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Addition of Facilities in Certain Industry Sectors; Toxic
Chemical Release Reporting; Community Right-to-Know; Proposed Rule

Emergency Planning and Community Right-to-Know;
Notice of Public Meeting;

Source: Federal Register: June 27, 1996
(Volume 61, Number 125), Proposed
Rules, Page 33587-33618.



>From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[[Page 33587]]
  _________________________________________________________________
                                   
Part II

Environmental Protection Agency
  _________________________________________________________________
                                   
40 CFR Part 372

Addition of Facilities in Certain Industry Sectors; Toxic Chemical
Release Reporting; Community Right-to-Know; Proposed Rule

Emergency Planning and Community Right-to-Know; Notice of Public
Meeting; Notice

[[Page 33588]]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 372

[OPPTS-400104; FRL-5379-3]
RIN 2070-AC71

Addition of Facilities in Certain Industry Sectors; Toxic Chemical
Release Reporting; Community Right-to-Know

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.
  _________________________________________________________________
                                   
SUMMARY: EPA is proposing to add seven industry groups to the list of
industry groups subject to the reporting requirements under section
313 of the Emergency Planning and Community Right-to-Know Act of 1986
(EPCRA) and section 6607 of the Pollution Prevention Act of 1990
(PPA). These industry groups are metal mining, coal mining, electric
utilities, commercial hazardous waste treatment, chemicals and allied
products-wholesale, petroleum bulk stations-wholesale, and solvent
recovery services. EPA believes that the addition of these industry
groups to EPCRA section 313 will significantly add to the public's
right-to-know about releases and other waste management activities of
toxic chemicals in their communities. EPA believes that these industry
groups meet the criteria of EPCRA section 313(b)(1)(B). Reporting for
these sectors will be required for the first full year following
publication of the final rule.

DATES: Written comments on this proposed rule must be received on or
before August 26, 1996.

ADDRESSES: Written comments should be submitted in triplicate to: OPPT
Docket Clerk, TSCA Document Receipt Office (7407), Office of Pollution
Prevention and Toxics, Environmental Protection Agency, Rm. E-G099,
401 M St., SW., Washington, DC 20460. Comments containing information
claimed as confidential must be clearly marked as confidential
business information (CBI). If CBI is claimed, three additional
sanitized copies must also be submitted. Nonconfidential versions of
comments on this proposed rule will be placed in the rulemaking record
and will be available for public inspection. Comments should include
the docket control number for this proposal, OPPTS-400104 and the EPA
contact for this proposal. Unit VII. of this preamble contains
additional information on submitting comments containing information
claimed as CBI.
Comments and data may also be submitted electronically by sending
electronic mail (e-mail) to: oppt.ncic@epamail.epa.gov. Electronic
comments must be submitted as an ASCII file avoiding the use of
special characters and any form of encryption. Comments and data will
also be accepted on disks in WordPerfect 5.1 file format or ASCII file
format. All comments and data in electronic form must be identified by
the docket number OPPTS-400104. No CBI should be submitted through
e-mail. Electronic comments on this proposed rule may be filed online
at many Federal Depository Libraries. Additional information on
electronic submissions can be found in Unit VII. of this document.

FOR FURTHER INFORMATION CONTACT: Tim Crawford at 202-260-1715, e-mail:
crawford.tim@epamail.epa.gov or Brian Symmes at 202-260-9121, e-mail:
symmes.brian@epamail.epa.gov for specific information regarding this
proposed rule. For further information on EPCRA section 313, contact
the Emergency Planning and Community Right-to-Know Hotline,
Environmental Protection Agency, Mail Stop 5101, 401 M St., SW.,
Washington, DC 20460, Toll free: 1-800-535-0202, in Virginia and
Alaska: 703-412-9877 or Toll free TDD: 800-553-7672.

SUPPLEMENTARY INFORMATION:

I. Introduction

A. Regulated Entities

Entities potentially regulated by this proposed action are those
facilities within the industry groups being proposed for addition to
the list of Standard Industrial Classification (SIC) codes which
manufacture, process, or otherwise use chemicals listed at 40 CFR
372.65 and meet the reporting requirements of section 313 of the
Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA), 42
U.S.C. 11023 and section 6607 of the Pollution Prevention Act of 1990
(PPA), 42 U.S.C. 13106. Some of the potentially regulated categories
and entities include:


  _________________________________________________________________
                                   
                                            Examples of regulated
              Category                             entities

  _________________________________________________________________
                                   
Industry; facilities that manufacture, 
process, or otherwise use certain chemicals.

                                         Metal mining, Coal mining,
                                         Electric utilities,
                                         Commercial hazardous waste
                                         treatment, Chemicals and
                                         allied products-wholesale,
                                         Petroleum bulk stations-
                                         wholesale, Solvent recovery
                                         services, Manufacturing.

  _________________________________________________________________
                                   
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
proposed action. This table lists the types of entities that EPA is
now aware could potentially be regulated by this proposed action.
Other types of entities not listed in the table could also be
regulated. To determine whether your facility would be regulated by
this action, you should carefully examine this proposal and the
applicability criteria in part 372 subpart B of Title 40 of the Code
of Federal Regulations.

B. Statutory Authority

This proposed rule is issued under sections 313(b) and 328 of EPCRA,
42 U.S.C. 11023 et seq. EPCRA is also referred to as Title III of the
Superfund Amendments and Reauthorization Act of 1986 (SARA) (Pub. L .
99-499).

C. Background

Section 313 of EPCRA requires certain facilities manufacturing,
processing, or otherwise using listed toxic chemicals to report their
environmental releases of such chemicals annually. Beginning with the
1991 reporting year, such facilities also must report source reduction
and recycling data for such chemicals, pursuant to section 6607 of the
PPA, 42 U.S.C. 13106. Section 313(b)(1)(A) specifically applied these
reporting requirements to owners and operators of facilities that have
10 or more full time employees and that are in Standard Industrial
Classification (SIC) codes 20 through 39. EPCRA section 313(b)
authorizes EPA to add facilities and industry groups to the EPCRA
section 313 list. The purpose of this proposed rule is to expand the
universe of industry groups that are subject to EPCRA section 313 and
PPA section 6607.

[[Page 33589]]

II. Preparation for Expansion of Section 313 Industry Groups

A. General Background

In 1986, Congress enacted EPCRA to ensure that the presence,
management, and routine and emergency releases of toxic chemicals in
the United States were well understood. It was evident that there were
facilities in the United States where toxic chemicals were
manufactured, used and stored--but knowledge of this was undisclosed
to emergency response teams, state and local governments, and perhaps
most importantly, the citizens who lived and shared common
neighborhoods with these facilities.
At the core of these new provisions was the concept of a
facilityspecific, chemical-based inventory. This inventory, termed the
Toxics Release Inventory (TRI), created a national data base
identifying facilities and their annual accidental and routine
releases of toxic chemicals. Prior to EPCRA, this information was not
readily available to the federal government, state governments,
emergency preparedness teams or the general public, and often did not
become available until after serious accidents occurred or until major
impacts on human health and the environment were evident. This
``after-the-fact'' disclosure of information did little to help plan
or prevent such serious health and environmental impacts.
EPCRA section 313 currently requires certain manufacturing facilities
in SIC codes 20 through 39 to report annually on their releases,
transfers, and other waste management practices for more than 600
listed toxic chemicals and chemical categories (hereafter ``toxic
chemicals''). Information on the release (including disposal),
transfer, and other waste management activities of these chemicals,
which is provided to EPA and States, is then made publicly available
through a variety of means, including an annual report issued by EPA.
The data that EPA receives from these approximately 23,000 facilities
have provided the public, industry, and all levels of government with
critical information related to toxic chemical releases and transfers
that occur within their communities and across the United States.
These data have become an essential component of facility planning and
community preparedness and response. Further, these data allow States,
communities and the public to engage in an informed way in
environmental decision making. The TRI data are a yardstick by which
progress can be measured by industry and local communities and
governments. These data enable all interested parties to establish
credible baselines, to set realistic goals for environmental progress,
and to measure progress in meeting these goals over time. Data about
releases and other waste management activities of toxic chemicals at
the community level were generally nonexistent prior to EPCRA. While
permit data are generally cited as a public source of environmental
data, they are often difficult to obtain, are not crossmedia and
present only a limited perspective on the facility's overall
performance. While other sources of data are often cited as
substitutes for TRI data, EPA is unaware of any other publicly
available, nationwide data base that provides multi-media,
facility-specific release and waste information to the public. With
EPCRA, and the real gains in understanding it has produced,
communities now know what a subset of industrial facilities in their
area release or otherwise manage as waste for listed toxic chemicals.
EPCRA section 313 facility coverage is currently limited to facilities
in the manufacturing sector, i.e., in SIC codes 20 through 39. These
manufacturing facilities account for only a small portion of the toxic
chemicals released or handled as waste in the United States.
Facilities currently covered by EPCRA section 313 account for only 0.4
percent of the facilities in the United States (Ref. 14). In 1989, the
Office of Technology Assessment estimated that the TRI represents 5
percent of toxic releases to the environment. Adding non-manufacturing
industries to the EPCRA section 313 list of facilities will provide
basic information to millions of Americans on releases and other waste
management information on toxic chemicals from additional industrial
facilities in their communities.
As discussed in detail in Unit III.A. of this preamble, Congress gave
EPA clear authority to expand TRI, both in terms of the chemicals
reported and the facilities required to report. The limited list of
chemicals and facilities identified in the original legislation was
meant as a starting point, or a core program. Congress recognized that
the TRI program would need to evolve to meet the needs of a better
informed public and to fill information gaps that would become
apparent over time.
In implementing the expansion of the TRI program, EPA is pursuing the
course set by Congress. The information EPA is seeking to provide the
public through this proposal currently is largely unavailable. While
many non-manufacturing facilities may be subject to various reporting
requirements at the Federal, State, and local levels, these reporting
systems are not comparable to TRI. These systems, which were reviewed
as part of the analysis for this proposal, have been found to be
limited in scope, content, coverage, and accessibility compared to
TRI. Many do not focus on the collection and dissemination of
information but are used to support other regulatory activities, such
as the issuance of permits. While other reporting systems may serve
their statutorily mandated purposes, none provide accessible data on
releases to all media from such a large number of facilities.
Therefore, these existing data systems, which may serve other useful
purposes, do not provide as useful information for communities on
toxic chemicals as TRI does. Moreover, duplication between TRI data
and data contained in other systems is minimal, data contained in
those other systems often reflect permitted releases rather than
actual releases, and these data may represent wastestream level data
rather than the chemical-specific data that comprises TRI. In a
critical analysis of the TRI program, the Congressional General
Accounting Office (GAO) in 1991 noted that EPA had not used its
statutory authority to expand the types of facilities required to
report under EPCRA section 313. GAO recognized that the value of the
TRI program could be enhanced significantly by expanding the program's
reporting requirements to cover industries outside the manufacturing
sector, and noted that industry group expansion is supported by a
variety of stakeholders. More discussion of the GAO's report, entitled
Toxic Chemicals: EPA's Toxic Release Inventory Is Useful But Can Be
Improved (hereafter GAO Report), can be found in Unit III.A. of this
preamble (Ref. 2).
EPA has undertaken a number of actions to expand and enhance TRI.
These actions include expanding the number of reportable toxic
chemicals by adding 286 toxic chemicals and chemical categories to the
EPCRA section 313 list in 1994. At the same time, EPA sought to reduce
burden for facilities with low annual reportable amounts of toxic
chemicals by establishing an alternate reporting threshold that allows
facilities with 500 pounds or less of reportable releases and other
wastes to file a certification statement instead of the standard TRI
report, the Form R. Further, a new category of facilities was added to
TRI on August 3, 1993 through Executive Order 12856, which requires
Federal

[[Page 33590]]

facilities meeting threshold requirements to file annual TRI reports,
regardless of SIC code.
EPA first announced its intention to consider the expansion of TRI to
include additional industry groups at a public meeting held on May 29,
1992 (57 FR 19126). Today's proposal to expand the coverage of TRI to
include additional industry groups has been undertaken in order to
provide new and valuable information on toxic chemicals in the U.S.
The proposed industry groups are responsible for substantial use,
release and generation of EPCRA section 313 chemicals as waste, and
are engaged in activities similar to or related to activities
conducted at facilities within the manufacturing sector that currently
reports. This action is proposed in order to more completely account
for releases, transfers, and waste management in the U.S., and to
provide the public, all levels of government, and the regulated
community with information that will improve decision making,
measurement of pollution, and the understanding of the environmental
consequences of toxic chemical emissions.
On August 8, 1995, the President issued a directive to EPA for
``continuation on an expedited basis of the public notice and comment
rulemaking proceedings to consider whether, as appropriate and
consistent with section 313(b) of EPCRA, 42 U.S.C. 11023(b), to add to
the list of Standard Industrial Classification (``SIC'') Code
designations of 20 through 39 (as in effect on July 1, 1985)'' (60 FR
41791). The President directed that EPA ``complete the rulemaking
process on an accelerated schedule.'' EPA is now proposing a number of
carefully selected industry segments for coverage under EPCRA section
313. Although EPA may be ``expediting'' this activity, it is doing so
only after lengthy deliberations and consultation with stakeholders.
EPA recognizes that expansion of TRI reporting to cover a broader
range of facilities raises some communication issues that may not be
presented by the original list of manufacturing facilities in SIC
codes 20 through 39. For example, inclusion of certain waste
management facilities as proposed could mean that a facility's primary
business could equate to a reportable release. As discussed in Unit
V.F.6. of this preamble, this could lead to the misperception that an
uncontrolled release is taking place, when in reality the facility is
legally and responsibly managing waste materials. This type of
misperception is not a result intended or desired by EPA. Similarly, a
concern has been expressed by some that because waste management
activities may involve transfers from one facility to another that the
same material may appear more than once in the TRI data base. EPA
believes that, since transfers and releases are tracked separately,
this should not mislead the public, but seeks comment on the issue. As
this rulemaking proceeds, EPA will be evaluating how it presents--
including in its annual data release--and otherwise communicates the
information reported by these new facilities. When considering this
proposed rule, commenters are encouraged to address how best to
communicate information from the new industries in a way that
continues to serve the purposes of TRI without fostering
misperceptions.

B. Outreach

Prior to this proposed rulemaking, EPA engaged in a significant and
comprehensive outreach effort. This outreach served to inform
interested parties, including industries under consideration, state
regulatory officials, environmental organizations, labor unions,
community groups, and the public of EPA's intention to propose adding
additional industry groups to the EPCRA section 313 list. The outreach
effort also allowed EPA to gather additional information that assisted
in the development of this proposed rulemaking. EPA has also received
substantial public comment regarding the Agency's proposed action, and
has considered these comments in its deliberations. EPA recognized the
need for comprehensive and thorough outreach regarding this proposal.
Consequently, EPA held two public meetings prior to publication of
this proposal. The first public meeting, announcing EPA's intentions,
was held on May 29, 1992. The second was held on May 25, 1995. These
meetings were announced in the Federal Register (57 FR 19126, May 4,
1992 and 60 FR 21190, May 1, 1995). The public meetings allowed
interested parties, including representatives of the industries
included in this proposal, to voice opinions and concerns regarding
the facility expansion undertaking. EPA used these meetings as an
opportunity to inform interested parties about the possibility of this
proposed action and to make available information regarding its
analysis for comment. Issues papers, summaries, statements submitted
and additional public comments from these meetings, are included in
the public docket supporting this rulemaking. In addition, over the
course of the past 5 years, EPA has used the regularly-held public
meetings of the Forum on State and Tribal Toxicities Action (FOSTTA),
which represents state environmental agencies, and the National
Advisory Council on Environmental Policy and Technology (NACEPT),
which includes representatives from industry, environmental
organizations, states, and academia, to discuss the expansion of the
EPCRA section 313 industry group list. These groups have provided EPA
with substantive input prior to this proposal for structuring its
screening and analytical activities conducted in support of this
proposal. EPA has recently held discussions with other state
regulatory officials, in particular with the Interstate Mining Compact
Commission (IMCC). These discussions have allowed EPA to understand
more clearly state regulatory concerns regarding the addition of
certain industry groups. With the publication of this proposal, EPA
will be continuing the dialogue initiated in these meetings.
EPA also recognized that public meetings were not the sole means to
engage in the substantive discussion of issues specific to the
proposed industries. Therefore, EPA initiated a series of formal and
informal meetings with industry representatives as well as with
representatives of environmental, community and labor organizations.
Although meetings with such groups have been held since 1992, EPA
substantially increased this element of its outreach effort since
1994, and continued to do so until the publication of this proposal.
The more formal of these meetings, referred to as ``focus group
meetings,'' involved representatives of various trade associations and
companies from the various industry groups under consideration. These
meetings primarily involved discussions with EPA officials regarding
the expansion of EPCRA section 313 reporting requirements as well as
issues specific to the industries under consideration. A ``focus group
meeting'' was also held with environmental, labor and community
organizations. EPA also used these meetings as an opportunity to share
data and additional information collected as part of its expansion
effort, and to solicit comment regarding the analytic approach used in
the screening process (A description of the screening process is
provided in Unit II.C. and II.D of this preamble). Summaries of these
meetings and lists of participants are available in the public docket
supporting this rulemaking.
EPA officials have also held meetings with industry representatives
and others on a regular basis to discuss issues involved in this
proposed rulemaking.

[[Page 33591]]

EPA has used these meetings as a means to keep interested parties
closely informed of progress in developing this proposed action, and
to gather information to assist the Agency in its activities. These
meetings are documented in the public docket supporting this
rulemaking.
EPA and other government officials have routinely discussed this
proposed action in public speaking engagements before a variety of
groups and organizations. Most notably, the President addressed
community groups in Baltimore, Maryland on August 8, 1995, regarding
the Administration's commitment to community right-to-know, including
his directive to the Administrator of EPA and Heads of Executive
Departments and Agencies to continue the expansion of the EPCRA
section 313 industry group list. The President's statements concerning
the expansion of the TRI program were widely reported and increased
public awareness of EPA's efforts. Considerable media coverage,
including detailed trade press stories, has provided many more
individuals, businesses, and organizations with information regarding
this proposed action.
Unfunded mandates that may be imposed on other government entities are
of particular concern to the Agency, especially since issuance of
Executive Order 12875 (``Enhancing the Intergovernmental
Partnership'') and the Unfunded Mandates Reform Act of 1995
(compliance with this Act is discussed in Unit XI.D. of this
preamble). EPA has held discussions with a wide range of state and
local officials regarding this proposal, particularly through FOSTTA
as described above, and with representatives of publicly-owned and
operated facilities. EPA will continue a constructive dialogue to
ensure that unfunded mandates issues are fully understood, analyzed,
and addressed. EPA recognizes that particular concerns have been
raised regarding the expansion of the EPCRA section 313 industry group
list in so far as the reporting requirements may affect small
businesses. Many trade associations and other industry organizations
with which EPA has held discussions include small businesses as
members or participants. These groups have represented the interests
of some small businesses to EPA, and have helped to inform businesses
about EPA's intentions. In addition, EPA has addressed forums such as
the Small Business Roundtable regarding this proposed action, and has
briefed officials of the Small Business Administration as well as
EPA's Small Business Omsbudsman and Regional Small Business Liaisons
on this matter. Activities specific to small businesses are documented
in the public docket supporting this rulemaking.
A variety of materials have been made available to interested parties
and the public regarding this proposed action. Widely distributed
Agency publications have provided updates regarding the expansion of
the TRI program. More specific materials, including analytical
products developed as part of this effort, have been provided to
industry groups and further disseminated at events such as annual
meetings. EPA is also aware of and appreciates the many industry
efforts to disseminate this information to members. Documentation of
these publications and materials, to the extent available, is included
in the public docket supporting this rulemaking. EPA intends to
continue its outreach efforts in regards to this proposed action. The
Agency has found outreach to be beneficial to all parties and
essential to sound public policy decisions. The Agency will be
providing additional forums for public comment by holding two public
meetings during the public comment period for this proposal.

