[Federal Register Volume 59, Number 229 (Wednesday, November 30, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-29377]


[[Page Unknown]]

[Federal Register: November 30, 1994]


_______________________________________________________________________

Part VI





Environmental Protection Agency





_______________________________________________________________________



40 CFR Part 372




Alternate Threshold for Facilities With Low Annual Reportable Amounts; 
Toxic Chemical Release Reporting; Community Right-To-Know; Final Rule
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 372

[OPPTS-400087A; FRL-4920-5]
RIN 2070-AC70

 
Alternate Threshold for Facilities With Low Annual Reportable 
Amounts; Toxic Chemical Release Reporting; Community Right-To-Know
Agency: Environmental Protection Agency (EPA).

Action: Final rule.
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY
Summary: EPA is establishing an alternate threshold for those 
facilities with low annual reportable amounts of a listed toxic 
chemical. These are facilities that would otherwise meet reporting 
requirements under section 313 of the Emergency Planning and Community 
Right-to-Know Act of 1986 (EPCRA). A facility that meets the current 
section 313 reporting thresholds, but estimates that the total annual 
reportable amount of the chemical does not exceed 500 pounds per year, 
can take advantage of an alternate manufacture, process, or otherwise 
use threshold of 1 million pounds per year, for that chemical, provided 
that certain conditions are adhered to. EPA is establishing this 
alternate threshold in response to petitions received from the Small 
Business Administration and the American Feed Industry Association, and 
in consideration of the future management of the Toxic Release 
Inventory (TRI).

Dates: This rule is effective November 22, 1994, except for 40 CFR 
372.27 and 372.95 which have not been approved by the Office of 
Management and Budget (OMB) and are not effective until OMB has 
approved them. When approval is received, EPA will publish notice of 
the effective date.

FOR FURTHER INFORMATION CONTACT: Tim Crawford, Project Manager, Mail 
Code 7408, 401 M St., SW., Washington, DC 20460 for specific 
information on this rule, or for more information on EPCRA section 313, 
the Emergency Planning and Community Right-to-Know Hotline, 
Environmental Protection Agency, Mail Code 5101, 401 M St., SW., 
Washington, DC 20460, Toll free: 1-800-535-0202, in Virginia and 
Alaska: 703-412-9877 or Toll free TDD: 1-800-553-7672.

SUPPLEMENTARY INFORMATION:

I. Introduction

A. Statutory Authority

    This rule is issued under section 313(f)(2) and section 328 of the 
Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA), 42 
U.S.C. 11023(f)(2) and 11048. EPCRA is also referred to as Title III of 
the Superfund Amendments and Reauthorization Act of 1986 (SARA).
    Section 313 of EPCRA, 42 U.S.C. 11023, requires certain facilities 
which manufacture, process, or otherwise use listed toxic chemicals in 
excess of the applicable threshold quantities to report their 
environmental releases of such chemicals annually. The threshold 
quantities are established in section 313(f)(1). EPA has authority to 
revise these threshold amounts pursuant to section 313(f)(2); however, 
such revised threshold amounts must obtain reporting on a substantial 
majority of total releases of the chemical at all facilities subject to 
section 313. A revised threshold may be based on classes of chemicals 
or categories of facilities.
    Beginning with the 1991 reporting year, such facilities also began 
reporting source reduction and recycling data for listed chemicals, 
pursuant to section 6607 of the Pollution Prevention Act, 42 U.S.C. 
13106. This information is submitted on EPA Form 9350-1 (Form R) and 
compiled in an annual Toxic Release Inventory (TRI). Each covered 
facility must file a separate Form R for each listed chemical 
manufactured, processed, or otherwise used in excess of the reporting 
thresholds established in section 313(f)(1). Section 328, 42 U.S.C. 
11048, provides EPA with general rulemaking authority to develop 
regulations necessary to carry out the purposes of the Act.

B. Background

    On August 8, 1991, the Small Business Administration (SBA) 
petitioned EPA to exempt from TRI reporting requirements, facilities 
reporting relatively low volumes of chemicals released and transferred 
off-site. The petition proposed that EPA establish a tiering system 
within the list of reportable chemicals under EPCRA section 313. The 
petition suggested a division of the list to be based on a combination 
of chemical toxicity and amounts reported to TRI. Those chemicals 
deemed to have high toxicity concerns and/or are reported in relatively 
low volumes nationally, would have a lower ``exemption'' threshold 
(such as 10 pounds for the sum of releases and transfers) or would be 
reported on a much more simplified form. Those chemicals with lower 
toxicity concerns and are reported in relatively high volumes would be 
subject to a much higher ``exemption'' level, such as 5,000 pounds for 
the sum of releases and transfers.
    EPA published this petition as a notice in the Federal Register of 
October 27, 1992, (57 FR 48706), and received a substantial number of 
comments. Copies of these comments are available in the TSCA docket, 
OPPTS docket number 400072.
    EPA received a similar request in a petition from the American Feed 
Industry Association (AFIA) on February 14, 1992. AFIA requested an 
exemption of Standard Industrial Classification (SIC) code 2048 from 
TRI reporting. The general basis of this request is that facilities in 
SIC code 2048, ``Prepared Feeds and Feed Ingredients for Animals and 
Fowls, Except Dogs and Cats,'' have such small releases of the listed 
chemicals (primarily feed additives) that the industry as a whole does 
not contribute information that furthers the purposes of EPCRA, 
therefore, the imposition of TRI reporting on the feed industry is 
unfair. The AFIA petition suggested, as an alternative to their request 
of an SIC code deletion, that EPA adopt the approach proposed in the 
SBA petition.
    EPA published the AFIA petition as a notice in the Federal Register 
of April 13, 1993 (58 FR 19308), and again received a substantial 
number of comments. These comments are available in the TSCA docket, 
OPPTS docket number 400077.
    EPA decided to focus on a revision of current reporting 
requirements that would be applied to all industries subject to section 
313, as opposed to a revision restricted to target industrial sectors 
or SIC codes. EPA therefore considers this rule as a response to both 
the AFIA and SBA petitions.
    As part of the pre-proposal process, which included consideration 
of the comments received, EPA held a public meeting on February 16, 
1994, to present its analytical findings and open discussions regarding 
reduced reporting for facilities with low volumes of releases and 
transfers. Comment was taken on a variety of positions. Results from 
EPA's preliminary analysis are presented in an issues paper, Toxic 
Release Inventory--Small Source Exemption (January 27, 1994) (Issues 
paper), which can be obtained in the TSCA docket, OPPTS docket number 
400072, along with copies of the testimony presented at the public 
meeting. A copy of the Issues Paper can also be found in OPPTS docket 
number 400087.

C. Summary of the Proposed Rule

    EPA issued a proposed rule on July 28, 1994 (59 FR 38524), to 
establish a higher manufacture, process, or otherwise use threshold for 
those facilities having low volumes of specific chemicals for the sum 
of amounts released and transferred off-site for the purpose of 
treatment and/or disposal. Facilities qualifying for the low release 
and transfer criterion and that manufacture, process, or otherwise use 
less than the higher ``alternate'' threshold would be eligible to 
submit a certification statement instead of a full Form R report. The 
certification statement would be made available to provide the 
regulated community, compliance programs, and other interested parties 
basic information concerning which facilities were manufacturing, 
processing, or otherwise using a TRI chemical at current section 313 
reporting quantities, but whose sum of amounts released or transferred, 
for the purpose of treatment and/or disposal, were below 100 pounds. A 
facility meeting the above conditions and choosing to submit a 
certification statement would be required to maintain records 
substantiating the calculations that establish the facility's 
eligibility to apply the alternate threshold.
    EPA issued the proposal in part as a response to both the SBA and 
AFIA petitions, but the burden relief provided by the proposal was also 
a result of EPA's consideration of the future management of the overall 
TRI program. As stated in the proposal, EPA is in the process of 
significantly expanding the TRI program to add many additional 
chemicals to the list. EPA is also in the process of evaluating 
industry sectors not currently covered by TRI for addition. Both of 
these actions are expected to substantially increase the level of 
current reporting. The increase in reporting has obvious information 
management implications for EPA as well as for States. Today's action 
will make a significant portion of the current Form R data management 
capacity available for data on additional chemicals and from new 
sources. EPA believes this will also help increase the long-term 
efficiency and utility of the data system while preserving a basic link 
for the public between facility location and reportable TRI chemicals.
    EPA's proposal offered several alternatives to those advanced by 
the SBA and AFIA petitions. All aspects of the proposal were available 
for public comment. EPA requested specific comment on the following 
issues: (1) What should form the basis to determine which facilities or 
reports should be eligible for burden reduction (for example, should a 
category of facilities be based on the sum of amounts released and 
transferred or based on the sum of total waste generated for a given 
chemical); (2) what volume level should determine the eligible 
``category''; (3) what should be the alternate manufacture, process, or 
otherwise use thresholds; (4) what should constitute the certification 
statement and how often it should be submitted; and (5) what would be 
the impacts of such a reporting modification. These issues and the 
comments received are addressed in unit III. of this preamble.

