[Federal Register: July 13, 2010 (Volume 75, Number 133)]
[Rules and Regulations]
[Page 39852-39859]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13jy10-14]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 355 and 370
[EPA-HQ-SFUND-1998-0002; FRL-9168-7]
Emergency Planning and Community Right-to-Know Act; Guidance on
Reporting Options for Sections 311 and 312 and Interpretations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Guidance and interpretations.
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[[Page 39853]]
SUMMARY: In this document, the U.S. Environmental Protection Agency
(EPA or the Agency) is providing guidance on various reporting options
that States and local agencies may choose in implementing sections 311
and 312 of the Emergency Planning and Community Right-to-Know Act of
1986 (EPCRA). In addition, the Agency is also providing some new
interpretations and revising some existing ones to help facilities
comply with certain of the requirements under EPCRA.
DATES: Effective Date: July 13, 2010.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-SFUND-1998-0002. All documents in the docket are listed on
the http://www.regulations.gov Web site. Although listed in the index,
some information is not publicly available, e.g., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the Internet and will be publicly available only in hard
copy form. Publicly available docket materials are available either
electronically through http://www.regulations.gov or in hard copy at
the Superfund Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution
Ave., NW., Washington, DC. The Public Reading Room is open from 8:30
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The
telephone number for the Public Reading Room is (202) 566-1744, and the
telephone number for the Superfund Docket is (202) 566-0276.
FOR FURTHER INFORMATION CONTACT: Sicy Jacob, Office of Emergency
Management, Mail Code 5104A, Environmental Protection Agency, 1200
Pennsylvania Avenue, NW., Washington, DC 20460; telephone number: (202)
564-8019; fax number: (202) 564-2620; e-mail address:
jacob.sicy@epa.gov. Also, you may contact the Superfund, TRI, EPCRA,
RMP and Oil Information Center at (800) 424-9346 or (703) 412-9810 (in
the Washington, DC metropolitan area). The Telecommunications Device
for the Deaf (TDD) number is (800) 553-7672 or (703) 412-3323 (in the
Washington, DC metropolitan area). You may wish to visit the Office of
Emergency Management (OEM) Internet site at http://www.epa.gov/
emergencies.
SUPPLEMENTARY INFORMATION: Here are the contents of the document:
I. Who is affected by this guidance?
II. What is the background of this guidance?
A. Statutory
B. Regulations and Guidance
III. What are the various reporting options for implementing
Sections 311 and 312 of EPCRA?
A. UST Forms To Fulfill the Requirements for Tier I Information
Under EPCRA Section 312
B. Partnership Programs for Joint Access to Information and
Streamlined Submission of EPCRA Sections 311 and 312 Reporting
C. Electronic Submittal for EPCRA Section 312 Reporting
D. Incorporation of Previous Submissions Into EPCRA Section 312
Reporting
E. Electronic Access to Facility MSDS Database
F. EPCRA Section 312 Reporting To Fulfill Reporting Requirements
Under Section 311
IV. Interpretations.
A. Emergency Release Notification
B. Hazardous Chemical Exemption for Solids Under EPCRA Section
311(e)(2)
I. Who is affected by this guidance?
This guidance is provided to States and local agencies on various
reporting options that they may choose for implementing sections 311
and 312 of the Emergency Planning and Community Right-to-Know Act
(EPCRA). Entities that would be affected by this guidance are those
organizations and facilities subject to EPCRA and its implementing
regulations found in 40 CFR parts 355 and 370.
II. What is the background of this guidance?
A. Statutory
EPCRA, which was enacted as Title III of the Superfund Amendments
and Reauthorization Act of 1986 (Pub. L. 99-499), (SARA) Title III,
establishes authorities for emergency planning and preparedness,
emergency release notification, community right-to-know reporting, and
toxic chemical release reporting. It is intended to encourage State and
local planning and preparedness for releases of extremely hazardous
substances (EHSs) and to provide the public, local agencies, fire
departments, and other emergency officials with information concerning
potential chemical risks in their communities.
Section 302 of EPCRA requires facilities to notify their State
Emergency Response Commission (SERC) of any EHS present at their site
above its threshold planning quantity (TPQ). This information is then
used by the Local Emergency Planning Committee (LEPC) to develop
emergency response plans for the community. The implementing
regulations, EHSs and their TPQs are codified in 40 CFR part 355.