C. Development of Industry Group Candidates

Prior to this proposed rulemaking, EPA conducted a screening process
designed to identify the best candidate industry groups in order to
focus on those industries potentially most relevant to further the
purposes of EPCRA section 313. The purpose of the screening process
was to focus the Agency's limited resources on those industries for
which reporting would be most beneficial to community right-to-know.
Provided below is a brief overview of the screening activities
conducted by EPA prior to this rulemaking. For a more detailed
discussion of the screening activities, refer to Development of SIC
Code Candidates: Screening Document, available in the public docket
for this rulemaking (Ref. 19).
EPA began the screening process by analyzing chemical waste
information routinely reported by industries and collected in several
existing EPA data systems. While the information reported in these
data systems have some inconsistencies with the type of information
collected on TRI, the data systems selected provided a reasonable
method of comparing industries by chemicals and estimated volumes for
industries regulated under each program (Ref. 5). The initial
screening activity ranked industries by the volume of EPCRA section
313 chemicals found in each reporting system. Those 2- digit SIC codes
that made up 99 percent of the matched EPCRA section 313 chemical
release estimates for non-manufacturing facilities were selected from
each reporting system. This list of 25 2-digit SIC codes was referred
to as the ``Tier I'' list, and included the following Major Groups:
Metal Mining; Coal Mining; Oil and Gas Exploration and Production;
Non-metal Mining; Heavy Construction; Railroad Transportation; Motor
Freight Transportation and Warehousing; Transportation by Air;
Pipelines, Except Natural Gas; Transportation Services; Electric, Gas,
and Sanitary Services; Wholesale Trade Durable Goods; Wholesale Trade
Nondurable Goods; Automotive Dealers and Gasoline Service Stations;
Business Services; Automotive Repair, Service, and Parking;
Miscellaneous Repair and Service; Health Services; Educational
Services; Engineering, Research, Management, and Related Services;
Services not elsewhere classified; Administration of Environmental
Quality and Housing Programs; Administration of Economic Services;
National Security and International Affairs; and Nonclassifiable
Establishments.
The Tier I list represents an extremely large number of diverse
individual industries. EPA began compiling information useful in
explaining what the industries in these Major Groups are and what
activities they conduct with emphasis on those activities that may
involve section 313 chemicals. This information was organized into
documents for each 2-digit SIC code and are referred to as ``industry
profiles'' (Refs. 6, 7, 8, 9, and 10).
The next step in the screening process involved a comparison between
industry groups currently reporting under section 313 (manufacturing
industries) and those under consideration, in terms of the types of
activities they perform and the services they provide to the
manufacturing sector. One of the primary objectives of expanding TRI
coverage to additional industry groups is to fill in gaps associated
with chemical management activities currently reported under EPCRA
section 313. EPA determined that those industries that either supply
or otherwise manage chemicals and related materials both to and from
the point of manufacturing would further this objective. EPA
categorized all 25 major industry groups in terms of their relation to
manufacturing. This step in the screening process resulted in the
following list of candidates: metal mining; coal mining; oil and gas
exploration and production; non-metal

[[Page 33592]]

mining; motor freight transportation and warehousing; transportation
by air; pipelines, except natural gas; electric, gas, and sanitary
services; wholesale durable and non-durable goods; and business
services.
Once this candidate list was developed, EPA engaged in further
discussions with representatives of many of the industries on the
list, as well as environmental and labor organizations, state
environmental and regulatory representatives, and groups established
to provide feedback on TRI initiatives. These discussions provided an
opportunity to educate various industry groups about the TRI program,
to obtain feedback on the information developed to characterize their
industry, and to listen to concerns. A more detailed discussion of the
outreach activities conducted as part of this rulemaking can be found
in Unit II.B. of this preamble.
A greater level of specificity in the analysis was required to better
identify which industry groups and activities were of greater
importance in terms of their potential value to section 313 reporting.
To refine the analysis, EPA developed data reported in the reporting
data systems to the more specific 4-digit SIC code level. These data
were incorporated into a ranking model that allowed the management of
large volumes of information. For a more detailed discussion of the
ranking model, see Development of SIC Code Candidates: Screening
Document (Ref. 19).
The last stage in the screening process involved an overlay of
regulatory definitions and developments, existing program guidance,
and any exemptions pertinent to activities identified for the primary
candidates. This stage of the analysis allowed EPA to evaluate the
degree to which reporting would be expected to occur under EPCRA
section 313 for these candidate industry groups. EPA used information
developed for this analysis, along with input from specific industries
in making further reductions in the list of candidate industry groups
(Ref. 19).
As a result of this screening process, EPA eliminated SIC code 16,
heavy construction; SIC code 40, railroad transportation; SIC code 42,
motor freight, transportation, and warehousing; SIC code 45, air
transportation SIC code 46, pipelines, except natural gas; SIC code
47, transportation services; SIC code 55, automotive dealers and
gasoline service stations; SIC code 75, automotive repair, service,
and parking; SIC code 80, health services; SIC code 82, educational
services; and SIC code 87 engineering, research, management, and
related services; SIC code 89, miscellaneous services; SIC code 95,
administration of environmental quality and housing programs; SIC code
96, administration of economic services; SIC code 97, national
security and international affairs; and SIC code 99, nonclassifiable
establishments.

D. Additional Considerations in Selecting Additional Industry Group
Candidates

In addition to the activities conducted as part of the screening
process described above, EPA also excluded certain industry groups
from consideration in this proposed action for a number of other
reasons. Provided below is a brief discussion of those additional
industry groups that were excluded after the application of the
screening process.
 1. Impacts on intergovernmental entities. EPA considered potential
    impacts on other governmental entities resulting from addition of
    certain industry groups. As a result of issues raised by this
    consideration, several industry groups were excluded from
    consideration for addition under EPCRA section 313 at this time,
    including Municipal Solid Waste Landfills (MSWLFs),
    Publicly-Owned-Treatment Works (POTWs), and water supply systems.
    Each of these industry groups are part of the Major Group SIC code
    49, Electric Gas and Sanitary Services. Water systems are
    classified within SIC code 4941, POTWs are classified within SIC
    code 4952, and MSWLFs are classified within 4953. These facilities
    are primarily operated by local municipalities and regional
    governmental entities. Although each industry group may manage
    significant quantities of EPCRA section 313 listed toxic
    chemicals, the manner in which they manage these chemicals raises
    several crossgovernmental issues EPA is continuing to address. As
    a result, EPA is not considering these industry groups at this
    time.
 2. Economic considerations. EPA's economic analysis identified
    several industry groups that may be adversely affected at a
    substantially disproportionately high rate, if coverage under
    EPCRA section 313 was extended to include them. Petroleum and
    petroleum products wholesalers classified as SIC code 5172, farm
    supplies classified as SIC code 5191, and paints, varnishes, and
    supplies classified in SIC code 5198 may have a disproportionately
    large economic impact if EPCRA section 313 reporting requirements
    were extended to their industry (Ref. 20). Further, based on a
    preliminary review, the projected value of reporting for these
    industry groups is questionable. EPA continues to refine this
    information and explore alternatives for these industry groups.
 3. Non-listed primary chemical association. Two industries, nonmetal
    mining classified in SIC code 14 and wholesale durable goods
    classified in SIC code 50, were excluded from further
    consideration for this action based on the belief that the
    majority of activities conducted by facilities operating in these
    industry groups are believed to involve materials that are not
    EPCRA section 313 listed chemicals.
 4. Standard facility unit. One industry group, oil and gas extraction
    classified in SIC code 13, is believed to conduct significant
    management activities that involve EPCRA section 313 chemicals.
    EPA is deferring action to add this industry group at this time
    because of questions regarding how particular facilities should be
    identified. This industry group is unique in that it may have
    related activities located over significantly large geographic
    areas. While together these activities may involve the management
    of significant quantities of EPCRA section 313 chemicals in
    addition to requiring significant employee involvement, taken at
    the smallest unit (individual well), neither the employee nor the
    chemical thresholds are likely to be met. EPA will be addressing
    these issues in the future. EPA may reconsider at a later date
    some or all of the industry groups which were excluded as a result
    of the considerations mentioned above. For more detail regarding
    EPA's exclusion of these industry groups, refer to Additional
    Considerations in Selecting Industries for Addition to EPCRA
    Section 313 (Ref. 17). For the industry groups outside of SIC
    codes 20 through 39 which are not part of today's proposal, EPA
    requests comment on adding any of these industry groups through a
    future rulemaking. Commenters should take into account the current
    limitations of EPCRA section 313 reporting requirements, i.e,
    exemptions and thresholds, in addressing whether these industries
    should be required to report under EPCRA section 313.
    
III. EPCRA Section 313 Statutory Criteria

A. Statutory Construction

Recognizing that the American public has a right-to-know what is
happening in the environment near their homes, schools, and business,
Congress provided EPA with explicit statutory authority to expand the
categories of

[[Page 33593]]

facilities required to report under EPCRA section 313. Section
313(b)(1)(A) applies section 313 to facilities that are in SIC codes
20 through 39. Section 313(b)(1)(B) states:

The Administrator may add or delete Standard Industrial Classification
Codes for purposes of subparagraph (A), but only to the extent
necessary to provide that each Standard Industrial Classification Code
to which this section applies is relevant to the purposes of this
section.

EPA believes that this provision grants the Agency broad discretion to
add industry groups to the industries subject to the reporting
requirements under EPCRA section 313. The Conference Report restates
EPA's authority to add industry groups and provides additional
guidance:

[EPA's] authority is limited, however, to adding SIC codes for
facilities which, like facilities within the manufacturing sector SIC
codes 20 through 39, manufacture, process or use toxic chemicals in a
manner such that reporting by these facilities is relevant to the
purposes of this section (emphasis added) (Ref. 13).

Thus, the statute directs EPA, when adding industry groups, to
consider and be guided by the ``purposes'' of EPCRA section 313. While
EPCRA section 313 does not explicitly identify the purposes of the
section, the Conference Report makes clear that subsection (h) of
section 313

Describes the intended uses of the toxic chemical release forms
required to be submitted by this section and expresses the purposes of
this section. The information collected under this section is intended
to inform the general public and the communities surrounding covered
facilities about releases of toxic chemicals, to assist in research,
to aid in the development of regulations, guidelines, and standards,
and for other similar purposes. (Conference Report at 299, Ref. 13)

Statements by Congress are consistent with this stated language. For
example, Congressman Edgar, a principal architect of EPCRA, stated
during debate on the Conference Report:

Congress recognizes a compelling need for more information about the
Nation's exposure to toxic chemicals. Until now, the success of
regulatory programs such as the Clean Air Act, the Resource
Conservation and Recovery Act, and the Clean Water Act has been
impossible to measure because no broad-based national information has
been compiled to indicate increases or decreases in the amounts of
toxic pollutants entering our environment. As a result, the reporting
provisions in this legislation should be construed expansively to
require the collection of the most information permitted under the
statutory language. Any discretion to limit the amount of information
reported should be exercised only for compelling reasons. A second
major principle of this program is to make information regarding toxic
chemical exposure available to the public, particularly the local
communities most affected. For too long, the public has been left in
the dark about its exposure to toxic chemicals. Information that has
been available under existing environmental statutes such as the Clean
Water Act or the Clean Air Act, has been difficult to aggregate and
interpret, which has made it difficult, if not impossible, for the
public to gain an overall understanding of their toxic chemical
exposure. Consequently, the reporting requirements should be construed
to allow the public the broadest possible access to toxic chemical
information in formats that are straightforward and easy to
understand. (H. Rep. 99-975, 99th Cong., 2nd Sess., p. 5313 (Oct. 7,
1986)).
Section 313(b) specifies the facilities covered by the toxic chemical
release reporting requirement, but also provides the Administrator
with the discretion to include additional facilities [either] by
specifying additional SIC codes covered by this section--section
313(b)(1)(B) [....] Congress designated facilities in SIC codes 20-39
only as a starting point for this reporting requirement. The principal
consideration is whether the addition would meet the objectives of
this section to provide the public with a complete profile of toxic
chemical releases. The fact that Congress applied the reporting
requirement to those in the manufacturing sector should not be
considered a limiting criteria in the Administrator's determination.
(H. Rep. 99-975, 99th Cong., 2nd Sess., p. 5315 (Oct. 7, 1986)).

Other supporters of EPCRA's community right-to-know provisions echoed
Congressman Edgar's view that broad dissemination of information
concerning the presence of toxic chemicals in the community is a
primary purpose of EPCRA section 313. See, for example, Senator
Stafford's statements during debate on the Conference Report:

But the bill goes beyond concern about accidental releases of these
toxic and hazardous chemicals. It also recognizes that the public has
a right to be informed about routine releases of these chemicals to
the air, and the water and the land (H. Rep. 99-975, 99th Cong., 2nd
Sess., p. 5185 (Oct. 7, 1986)). In implementing this section, the
Administrator should keep in mind that its primary purpose is to
inform the public about routine releases of toxic chemicals. The
computer database [established by EPA] must be managed in such a way
as to maximize its accessibility and utility to the public (H. Rep. 99
975, 99th Cong., 2nd Sess., p. 5186 (Oct. 7, 1986)).

EPA's reading of the Agency's broad statutory authority to add
industry groups to the industries required to report under EPCRA
section 313 is echoed in the GAO Report. This report, which represents
a critical analysis of the TRI program and provides recommendation on
the direction of the program in keeping with Congressional intent,
states that ``EPCRA authorizes EPA to revise the chemical list and to
require nonmanufacturers to report their emissions'' (Ref. 2). This
report further notes that many relevant industries currently are not
required to report under EPCRA section 313:

Many industries outside the manufacturing sector that use substantial
quantities of toxic chemicals annually are not currently required to
report their emissions . . . Because of these reporting exemptions,
many persons whom we contacted during our review believed that the
inventory's reporting requirements should be revised. We found strong
support among government officials, states, reporting facilities, and
environmental and public interest groups for expanding the programs
reporting requirements to cover industries outside the manufacturing
sector. Moreover, we found that 28 states and about half of all
reporting facilities favored, for example, requiring reporting by
hazardous waste treatment, storage, and disposal facilities (Ref. 2).

Because of this, GAO recommended that EPA expand the number of
industries that report under EPCRA section 313:

We believe that to maximize the inventory's usefulness to policymakers
and the public, the inventory data must be as comprehensive as
possible, with the data from additional emissions sources and on
additional toxic chemicals. The concerns EPA expressed should be
carefully considered. However, these concerns should not override
efforts to make the inventory more comprehensive--especially since
policymakers and the public need the data to establish environmental
priorities and to better measure progress in reducing pollution (Ref.
2).

Based on the Agency's reading of the statute, pertinent legislative
history, and the GAO Report, EPA recognizes several purposes of the
EPCRA section 313 program, as envisioned by Congress, including: (1)
Providing a complete profile of toxic chemical releases and
management; (2) compiling a broad-based national data base for
determining the success of environmental regulations; and (3) ensuring
that the public has easy access to these data on releases of toxic
chemicals to the environment. EPA has considered these purposes when
exercising its broad discretion to add particular industries to the
EPCRA section 313 reporting program.

B. Interpretation of Statutory Criteria

As discussed in Unit III.A. of this preamble, the Conference Report on
EPCRA section 313 provides guidance on EPA's authority to add industry

[[Page 33594]]

groups to those industry groups that, ``like facilities within the
manufacturing sector SIC codes 20 through 39, manufacture, process or
use toxic chemicals in a manner such that reporting by these
facilities is relevant to the purposes this section'' (Conference
Report, p. 5108). For purposes of this rulemaking, which is EPA's
first use of section 313(b)(1)(B), EPA has identified three primary
factors that the Agency considers as reasonable decision criteria for
adding facilities in industry groups under EPCRA section 313(b)(1)(B).
The three primary factors identified by EPA are the following: (1)
Whether one or more toxic chemicals are reasonably anticipated to be
present at facilities within the candidate industry group
(``chemical'' factor), (2) whether facilities within the candidate
industry group manufacture, process, or otherwise use these toxic
chemicals (``activity'' factor), and (3) whether facilities within the
candidate industry group could reasonably be anticipated to increase
the information made available pursuant to EPCRA section 313, or
otherwise further the purposes of EPCRA section 313 (``information''
factor).
EPA believes that each of these three primary factors is important in
adding industry groups (referenced by SIC code) to EPCRA section
313(b)(1) because each will help ensure that adding the industry
groups will further the purposes of EPCRA section 313. Namely, each of
these primary factors ensures that EPA will be able to provide the
public with easy access to more complete information concerning toxic
chemical releases and other waste management data. This more complete
picture also will allow EPA, other Federal, state, and local
governments, regulated entities, and the public to measure the success
of regulatory and voluntary environmental initiatives. Therefore, EPA
believes that these decision criteria are relevant to the purposes of
the statute and are appropriate to use in making listing
determinations pursuant to EPCRA section 313(b)(1)(B).
A general discussion of each primary factor is included below, and a
more detailed discussion of how each primary factor was applied to
each industry group proposed for listing can be found in Unit V. of
this preamble. EPA is requesting comment on the use of these decision
factors for the EPCRA section 313 program.
 1. Whether one or more listed toxic chemicals are reasonably
    anticipated to be present at facilities within the candidate
    industry group (``Chemical'' Factor). In addressing whether the
    chemical factor is met, EPA will consider evidence indicating that
    facilities within an industry group are reasonably anticipated to
    have involvement with one or more EPCRA section 313 listed toxic
    chemicals as part of its routine operations. Association with
    section 313 listed toxic chemicals suggests that facilities within
    industry groups should be covered under EPCRA section 313, given
    the purpose of EPCRA section 313 is to provide information to the
    public about toxic chemicals in their communities.
 2. Whether facilities within the candidate industry group
    manufacture, process, or otherwise use EPCRA section 313 listed
    toxic chemicals (``Activity'' Factor). In addressing the
    ``activity'' factor, EPA will consider evidence indicating that
    facilities within the candidate industry group manufacture,
    process, or otherwise use one or more EPCRA section 313 listed
    toxic chemicals. This ``activity'' factor relates directly to the
    manner in which EPCRA section 313 listed chemicals are managed. To
    make this determination, EPA will use the EPCRA section 313
    statutory definitions of manufacturing and processing. In
    addition, for purposes of determining whether facilities within a
    candidate SIC code otherwise use a toxic chemical, EPA will
    consult its regulatory definition and guidance for ``otherwise
    use.'' For this rulemaking, EPA examined whether its current
    guidance on ``otherwise use,'' which was developed for the
    manufacturing sector in SIC codes 20 through 39, is appropriate
    for facilities in industry groups outside SIC codes 20 through 39.
    Based on this review and other considerations, the Agency is
    planning to modify its interpretation of ``otherwise use'' to
    include disposal, stabilization, and treatment for destruction.
    See Unit IV. of this preamble for a more detailed discussion of
    ``otherwise use.''
 3. Whether facilities within the candidate industry group could
    reasonably be anticipated to increase the information made
    available pursuant to EPCRA section 313, or otherwise further the
    purposes of EPCRA section 313 (``Information'' Factor). In
    addressing the ``information'' factor, EPA will consider any
    information that bears on whether reporting by facilities within
    the candidate industry group could reasonably be anticipated to
    increase the information made available pursuant to EPCRA section
    313, or otherwise further the purposes of EPCRA section 313. The
    information considered for any specific industry group will
    necessarily vary from industry group to industry group based on
    the nature of the industry group and what relevant information is
    available. Under this factor, EPA may consider information
    relating to, but not limited to, one or more of the following
    topics: (1) Whether the addition of the candidate industry group
    will lead to reporting by facilities within that candidate
    industry group (e.g., whether facilities within the candidate
    industry group will conduct activities which exceed the reporting
    thresholds in section 313(f)); (2) whether facilities within the
    candidate industry group are likely to be subject to an existing
    statutory or regulatory exemption from the requirement to file a
    Form R; (3) whether submitted Form R reports from that industry
    group could be expected to contain release and waste management
    data; or (4) whether a significant portion of the facilities in
    the industry group would be expected to file a Toxic Chemical
    Release Inventory Certification Statement (see 59 FR 61488,
    November 30, 1994).
    EPA believes that the above three primary factors may be addressed
    by evaluating data collected by EPA or other government agencies
    (e.g., National Institute of Occupational Safety and Health
    (NIOSH) and Occupational Safety and Health Administration (OSHA)),
    as well as information provided by facilities through case
    studies, surveys, or site visits; facility records or operation
    plans; information on materials in commerce; or common practices
    as found in the literature, such as trade journals and industry
    reports; or other available sources. Some of the pertinent EPA
    data systems include the Aerometric Information Retrieval System
    (AIRS, collected under the Clean Air Act), the Permit Compliance
    System (PCS, collected under the Clean Water Act), and the
    Biennial Report System (BRS, collected under the Resource
    Conservation and Recovery Act). While EPA cannot use these data to
    estimate likely TRI releases and other waste management volumes,
    EPA can and has used information from these and other sources,
    such as those listed above, to assist in identifying appropriate
    candidates. In the absence of any such data, EPA will rely on
    other relevant sources of data.
    For example, during EPA's evaluation of the electric services
    industry group (SIC code 4911), 40 million pounds of releases or
    waste volumes were identified in BRS, 31 million pounds in AFS,
    and 15 million pounds in PCS. EPA does not believe that this
    information can be used to predict TRI data or that it is an
    adequate substitute for TRI data; however, EPA did use this
    
[[Page 33595]]

information to identify the electric services industry group as a
candidate for inclusion in this proposed rule. See Appendix B:
Routinely Reported Information - Chemical Detail (Ref. 8), for similar
information on other candidate industry groups. EPA recognizes that
different industry groups may be regulated under different statutory
and regulatory regimes. An industry may have very limited regulatory
requirements that require their reporting of chemical uses and
management practices, for example, and, therefore, this industry would
not be represented in some data sources. This often leads to different
amounts and types of information being available to the Agency from
these sources. Thus, EPA recognizes that in some cases the available
data from these sources may not reflect an industry's actual
involvement with section 313 chemicals. For those industry groups for
which such information is limited, EPA believes that it is appropriate
to rely more heavily on sources of data other than regulatory sources.
EPA requests comment on other sources of appropriate information.

IV. Clarification of Threshold Activities

A. Statutory Background

Only facilities that exceed certain chemical activity thresholds (and
that meet the SIC code and employee threshold criteria) are required
to report under EPCRA section 313. These thresholds are detailed in
section 313(f)(1) of EPCRA:

The threshold amounts for purposes of reporting toxic chemicals under
this section are as follows:
(A) With respect to a toxic chemical used at a facility, 10,000 pounds
of the toxic chemical per year.
(B) With respect to a toxic chemical manufactured or processed at a
facility--
  * * *
    (iii) For the form required to be submitted on or before July 1,
    1990, and for each form thereafter, 25,000 pounds of the toxic
    chemical per year. EPCRA 313(f)(1), (emphases added). In addition
    to the reporting thresholds specifically listed in EPCRA section
    313(f)(1), EPA has established an alternate threshold for
    facilities with low reportable releases and wastes under section
    313(f)(2).
    
EPCRA section 313 defines ``manufacture'' and ``process''; however,
the statute does not specifically define ``use'' or ``otherwise use.''
The only limitation Congress placed on what activities could be
considered ``use'' are those chemical activities that are exempt from
EPCRA section 313 reporting as provided in EPCRA section 327. These
exempted activities relate to the ``transportation, including the
storage incident to such transportation, of any substance or chemical
subject to the requirements including the transportation and
distribution of natural gas.''
Because the statutory language does not include a specific definition
of ``use,'' EPA has looked to other sources for guidance in
formulating the Agency's interpretation of the term. The dictionary
definitions of ``use'' are so encompassing that they can be argued to
cover nearly any activity impacting a toxic chemical. For example, the
Random House College Dictionary, Revised Edition (1982) includes a
broad range of definitions of the term, including ``to employ for some
purpose,'' ``to expend or consume in use,'' and ``to consume
entirely.'' Given the breadth in these definitions, EPA's
interpretation of what might be ``otherwise use'' activities could
capture a significant range of activities impacting a toxic chemical
subject to the relevant purposes of EPCRA section 313. Thus to
determine the appropriate scope of this definition, EPA has considered
Congress' stated purposes for enacting EPCRA section 313 as found in
the statutory language and the legislative history. As discussed in
Unit II.A. of this preamble, Congress wanted the reporting
requirements of EPCRA section 313 to be applied broadly, and to
provide the greatest amount of information to the public and federal,
state, and local governments. In furtherance of this goal, Congress
recognized that EPA may need to add chemicals and industry groups to
the chemicals and industry groups originally listed in EPCRA section
313 to provide more complete chemical and facility profiles important
to the local public and for local decision making. Moreover, Congress
found information on chemical management activities relevant to the
needs of local communities in requiring that reporting include, for
example, information on waste streams and how they are handled. See,
e.g., 42 U.S.C. 11023(g). Given the primary goal of providing
information to the public on listed toxic chemicals present, released,
and managed in communities, EPA does not believe that it is reasonable
to conclude that Congress would intend any provision of EPCRA section
313 to be interpreted to significantly limit the information available
to the public. Because interpreting the definition of ``use'' narrowly
can have the unintended impact of limiting the amount and kind of
information readily available to local communities, EPA believes that
the term ``otherwise use'' should be interpreted broadly. Consistent
with this belief, EPA promulgated the broad definition of ``otherwise
use or use'' in 40 CFR 372.3.