D. Summary of the Final Rule

    EPA is establishing an alternate threshold for those facilities 
with a low amount of a listed toxic chemical in their ``annual 
reportable amount'' (in the proposal, this amount was referred to as 
``total waste''). Contingent upon OMB approval, the alternate threshold 
rule will be effective for activities beginning January 1, 1995. EPA 
will publish a technical amendment in the Federal Register when the 
reporting additions have been approved by OMB. This reporting 
modification will enable facilities otherwise meeting reporting 
requirements under section 313 of EPCRA to take advantage of a higher 
threshold than those set out in 40 CFR 372.25 for any listed toxic 
chemical, if the annual reportable amounts of that toxic chemical did 
not exceed 500 pounds for the combined total quantities released at the 
facility, disposed within the facility, treated at the facility (as 
represented by amounts destroyed or converted by treatment processes), 
recovered at the facility as a result of recycle operations, combusted 
for the purpose of energy recovery at the facility, and amounts 
transferred from the facility to off-site locations for the purpose of 
recycle, energy recovery, treatment, and/or disposal. These volumes 
correspond to the sum of amounts reportable for data elements on EPA 
Form R (EPA Form 9350-1;Rev. 12/4/93) as Part II column B or sections 
8.1 (quantity released), 8.2 (quantity used for energy recovery on-
site), 8.3 (quantity used for energy recovery off-site), 8.4 (quantity 
recycled on-site), 8.5 (quantity recycled off-site), 8.6 (quantity 
treated on-site), and 8.7 (quantity treated off-site).
    The alternate threshold applies to a defined category of facilities 
on a per chemical basis. The alternate manufacture, process, or 
otherwise use threshold for a specific chemical at a facility meeting 
the category definition would be an amount greater than 1 million 
pounds per year. Specifically, if a facility manufactures, processes, 
or otherwise uses 1 million pounds or less of a chemical annually, and 
if 500 pounds or less of that chemical is present in their annual 
reportable amount, then the alternate reporting option is available to 
that facility for that chemical. Other chemicals at the facility that 
do not meet the criteria for the alternate threshold would continue to 
be reported on Form R as currently required.
    To take advantage of the alternate threshold, a facility is 
required to: (1) Submit an annual certification statement indicating 
that the facility met the requirements for use of the alternate 
threshold for the specific chemical and (2) maintain and make available 
upon request accurate records substantiating the calculations 
supporting the facility's claim of eligibility for the alternate 
threshold for each chemical.

II. Explanation of this Threshold Modification

    This final rule establishes an alternate threshold for purposes of 
submitting reports under section 313 of EPCRA. The key factors that 
govern the application of this alternate threshold are, the sum of 
amounts of the listed toxic chemical in their annual reportable amount, 
and the quantity of that chemical being manufactured, processed, or 
otherwise used within the facility.
    Current reporting thresholds set forth in EPCRA section 313(f)(1) 
apply to the manufacture, process, or otherwise use of listed section 
313 chemicals. In short, these are activity-based thresholds. EPCRA 
section 313(f)(2) also provides EPA with the flexibility to revise the 
established activity-based threshold amounts in section 313(f)(1) and 
apply such revised thresholds to individual chemicals, classes of 
chemicals, or categories of facilities. However, any modification of a 
threshold must continue to obtain reporting on a substantial majority 
of total releases of the chemical at all facilities subject to the 
requirements of section 313.
    This final rule first establishes a category of facilities based on 
the annual sum of a listed toxic chemical in their annual reportable 
amount. By establishing this category of facilities, a threshold 
modification can then be applied selectively to that category. A 
facility becomes part of this category if at least one toxic chemical, 
otherwise reportable, does not exceed the 500 pound criterion for that 
chemical in their annaual reportable amount. Annaul reportable amount 
is defined as the combined total quantities released at the facility, 
disposed within the facility, treated at the facility (as represented 
by amounts destroyed or converted by treatment processes), recovered at 
the facility as a result of recycle operations, combusted for the 
purpose of energy recovery at the facility, and amounts transferred 
from the facility to off-site locations for the purpose of recycle, 
energy recovery, treatment, and/or disposal. These volumes correspond 
to the sum of amounts reportable for data elements on EPA Form R (EPA 
Form 9350-1; Rev. 12/4/93) as Part II column B or sections 8.1 
(quantity released), 8.2 (quantity used for energy recovery on-site), 
8.3 (quantity used for energy recovery off-site), 8.4 (quantity 
recycled on-site), 8.5 (quantity recycled off-site), 8.6 (quantity 
treated on-site), and 8.7 (quantity treated off-site).
    A facility in this category is then eligible to take advantage of 
an alternate manufacture, process, or otherwise use threshold of 1 
million pounds for that specific chemical. Hence, if the facility meets 
the criterion of having no more than 500 pounds in its annual 
reportable amount of a listed toxic chemical, and for that chemical, 
the facility does not exceed the manufacture, process, or otherwise use 
threshold of 1 million pounds, then that facility may submit a 
certification statement for that chemical in lieu of a full Form R. A 
facility eligible to apply the alternate threshold and choosing to 
submit a certification statement must keep records substantiating the 
facility's eligibility determination. If EPA subsequently determines 
that the facility was ineligible to apply the alternate threshold, then 
the Agency can bring an enforcement action with respect to non-
reporting of Form R.

III. Issues Considered and Comment Summary

    EPA received about 500 comments in response to EPA's Alternate 
Threshold proposal (59 FR 38524). Approximately 400 of these comments 
were submitted by industry or entities representing industry concerns. 
The remaining comments were submitted by environmental and labor 
organizations, public interests groups, state program representatives, 
and private citizens. The following section is a discussion of the 
major issues and points raised in comments received and EPA's 
consideration of those comments that pertain to this final rule. The 
major issues are discussed in the following order: Structure of the 
facility category; poundage level for the category; alternate threshold 
level; certification statement; recordkeeping requirements; covered 
facility status; degree of burden reduction; and effective date. A 
Response to Comment document, which addresses issues raised in the 
comments and outlines EPA's response in greater detail, has been 
prepared and is available through the TSCA docket (OPPTS-400087).

A. Facility Category

    The reporting modification established by this rule is intended to 
provide regulatory relief for facilities that report low amounts of 
listed toxic chemicals in their annaul reportable amount. For reasons 
stated in the proposal (59 FR 38524), this reporting modification is 
intended to help focus both industry's and EPA's resources on the data 
of greatest significance. EPA proposed to target this regulatory relief 
at facilities where the sum of releases and a subset of the transfers 
were below 100 pounds. However, EPA offered alternatives including use 
of total waste as the basis of the eligible ``category.''
    1. Category based on releases and certain transfers as proposed. 
Many industry commenters voiced approval for the structure of the 
category as initially proposed by EPA, but generally these commenters 
urged the Agency to raise the volume level of the category. Several 
comments submitted by industry requested that EPA consider all releases 
to Publicly Owned Treatment Works (POTW) as zero releases or disregard 
them from the calculations a facility must make in determining their 
eligibility for the alternate threshold. A number of commenters from 
industry said that EPA should only focus on amounts released and 
referred to the language in the statute whichP states, . . . ``such 
revised threshold shall obtain reporting on a substantial majority of 
total releases of the chemical at all facilities . . . ,'' as 
support.1 These commenters argued that transfers to POTWs and 
landfills have little environmental effect and do not represent actual 
environmental loadings. Many commenters from the animal feed and dairy 
industries referred to their most frequently released chemicals, such 
as sulfuric acid, arguing that amounts of these chemicals are almost 
completely neutralized or adequately treated by recipient POTWs and 
should not be considered a factor in a facility's eligibility. A 
similar comment suggested that, if EPA is interested in amounts going 
to or being handled by POTWs or landfills, the TRI should be expanded 
to include these types of facilities.
---------------------------------------------------------------------------

    \ \Section 313(f)(2)--The Administrator may establish a 
threshold amount for a toxic chemical different from the amount 
established by section 313(f)(1). Such revised threshold shall 
obtain reporting on a substantial majority of total releases of the 
chemical at all facilities subject to the requirements of this 
section. The amounts established under this paragraph may, at the 
Administrator's discretion, be based on classes of chemicals or 
categories of facilities.
---------------------------------------------------------------------------