Section 304 of EPCRA requires facilities to notify their SERC and
the community emergency coordinator for the LEPC of any release of an
EHS or a CERCLA hazardous substance above its reportable quantity (RQ).
The RQs for the CERCLA hazardous substances are in Table 302.4 of 40
CFR Part 302. The implementing regulations for section 304 of EPCRA are
codified in 40 CFR part 355.
Sections 311 and 312 of EPCRA require facilities to submit
information on hazardous chemicals at their sites above the threshold
quantities. The information on hazardous chemicals is submitted to the
SERC, LEPC and the local fire department. The implementing regulations
for sections 311 and 312 are codified in 40 CFR part 370.
B. Regulations and Guidance
On June 8, 1998, EPA published a proposed rule (63 FR 31268) to
streamline the reporting requirements under EPCRA.\1\ Specifically, EPA
proposed four major regulatory revisions, along with draft guidance to
provide flexibility to the States and local agencies in implementing
the EPCRA program. The four proposed regulatory revisions were: (1)
Higher threshold levels for reporting gasoline and diesel fuel at
retail gas stations; (2) relief from routine reporting for substances
with minimal hazards and minimal risks; (3) relief from routine
reporting for sand, gravel and rock salt; and (4) ``Other Regulatory
Changes,'' such as: Reporting of mixtures; removing the Tier I and Tier
II inventory forms and instructions from the CFR, as well as some other
revisions to the forms and instructions; and some minor changes to the
emergency planning and emergency release notification regulations (40
CFR part 355). The regulatory provisions for items (1) and (4) were
finalized on February 11, 1999 (64 FR 7031) and November 3, 2008 (73 FR
65452), respectively. The regulatory provisions for items (2) and (3)
may be finalized at a later date.
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\1\ The regulations were first promulgated in 1987 and amended
in 1990, 1999 and 2008. See Federal Register Notices April 22, 1987
(52 FR 13378), October 15, 1987 (52 FR 38344), February 11, 1999 (64
FR 7031), July 26, 1990 (55 FR 30632) and November 3, 2008 (73 FR
65452).
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In addition to the four regulatory revisions, EPA took comment on
various reporting options to streamline the reporting requirements for
facilities and to reduce the information management burden for SERCs,
LEPCs and fire departments in the form of draft guidance in the
preamble to the June 8, 1998 proposed rule. The main objective of the
draft guidance was to provide flexibility to the States and local
agencies in implementing sections 311 and 312. In particular, EPA
stated that
[[Page 39854]]
States may implement any or all of the reporting options provided in
the preamble whether EPA finalized the guidance or not. Since the
proposed rule, many States have adopted at least one or two reporting
options, such as electronic filing via diskettes or on-line filing of
the Federal reporting form, Tier II, or the State equivalent form.
States were always given the flexibility to implement the EPCRA program
as necessary to meet the goals of EPCRA, which is to prepare for and
respond to releases of EHSs and to provide the public with information
on potential chemical risks in their communities. This flexibility
includes adding more chemicals, setting lower reporting thresholds and
creating a reporting form or format that includes more information than
is required by the Federal reporting requirements.
EPA did not propose any regulatory revisions, but sought comments
on various reporting options under sections 311 and 312. The reporting
options discussed were: (1) The use of Underground Storage Tank (UST)
forms to fulfill the requirements for Tier I Information under EPCRA
section 312; (2) partnership programs for joint access to EPCRA
sections 311 and 312 information by SERCs, LEPCs, and fire departments;
(3) electronic submittal for EPCRA section 312 reporting; and (4)
incorporation of previous submissions into EPCRA section 312 reporting.
These four options, the Agency believed, would reduce the information
management burden for States and local agencies, as well as minimize
the reporting burden for the regulated community. (See preamble to the
June 8, 1998 proposed rule for further discussion on the various
reporting options.)
EPA also suggested a few other options to streamline reporting and
revise some existing regulatory interpretations for facilities. These
additional options, the Agency believed, would also reduce the
information management burden for States and local agencies. The
options and suggested interpretations are: (1) Electronic access to a
facility's databases of MSDSs; (2) interpretation of the hazardous
chemical exemption for solids under EPCRA sections 311(e)(2); and (3)
EPCRA section 312 reporting to fulfill the reporting requirements under
section 311. (See preamble to the June 8, 1998 proposed rule for
further discussion on the various options and suggested
interpretations.)