B. Regulatory Background

In 1988, to address the lack of a statutory definition, EPA
promulgated a definition of ``otherwise use'' in the regulations
implementing EPCRA section 313:

Otherwise use or use means any use of a toxic chemical that is not
covered by the terms manufacture or process and includes use of a
toxic chemical contained in a mixture or trade name product.
Relabeling or redistributing a container of a toxic chemical where no
repackaging of the toxic chemical occurs does not constitute use or
processing of the toxic chemical (53 FR 4525, February 16, 1988).
However, in the preamble to the final rule, EPA distinguished its
interpretation of ``otherwise use'' from ``processing'' by stating
that ``otherwise use'' involves a non-incorporative activity.

EPA is interpreting otherwise using a [listed] toxic chemical to be
activities that support, promote, or contribute to the facility's
activities, where the chemical does not intentionally become part of a
product distributed in commerce. (53 FR 4506.)

EPA also recognized that it was appropriate to place some limitations
on those quantities of toxic chemicals that should be included in a
facility's threshold calculations. These exemptions were based on
review of comments and questions received on the proposed rule and in
workshops held prior to the publication of the final rule. The
following uses of chemicals are currently exempt from section 313
threshold determinations and from the EPCRA section 313 reporting
requirements. (40 CFR 372.38; 53 FR 4528, February 16, 1988). (1) Use
as a structural component of the facility. This type of use refers to
materials containing listed section 313 chemicals that may be present
at a facility but that are not involved in the processes conducted by
the facility for purposes of their chemical properties. An example of
this type of case is use of copper in copper pipes. EPA believes this
type of activity is an ancillary use of copper which would not add to
the purposes served by providing information to the public.
(2) Use of products for routine janitorial or facility grounds
maintenance. Examples include uses of janitorial cleaning supplies,
fertilizers, and pesticides similar in type or concentration to
consumer products.

[[Page 33596]]

EPA believes that these types of chemical uses are incidental to the
function of the facility. While grounds maintenance may be seen as a
contributing activity to the facility overall, it is not a necessary
action that promotes the function or purpose of the facility. (3)
Personal uses by employees or other persons at the facility of foods,
drugs, cosmetics, or other personal items containing toxic chemicals,
including supplies of such products within the facility such as in a
facility-operated cafeteria, store, or infirmary. (4) Use of products
containing toxic chemicals for the purpose of maintaining motor
vehicles operated by the facility. For similar reasons provided for
the janitorial and facility grounds maintenance exemption, the use of
materials containing listed section 313 chemicals for the purpose of
maintaining motor vehicles is believed by EPA to be an incidental
chemical use relative to the overall function of facilities currently
covered under section 313. (5) Use of toxic chemicals present in
process water as drawn from the environment or from municipal sources
or toxic chemicals present in air used either as compressed air or as
part of combustion. While air and water may be necessary ingredients
in particular manufacturing or processing activities, EPA determined
that the generally small quantities of listed section 313 chemicals
that each may contain would not be reportable. EPA established this
exemption both to reduce the burden on the reporting industry and to
have industry focus on those quantities of toxic chemicals over which
they exercise some control. (6) Uses of articles. The inclusion of the
article exemption was for the expressed purpose of exempting articles
that contain listed toxic chemicals from threshold and reporting
determinations. EPA determined that it is appropriate to exempt
chemicals that are contained in articles as defined by a modification
of the definition in the OSHA Hazard Communication Standard (HCS). The
HCS places a condition on the use of things classified as articles
such that when they are used they do not result in any section 313
listed chemical releases. EPA has further modified the OSHA HCS
definition such that any use or processing of the articles that
results in releases makes the activity ineligible for the exemption.
(7) Use of toxic chemicals in certain laboratory activities. This
exemption allows the exclusion of amounts of chemicals from threshold
calculations that are manufactured, processed or otherwise used in
laboratory activities conducted under the supervision of a technically
qualified individual. This exemption was provided in part to be
consistent with other sections of EPCRA, specifically sections 311 and
312, as well as the OSHA HCS. EPA limited this exemption to
nonspecialty chemical production laboratories and non-pilot plant
scale operations. EPA expressed some concerns over the releases of
chemicals from exempted laboratory activities in the final rule and
stated that the Agency would review these types of facilities for
potential future coverage.
At this time, EPA is not proposing a change to any of the exemptions
listed above. EPA may, however, reconsider the application of these
exemptions in the future. (For additional information on these
exemptions contact the EPCRA Hotline at the telephone number or
address listed in the FOR FURTHER INFORMATION CONTACT unit of this
document.) The exemptions promulgated by EPA to date are intended to
exclude from threshold and reporting calculations those activities
that are not principal to the primary function of the facility. The
exemptions were provided to allow facilities to focus on those
chemical management activities that support, promote, or significantly
contribute to the primary purpose of the facility. EPA believes that
these activities are ones over which the facility has primary control.

C. Current ``Otherwise Use'' Interpretive Guidance

EPCRA section 313 reporting guidance has been developed to assist
covered facilities in complying with section 313. This reporting
guidance has been provided to reporting facilities as responses to
questions to EPA's EPCRA Hotline, as response to letters from subject
facilities, and distribution of a ``Question and Answer'' document.
For some reference to these other sources of information on
``otherwise use'' see the document EPCRA Section 313 Otherwise Use
Activities (Ref. 21).
Given that the original section 313 facilities list was limited to
those facilities which principally operate in the manufacturing
sector, the reporting guidance was tailored to address the principal
activities conducted by manufacturing facilities. In particular,
facilities were instructed not to consider amounts of chemicals
treated or disposed in calculating ``otherwise use'' reporting
thresholds. Although current guidance instructs facilities to include
the amounts of listed chemicals released during treatment or disposal
in a facility's release and waste management estimates (assuming that
the facility exceeds a manufacture, process, or otherwise use
threshold for the chemical elsewhere at the facility), current
guidance instructs facilities not to include the amounts treated or
disposed toward the ``manufacture,'' ``process,'' or ``otherwise use''
threshold. Current guidance was not based on an evaluation of
activities actually conducted by manufacturing facilities, but instead
was conceived with the mind that the industrial classification system
places facilities primarily engaged in waste treatment and disposal
activities outside the manufacturing sector, and therefore, were not
subject to the original EPCRA section 313 requirements.

D. Proposed Changes to Interpretive Guidance

As the focus of EPCRA section 313 expands to include industry groups
whose primary activities are similar to or support manufacturing
either as inputs (e.g., energy) or outputs (e.g., waste treatment),
EPA reconsidered its interpretive guidance on otherwise use for
facilities within SIC code 20 through 39, and facilities within the
industry groups being proposed. EPA is concerned that, based on
current guidance, the public may not have access to information
relating to releases of toxic chemicals from facilities within SIC
codes 20 through 39 that are receiving materials for the purposes of
treatment for destruction, stabilization, or disposal. As a result,
EPA believes that it is appropriate to develop guidance addressing
this concern. Further, EPA believes it is appropriate to develop
guidance that is consistent with the primary activities conducted by
facilities within the candidate industry groups. Therefore, EPA is
modifying its interpretation of activities considered ``otherwise
used'' as it applies to activity thresholds under section 313 to
include treatment for destruction, disposal, and waste stabilization
(hereafter referred to as ``stabilization'') when the EPCRA section
313 facility engaged in these activities receives materials containing
any chemical (not limited to EPCRA section 313 listed toxic chemicals)
from one or more other facilities (regardless of whether the
generating and receiving facilities have common ownership) for the
purposes of further waste management activities.
EPA interprets waste stabilization consistent with the definition at
40 CFR 265.1081, except that for purposes of EPCRA section 313 the
definition

[[Page 33597]]

should be interpreted to apply to any EPCRA section 313 listed toxic
chemical or waste containing any EPCRA section 313 listed toxic
chemical. A synonym for waste stabilization is waste solidification.
EPA interprets ``treatment for destruction'' to mean the destruction
of the toxic chemical such that the substance is no longer a toxic
chemical subject to reporting under EPCRA section 313. Also, for
purposes of the EPCRA section 313 ``otherwise use'' reporting
threshold, disposal would include underground injection, placement in
landfills/surface impoundments, land treatment, or other intentional
land disposal. See ``Toxic Chemical Release Inventory Reporting
Instructions'' (1995 version) at p. 35 for a list of activities to be
reported under ``Transfers Off-site for Purposes of Disposal.'' The
following are four examples of this revised interpretation. Example 1:
For example, a facility receives a material containing 22,000 pounds
of chemical ``A.'' Chemical ``A'' is an EPCRA section 313 listed toxic
chemical. The facility treats for destruction chemical ``A.'' Included
among the various activities covered by EPA's revised interpretation
of ``otherwise use'' is the ``treatment for destruction'' of a toxic
chemical received by the facility from offsite. Because the facility
received and treated for destruction chemical ``A,'' the amount of
chemical ``A'' treated for destruction would be included in the
calculation of the amount of chemical ``A'' ``otherwise used'' at the
facility. In this case, 22,000 pounds of chemical ``A'' would be
considered ``otherwise used.'' Thus, because the facility ``otherwise
used'' chemical ``A'' above the 10,000 pound statutory threshold for
``otherwise use,'' the facility would be required to report all
releases of, and management activities involving, chemical ``A.''
Example 2: Assume now that the same facility, in treating for
destruction chemical ``A,'' manufactures 11,000 pounds of chemical
``B.'' Chemical ``B'' is also an EPCRA section 313 listed toxic
chemical. This manufacture of chemical ``B'' is below the
``manufacturing'' reporting threshold. However, the facility disposes
of chemical ``B'' on-site. Included among the various activities
covered by EPA's revised interpretation of ``otherwise use'' is the
disposal of a toxic chemical that is produced from the management of a
waste that is received by the facility. In this example, because the
facility received from off-site a material containing a chemical that
is treated for destruction (i.e., chemical ``A'') and during that
treatment produced and subsequently disposed of chemical ``B,'' the
disposal of chemical ``B'' under EPA's revised interpretation would be
considered ``otherwise used.'' Because the facility disposed of, or
otherwise used, 11,000 pounds of chemical ``B,'' the 10,000 pound
statutory threshold for ``otherwise use'' is met. Thus, the facility
would need to report all releases of, and management activity
involving, chemical ``B.''
Example 3: As another example, a facility produces on-site a material
containing 22,000 pounds of chemical ``C.'' Chemical ``C'' is not an
EPCRA section 313 listed toxic chemical. Also, chemical ``C'' was not
manufactured as a result of managing a waste received from offsite.
The facility treats for destruction chemical ``C'' and during
treatment manufactures 11,000 pounds of chemical ``D.'' Chemical ``D''
is an EPCRA section 313 listed toxic chemical. The facility
subsequently disposes of chemical ``D.'' In this example, although the
facility disposes of chemical ``D,'' the 11,000 pounds of chemical
``D'' is not considered ``otherwise used'' under EPA's revised
interpretation because the material from which chemical ``D'' is
produced (i.e., the material containing the 22,000 pounds of chemical
``C'') was not received by the facility from off-site. Thus, in
disposing of chemical ``D,'' the facility does not exceed the 10,000
pound statutory threshold for ``otherwise use.'' Example 4: However,
based on Example 3, if chemical ``C'' were received from off-site or
was created in waste management activities conducted on materials
received from off-site, the disposal of chemical ``D'' would be
considered an ``otherwise use'' activity involving chemical ``D.''
Therefore, the disposal of the 11,000 pounds of chemical ``D'' would
exceed the 10,000 pound statutory threshold for ``otherwise use,'' and
the facility would need to report all releases and management
activities involving, chemical ``D.'' EPA requests comment on its
revised interpretation as explained by these examples.
EPA believes that this modified interpretation of ``otherwise use''
better serves the purposes of providing communities with information
that assists them in making decisions. EPA believes that these waste
management activities represent activities that generate, use, and are
the source of significant releases of listed toxic chemicals. Thus,
EPA believes that current guidance, which allows amounts of listed
chemicals that are disposed, stabilized, or treated for destruction to
be reported only when the chemical exceeds thresholds elsewhere at the
facility, potentially excludes from reporting a large amount of listed
chemicals managed at certain facilities. In addition, this
modification of the interpretation of ``otherwise use'' is consistent
with EPA's approach for interpreting ``manufacture.'' For example,
EPA's regulatory definition of ``manufacture'' and current guidance
includes as ``manufacturing'' the amount of a listed toxic chemical
that is coincidentally manufactured during waste treatment or disposal
by the facility (40 CFR 372.3). Therefore, the amounts of these
chemicals must be counted toward the manufacturing threshold. Further,
assuming that the manufacturing threshold is met under EPCRA section
313, the facility must report the amount of that manufactured chemical
that is released or otherwise managed as waste. EPA believes that
modifying the interpretation of ``otherwise use'' to include
activities such as treatment for destruction, stabilization, and
disposal makes that definition more consistent with EPA's guidance on
calculating manufacturing thresholds. Finally, EPA believes that
current guidance that omits amounts disposed, stabilized, or treated
for destruction is inconsistent with the spirit of EPCRA when applied
to the additional facilities proposed for listing in this action.
Excluding such activities from the interpretation of ``otherwise use''
would prevent the dissemination of information deemed useful in
serving the public's interest and the purposes of section 313.
Because EPA believes that most facilities in SIC codes 20 through 39
dispose or treat only waste that was already manufactured, processed,
or otherwise used at their facility, the Agency does not believe that
this change in guidance will affect the EPCRA section 313 reporting
status of a significant number of facilities within the manufacturing
sector. There is one category of facilities in the manufacturing
sector that could be affected by this revised guidance. Specifically,
it could affect those facilities in the manufacturing sector that
receive wastes from other facilities and manage those wastes through
treatment or disposal. Under the revised guidance, the quantity of
EPCRA section 313 listed toxic chemicals that undergo these activities
must be included in the ``otherwise use'' threshold, whereas currently
such facilities are instructed to exclude from the ``otherwise use''
threshold determination the quantity of

[[Page 33598]]

the toxic chemical treated for destruction, stabilized, or disposed.
EPA requests comment on its revised interpretation of ``otherwise
use.'' EPA also requests comment on the number of facilities within
the manufacturing sector that would be affected by this revised
interpretation.
An alternative to modifying the scope of ``otherwise use'' through
reporting guidance is amending the regulatory definition of
``otherwise use'' or ``use'' consistent with this modified approach.
As noted above, the current regulatory definition of ``otherwise use''
is very broad and covers EPA's revised interpretation. While EPA does
not believe a change in the regulatory definition is necessary to
clarify its interpretation, EPA is requesting comment on whether it
should amend the regulatory text to make clear this revision. The
regulatory definition would read as follows:

Otherwise use or use means any use of a toxic chemical that is not
covered by the terms ``manufacture'' or ``process'', and includes
treatment for destruction, stabilization (without subsequent
distribution in commerce), disposal, and other use of a toxic
chemical, including a toxic chemical contained in a mixture or trade
name product. Except that
(1) Facilities engaged in treatment for destruction, stabilization, or
disposal are not using a toxic chemical in these activities unless the
facility receives materials from other facilities for purposes of
further waste management activities. (2) Relabeling or redistributing
a container of a toxic chemical where no repackaging of the toxic
chemical occurs does not constitute use of the toxic chemical.

EPA requests comment on whether the regulatory definition of
``otherwise use'' should be amended.
An alternative interpretation is including in the definition of
``otherwise use'' all disposal, treatment for destruction, and
stabilization, regardless of whether the facility receives materials
from off-site for the purposes of treatment for destruction,
stabilization, or disposal. This alternative approach may affect those
facilities that manufacture or process a listed chemical below the
25,000 pound threshold, but that treat or dispose of more than 10,000
pounds of that chemical; the disposal is the activity that would cause
the facility to exceed the otherwise use threshold. The Agency
requests comment on the number of facilities in this category that may
be affected by this alternate approach for modifying EPA's guidance,
and or whether this alternative interpretation and whether it would
better serve the purposes of EPCRA section 313.

E. Relationship Among Manufacture, Process, and Otherwise Use

EPA believes that the revised interpretation and change in reporting
guidance is consistent with the general focus of section 313 on the
collection and dissemination of information relating to the activities
involving toxic chemicals in a community. Further, EPA believes that
toxic chemicals that are disposed, stabilized, or treated for
destruction are more appropriately considered otherwise used, as
opposed to manufactured or processed.
Under EPCRA section 313, ``manufacture'' means to produce, prepare,
import, or compound a chemical listed under section 313, including
coincidental production of a toxic chemical. Thus, disposal,
stabilization, or treatment for destruction of a toxic chemical,
whether or not it was produced at the facility, is not appropriately
considered manufactured.
EPCRA section 313 defines ``process'' as ``the preparation of a toxic
chemical, after its manufacture, for distribution in commerce- (I) in
the same form or physical state as, or in a different form or physical
state from, that in which it was received by the person so preparing
such chemical, or (II) as part of any article containing the toxic
chemical.'' Although the act of treatment of a chemical contained in a
waste may closely relate to many of the activities described by the
processing definition, the statute provides a limitation that the
chemical be incorporated into a product that is further distributed in
commerce. In a case where a facility receives a chemical that is
contained in a ``waste,'' and the facility recovers the chemical from
the ``waste'' and distributes the chemical in commerce, EPA believes
the facility is processing the chemical. In a case where a facility
receives a waste containing a toxic chemical and disposes or treats
for destruction the toxic chemical on-site, EPA does not believe the
facility is processing the toxic chemical because the toxic chemical
is not distributed in commerce. EPA requests comment on the
relationship of ``manufacture,'' ``process,'' and EPA's revised
interpretation of ``otherwise use.''
EPA requests comment on all aspects of the Agency's broadening of the
concept of ``otherwise use.''

V. EPA's Technical Review

A. Introduction

Data on the candidate industry groups were reviewed for evidence
indicating whether EPCRA section 313 listed toxic chemicals are
present at facilities within that industry group, whether facilities
within that industry group manufacture, process, or otherwise use
listed toxic chemicals, and whether listing facilities within that
industry group could reasonably be anticipated to increase the
available information on TRI.
For each industry group proposed for addition to EPCRA section 313 in
this rulemaking, EPA conducted an extensive assessment. Only after
this careful review was a final determination made as to whether to
propose to list the industry group pursuant to EPCRA section
313(b)(1)(B). The information summarized below for each industry group
describes the key data elements upon which EPA relied to determine
that the addition of the facility sector is relevant to the purposes
of EPCRA section 313 pursuant to section 313(b)(1)(B) criteria. A more
extensive review of the existing data base for each industry group
proposed for listing, which reflects the entire weight-of-the-evidence
considered by EPA, is contained in the following support documents and
in the record supporting this proposed rulemaking: ``SIC Code Profile
10: Metal Mining'' (Ref. 6); ``SIC Code Profile 12: Coal Mining''
(Ref. 7); ``SIC Code Profile 49: Electric, Gas, and Sanitary
Services'' (Ref. 8); ``SIC Code Profile 51: Wholesale Trade -
Nondurable Goods'' (Ref. 9); ``SIC Code Profile 73: Business
Services'' (Ref. 10); and ``Economic Analysis of the Proposed Rule to
Add Certain Industries to EPCRA Section 313'' (Ref. 20). These
documents contain a complete list of the references that were used in
support of these proposed additions. Each industry group is identified
by facility sector name and SIC code.
EPA requests comment on the industry groups proposed for addition. In
addition, EPA requests comment on any issues that may be specific to
any of the individual industry groups.

B. Chemicals and Allied Products - Wholesale

EPA is proposing to require facilities operating in SIC code 5169,
Wholesale Nondurable Goods--Chemicals and Allied Products, Not
Elsewhere Classified (hereafter ``Chemicals and Allied Products''), be
subject to EPCRA section 313. Facilities within this industry group
receive EPCRA section 313 chemicals in bulk, take possession of those
chemicals and reformulate, introduce chemical additives, or repackage
materials containing section 313 chemicals. These activities fall
within the statutory definition of ``process,'' and are currently
being reported by facilities operating in the manufacturing sector.

[[Page 33599]]
 1. Description of industry. Facilities operating in SIC code 5169,
    Wholesale Nondurable Goods--Chemicals and Allied Products, not
    elsewhere classified, consists of facilities engaged primarily in
    the consolidation of a variety of bulk chemicals and packaged
    products prior to their distribution to a variety of destinations
    including retailers, other wholesale facilities, and in some cases
    to manufacturing facilities for industrial use or for product
    formulation. Goods managed by facilities in the Chemicals and
    Allied Products industry group may include any of a number of
    EPCRA section 313 listed chemicals.
 2. Summary of evaluation. Based on EPA's evaluation of this industry,
    the Agency believes that reformulation and repackaging activities
    conducted by facilities in the Chemicals and Allied Products
    industry group routinely involve the manufacture, processing, or
    otherwise use of EPCRA section 313 chemicals and that the
    facilities within this industry group are likely to report
    information relevant to the purposes of EPCRA section 313. The
    present determination is consistent with current reporting
    guidance, and the application of existing thresholds and
    exemptions under EPCRA section 313. The Agency anticipates
    reporting of releases and other waste management information from
    facilities operating in SIC code 5169.
 3. Chemicals associated with the Chemicals and Allied Products
    industry group. Facilities classified in the Chemicals and Allied
    Products industry group, are involved in the wholesale
    distribution and management of a variety of chemicals from such
    industrial chemical categories as alkalines and chlorine,
    industrial gases, specialty cleaning and sanitation preparations,
    noncorrosive products and materials, and industrial salts and
    polishes. Included within these industrial chemical categories are
    such specific EPCRA section 313 chemicals as chlorine, sodium
    cyanide, formaldehyde, and methyl ethyl ketone to name a few
    (Refs. 1 and 3). EPA's analysis has identified several EPCRA
    section 313 listed toxic chemicals that are commonly managed by
    facilities operating in the Chemicals and Allied Products industry
    group (Ref. 20). Based on this finding, EPA believes that a strong
    indication exists that those facilities classified in the
    Chemicals and Allied Products industry group are involved with
    EPCRA section 313 listed toxic chemicals on a routine basis.
 4. Manufacture, process, or otherwise use activities involving EPCRA
    section 313 chemicals. Some of the facilities within the Chemicals
    and Allied Products industry group are involved in the preparation
    of EPCRA section 313 listed toxic chemicals, or mixtures
    containing EPCRA section 313 listed toxic chemicals, after their
    manufacture, for distribution in commerce. The type of preparation
    activities conducted by facilities classified in the Chemicals and
    Allied Products industry group include reformulation and or
    repackaging prior to being distributed.
    
