - 3-15 %, Pyrethroids - 0-1%, Dirt - 1-5%. This
range information is analogous to the information on Material Safety
Data Sheets (MSDS) that the manufacturing sector uses to estimate the
constituents of mixtures. For example, an MSDS for ``Xylenes'' lists
the following constituents: m-Xylene - 40-65%, o-Xylene - 15-20%, p-
Xylene - 0-20%, Ethyl benzene - 15-25%. Further, both the proposed and
final rules implementing the EPCRA section 313 reporting requirements
(52 FR 2115-2116, 53 FR 4510-4511) and the 1995 Toxic Chemical Release
Inventory Reporting Form R and Instructions (EPA 745-K-96-001) provide
guidance for the reporting of the components of mixtures, given the
following scenarios: (1) The concentration range in known,
[[Page 23880]]
(2) only the upper bound concentration is known, (3) only the lower
bound concentration is known, and (4) when no concentration information
is known. While for EPCRA section 313 reporting purposes, a waste is
not considered a mixture, the guidance for making threshold
determinations on the components of mixtures can be applied to wastes.
Although EPA agrees that facilities in SIC codes 20 through 39 often
control the composition of their raw materials, EPA disagrees that the
level of information that facilities in SIC codes 20 through 39 use to
make threshold determinations is significantly different than the level
of information that waste handlers, including solvent recyclers are
expected to have to make threshold determinations.
Further, EPCRA does not require additional monitoring or sampling
in order to comply with the requirements under EPCRA section 313. EPCRA
section 313(g)(2) states:
In order to provide the information required under this section,
the owner or operator of a facility may use readily available data
(including monitoring data) collected pursuant to other provisions
of law, or, where such data are not readily available, reasonable
estimates of the amounts involved. Nothing in this section requires
the monitoring or measurement of the quantities, concentration, or
frequency of any toxic chemical released in the environment beyond
the monitoring and measurement required under other provisions of
law or regulation.
EPA believes that the combination of information received with
waste transfers and information developed by the recovery facility will
enable solvent recovery facilities to adequately determine their
compliance requirements under section 313 and that the additional waste
management information anticipated from these facilities will further
the purposes of TRI.
EPA has not included the cost of consitutent analysis in its
estimates of the costs of reporting for SIC code 7389 because, as
discussed above, such analysis is not required.
Another commenter suggests that the 40 CFR 372.45 supplier
notification requirements be applied to facilities that generate and
transfer to other facilities wastes containing EPCRA section 313 toxic
chemicals. They contend that this would assist the facility receiving
the wastes containing EPCRA section 313 toxic chemicals in making
section 313 reporting determinations. The commenter further states that
if the supplier notification requirements are extended in this way,
there would no longer be the need for receivers of the wastes to report
under EPCRA section 313, because information provided by the generators
would already be available.
The supplier notification requirements are not being amended by
this rulemaking. Supplier notification applies to chemicals contained
in mixtures or other trade named products. EPA does not consider wastes
to be ``mixtures or trade name products.'' Even if supplier
notification could be applied, EPA disagrees with the commenter that
supplier notification information would satisfy the purposes of section
313 reporting. The information provided by supplier notification
requirements by itself may not be adequate for EPCRA section 313
reporting purposes. It includes the notification that a section 313
chemical is contained in a mixture and the concentration in which it
exists provided it is above certain de minimis levels. Information
provided, as part of the supplier notification requirements, may not
accompany each shipment of a mixture, such as identical mixtures being
sent to the same receiving facility multiple times within a year. The
information once received is not required to be entered into any
readily available format. Supplier notification information is intended
to assist facilities in making compliance determinations under section
313, but it is not a substitute for the calculations resulting in
information on how associated wastes from mixtures are managed.
Supplier notification information alone does not answer the questions
of how much of the chemical was received by the facility during the
year, or how much was released to air, water, land or how much was then
transferred to another facility for treatment. Thus, supplier
notification information in itself is not a surrogate for TRI Form R
information.
EPA also received comments that question whether the current Form R
and its reporting elements will promote adequate reporting from
nonmanufacturing industries. One commenter states that Form R does not
readily lend itself to reporting data from solvent recyclers, and that
a separate form may be necessary because solvent recovery facilities
are involved in processes which are the reverse of those performed by
manufacturing facilities. A solvent recycler receives waste and creates
a product, and it is the product that leaves the facility with non-
recyclable materials remaining as waste. This commenter states that
without a modification to current reporting, the extent of data
manipulation required to conform to Form R requirements may result in
reporting that is essentially meaningless. Other commenters offered
suggestions that might improve how solvent recovery facilities could
report. One commenter stated that hazardous waste manifests could be
modified to note if EPCRA section 313 chemicals have been reported by
the generator. Amounts that had been reported would then not be
considered for reporting by the receiving facility, and amounts that
had not would be included in the receiving facility's Form R report.
EPA does not believe that because solvent recyclers use wastes as
their input that information on the quantities of chemicals that they
process and manage as waste cannot be represented on Form R. Nor does
the commenter provide adequate rationale as to why a new form would be
needed. The TRI program has not focussed exclusively on the
``manufacture,'' ``processing,'' or ``otherwise use'' of non-waste in
the past. The Form R has captured information on chemicals in ``waste''
that have been manufactured, for example chemicals that have been
``coincidentally manufactured'' often as part of a waste stream (see
the discussion on ``coincidental manufacture'' elsewhere in this
preamble) and on waste that is combusted for energy recovery (this has
been considered to be ``otherwise used'' because it is a fuel, see the
1995 Toxic Chemical Release Inventory Form R and Instructions (EPA 745-
K-96-001), p. 23 for a discussion of otherwise use activities). Nor
does EPA believe that the ``manipulation'' that will be required to
make threshold determinations from available information is
significantly different from that done in the manufacturing sector.
EPA does not agree that waste management is the reverse of
manufacturing. For both the manufacturer and the recycling facility
inputs come into the facility, a product leaves the facility, and waste
is often the byproduct of the activities that occur at the facility. As
such, EPA does not believe that a separate form is required for solvent
recyclers.
Further EPA does not believe that annotating hazardous waste
manifests in lieu of reporting under the EPCRA section 313 reporting
requirements is a viable option for a number of reasons. The
information presented on a waste manifest is at the waste stream level.
While the manifest contains some information on the constituents
present in the waste, it does not identify the quantity of each
individual constituent. EPA does not believe that the level of
information present on a manifest can be used in lieu of TRI data. Also
as
[[Page 23881]]
discussed elsewhere (particularly see Unit V.F.2. of this preamble),
EPA believes that requiring both the generator of a toxic chemical
waste and a downstream manager of that toxic chemical waste to report
to TRI will not result in double counting. Each facility will manage
the waste differently, which will be reflected in how and what each
facility reports. When a hazardous waste facility receives waste from a
generator many activities may occur. The waste may be stabilized,
incinerated or in some other way treated. As a result of these
activities, the amount finally deposited in a landfill may be
significantly different from the amount of the toxic chemical in waste
that initially entered the facility. Releases to air and water as well
as transfers off-site for further waste management will undoubtedly
cause a smaller quantity of the toxic chemical to be reported as
landfilled, while the remainder will be captured as releases to other
media transfers off-site. The amount to be reported in the Form R as
disposed in a landfill is the final amount of EPCRA section 313
constituent that is landfilled, not the amount received by the
facility. Only in the case of a direct transfer from the truck, barge,
etc. to the landfill would this number be similar.
A comment from a trade association recommended that recyclers be
granted TRI ``credits'' for wastes successfully reclaimed. The
commenter does not explain what a ``TRI-credit'' is.
As stated in the proposed rule (61 FR 33607), EPA recognizes the
beneficial role that many solvent and other chemical recyclers play in
decreasing the demand for raw materials. Current EPCRA section 313 and
PPA section 6607 reporting requirements are adequate to provide
meaningful information from facilities within the manufacturing sector
that conduct solvent recovery activities, and those reporting elements
currently distinguish among the various waste management activities
conducted on toxic chemicals. However, after experience with the newly
added industry sectors and subsequent review, EPA may conclude that
greater informational benefits could result by further distinguishing
among waste management practices that recirculate toxic chemicals in
commerce. The commenter poses an interesting concept that EPA is
willing to take into consideration and EPA invites the industry to
develop the concept more fully. EPA will initiate a stakeholders
process to discuss this and other issues.
Safety-Kleen states that the wording of the 5 citations where the
SIC code 7389 is further limited is not consistent with the Office of
Management and Budget's (OMB) SIC Manual. The commenter contends that
the citations in the proposed rule appear to have omitted a word. The
OMB SIC Manual lists the subgroup of SIC code 7389 involved with
solvent recovery as ``Solvents recovery service on a contract or fee
basis.'' The commenter believes that the phrase at Proposed 40 CFR
372.22(b), (b)(1), (b)(2), (b)(3)(I), and (b)(3)(ii) (see 61 FR 33618)
should be modified to include the word ``or'' that was omitted. They
believe that without this change potentially affected parties would
read the language to say that only contractual applications are subject
to the rule.