In the June 1998 preamble, EPA also defined and took comment on
several terms or phrases used in the regulations. EPA requested
comments on whether the Agency should provide guidance on the meaning
of the term ``promptly'' associated with providing notice of any
changes relevant to emergency planning (40 CFR part 355) and the phrase
``as soon as practicable'' associated with providing a written follow-
up emergency notice under the emergency release notification
requirements (40 CFR part 355). The Agency did not intend to revise the
regulatory requirements, but only to provide guidance for these two
terms. However, EPA received comments from many States and local
agencies that the term ``promptly'' should be defined in the
regulations since receiving information from facilities on changes
relevant to emergency planning is crucial in developing and/or updating
emergency response plans. As a result, the Agency defined this term in
the recent final rule published on November 3, 2008 (73 FR 65452). The
requirement added to 40 CFR 355.20 states that any changes relevant to
emergency planning must be provided to the LEPC within 30 days after
the changes have occurred. EPA will define the phrase, ``as soon as
practicable'' associated with providing written follow-up emergency
notice under the emergency release notification requirements in this
guidance.
III. What are the various reporting options for implementing Sections
311 and 312 of EPCRA?
EPA requested comments on the draft guidance in the preamble to the
June 1998 proposed rule (63 FR 31268) in an effort to streamline
compliance with the reporting requirements. EPA did not propose any
regulatory changes, but sought comments on the options provided. The
Agency stated in the 1998 preamble that States and local agencies may
implement any or all of the options regardless of whether EPA issues
final guidance, provided the approach adopted met the statutory and
regulatory requirements.
In general, commenters supported some of the options provided in
the draft guidance. However, a few commenters stated that the options
may actually increase compliance costs and the risk of non-compliance
at companies with multiple facilities due to the loss of consistency in
data management and compliance reporting. As noted previously, the
various reporting options under EPCRA sections 311 and 312 were to
provide flexibility to the States and local agencies so they may
implement the program as necessary for their community emergency
planning and response efforts. States may need to develop specific
methods to manage the information provided by facilities within their
State so that LEPCs can develop emergency response plans and provide
the public with information. Thus, States are not required to adopt or
implement these options.
The following is a more specific discussion of each of the
reporting options and guidance on implementing them.
A. UST Forms To Fulfill the Requirements for Tier I Information Under
EPCRA Section 312
At the time of the June 1998 proposal, many States were accepting
the Tier I inventory form, which contains the minimum information about
hazardous chemicals at a facility.\2\ Only a few States required the
Tier II inventory form, which contains specific information about
hazardous chemicals at the facility.\3\ To provide flexibility, the
draft guidance offered States the option to allow facilities to use the
UST form required under the Resource Conservation and Recovery Act
(RCRA) to comply with the reporting requirements under section 312 of
EPCRA. This option reduces the reporting burden for those facilities
that only have USTs on their site containing hazardous chemicals. In
most cases, these facilities are retail gas stations which usually only
have USTs that may be subject to the reporting requirements under
sections 311 and 312. At the same time, in the June 1998 proposed rule,
EPA proposed to raise the reporting thresholds for gasoline and diesel
fuel at retail gas stations provided these facilities meet certain
requirements. EPA finalized the higher reporting thresholds for
gasoline and diesel fuel on February 11, 1999 (64 FR 7047).
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\2\ Tier I information provides the general types and locations
of hazardous chemicals present at the facility during the previous
calendar year. The Tier I information is the minimum information to
be provided to be in compliance with the inventory reporting
requirements. If Tier I information is reported, the hazardous
chemicals must be aggregated by hazard categories. There are two
hazard categories and three physical hazard categories for purposes
of reporting under Tier I. These five hazard categories are defined
in 40 CFR 370.66.
\3\ Tier II information provides the specific amounts and
locations of hazardous chemicals present at the facility during the
previous calendar year.