For example, a facility may purchase and distribute organic chemicals,
which are mostly liquids and many of which may be EPCRA section 313
listed toxic chemicals. The chemicals are transferred into various
size containers for resale. In addition to any material losses during
the transfer, some toxic chemical wastes may be generated as pumps and
hoses are flushed. As another example, a facility may routinely blend
chemicals (many of which may be EPCRA section 313 listed toxic
chemicals) to formulate, for example, lacquer thinner for autobody
shops. Some facilities may routinely handle 27 or more EPCRA section
313 listed toxic chemicals.

EPA believes that these types of preparation activities of EPCRA
section 313 listed toxic chemicals clearly fit within the statutory
definition of process and would constitute a reportable activity under
EPCRA section 313. EPA believes that those facilities whose management
of EPCRA section 313 chemicals is limited to the receipt and
distribution of products containing EPCRA section 313 listed toxic
chemicals without the products being reformulated or repackaged would
not be required to submit Form R reports for these chemicals because
these activities do not meet the definition of manufacture, process,
or otherwise use. Also, EPA does not believe that the limited act of
storage of a chemical constitutes a reportable activity under EPCRA
section 313.
5. Types of information anticipated. Based on EPA's analysis, releases
and other waste management information resulting from the
reformulation and repackaging of EPCRA section 313 chemicals and
products containing section 313 chemicals are anticipated. Reports are
expected for formaldehyde, methyl ethyl ketone, and methanol. As
discussed below, facilities in this industry group engage in many of
the same activities as facilities in SIC codes 20 through 39.
Therefore, it is reasonable to believe that these similar activities
would result in similar types of release and waste management
information. For example, while releases can and do occur from
accidents, inadequate storage procedures, or damages during transport,
EPA is not proposing the inclusion of this industry based solely on
these activities (Ref. 3).
Based on data required by the Massachusetts Toxic Use Reduction Act,
which requests similar information to that required under EPCRA
section 313, evidence suggests that facilities operating within the
Chemicals and Allied Products industry group will report on a number
of EPCRA section 313 chemicals (Ref. 3). Based on these data, it
appears that these facilities will report primarily on releases to air
of volatile compounds likely originating from reformulation and
repackaging activities. Based on the Massachusetts data, 8 facilities
reported a primary SIC code of 5169 and submitted a total of 50
reports that were also EPCRA section 313 chemicals. These 8 facilities
reported an average of 6.25 reports per facility as compared to the
average number of reports for currently listed manufacturing
facilities of 3.7. The total releases reported were approximately
75,450 pounds for 17 listed chemicals. The median facility release to
air was approximately 3,180 pounds of listed toxic chemicals (Ref. 3).
EPA estimates that reporting under EPCRA section 313 from this
industry may result in 8,354 Form R reports and 2,785 Toxic Chemical
Release Certification Statements annually submitted by 782 facilities.
This number of facilities estimated to report represents 9 percent of
all industries facilities within this industry group. 6. Reporting
considerations. Some facilities, which are primarily classified as
manufacturers (SIC codes 20 through 39) but that also warehouse and
distribute their products, are currently reporting release and waste
management information associated with these activities that are
similar to those conducted by facilities whose primary classification
is in SIC code 5169. EPA believes that facilities operating in the
Chemicals and Allied Products industry group (SIC code 5169) that are
engaged in the manufacture, process, or otherwise use of EPCRA section
313 listed toxic chemicals above reporting thresholds should also be
required to inform the public about releases and other waste
management activities of EPCRA section 313 listed toxic chemicals.
EPA estimates the potential costs for reporting for the first year by
this industry group to be $51.5 million and $33.5 million in
subsequent years.
7. Conclusion. For the reasons identified above, EPA believes that
facilities in the Chemicals and Allied Products industry group in SIC
code 5169 satisfy the requirements of EPCRA

[[Page 33600]]

section 313(b)(1)(B) because EPA believes that reporting for this
industry group is relevant for the purposes of EPCRA section 313.
Accordingly, EPA proposes to add this industry group to the list of
industry groups required to report pursuant to EPCRA section 313 and
the PPA section 6607.

C. Petroleum Bulk Stations and Terminals - Wholesale

EPA is proposing to require petroleum bulk stations and terminals in
SIC code 5171 to report under EPCRA section 313. This industry group
includes facilities that receive petroleum products and petroleum
additives that contain EPCRA section 313 chemicals, take possession of
those chemicals and reformulate the products and/or repackage those
petroleum products prior to their distribution in commerce.
 1. Description of industry. The petroleum industry maintains many
    bulk stations and terminals that manage a variety of refined
    petroleum products. The types of petroleum products managed by
    these facilities include crude oil, motor gasoline, diesel,
    heating fuel, aviation jet fuel, asphalt, and liquid petroleum
    hydrocarbons. The primary functions of these facilities include
    storage, mixing, blending, distribution, and sale of refined
    petroleum products (Ref. 9).
 2. Summary of evaluation. Based on EPA's evaluation of this industry,
    the Agency believes that the mixing, blending, repackaging, and
    preparation activities conducted by facilities in the petroleum
    bulk stations and terminals industry routinely involve the
    manufacture, process, or otherwise use of EPCRA section 313 listed
    toxic chemicals and that facilities within this industry group are
    likely to report information relevant to the purposes of EPCRA
    section 313. The present determination is consistent with current
    reporting guidance, and the application of existing thresholds and
    exemptions under EPCRA section
 3. EPA anticipates reporting of releases and other waste management
    information from facilities in this industry group.
 4. Chemicals associated with the industry. Bulk petroleum terminals
    principally manage refined petroleum products prior to their
    distribution in commerce. The types of petroleum products managed
    by bulk terminals are likely to include one or more EPCRA section
    313 chemicals. Based on EPA's analysis, EPCRA section 313 listed
    toxic chemicals in gasoline managed by bulk terminals that are
    likely to be present include benzene, cyclohexane, ethyl benzene,
    toluene, 1,2,4- trimethylbenzene, and xylene. Section 313
    chemicals present in crude oil, No. 2 fuel oil, diesel and No. 6
    fuel oil include benzene, phenanthrene, and benz(a)anthracene
    (Refs. 9 and 20).
 5. Manufacture, process, or otherwise use activities involving EPCRA
    section 313 chemicals. Bulk petroleum terminals serve as an
    intermediate point in the commerce cycle of the petroleum
    industry. Based on EPA's analysis, facilities operating in SIC
    5171 take possession of refined petroleum products and perform
    mixing, blending, and reformulation activities prior to their
    distribution in commerce. EPA believes that the mixing, blending,
    and reformulation activities, of petroleum products containing
    EPCRA section 313 listed toxic chemicals, prior to their
    distribution in commerce clearly fits within the EPCRA section 313
    statutory definition of processing. Facilities in this industry
    group may also introduce petroleum additives in order to
    reformulate the product prior to distribution. This activity
    involves the intentional incorporation of an EPCRA section 313
    listed toxic chemical into a product prior to distribution. Thus,
    EPA believes that this activity constitutes processing of an EPCRA
    section 313 listed toxic chemical as defined by the statutory
    definition. In addition, EPCRA section 313 chemicals may be
    otherwise used during normal facility maintenance activities
    (excluding exempt routine janitorial or facilities grounds
    maintenance activities) (Ref. 9).
 6. Type of information anticipated. Storage, mixing, blending, and
    product transfer are among the activities during which significant
    releases of EPCRA section 313 chemicals are likely to occur at
    bulk terminal facilities. These releases are likely to be in the
    form of fugitive air emissions, tank sludges, or spills into
    surface water, groundwater, or land of section 313 chemicals
    contained in petroleum products. EPA anticipates information on
    these and other waste management practices for chemicals such as,
    cyclohexane, ethyl benzene, toluene, 1,2,4-trimethylbenzene,
    xylene, phenanthrene, and benz(a)anthracene (Ref. 20). While
    storage tanks at bulk terminals are generally equipped with
    internal floating roofs and other features designed to reduce loss
    of volatile components, losses of some section 313 chemicals
    resulting from tank breathing still occur. Based on EPA's
    analysis, a small bulk terminal manages on average an annual
    throughput of 36.5 million gallons, and is estimated to process
    petroleum products in sufficient quantities to exceed the EPCRA
    section 313(f) reporting thresholds for all EPCRA section 313
    listed toxic chemicals that are components of gasoline, No. 2 fuel
    oil/diesel, No. 6 fuel oil, and crude oil. In addition, EPA
    estimates that some bulk terminals will also exceed the EPCRA
    section 313(f) reporting thresholds for EPCRA section 313 listed
    toxic chemicals contained in petroleum additives (Ref. 20).
    EPA estimates that reporting under EPCRA section 313 from this
    industry may result in 12,394 Form R reports annually submitted by
    3,842 facilities. This number of facilities estimated to report
    represents 34 percent of all facilities identified within this
    industry group.
 7. Reporting considerations. Based on EPA's analysis, many of the
    activities conducted by petroleum bulk stations and terminals meet
    the definition of manufacture, process, or otherwise use. EPA
    believes that current interpretations of manufacture, process, or
    otherwise use will apply directly to facilities operating in this
    industry segment with minimal inconsistencies.
    EPA estimates the potential costs for reporting for the first year
    by this industry group to be $69.3 million and $40.7 million in
    subsequent years.
 8. Conclusions. For the reasons identified above, EPA believes that
    facilities in the SIC code 5171 petroleum bulk stations and
    terminals satisfy the requirements of EPCRA section 313(b)(1)(B)
    because EPA believes that reporting for this industry group is
    relevant for the purposes of EPCRA section 313. Accordingly, EPA
    proposes to add this industry group to the list of industry groups
    required to report pursuant to EPCRA section 313 and the PPA
    section 6607.
    
D. Electric Utilities

EPA is proposing to require coal and oil-fired electric utility plants
in SIC code 49 to report under EPCRA section 313. These facilities are
classified in SIC code 4911 Electric Services, SIC code 4931 Electric
and Other Services Combined, and SIC code 4939 Combination Utilities,
Not Elsewhere Classified. EPA is requesting comment on whether to add
SIC code 4960 Steam and Air Conditioning Supply. Although information
is limited on this industry group, EPA expects the activities
conducted by this industry group to be similar to those conducted in
SIC codes 4911, 4931, and 4939. Due to the fact that nuclear,
hydroelectric, gas and other non coal/oil-fired electric generating
stations do not use fuel containing EPCRA section 313 listed toxic
chemicals, EPA is proposing to add only those facilities within this
industry group which combust fuels containing EPCRA

[[Page 33601]]

section 313 listed toxic chemicals. While EPA recognizes that non
coal/ oil-fired electric generating stations may otherwise use EPCRA
section 313 chemicals in maintenance, cleaning, and purifying
operations, and that information on releases and other waste
management data from these activities may have some value, these
support activities are not the primary function of the facility. EPA
also recognizes that generating facilities may switch fuels as part of
normal operations, including switching between natural gas and other
fossil fuels. Natural gas does not contain EPCRA section 313 listed
toxic chemicals above de minimis concentrations, and EPA would not
expect reporting to result from the combustion of natural gas.
However, any facility which combusts coal or oil in whatever
percentage of its fuel use, and whether for primary or back-up
generation, would become a covered facility for purposes of EPCRA
section 313, and be required to make a compliance determination. Thus,
EPA has chosen, as a matter of prioritizing, to propose the addition
of only coal and oil-fired plants at this time.
 1. Description of industry. The electric services industry includes
    facilities which generate electricity with different fuels: fossil
    fuels (i.e., coal, oil and natural gas); gas turbines; internal
    combustion turbines; nuclear; hydroelectric; and other sources
    including geothermal, wind, and solar. The combination electric
    services industry includes electric generating facilities that
    receive 50 to 95 percent of their revenues from electricity sales.
    Both industries generate electricity primarily through the
    combustion of fossil fuels (Ref. 8).
 2. Summary of evaluation. Based on EPA's evaluation of this industry,
    the Agency believes that electric generation routinely involves
    the manufacture, process, or otherwise use of EPCRA section 313
    listed toxic chemicals and that the facilities within SIC code 49
    which generate electricity by combusting coal and oil are likely
    to report information relevant to the purposes of EPCRA section
    313. The present determination is consistent with current
    reporting guidance, and the application of existing thresholds and
    exemptions under EPCRA section 313. The Agency anticipates
    reporting of releases and other waste management information from
    facilities within this industry group.
 3. Chemicals associated with electric utilities. A variety of
    chemicals are associated with electricity generation. Coal and oil
    used to generate electricity may include EPCRA section 313 listed
    toxic chemicals as constituents. Among the EPCRA section 313
    listed toxic chemicals which may be found in coal and oil are
    polycyclic aromatic compounds, chlorine, benzene, toluene,
    ethylbenzene, manganese, xylene, nickel, biphenyl, and
    naphthalene. Also, the following EPCRA section 313 metals and
    their compounds may be found in coal and oil: beryllium, cadmium,
    selenium, antimony, arsenic, copper, lead, barium, chromium,
    vanadium, zinc, and mercury and their compounds. In addition,
    other EPCRA section 313 listed toxic chemicals may be present in
    maintenance, cleaning, and purification operations. These may
    include copper compounds, hydrazine, zinc compounds, hydrochloric
    and sulfuric acid (aerosols), brominated compounds, formic acid,
    ammonia, thiourea, methylene chloride, and ethylene glycol (Ref.
    20).
 4. Manufacture, process or otherwise use activities involving EPCRA
    section 313 chemicals. While differing in some important respects,
    all conventional steam electric generating stations rely on the
    same basic process. Fuel is ignited and burned within a boiler
    chamber composed of thousands of feet of water-filled tubes. The
    heat of combustion heats the water in the boiler tubes, creating
    high temperature and high pressure steam. The steam passes through
    turbines causing the turbine blades to rotate. A shaft connected
    to the turbine blades drives electric generators, yielding
    electric power. In this fashion, the chemical energy of the coal
    or oil is converted to heat energy through combustion, then to
    mechanical energy in the turbines, and finally to electrical
    energy in the generators. Transmission lines, substations, and
    switching stations channel generated electricity to various end
    users. A range of maintenance, cleaning, and purifying operations
    are also conducted (Ref. 8).
    Electric services and combination electric utilities manufacture
    or otherwise use a variety of EPCRA section 313 listed toxic
    chemicals, as part of the combustion process and as part of
    maintenance, cleaning, and purification operations. The combustion
    of coal creates certain EPCRA section 313 listed toxic chemicals,
    including formaldehyde, hydrogen chloride, hydrochloric acid
    (aerosol), primary sulfates (including sulfuric acid aerosol),
    hydrogen fluoride, hydrofluoric acid, and the following metals and
    their compounds, arsenic, beryllium, cadmium, chromium, copper,
    lead, mercury, manganese, and nickel. Similarly, the combustion of
    fuel oil manufactures sulfuric acid aerosols, formaldehyde, and
    the following metals and their compounds, arsenic, beryllium,
    cadmium, chromium, copper, lead, mercury, manganese, nickel, and
    zinc. Since the inception of the program, EPA has interpreted
    ``manufacture'' to include coincidental production of a listed
    toxic chemical. Coincidental manufacture is the generation of a
    listed toxic chemical as a byproduct or impurity (53 FR 4504,
    February 16, 1988). In the combustion of coal and oil, metal
    compounds may be produced from either the parent metal or a metal
    compound contained in the coal or oil. This may or may not involve
    a change of valence state. A change in valence state results in
    the manufacture of a metal compound. Metal compounds which are
    produced in the combustion process are considered ``manufactured''
    for purposes of EPCRA section 313. The de minimis concentration
    exemption does not apply to coincidental manufacture (see 53 FR
    4504, Februry 16, 1988; see also Refs. 8 and 2). Thus, all
    quantities of the metal compound manufactured in the combustion
    process must be compared to the ``manufacture'' threshold.
    Constituents of coal and oil fuels are otherwise used in the
    combustion process, including the EPCRA section 313 chemicals
    listed in the above section, since they are combusted as part of
    the fuel. Metal compounds may be manufactured by the oxidation of
    metals and metal compounds contained in the fuel. In addition, a
    variety of chemicals also listed in the above section are
    otherwise used in maintenance, cleaning, and purifying operations.
    For example, several EPCRA section 313 listed toxic chemicals are
    otherwise used in corrosion control such as copper compounds,
    hydrazine, and zinc compounds, with data from cooling tower waste
    blowdown streams of coal-fired boilers indicating that copper and
    zinc compounds may be used in large quantities (Refs. 8 and 20).
    In addition, brominated compounds, ammonia, hydrochloric acid or
    chlorine may be used to treat intake water. Further, the
    water-side or steam-side of the boiler (including the boiler
    tubes, superheater, and condenser) requires occasional cleaning.
    Formic acid, and thiourea may all be used, along with large
    volumes of abrasives. Ethylene glycol is also otherwise used in
    generating station chillers and in some instances is applied to
    coal to prevent coal piles from freezing (Refs. 8 and 20).
 5. Types of information anticipated. EPA recognizes that fuel
    composition may vary, and that the quantity and chemical
    composition of the wastes produced from cleaning and maintenance
    operations is dependent on
    
[[Page 33602]]

plant-specific factors such as plant size, type of equipment used and
age of equipment. Based on EPA's evaluation of this industry, the
Agency believes that most section 313 chemicals present in coal and
oil fuels that are combusted in these facilities are present in
concentrations below de minimis levels. EPA anticipates limited
reporting resulting from the use of EPCRA section 313 chemicals in
combustion of coal. EPCRA section 313 listed toxic chemicals that are
components of No. 2 fuel oil above the de minimis concentration limit
that would be reported as used in combustion include biphenyl,
napthalene, and members of the polycyclic aromatic compounds category.
EPCRA section 313 listed toxic chemicals in No. 6 fuel oil above the
de minimis concentration limit that would be reported as used in
combustion include members of the polycyclic aromatic compounds
category. EPA also anticipates reportable quantities of EPCRA section
313 listed toxic chemicals to be manufactured during combustion
processes involving coal and oil. These include many of the metal
compounds such as cadmium, chromium, and zinc compounds. Further, EPA
believes that some EPCRA section 313 chemicals that are routinely
manufactured or otherwise used at coal/oil-fired electric utility
plants are not exempt under current EPCRA section 313 exemptions.
EPCRA section 313 chemicals, which EPA has preliminarily identified,
that are manufactured or otherwise used above de minimis
concentrations in reportable activities include sulfuric and
hydrochloric acid aerosols, hydrofluoric acid, formaldehyde, chlorine,
bromine, ethylene glycol, hydrazine, and copper. Based on EPA's
evaluation of this industry, EPA anticipates reporting on releases and
other waste management information relevant to the purposes of EPCRA
section 313. This type of routine information regarding EPCRA section
313 chemicals is not publicly-available. Indications exist that
routine releases occur at these facilities. This assessment is based
on the identification of reported releases of EPCRA section 313
chemicals in other EPA data systems. EPA also believes that quantities
of wastes containing EPCRA section 313 listed toxic chemicals are
generated and may result in reporting of waste management information.
Therefore, EPA reasonably anticipates that facilities in this industry
may report information relevant to the purposes of EPCRA section 313
on releases and other waste management information. EPA estimates that
reporting under EPCRA section 313 from this industry may result in
4,175 Form R reports and 1,392 Toxic Chemical Release Certification
Statements annually submitted by 974 facilities. This number of
facilities estimated to report represents 31 percent of all facilities
identified within this industry group. 6. Reporting considerations.
Based on EPA's understanding of this industry, facilities possess a
wide range of knowledge regarding the EPCRA section 313 chemicals
involved in their activities. While coal/ oil-fired facilities in SIC
Code 4911 are clearly identified as coal/ oil-fired facilities and
thus would be subject to this proposed action, facilities in SIC codes
4931 and 4939 may also engage in combustion of waste to generate
electricity. Any facility in these SIC codes which generates
electricity through coal or oil combustion in any proportion would be
subject to reporting requirements and must determine if reporting
thresholds are exceeded. Facilities in SIC code 4911 engaged in
electricity generation using gas, nuclear, hydroelectric electric or
other sources such as solar and wind, are not subject to these
reporting requirements.
EPA estimates the potential costs for reporting for the first year by
this industry group to be $26.6 million and $16.6 million in
subsequent years.
7. Conclusions. For the reasons identified above, EPA believes that
facilities in the electric utilities industry in SIC codes 4911, 4931,
4939 satisfy the requirements of EPCRA section 313(b)(1)(B) because
EPA believes that reporting for this industry group is relevant for
the purposes of EPCRA section 313. Accordingly, EPA proposes to add
this industry group to the list of industry groups required to report
pursuant to EPCRA section 313 and the PPA section 6607.