    EPA disagrees with commenters who would limit the category to 
direct releases at the facility only. EPA's rationale for proposing the 
sum of releases and certain transfers was to cover direct as well as 
potential environmental loadings associated with the wastes generated 
by that facility. EPA can see no merit in the argument that transfers 
to POTWs should be discounted as part of the category determination. 
The ultimate entry into the environment of any particular chemical sent 
to a POTW in wastes is highly dependent upon the type of treatment/
disposal process at that POTW. For example, ammonia may be destroyed by 
tertiary treatment processes, but not all POTWs employ this process. 
Additionally, many chemicals, such as most metals, are not converted to 
less toxic forms during treatment processes, such as those employed by 
POTWs, and may either pass directly through these treatment operations 
and/or be directed to other media. Therefore, EPA believes that these 
amounts, along with amounts handled by other management practices that 
can potentially result in environmental releases, should be accounted 
for and be part of a facility's eligibility determination.
    Many commenters representing environmental and public interest 
groups stated their concern over the amounts of materials that would 
not be accounted for by EPA's proposed category approach. These 
commenters urged EPA to eliminate the ``recycling loophole'' which can 
be characterized by the removal from public access information on the 
volumes associated with waste management activities such as materials 
recycling. These commenters contend that not including this type of 
information as a criterion in the facility category determination 
undermines source reduction and is in conflict with national policy 
established in the Pollution Prevention Act (PPA) of 1990. Some of 
these commenters stated that the recycling loophole encourages burning 
of toxic wastes that are often transferred to cement kilns, instead of 
encouraging source reduction practices. Additional comments received 
raised concerns over hazardous emissions that result from solvent 
recycling operations, some of which are not listed within the 
manufacturing SIC codes of 20 through 39, and therefore, are not 
currently required to report to TRI. Commenters indicated that TRI 
provides specific data on transfers of hazardous wastes for the purpose 
of recycling. These data are important because they indicate where 
releases from the further processing of such toxic chemicals may be 
occurring.
    A comment from a representative of a state's toxics reporting 
program stated that significant amounts of currently reported 
information within their state would no longer be reported if EPA's 
category were implemented as proposed. Their analysis of the impact on 
their state's reporting indicated that EPA's proposal would primarily 
benefit larger businesses. This commenter noted that some facilities 
operating in their state identified as meeting the 100 pound category 
as proposed have reported off-site transfers for recycling of amounts 
as high as 3 and 15 million pounds for a given chemical. This commenter 
suggested that this ``recycling loophole'' could be eliminated by 
including off-site transfers for recycling and those amounts burned for 
energy recovery in the category determination.
    As discussed below, EPA believes that there is merit in structuring 
the category in such a way to include volumes associated with 
management activities beyond releases and limited transfers as 
proposed. Ultimately, the structure of the category should relate to 
how well it serves to provide an optimal balance between burden 
reduction for submitters and data preservation for users of the full 
range of TRI data.
    2. Category based on annual reportable amount. EPA's proposal 
included an alternative that would establish a category based on the 
total amount in wastes, which was referred to as total waste 
generation. This category includes all amounts released on-site, 
transferred off-site for treatment or disposal, recycled or burned for 
energy recovery on- or off-site, and treated on-site. One commenter 
from industry argued against using the total waste option, because the 
purpose of the reporting modification should be concerned with 
information relevant under EPCRA. This commenter went on to say that 
the information collected under the PPA of 1990 is subsidiary to EPCRA 
section 313 data elements. This commenter and several others from 
industry stated that basing the category on total waste limits the 
amount of burden reduction sought by this reporting modification, and 
that adopting the total waste approach would actually serve as a 
disincentive for applying more pollution prevention practices.
    Similarly, commenters from industry said that creating a category 
determination that does not include amounts sent off-site for recycling 
or to incineration for energy recovery would encourage more facilities 
to engage in these activities, as opposed to treating or directly 
disposing of wastes. An industry representative said that not including 
amounts sent off-site as part of the facility category determination is 
particularly relevant when such wastes are recovered and are then 
returned to the originator. This commenter along with several others 
from industry said that excluding these amounts would encourage 
facilities to participate in responsible/reasonable care types of 
programs, which further pollution prevention goals.
    One commenter said that the environmental releases from wastes 
generated by a ``covered facility'' are likely to be included in the 
calculation of environmental releases either (i) by the generator of 
the waste, or (ii) by an off-site ``covered facility'' to which the 
waste is sent for recycling or energy recovery. The commenter continued 
by saying that since environmental releases are the ultimate focus of 
the TRI program, the likelihood that they will be included in the 
release calculations of some ``covered facility'' should allay fears 
that toxic chemicals transferred off-site for recycling or energy 
recovery would somehow escape the system.
    EPA disagrees with commenters stating that information collected 
under the PPA is subsidiary to data mandated by EPCRA section 313. EPA 
believes that the PPA data are an enhancement of the basic data 
gathered by EPCRA section 313. The purpose of this enhancement was to 
provide the public with a more complete picture of the amount of toxic 
chemicals in facility waste streams, which can highlight the potential 
for source reduction. EPA believes that including a broader category of 
amounts reportable to TRI in a facility's determination will not 
discourage facilities from implementing pollution prevention 
activities, and that the inclusion of this broader category of amounts 
will encourage facilities to practice source reduction measures where 
possible, which is the primary goal of pollution prevention.2
---------------------------------------------------------------------------

    \ \Pollution Prevention Act of 1990, section 6602(a)(4) ``Source 
reduction is fundamentally different and more desirable than waste 
management and pollution control. The Environmental Protection 
Agency needs to address the historical lack of attention to source 
reduction.''
---------------------------------------------------------------------------

    Comments from the environmental community, labor organizations, 
states, and private citizens voiced strong opposition to EPA's proposed 
category because it did not include amounts being recycled or burned 
for energy recovery. These commenters were concerned about the removal 
from public access of information regarding the further processing of 
hazardous materials and the emissions that may result. A number of 
commenters urged EPA to continue to collect the information on 
materials sent off-site for the purpose of recycling and/or energy 
recovery which were not included in EPA's proposed approach. A few 
public interest groups submitted comments that described hazardous 
materials recycling as a hazardous activity, and urged EPA to continue 
to collect information on materials being sent to these facilities. 
Noting cases where these facilities have created serious environmental 
problems, a few other comments came from individuals and local interest 
groups living near facilities where hazardous waste recycling and 
burning occurs. These commenters stress the need for their communities 
to have access to information regarding materials being sent to these 
facilities. Some urged EPA to list these types of facilities for direct 
TRI reporting.
    Several commenters stated that EPA has the authority, through the 
PPA and EPCRA, to collect and make available information regarding 
chemicals being recycled and burned for energy recovery and urged that 
EPA continue to do so.
    EPA believes that a category based on either releases and transfers 
or annual reportable amounts will satisfy the section 313(f)(2) 
requirement for reporting on ``total releases'' because ``annual 
reportable amounts,'' as defined in this rule, encompasses releases. 
However, EPA agrees with the commenters concerned with the amounts of 
materials that are not part of the category based on releases and 
transfers. As noted in the proposal, amounts associated with waste 
management activities for those facilities fitting a category 
description based only on releases and transfers can be substantial. 
EPA carefully weighed these comments regarding the structure of the 
category and has determined that a category based on annual reportable 
amounts is more consistent with the goals of EPCRA than the release and 
transfer option.
    EPA's proposal presented an analysis of the volumes of materials 
managed as waste that would be affected (i.e., not reported in detail) 
under a reporting modification based on a facility category of releases 
and transfers or annual reportable amounts.

               Table 1.--Comparison of Impact on Data Between Proposal and Final Rule (1992 Data)               
----------------------------------------------------------------------------------------------------------------
                                                                    Data affected*\1\ (Percent of 1992 Data)    
                                              1992 Data        -------------------------------------------------
                                                                        Proposed                  Final         
----------------------------------------------------------------------------------------------------------------
Number of Form Rs                                       83,000            62,500 (-25%)            63,000 (-24%)
                                                                                                                
Pounds of Releases and Transfers                 4,400,000,000         222,700 (0.01 %)        2,209,800 (0.05%)
                                                                                                                
Pounds of Annual Reportable Amounts             37,000,000,000    6,105,310,400 (16.7%)       2,505,600 (0.01%) 
----------------------------------------------------------------------------------------------------------------
*1Pounds of releases/transfers and annual reportable amounts not reported on Form R and percentage of national  
  amounts, if the alternate threshold had been available and used by all eligible facilities for 1992 reporting.