EPA agrees with the commenter that the word ``or'' should be
inserted in the phrase modifying SIC code 7389 in the language at
proposed 40 CFR 372.22(b), (b)(1), (b)(2), (b)(3)(I), and (b)(3)(ii).
EPA has incorporated this change.
I. Miscellaneous Comments
1. Duplication of reporting requirements and available data. Many
commenters from industry believe the information that would be reported
under EPCRA section 313 is not necessary, since other sources of data
exist at the state and federal level which can provide the public and
government with the information necessary to understand the
environmental consequences of industry activities. Therefore, reporting
would yield data which are either duplicative or unnecessary for
informing the public regarding the risks resulting from releases of
toxic chemicals. A large number of commenters, including environmental
and community groups, as well as private citizens, believe that
information is not generally available from many facilities in the
proposed industry groups on toxic chemical releases, and therefore they
support this action.
EPA recognizes that facilities may be subject to other reporting
requirements at the federal and state levels. In enacting EPCRA,
Congress recognized that information available under other
environmental statutes such as the CWA or the CAA exists, but ``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.'' (H.Rep. 99-975, 99th Cong., 2nd Sess.,
p. 5212 (October 7, 1986)). EPA believes that very little additional
data exist which are comparable to EPCRA section 313 data, and has
found that other available information does not typically include
annual data regarding releases and other waste management of toxic
chemicals from facilities in the industry groups included in this
rulemaking. EPA discusses more fully other data sources in the Economic
Analysis (Ref. 12) and in the Response to Comments document (Ref. 15).
Section 313 of EPCRA requires manufacturing facilities to report
annually their routine and accidental transfers and releases of listed
toxic chemicals and chemical categories. Data reported under EPCRA
section 313 are contained within TRI and are accessible to the public
via electronic media (i.e., CD-ROM and Internet) and printed media.
Data are reported annually, allowing reporters and the public to
monitor trends in releases, transfers, and waste management activities.
TRI is unique among environmental data bases because of the multimedia
data it collects, and because it was specifically designed to
facilitate public access. TRI is also unique in terms of its chemical
coverage, with over 600 toxic chemicals and chemical compound
categories, which exhibit a variety of adverse health and environmental
effects, reported to TRI.
EPA currently maintains several other data bases that are designed
to support the enforcement and compliance efforts of the Agency's major
program offices. Existing data sources include the Aerometric
Information Retrieval System (AIRS), the Permit Compliance System
(PCS), the Biennial Reporting System (BRS), and the Tier I and II
reports submitted under sections 311 and 312. However, these alternate
data sources do not provide an adequate substitute for the information
reported to TRI, nor do they create the same incentives to implement
pollution prevention measures that TRI does. Currently available non-
TRI sources of information cannot provide release and transfer,
inventory, or pollution prevention data with the scope, level of
detail, and chemical coverage as data currently included in TRI. EPA's
review of these data sources, summarized below, is presented in full in
the Economic Analysis for this final rule (Ref. 12).
a. Sources of air release data. EPA's Office of Air and Radiation
(OAR) uses the AIRS Facility Subsystem (AFS) to track emissions of
pollutants that have been shown to be detrimental to public health
(known as the criteria pollutants). States are required to report
ambient air quality data on a quarterly basis, and point source data on
a yearly basis, for the criteria pollutants listed. States may also use
the AIRS system to store data on other pollutants in
[[Page 23882]]
addition to the six criteria pollutants. However, AFS data do not
duplicate TRI air release data primarily because the majority of air
toxics are not reported in AIRS. Currently, there is no requirement for
states to report hazardous air pollutants (HAPs)2 to AFS,
although some states with toxics reporting requirements that exceed
federal requirements may upload their air toxics information to AFS. In
contrast, EPCRA section 313 currently requires that facilities report
fugitive (non-point) air emissions and point source (stack) air
emissions of over 600 chemicals and chemical categories. Since data on
chemical releases in AFS are limited to the six criteria pollutants, an
application known as ``SPECIATE'' is required to estimate specific
toxic emissions, but it allows the estimation of only 18 percent of
section 313 listed chemicals. In addition, SPECIATE suffers from
technical limitations and is not recommended for the development of
toxics inventories. In contrast, TRI provides the public with data on
the release of more than 600 toxic chemicals and chemical categories,
including HAPs, that have been determined to pose a risk to public
health and the environment.
---------------------------------------------------------------------------
2Hazardous Air Pollutants (HAPs) are defined in section 112 of
the Clean Air Act (CAA). Section 112 lists 189 HAPS, of which 181
are also listed in TRI.
---------------------------------------------------------------------------
b. Sources of water release data. EPA's Office of Enforcement and
Compliance Assurance (OECA) currently manages the Permit Compliance
System (PCS) which tracks the enforcement status and permit compliance
of facilities regulated under the National Pollutant Discharge
Elimination System (NPDES). PCS tracks all point source discharges to
surface waters, but does not include indirect releases such as
discharges to POTWs. As required under the CWA, dischargers report
compliance with their NPDES permit limits through Discharge Monitoring
Reports (DMRs). Data collected via DMRs are entered into PCS. Only data
reported by ``major dischargers'' are entered into the data base.
PCS is a permit tracking system and therefore does not substitute
for TRI release data. In addition, PCS discharge data are only
available for major facilities, and are reported in terms of PCS
parameters, not specific chemicals. In addition, only those chemical
parameters actually specified in the facility permit have monitoring
requirements. In some cases, data may be reported in units of
concentration rather than units of mass. If flow rates are also
reported, concentration data can be used to estimate total releases,
although there are several complicating factors in producing such an
estimate. In contrast, EPCRA section 313 requires that facilities
report total direct releases to receiving streams or water bodies.
Releases to water are reported in pounds per year and include the name
of the receiving stream or water body. The PCS data base does not
substitute for the data reported to TRI.
c. Sources of underground injection, on-site releases to land,
discharges to POTWs, and transfers to off-site facilities data. Under
section 3002(a)(6) of the Resource Conservation and Recovery Act,
facilities that generate an amount of hazardous waste that exceeds a
defined threshold are required to submit biennial reports on that waste
to EPA (or to state agencies that run RCRA programs). Data are reported
to the states and EPA regions, which then provide it to EPA
headquarters. Information is entered into the Biennial Reporting System
(BRS) and is maintained by EPA's Office of Solid Waste and Emergency
Response (OSWER). The data base provides an overview of the progress of
the RCRA program through tracking trends in hazardous waste generation
and management. Large quantity generators (LQGs) and treatment,
storage, and disposal facilities (TSDs) are required to report every 2
years. BRS contains data for about 23,000 LQGs and 4,000 TSDs. BRS
requires reporting of several data elements including: underground
injection, on-site releases to land, and off-site transfers.
BRS contains data on hazardous wastes as defined by RCRA, which are
designated as either ``listed waste'' or ``characteristic waste.''
Listed wastes have been identified as hazardous as a result of EPA
investigations of particular industries or because EPA has specifically
recognized a chemical waste's toxicity. Characteristic wastes are
determined hazardous because they exhibit one or more of the following
``characteristics'': ignitability, corrosivity, reactivity, or
toxicity. All RCRA wastes are designated by a waste code rather than a
Chemical Abstract Service (CAS) number, and not all waste codes used in
BRS reporting map directly to a single, unique chemical. A RCRA waste
stream may be reported under multiple waste codes, but at present there
is no mechanism to apportion the waste stream volume to particular
waste codes where multiple codes are reported. Also, the quantities of
specific chemicals cannot be determined from reported quantities of
waste streams, which contain various constituents including EPCRA
section 313 toxic chemicals contained in various concentrations in a
non-hazardous matrix, such as water. Out of the over 600 chemicals and
chemical categories on the current EPCRA section 313 toxic chemical
list, 185 can be mapped to a single unique RCRA waste code.
BRS requires individual reporting of underground injections on-
site, on-site releases to land, transfers to off-site locations as well
as discharges to POTWs, as does TRI. However, only half of the volume
reported in BRS can be assumed to identify individual chemicals. In
addition, the waste classification system results in waste quantities
being reported to BRS that do not identify quantities of the individual
chemicals. The quantity reported to BRS represents the quantity of the
entire waste stream, and not individual chemicals.
d. Sources of chemical inventory data. EPCRA sections 311 and 312
requires that states establish plans for local chemical emergency
preparedness and that inventory information on hazardous chemicals be
reported by facilities to state and local authorities. EPCRA section
312 outlines a ``two-tier'' approach for annual inventory reporting.