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A few commenters supported the use of the UST form to fulfill the
section 312 requirements, but most opposed it. These commenters argued
that it would be confusing and burdensome for LEPCs and fire
departments and would make electronic filing more difficult. Some of
these commenters also stated that the differences in information and
filing schedules would make this approach
[[Page 39855]]
inappropriate. Other commenters argued that EPA's approach would not
result in streamlining and that EPA should eliminate duplicative
reporting, not duplicative forms. These commenters also questioned the
need for the approach because most States require the Tier II form and
the higher reporting thresholds for gasoline and diesel fuel will
remove most of the facilities subject to UST reporting from Part 370.
The Tier I inventory form provides the minimum information required
under EPCRA section 312 and its implementing regulations. When the
proposed rule was published in June 1998, some States were accepting
the Tier I form. However, all States now require facilities to submit a
State specific form or the Federal Tier II inventory form. Therefore,
use of the UST form as suggested in 1998 may not be beneficial for
implementing agencies. Additionally, EPA expected that the UST form
would be used instead of the Tier I form mainly by retail gas stations
since they likely only have underground storage tanks containing
hazardous chemicals. Since EPA raised the reporting threshold for
gasoline and diesel fuel stored at retail gas stations on February 11,
1999 (64 FR 7047), most retail gas stations may not need to report.
Therefore, the Agency's guidance is that the use of the UST form as a
replacement of the Tier I form for reporting under EPCRA section 312 is
not recommended.
B. Partnership Programs for Joint Access to Information and Streamlined
Submission of EPCRA Sections 311 and 312 Reporting
To streamline the submission process, EPA suggested in the draft
guidance that SERCs, LEPCs, and fire departments could partner together
and agree that one agency would receive the section 311 and 312
reporting information and make it available electronically to the
others. Although the statute and its implementing regulations in 40 CFR
part 370 state that facilities are required to submit their MSDSs or
chemical lists under section 311 of EPCRA and the Tier I or Tier II
form to their SERC, LEPC and the local fire department, EPA believed
the single point submission option satisfies the intent of the statute
and its implementing regulations. If implementing agencies choose to
use this option, EPA stated that they should ensure that all statutory
and regulatory requirements are met, especially the deadline for
submission.
Many commenters supported the idea of partnerships to allow filing
of information to a single point. Other commenters, while supporting
this approach, cited problems. For example, many LEPCs and fire
departments do not have access to computers or the Internet. A few
commenters also stated that they provide compliance assistance to
facilities and a centralized compliance point would take away this
working relationship.
The Agency suggested the single point submission to reduce the
burden on the regulated community, as well as reduce information
management burden on some implementing agencies. For example, a SERC
could develop a reporting format for facilities to submit the Tier II
form or an equivalent State form. The SERC could collect the
information and then make it immediately available electronically to
LEPCs and fire departments on-line. Electronic access eliminates
searching through hundreds of papers during an emergency situation. If
LEPCs and/or fire departments do not have the capability to access the
information on-line, then the SERC could provide the information to
these entities on diskettes or in hard copy.
At the time of the June 1998 proposed rule, only a few States were
accepting the Tier II form or the State form electronically. Today,
many States have developed their own electronic reporting system or are
using EPA's Tier II reporting system (Tier2 Submit). Most of these
States accept section 312 reports on-line. EPA encourages these States
to explore ways to provide their LEPCs and fire departments joint
access to the information. EPA also expects that today most LEPCs and
fire departments can accept or access section 312 reports
electronically.
EPA realizes that a lack of funding may limit a State's capability
to set up a partnership or to develop database systems and access to
information. Since the EPCRA program has matured over the past ten
years, many States have established program funding mechanisms through
reporting fee systems, Federal grants, etc. EPA encourages States to
use these mechanisms to provide the necessary resources to develop a
database system and access to information for LEPCs and fire
departments.
Although States have the flexibility to choose any method for
submittal and joint access to information, that method must meet the
March 1 reporting deadline specified in the statute. To ensure this
deadline is met, States may want to revise their right-to-know program
regulations to require facilities to submit the Tier II form or State
equivalent before March 1 to allow enough time for processing and
access by LEPCs and fire departments by March 1. If States choose to
implement a partnership program for sharing of information, we believe
that a formal agreement is necessary between the three entities. States
should then notify the facilities about this agreement and the new
submission process. That is, States should inform the facilities that
they can submit their section 312 report to the SERC and it will
provide access to the LEPC and the fire department.