    There was a substantial difference in the annual reportable amount 
data associated with the forms, as defined by the two basic category 
approaches. As presented in EPA's proposal, the total waste volume 
(annual reportable amount) associated with the forms identified by a 
category based on releases and transfers (at a level of less than 100 
pounds), was estimated to be 2.2 billion pounds based on 1991 data. 
This represented approximately 6.3 percent of this data nationally. The 
same category, in terms of 1992 data, as seen in Table 1 above, 
affected approximately 6.1 billion pounds of annual reportable amount 
information, or 16.7 percent of this data nationally. In comparison, a 
category based on annual reportable amounts not exceeding 500 pounds 
would apply to very nearly the same number of Form Rs. However, based 
on 1991 data, these forms had only 2.7 million pounds of annual 
reportable amounts associated with them. The forms fitting the same 
category for 1992 reporting, as seen in Table 1 above, have an 
estimated 2.5 million pounds of annual reportable amount data 
associated with them (Ref. 4). EPA believes that the significant 
increase in volumes of annual reportable amounts reported in 1992 as 
compared to 1991 can be attributed to a greater amount of recycling and 
on-site treatment activities reported by those facilities that have 
releases and transfers of less than 100 pounds. Additionally, some of 
the volume differences may also be attributed to more accurate 
reporting given that 1992 was the second year that the data associated 
with the PPA was required.
    EPA believes that the disparity in amounts of data associated with 
the forms defined by a category based on releases and transfers and a 
category based on annual reportable amounts is great enough to discount 
an approach based on only releases and transfers for treatment and/or 
disposal. Hence, EPA agrees with those commenters who have stressed the 
need to retain information on amounts of materials being treated, 
recycled, or burned for energy recovery both on-site and off-site. EPA 
has therefore structured the category in this final rule to be based on 
the sum of amounts reported during the calendar year as represented by 
the following: The combined total of quantities released at the 
facility, disposed within the facility, treated at the facility (as 
represented by amounts destroyed or converted by treatment processes), 
recovered at the facility as a result of recycling operations, 
combusted for the purpose of energy recovery at the facility, and 
amounts transferred from the facility to off-site locations for the 
purpose of recycle, energy recovery, treatment, and/or disposal. These 
volumes correspond to the sum of amounts reportable for data elements 
on EPA Form R (EPA Form 9350-1; Rev. 12/4/93) as Part II column B or 
sections 8.1 (quantity released), 8.2 (quantity used for energy 
recovery on-site), 8.3 (quantity used for energy recovery off-site), 
8.4 (quantity recycled on-site), 8.5 (quantity recycled off-site), 8.6 
(quantity treated on-site), and 8.7 (quantity treated off-site).
    Certain commenters stated their objection to inclusion of these 
amounts, using the rationale that doing so would discourage pollution 
prevention. EPA believes that inclusion of these amounts is in keeping 
with the goal and national policy of pollution prevention. EPA believes 
that this information should be available to the public and other 
interested parties, who are concerned with the operations that 
generate, receive, and further process large amounts of these 
materials. The public has demonstrated a strong concern about these 
operations, and TRI provides a reliable accounting of reportable 
constituents and their estimated amounts from those facilities required 
to report to TRI. EPA further believes that requiring facilities to 
account for pollution prevention efforts, including source reduction 
activities, can serve to inform industry and the users of the data 
about the level of progress being made at a particular facility and 
within a given industry.
    EPA believes that a category based on annual reportable amounts 
will more appropriately focus the burden reduction benefit of this rule 
on facilities that have limited the entry of toxic chemicals into waste 
streams, rather than on facilities that could derive the benefit by 
shifting toxic chemicals from one management practice to another. EPA 
also believes that a category based on annual reportable amounts will 
retain a higher degree of specificity of the toxic chemical data while 
still allowing for the burden reducing ``conversion'' of a substantial 
number of full Form R reports to certification statements.
    3. Category based on a chemical list division. Many commenters from 
industry supported the approach put forth in the SBA petition to treat 
listed chemicals differently. This approach was referred to in EPA's 
proposal as the ``split list'' approach. These commenters stress that 
only by distinguishing among chemical toxicities can EPA effectively 
determine what information can be exempted on the basis of a chemical's 
relative and potential impact. They argue that only by making 
distinctions among chemicals on the basis of their human health and/or 
environmental impacts can EPA properly determine what information is 
vital to a community's right-to-know, as opposed to chemical accounting 
for the sake of reporting. A few of these commenters supported EPA's 
example of splitting the listed chemicals primarily based on their 
Occupational Safety and Health Administration (OSHA) carcinogen 
classification, as presented in EPA's Issues Paper (Ref. 3). Several of 
these industry commenters who support the ``split list'' approach 
suggested that EPA establish a simplified petitioning system that would 
allow parties to submit requests to move chemicals from one list to 
another.
    One commenter stated that current risk assessments are overly 
reliant on cancer rates and ignore too many other health problems, 
including adverse reproductive outcomes such as birth defects, 
developmental abnormalities, low birth weights, and behavioral 
abnormalities. This commenter also cites adverse effects on the human 
immune system, neurological diseases, as well as asthma and other 
respiratory diseases. In addition, other commenters noted that adverse 
impacts on the ecosystem, including wildlife reproductive effects 
(e.g., from endocrine disruptors), need to be considered when 
discussing toxicity.
    Many of the commenters from the environmental community stressed 
their concern over losing any data or limiting the public's access to 
information on toxic chemicals that persist in the environment or have 
carcinogenic, developmental, or other serious health impacts. Several 
commenters described EPA's alternate threshold as inappropriate and 
insisted on full reporting on ``small releases'' of persistent toxic 
chemicals such as mercury or highly toxic chemicals such as phosgene. 
Other commenters supported the addition of highly toxic chemicals and 
are in favor of setting a much lower reporting threshold in order to 
receive reports on these chemicals. A few commenters urged EPA to add 
these types of chemicals to TRI and require reporting for any amounts 
released. One commenter objected to EPA's proposed reporting change, 
stressing that it is based on the fallacious assumption that ``small'' 
releases do not pose risks to public health and the environment and 
therefore the public does not need explicit information regarding such 
releases.
    For the purpose of this category structure, EPA chose to make no 
distinction among listed chemicals. EPA is not attempting to apply 
risk-based concepts in this rulemaking. EPA does recognize that there 
are wide variations in the hazards associated with the chemicals on the 
list. EPA is concerned that the current threshold structure may be 
masking important data on releases and waste management activities of 
certain chemicals that may exhibit bioaccumulative properties or direct 
toxicity even at low levels. EPA may consider a future modification of 
current thresholds to more fully capture information on chemicals that 
persist in the environment and bioaccumulate.
    It is, therefore, EPA's intention to establish a reporting 
modification in this rulemaking that creates a degree of reporting 
relief without substantially limiting the information currently 
collected and made available through TRI. It is also EPA's intention 
that this reporting modification apply to all industries subject to 
reporting and to all listed toxic chemicals without regard to their 
relative hazard.
    4. Chemical-specific issues. Several commenters from the feed 
industry repeated their position that the chemicals for which the 
majority of their reports are submitted are Food and Drug 
Administration (FDA) approved nutrient additives for animal feed, and 
are generally recognized as safe (GRAS) by the scientific community. 
One commenter supporting these points added that the industry's 
handling practices for these chemicals further reduce losses that might 
otherwise occur, which should lessen concern over adverse affects 
resulting from the use or processing of these chemicals. One commenter 
requested that EPA establish a separate reporting threshold for ``by-
products,'' such as ammonia generated from rendering operations, and 
suggested a 100,000 pound level for these chemicals.
    A few specialty industries, such as the cold storage industry, 
which uses ammonia for refrigeration units, claim that their industry 
accounts for only a fraction of the volume of ammonia produced 
nationally. These commenters make the point that their use of this 
chemical is safe, does not threaten the environment, and the reporting 
of the emissions associated with these uses serves no benefit.
    One commenter believes EPA should modify the processing threshold 
to exclude chemicals intentionally added when making products for 
distribution if the total facility releases and transfers are less than 
4 percent of the use volume of the chemical in the calendar year. This 
commenter states that this step will promote use reduction and release 
reduction by facilities where processing of toxic chemicals is 
essential for the manufacture of their product.
    As indicated in the above section, many of the comments submitted 
by the environmental community urged EPA to collect and make available 
through TRI information on any amounts of chemicals that could affect 
serious impacts on human health and the environment.
    For many of the same reasons given in the above discussion 
concerning a possible list division, EPA intends that the regulatory 
relief provided by this rule be applied to all facilities and all 
listed toxic chemicals, rather than only those that are not highly 
toxic. EPA believes that the intent of EPCRA section 313 is to place 
the decisionmaking on whether a facility's releases are acceptable to a 
community in the hands of the community. Therefore, EPA does not 
believe that it should make distinctions among the listed chemicals on 
the basis of inherent toxicity.
    Avoiding further complication in the use of TRI data is also a 
significant consideration in how this burden reduction amendment is 
structured. EPA strongly believes that an individual interested in 
accessing TRI data should be able to locate and understand the 
information contained in the data base with as few encumbrances as 
possible. Singling out specific chemicals and chemicals managed by 
specific processes from how other chemicals are reported, could 
unnecessarily complicate the use of the data. While many of the issues 
raised by the commenters concerning specific chemicals may have merit, 
EPA does not believe it would be productive to further complicate this 
rule amendment by making particular exceptions for specific chemicals 
or handling practices.