All facilities that store hazardous or extremely hazardous substances
must submit at least a Tier I and often a Tier II form (the Tier I form
collects a subset of the information collected on the Tier II form).
Tier I requires reporting on broad categories of physical hazards such
as fire, sudden release of pressure, and reactivity, as well as acute
and chronic health hazards. Upon request by a Local Emergency Planning
Committee (LEPC), State Emergency Response Commission (SERC), or fire
department, a facility may be required to submit the more detailed Tier
II form, which requires chemical specific information by CAS number.
Approximately 33 states require regulated facilities to submit Tier II
forms, and most of the remaining states recommend that facilities
submit Tier II forms.
While both the Tier II form and the Form R collect information on
the name of the facility, the facility's address, the parent company,
the parent company's address, the name of the chemical, the CAS number,
and both contain a data element on the maximum amount of the chemical
on-site (the Form R data element is ``maximum amount of the toxic
chemical on-site at any time during the calendar year;'' the Tier II
data element is ``maximum daily amount in pounds''), the remainder of
the information collected is different. The Tier II form collects
information on
[[Page 23883]]
the physical health hazards associated with the chemical, additional
information on inventory, and specific information about the conditions
under which the material is stored (e.g., temperature and pressure) and
the locations of the chemical at the facility. EPCRA section 313 does
not require the collection of any of this information; rather, it
focuses on information concerning releases and other waste management
activities.
In summary, existing EPA data bases do not substitute for the
multi-media data reported under EPCRA section 313. In addition to the
limited chemical universes encompassed by these alternate data sources,
the program data bases do not substitute for TRI data in terms of
frequency of reporting, reporting thresholds, and ease of use. EPA is
committed to improving the usefulness of the data it collects, and
maximizing public access. TRI is a cornerstone of this effort, and
serves as a model for toxic chemical release data collection and
dissemination.
e. State data sources. EPA recognizes that facilities may face
various reporting requirements at the state level. EPA examined
available state data, but did not find data comparable to that
collected under EPCRA section 313. As of 1994, only Arizona,
Massachusetts, Minnesota, and Wisconsin required or were planning to
require expanded state TRI reporting to include facilities outside of
SIC codes 20 through 39. Some states require facilities to report
release information beyond that required by the federal TRI program.
Overall, however, the additional data collected by states are far less
complete and uniform than would be available under an expanded EPCRA
section list of covered facilities. A number of states and regional
agencies also maintain their own air emissions inventories, including
California and the Great Lakes states. Difficulties in replicating TRI
data from these sources include variations in the type of data
collected, and the fact that only some states maintain these types of
inventories.
In summary, existing EPA data bases do not substitute for the
multi-media data reported under EPCRA section 313. In addition to the
limited chemical universes encompassed by these alternate data sources,
the other EPA data bases do not substitute for TRI data in terms of
frequency of reporting, reporting thresholds, and ease of use. State
data sources are limited and vary widely in coverage as well. EPA is
committed to improving the usefulness of the data it collects, and
maximizing public access.
2. Limits of TRI data. A number of commenters identified
shortcomings in the TRI reporting system which they say cause public
misunderstanding of the information and limit its utility. For example,
a number of commenters state that the existing TRI system is of limited
utility in identifying risks and may mislead the public about risk,
because it focuses on volume alone without regard to factors such as
chemical toxicity, bioavailability, concentration, and exposure
potential. Other commenters state that EPA should devote resources to
improvements in such areas as compliance, data quality assurance,
chemical list coverage, outreach and data dissemination prior to
expanding the TRI program to include additional industries.
EPA acknowledges that there is room for improvement and refinement
of the TRI reporting system. Since the inception of the program, EPA
has worked continually to improve the reporting system and the ability
of the general public and others to use the information contained in
it. In addition to ongoing programs of enforcement, compliance
assistance, data quality assurance, data use assistance, and general
outreach, EPA has several initiatives now underway which address the
commenters' concerns, including: revising the Form R to address
concerns about the reporting of underground injection and land
releases; screening the EPCRA section 313 chemical list to ensure that
all listed chemicals meet the statutory listing criteria; conducting a
major assessment of the accuracy of data submitted by facilities; and
hosting a national conference to discuss and promote TRI data use. EPA
does not agree that adding non-manufacturing industries will exacerbate
any existing deficiencies in or misperceptions resulting from the TRI
reporting program. To the contrary, EPA believes that this expansion,
as well as the recently completed expansion of the EPCRA section 313
toxic chemical list, will improve the utility of the TRI data by
providing the public more complete information about toxic chemicals in
their communities. EPA will initiate a stakeholders process to discuss
this and other issues.
3. SIC code loophole. Several commenters, including the Working
Group on Community Right-to-Know and a number of other environmental
organizations, urge EPA to abandon the SIC code-based system of
coverage under EPCRA section 313 or to lower the economic determination
for multi-establishment facilities. These commenters believe that a
number of facilities are able to avoid reporting under EPCRA section
313 by classifying their facilities in non-covered SIC codes. These
facilities may ``manufacture,'' ``process,'' or ``otherwise use''
listed toxic chemicals in a manner similar to covered facilities, but
since the facilities can claim that 51 percent or more of their
economic activity is derived at an establishment within a non-covered
primary SIC code, reporting is not required.
EPA recognizes that some facilities with more than one
establishment are able to avoid reporting under EPCRA section 313
through a determination that one or more establishments, classified in
non-covered SIC codes, are responsible for a majority of the economic
activity at that facility. EPA interpreted SIC coverage in this manner
to remove ambiguity and confusion created by the linkage between
facility and SIC code at the time of the final rulemaking originally
implementing EPCRA section 313 (see 53 FR 4502). EPA believes that
today's rulemaking partially addresses the commenters' concern by
adding other SIC codes to the list of covered SIC codes in EPCRA
section 313, even while acknowledging the weaknesses and limitations of
the present SIC code system. A revision of the SIC code system, called
the North American Industry Classification System (NAICS), has recently
become effective (61 FR 57006), and may address the commenters'
concerns by developing production-oriented classifications. EPA
believes that, at present, abandoning SIC codes (or future NAICS codes)
entirely would create significant problems in terms of compliance and
enforcement, and would lead to an unmanageable reporting system. EPA
will continue to consider future expansions, and methods of more
completely capturing toxic chemical releases and waste management
information.
4. Compliance with NEPA. Several commenters contend that EPA failed
to comply with the National Environmental Policy Act (NEPA), which
requires that the agency prepare an Environmental Impact Statement for
any major federal action having a significant impact on the
environment, or that it issue a finding of no significant impact due to
the action. Commenters assert that the proposed TRI industry expansion
rule is not exempt from NEPA based on functional equivalence, because
it has not provided the public with a meaningful opportunity to
participate in the evaluation of environmental factors, or discussed
the alternatives it may have considered, including a no-action
alternative.
[[Page 23884]]
EPA does not believe that today's action is subject to the
requirements of the National Environmental Policy Act. Although the
commenter is correct that EPCRA does not contain a statutory exemption
from NEPA, the procedures followed by EPA in promulgating this
environmental regulation have provided the functional equivalent of the
procedures required by NEPA--examination of the environmental impacts
of the proposed rule and alternatives to it, with an opportunity for
the public to comment on the proposal and consideration of those
comments. Under these circumstances, the courts have applied the
functional equivalence doctrine to hold that EPA's action is not
subject to NEPA's procedural requirements. See Western Nebraska
Resources Council v. EPA, 943 F.2d 867, 871-72 (8th Cir. 1991); Alabama
v. EPA, 911 F.2d 499, 504 (11th Cir. 1990); Limerick Ecology Action,
Inc. v. NRC, 869 F.2d 719 (3d Cir. 1989); Wyoming v. Hathaway, 525 F.2d
66, 70 (10th Cir. 1975), cert. denied, 426 U.S. 906 (1976); South
Terminal Corp. v. EPA, 504 F.2d 646, 676 (1st Cir. 1974); Portland
Cement Ass'n v. Ruckelshaus, 486 F.2d 375, 380 (D.C. Cir. 1973), cert.
denied, 417 U.S. 921 (1974).
VI. 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
Final Rule to Add Certain Industries to EPCRA Section 313 (Ref. 12).
That 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 entities and the
environmental justice implications of the rule, among others. The major
findings of the analysis are briefly summarized here.
A. Market Failure
One purpose of federal regulations is to address 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, and the prices of those entities' goods or
services thus will fail to reflect those costs. The market may also
fail to efficiently allocate resources in cases where consumers lack
information. For example, 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 information on their
releases and other waste management activities involving toxic
chemicals, the market fails to allocate society's resources in the most
efficient manner.