C. Electronic Submittal for EPCRA Section 312 Reporting
Since the beginning of EPCRA, the Agency encouraged States to
implement the EPCRA program as necessary to meet its goals: to prepare
for and respond to emergency releases of extremely hazardous substances
and provide information to the public on potential chemical risks in
their communities. States have the flexibility to tailor the program to
their needs by adding chemicals or setting lower reporting thresholds,
etc. Over the years, States have reported that their biggest burden is
handling thousands of paper Tier I/II form submissions. Some States
requested that they be allowed to create an electronic reporting format
for facilities to use to comply with EPCRA section 312. Electronic
reporting would reduce the burden on facilities since they need to
enter most of their information on the Tier II form only in the first
year and then revise it as needed in subsequent years. As discussed in
the previous section, electronic reporting makes joint access easier.
Many commenters supported electronic submittals, but noted that it
would not be practical for many LEPCs, fire departments, and smaller
facilities since they likely don't have the capability. Other
commenters opposed the idea because of the financial burden on State
and local agencies. Still other commenters supported electronic
reporting and provided ideas for certification of electronic
submissions.
The Agency understands the concerns raised by commenters on
electronic reporting. Prior to the June 1998 proposed rule, many States
and local agencies requested that the Agency develop an electronic
reporting system to reduce the burden of information management at the
State and local level. Some State and local agencies asked that they be
allowed to develop their own electronic reporting format. This is why
EPA suggested in the draft guidance that States and local agencies have
the flexibility to choose any reporting options provided the statutory
and regulatory requirements are met.
[[Page 39856]]
EPA has since developed and offered States an electronic reporting
system--Tier2 Submit electronic reporting software. Many States also
have created electronic reporting formats and require on-line reporting
or submission via diskettes. Only a few States accept paper Tier II
report submissions. EPA recognizes that there may be facilities that do
not have the capability to submit Tier II forms electronically. EPA
encourages States and local agencies to allow these facilities to
submit paper copies of their Tier II report, unless the States make
arrangements to collect and provide the data to LEPCs and the fire
departments.
Recently, many States requested guidance on electronic signatures
and certification of electronically submitted information. Currently,
the regulations in part 370 require the facility owner or operator (or
the officially designated representative of the owner or operator)
submit a certification statement with their hazardous chemical
inventory form containing an original signature that the information
submitted is true, accurate and complete. The June 8, 1998 draft
guidance stated that the States and local agencies may continue to
develop their own reporting format, including electronic reporting as
long as the information required includes the information required by
the statute and its implementing regulations and that certification is
required regardless of the format in which it is submitted. The draft
guidance also stated that if States and local officials allow section
312 reporting information to be submitted via the Internet, it will be
necessary for the facility owner or operator or its officially
designated representative to certify the information submitted.
At the time the draft guidance was published in June 1998 Federal
Register, on-line submittal and certification options were not
available for reporting under section 312. Recently, States and the
regulated community requested that EPA provide guidance on how the
original signature requirement stated in 40 CFR 370.41 and 370.42 could
be met if facilities submit the hazardous chemical inventory form on-
line.
EPA advises States and the regulated community that for electronic
section 312 reporting, the original signature as required by 40 CFR
part 370 may be provided on paper (i.e. a ``wet'' signature) or by
electronic certification according to requirements established by the
State. (Memorandum from Debbie Dietrich to EPA Regional Superfund
Managers on Electronic Reporting and Signature under EPCRA Section 312,
July 30, 2009. This memorandum is available on the Agency's Web Site at
http://www.epa.gov/emergencies). States have the flexibility to use any
system for collecting chemical inventory information under section 312
and to establish the means to ensure the information is true, accurate,
and complete so they may effectively and efficiently manage chemical
risks and provide information to the public. Facilities that submit the
hazardous chemical inventory form and certification on-line, do not
need to also submit a certification statement on paper unless the State
and local agencies require it. EPA encourages facility owners and
operators to contact their State and local agencies for the reporting
requirements in each State. The regulated community and the
implementing agencies may visit the Agency's Web site at http://
www.epa.gov/emergencies for Federal reporting requirements and access
to each of the State Web sites.