B. Level of the Category

    In addition to the basis on which a category of facilities would be 
structured, EPA asked for comment on the poundage level proposed and 
offered alternatives. Although a few commenters supported EPA's 
proposed level of less than 100 pounds for the sum of releases and 
transfers, most of the commenters from industry preferred a higher 
level, while some commenters generally opposed to the reporting 
modification said they could accept a level such as zero or 10 pounds 
as long as total waste were not excluded and other conditions were met.
    A federal Agency, along with one chemical manufacturer, submitted 
comments in support of EPA's proposed level, while comments submitted 
by the feed industry generally supported a release and transfer level 
of 500 pounds. This level was supported by these commenters based on 
the types of chemicals handled by their industry. One chemical 
specifically mentioned was sulfuric acid, which some commenters said, 
``would not be of great concern for releases at 500 pounds or less.'' 
Some of the other commenters supported the 500 pound level based on the 
level of accuracy of data collected by TRI.
    A few industry commenters said that EPA's proposed level was too 
low to benefit their specific industry and urged EPA to elevate the 
level. A trade association, among others, criticized EPA's proposal as 
lacking adequate justification. Several of these commenters said that 
EPA's selection of approach and level were unfounded, while others 
disagreed that there was a ``natural break'' in the data, as EPA 
described at the 100 pound level. Some commenters identified other 
levels in the data that they thought indicated a more appropriate level 
for selection. Several industry commenters questioned EPA's sincerity 
in providing any level of significant burden reduction. One commenter 
stated that EPA's proposed level is based on the impact of total waste 
information affected, which does not necessarily relate to actual 
volumes of total waste generated.
    One commenter said that EPA should set the category level at 500 
pounds because it currently accepts range reporting of 0-499 pounds and 
adopting a ``low-level'' release category of less than 500 pounds is 
effectively no different than allowing a facility to use a range code. 
Other commenters supporting the 500 pound level describe the data loss 
as not unreasonable.
    Several commenters said that EPA's proposed level does not allow a 
margin of error in estimating releases, and therefore, many facilities 
will be forced to submit actual release amounts on Form R and will not 
be able to take advantage of the alternate threshold.
    Additional comments were submitted that stated the application of a 
less than 100 pound category on chemicals with relatively low 
toxicities was not consistent with EPA's Common Sense Initiative, and 
that a 5,000 pound release of a chemical such as an acidic cleaner over 
the course of 1 year is insignificant. These commenters stress that 
chemicals such as this do not bioaccumulate, are not carcinogenic, and 
do not damage the environment at the levels used by their industry.
    Commenters supporting the split list approach are in favor of an 
elevated poundage level for chemicals of low toxicity and a much lower 
poundage level for those chemicals determined to have higher toxicity 
or hazard concerns. Many of these commenters urge EPA to apply the 
SBA's 5,000 pound level to the low toxicity chemicals and a 10 pound 
level for chemicals considered to be of greater concern. Some 
commenters supporting the split list approach argued that the adoption 
of a 5,000 pound level for low toxicity chemicals could improve data 
quality and further lessen the burden on industry and EPA. Some 
commenters suggested variations on the levels suggested by the SBA 
petition, such as 1,000 pounds for low toxicity chemicals and 0 to 500 
pounds for chemicals with high toxicities.
    One commenter supporting a 5,000 pound split list approach assumed 
that if all of the amounts released and transferred (for the purpose of 
treatment and/or disposal) which EPA estimated would not be reported on 
under its proposal were located at a single facility using one chemical 
of ``typical'' toxicity, the concentrations of those releases would be 
below OSHA permissible exposure limits if the distance to the 
facility's fenceline was 470 meters or more. The commenter continued 
with this supposition to make the point that for a 5,000 pound release 
and transfer category level, within no single location (zip code) would 
there be a loss of an amount great enough to trip a Comprehensive 
Environmental Response, Compensation, and Liability Act (CERCLA) 
reportable quantity (RQ) for a single facility, at least for two states 
researched by the commenter. This argument is premised on the amount 
released and transferred, for a given chemical under the 5,000 pound 
category level, being evenly distributed over a facility's annual 
operations while not exceeding the maximum amount released within a 
single 24-hour period of a chemical of ``typical'' toxicity. The 
commenter used ammonia as an example. This argument would not apply for 
chemicals with CERCLA RQ values below 100 pounds, which would exclude 
approximately 150 currently listed TRI chemicals (Ref. 2).
    Additionally, a CERCLA listed chemical released in excess of its RQ 
value as part of a facility's routine operations, as presented in the 
example, would require an application for continuous release 
notification, or the facility would be required to report each instance 
that the amount released exceeded the chemical's RQ value.
    Many other comments submitted by industry supported a level of 
5,000 pounds, making no toxicity distinctions among listed chemicals. 
This was broadly supported by referring to the percentage of release 
and transfer (for the purpose of treatment and/or disposal only) data 
that would still be collected. These commenters referred to EPA's 
analysis relating to volumes of chemicals released on-site and sent 
off-site for the purpose of treatment and/or disposal that would be 
affected based on a range of category levels. Many commenters contend 
that by establishing the category level at less than 5,000 pounds, only 
an additional 0.7 percent of the data for releases and transfers would 
be affected, as compared with a facility category set at less than 100 
pounds for releases and transfers. Many of these commenters said that 
their facility had never received a request for information or had any 
knowledge of the public's interest in releases of low amounts, adding 
that resources necessary to provide this information could be used more 
beneficially.
    A comment submitted by a chemicals manufacturer supporting the 
5,000 pound threshold said that such a threshold would not 
significantly reduce the quantity of aggregate releases and transfers 
that their facilities currently report.
    A trade association submitted comment in support of a total waste 
approach, but proposed a level matching that of a conditionally exempt 
small quantity generator as defined in the RCRA program, which would be 
less than 2,645 pounds.
    Conversely, some commenters argued that EPA should be focusing on 
expansion of community right-to-know and should lower reporting 
thresholds to collect data on small releases of highly toxic chemicals 
that are currently unavailable to the public in a comprehensive format.
    An environmental organization criticized the alternate threshold 
proposal for not including amounts transferred to recycling and energy 
recovery facilities. This organization voiced support for a total waste 
approach, but with a threshold of 10 pounds. Citing data presented in 
EPA's proposal, this commenter states that a facility category based on 
total waste at a 10 pound level corresponds to approximately 10,000 
forms, which represents substantial regulatory relief for businesses 
without reducing the public's access to important information which 
they have a right-to-know. A major trade union voiced approval of this 
approach, provided that a facility also indicate into which media a 
chemical was released.
    As discussed in the preceding section, EPA has decided to base the 
facility category on the annual reportable amount rather than the 
amount released plus limited transfers. After considering the multiple 
factors related to the selection of a category level, EPA has selected 
an annual reportable amount of not greater than 500 pounds. In choosing 
a poundage level, EPA sought a level that provides a reasonable balance 
between preserving the detail of data available to the public and 
providing facilities with a realistic option for burden reduction. EPA 
believes that a level of 500 pounds or less represents a reasonable 
cut-off for this annual reportable amount approach. EPA estimates that 
20,100 Form Rs would have been affected for the 1992 reporting year by 
the alternate threshold for a category based on an annual reportable 
amount of no more than 500 pounds. This number of forms is essentially 
identical to the number that would have been eligible for the proposed 
approach.
    Based on 1992 data, the amounts reported on Form Rs identified as 
coming from facilities that would meet the facility category of annual 
reportable amounts not exceeding 500 pounds, account for less than 1 
percent of annual reportable amounts reported nationally. While the 
amounts reported by facilities fitting EPA's proposed category and 
level account for nearly 17 percent of annual reportable amounts 
reported nationally. These data also indicate several additional 
impacts that EPA believes are important in determining which level is 
appropriate.
    EPA believes that a comparison of impacts at the county level is 
relevant to EPA's decision. Based on 1992 data, an estimated 250 
counties would have greater than 50 percent of all of their annual 
reportable amount data affected by a category based on releases and 
transfers at a 100 pound level, as EPA proposed. Under a category based 
on annual reportable amounts not exceeding 500 pounds, about 90 
counties are estimated to have greater than 50 percent of their annual 
reportable amount data affectedP (Ref. 1 ). Perhaps more importantly, 
the number of counties that would have a volume of over 1 million 
pounds of their annual reportable amount data affected, based on the 
proposed release and transfer category, is estimated to be greater than 
278, while the category based on annual reportable amounts not 
exceeding 500 pounds has no counties where annual reportable amounts 
greater than 1 million pounds would be affected (Ref. 1).
    Selection of the 500 pound level is consistent with current range 
reporting. Current reporting guidance allows facilities to submit 
estimated amounts pertaining to releases on-site or transfers off-site 
in terms of three range codes. These range codes correspond to poundage 
amounts of 1-10, 11-499, and 500-999 pounds. Range codes can be used in 
as many reporting fields as the estimated amount applies for amounts 
released or transferred. While range codes are not currently available 
for reporting PPA data, establishing a category of facilities based on 
annual reportable amounts effectively extends range reporting to these 
activities. Submission of a certification statement is different from 
receipt of a Form R that indicates amounts in ranges. The certification 
will not provide the detail as to which media the chemical was released 
or otherwise directed as does Form R.
    EPA does not believe that the fact that a commenter has received no 
inquiries from the public demonstrates that the information is not of 
value. Because the data are kept in a publically available database, 
there is no need for individuals to contact a company in order to 
access and use the information.
    Finally, EPA believes a category based on annual reportable amounts 
not exceeding 500 pounds will limit the loss of detailed information 
currently available, while providing industry with a reasonably 
attainable level. As EPA's analysis indicates in Table 1 in unit 
III.A.2. of this preamble, that the approach selected is estimated to 
apply to approximately 25 percent of the currently reported 
submissions.