This rule is intended to ameliorate in part the market failure
created by the lack of information available to the public about the
release and other waste management activities involving toxic
chemicals, and to help address the externalities arising from the fact
that market choices regarding toxic chemicals have not fully considered
their external effects. Through the provision of such data, TRI
overcomes firms' disincentive to provide that information, and thereby
serves to inform the public of releases and other waste management of
toxic chemicals. Individuals can then make choices that better optimize
their well-being. Choices made by a more informed public, including
consumers, corporate lenders, and communities, may lead firms to
internalize into their business decisions at least some of the costs to
society relating to their releases and other waste management
activities involving toxic chemicals. In addition, by helping to
identify hot spots, set priorities and monitor trends, TRI data can
also be used to make more informed decisions regarding the design of
more efficient regulations and voluntary programs, which also moves
society towards an optimal allocation of resources.
If EPA were not to take this final action adding industries to TRI,
the market failure (and the associated social costs) resulting from the
lack of information on the use and disposition of toxic chemicals would
continue. EPA believes that today's action will improve the scope of
multi-media data on the use and disposition of toxic chemicals. This,
in turn, will provide information to the public, empower communities to
play a meaningful role in environmental decision-making, and improve
the quality of environmental decision-making by government officials.
In addition, this action will serve to generate information that
reporting facilities themselves will find useful in such areas as
highlighting opportunities to reduce chemical use and thereby lower
costs of production. EPA believes that these are sound rationales for
adding the selected industry groups to the TRI program.
B. Existing Reporting Requirements
The Toxics Release Inventory contains multimedia data on
environmental releases and other management activities for over 600
toxic chemicals. While no other national data base is comparable to
TRI, several other data sources exist that contain some media-specific
environmental data. Sources maintained by EPA include the Aerometric
Information Retrieval System (AIRS) Facility Subsystem or AFS, which
tracks air emissions from industrial plants; the Permit Compliance
System (PCS), which tracks permit compliance and enforcement status of
facilities regulated under the National Pollutant Discharge Elimination
System (NPDES) under the CWA; and the Biennial Reporting System (BRS),
which tracks hazardous waste generation and disposal. Other sources
include the chemical inventory data collected under sections 311 and
312 of EPCRA, and Clean Air Act Title V operating permits. TRI data
cannot be replicated using these sources. Nor could information from
these data bases be combined to form a satisfactory approximation of
the data contained in TRI, because none of these sources provides the
release and transfer or pollution prevention information that is
reported to TRI. In addition, these other data collections differ in
the information collected, chemical and facility coverage, applicable
various thresholds and reporting frequencies, and how the data are
reported. The definitional consistency provided by TRI creates
important advantages over any 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. Therefore, 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. This issue is discussed in detail in the Economic
Analysis for the final rule (Ref. 12).
C. Summary of Reporting and Costs
Table 1 in Unit VI.F.4. of this preamble displays the reporting
level and cost estimates by industry for the rule. EPA estimates that
under this rule, a total of approximately 6,600 facilities will submit
approximately 46,200 reports (both Form Rs and Form As) annually. This
total is based on 6,300
[[Page 23885]]
facilities in the new industry groups submitting 42,500 reports, and
approximately 360 facilities in the existing manufacturing sector
submitting 3,600 reports as a result of the change in the definition of
otherwise use. Total incremental compliance costs are also presented in
Table I by industry sector. As shown, aggregate costs in the first year
are estimated to be $226 million; in subsequent years they are
estimated to be $143 million per year.
D. Associated Requirements
There are various state and federal requirements under other
statutes and regulations that may be triggered 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 in certain NPDES storm water permits issued by
EPA. These associated requirements are discussed in detail in the
Economic Analysis for the final rule (Ref. 12).
Although the state fees, taxes and pollution prevention planning
requirements are associated with EPCRA section 313 reporting, they are
not required by this or any other rule issued under EPCRA section 313.
Therefore, EPA has not included either the costs or benefits of
associated state requirements along with the costs and benefits of the
rule. States imposing these associated requirements may wish to assess
the benefits and costs of applying them to new industries.
EPA has also established associated requirements in certain general
storm water permits under the NPDES program, which apply to some
facilities regulated under those general permits. EPA has not included
those NPDES requirements as costs of this rule, because they are not
triggered by this action, but may be made applicable to facilities
added to the TRI program by this rule only at the time the NPDES
general permit is renewed. Should the Agency extend NPDES requirements
to the facilities being added by this rule at some point in the future,
that would be the appropriate time to consider the costs and benefits
of those requirements.
E. Benefits
In enacting EPCRA and PPA, Congress recognized the significant
benefits of providing information on toxic chemical releases and other
waste management. 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
quantitative information on toxic chemical releases and other waste
management. 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 releases in the
United States, and to assess the need to reduce the uses and releases
of toxic chemicals. 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 information reported to TRI increases
knowledge of the levels of toxic chemicals released to the environment
and the potential 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 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 the environment.
Analytically, there are two types of benefits associated with TRI
reporting--direct and follow-on. Direct benefits include the value of
improved knowledge about the use and disposition of toxic chemicals,
which leads to improvements in understanding, awareness and decision-
making. It is expected that this rulemaking will generate such benefits
by providing the public with readily accessible information that
otherwise would not be available to them.
The second type of benefits derive from changes in behavior that
may result from the information reported to TRI. These 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,
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 decreases. 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 direct informational benefits of adding new industry groups to the
list of industries required to report to TRI. Furthermore, because of
the inherent uncertainty in the subsequent 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
the direct or follow-on benefits related to this rule.
Rather, EPA assessed the potential for the rule to generate
benefits comparable to those generated by currently reporting
industries by seeking data on certain characteristics of the use and
disposition of toxic chemicals, specifically air release data, which
could be compared among the various sectors already subject to or now
being added to the TRI program. EPA analyzed release data collected
under authority of the CAA and maintained in the AFS. While limitations
in the data set and methodology did not permit estimates to be made of
the amounts of potential TRI releases, the analysis clearly supported
EPA's belief that substantial volumes of TRI releases and other waste
management of EPCRA section 313 toxic chemicals will be captured by
expanding the coverage to include the additional industry groups. EPA
believes this evidence supports its determination that the industry
groups being added are likely to generate valuable information as part
of the TRI program. In addition, the experience of the past 8 years
shows that reporting to TRI by manufacturing facilities has produced
real gains in understanding the use, release and othe waste management
of toxic chemicals, and opportunities to minimize the potential for
human and environmental exposure to toxics. EPA believes that the
additional reporting to be generated by this rule will yield similar
benefits.
F. Impacts on Small Entities
In accordance with the Regulatory Flexibility Act (RFA) and the
Agency's longstanding policy of always considering whether there may be
a potential for adverse impacts on small entities, the Agency has also
evaluated the potential impacts of this rule on small entities. The
Agency's analysis of potentially adverse economic impacts is included
in the Economic Analysis for this rule (Ref. 12). The following is a
brief overview of EPA's findings.
[[Page 23886]]
1. Overall methodology. This rule may affect both small businesses
and small governments. For the purpose of its analysis for the final
rule, EPA defined a small business using the small business size
standards established by the SBA. In conjunction with the proposed
rule, EPA had analyzed the small business impacts in two ways, using a
definition of 10 to 49 employees and using SBA's size standards.
Although EPA has chosen to use SBA's size standards for the final rule,
it will continue to investigate whether an alternate small business
definition such as 10 to 49 employees would be appropriate for the
purpose of EPCRA section 313 rulemakings, and may choose such an
alternate definition in future rulemakings. EPA defined small
governments using the RFA definition of jurisdictions with a population
of less than 50,000.
Only those small entities that are expected to submit at least one
report are considered to be affected for the purpose of the small
entity analysis. The number of affected entities will be smaller than
the number of affected facilities, because many entities operate more
than one facility. Economic impacts on affected small entities were
calculated assuming that all TRI reports would be filed using the
longer Form R (and not the Form A), which yields a conservative
estimate of costs (i.e., it is likely to overestimate the true
impacts). Impacts were calculated for both the first year of reporting
and subsequent years. First year costs are typically higher than
continuing costs because firms must familiarize themselves with the
requirements. Once firms have become familiar with how the reporting
requirements apply to their operations, costs fall. EPA believes that
subsequent year impacts present the best measure to judge the impact on
small entities because these continuing costs are more representative
of the costs firms face to comply with the rule.
EPA analyzed the potential cost impact of the rule on small
businesses and governments in each of the newly added industry sectors
separately in order to obtain the most accurate assessment for each.