E. Mining
 1. Exemption of extraction activities. Mining facilities conduct two
    primary operations: extraction and beneficiation. Both operations
    may occur within the same facility. While EPA believes that
    activities associated with beneficiation include EPCRA section 313
    reportable activities and will result in reports relevant to the
    purposes of EPCRA section 313, it has not reached a similar
    conclusion regarding extraction activities, particularly in
    regards to coal extraction. EPA interprets ``extraction'' for
    purposes of EPCRA section 313 to mean the physical removal or
    exposure of ore, coal, minerals, waste rock, or overburden prior
    to beneficiation, and encompasses all extractionrelated activities
    prior to beneficiation. Included within these extraction
    activities is removal of spoil. ``Spoil'' is a non-technical term
    that refers to dirt removed from a mine site. While the term
    ``spoil'' apparently has different connotations from mine to mine,
    it is, in essence, considered a part of overburden. The typical
    extraction sequence includes the removal of any unconsolidated
    overburden followed by drilling, blasting, and mucking the broken
    ore and waste rock material. Extraction does not include
    beneficiation, coal preparation, mineral processing, in situ
    leaching or any further activities. As a result of EPA's
    evaluation of coal mining, the Agency believes, based on currently
    available data, that facilities in this industry which conduct
    extraction-only activities would not conduct EPCRA section 313
    reportable activities and are unlikely to submit reporting
    information. EPA bases this conclusion on its belief that EPCRA
    section 313 chemicals are not present above de minimis
    concentration levels during coal extraction, and the use of EPCRA
    section 313 chemicals in coal extraction activities in
    concentrations above de minimis is unlikely to occur.
    Beneficiation, or preparation, of coal, does however involve the
    use of EPCRA section 313 chemicals, and the Agency believes that
    reporting resulting from coal preparation activities is likely.
    Reporting requirements for coal mining facilities where no further
    processing occurs is likely to result in an unnecessary imposition
    of burden which would provide no additional EPCRA section 313
    information. Therefore, EPA is proposing to exclude extraction
    activities, as defined above, conducted in SIC code 12 in all
    EPCRA section 313 reporting requirements. Facilities engaged in
    the extraction of coal only would not be required to make
    compliance determinations and report releases and other waste
    management information associated with these extraction
    activities. Facilities engaged in both extraction of coal and coal
    preparation would be required to perform compliance
    determinations, and, to the extent then necessary, report releases
    and other waste management information associated with coal
    preparation and any other activities outside of extraction that
    are conducted on-site. Facilities classified in SIC code 12 which
    engage in preparation only, and do not engage in any extraction
    on-site would also be required to perform compliance
    determinations and report on releases and other waste management
    activities. This exemption
    
[[Page 33603]]

would apply only to extraction as defined above, and not to
beneficiation or any other activities conducted at facilities in this
industry. Further, this exemption is proposed to apply only to
extraction activities in SIC code 12, and not activities that occur in
SIC code 10 metal mining. EPA is requesting comment on this exemption
of extraction activities conducted in SIC code 12 from the EPCRA
section 313 reporting requirements.
EPA is also requesting comment regarding whether this exemption should
be applied to metal mining extraction as well. Data and information
concerning EPCRA section 313 chemical activity in metal mining
extraction activities are limited. EPA believes that metal mining
extraction and coal mining extraction are similar types of operations,
and that the use of EPCRA section 313 chemicals in concentrations
above de minimis during extraction is also unlikely in both
industries. Specifically, EPA does not have information indicating
that typical overburden would contain EPCRA section 313 chemicals in
concentrations above de minimis levels. Further, based on EPA's
understanding of metal mining operations at this time, EPA would not
expect these operations to have a great deal of knowledge regarding
the constituents present in overburden. During the comment period, EPA
may receive information confirming or refuting this understanding. If,
as EPA suspects, overburden does not typically contain EPCRA section
313 chemicals above de minimis concentrations, there would be little
or no reporting associated with the removal of overburden. In the
event EPA extends the coal extraction exemption to metal mining, the
issue of ``spoil,'' or reporting on overburden, becomes moot. On the
other hand, the composition of extracted material is different in
metal mining and coal mining. EPA believes that EPCRA section 313
chemicals are often present above de minimis concentrations in metal
ore. Consequently, these facilities, which typically also conduct
beneficiation on site, may have EPCRA section 313 chemicals present in
reportable volumes during extraction as well as during beneficiation.
EPA is requesting comment on whether the exemption of extraction
activities, including removal of overburden, should also be applied to
metal mining extraction in SIC code 10. 2. Metal mining. EPA is
proposing to require facilities engaged in metal mining to report
under EPCRA section 313. This proposed requirement is limited to
facilities in SIC Code 10 (Metal Mining) except SIC Code 1081 Metal
Mining Services. Facilities in SIC code 1081 do not conduct reportable
activities; activities performed by firms in SIC code 1081 primarily
consist of contracted services for mining operations in the other SIC
codes.
a. Description of industry. The metal mining industry includes
facilities engaged primarily in exploring for metallic minerals,
developing mines, and ore mining. Metal bearing ores are valued
chiefly for the metals they contain, which are recovered for use as
such, or as constituents of alloys, chemicals, pigments, or other
products. This industry also includes all ore dressing and
beneficiating operations, whether performed at mills operated in
conjunction with the mines served, or at mills, such as custom mills,
operated separately. These include mills which crush, grind, wash,
dry, sinter, calcine, or leach ore, or perform gravity separation or
flotation operations (Refs. 4 and 6). EPA's Office of Solid Waste has
produced a series of Technical Resource Documents on extraction and
beneficiation of ores and minerals. These documents have been included
in the public docket for reference.
Although this SIC code includes all metal ore mining, the scope of
mining industries with a significant domestic presence is concentrated
in iron, copper, lead, zinc, gold, and silver. Metals generated from
U.S. mining operations are used domestically in a wide range of
manufactured products, including automobiles, electrical and
industrial equipment, jewelry, and photographic materials (Ref. 16).
b. Summary of evaluation. Based on EPA's evaluation of this industry,
the Agency believes that beneficiation activities routinely involve
the manufacturing, processing or otherwise use of EPCRA section 313
chemicals and that the facilities within this SIC code are likely to
report information relevant to the purposes of EPCRA section 313. The
present determination is consistent with current reporting guidance,
and the application of existing thresholds and exemptions under EPCRA
section 313. The Agency anticipates reporting of releases and other
waste management information from facilities. c. Chemicals associated
with metal mining. A wide variety of chemicals are found at mining
facilities in SIC code 10. Various EPCRA section 313 listed metals and
metal compounds are found in the ores that are mined and beneficiated.
The nature of the ore that is mined by a particular facility is
extremely site specific. Further, although relatively standardized
processes are used to recover the target metal(s) from ores at various
types of mines, the chemicals used in these recovery processes by
specific facilities (both in type and quantity) are strongly
influenced by the nature of the ore and of the recovery process used.
Based on EPA's evaluation of this industry, it believes that the EPCRA
section 313 chemicals associated with the metal mining industry which
may be expected to be reported under this proposed action include
constituents of ore such as copper, antimony, silver, lead, zinc,
cadmium, mercury, chromium, manganese, and nickel and their compounds;
flotation reagents such as cyanide compounds, copper sulfate, and zinc
sulfate; agglomeration agents such as chlorine; elution acids such as
nitric acid; electrowinning agents such as cyanide compounds and lead
nitrate; and beneficiation agents such as cyanide compounds (Refs. 6,
16, 18, and 20).
d. Manufacture, process or otherwise use activities involving EPCRA
section 313 chemicals. Metal mining includes extraction and
beneficiation steps during the preparation of a specific metal
concentrate. Extraction involves the removal or exposure of the ore
from surface and underground deposits prior to beneficiation. The
typical extraction sequence includes the removal of any unconsolidated
overburden followed by drilling, blasting, and mucking the broken ore
and waste rock material.
Beneficiation is the preparation of a specific metal concentrate. The
purpose of beneficiation is to concentrate the sought after metal in
the ore by separating the values from the other materials in the ore
(Ref. 6). The most common beneficiation methods include gravity
concentration, milling and floating, leaching, dump leaching, and
magnetic separation (Refs. 6 and 16). EPA interprets ``ore
beneficiation'' for purposes of EPCRA section 313 to mean the
preparation of ores to regulate the size of the product, to remove
unwanted constituents, or to improve the quality, purity, or grade of
a desired product. (Ref. 16) Under regulations drafted pursuant to the
Resource Conservation and Recovery Act (RCRA, 40 CFR 261.4),
beneficiation is restricted to the following activities: crushing;
grinding; washing; dissolution; crystallization; filtration; sorting;
sizing; drying; sintering; pelletizing; briquetting; calcining to
remove water and/or carbon dioxide; roasting; autoclaving, and/or
chlorination in preparation for leaching; gravity concentration;
magnetic separation; electrostatic separation; flotation; ion
exchange; solvent extraction; electrowinning; precipitation;
amalgamation; and heap,

[[Page 33604]]

dump, vat, tank, and in situ leaching. (40 CFR 261.4) EPA's
interpretation of ``beneficiation'' for EPCRA section 313 purposes
should be read consistent with the RCRA definition and guidance.
Beneficiation of ore is, in essence, the preparation of the
constituents of the ore. In many mining operations, such as lead,
silver, and copper, the primary metal is a constituent of the ore
(i.e. lead, silver, and copper) and is a toxic chemical. There may be
other constituents of the ore that are also toxic chemicals. Because
beneficiation of the ore is preparation of the constituents, any
beneficiation of ore containing toxic chemicals is also preparation of
all of the toxic chemical constituents. If the preparation of the
toxic chemical constituent is for distribution in commerce, the toxic
chemical is ``processed'' for purposes of EPCRA section 313. In
addition, other EPCRA section 313 chemicals may be otherwise used
during the beneficiation operations. For example, cyanide leaching,
using solutions of sodium and potassium cyanides as leaching agents,
to extract gold from gold ore, represents an otherwise use of EPCRA
section 313 chemicals.
e. Types of information anticipated. EPA recognizes that the nature of
the ore mined and the preparation of its constituents is sitespecific
and therefore variable.
EPA's evaluation of this industry indicates that facilities routinely
handle large volumes of EPCRA section 313 chemicals and that there is
reason to believe that routine releases occur based on data in
existing EPA data systems. For example, releases to air of toxic
chemicals including arsenic, antimony, lead, and copper were reported
in EPA's AIRS-AFS data base. EPA reasonably anticipates, therefore,
that facilities in this industry may report information on releases
and other waste management consistent with the purpose of EPCRA
section 313. As a result, information on the presence, management, and
releases of toxic chemicals will be available to interested
communities, governments, and individuals, that was previously
unavailable to the public.
EPA estimates that reporting under EPCRA section 313 from this
industry may result in 1,176 Form R reports annually by 328
facilities. This number of facilities estimated to report represents
31 percent of all facilities identified within this industry group. f.
Reporting considerations. Because the activities in this industry,
particularly beneficiating, are similar to processing activities
performed in currently covered facilities, no new guidance is required
to enable facilities in this industry to comply with EPCRA section 313
reporting requirements.
EPA estimates the potential costs for reporting for the first year by
this industry group to be $6.5 million and $3.8 million in subsequent
years.
g. Conclusions. For the reasons identified above, EPA believes that
facilities in the metal mining industry in SIC code 10 except SIC code
1018 satisfy the requirements of EPCRA section 313(b)(1)(B) because
EPA believes that reporting for this industry group is relevant for
the purposes of EPCRA section 313. Accordingly, EPA proposes to add
this industry group to the list of industry groups required to report
pursuant to EPCRA section 313 and the PPA section 6607. 3. Coal
mining. EPA is proposing to require establishments engaged in coal
mining to report under EPCRA section 313. This proposed requirement is
limited to establishments in SIC code 12 Coal Mining except SIC code
1241 Coal Mining Services. EPA does not believe that SIC code 1241
includes facilities which conduct reportable activities or routinely
handle large volumes of EPCRA section 313 chemicals. a. Description of
industry. The coal mining industry includes establishments primarily
engaged in producing bituminous coal, anthracite, and lignite.
Included are mining operations and preparation plants (also known as
cleaning plants and washeries), whether or not such plants are
operated in conjunction with mine sites (Ref. 7). Coal is extracted
from surface and underground mines; production from surface mines is
increasing as production from underground mines decreases. The
sequence of steps in coal production is similar to metal mining and
includes extraction and beneficiation. Facilities in these SIC codes
may manufacture, process, or otherwise use EPCRA section 313 chemicals
when conducting blasting activities; extraction of coal and
impurities; and preparation activities, including cleaning to reduce
ash and sulfur content, washing, crushing, screening, and loading
(Ref. 20).
b. Summary of evaluation. Based on EPA's evaluation of this industry,
the Agency believes that beneficiation and processing operations
performed in coal preparation plants routinely involve manufacturing,
processing, or the otherwise use of EPCRA section 313 chemicals and
that the facilities within this SIC code are likely to report
information relevant to the purposes of EPCRA section 313. The present
determination is consistent with current reporting guidance, and the
application of existing thresholds and exemptions under EPCRA section
313. The Agency anticipates reporting of releases and other waste
management information from facilities in this industry. c. Chemicals
associated with coal mining. There are three sources of EPCRA section
313 chemicals in SIC code 12: (1) EPCRA section 313 chemicals that are
commonly found in coal; (2) EPCRA section 313 chemicals that are
subsequently used during the coal preparation process; and (3) EPCRA
section 313 chemicals incidental to coal production, e.g., explosives,
acid mine drainage. Metals and minerals present in coal may include
antimony, arsenic, barium, cadmium, chromium, copper, lead, manganese,
mercury, nickel, selenium, silver, vanadium (fume or dust), and zinc
(fume or dust) and their compounds. Chemicals used during coal
preparation may include tetrachloroethylene, 1,1,1-trichloroethane,
phenanthrene, dichlorodifluoromethane, xylene, and ethylene glycol.
Chemicals incidental to coal production include ammonium nitrate and
fuel oil, used for explosives. Fuel oil may contain EPCRA section 313
chemicals as constituents. Based on EPA's evaluation of this industry,
the Agency believes that the EPCRA section 313 chemicals associated
with coal mining which may be expected to be reported under this
proposed action are primarily associated with coal preparation plants
and would include tetrachloroethylene, 1,1,1-trichloroethane,
phenanthrene, dichlorodifluoromethane, xylene, and ethylene glycol
(Ref. 20). d. Manufacture, process, or otherwise use activities
involving EPCRA section 313 chemicals. Coal beneficiation, also known
as coal preparation, is the process of upgrading raw coal using
physical methods to improve the energy value and remove impurities
such as pyrite and non-coal mineral material. It is intended to
produce a standardized product and reduce ash and sulfur content. The
extent of upgrading is determined by the intended end use and
compliance with emission standards (Ref. 7). Coal is crushed and
slurried with water at coal preparation plants to separate organics
from inorganic impurities. The inorganic impurities are denser than
the combustible, organic fraction of the coal, and the density
difference is used to separate the inorganic fractions using cyclones
and dense-medium tanks. Flotation tanks are also used to remove pyrite
from finely ground coal. The coal-water slurry is introduced into a
series of flotation cells spragged with air from below. Alcohols are
used to create a froth, and kerosene

[[Page 33605]]

or diesel fuel is added to collect the coal into the froth, leaving
the pyrite behind. At the completion of the cleaning steps, the coal
is dried using hot gases from a coal burning furnace. While the
possibility exists that the coincidental manufacture of EPCRA section
313 chemicals may occur as a result of chemical reactions during
either extraction or beneficiation operations, EPA has not identified
instances where this occurs routinely. EPA, as part of its evaluation
of this industry, has not determined that processing, as defined in
EPCRA section 313, routinely occurs for EPCRA section 313 listed toxic
chemicals above de minimis concentrations. However, EPA has identified
routine activities involving EPCRA section 313 toxic chemicals.
Beneficiation of coal routinely involves the otherwise use of EPCRA
section 313 chemicals to aid in separating coal from impurities during
coal preparation processes. The use of these chemicals during the
beneficiation, or preparation, activities described above constitute
the otherwise use of chemicals. EPA believes, based on its evaluation,
that these activities will be the primary source of EPCRA section 313
information from these facilities. e. Types of information
anticipated. Based on EPA's evaluation of this industry, the Agency
believes that coal mining facilities routinely handle large volumes of
EPCRA section 313 chemicals and that there is reason to believe that
routine releases occur based on data in existing EPA data systems. For
example, routine releases to air were reported in EPA's Aerometric
Information Retrieval System (AIRS) Facility Subsystem (AFS) of
ethylene glycol and dichlorodifluoromethane for facilities in SIC code
12 (Ref. 18). EPA reasonably anticipates, therefore, that facilities
in this industry will report information on releases and other waste
management activities of EPCRA section 313 chemicals such as
tetrachloroethylene, xylene, and ethylene glycol. As a result,
information on the presence, management and releases of toxic
chemicals will be available to interested communities, governments,
and individuals, that was previously unavailable to the public. EPA
estimates that reporting under EPCRA section 313 from this industry
may result in 642 Form R reports annually submitted by 321 facilities.
This number of facilities estimated to report represents 10 percent of
all facilities identified within this industry group. f. Reporting
considerations. Because the activities conducted by facilities within
this industry sector, particularly coal preparation or beneficiation,
are similar to manufacturing, processing, and otherwise use activities
performed in currently covered facilities, no new guidance is required
to enable facilities in this industry to comply with EPCRA section 313
reporting. There may be activities other than those discussed here
that should be examined by a reporting facility for reporting
purposes. For example, although coal contains EPCRA section 313
constituents, EPA believes that these constituents generally exist in
concentrations below de minimis levels, and therefore may be exempt
from reporting as the constituents are further processed with the
coal. However, in the event that coal preparation plants process a
product other than coal, for further distribution in commerce, and
that product contains EPCRA section 313 chemicals above de minimis
concentrations, the facility may need to file a Form R for that
chemical.
EPA estimates the potential costs for reporting for the first year by
this industry group to be $5.4 million and $2.5 million in subsequent
years.
g. Conclusion. For the reasons identified above, EPA believes that
facilities in the coal mining industry in SIC code 12 except SIC code
1241 satisfy the requirements of EPCRA section 313(b)(1)(B).
Accordingly, EPA proposes to add this industry group to the list of
industry groups required to report pursuant to EPCRA section 313 and
the PPA section 6607.

F. RCRA Subtitle C Hazardous Waste Facilities

EPA is proposing to require facilities regulated under RCRA Subtitle C
that are classified in SIC code 4953 to report under EPCRA section
313.
 1. Description. Facilities operating in SIC code 4953 that are
    regulated under RCRA subtitle C (the primary federal law
    addressing hazardous waste mangement), are engaged primarily in
    the collection, transportation, treatment for destruction,
    stabilization, and/or disposal of RCRA subtitle C hazardous waste.
    These facilities include incinerators, underground injection
    facilities, waste treatment plants, landfills, and other
    facilities designed for the treatment for destruction,
    stabilization, and disposal of hazardous waste.
 2. Summary of evaluation. EPA has determined that facilities
    regulated under RCRA subtitle C that are classified in SIC code
    4953 conduct activities that routinely involve the management of
    EPCRA section 313 chemicals. Based on EPA's revised interpretation
    of activities considered as otherwise use as discussed in Unit IV.
    of this preamble, EPA believes that facilities regulated under
    RCRA Subtitle C that are classified in SIC code 4953 manage as
    waste a substantial volume of EPCRA section 313 chemicals. Under
    the revised otherwise use interpretation articulated in Unit IV.
    of this preamble, amounts of section 313 chemicals treated for
    destruction, stabilization, or disposal would be considered
    otherwise use for purposes of threshold determinations and the
    amounts released or managed as a waste would be subject to
    reporting under EPCRA section 313, provided that the appropriate
    EPCRA section 313(f) threshold is met.
 3. Chemicals associated with the industry. Facilities regulated under
    RCRA subtitle C that are classified in SIC code 4953 manage an
    extremely large number and quantity of EPCRA section 313
    chemicals. The EPCRA section 313 list of toxic chemicals includes
    195 specifically listed chemicals that are also regulated as
    hazardous waste under RCRA (40 CFR 261.33(e) and 40 CFR
    261.33(f)). The EPCRA section 313 list of toxic chemicals also
    contains two chemical categories that are also regulated under the
    RCRA program. Therefore, the number of EPCRA section 313 chemicals
    that may be managed and potentially reported by facilities within
    this industry group is rather large.
 4. Manufacture, process, or otherwise use activities involving EPCRA
    section 313 chemicals. Facilities regulated under RCRA subtitle C
    that are within SIC code 4953 receive waste containing section 313
    chemicals for the purposes of storage, treatment for destruction,
    stabilization, and disposal. These facilities manage a substantial
    amount of EPCRA section 313 chemicals contained in waste. While
    these activities result in the generation of and in limited cases
    may include the use of EPCRA section 313 chemicals, the vast
    majority of section 313 chemicals managed by these facilities are
    in the amounts managed as waste.
    As stated in Unit IV. of this preamble, EPA is modifying its
    interpretation of ``otherwise use'' to include the treatment for
    destruction, stabilization, or disposal of EPCRA section 313
    chemicals. Given this interpretation, most of the activities
    conducted by facilities regulated under RCRA subtitle C that are
    in SIC code 4953 will be considered otherwise use. In addition,
    some EPCRA section 313 listed toxic chemicals may be
    coincidentally manufactured in the treatment of hazardous waste
    streams (Ref. 20).
    
[[Page 33606]]

Some EPCRA section 313 listed toxic chemicals that may be
manufactured, processed, or otherwise used by facilities in this
industry group include: hydrochloric acid, hydrofluoric acid and
sulfuric acid (aerosol), which may be coincidentally manufactured
during some treatment for destruction activitives; chlorine, which is
used in some treatment operations (Ref. 20); and numerous other
chemicals otherwise used under EPA's revised interpretation, such as
chlorobenzene, dichlorobenzene, formaldehyde, and metals (e.g., lead)
and their compounds.
5. Types of information anticipated. Congress created EPCRA section
313 to provide a unique function--to make multimedia information on
releases of toxic chemicals and other waste management activities
readily available to communities. Although at that time, existing
statutes provided some information, sponsers of EPCRA section 313
recognized that existing information did not serve the need of
providing publicly available information on releases and other waste
management activities of toxic chemicals in a consistent and
comprehensive format for all media.

EPA and the states currently collect much of [the information to be
collected by the section], and a number of states and cities have
instituted similar inventories... However, many states and the EPA do
not have so-called multimedia inventories. The information may be
scattered in air files, water files and on RCRA manifest forms,...but
not pulled together in one place to provide a complete and usable
picture of total environmental exposure. (Senator Lautenberg, Ref.
11).

Similarly, the sponsors also recognized that industries that were the
initial focus of EPCRA section 313 (i.e., facilities in SIC codes 20
through 39) were already subject to extensive regulations, but
determined that these industries should be included in those initially
subject to EPCRA section 313 reporting.