C. Alternate Threshold Level

    EPA proposed that facilities which meet current section 313 
reporting requirements for a listed toxic chemical, but estimate for 
that chemical the sum of amounts released and transferred (for the 
purpose of treatment and/or disposal only) is below 100 pounds per 
year, could take advantage of an alternate manufacture, process, or 
otherwise use threshold of 1 million pounds per year, for that 
chemical. The proposed 1 million pound alternate threshold received 
considerable comment. Comments were primarily directed at the 
proposal's impact on those facilities with low releases and limited 
transfers but which have high volume chemical uses. The following unit 
addresses comments on the alternate threshold in terms of: (1) 
Application of the alternate threshold; (2) impact on high volume 
chemical users; and (3) alternatives to the proposed approach.
    1. Application of the alternate threshold. Several commenters 
requested that EPA clarify whether the Agency intends the application 
of the alternate threshold to apply in the same manner as current 
threshold applications for submitting Form R. In particular, commenters 
wanted clarification that the 1 million pound alternate threshold 
applies in a mutually exclusive manner to either manufacture, or 
process, or otherwise use of the toxic chemical within the facility.
    EPA confirms that the application of the alternate threshold 
applies in the same manner as current thresholds apply in making 
compliance determinations for submitting Form R. This is reflected in 
Sec. 327.27(c) of the regulatory text. That is, the alternate threshold 
represents the amount that the facility manufactures, or processes, or 
otherwise uses of the listed toxic chemical. If the facility meets the 
eligibility criteria for the category and does not exceed 1 million 
pounds of manufacture, or process, or otherwise use, then the facility 
may be eligible for reduced reporting. In a multi-establishment 
facility situation, the owner or operator must determine the total 
amount of the same listed toxic chemical that is, for example, 
otherwise used within all establishments of the facility and then 
compare it to the alternate threshold. Owners or operators of 
facilities should also be aware that the calculation of the low volume 
category amount, annual reportable amounts not exceeding 500 pounds in 
total wastes, must be based upon a whole facility determination, and 
must include all activities occurring within all establishments within 
the facility, unless otherwise exempt.
    Several commenters saw no apparent rationale for the million pound 
threshold, since, as one commenter stated, EPA has not collected 
threshold data for EPCRA section 313 reported chemicals. One commenter 
states that EPA should eliminate the million pound per year 
``manufacture, process, or otherwise use'' threshold, since one of the 
key objectives for the EPA proposal is to reduce reporting of de 
minimis releases; this commenter sees no reason to establish an 
additional qualification threshold related to chemical usage, which 
goes beyond the Congressional intent for EPCRA to keep the public 
informed of releases to the environment.
    Another commenter stated that the 1 million pound threshold is 
unnecessary because this rulemaking focuses on amounts released not 
used. The volume of a listed chemical which a facility manufactures, 
processes, or uses should have no bearing on whether that facility 
qualifies for the proposed de minimis category based on releases, since 
no appreciable benefit is gained by either the public or the regulated 
community if releases are below the facility category level.
    As described in unit II of this preamble, EPA is issuing this rule 
under the authority of section 313(f)(2) to reduce the reporting burden 
for those facilities that have relatively low amounts of listed 
chemicals in annual reportable amounts. To accomplish this, EPA is 
establishing a category of facilities based on certain criteria that 
would be eligible to use an alternate threshold. It is by the 
application of a higher manufacture, process, or otherwise use 
alternate threshold that determines the eligibility of facilities 
within the category to elect to submit a certification statement in 
lieu of a Form R for those chemicals to which the category criteria 
apply.
    2. Impact on high volume chemical users. Many commenters criticized 
the proposed alternate threshold level for penalizing high volume 
chemical users with low releases and transfers, providing these 
facilities with no incentive for pollution prevention while displaying 
a bias against facilities reporting within certain SIC codes. Some 
believe the regulation should serve as an opportunity for EPA to reward 
or encourage companies with low releases, instead of subjecting 
facilities to a threshold which many view as still too low. One firm 
conducted an analysis indicating that facilities operating in the metal 
and metal fabrication industries (SIC codes 33 and 34) account for 
approximately 21 percent of all Form Rs submitted under TRI. Under the 
proposed rule, these facilities would have been unable to take 
advantage of the alternate threshold at a disproportionate rate due to 
their large volumes of materials recycled and further processed that 
would have exceeded the proposed 1 million pound threshold. Several 
commenters from the feed industry said that facilities in this industry 
can regularly process 1 million pounds or more of feed ingredients that 
contain TRI chemicals but are able to keep their releases typically 
below 100 pounds. These commenters ask why these operations should be 
penalized for their high efficiency.
    Some commenters expressed the belief that EPA's proposed alternate 
threshold had been arbitrarily selected and was not clearly defined. 
Several commenters emphasize that EPA should set the alternate 
threshold level high enough to allow all facilities with qualifying low 
releases to utilize the burden reduction intended by this rulemaking. 
Some of these commenters recommended alternatives such as a 10 and 50 
million pound thresholds instead of EPA's 1 million pound proposed 
level.
    One commenter said that EPA appears to be unaware of the 
fundamental reality that production throughput does not relate to 
amounts released. This commenter repeated the position that EPA should 
reward large facilities that control their releases by allowing them to 
qualify for the same benefit.
    Through this rule, EPA intends to provide a reporting modification 
that delivers some degree of regulatory relief while continuing to 
capture relevant data. The 1 million pound alternate threshold 
represents an attempt to balance these two concerns.
    Many commenters from the environmental community and others 
commented that the structure of the regulation put forth in EPA's 
proposal would allow facilities to handle volumes of up to 1 million 
pounds per chemical without the public having access to this 
information. These commenters were concerned about those amounts that 
would not be included in the facility category, such as amounts 
recycled as EPA proposed, and that the amount of a chemical managed by 
these activities would only be limited by the level of the alternate 
manufacture, process, or otherwise use thresholds.
    EPA believes that concerns raised by commenters, about the proposed 
approach affecting potentially very large amounts of information on 
chemicals in waste streams (i.e., they would not be reported), has been 
mitigated by establishing a facility category based on annual 
reportable amounts. By establishing the category based on annual 
reportable amounts, only amounts managed in waste streams up to the 
level established for the category are eligible for reduced reporting. 
In contrast, EPA's proposed approach would have allowed a facility to 
conduct such waste management activities as on-site treatment well 
beyond the category level of 100 pounds and submit a certification 
statement so long as the facility did not exceed the alternate 
threshold of 1 million pounds.
    EPA has established the alternate threshold for manufacture, 
process, or otherwise use of 1 million pounds in order to provide those 
facilities with annual reportable amounts not exceeding 500 pounds per 
chemical with a lower burden reporting option, while preserving more 
detailed data for facilities that manufacture, process, or otherwise 
use larger volumes of chemicals. A 1 million pound alternate threshold 
for amounts manufactured or processed, with annual reportable amounts 
not exceeding 500 pounds, represents an efficiency of 99.95 percent and 
EPA believes this level is likely to include the vast majority of 
facilities meeting the category. EPA also believes that establishing 
the alternate threshold at 1 million pounds is an effective means to 
retain more detailed information where exceedingly large volumes of 
toxic chemicals are managed.
    3. Alternatives to the proposed approach. Many commenters offered 
alternatives to the proposed activity threshold. One commenter 
suggested that EPA consider a straight revision of the otherwise use 
threshold from the current 10,000 pound level to 25,000 pounds in order 
to simplify the rule.
    EPA considered revising the otherwise use threshold in its initial 
analysis of this rulemaking. By revising the otherwise use threshold, 
only those forms pertaining to chemicals used would be affected and the 
reduced reporting would not apply to chemicals manufactured or 
processed. Additionally, where a revision of the otherwise use 
threshold may be easier to implement than the alternate threshold 
established by this rule, it does not provide the ability to consider 
and make allowances for the types of information that will be affected. 
For example, the current reporting thresholds allow a facility to have 
uses of a chemical in amounts up to 10,000 pounds and not be required 
to report to TRI. Uses of a chemical can result in direct releases or 
transfers of nearly all of the amounts used. By raising the otherwise 
use threshold to 25,000 pounds, a facility could potentially release up 
to 25,000 pounds of a given constituent and the public would not have 
access to that information through TRI.
    Two commenters believe EPA should modify the ``otherwise use'' 
threshold to exclude chemicals contained in closed systems that are not 
released under normal use activities. Reporting under section 313 is 
often required when a listed chemical contained in a closed system is 
charged or recharged in amounts that exceed the ``otherwise use'' 
threshold of 10,000 pounds. The commenters state that the inclusion of 
this type of ``otherwise use'' in threshold determinations does not 
meet the intent of EPCRA, since releases may not occur in the same year 
that the facility's activity meets the reporting threshold. The 
commenters further state that pollution prevention is generally not 
applicable to these kinds of closed systems, with the exception of use 
of a substitute chemical--which may or may not be less toxic, and may 
be controlled by other laws and regulations. These commenters argue 
that the exclusion of closed systems from the threshold determination 
parallels other EPA guidance on exemptions for use of an article, and 
is in keeping with the intent of EPCRA.
    EPA believes the type of activity described by this commenter 
should continue to be a covered use under TRI. These types of uses can 
involve handling of significant quantities of a listed chemical. EPA 
has provided an interpretation that only requires considering amounts 
toward the otherwise use threshold in those years when such large 
volumes are handled, such as when refrigeration systems are recharged.