EPA then aggregated the analyses for the purpose of detemining whether
it could certify that the rule ``will not, if promulgated, have a
significant economic impact on a substantial number of small
entities.'' RFA section 605(b) provides an exemption from the
requirement to prepare a regulatory flexibility analysis for a rule
where an agency makes and supports the certification statement quoted
above. For reasons detailed in the ``Assessment of the Impacts on Small
Entities'' prepared and submitted to the rulemaking docket for this
rule, EPA believes that the statutory test for certifying a rule and
the statutory consequences of not certifying a rule all indicate that
certification determinations may be based on an aggregated analysis of
the rule's impact on all of the small entities subject to it.
2. Small businesses. EPA used compliance costs as a percentage of
annual company sales to assess the potential impacts on small
businesses of expanding the TRI program to additional industry groups.
This is a good measure of a firm's ability to afford the costs
attributable to a regulatory requirement, because comparing compliance
costs to revenues provides a reasonable 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 small
fraction of a typical firm's revenue (for example, less than 1 percent,
but not greater than 3 percent), EPA believes that the financial
impacts of the regulation may be considered not significant. As
discussed above, EPA also believes that it is appropriate to apply this
measure to subsequent year impacts.
At proposal, EPA indicated that the rule might have a potentially
significant impact on some small businesses in the chemical wholesaling
industry (SIC code 5169 - Chemicals Allied Products). EPA found that
those chemical wholesalers required to submit reports would file
between 1 and 27 reports each, but that the actual number of reports
per facility would be distributed throughout this range. Impacts above
1 percent were predicted for small businesses reporting the high number
of reports (i.e., 27 reports). However, EPA stated that the majority of
companies would not have to submit the maximum number of reports and
would face lower costs.
In response to comments, EPA has reanalyzed its data, including
reporting levels from the three States that require reporting from this
industry, and has adjusted its reporting estimates downward as a
result. Although EPA calculated small business impacts for the proposed
rule using only the minimum, maximum, and average number of reports per
facility, EPA stated that there is a distribution of reports per
facility between the low and high ends. For the final rule, EPA
calculated small business impacts using a distribution, and was able to
better estimate the actual small business impacts that are expected.
At proposal, EPA also found that there were sufficient
uncertainties regarding the impacts on one other industry, RCRA
subtitle C hazardous waste facilities in SIC code 4953, that the Agency
could not confidently make a determination regarding the magnitude and
incidence of the impacts. Therefore, EPA stated that its initial
analysis of reporting by RCRA Subtitle C Facilities in SIC Code 4953
indicated that reporting could impose a significant burden on some
small businesses in this industry. However, EPA stated that it was not
highly confident of the accuracy of its estimated average number of
reports per facility, and believed that it had overestimated the actual
number and consequently overestimated the small business impacts.
In the Federal Register of August 21, 1996 (61 FR 43207) (FRL-5393-
4), EPA published a notice announcing the availability of additional
information related to the impact of changing the definition of
otherwise use. This included information on the impact on facilities in
SIC code 4953. After receiving public comment on this analysis, EPA
further refined it to better estimate the number of reports from this
industry.
Based on its calculations for all the industry sectors being added
by the final rule, the Agency estimates that approximately 4,800
businesses will be affected by the rule, and that approximately 3,600
of these businesses qualify as small based on the applicable SBA size
standards. For the first reporting year, EPA estimates that
approximately 570 small businesses may bear compliance costs between 1
percent and 3 percent of revenues, and that approximately 120 may bear
costs greater than 3 percent. In subsequent years, about 170 small
businesses are predicted to face compliance costs between 1 percent and
3 percent of revenues; only about 60 businesses are estimated to
experience impacts over 3 percent. As stated above, EPA believes that
subsequent-year impacts are the appropriate measure of small business
impacts.
3. Small governments. To assess the potential impacts on small
governments, EPA used compliance costs as a percentage of annual
government revenues to measure potential impacts. Similar to the
methodology for small businesses, this measure was used because it
provides a reasonable indication of the magnitude of the regulatory
burden relative to a government's ability to pay for the costs, and is
based on readily available data.
[[Page 23887]]
EPA has estimated that 49 publicly owned electric utility
facilities, operated by a total of 41 municipalities, may be affected.
Of these, an estimated 18 are operated by small governments (i.e.,
those with populations under 50,000). None of these small governments
will bear costs greater than 1 percent of annual government revenues.
4. All small entities. As discussed above, only 230 small
businesses are expected to bear costs over 1 percent of revenues
(roughly 6 percent of the 3,600 small businesses affected by the rule)
and only 60 (a subset of the 230) are expected to bear costs over 3
percent of sales (less than 2 percent of all affected small entities)
after the first year of reporting. None of the affected small
governments are estimated to bear costs greater than one percent of
revenues. Thus, the total number of small entities with impacts above
this level does not change when the results are aggregated for all
small entities (i.e., both small businesses and small governments).
Based on this analysis which itself is based on conservative
assumptions, EPA certifies that this rule will not have a significant
economic impact on a substantial number of small entities. In keeping
with Agency policy, however, EPA has nontheless prepared an assessment
of the small entity impact of this rule and of alternative regulatory
approaches that might minimize that impact consistent with the
objectives of EPCRA. (See Ref. 14) EPA considered this assessment in
making final decisions about the scope and terms of the rule to ensure
that the rule would not unduly burden small entities. That assessment,
which builds on the initial regulatory flexibility analysis (IRFA)
prepared for the proposed rule and on the Response to Comments on the
IRFA, is available in the docket for this rulemaking.
Table 1.--Summary of Reporting and Costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated Industry Costs ($ million per year)
Industry Number of Reporting Number of Reports -------------------------------------------------------------------
Facilities First Year Subsequent Years
--------------------------------------------------------------------------------------------------------------------------------------------------------
Metal Mining 234 677 3.9 2.2
Coal Mining 321 642 5.4 2.1
Electric Utilities 977 9,898 44.9 29.4
Hazardous Waste Treatment Disposal 162 4,784 22.4 15.3
Facilities
Chemicals Allied Products--Wholesale 717 8,352 39.6 25.3
Petroleum Bulk Stations Terminals-- 3,842 18,053 39.7 56.2
Wholesale
Solvent Recovery Services 14 117 0.6 0.4
Manufacturing 357 3,631 17.3 11.6
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total 6,624 46,154 225.8 142.5
--------------------------------------------------------------------------------------------------------------------------------------------------------
VII. Agency Guidance and Stakeholder Process
As EPA has expanded the community right-to-know program, first by
nearly doubling the number of chemicals for which release and other
waste management information is required, and now through today's
expansion, adding seven new industrial sectors, the Agency has had the
opportunity to discuss various aspects of the program with a broad
range of stakeholders, including industry, small businesses, states and
citizens groups. Through this outreach, and the Agency's own experience
in running the program, we have confirmed our belief that right-to-know
is a fundamental part of how the Agency provides public health and
environmental protection. TRI is the backbone of the Agency's community
right-to-know program.
EPA, however, is committed to improving the TRI program by reducing
the cost of reporting while increasing the utility of toxic release
information. EPA believes that the program could be made even more
effective through a careful evaluation of the current reporting forms
(``Form R'' and ``Form A,'' the alternate threshold certification form)
and the information gathering practices used by businesses in
completing the forms. Specifically, EPA believes these forms can be
revised to make it simpler and less costly for businesses to meet their
recordkeeping and reporting obligations, while making it easier for
communities and citizens groups to understand and use toxic chemical
release information. EPA will also look at other ways to reduce
reporting burdens, having to do with how companies handle records and
how they make estimates of quantities for threshold determinations and
for release and other waste management determinations. Upon the
promulgation of this final rule, EPA is initiating an intensive
stakeholder process-involving citizens groups, industry, small
businesses and states--to conduct a comprehensive evaluation of the
current TRI reporting forms and reporting practices with the explicit
goal of identifying opportunities, consistent with community right-to-
know and the relevant law, to simplify and/or reduce the cost of TRI
reporting. EPA will announce the details of this process in a future
Federal Register notice.
VIII. Public Record
EPA has established a public record for this rulemaking (docket
control number OPPTS-400104). The record includes all information
considered by EPA in developing this final rule. This includes all
information discussed or referenced in the preamble as well as all
information in the docket and referenced in documents in the docket. A
public version of the record without any confidential information is
available in the TSCA Public Docket Office from noon to 4 p.m., Monday
through Friday, except legal holidays. The TSCA Public Docket Office is
located in Rm. NE-G607, Northeast Mall, 401 M St., SW., Washington, DC.
IX. References
1. Edison Electric Institute. Comments of the Edison Electric
Institutes and the Utility Solid Waste Activities Group on EPA's
Proposed Rule Adding Certain Electric Utilities to EPCRA section 313
Reporting Requirements (61 FR 33588 (June 27, 1996)). September 25,
1996 (attachment: Letter from John H. Pavlish, University of North
Dakota Energy Environmental Research Center to EEI EPCRA Subcommitte
(August 22, 1996)).