D. Incorporation of Previous Submissions Into EPCRA Section 312
Reporting
Under EPCRA section 312, facilities are required to submit a Tier I
form or, if requested, a Tier II form annually to the SERC, LEPC and
the fire department even though the information submitted in a previous
year has not changed. To reduce the burden on facilities that have no
changes in their data from the previous year's submission, EPA
discussed several options in the June 1998 preamble for meeting the
requirements under EPCRA section 312 without having to re-create the
information.
One approach suggested in the draft guidance would be for the
facility to simply reference and attach a copy of the unchanged
information from the previous year's submittal to the current year's
submission. This would mean that the facility would have to retain a
copy of its previous submission. A second approach would be for the
facility to reference previous submittals already retained by the SERC,
LEPC and local fire department. A third approach would require
reporting only if the information changed.
Some commenters opposed the option to require reporting only when
changes have occurred. Few commenters supported the idea of simply
referencing and/or attaching a copy of the unchanged information. They
stated this approach could increase the burden on implementing agencies
because they would need to maintain and reference previous years'
files. These commenters also stated that facilities probably would
forget to report and could consider some changes unimportant.
At the time the various approaches were discussed in the preamble
to the June 1998 proposal, States did not have electronic reporting
methods in place. Now that many States have established electronic
reporting or are using the Tier2 Submit software developed by EPA, the
burden for facilities to re-create information on paper does not exist
for most facilities. Facilities can store their Tier II report
electronically and revise as needed for subsequent years. Therefore,
EPA is no longer suggesting that facilities be allowed to incorporate
previous submissions as part of the EPCRA section 312 reporting
requirement since it is unlikely to reduce the reporting burden.
However, States that still require submission of a facility's Tier II
or State equivalent forms on paper may still consider options for
incorporation of previous submissions to reduce the paperwork burden.
E. Electronic Access to Facility MSDS Database
Some facilities maintain an electronic database of MSDSs for the
hazardous chemicals on their site. EPA requested comments whether a
facility should be allowed to give the SERC, LEPC and the local fire
department electronic access to its MSDS database instead of actually
submitting the MSDSs to the three entities as required under EPCRA
section 311.
A few commenters supported this option and some asked for
development of a central database that would include MSDSs from all
facilities. However, other commenters opposed the approach for a number
of reasons, such as it would raise concerns about the security of a
company's computer systems, it would not meet the requirements of the
statute, as well as the fact that many LEPCs and fire departments do
not have the capability to access databases electronically. Still other
commenters stated that access would need to be assured even when power
outages occur.
Submission of MSDSs for hazardous chemicals present at a facility
to the SERC, LEPC and the fire department is a statutory requirement.
EPA has codified this requirement in 40 CFR part 370. The Agency
suggested electronic submission of MSDSs or providing access to a
facility's MSDS database to reduce the burden on the regulated
community and reduce the information management burden on implementing
agencies. However, such an approach does raise a number of issues,
including whether it would meet the statutory
[[Page 39857]]
requirements under EPCRA section 311. Therefore, the Agency is no
longer recommending such an approach in place of the submission of the
MSDS forms for hazardous chemicals at the facility to the SERC, LEPC
and fire departments, except as discussed elsewhere in today's notice.
F. EPCRA Section 312 Reporting To Fulfill Reporting Requirements Under
Section 311
EPA's draft guidance suggested another approach to reduce the
reporting requirements for facilities. Specifically, the Agency sought
comments on whether the section 312 reporting requirement can fulfill
the section 311 reporting requirements provided that the section 312
reporting conforms to the required time frame and that the Tier II
information is accurate and complete. Since reporting under both
sections 311 and 312 are submitted to the SERC, LEPC and the fire
department, this approach should not pose any additional burden on
these entities.
Section 311 of EPCRA and its implementing regulations require the
submission of MSDSs or a list of hazardous chemicals to the SERC, LEPC,
and fire department within three months after becoming subject to the
reporting requirements, or within three months after discovery of
significant new information concerning a hazardous chemical that has
already been reported, or within 30 days of a request from the SERC,
LEPC or fire department. Section 312 of EPCRA requires a submission of
a Tier I (or Tier II) form to these three entities by March 1 of each
year. Since the section 312 report is due by March 1, for information
from the previous calendar year, some facilities may submit their Tier
I/II form between January 1 and March 1. Therefore, Section 312 could
be used to meet the section 311 reporting requirements for those
facilities that become subject to reporting under section 311, or
discover significant new information concerning a hazardous chemical
between October 1 and December 31 of any given calendar year.