D. Certification Statement

    EPA proposed that each qualifying facility that chooses to apply 
the alternate threshold must file an annual certification statement for 
that listed toxic chemical instead of a Form R. The proposal outlined 
two primary purposes of a certification statement. A certification 
statement serves as a means of informing the public about the presence 
and general magnitude of combined releases and transfers of a listed 
toxic chemical by a facility at a lower burden than submitting a Form 
R. It also serves to satisfy the statutory intent of section 313(f)(2) 
which requires that reporting be obtained on a substantial majority of 
releases of a chemical. The proposed elements of the certification 
statement included signature of a senior management official, facility 
identification, location and certain other linkage data, the chemical 
identity, and an indication of any trade secrecy claim.
    1. General reactions to the certification statement concept. Many 
commenters, primarily those representing the regulated community, 
oppose the concept of a certification statement. Several commenters 
stated that EPA should comply with the spirit and purpose of the 
Paperwork Reduction Act and not require an annual certification. Two 
commenters stated that numerous other environmental requirements, 
including the basic TRI thresholds, allow for self-determination with 
requirements, and question why this rule should be different. Others 
commenters raised similar concerns. For instance, if the facility meets 
the ``exemption'' standard, then recordkeeping should be sufficient for 
the purposes of an inspection.
    EPA would like to reiterate that the proposal of an alternate 
threshold was not developed to establish a wholesale exemption from 
section 313 reporting requirements. Because the statute does not 
provide expressed authority to establish a specific release-based 
threshold, EPA has used the alternate threshold authority in section 
313(f)(2) to grant some regulatory relief to small sources. Section 
313(f)(2) requires that a revised threshold based on a facility 
category concept retain reporting on a ``substantial majority'' of 
releases. Therefore it would not be sufficient to simply rely on 
recordkeeping as a means of satisfying the law. A certification 
statement serves the purposes of right-to-know by providing the public 
with the basic information that a facility manufactures, processes, or 
otherwise uses a listed chemical in excess of current thresholds in 
section 313(f)(1), that the annual reportable amount is between 0 and 
500 pounds, and that the facility did not exceed the alternate 
threshold for reporting. This information will be made available in the 
TRI data base. Company records supporting such determinations are 
available to EPA inspectors.
    Several commenters representing environmental and public interest 
groups supported the concept of a certification statement. This support 
is generally associated, however, with a particular low volume amount 
that establishes the category. For example, one commenter states that a 
certification statement is appropriate, but the proposed level is too 
high. Another commenter states that annual certification should be 
provided, but only if the level is set at 10 pounds or below. Another 
commenter states that ``at most, EPA should allow annual certification 
where a facility's releases, all transfers, and waste streams are zero, 
or 10 pounds, if simple check boxes show where the chemical went (land, 
water, air, recycling, etc.).'' Another commenter states that annual 
certification is reasonable only if there is no loophole for recycling 
and energy recovery, that source reduction goals are not undermined, 
and that small release quantities are truly small. A commenter from a 
state government indicated that a certification statement would ensure 
that the present universe of facilities covered by their State 
pollution prevention rules would remain intact.
    EPA, in this final action, has adopted a certification statement 
approach and the basis of the low volume category has been shifted to 
an annual reportable amount approach. EPA does not believe, however, 
that implementation of a certification statement should be made 
contingent upon the setting of a particular poundage value for the 
category level. EPA believes that a certification statement is 
necessary in order to maintain public right-to-know and to meet the 
statutory ``substantial majority'' of releases requirement. The 
certification statement relates to a range volume for a given chemical 
contained in the annual reportable amount that can have multiple 
connections to quantitative line items as reported or Form R. However, 
EPA does not agree that additional check boxes are needed in the 
certification statement. EPA believes that the category and level 
established in this final rule are such that replacement of full Form 
Rs, for those eligible reports, with certification statements provides 
the public with an adequate level of information.
    2. Frequency of certification. In the proposed rule, frequency of 
certification would track the annual requirement for submission of Form 
R. EPA requested comment on the appropriateness of certification 
statements received less frequently than on an annual basis. Commenters 
representing environmental and public interest groups supported annual 
certification. Many commenters representing the regulated community 
stated that industries should be able to submit the certification only 
once, arguing that a facility that takes advantage of the alternate 
threshold will likely remain eligible year after year, and if they 
become ineligible, they will submit a Form R. These commenters stated 
that during facility inspections, EPA could require facilities to 
perform detailed calculations to verify eligibility and that such 
detailed calculations to support the certification should not be 
required each year.
    Other commenters recommended a 3 or 5-year certification schedule. 
Several commenters, many from the metal plating industry, favor a 3-
year certification with appropriate recordkeeping. Commenters from 
industry generally believe that annual certification at any level is 
not necessary and does little to reduce the burden of reporting. 
However, one commenter representing an industry which generally opposed 
the certification statement, indicated that if EPA were to require such 
a statement that it should be annual. The reason given is that there is 
a greater likelihood of missed filings under a bi-annual or tri-annual 
schedule and the consequent exposure to enforcement.
    In this final rule, EPA has retained an annual schedule for 
submission of the certification statements. EPA believes that a one-
time or multi-year approach would not provide the data continuity 
necessary for providing the TRI data annually to the public. In 
addition, EPA does not believe that it should present the information 
to the public in the TRI data base from such certification activity 
unless it is based upon a positive submission by the facility. For 
example, lack of receipt of a certification statement during one of the 
``out years'' can mean one of two things. The facility could still be 
within the eligibility limits of the alternate threshold, or it could 
be beyond such limits and has not submitted a Form R. EPA is sensitive 
to the cost considerations of an annual certification schedule. 
However, this cost is in general a lower cost than for Form R 
submission each year. Also, if operations do not change significantly 
from year-to-year, as commenters indicate, then the subsequent year 
determination of eligibility should not be a time-consuming data 
development process.
    Development of the information needed for a facility's 
certification statements will generally involve only a one-time (one-
chemical) collection burden. In addition, most of the information on 
the certification statement is very similar, if not identical to the 
facility identification section of the current Form R. Furthermore, the 
Agency plans to develop streamlined methods for submitting the 
certification statements beginning with the 1995 reporting year. The 
Agency's Automated Form R magnetic media submission software will be 
modified to include the ability to create the certification statement. 
This software is already designed to allow importation of data 
previously filed. Once created or imported, the data will remain 
accessible for all subsequent filing unless there has been a change in 
the basic facility identification information. Even then, changing the 
data will be straight-forward. The only additional variable will be the 
name of the listed toxic chemical to which the certification statement 
applies.
    3. Representing certification statements in the data base. EPA 
plans to enter the data from these certification statements into its 
regular TRI data bases. The data will be marked to indicate that it 
represents certification statements rather than Form Rs. In this way, a 
geographic or chemical search will be able to show the presence of a 
facility and the chemical for which it is applying the alternate 
threshold. Quantitative analyses using certification statement data 
could be done in one of several ways. The user could make a ``worst 
case'' assumption and choose to count a total of 500 pounds of the 
chemical released from that facility. An alternative would be to use a 
midpoint of 250 pounds total release, similar to the treatment of 
current range reports.
    EPA received comment from a federal agency that requested that the 
regulatory language of the proposal be changed prior to the final rule 
that would allow facilities to submit a single certification for 
multiple chemicals meeting the alternate threshold criteria.
    At this time, EPA is requiring that a facility submit a unique 
certification statement for each chemical meeting the alternate 
threshold conditions. Facilities may assert a trade secrecy claim for a 
chemical identity on the certification statement as on the Form R. 
Reports submitted on a per chemical basis protect against the 
disclosure of trade secrets. Certification statements with trade 
secrecy claims, like Form Rs with similar claims, will be separately 
handled upon receipt to protect against disclosure. Comingling trade 
secret chemical identities with non-trade secret chemical identities on 
the same submission increases the risk of disclosure. Also, processing 
techniques currently in place make handling of one form with more than 
one chemical difficult and be more likely to create submission errors 
on the part of Form R reporters, as well as handling errors by EPA.