[[Page 23888]]
2. Kirk Othmer Encyclopedia of Chemical Technology, 3rd edition,
Vol 24, John Wilely Sons 1984).
3. Minnesota Emergency Response Commission. A Study on Expansion of
the Toxic Chemical Reporting Requirements (Section 313 of the Emergency
Planning and Community Right-to-Know Act). Report to the Legislature
(1990).
4. OMB. Standard Industrial Classification Manual 1987. Executive
Office of the President, Office of Management and Budget, Washington,
DC (1987).
5. SAIC. SIC Code Profile 10 Metal Mining. Science Application
International Corporation, Falls Church, VA (Draft 1996 and Final
1997).
6. SAIC. SIC Code Profile 12 Coal Mining. Science Application
International Corporation, Falls Church, VA (Draft 1996 and Final
1997).
7. SAIC. SIC Code Profile 49 Electric, Gas and Sanitary Services.
Science Application International Corporation, Falls Church, VA (Draft
1996 and Final 1997).
8. U.S. Bureau of the Census. Industry and Product Classification
Manual, (1992) pp. 212-213.
9. U.S. Congress, House of Representatives. Conference Report No.
962. 99th Cong., 2nd Session (1986).
10. USEPA/OPPT. Development of SIC Code Candidates: Screening
Document. U.S. Environmental Protection Agency, Washington, DC (1996).
11. USEPA/OPPT. Economic Analysis of the Proposed Rule to Add
Certain Industries to EPCRA Section 313. U.S. Environmental Protection
Agency, Washington, DC (1996).
12. USEPA/OPPT. Economic Analysis of the Final Rule to Add Certain
Industries to EPCRA Section 313. U.S. Environmental Protection Agency,
Washington, DC (1997).
13. USEPA/OPPT. Interpretations of Waste Management Activities:
Recycling, Combustion for Energy Recovery, Treatment for Destruction,
Waste Stabilization, and Release. U.S. Environmental Protection Agency,
(1996).
14. USEPA/OPPT. Assessment of the Impacts on Small Entities of the
Final Rule Entitled ``Addition of Facilities in Certain Industry
Sectors; Revised Interpretation of Otherwise Use; Toxics Release
Invetory; Community Right-to-Know.'' U.S. Environmental Protection
Agency, (1997).
15. USEPA/OPPT. Response to Comments Received on the June 27, 1996
Proposed Rule to Expand the EPCRA Section 313 List of Industry Groups.
U.S. Environmental Protection Agency, Washington, DC (1996).
16. USEPA/OPPT. The Effect of Combustion on Trace Metals in Coal
and Oil Fuels for Electric Generating Facilities. U.S. Environmental
Protection Agency, Washington, DC (1996)
17. USEPA/OTS. Toxic Chemical Release Inventory Questions and
Answers Revised 1990 Version, U.S. Environmental Protection Agency, EPA
560/4-91-003 (January 1991).
18. SAIC. SIC Code Profile 50-51 Wholesale Trade Durable and
Nondurable Goods. Science Application International Corporation, Falls
Church, VA (Draft 1996 and Final 1997).
X. Regulatory Assessment Requirements
A. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), it has
been determined that this is a ``significant regulatory action''
because it is likely to have an annual effect of $100 million or more.
This action therefore was submitted to the Office of Management and
Budget (OMB) for review, and any substantive comments or changes made
during that review have been documented in the public record.
B. Regulatory Flexibility Act
For the reasons explained in Unit VII.F. of this preamble, pursuant
to section 605(b) of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
et seq.), the Agency hereby certifies that this final rule will not
have a significant economic impact on a substantial number of small
entities. In brief, the factual basis of this determination is as
follows: there are 18 small governments that may be affected by the
rule (i.e., will have to file reports under the rule), none of which
will bear costs greater than one percent of annual government revenues.
Of the approximately 3,600 small businesses affected by the rule, EPA
estimates that only approximately 230 or 6 percent will experience
compliance costs exceeding 1 percent of annual sales, and of those 230,
only 60 (less than 2 percent) will experience costs exceeding 3 percent
of annual sales. Given these relatively small estimated impacts and the
relatively small number of entities affected, for purposes of the RFA
EPA believes that the rule will not have a significant economic impact
on a substantial number of small entities. EPA's estimates are based on
the economic analysis, and, as noted above, are discussed further
above, in Unit VII.F. of this preamble, as well as in a document
available in the public docket for this rulemaking, entitled Assessment
of the Impacts on Small Entities of the Final Rule Entitled ``Addition
of Facilities in Certain Industry Sectors; Revised Interpretation of
Otherwise Use; Toxics Release Inventory; Community Right-to-Know''
(Ref. 14). This determination is for the entire population of small
entities potentially affected by this rule, since the test for
certification is whether the rule as a whole has a significant economic
impact on a substantial number of small entities.
At proposal, the Agency did not have sufficient information to
determine whether or not the the rule would have a significant economic
impact on a substantial number of small entities. Therefore, EPA
prepared an initial regulatory flexibility analysis of the proposed
regulation, and presented that analysis for public comment in
conjunction with the proposed rule. EPA considered all comments
received on its initial analysis and its assessment of the impacts of
the proposed rule on small entities; these comments and EPA's responses
are discussed in the Response to Comments document (Ref. 15) and in
Ref. 14.
Notwithstanding the Agency's certification of this final rule under
section 605(b) of the RFA, EPA remains committed to minimizing small
entity impacts when feasible and to ensuring that small entities
receive assistance to ease their burden of compliance. Therefore, EPA
has reviewed the considerations identified in section 604 of the RFA
relating to the final regulatory flexibility analysis, and that review
is set forth in the above-referenced document, Assessment of the
Impacts on Small Entities of the Final Rule Entitled (Ref. 14). In
addition, although not required, EPA intends to prepare sector-specific
guides for the new industry sectors in order to assist facilities in
determining their compliance needs and in properly completing the
appropriate form. EPA has prepared such documents for existing sectors
and has received positive feedback on their utility from the targeted
facilities. In addition, the Agency is always interested in any
comments regarding the economic impacts that this regulatory action
imposes on small entities, particularly suggestions for minimizing that
impact. Such comments may be submitted to the Agency at any time, to
the address listed above.
Information relating to this determination has been provided to the
Chief Counsel for Advocacy of the Small Business Administration, and is
[[Page 23889]]
included in the docket for this rulemaking.
C. Paperwork Reduction Act
The information collection requirements contained in this rule have
been approved by OMB under the Paperwork Reduction Act (PRA), 44 U.S.C.
3501 et seq. Since this action generally involves the extension of a
currently approved information collection requirement, OMB has approved
this action as an addendum to the ICR approved under OMB Control No.
2070-0093. The OMB control number for this action is 2070-0157.
Pursuant to section 3507 of the PRA and 5 CFR 1320.5(b) and 1320.6(a),
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. This notice announces OMB's approval and the
OMB control numbers for EPA's regulations are listed in 40 CFR part 9
and 48 CFR chapter 15, and, if applicable, also appear on the
information collection instrument.
EPA's estimates with regard to the burden associated with the
information collection requirements contained in the proposed rule (EPA
ICR No. 1784.01), were submitted to OMB pursuant to 5 CFR 1320.11 and
presented for public comment pursuant to 5 CFR 1320.8(d)(1). Pursuant
to 5 CFR 1320.11(c), OMB provided comments on the proposed ICR, a copy
of which has been included in the public docket for this rule. In
addition, the Agency received a number of public comments. Both OMB's
and relevant public comments are addressed in the final ICR, which also
reflects any changes to the burden estimates that have been made as a
result of the comments received.
Provision of this information is mandatory, upon promulgation of
this final rule, pursuant to EPCRA section 313 (42 U.S.C. 11023) and
PPA section 6607 (42 U.S.C. 13106). EPCRA section 313 requires owners
or operators of certain facilities manufacturing, processing, or
otherwise using any of over 600 listed toxic chemicals and chemical
categories (hereinafter ``toxic chemicals'') in excess of the
applicable threshold quantities, and meeting certain requirements
(i.e., at least 10 FTEs or the equivalent), to report environmental
releases and transfers of and waste management activities for such
chemicals annually. Under section 6607 of the PPA, facilities must also
provide information on the quantities of the toxic chemicals in waste
streams and the efforts made to manage those waste quantities. The
regulations codifying the EPCRA section 313 reporting requirements
appear 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, facilities subject to the reporting requirements under
EPCRA 313 and PPA 6607 must use the EPA Toxic Chemical Release
Inventory Form R (EPA Form No. 9350-1), unless they qualify to use the
EPA Toxic Chemical Release Inventory Form A (formerly ``Certification
Statement'') (EPA Form No. 9350-2). Form R must be completed if a
facility manufactures, processes, or otherwise uses any listed chemical
above threshold quantities and meets certain other criteria. For Form
A, EPA established an alternate threshold for those facilities with low
annual reportable amounts of a listed toxic chemical. A facility that
meets the applicable reporting thresholds, but estimates that the total
annual reportable amount of the chemical does not exceed 500 pounds,
can take advantage of an alternate manufacture, process, or otherwise
use threshold of 1 million pounds per year for that chemical, provided
that certain conditions are met, and submit the Form A instead of the
Form R. OMB has approved the reporting and recordkeeping requirements
related to Form R, supplier notification, and petitions under OMB
Control No. 2070-0093 (EPA ICR No. 1363) and those related to Form A
under OMB Control No. 2070-0143 (EPA ICR No. 1704).