With respect to the contents of the toxic release inventory form,
estimates of releases into each environmental medium must be provided.
This shall include any releases into the air, water, as well as
releases from waste treatment and storage facilities. This should
include all releases of toxic chemicals in surface waters whether or
not such releases are pursuant to Clean Water Act permits. Similarly,
all toxic chemicals dumped into and disposal facilities must be
reported whether or not such facilities are regulated under the
Resource Conservation and Recovery Act. (Congressman Edgar,
Congressional Record, p. 15316-15317 October 8, 1986)

While EPA recognizes that facilities regulated under RCRA subtitle C
are subject to considerable regulation, EPA believes that requiring
these facilities to report under EPCRA section 313 does not constitute
a significant overlap with other regulations. Although the permitting
process makes some chemical management information on a
facilityspecific basis available to the public, the type of
information collected from facilities regulated under RCRA subtitle C
is typically at the waste stream level and not at the
constituent-specific level. This is very different from the type of
information collected under EPCRA section 313. The information
collected under EPCRA section 313 is chemical-specific and in contrast
to RCRA data is designed to be used by the public.
EPA has been encouraged to consider the addition of waste treatment
and disposal facilities to EPCRA section 313 since the initial passage
of the statute. Comments received on the proposed rule (53 FR 4504) to
implement EPCRA section 313 reporting included strong support for the
addition of the commercial waste treatment industry. Given the purpose
of EPCRA section 313 (providing the public with information on toxic
chemicals), EPA believes it is appropriate to expand the focus of the
TRI program to include information from facilities that treat for
destruction, stabilize, and/or dispose of toxic chemicals. Certainly,
facilities regulated under RCRA subtitle C are locations where
substantial quantities of concentrated toxic chemicals are collected,
and treated for destruction, stabilized, and/or disposed. As discussed
above, Congress intended that the information provided by EPCRA
section 313 reporting would include releases from waste treatment and
disposal facilities regardless of whether these releases were
permitted or not. Therefore, it is EPA's belief that the inclusion of
RCRA subtitle C facilities operating within SIC code 4953 under EPCRA
section 313 reporting requirements is appropriate and will add
significantly to the information that is available on how and where
toxic chemical wastes are released and managed.
As stated above, facilities regulated under RCRA subtitle C that are
within SIC code 4953 manage a large number of EPCRA section 313
chemicals, often in large quantities. The types of treatment
activities and concentrations of chemicals in waste received will
greatly affect the types and amounts of section 313 chemicals released
or managed as a waste from any particular facility. As a whole, EPA
anticipates that facilities operating in this industry group will
contribute more release and management information on a per facility
basis than any other industry group currently reporting or being
proposed for addition by this rulemaking.
EPA estimates that reporting under EPCRA section 313 from this
industry may result in 6,637 Form R reports and 74 Toxic Chemical
Release Certification Statements annually by 164 facilities. This
number of facilities estimated to report represents 100 percent of all
facilities identified within this industry group. 6. Reporting
consideration. EPA's revised interpretation of ``otherwise use'' can
significantly impact the information reported by facilities within
this industry group. See Unit IV.D. of this preamble for reporting
examples.
EPA estimates the potential costs for reporting for the first year by
this industry group to be $31.2 million and $21.5 million in
subsequent years.
The Agency believes it is important to provide the public with TRI
information from the hazardous waste management industry. However, the
Agency recognizes that facilities in this industry present specific
issues with regard to reporting under EPCRA section 313. Placement of
a toxic chemical into a RCRA hazardous waste landfill is reported as a
release under EPCRA section 313, even though disposal of hazardous
waste in that landfill is a permissible waste management activity
under RCRA. Through its outreach efforts in developing this proposal,
EPA discussed the hazardous waste management industry's concerns with
the differing perceptions of the term ``release.'' Although RCRA does
not define the term ``release,'' some may perceive that term, when
used in the RCRA context, to indicate failure of the hazardous waste
management unit, such as a landfill. For TRI purposes, EPCRA section
329 defines ``release'' to mean ``spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, leaching, dumping, or
disposing into the environment (including the abandonment or
discarding of barrels, containers, and other closed receptacles) of
any hazardous chemical, extremely hazardous substance, or toxic
chemical.'' Disposal includes underground injection, placement in
landfills/surface impoundments, land treatment, or other intentional
land disposal. (See ``Toxic Chemical Release Inventory Reporting
Instructions'' (1995 version) at p. 35 for a list of activities to be
reported under ``Transfers Offsite for Purposes of Disposal.'')
The Agency is mindful of the concern that TRI release information
involving

[[Page 33607]]

hazardous waste management activities not be misleading. For example,
the public should not construe a release into a landfill reported
under EPCRA section 313 to mean that a landfill has failed. In
developing the final rule, EPA will consider approaches to assist the
public in understanding the proper meaning of reporting data from the
hazardous waste management industry. EPA requests comment on
approaches to address this concern.
Although facilities that receive hazardous waste are provided with
information on the constituents of that hazardous waste, these
facilities may be provided with limited information on EPCRA section
313 listed chemicals and the exact quantities of those constituents.
EPA requests comment on the quantity of constituents, difficulty and
costs of reporting, and ways to aid facilities in reporting under
EPCRA section 313, in the least burdensome manner, on those
constituents that are EPCRA section 313 listed toxic chemicals. 7.
Conclusion. For the reasons identified above, EPA believes that those
RCRA subtitle C facilities in SIC code 4953 satisfy the requirements
of EPCRA section 313(b)(1)(B) because EPA believes that reporting for
this industry sector is relevant for the purposes of EPCRA section
313. Accordingly, EPA proposes to add this industry group to the list
of industry groups required to report pursuant to EPCRA section 313
and the PPA section 6607.

G. Solvent Recovery Services

EPA is proposing to require facilities engaged in solvent recovery
operations to report under EPCRA section 313. These facilities are
classified in SIC code 7389 Business Services, not elsewhere
classified, that are primarily engaged in solvent recovery activities.
 1. Description of the industry. Solvent recovery is the act of
    removing contaminants and reconditioning a previously used
    industrial solvent to a form suitable for reuse. Solvent recovery
    is a beneficial activity that ultimately reduces wastes and the
    demand for raw materials. However, the activities used to recover
    solvents may result in significant releases and other waste
    management activities involving EPCRA section 313 chemicals.
    Many facilities are engaged in solvent recovery, in part due to
    the widespread use of solvents, the value of the material, and the
    technologies available. Most facilities conducting solvent
    recovery operations are primarily engaged in other activities,
    making the number of facilities primarily engaged in solvent
    recovery relatively few. Many facilities identified as operating
    within the manufacturing sector conduct solvent recovery
    operations and may currently report under EPCRA section 313 those
    releases and waste management activities that result from their
    solvent recovery operations (Ref. 20).
 2. Summary of evaluation. Based on EPA's evaluation of facilities
    primarily engaged in solvent recovery operations, the Agency
    believes their associated activities routinely involve the
    manufacturing, processing, or otherwise use of EPCRA section 313
    listed toxic chemicals. This determination is consistent with
    current reporting guidance and the application of existing
    exemptions under EPCRA section
 3. EPA anticipates reporting of releases and other waste management
    information from facilities primarily engaged in solvent recovery
    operations.
 4. Chemicals associated with the industry. Solvents appropriate for
    recovery include alcohols, aliphatics, aromatics, chlorinated
    hydrocarbons, chloroflorocarbons, ketones, and other flammable and
    nonflammable compounds. Many solvents commonly recovered are also
    EPCRA section 313 listed toxic chemicals and include carbon
    tetrachloride, chloroform, methanol, methyl ethyl ketone,
    methylene chloride, perchloroethylene, toluene and xylene.
    Industrial uses of solvents typically result in the introduction
    of chemical contaminants such as pigments, ink, resin, oil,
    grease, metals and dirt. A number of processes are used to
    separate contaminants to recover the economically beneficial
    solvent. These include distillation, stripping, thin-film
    evaporation and extraction. The type of process applied is
    generally dependent on the solvent and type of contamination (Ref.
    10).
 5. Manufacture, process, or otherwise use activities involving EPCRA
    section 313 chemicals. The recovery of an EPCRA section 313 listed
    toxic chemical from a mixture for further distribution or
    commercial use is processing of that chemical. This is the primary
    function of most solvent recovery businesses. The type of
    separation method(s) applied by some facilities may also involve
    the otherwise use of EPCRA section 313 listed toxic chemicals.
    Under current EPCRA section 313 guidance, the use of a chemical to
    react with another chemical constitutes a use (provided the first
    chemical does not become incorporated and distributed in
    commerce). In addition, some of the contaminants contained in a
    spent solvent mixture may also include EPCRA section 313
    chemicals. The disposal of a listed toxic chemical removed from
    the spent solvent is the otherwise use of that toxic chemical
    under the revised interpretation articulated in this rulemaking
    (see Unit IV. of this preamble).
 6. Types of information anticipated. Based on the type of process
    used, various releases of solvent, contaminant, and chemicals used
    to aid in the recovery of the solvent may occur. Releases can
    include: light ends or vapors from process units or solvent
    holding tanks, heavy ends or still bottoms and sludge, and oil
    from various other process units. Other wastes such as descaling
    solutions and caustic streams are generated during routine
    maintenance and feed stock switch over operations. Some of these
    wastes generated may contain section 313 chemicals and are
    generated or are used in quantities large enough that reporting
    may result. Some of these chemicals are carbon tetrachloride,
    perchloroethylene, and xylene. While EPA's proposed broader
    interpretation of ``otherwise use'' may capture the disposal of
    spent toxic chemicals, based on EPA's analysis, contaminants
    removed from spent solvent mixtures are not likely to be present
    in quantities that would exceed reporting thresholds, and
    subsequently no reports are expected on these chemicals (Ref. 20).
    In addition, based on EPA's analysis, the process of recovering
    spent solvents is considered to be most economical when preformed
    on a larger scale, and therefore, it is estimated that all
    operations primarily engaged in solvent recovery will process
    enough of one or more of the EPCRA section 313 chemicals
    identified in Unit V.G.3. of this preamble to exceed reporting
    thresholds (Ref. 10).
    EPA estimates that reporting under EPCRA section 313 from this
    industry may result in 85 Form R reports annually submitted by 17
    facilities. This number of facilities estimated to report
    represents 43 percent of all facilities identified within this
    industry group.
 7. Reporting consideration. While EPA wishes to encourage
    alternatives to disposal such as recycling, the Agency believes
    that the releases and waste management information resulting from
    facilities primarily involved in solvent recovery operations
    should be made publicly available. EPA believes that the
    activities conducted by facilities primarily engaged in solvent
    recovery are very similar if not identical to solvent recovery
    activities conducted by currently reporting facilities and that
    statutory reporting definitions, as well as reporting guidance,
    will directly apply to these operations.
    
[[Page 33608]]

EPA estimates potential costs for reporting for the first year by this
industry group to be $0.4 million and $0.3 million in subsequent
years.
7. Conclusions. For the reasons identified above, EPA believes that
facilities that are primarily engaged in solvent recovery operations
in SIC code 7389 satisfy the requirements of EPCRA section 313
(b)(1)(B) because EPA believes that reporting for this industry group
is relevant for the purposes of EPCRA section 313. Accordingly, EPA
proposes to add this industry group to the list of industry groups
required to report pursuant to EPCRA section 313 and the PPA section
6607.

VI. Request for Public Comment

EPA requests comment on any aspect of this proposal. In particular,
EPA requests specific comment as detailed in the following paragraphs.
EPA requests comment on the information considered for each of the
industry groups proposed for addition in Unit V. of this preamble. In
addition, EPA requests comment on any issues that may be specific to
any of the individual industry groups.
EPA is requesting comment on the use of the criteria used in today's
proposal for listing decisions for the EPCRA section 313 program.
EPA requests comment on the sufficiency of the evidence and any
additional information for each of the industry groups proposed for
addition. In addition, EPA requests comment on any issues that may be
specific to any of the individual industry groups. EPA requests
comment on the exemption for extraction activities under the coal
mining industry sector. EPA is also requesting comment regarding
whether this exemption should be applied to metal mining extraction as
well.
EPA is requesting comment on requiring reporting from those facilities
in SIC code 4953 that have interim status under RCRA subtitle C.
EPA is requesting comment on whether to add SIC code 4960 Steam and
Air Conditioning Supply. Although information is limited on this
industry group, EPA expects the activities conducted by this industry
group to be similar to those conducted in SIC codes 4911, 4931, and
4939.
The Agency is mindful of the concern that TRI release information
involving hazardous waste management activities not be misleading. For
example, the public should not construe a release into a landfill
reported under EPCRA section 313 to mean that a landfill has failed.
In developing the final rule, EPA will consider approaches to assist
the public in understanding the proper meaning of reporting data from
the hazardous waste management industry. EPA requests comment on
approaches to address this concern.
Although facilities that receives hazardous waste are provided with
information on the constituents of that hazardous waste, these
facilities may be provided with limited information on the exact
quantities of those constituents. EPA requests comment on ways to aid
facilities in reporting under EPCRA section 313, in the least
burdensome manner, on those constituents that are EPCRA section 313
listed toxic chemicals.
EPA requests comment on the alternatives to reduce impacts on small
facilities in SIC code 5169 and facilties regulated under RCRA
subtitle C that are classified within SIC code 4953. EPA requests
comment on whether any of the alternatives presented in this proposed
rule would accomplish the stated objective of EPCRA section 313 while
minimizing significant impact on small entities.
For the industry groups outside of SIC codes 20 through 39 which are
not part of today's proposal, EPA requests comment on adding any of
these industry groups through a future rulemaking. Commenters should
take into account the current limitations of EPCRA section 313
reporting requirements, i.e., exemptions and thresholds, in addressing
whether these industries should be required to report under EPCRA
section 313.
EPA requests comment on all aspects of the Agency's broadening of the
concept of ``otherwise use.'' Specifically, EPA requests comment on
(1) the Agency's proposed modification of the reporting guidance for
``otherwise use,'' (2) whether the regulatory definition of
``otherwise use'' should be amended, (3) the Agency's alternate
approach to modifying the reporting guidance for ``otherwise use;''
and (4) the number of facilities in SIC codes 20 through 39 that may
be affected by EPA's alternate approach to modifying the reporting
guidance for ``otherwise use.''
EPA requests comment on its revised interpretation as explained by
these examples, and by the additional examples described in the
document entitled Interpretive Guidance for Revised Interpretation of
Otherwise Use. This document is in the public docket. EPA requests
comment on whether the treatment for destruction, stabilization, and
disposal fit within the statutory definition of ``process.''
Comments should be submitted to the address listed under the ADDRESSES
section. All comments must be received on or before August 26, 1996.

VII. Rulemaking Record

A record has been established for this rulemaking under docket number
``OPPTS-400104'' (including comments and data submitted electronically
as described below). A public version of this record, including
printed, paper versions of electronic comments, which does not include
any information claimed as confidential business information (CBI), is
available for inspection from noon to 4 p.m., Monday through Friday,
excluding legal holidays. The public record is located in the TSCA
Nonconfidential Information Center, Rm. NE-B607, 401 M St., SW.,
Washington, DC 20460.
Electronic comments can be sent directly to EPA at:
ncic@epamail.epa.gov

Electronic comments must be submitted as an ASCII file avoiding the
use of special characters and any form of encryption. The official
record for this rulemaking, as well as the public version, as
described above will be kept in paper form. Accordingly, EPA will
transfer all comments received electronically into printed, paper form
as they are received and will place the paper copies in the official
rulemaking record which will also include all comments submitted
directly in writing. The official rulemaking record is the paper
record maintained at the address in ``ADDRESSES'' at the beginning of
this document.

VIII. Public Meeting

EPA will hold two 1-day public meetings, one in San Francisco, CA and
one in Washington, DC, to discuss the issues presented above. The
tentative agenda for this public meeting will include a discussion of
the issues presented in Unit VII. of this preamble. Specific
information on these public meetings are contained in a notice of
public meeting published elsewhere in this issue of the Federal
Register.

IX. Economic Analysis

EPA has prepared an economic analysis of the impact of this action,
which is contained in a document entitled Economic Analysis of the
Proposed Rule to Add Certain Industries to EPCRA Section 313 (Ref.
20). This document is available in the public docket for this
rulemaking. The analysis assesses the costs, benefits, and associated
impacts of the rule, including potential effects on small business and
the environmental justice implications

[[Page 33609]]

of the rule. The major findings of the analysis are briefly summarized
here.

A. Market Failure

Federal regulations are used to correct significant market failures.
Markets will fail to achieve socially efficient outcomes when
differences exist between market values and social values. Two of the
causes of market failure are externalities and information
asymmetries. In the case of negative externalities, the actions of one
economic entity impose costs on parties that are ``external'' to the
market transaction. For example, entities may release toxic chemicals
without accounting for the consequences to other parties, such as the
surrounding community. The market may also fail to efficiently
allocate resources in cases where consumers lack information. Where
information is insufficient regarding toxic releases, individuals'
choices regarding where to live and work may not be the same as if
they had more complete information. Since firms ordinarily have a
disincentive to provide complete information on their releases of
toxic chemicals, the market fails to allocate society's resources in
the most efficient manner. This proposed rule is intended to correct
the market failure created by the lack of information available to the
public about the releases and transfers of toxic chemicals in their
communities, and to help address the externality created when choices
regarding toxic chemical releases and transfers have not fully
considered external effects.
Through requiring the provision of data on toxic chemical releases and
waste management practices, TRI overcomes firms' disincentive to
provide information on their toxic chemical releases. TRI serves to
inform the public of the toxic chemical releases in their communities.
Individuals can then make choices that better optimize their
wellbeing. Some choices made by a more informed public, including
consumers, corporate lenders, and communities, may effectively lead
firms to internalize into their business decisions at least some of
the costs to society of their releases. In addition, by identifying
hot spots, setting priorities and monitoring trends, TRI data can also
be used to make more informed decisions regarding the design of more
efficient regulations and voluntary programs, which moves society
towards an optimal allocation of resources. If EPA were to take no
action, i.e., not add industries to TRI, the market failure (and the
associated social costs) resulting from the lack of information on
releases and waste management practices would continue. EPA believes
that adding the proposed industry groups to the EPCRA section 313 list
of facilities will improve the scope of multimedia data on releases
and transfers of toxic chemicals. This, in turn, will provide
information to communities, empower communities to play a meaningful
role in environmental decision-making, improve the quality of
environmental decision-making by government officials, and provide
useful information to facilities themselves. EPA believes that this is
a sound rationale for proposing the addition of industry groups to the
EPCRA section 313 list.

B. Existing Reporting Requirements

The Toxics Release Inventory includes multimedia data on releases,
transfers and pollution prevention activities for over 600 toxic
chemicals. While there are no national data bases that are comparable
to the whole of TRI, several data sources exist that contain
mediaspecific data on releases and transfers. Sources maintained by
EPA include the AIRS Facility Subsystem (AFS) of the Aerometric
Information Retrieval System (AIRS), which tracks air emissions from
industrial plants; the Permit Compliance System (PCS), which tracks
permit compliance and enforcement status of facilities regulated by
the National Pollutant Discharge Elimination System (NPDES) under the
Clean Water Act; and the Biennial Reporting System (BRS), maintained
by the Office of Solid Waste and Emergency Response (OSWER). Other
sources include the chemical inventory data collected under section
312 of EPCRA and Clean Air Act Title V operating permits. TRI data
cannot be replicated using these alternative sources. Even if
information from these data bases could be combined to form an analog
of the data contained in TRI, none of these sources provides release
and transfer or pollution prevention data that could replace the data
reported on TRI. In addition, these other data collections differ in
the information collected, the chemical and facility coverage, the
various thresholds and reporting frequencies, and how the data are
reported. The definitional consistency provided by TRI creates
important advantages over any emissions data system that might be
assembled from non-TRI sources. These other data sources perform the
functions for which they were designed, but they were not intended to
serve the same purposes as TRI. For all these reasons, EPA has
concluded that while there may be some degree of overlap between the
reporting required under EPCRA section 313 and PPA section 6607 and
that required under other statutes, these reporting requirements do
not duplicate or conflict with each other.

C. Regulatory Alternatives

EPA evaluated a number of options in the course of developing this
proposed rule. The options were created by varying the scope of the
expansion (i.e., choosing alternative industry groups) and modifying
selected structural elements of the program (i.e., modifying the
guidance for otherwise use, changing the de minimis exemption for
certain industries under consideration, etc.). This analysis was based
on the options under consideration before the completion of the
screening process described in Unit II.C. and II.D. of this preamble.
The following alternatives summarize the scope of EPA's analysis.
Alternative I.A
Comprehensive industry coverage. Includes the following industries at
the 2-digit SIC code level: mining; transportation; electric, sanitary
and gas services; and wholesale trade. Also includes solvent recovery
services. Maintains current interpretation of otherwise use.
Alternative I.B
Same industries as Alternative I.A, but with revised interpretation of
otherwise use.
Alternative II.A
Limited industry coverage, with a mix of 2-digit and 4-digit SIC
codes. Includes the following industries: metal mining; coal mining;
electric services, electric and other services combined; combination
utilities; commercial hazardous waste treatment; storage and disposal
facilities that are RCRA subtitle C facilities; chemical and allied
products - wholesale; and petroleum bulk stations and terminals -
wholesale. Also includes solvent recovery services. Maintains current
interpretation of otherwise use.
Alternative II.B
Same industries as Alternative II.A, but with revised interpretation
of otherwise use.
Alternative III.A:
Modified limited industry coverage. A mix of 2-digit and 4-digit SIC
codes, with certain exemptions and limitations. Includes the following
industries: metal mining, excluding mining services; coal mining,
excluding mining services and extraction activities; coal- and
oil-fired electric utilities; commercial hazardous waste treatment,
storage and disposal facilities that are RCRA subtitle C facilities;
chemical and allied products - wholesale; petroleum bulk stations and

[[Page 33610]]

terminals - wholesale; and solvent recovery services. Maintains
current interpretation of otherwise use.
Alternative III.B
Same industries as Alternative III.A, but with revised interpretation
of otherwise use. This is the proposed alternative. Alternative IV.A
Same industries as Alternative I.A, but with limited reporting from
mines. The threshold determination for those toxic chemicals being
extracted or mined would be required only for the primary product
distributed in commerce.
Alternative IV.B
Same industries as Alternative I.A, but with expanded reporting from
mines. Mining and extraction of ore would be interpreted as
manufacturing, not processing, so that the de minimis exemption would
not apply to other constituents in the ore. Alternative V
Same industries as Regulatory Alternative I.A, but with expanded
reporting from electric utilities. The de minimis exemption would not
be applied to constituents of fuels at electric utilities. Table I in
Unit XI of this preamble provides a summary of the number of
facilities estimated to submit reports under EPCRA section 313, the
number of reports they are anticipated to submit, and the associated
costs under each regulatory alternative. Costs are lower after the
first year because facilities will be familiar with the reporting
requirements, and many will be able to update or modify information
reported on the previous year's report instead of originating data for
the first time. See Unit XI.C. of this preamble for more information
on costs for different compliance tasks under EPCRA section 313.
In proposing this rule, EPA has sought to balance the right of the
public to know about releases and other generation of toxic chemicals
as waste in their neighborhoods and the benefits provided by the
expanded knowledge with the costs which the rule will impose on
industry, including the impact on small entities.