All but one commenter who addressed this issue supported EPA's
draft guidance regarding this matter. Many States indicated they
already use this approach and find that it works well allowing them to
utilize its resources in a more efficient manner. One commenter
objected because it would require reprogramming of company systems.
After reviewing the comments, the Agency, recognizing that some
States are already implementing this reporting option, is retaining
this option in this final guidance. However, those States that choose
to implement or are already implementing this reporting option will
need to require facilities to submit a section 312 report three months
after acquiring a new chemical in order to be in compliance with the
section 311 reporting requirements.
IV. Interpretations
A. Emergency Release Notification
In addition to providing draft guidance to the implementing
agencies for various reporting options under EPCRA section 312, EPA
also provided draft guidance to the regulated community on defining
certain terms and phrases used in the regulations. In the June 1998
proposed rule, EPA requested comments on the Agency's interpretation of
the meaning of the term ``promptly'' in section 355.20 and the phrase
``as soon as practicable'' in section 355.40. The Agency did not intend
to revise the regulatory requirements, but only to provide guidance for
these two terms.
EPA received comments from many States and local agencies that the
term ``promptly'' should be defined in the regulations since receiving
information from facilities on changes relevant to emergency planning
is crucial in developing and/or updating emergency response plans.
Therefore, to be consistent with EPCRA section 303(d)(2), the Agency
proposed to add the term ``promptly'' to the regulations in 40 CFR
355.20 associated with providing the LEPC with notification of any
changes occurring at the facility which may be relevant to emergency
planning. Commenters supported this revision, but suggested that the
Agency provide a specific time period, such as 10, 20 or 30 days
because of the need for this information for emergency planning. As
previously noted, the final rule published on November 3, 2008 (73 FR
65452) revised 40 CFR 355.20 to state that any changes relevant to
emergency planning must be provided to the LEPC within 30 days after
the changes have occurred.
EPA also requested comments on whether the Agency should provide
guidance on the meaning of the phrase ``as soon as practicable'' under
the emergency release notification in 40 CFR 355.40, which states (at
40 CFR 355.40(b)) that a written follow-up emergency notice must be
provided by a facility ``as soon as practicable'' after a release. EPA
sought comments on whether 30 days should be allowed to provide a
written follow-up notice.
Commenters generally supported defining ``as soon as practicable,''
but differed on whether 30 days was a reasonable period. Some
commenters stated that the period should be shorter (7 or 14 days) or
longer (45 to 90 days), while other commenters supported the 30-day
period. A few commenters noted that 30 days was inconsistent with EPA's
guidance on enforcement actions.
Based on the comments and EPA's evaluation, the Agency has decided
that 30 days should be sufficient to submit the written follow-up
notice of the emergency release to the SERC and LEPC. The Agency will
be revising its enforcement response policy to reflect this change.
States may implement a more stringent timeframe if they so choose.
B. Hazardous Chemical Exemption for Solids Under EPCRA Section
311(e)(2)
EPCRA section 311 provides some exemptions for certain substances
from the definition of hazardous chemical. Under section 311(e)(2),
``any substance present as a solid in any manufactured item to the
extent exposure to the substance does not occur under normal conditions
of use'' is exempt from the definition of hazardous chemical and
therefore need not be reported under sections 311 and 312. However,
EPA's interpretation of this exemption has been that if portions of the
solid metal are modified, such that exposure to a hazardous chemical
can occur, then all of the solid metal should be included and counted
to determine the quantity of hazardous chemical present for threshold
purposes. For example, if there are 10,000 pounds of steel undergoing a
welding process at a facility at any one time, then 10,000 pounds would
need to be counted toward the quantity for threshold determination even
if only a portion of the steel is welded. EPA believes this
interpretation occasionally requires reporting of information that is
unnecessary for emergency planning and community right-to-know
purposes. To relieve the burden for facilities and to relieve the
burden on information management for implementing agencies, the Agency
suggested that this interpretation be modified in the preamble to the
June 1998 proposed rule. Under the new interpretation, facilities would
only have to include and count the amount of fume or dust emitted or
released from a manufactured solid that is being modified to determine
whether the EPCRA sections 311 and 312 reporting thresholds have been
reached. EPA requested comments on this new interpretation and
[[Page 39858]]
commenters generally supported this new interpretation for this
exemption.