Currently, approximately 23,000 facilities report to the TRI. For
Form R, EPA estimates the industry reporting burden for collecting this
information (including recordkeeping) to average 74 hours per report in
the first year, at an estimated cost of $4,587 per Form R. In
subsequent years, the burden is estimated to average 52.1 hours per
report, at an estimated cost of $3,203 per Form R. For Form A, EPA
estimates the burden to average 49.4 hours per report in the first
year, at an estimated cost of $3,101 per Form A. In subsequent years,
the burden is estimated to average 34.6 hours per report, at an
estimated cost of $2,160 per Form A. These estimates include the time
needed to review instructions; 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 on any specific facility may be different from this
estimate depending on the complexity of the facility's operations and
the profile of the releases at the facility.
This final rule is estimated to add 6,267 facilities to the number
of respondents currently reporting to TRI, and to increase the number
of reports submitted by 357 currently reporting facilities. These
facilities will submit an estimated additional 39,000 Form Rs and 7,100
Form As. This final rule therefore results in an estimated total burden
of 3.6 million hours in the first year, and 2.3 million hours in
subsequent years, at a total estimated cost of $225.8 million in the
first year and $142.5 million in subsequent years. In approving the
information collection requirements contained in this final rule, which
in essence increases the number of respondents subject to the
requirements without changing the underlying requirements, OMB has
increased the approved burden hours in its inventory for the two
existing ICRs, in order to accommodate the burdens associated with the
final rule.
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, where
applicable, 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. EPA's burden estimates for the rule take into account all
of the above elements, considering that under section 313, no
additional measurement or monitoring may be imposed for purposes of
reporting.
A copy of the final ICR may be obtained from Sandy Farmer, OPPE
Regulatory Information Division, Environmental Protection Agency
(2137), 401 M St., SW., Washington, DC 20460, by calling (202) 260-
2740, or electronically by sending an e-mail message to
farmer.sandy@epamail.epa.gov.'' A copy is also included in the Public
Docket for the final rule, and is available electronically as a
supporting document to the final rule on the EPA homepage.
D. Unfunded Mandates Reform Act and Executive Order 12875
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995
(UMRA)
[[Page 23890]]
(Pub. L. 104-4), EPA has determined that this action contains a
``federal mandate'' that may result in expenditures of $100 million or
more for the private sector in any 1 year, but that it will not result
in such expenditures for state, local, and tribal governments, in the
aggregate. Accordingly, EPA has prepared a written statement for this
final rule pursuant to section 202 of UMRA, and that statement is
available in the public docket for this rulemaking. The costs
associated with this action are estimated in the economic analysis
prepared for this final rule (Ref. 12), which is included in the public
docket and summarized in Unit VI. above. The following is a brief
summary of the UMRA statement for the final rule.
This rule is being promulgated pursuant to section 313(b)(1)(B) of
EPCRA, 42 U.S.C. section 11023(b)(1)(B), and section 6607 of the
Pollution Prevention Act, 42 U.S.C. section 13106. The economic
analysis contains a calculation of the benefits and costs of this rule,
which estimates that the total costs of the rule will be $226 million
in the first year and $143 million thereafter, and concludes that the
benefits will be significant but cannot be assigned a dollar value due
to the lack of adequate methodologies. This information is also
summarized above in Unit VI.D.-F. of this preamble. EPA believes that
the benefits provided by the information to be reported under this rule
will significantly outweigh the costs imposed by today's action. The
benefits of the information will in turn have positive effects on
health, safety, and the natural environment through the behavioral
changes that may result from that information.
EPA has not identified any federal financial resources that are
available to cover the costs of this rule. As set forth in the economic
analysis, EPA has estimated the future compliance costs (after the
first year) of this rule to be $143 million annually. Of those entities
affected by today's action, EPA has not identified any disporportionate
budgetary impact on any particular region, government, or community, or
on any segment of the private sector. Based on the economic analysis,
EPA has concluded that it is highly unlikely that this rule will have a
measurable effect on the national economy.
EPA has determined that it is not required to develop a small
government agency plan as specified by section 203 of UMRA or to
conduct prior consultation with state, local, or tribal governments
under section 204 of UMRA, because the rule will not significantly or
uniquely affect small governments and does not contain a significant
federal intergovernmental mandate. Nevertheless, EPA has engaged in
numerous discussions with state and local officials. EPA's consultation
and outreach activities are discussed in Unit II.B. of this preamble.
The Agency believes that its extensive consultations with other levels
of government throughout the rulemaking process for this regulatory
action are consistent with both the intergovernmental provisions of
sections 203 and 204 of UMRA, and Executive Order 12875, Enhancing the
Intergovernmental Partnership. See 58 FR 58093 (October 28, 1993).
Finally, EPA believes this rule complies with section 205(a) of
UMRA. The objective of this rule is to expand the public benefits of
the TRI program by exercising EPA's discretionary authority to add SIC
codes to the program, thereby increasing the amount of information
available to the public regarding the use, management and disposition
of listed toxic chemicals. In making additional information available
through TRI, the Agency increases the utility of TRI data as an
effective tool for empowering local communities, the public sector,
industry, other agencies, and state and local governments to better
evaluate risks to public health and the environment, particularly at
the local level. Throughout the rulemaking process, EPA considered
numerous regulatory alternatives concerning all aspects of the rule,
including, for example, which SIC codes should be added to the program
and for those added, whether some activities should not be subject to
reporting, and whether existing or new alternate reporting provisions,
regulatory exemptions, and/or other options should be applied or
adopted. (Such alternatives were discussed in the preamble to the
proposed rule, and are addressed elsewhere in this Preamble, and/or in
the Response to Comments document (Ref. 15).) In many instances, EPA
selected burden-reducing alternatives (e.g., deferring the addition of
certain candidate industries or excluding certain activities for
included industries) because information available at the time
suggested that a burden would have been imposed without obtaining TRI
reporting that EPA had confidence would contribute significantly to the
purposes of the TRI program. In addition, existing burden-reducing
measures (e.g., the use of readily available monitoring data or, if
such data are not available, reasonable estimates; alternate reporting
thresholds; and statutory and regulatory exemptions from reporting)
will apply to the industry groups being added by this rule. EPA also
will be assisting small entities subject to the rule, by such means as
providing meetings, training, and compliance guides in the future,
which also will ease the burdens of compliance.
While many steps have been and will be taken to further reduce the
burden associated with this rule, EPA rejected some alternatives that
also would have reduced burden (e.g., complete exclusion of certain
candidate industry groups from the rule), because they would have
significantly reduced the information obtained and thereby reduce the
degree to which the rule met its objective. EPA believes that any
further steps taken to minimize the burden of this rule by reducing its
scope or requirements would necessarily lower the degree to which the
rule achieves its objective, and to EPA's knowledge there is no
available alternative to the final rule that would obtain the
equivalent information in a less burdensome manner. For all of these
reasons, EPA believes the rule complies with UMRA section 205(a).
E. Executive Order 12898
Pursuant to Executive Order 12898 (59 FR 7629, February 16, 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 action on environmental and health conditions in
relevant communities. As a part of its economic analysis (Ref. 12),
which is summarized in Unit VI. of this preamble and included in the
public docket, EPA examined the distribution patterns of the public
information to be generated by today's final action. EPA believes that
exploring the distribution of information benefits in demographic
terms, particularly for rulemaking activities such as this one, is an
important part of the Agency's compliance with this Executive Order and
the Agency's overall environmental justice strategy.
EPA's 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 industry groups
that are expected to report releases and transfers of toxic chemicals
under this rule. This rule will provide people in a large number of
communities with TRI information about facilities in their vicinity for
the first time. Therefore, EPA concludes the
[[Page 23891]]
rule will have beneficial environmental justice impacts.
F. Submission to Congress and the General Accounting Office
This action is a ``major rule'' as defined by 5 U.S.C. section
804(2). Therefore, pursuant to 5 U.S.C. section 801(a)(1), as added by
the Small Business Regulatory Enforcement Flexibility Act of 1996, EPA
has provided information about this action to the U.S. Senate, the U.S.