D. Proposed Alternative

Table II in Unit XI of this preamble displays the results by industry
for the proposed option (which is Alternative III.B in Unit IX.C.).
EPA estimates that a total of 6,400 facilities will submit 38,000
reports, which include both Form Rs and Toxic Chemical Release
Inventory Certification Statements (see 59 FR 61488, November 30,
1994). Total incremental compliance costs are also presented in Table
II by industry sector. As shown, aggregated costs in the first year
are estimated to be $191 million; in subsequent years they are
estimated to be $118 million per year.
EPA's quantitative analysis does not include the effect on facilities
in SIC codes 20 through 39 of changing the guidance for otherwise use
to include disposal, stabilization, and treatment for destruction. As
indicated in Unit IV.D. of this preamble, EPA does not believe that
this change in guidance will affect the EPCRA section 313 reporting
status of a significant number of facilities in the manufacturing
sector. Facilities in the manufacturing sector may be affected if they
receive wastes from other facilities, manage these wastes through
treatment or disposal and do not manufacture, process or otherwise use
the chemicals under current definitions, or do so below the reporting
threshold. The Agency is requesting comment on the extent to which the
revised interpretation may affect facilities that currently report on
TRI.
EPA will incur additional costs for adding new industry groups under
EPCRA section 313. These costs include developing policy and guidance
for the new industries, providing outreach and training, processing
the reports that are submitted, disseminating the resulting
information and performing compliance and enforcement audits. The
total costs to EPA are estimated to be $2.7 million per year.

E. Associated Requirements

There are various state and federal requirements that are triggered by
other statutes and regulations when a facility files a report under
EPCRA section 313. The associated requirements include state taxes and
fees, state pollution prevention planning requirements, and special
requirements for certain NPDES storm water permits. While these
associated requirements are discussed in the economic analysis, they
are not costs of the proposed rule, and are not treated as such in the
analysis.
Sixteen states have fees, taxes or pollution prevention requirements
associated with the requirement to file a Form R. EPA's economic
analysis includes a conservative estimate that the proposed rule could
result in total payments of $1 million to $8 million per year in fees
and taxes by affected facilities. It is important to note that these
fees and taxes do not necessarily equate with social costs, since
payments that do not result in the consumption of a resource (e.g.,
labor) are transfer payments and do not represent costs to society.
Insufficient information was available to classify the fee payments as
either social costs or transfer payments. Nor did EPA attempt to
estimate the benefits of these fees and taxes (which are used in some
states to fund technical assistance programs and grants, and which may
also result in a more efficient allocation of resources in and of
themselves by working as economic incentives to reduce emissions).
Although the state fees, taxes and pollution prevention planning
requirements are associated with EPCRA section 313 reporting, they are
not required by this rulemaking. EPA has not included the costs or
benefits of associated state requirements along with the costs and
benefits of the rule, because it is inappropriate to do so. States
which have these requirements may wish to assess the benefits and
costs of applying them to new industries.
EPA has also established associated requirements for some facilities
applying for certain storm water permits under the NPDES program.
These NPDES storm water permit requirements are based on the coverage
of EPCRA section 313 at the time the permits were issued. The NPDES
requirements do not apply to industries or chemicals that are added to
the EPCRA section 313 list until the time of permit renewal (which
occurs every 5 years), and may not apply in subsequent permits,
depending on the Agency's decisions at the time those permits are
issued.
EPA has not estimated the aggregate costs of the associated
requirements for new facilities. It would also be inappropriate to
making a listing determination under EPCRA section 313 on the basis of
these NPDES requirements. There will be no impact at the current time,
because there will be no changes to the NPDES requirements while the
current permits are in effect. Moreover, the costs and benefits of the
special requirements are best considered when the NPDES storm water
permits are reissued, and a decision can be made on whether they
should be applied in subsequent permits.

F. Benefits

In enacting EPCRA and PPA, Congress recognized the significant
benefits of providing information on toxic chemical releases. TRI has
proven to be one of the most powerful forces in empowering the federal
government, state governments, industry, environmental groups and the
general public to fully participate in an informed dialogue about the
environmental impacts of toxic chemicals in the United States. TRI's
publicly available data base provides

[[Page 33611]]

quantitative information on toxic chemical releases, transfers,
recycling, and treatment. With the collection of this information
starting in 1987 came the ability for the public, government, and the
regulated community to understand the magnitude of chemical emissions
in the United States, and to assess the need to reduce these releases
and transfers. TRI enables all interested parties to establish
credible baselines, to set realistic goals for environmental progress
over time, and to measure progress in meeting these goals over time.
The TRI system has become a neutral yardstick by which progress can be
measured by all stakeholders.
The proposed rule to expand the number and type of reporting
facilities subject to TRI is intended to build upon the past success
of the program. The information reported to TRI increases knowledge of
the levels of toxic chemicals released to the environment and the
pathways of exposure, improving scientific understanding of the health
and environmental risks of toxic chemicals; allows the public to make
informed decisions on where to work and live; enhances the ability of
corporate leaders and purchasers to more accurately gauge a facility's
potential environmental liabilities; provides reporting facilities
with information on unregulated emissions that can be used to save
money as well as reduce emissions; and assists federal, state, and
local authorities in making better decisions on acceptable levels of
toxics in communities.
There are two types of benefits associated with TRI reporting --
direct and follow-on. The first type of benefit is direct, the pure
value of information on releases, transfers and other waste management
practices. It is expected that this rulemaking will generate benefits
by providing the public with access to information that otherwise
would not be available to them. The direct benefits of the rule itself
include improvements in access, understanding, awareness and
decisionmaking related to the provision and distribution of
information. The second types of benefit derive from changes in
behavior that result from the information reported to TRI. The changes
in behavior, including reductions in the releases and changes in the
waste management practices for toxic chemicals, yield health and
environmental benefits. These changes in behavior come at some cost to
industry, and the net benefits of the follow-on activities are the
difference between the benefits of decreased chemical releases and
transfers and the costs of the actions needed to achieve the decrease.
These follow-on activities, however, are not required by the rule.
Because the current state of knowledge about the economics of
information is not highly developed, EPA has not attempted to monetize
the pure information benefits of adding new industry groups to the
list of industries required to report to TRI. Furthermore, because of
the inherent uncertainty in the chain of events, EPA has also not
attempted to predict the changes in behavior that result from the
information, or the resultant net benefits (i.e., the difference
between benefits and costs). EPA does not believe that there are
adequate methodologies to make reasonable monetary estimates of either
type of benefits. Rather, EPA assessed the potential for the proposed
rule to generate benefits comparable to those generated by the
currently reporting industries by seeking data on certain
characteristics of releases and other waste management activities,
specifically air release data, which could be compared among the
various sectors currently subject to, and proposed for, addition to
EPCRA section 313. EPA analyzed release data collected under authority
of the Clean Air Act and maintained in the Aerometric Information
Retrieval System (AIRS). The analysis compared estimated air releases
of toxic chemicals from manufacturing facilities (currently subject to
TRI reporting) to those from facilities proposed for addition to EPCRA
section 313. While limitations in the data set and methodology did not
permit estimates of potential TRI releases to be developed, the
analysis clearly indicated that substantial volumes of TRI chemical
releases will be captured by expanding the coverage to include the
additional industry groups being proposed. EPA believes this evidence
supports its preliminary determination that the industry groups
proposed for addition are likely to generate useful information as
part of the TRI program. The experience of the past seven years shows
that reporting on TRI by manufacturing facilities has produced real
gains in understanding about exposure to toxic chemicals. EPA believes
that reporting by the industry groups being proposed for addition will
yield similar benefits.

X. References
 1. D B. Standard Industrial Classification Manual SIC 2+2. Dun and
    Bradstreet Information Services, (1988).
 2. GAO/RCED. Report to Congress Toxic Chemicals: EPA's Toxic Release
    Inventory Is Useful but Can Be Improved, Government Accounting
    Office, Washington, DC, 91-121, (1991).
 3. MADEP. Data Submitted by Non-Manufacturing Facilities in
    Massachusetts in 1993. Massachusetts Department of Environmental
    Protection, Boston, MA (1993).
 4. OMB. Standard Industrial Classification Manual 1987. Executive
    Office of the President, Office of Management and Budget,
    Washington, DC, (1987).
 5. SAIC. Data Analysis Documentation - All Systems (Draft). Science
    Applications International Corporation, Falls Church, VA (1996).
 6. SAIC. SIC Code Profile 10 Metal Mining (Draft). Science
    Application International Corporation, Falls Church, VA (1996).
 7. SAIC. SIC Code Profile 12 Coal Mining (Draft). Science Application
    International Corporation, Falls Church, VA (1996).
 8. SAIC. SIC Code Profile 49 Electric, Gas and Sanitary Services
    (Draft). Science Application International Corporation, Falls
    Church, VA (1996).
 9. SAIC. SIC Code Profile 50-51 Wholesale Trade Durable and
    Nondurable Goods (Draft). Science Application International
    Corporation, Falls Church, VA (1996).
10. SAIC. SIC Code Profile 73 Business Services (Draft). Science
    Application International Corporation, Falls Church, VA (1996).
11. U.S. Congress. Congressional Record, Senate Debate on Passage,
    Vol. 131 (1985).
12. U.S. Congress. Congressional Record, Debate Prior to Passage of
    House Bill, Vol. 132 (1985).
13. U.S. Congress, House of Representatives. Conference Report No.
14. 99th Cong., 2nd Session (1986).
15. USDOC. County Business Patterns 1993: United States. Department of
    Commerce, Bureau of the Census, Washington, DC, BP-93-1 (1995).
16. USEPA/OAR. Report to Congress: Waste from Combustion of Coal by
    Electric Utilities. U.S. Environmental Protection Agency,
    Washington, DC (1988).
17. USEPA/OECA. Office of Compliance Sector Notebook Project: Profile
    of the Metal Mining Industry. U.S. Environmental Protection
    Agency, Washington, DC, 310-R-95008, (1995).
18. USEPA/OPPT. Additional Considerations in Selecting Industries for
    Addition to EPCRA Section 313. U.S. Environmental Protection
    Agency, Washington, DC (1986).
19. USEPA/OPPT. Appendix B: Routinely Reported Information - Chemical
    Detail. U.S. Environmental Protection Agency, Washington, DC
    (1996).
    
[[Page 33612]]

19. USEPA/OPPT. Development of SIC Code Candidates: Screening
Document. U.S. Environmental Protection Agency, Washington, DC (1996).
20. USEPA/OPPT. Economic Analysis of the Proposed Rule to Add Certain
Industries to EPCRA Section 313. U.S. Environmental Protection Agency,
Washington, DC (1996).
21. USEPA/OPPT. EPCRA Section 313 Otherwise Use Activities. U.S.
Environmental Protection Agency, Washington, DC (1986). 22.
USEPA/OPPT. Toxic Chemical Release Inventory Reporting Form R and
Instructions (Revised 1995 Version). U.S. Environmental Protection
Agency, Washington, DC, 745-K-96-001, (1996). 23. USEPA/OSWER. Report
to Congress: Wastes from the Extraction and Beneficiation of Metallic
Ores, Phosphate Rock, Asbestos, Overburden from Uranium Mining, and
Oil Shale. U.S. Environmental Protection Agency, Washington, DC
(1985).

XI. Regulatory Assessment Requirements

A. Executive Order 12866

Pursuant to Executive Order 12866 (58 FR 51735, October 4, 1993), it
has been determined that this is a ``significant regulatory action''
because the proposed action is likely to have an annual effect of $100
million or more. This action was submitted to OMB for review, and any
comments or changes made during that review have been documented in
the public record.

B. Regulatory Flexibility Act

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Agency must consider whether a regulatory action will have a
significant adverse economic impact on a substantial number of small
entities. Section 605(b) requires the Agency to either certify that a
proposed regulatory action will not have such an impact or prepare an
initial regulatory flexibility analysis. EPA has prepared an Initial
Regulatory Flexibility Analysis (IRFA), which is included as part of
the economic analysis for the proposed rule (Ref. 20). The IRFA is
summarized below.
 1. Methodology. In preparing the IRFA for this proposal, EPA has
    defined small business as any firm having 10 to 49 employees,
    instead of using the Small Business Administration's (SBA's)
    definition of 500 employees or less. Under the Regulatory
    Flexibility Act (RFA), agencies have been authorized to develop
    and apply alternative definitions of small business where
    appropriate and after providing the public with notice of and an
    opportunity to comment on the alternative, in consultation with
    the SBA. For TRI purposes, EPA adopted the alternative definition
    of 10-to-49 employees in proposing and promulgating the original
    TRI reporting rule in 1987-88 (see 52 FR 21166, 53 FR 4523 and
    accompanying regulatory impact analyses). For today's proposal,
    EPA has applied the 10-to-49 employee definition to maintain
    consistency in IRFA analyses across TRI rulemakings. Nonetheless,
    the economic analysis prepared for the proposal also includes
    alternative definitions of small entities, consistent with the
    definition used by the Small Business Administration (SBA).
    Economic impacts on small entities were calculated assuming that
    all TRI reports are Form Rs (and not Toxic Chemical Release
    Inventory Certification Statements), which yields a conservative
    estimate of costs (i.e., it is likely to overestimate the true
    impacts). Impacts were calculated in both the first year of
    reporting and in subsequent years.
    The Agency estimates that of the 6,400 facilities potentially
    affected by the proposed rule, no more than 72 percent are small
    entities. Thus, approximately 4,600 of the 6,400 facilities
    potentially affected may need to file at least one report.
    However, approximately 15,000 small entities in the industry
    groups being proposed would not have to file a report because they
    are expected to have less than 10 full-time employees, and thus
    would be exempt from the requirement to file a report. The
    overwhelming majority of these entities are small businesses as
    defined above (10 to 49 employees). A small number of small
    entities are utilities owned by small governmental jurisdictions.
    For purposes of this analysis, EPA has considered small entities
    by industry sector, including governmentally-owned utilities
    together with private utilities.
    To assess the potential impacts on these small entities of
    expanding the TRI program to additional industry groups, EPA first
    conducted a preliminary screening analysis. The screening analysis
    used compliance costs as a percentage of annual company sales to
    measure potential impacts. This methodology was based on the
    premise that the cost impact percentage is a good measure of a
    firm's ability to afford the costs attributable to a regulatory
    change. For purposes of screening small entity impacts, comparing
    compliance costs to revenues provides a reasonable first-order
    indication of the magnitude of the regulatory burden relative to a
    commonly available measure of a company's business volume. Where
    regulatory costs represent a very small fraction of a typical
    firm's revenue (for example, less than 1 percent), the financial
    impacts of the regulation are expected to be minimal. EPA is
    currently in the process of considering how to define the RFA
    statutory terms ``significant impact'' and ``substantial number.''
    Until EPA determines how best to define those terms, the Agency
    has decided for this proposal to prepare an initial regulatory
    flexibility analysis if compliance costs for a substantial number
    of small entities would be greater than 1 percent of sales.
    Detailed analyses of certain SIC codes were conducted when the
    screening analysis indicated the proposed rule would cross the
    analytical thresholds stated above for potentially affected
    industry groups. The methodology for each respective detailed
    analysis was tailored to reflect the unique characteristics of
    each industry group examined.
    Based on the screening analysis, and where appropriate on more
    detailed analyses, EPA identified one group for which an initial
    regulatory flexibility analysis would be justified, the chemical
    wholesaling industry (SIC code 5169 - Chemicals Allied Products).
    Because there are sufficient uncertainties regarding the impacts
    on another industry, RCRA subtitle C hazardous waste facilities in
    SIC code 4953, EPA is also requesting comment on the magnitude and
    incidence of the impacts on this industry and the need for and
    appropriateness of adopting regulatory alternatives like those
    described for SIC code 5169. For all other potentially affected
    industry groups, EPA found the likely impact of the proposed rule
    either would be compliance costs less than 1 percent of sales or
    may not affect a substantial number of small entities, or both.
    Today's action describes the reporting and recordkeeping
    requirements associated with the proposal. The professional skills
    needed to comply with those requirements are the same as those
    required to comply with current TRI reporting requirements. Those
    skills were described in the regulatory flexibility analyses for
    the 1988 TRI reporting rule and today's proposal.
 2. SIC code 5169. Because facilities in SIC code 5169 are chemical
    wholesalers, they handle large numbers of chemicals, including
    toxic chemicals listed under EPCRA section 313. Facilities in this
    industry are expected to report primarily due to mixing, blending,
    reformulating and repackaging of EPCRA section 313 chemicals. EPA
    
[[Page 33613]]

estimates that about 10 percent of chemical wholesalers will be
required to submit reports and that reporting facilities will file
between 1 and 27 reports each. The actual number of reports per
facility will be distributed throughout this range. Based on the
revenue data for typical facilities, impacts above 1 percent are
predicted for facilities reporting the high number of reports in the
first year, and for small businesses reporting the high number of
reports in subsequent years. However, EPA believes that relatively few
businesses in this industry will file the high number of reports. The
compliance costs associated with EPCRA section 313 reporting could
have a potentially significant impact on the smaller and less
financially solvent companies in this industry. The majority of
companies, however, will not have to submit the maximum number of
reports, and will face lower costs.
3. Alternatives to reduce impacts on small businesses in SIC code
5169. Because of the potential for significant impacts on a
substantial number of facilities in SIC code 5169, EPA's economic
analysis includes a number of alternatives to reduce the impact on
small businesses in this industry. While the Agency could have elected
not to propose the addition of SIC code 5169, thereby avoiding any
small business impacts from this proposed rule to facilities in that
group, the Agency has chosen to include the industry group in the
proposal. EPA believes that reporting from this industry group will
result in a significant amount of new toxic chemical release
information to the public, particularly to communities in which these
facilities are located. Moreover, the activities of this
industry--handling chemicals--and its involvement with TRI chemicals
are very similar to those of the manufacturing universe already
subject to TRI reporting. The alternatives EPA analyzed to reduce the
impact on small businesses are described below.
Alternative 1. Expand eligibility for the alternate threshold (59 FR
61488, November 30, 1994) for facilities in SIC code 5169 by
increasing the annual reportable amount from 500 pounds and raising
the alternate manufacture, process and otherwise use threshold from 1
million pounds. Some small facilities in SIC 5169 with large numbers
of reports may still incur significant impacts to determine their
eligibility for the alternate threshold. EPCRA section 313(f)(2)
requires that any revision to the current reporting thresholds
continue to capture a substantial majority of total releases of each
listed chemical or chemical category. Because these facilities have
not reported under TRI in the past, the Agency may not have sufficient
information about releases (both types of chemicals and release
levels) with which to justify expanding the alternate threshold
eligibility for this industry group. In addition, because of the type
of information submitted on the Toxic Chemical Release Certification
Statement, the resulting data would be of more limited utility than
the data that would otherwise be reported on Form R.
Alternative 2. Allow facilities in SIC code 5169 an additional year
before they must begin reporting. EPA would use this time to perform
intensive outreach, training and technical assistance to industry.
This alternative would result in the loss of 1 year's worth of data,
in return for a relatively modest reduction in reporting burden.
Alternative 3. Require facilities in SIC code 5169 to report only on
air releases and off-site transfers. State data indicate that these
two routes account for nearly all of the releases and transfers from
facilities in SIC code 5169. Adopting this option would mean
forfeiting some information that is reported pursuant to EPCRA section
313 and all additional information reported pursuant to the PPA
section 6607. This option, therefore, appears to be inconsistent with
the existing authorities and requirements under EPCRA section 313 and
PPA section 6607. Further, to the extent that facilities in this
industry actually report only air releases and off-site transfers
under the current requirements, EPA has overestimated both compliance
costs and small business impacts in the standard analysis. Alternative
4. Expand the range reporting option for facilities in SIC code 5169
beyond the current 1,000 pound limit to a higher level such as 2,000,
5,000 or 10,000 pounds. Adopting this alternative would reduce the
precision of the data in return for a relatively modest reduction in
reporting burden.
Alternative 5. Require facilities in SIC code 5169 to report on their
throughput for each chemical and on the types of processes and
equipment being used. EPA would then combine this information with
emission factors to develop release and transfer estimates. This
alternative would reduce the reporting burden, because facilities in
this industry are presumed to track their throughput and could readily
identify the activities and types of equipment used. However, the
resulting release data would be of reduced utility to the public,
because they would be based on average emission factors and would not
be specific to an individual facility. Finally, this option appears to
be inconsistent with the existing authorities and requirements under
EPCRA section 313 and PPA section 6607. Alternative 6. Exempt small
businesses in SIC 5169 from reporting. The overwhelming majority of
businesses in this industry are small; however, it is anticipated that
a significant portion of reported releases would be from small
businesses. Adopting this option could lead to substantial gaps in
information, especially at the community level. Furthermore, only
those small firms submitting a large number of reports may face
significant impacts. By contrast, this alternative would substantially
reduce the amount of information available without targeting the
relief to those particular facilities facing high impacts (i.e., those
submitting a large number of reports). EPA is seeking comment on the
alternatives to reduce impacts on small facilities in SIC code 5169.
EPA requests comment on whether any of the alternatives would
accomplish the stated objective of EPCRA section 313 while minimizing
a potential economic impact on small entities.
4. RCRA Subtitle C Facilities in SIC Code 4953. The screening analysis
indicated that TRI reporting by facilities in SIC code 4953 may impose
a compliance costs of more than one percent of sales on some small
facilities in this SIC code if EPA revises the guidance on otherwise
use to include disposal, stabilization, and treatment for destruction.
EPA is not highly confident of the accuracy of the estimated number of
reports per facility if the guidance on otherwise use is revised, and
believes that the current figure is an overestimate. Consequently, the
actual number of reports submitted by facilities in SIC code 4953 and
the costs to prepare and submit them may be considerably lower than
estimated by the screening analysis. Furthermore, relatively few of
the facilities in this industry group are small businesses according
to the definition EPA has used to develop this analysis (i.e., less
than 50 employees). Recognizing this uncertainty, EPA is particularly
interested in comments and data related to these issues. EPA will
consider alternatives, similar to those considered for SIC code 5169,
if there is sufficient reason to believe that requiring RCRA subtitle
C facilities to report on TRI would impose a significant burden on a
substantial number of small entities. EPA seeks comment on this issue.