Based on the comments provided by the regulated community and the
implementing agencies, EPA is revising its interpretation for the
exemption for solids under section 311(e)(2), such that facilities
would only have to include and count the amount of fume or dust given
off a piece of metal that is being modified toward the threshold
determination. In addition, as EPA stated in the preamble to the June
1998 proposed rule, stamping a piece of metal doesn't negate the
exemption for that piece of metal; the piece of metal would still
qualify for the exemption. EPA believes that the stamping of sheet
metal does not present exposure to a hazardous chemical.
This new interpretation would also apply to bricks or any other
manufactured solid item that undergoes a modification process (for
example, cutting). Thus, facilities would need to count the amount of
fume or dust released during the modification process toward the
threshold determination.
These interpretations are provided as guidance. States may
implement more stringent requirements if they so choose.
The Agency realizes the format for this guidance is different from
the usual EPA format. Since the Agency requested comments on the
various reporting options and interpretations, we decided to publish
the guidance in the Federal Register to address the comments. A fact
sheet that includes all the elements in this guidance is available on
the Agency's Web site at http://www.epa.gov/emergencies.
Summary of the Reporting Options
------------------------------------------------------------------------
Reporting Option Guidance
------------------------------------------------------------------------
Use of UST Forms to Fulfill the Since all States now require
Requirements for Tier I Information facilities to submit Tier II
under EPCRA Section 312.. or State equivalent forms,
this reporting option is no
longer useful.
Partnership Programs for Joint Access States may implement this
to Information and Streamlined approach, but the statutory
Submission of EPCRA Sections 311 and and regulatory requirements
312 Reporting. If a single point must still be met. That is,
submission is allowed for facilities, all three entities get access
then one agency would receive the to section 312 information by
information and provide access to the March 1 annually.
other two agencies..
Electronic Submittal and Certification States may require
for EPCRA Section 312 Reporting. facilities to submit
information using Tier 2
Submit, the Federal electronic
reporting format or the State
equivalent electronic
reporting format.
Those facilities that
do not have capability to file
electronically should be given
the option to file a hardcopy.
The original signature
requirement in 40 CFR 370.41
and 370.42 could be met by
providing the certification
statement on paper (i.e. wet
signature) or by any
electronic certification
established by State and local
agencies. (Memorandum from
Debbie Dietrich to EPA
Regional Superfund Managers on
Electronic Reporting and
Signature under EPCRA Section
312, July 30, 2009. This
memorandum is available on the
Agency's Web site at http://
www.epa.gov/emergencies).
Incorporation of Previous Submissions States may adopt this reporting
into EPCRA Section 312 Reporting. approach, especially for those
facilities that submit section
312 information on paper.
Electronic Access to Facility MSS EPA believes that this approach
Database. is inappropriate since there
is a concern for computer and
information security.
EPCRA Section 312 Reporting to Fulfill This reporting
Reporting Requirements under Section approach is only beneficial to
311. those facilities that acquire
a new chemical between October
1 and December 31 of any given
calendar year.
States may implement
this reporting approach
ensuring that facilities
comply with section 312 three
months after acquiring a new
chemical.
------------------------------------------------------------------------
Summary of the Interpretations
------------------------------------------------------------------------
Interpretations Guidance
------------------------------------------------------------------------
Emergency Release Notification......... Facilities may have up to 30
days to submit a written
follow-up report to State and
local agencies. States may
implement more stringent
requirements.
Hazardous Chemical Exemption for Solids Facilities would only have to
under EPCRA section 311()(2). count the amount of fume or
dust given off a piece of
metal, brick or any other
manufactured solid item that
undergoes a modification
process (i.e. cutting,
welding, etc.). States may
implement more stringent
requirements.
------------------------------------------------------------------------
[[Page 39859]]
Dated: June 22, 2010.
Mathy Stanislaus,
Assistant Administrator, Office of Solid Waste and Emergency Response.
[FR Doc. 2010-17031 Filed 7-12-10; 8:45 am]
BILLING CODE 6560-50-P