House of Representatives, and the Comptroller General of the General
Accounting Office prior to its publication in today's Federal Register.
List of Subjects in 40 CFR Part 372
Environmental protection, Community right-to-know, Reporting and
recordkeeping requirements, Toxic chemicals.
Dated: April 22, 1997.
Carol M. Browner,
Administrator.
Therefore, 40 CFR part 372 is amended to read as follows:
PART 372--[AMENDED]
1. The authority citation for part 372 continues to read as
follows:
Authority: 42 U.S.C. 11023 and 11028.
2. In Sec. 372.3, revise the definition for ``Otherwise use'' and
add the following definitions in alphabetical order to read as follows:
Sec. 372.3 Definitions.
* * * * *
Beneficiation means the preparation of ores to regulate the size
(including crushing and grinding) of the product, to remove unwanted
constituents, or to improve the quality, purity, or grade of a desired
product.
Boiler means an enclosed device using controlled flame combustion
and having the following characteristics:
(1)(i) The unit must have physical provisions for recovering and
exporting thermal energy in the form of steam, heated fluids, or heated
gases; and
(ii) The unit's combustion chamber and primary energy recovery
sections(s) must be of integral design. To be of integral design, the
combustion chamber and the primary energy recovery section(s) (such as
waterwalls and superheaters) must be physically formed into one
manufactured or assembled unit. A unit in which the combustion chamber
and the primary energy recovery section(s) are joined only by ducts or
connections carrying flue gas is not integrally designed; however,
secondary energy recovery equipment (such as economizers or air
preheaters) need not be physically formed into the same unit as the
combustion chamber and the primary energy recovery section. The
following units are not precluded from being boilers solely because
they are not of integral design: process heaters (units that transfer
energy directly to a process stream), and fluidized bed combustion
units; and
(iii) While in operation, the unit must maintain a thermal energy
recovery efficiency of at least 60 percent, calculated in terms of the
recovered energy compared with the thermal value of the fuel; and
(iv) The unit must export and utilize at least 75 percent of the
recovered energy, calculated on an annual basis. In this calculation,
no credit shall be given for recovered heat used internally in the same
unit. (Examples of internal use are the preheating of fuel or
combustion air, and the driving of induced or forced draft fans or
feedwater pumps); or
(2) The unit is one which the Regional Administrator has
determined, on a case-by-case basis, to be a boiler, after considering
the standards in Sec. 260.32 of this chapter.
* * * * *
Coal 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 (including coal preparation),
mineral processing, in situ leaching or any further activities.
* * * * *
Disposal means any underground injection, placement in landfills/
surface impoundments, land treatment, or other intentional land
disposal.
* * * * *
Industrial furnace means any of the following enclosed devices that
are integral components of manufacturing processes and that use thermal
treatment to accomplish recovery of materials or energy:
(1) Cement kilns.
(2) Lime kilns.
(3) Aggregate kilns.
(4) Phosphate kilns.
(5) Coke ovens.
(6) Blast furnaces.
(7) Smelting, melting and refining furnaces (including
pyrometallurgical devices such as cupolas, reverberator furnaces,
sintering machine, roasters, and foundry furnaces).
(8) Titanium dioxide chloride process oxidation reactors.
(9) Methane reforming furnaces.
(10) Pulping liquor recovery furnaces.
(11) Combustion devices used in the recovery of sulfur values from
spent sulfuric acid.
(12) Halogen acid furnaces (HAFs) for the production of acid from
halogenated hazardous waste generated by chemical production facilities
where the furnace is located on the site of a chemical production
facility, the acid product has a halogen acid content of at least 3%,
the acid product is used in a manufacturing process, and, except for
hazardous waste burned as fuel, hazardous waste fed to the furnace has
a minimum halogen content of 20% as-generated.
(13) Such other devices as the Administrator may, after notice and
comment, add to this list on the basis of one or more of the following
factors:
(i) The design and use of the device primarily to accomplish
recovery of material products;
(ii) The use of the device to burn or reduce raw materials to make
a material product;
(iii) The use of the device to burn or reduce secondary materials
as effective substitutes for raw materials, in processes using raw
materials as principal feedstocks;
(iv) The use of the device to burn or reduce secondary materials as
ingredients in an industrial process to make a material product;
(v) The use of the device in common industrial practice to produce
a material product; and
(vi) Other factors, as appropriate.
* * * * *
Otherwise use means any use of a toxic chemical, including a toxic
chemical contained in a mixture or other trade name product or waste,
that is not covered by the terms ``manufacture'' or ``process.''
Otherwise use of a toxic chemical does not include disposal,
stabilization (without subsequent distribution in commerce), or
treatment for destruction unless:
(1) The toxic chemical that was disposed, stabilized, or treated
for destruction was received from off-site for the purposes of futher
waste management; or
(2) The toxic chemical that was disposed, stabilized, or treated
for destruction was manufactured as a result of waste management
activities on materials received from off-site for the purposes of
further waste management activities. Relabeling or redistributing of
the toxic chemical where no repackaging of the toxic chemical occurs
does not constitute otherwise use or processing of the toxic chemical.
Overburden means the unconsolidated material that overlies a
[[Page 23892]]
deposit of useful materials or ores. It does not include any portion of
ore or waste rock.
* * * * *
RCRA approved test method includes Test Method 9095 (Paint Filter
Liquids Test) in ``Test Methods for Evaluating Solid Waste, Physical/
Chemical Methods,'' EPA Publication No. SW-846, Third Edition,
September 1986, as amended by Update I, November 15, 1992.
* * * * *
Treatment for destruction means the destruction of a toxic chemical
in waste such that the substance is no longer the toxic chemical
subject to reporting under EPCRA section 313. Treatment for destruction
does not include the destruction of a toxic chemical in waste where the
toxic chemical has a heat value greater than 5,000 British thermal
units and is combusted in any device that is an industrial furnace or
boiler.
Waste stabilization means any physical or chemical process used to
either reduce the mobility of hazardous constitutents in a hazardous
waste or eliminate free liquid as determined by a RCRA approved test
method for evaluating solid waste as defined in this section. A waste
stabilization process includes mixing the hazardous waste with binders
or other materials, and curing the resulting hazardous waste and binder
mixture. Other synonymous terms used to refer to this process are
``stabilization,'' ``waste fixation,'' or ``waste solidification.''
3. In Sec. 372.22, revise paragraph (b) to read as follows:
Sec. 372.22 Covered facilities for toxic chemical release reporting.
* * * * *
(b) The facility is in Standard Industrial Classification (SIC) (as
in effect on January 1, 1987) major group codes 10 (except 1011, 1081,
and 1094), 12 (except 1241), or 20 through 39; industry codes 4911,
4931, or 4939 (limited to facilities that combust coal and/or oil for
the purpose of generating power for distribution in commerce); or 4953
(limited to facilities regulated under the Resource Conservation and
Recovery Act, subtitle C, 42 U.S.C. section 6921 et seq.), or 5169, or
5171, or 7389 (limited to facilities primarily engaged in solvent
recovery services on a contract or fee basis) by virtue of the fact
that it meets one of the following criteria:
(1) The facility is an establishment with a primary SIC major group
or industry code in the above list.
(2) The facility is a multi-establishment complex where all
establishments have primary SIC major group or industry codes in the
above list.
(3) The facility is a multi-establishment complex in which one of
the following is true:
(i) The sum of the value of services provided and/or products
shipped and/or produced from those establishments that have primary SIC
major group or industry codes in the above list is greater than 50
percent of the total value of all services provided and/or products
shipped from and/or produced by all establishments at the facility.
(ii) One establishment having a primary SIC major group or industry
code in the above list contributes more in terms of value of services
provided and/or products shipped from and/or produced at the facility
than any other establishment within the facility.
* * * * *
4. In Sec. 372.38, add paragraphs (g) and (h) to read as follows:
Sec. 372.38 Exemptions.
* * * * *
(g) Coal extraction activities. If a toxic chemical is
manufactured, processed, or otherwise used in extraction by facilities
in SIC code 12, a person is not required to consider the quantity of
the toxic chemical so manufactured, processed, or otherwise used when
determining whether an applicable threshold has been met under
Sec. 372.25 or Sec. 372.27, or determining the amounts to be reported
under Sec. 372.30.
(h) Metal mining overburden. If a toxic chemical that is a
constituent of overburden is processed or otherwise used by facilities
in SIC code 10, a person is not required to consider the quantity of
the toxic chemical so processed, or otherwise used when determining
whether an applicable threshold has been met under Sec. 372.25 or
Sec. 372.27, or determining the amounts to be reported under
Sec. 372.30.
[FR Doc. 97-11154 Filed 4-30-97; 8:45 am]
BILLING CODE 6560-50-F