[[Page 33614]]

5. Conclusions. EPA has determined that this regulatory action may
impose an adverse impact on small entities in SIC code 5169 (Chemicals
and Allied Products Wholesale). EPA currently has insufficient
information to determine the impact on affected RCRA subtitle C
facilities in SIC code 4953 that are small entities. This action would
not be expected to have a significant impact on a substantial number
of small entities in the remainder of the industries being proposed.
Information relating to this determination has been provided to the
Chief Counsel for Advocacy of the Small Business Administration, and
is included in the docket for this rulemaking. Any comments regarding
the economic impacts that this proposed regulatory action may impose
on small entities should be submitted to the Agency at the address
listed above.

C. Paperwork Reduction Act

The information collection requirements in this proposed rule, as well
as Form R have been submitted for approval to the Office of Management
and Budget (OMB) under the Paper Work Reduction Act, 44 U.S.C. 3501 et
seq. An Information Collection Request (ICR) document that covers the
burden associated with today's proposal has been prepared by EPA (ICR
No. 1784.01) and a copy may be obtained from Sandy Farmer, OPPE
Regulatory Information Division; U.S. Environmental Protection Agency
(2136); 401 M St., S.W.; Washington, DC 20460, by calling (202)
260-2740, or electronically by sending an e-mail message to
``farmer.sandy@epamail.epa.gov.'' If necessary, EPA may be augmenting
the docket with additional information. This information would be
collected from industrial facilities in local communities in order to
provide basic information to those communities and the general public,
as well as the regulated community and all levels of government, on
releases and other waste management practices involving listed toxic
chemicals. Collection of this data would further EPA's goal of
enhancing community right-to-know. Provision of this information would
be mandatory, pursuant to EPCRA section 313 (42 U.S.C. 11023) and PPA
section 6607 (42 U.S.C. 13106). Regulations codifying the EPCRA
section 313 reporting requirements can be found at 40 CFR part 372.
Respondents may designate the specific chemical identity of a
substance as a trade secret, pursuant to EPCRA section 322 (42 U.S.C.
11042). Regulations codifying the trade secret provisions can be found
at 40 CFR part 350. Currently, approximately 23,000 facilities report
on TRI.
EPA's economic analysis includes burden and cost estimates for
specific compliance tasks under EPCRA section 313 (Ref. 20). Such
tasks include rule familiarization, completion of Form Rs and Toxic
Chemical Release Inventory Certification Statements and recordkeeping.
Total burden and cost can be calculated by combining these estimates
with the number of affected facilities and reports predicted. The five
component tasks are described below. The ICR submitted to OMB provides
burden and cost estimates for those facilities proposed for addition
in today's proposed rule.
 1. Compliance determination. Facilities must determine whether they
    meet the criteria for section 313 reporting. Costs attributed to
    making this determination result from time required to become
    familiar with the definitions, exemptions, and threshold
    requirements under the TRI program, to review the list of EPCRA
    section 313 chemicals, and to conduct preliminary threshold
    determinations in order to determine if the facility would be
    required to report. These costs are also applied to facilities
    that would not be required to report, but that would incur some
    cost to ascertain that fact. Thus, the number of facilities
    undertaking compliance determination activities exceeds the number
    of reporting facilities.
 2. Rule familiarization. Facilities that would be reporting under
    section 313 for the first time must read the reporting package and
    become familiar with the reporting requirements. This would
    involve reading the instructions to the Toxic Chemical Release
    Inventory Reporting Form R, and may also involve other activities
    such as consulting EPA guidance documents. Costs for rule
    familiarization would only be incurred in the first year after a
    facility becomes subject to reporting, since in subsequent years
    the staff would be familiar with the requirements that apply to
    their facility.
 3. Calculations and report completion. Facilities that determine they
    must report under section 313 would incur costs to retrieve,
    process, review, and transcribe information to complete Form R.
    Facilities qualifying for the alternate reporting threshold may
    file a Toxic Chemical Release Inventory Certification Statement, a
    streamlined form containing limited informational requirements,
    which is estimated to require less burden and cost to complete
    than Form R. Report completion costs would be somewhat higher in
    the first year of reporting, relative to subsequent years. In many
    instances the process in subsequent years would consist of
    updating data and modifying the information reported on the
    previous year's report, rather than originating or retrieving data
    for the first time.
 4. Recordkeeping. Following completion of the appropriate report,
    additional labor costs are incurred for record keeping, which
    would allow a facility to use past information in making
    calculations in subsequent years.
    Table III lists the estimated average burden and cost for each of
    the tasks in the first year of reporting. Table IV describes the
    average burden and costs in subsequent years. Economies of scale
    for facilities filing multiple reports have not been estimated.
    The time estimates used by EPA are average values. As with any
    average, some facilities will be above the average and others will
    be below it. EPA recognizes that large, complex facilities may
    require more than the average time to comply. However, there are
    many other facilities subject to the rule that are not large or
    complex. These facilities will often have a simpler compliance
    process. EPA believes that its time estimates represent reasonable
    averages. For Form R, the industry reporting burden for collecting
    this information (including recordkeeping) is estimated to average
    74 hours per report in the first year, at a cost of $4,587. In
    subsequent years, the burden is estimated to average 52.1 hours
    per report at a cost of $3,023. For a Toxic Chemical Release
    Inventory Certification Statement, the burden is estimated to
    average 49.4 hours per report in the first year at a cost of
    $3,101. In subsequent years, the burden is estimated to average
    34.6 hours per report at a cost of $2,160. These estimates include
    the time needed to review instruction; search existing data
    sources; gather and maintain the data needed; complete and review
    the collection of information; and transmit or otherwise disclose
    the information. The actual burden to a specific facility may
    deviate from this estimate depending on the complexity of the
    facilitys operations and the profile of the releases at the
    facility.
    The proposed rule would result in an estimated 6,428 additional
    respondents submitting an estimated total of an additional 33,463
    Form Rs and 4,251 Toxic Chemical Release Inventory Certification
    Statements. This results in a total hour burden of 3.1 million
    hours in the first year and 1.9 million hours in subsequent years,
    at a total cost of $191 million in the first year and $119 million
    in subsequent years. Burden means the total time, effort, or
    financial resources expended by persons
    
[[Page 33615]]

to generate, maintain, retain, or disclose or provide information to
or for a Federal agency. This includes the time needed to review
instructions; develop, acquire, install, and utilize technology and
systems for the purposes of collecting, validating, and verifying
information, processing and maintaining information, and disclosing
and providing information; adjust the existing ways to comply with any
previously applicable instructions and requirements; train personnel
to be able to respond to a collection of information; search data
sources; complete and review the collection of information; and
transmit or otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required to
respond to a collection of information unless it displays a currently
valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
Comments are requested on the Agency's need for this information, the
accuracy of the provided burden estimates, and any suggested methods
for minimizing respondent burden, including through the use of
automated collection techniques. Send comments on the ICR to the EPA
at the address provided above, with a copy to the Office of
Information and Regulatory Affairs, Office of Management and Budget,
725 17th St., N.W., Washington, DC 20503, marked ``Attention: Desk
Officer for EPA.'' Please remember to include the ICR number in any
correspondence. The collection of information and other requirements
under section 313 of EPCRA and section 6607 of the PPA on the Form R
are covered under OMB approval number 2070-0093, which was issued on
May 14, 1992. Although this approval normally would have expired on
November 30, 1992, it remains in effect until further Agency action
pursuant to the 1993 Department of Veterans Affairs and Housing and
Urban Development and Independent Agencies Appropriations Act, Pub. L.
102-389, signed October 6, 1992, which states that:

Notwithstanding the Paperwork Reduction Act of 1980 or any
requirements thereunder the Environmental Protection Agency Toxic
Chemical Release Inventory TRI Form R and instructions, revised 1991
version issued May 19, 1992, and related requirements (OMB No. 2070-
0093), shall be effective for reporting under section 6607 of the
Pollution Prevention Act of 1990 (Public Law 101-508) and section 313
of the Superfund Amendments and Reauthorization Act of 1990 (Public
Law 99-499) until such time as revisions are promulgated pursuant to
law.

Facilities subject to this proposed rule also would be eligible to
submit a certification statement under the Toxic Release Inventory
Certification Statement. The Office of Management and Budget (OMB) has
approved the information collection requirements for the Toxic Release
Inventory Certification Statement under the provisions of the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB
control number 2070-0143 (EPA ICR No. 1704).
These ICR approvals for currently reporting facilities remains in
effect until further Agency action.

D. Unfunded Mandates Reform Act and Executive Order 12875 Unfunded
Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. L.
104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on state, local, and tribal
governments and the private sector. Under section 202 of UMRA, EPA
must generally prepare a written statement, including a cost-benefit
analysis for proposed and final rules with ``Federal mandates'' that
may result in expenditures by state, local, and tribal governments, in
the aggregate, or by the private sector, of $100 million or more in
any 1 year. Before promulgating an EPA rule for which a written
statement is needed, section 205 of UMRA generally requires EPA to
identify and consider a reasonable number of regulatory alternatives
and adopt the least costly, most cost-effective, or least burdensome
alternatives that achieves the objectives of the rule. The provisions
of section 205 do not apply when they are inconsistent with applicable
law. Moreover, section 205 allows EPA to adopt an alternative other
than the least costly, most cost-effective, or least burdensome
alternative if the Administrator publishes with the final rule an
explanation of why the alternative was not adopted. Before EPA
establishes any regulatory requirements that significantly or uniquely
affect small governments, including tribal governments, it must have
developed under section 203 of UMRA, a small government agency plan.
The plan must provide for notifying potentially affected small
governments, enabling officials of affected small governments to have
meaningful and timely input into the development of the regulatory
proposals with significant Federal intergovernmental mandates, and
informing, educating, and advising small governments on compliance
with the regulatory requirements. EPA has determined that this
proposed rule is likely to contain a Federal mandate that may result
in expenditures of $100 million or more for the private sector in any
1 year. EPA has prepared, under section 202 of the UMRA, a written
statement, entitled ``Unfunded Mandates Reform Act Statement on
Federal Mandate Imposed by the Expansion of the Toxic Release
Inventory to Include Certain Non-Manufacturing Industries.'' This
document is available in the docket for this rulemaking.
EPA is proposing this rule under sections 313 and 328 of EPCRA. EPA
estimates that private expenditures will exceed the threshold of $100
million in all years and that public expenditures will fall well below
the threshold for all years. EPA prepared an economic impact analysis
of the proposal, entitled Economic Analysis of the Proposed Rule to
Add Certain Industries to EPCRA Section 313, in which it considered
several regulatory alternatives (Ref. 20). EPA estimates that the
costs of the proposed rule will be $190 million in the first year and
$118 million in subsequent years. Of this, only $8 million in the
first year and $5 million in subsequent years is expected to consist
of costs to state, local, or tribal governments. These cost estimates
are based on the anticipated reporting from publicly-owned electric
utilities that are coal- or oil-fired.
EPA estimates that the proposed regulation is highly unlikely to have
any measurable effect on the national economy, nor is it expected to
have disproportionate budgetary effects on a particular segment of the
private sector. EPA has not identified any sources that are available
from either EPA or other Federal Agencies to pay for State, local, or
tribal government costs, nor has it identified any EPA or Federal
resources specifically intended to carry out the intergovernmental
mandate.
Section 203 of UMRA provides that before establishing any regulatory
requirements that might significantly or uniquely affect small
governments, the agency shall develop a small government agency plan.
Because costs to the public sector are estimated to be considerably
below $100 million in any year, EPA finds no significant impacts on
small governments; nor is the proposed rule expected to uniquely
affect them.
Because this proposed rule does not contain a significant Federal
intergovernmental mandate, the UMRA section 204 requirements are not
triggered. The Agency, however, has sought interaction with state and
local officials of the type contemplated by

[[Page 33616]]

section 204 of UMRA and Executive Order 12875, ``Enhancing the
Intergovernmental Partnership.'' EPA has conducted outreach to
organizations representing these entities, and will continue a
constructive dialogue to ensure that pertinent issues are addressed.

E. Executive Order 12898

Pursuant to Executive Order 12898 (59 FR 7629, February 11, 1994),
entitled Federal Actions to Address Environmental Justice in Minority
Populations and Low-Income Populations, the Agency has considered
environmental justice-related issues with regard to the potential
impacts of this proposed action on the environmental and health
conditions in low-income populations and minority populations. In
keeping with Executive Order 12898, as part of its analysis in support
of this proposed expansion of the TRI program to include new industry
groups, EPA has examined the distribution patterns of public
information on toxic chemical releases and transfers (which may have
substantial environmental impacts on surrounding communities). The
Agency believes that the Environmental Justice Analysis described
below is an important part of its overall environmental justice
strategy, and is in keeping with the spirit of the Executive Order.
The Agency interprets its responsibilities under the Order as they
would apply to this rulemaking activity to include exploring the
distribution of information benefits, in demographic terms, of the
expansion. To assess the implications of the rulemaking on
environmental justice, the Agency examined demographic characteristics
for populations residing in jurisdictions (counties or zip codes)
where facilities in the proposed industries are located. The analysis
is included as part of the economic analysis for the proposal (Ref.
20). The analysis found that households with annual incomes less than
$15,000 and minority and urban populations are slightly
overrepresented in communities containing facilities in the proposed
industry groups. The TRI expansion would also result in persons in a
large number of communities receiving TRI information about facilities
in their vicinity for the first time. By adding the proposed industry
groups, EPA will be creating informational benefits for certain
subpopulations that previously did not receive TRI information on
releases and transfers of toxic chemicals in their communities.

                               Table 1.--Summary of Regulatory Alternatives

  _________________________________________________________________
                                   
                                                  Annual                  In
dustry Costs ($ million per year)
                                  ------------------------------------------
---------------------------------
    Regulatory Alternative             Number of

                                       Reporting      Number of Reports
First Year      Subsequent Year
                                       Facilities

  _________________________________________________________________
                                   
I.A Comprehensive industries,

current otherwise use

interpretation..................... 49,174 110,217 793 349
I.B Comprehensive industries,

revised otherwise use

interpretation..................... 52,378 249,063 1,437 794
II.A Limited industries, current

otherwise use interpretation....... 8,354 37,077 176 116
II.B Limited industries, revised

otherwise use interpretation....... 8,385 43,637 206 137
III.A Proposed industries, current

otherwise use interpretation....... 6,397 31,154 149 98
III.B Proposed industries, revised

otherwise use interpretation....... 6,428 37,714 191 119
IV.A Comprehensive industries,

current otherwise use

interpretation, limited mining

reporting.......................... 49,127 109,695 791 347
IV.B Comprehensive industries,

current otherwise use

interpretation, expanded mining

reporting.......................... 50,602 120,905 846 383
V. Comprehensive industries, current

otherwise use interpretation,

expanded electric utility reporting 49,174 116,833 821 368
  _________________________________________________________________
                                   
                                              Table 2.--Summary of Reporting
for Proposed Industries

  _________________________________________________________________
                                   

Percent of                         Industry Costs ($ million per year)
                                         Number of          Number of
Facilities in     Annual Number of -------------------------------------
            Industry                   Facilities in        Reporting
 Industry           Reports
                                          Industry          Facilities
Reporting                             First Year      Subsequent Years

  _________________________________________________________________
                                   
Metal Mining.......................... 1,060 328 31,176 6.5 3.8 Coal
Mining........................... 3,312 321 10 Electric
Utilities.................... 3,213 974 30,567 26.6 16.6

Hazardous Waste Treatment Disposal

Facilities........................... 164 164 100,711 31.2 21.5
Chemicals & Allied Products Wholesale. 9,014 782 9,139 51.5 33.5

Petroleum Bulk Stations & Terminals

Wholesale............................ 10,292 3,842 37,394 69.3 40.7
Solvent Recovery Services............. 40 17 43
Total................................. 28,021 6,428 23,714 191.1 118.8
  _________________________________________________________________
                                   
[[Page 33617]]
                                                       Table 3.--First Year
Burden and Cost

  _________________________________________________________________
                                   
                                                                      Averag
e Time (hours)

Activity
----------------------------------------------------------------------
----- Average Cost

                                                  Managerial               T
echnical                 Clerical

  _________________________________________________________________
                                   
Rule Familiarization........................                     12.0
        22.5                      0.0  $2,243 per facility
Compliance Determination....................                      4.0
        12.0                      0.0  $1,010 per facility

  _________________________________________________________________
                                   
Form R Calculations and Completion..........                     20.9
        45.2                      2.9  $4,330 per report
Certification Calculations and Completion...                     16.5
        27.7                      2.2  $2,947 per report
Recordkeeping (Form R)......................                      0.0
         4.0                      1.0  $257 per report
Recordkeeping (Certification)...............                      0.0
         2.4                      0.6  $154 per report

  _________________________________________________________________
                                   
[[Page 33618]]
                                                    Table 4.--Subsequent Yea
r Burden and Costs

  _________________________________________________________________
                                   

Average Time (hours)
                   Activity                       --------------------------
-------------------------------------------------       Average Cost
                                                          Managerial
    Technical                 Clerical

  _________________________________________________________________
                                   
 Compliance Determination............................ 1.0 3.0 0.0 $252 per
 facility
 
Form R Calculations and Completion..................                     14.3
                30.8                      2.0        $2,946 per report
Certification Calculations and Completion...........                     11.2
                18.9                      1.5        $2,006 per report
Recordkeeping (Form R)..............................                      0.0
                 4.0                      1.0          $257 per report
Recordkeeping (Certification).......................                      0.0
                 2.4                      0.6          $154 per report

  _________________________________________________________________
                                   
List of Subjects in 40 CFR Part 372

Environmental protection, Community right-to-know, Reporting and
recordkeeping requirements, Toxic Chemicals.

Dated: June 21, 1996.
Carol M. Browner,
Administrator.
Therefore, it is proposed that 40 CFR part 372 be amended to read as
follows:

PART 372--[AMENDED]
 1. The authority citation for part 372 would continue to read as
    follows:
    
Authority: 42 U.S.C. 11013 and 11028.

2. In Sec. 372.3, by alphabetically adding the following definitions
to read as follows:

Sec. 372.3 Definitions.
  * * * * *
    Extraction means the physical removal or exposure of ore, coal,
    minerals, waste rock, or overburden prior to beneficiation, and
    encompasses all extraction-related activities prior to
    beneficiation. Extraction does not include beneficiation, coal
    preparation, mineral processing, in situ leaching or any further
    activities.
  * * * * *
    Treatment for destruction means the destruction of the toxic
    chemical such that the substance is no longer a toxic chemical
    subject to reporting under EPCRA section 313.
  * In Sec. 372.22, by revising paragraph (b) to read as follows:
    
Sec. 372.22 Covered facilities for toxic chemical release reporting.
  * * * * *
    (a) * * *
    (b) The facility is in Standard Industrial Classification major
    group codes 10 (except 1081), 12 (except 1241), and 20 through 39
    and industry codes 4911 (limited to facilities that combust coal
    and/or oil), 4931 (limited to facilities that combust coal and/or
    oil), 4939 (limited to facilities that combust coal and/or oil),
    4953 (limited to facilities regulated under the Resource
    Conservation and Recovery Act, subtitle C, 42 U.S.C. section 6921
    et seq.), 5169, 5171, and 7389 (limited to facilities primarily
    engaged in solvents recovery services on a contract fee basis) (as
    in effect on January 1, 1987) by virtue of the fact that it meets
    one of the following criteria: (1) The facility is an
    establishment with primary SIC major group codes 10 (except 1081),
    12 (except 1241), and 20 through 39 and industry codes 4911
    (limited to facilities that combust coal and/or oil), 4931
    (limited to facilities that combust coal and/or oil), 4939
    (limited to facilities that combust coal and/or oil), 4953
    (limited to facilities regulated under the Resource Conservation
    and Recovery Act, subtitle C, 42 U.S.C. section 6921 et seq.),
    5169, 5171, and 7389 (limited to facilities primarily engaged in
    solvents recovery services on a contract fee basis).
    (2) The facility is a multi-establishment complex where all
    establishments have major codes 10 (except 1081), 12 (except
    1241), and 20 through 39 and industry codes 4911 (limited to
    facilities that combust coal and/or oil), 4931 (limited to
    facilities that combust coal and/or oil), 4939 (limited to
    facilities that combust coal and/or oil), 4953 (limited to
    facilities regulated under the Resource Conservation and Recovery
    Act, subtitle C, 42 U.S.C. section 6921 et seq.), 5169, 5171, and
    7389 (limited to facilities primarily engaged in solvent recovery
    services on a contract fee basis). (3) The facility is a
    multi-establishment complex in which one of the following is true:
    (i) The sum of the value of products shipped and/or produced from
    those establishments that have a primary major code 10 (except
    1081), 12 (except 1241), and 20 through 39 and industry codes 4911
    (limited to facilities that combust coal and/or oil), 4931
    (limited to facilities that combust coal and/or oil), 4939
    (limited to facilities that combust coal and/or oil), 4953
    (limited to facilities regulated under the Resource Conservation
    and Recovery Act, subtitle C, 42 U.S.C. section 6921 et seq.),
    5169, 5171, and 7389 (limited to facilities primarily engaged in
    solvent recovery services on a contract fee basis) is greater than
    50 percent of the total value of all products shipped and/ or
    produced from all establishments at the facility. (ii) One
    establishment having primary major codes 10 (except 1081), 12
    (except 1241), and 20 through 39 and industry codes 4911 (limited
    to facilities that combust coal and/or oil), 4931 (limited to
    facilities that combust coal and/or oil), 4939 (limited to
    facilities that combust coal and/or oil), 4953 (limited to
    facilities regulated under the Resource Conservation and Recovery
    Act, subtitle C, 42 U.S.C. section 6921 et seq.), 5169, 5171, and
    7389 (limited to facilities primarily engaged in solvent recovery
    services on a contract fee basis) contributes more in terms of
    value of products shipped and/or produced than any other
    establishment within the facility.
  * * * * *
  * In Sec. 372.38, by adding paragraph (g) to read as follows:
    
Sec. 372.38 Exemptions
  * * * * *
    (g) Coal extraction activities. If a toxic chemical is
    manufactured, processed, or otherwise used in extraction in SIC
    code 12, a person is not required to consider the quantity so
    manufactured, processed, or otherwise used when determining
    whether an applicable threshold has been met under Sec. 372.25 or
    372.27, or determining the amounts to be reported under Sec.
    372.30. [FR Doc. 96-16392 Filed 6-26-96; 8:45 am] BILLING CODE
    6560-50-F

Source: USEPA

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