E. Covered Facility

    Several commenters requested clarification from the Agency 
regarding the status of a facility that may take advantage of the 
alternate threshold. These commenters were concerned that the preamble 
discussion in the proposal seemed to indicate that those facilities 
taking advantage of an alternate threshold were not covered facilities 
for purposes of TRI reporting, yet language in the proposed section 
372.27(a) states that ``. . . a covered facility may apply an alternate 
reporting threshold . . . .''
    1. Applicability to ``piggy-back'' requirements. Several commenters 
questioned whether a facility that utilizes the alternate threshold is 
a section 313 ``covered facility'' as outlined in 40 CFR 372.22. The 
primary concern expressed by these commenters relates to so called 
``piggy-back'' requirements of other state or federal laws or 
regulations. For example, a state law or regulation may cite a section 
313 ``covered facility'' as a facility that must pay a fee, submit 
additional information, or conduct facility pollution prevention 
planning.
    40 CFR 372.22 of the regulations, ``covered facilities for toxic 
chemical release reporting,'' defines the facilities for which a Form R 
must be submitted. A facility that can take advantage of the alternate 
threshold may or may not be a ``covered facility'' for purposes of any 
specific toxic chemical. It will depend upon the factual situation and 
the choices made by the owner/operator. The following examples 
illustrate common situations/choice combinations:
    (i) A facility that fits within the category description, and 
manufactures, processes or otherwise uses 1 million pounds or less of a 
listed toxic chemical annually, and whose owner/operator elects to take 
advantage of the alternate threshold is not a covered facility and no 
Form R is required.
    (ii) The facility described in example (i) that fits within the 
category description, and manufactures, processes, or otherwise uses 1 
million pounds or less of a toxic chemical annually, but whose owner/
operator elects not to use the alternate threshold is a covered 
facility subject to the thresholds under section 313(f)(1) for which a 
Form R must be submitted.
    (iii) A facility that fits within the category description, but 
that manufactures, processes, or otherwise uses more than 1 million 
pounds of a toxic chemical annually must still submit Form R and, 
therefore, remains a covered facility. In this final rule, Sec. 372.22 
has been amended to reflect this interpretation.
    The Agency wants to make it clear, however, that its determination 
on this issue may not necessarily mitigate the impact of piggy-back 
requirements. The ultimate impact of being a ``covered facility'' can 
vary depending upon how the linkage is constructed in the specific 
state or other federal requirement. For example, where a state 
requirement is based upon the number of Form R reports submitted to the 
state (e.g., report-based filing fee), the submission of certification 
statements instead of Form R reports could provide an incremental 
burden reduction. Conversely, if the state requirement is based upon 
the submission of at least one Form R report, a facility may be subject 
to the same degree of piggy-back burden irrespective of the existence 
of the alternate threshold. In this scenario, it is only those 
facilities who could substitute certification statements for all of 
their Form R reports that may benefit. Under any circumstance, a state 
could modify its requirements to adjust for certification statements, 
and EPA has no control over such state actions. Owners/operators should 
contact the appropriate state authorities for guidance.
    EPA's determination on this issue in no way limits or affects its 
ability to bring enforcement actions against a facility. If a facility 
wishes to take advantage of the alternate threshold, then it must 
determine that its annual reportable amount did not exceed 500 pounds 
of the chemical for that year, it must file a certification statement, 
and it must keep appropriate records. Therefore, if the facility fails 
to submit either a certification statement or a Form R, the facility is 
a non-reporter and faces penalties up to $25,000 per day per violation 
(see EPCRA section 325(c), 42 U.S.C. 11045). In addition, even if the 
facility files a certification statement, the Agency can bring an 
enforcement action based upon the inadequacy of required records or a 
determination that the facility's calculation of annual reportable 
amount was incorrect.
    2. Applicability to partial facility reports. Commenters asked 
whether the alternate threshold certification process applied in the 
same manner as Form R reporting in the case of such partial facility 
reports. Currently the regulations at Sec. 372.30(c) allow separate 
reports to be filed for the same chemical by establishments within a 
multi-establishment facility. This was allowed as a convenience for 
such multi-establishment facilities because these separate 
establishments may operate independently of one another and would find 
it easier to file reports on their own operations than to have to 
consolidate reporting data across several such operating units. 
However, this is only allowed if there has been a total facility 
threshold determination for the manufacture, process, or otherwise use 
of a listed chemical. Form R contains a check box for a question 
relating to whether the report is a ``partial facility'' report.
    For the purposes of the certification statement, the facility must 
also make its determination based upon the entire facility's operations 
including all of its establishments. If the facility as a whole is able 
to take advantage of the alternate threshold, a single certification is 
required. EPA can see no benefit in allowing a facility with multiple 
establishments to submit more than one certification statement for each 
of the chemicals for which it is eligible. The eligibility to submit a 
certification statement is made on a whole facility determination. 
Thus, all of the information necessary to make the determination has 
been assembled to the facility level. No other detail is required by 
the certification statement and, therefore, no apparent benefit is 
provided to the facility in having it submit multiple statements 
containing duplicative information.
    EPA also believes that multiple submissions of certification 
statements for the same chemical from the same facility provides a 
greater opportunity for the data to be misinterpreted. If, for example, 
a user of the data were interested in a facility's chemical management 
practices and found more than one certification for the same chemical, 
as it would appear in the data base, then the user might incorrectly 
assume that the facility managed the maximum annaul reportable amount 
of 500 pounds for that chemical times the number of certification 
statements appearing in the data base for the same chemical from 
another establishment. For these reasons, EPA is not extending 
``partial facility'' or multiple submissions of the certification 
statement by multi-establishment facilities.
    3. Loss of eligibility for the threshold and relationship to prior 
year reporting. A commenter questioned whether the facility was 
required to submit prior year data under section 8 of Form R if in a 
subsequent reporting year the facility became ineligible to take 
advantage of the alternate threshold. EPA's determination on this issue 
is that the facility would not be required to include prior year data. 
This is because the facility was not specifically obligated to develop 
such data and submit it on Form R. This would be similar to a situation 
in which a facility fell below the statutory threshold for an activity 
and was not required to file Form R for a preceding year. The facility 
may enter ``NA'' in these blocks of column A of section 8 of Form R. 
However, EPA encourages facilities to provide such data voluntarily. A 
facility may have developed specific determinations regarding amounts 
that contributed to the total waste determination in order to take 
advantage of the alternate threshold for that prior year. Given this, 
the facility could fill in the appropriate blocks of column A without 
significant additional burden.

F. Degree of Burden Reduction

    A majority of commenters indicated that the proposal would provide, 
at best, only minimal regulatory relief from current reporting burden. 
Others indicated that, while they support the concept of this proposal, 
it will not relieve the reporting burden placed on either large or 
small businesses. In addition, some commenters considered EPA's 
estimates of net savings to the regulated community to be overstated. 
Most of the comments received concerning burden relief focussed on four 
aspects that, in the commenters' view, are unrelieved by EPA's 
proposal: (1) Data elements required to complete the annual 
certification; (2) level of effort required to document eligibility for 
submitting a certification statement; (3) failure of EPA to account for 
facilities manufacturing, processing, or otherwise using chemicals in 
excess of the alternate threshold; and (4) relief from additional 
regulations at the state and local level, which are predicated upon 
eligibility for reporting in TRI.
    1. Data elements required to complete the annual certification. 
Commenters' most frequent contention was that only minimal burden 
reduction would be available through the alternate threshold. The 
reason given by commenters was that filing the annual certification 
statement would require that all calculations required when filing Form 
R would still be necessary in order to document eligibility for the 
alternate threshold. The only reduction in burden, argue commenters, 
would be associated with the actual preparation and mailing of Form R.
    EPA emphasizes that information regarding source reduction 
activities (including, for example, prior and subsequent year estimates 
required under section 8 of Form R) and certain other data (including, 
for example, location of transfer recipients; waste treatment method 
and efficiency) would not be required under the rule. Some commenters 
believe that many facilities eligible for the alternate threshold will 
perform such calculations in any event, to ensure that a complete Form 
R submission can be prepared in case their eligibility cannot be 
maintained from year-to-year. EPA stresses that these calculations for 
previous and subsequent years are not required, and concludes that 
meaningful burden reduction is available through the alternate 
threshold to facilities choosing to file the certification statement.
    2. Level of effort required to document eligibility for the 
alternate threshold. Some commenters expressed concern regarding the 
level of effort needed to document a claim of eligibility under the 
proposed rule, fearing that increased stringency will be applied to 
recordkeeping requirements. Consequently, the additional burden and 
cost associated with this increased stringency, commenters argue, could 
prevent many facilities from taking advantage of the exemption. While 
EPA recognizes that facility operators may perceive a level of burden 
in documenting eligibility for the alternate threshold in excess of 
current requirements, EPA does not intend to seek greater precision in 
estimates from facilities eligible for the alternate threshold. Since 
facility operators have presumably filed Form Rs in the past, 
estimation procedures and recent records of calculations and 
submissions most likely exist for most facilities; thus, new or 
additional procedures should not need to be established. Consequently, 
EPA disagrees with these commenters, and sees no reason why 
recordkeeping requirements associated with the alternate threshold 
should deter eligible facilities from filing the annual certification 
statement.
    3. Failure of EPA to account for facilities manufacturing, 
processing, or otherwise using chemicals in excess of the alternate 
threshold. One commenter explained that EPA's aggregate estimate of 
savings attributable to the alternate threshold were overstated due to 
the Agency's assumption that all facilities identified as meeting the 
category criteria were in fact eligible to file the certification 
statement under the alternate threshold. The commenter noted that many 
facilities with low level releases would be ineligible to file the 
annual certification statement because they would exceed the proposed 1 
million pound alternate manufacture, process, or otherwise use 
threshold.
    EPA acknowledges this, and agrees that, to the extent that there 
are facilities that satisfy the category criteria but do not meet 
threshold requirements, aggregate savings are overstated. While data 
are not available to estimate the frequency of occurrence of such 
facilities, EPA is confident that the overall impacts of the assumption 
are minor.
    Conversely, EPA's estimates may understate savings due to the 
effect of range reporting on the analysis. That is, the number of 
facilities estimated to meet the category criteria likely excludes many 
facilities satisfying the criteria because many take advantage of the 
option of range reporting when filing Form R. Since facilities may 
report releases within a range of 11-499 pounds to each media type, EPA 
cannot know for certain the number of facilities for which the annual 
reportable amount would be limited to 500 pounds. Where range reporting 
was used, EPA assumed actual releases to be the midpoint of 250 pounds; 
thus, facilities with actual releases below this amount would be 
excluded if reporting for more than two media types.
    4. Impact of other regulatory requirements. Many commenters pointed 
out that burden is also a function of ``piggyback'' state or federal 
requirements that reference TRI reporting as a trigger for additional 
reporting, submission of fees, or development of facility plans for 
pollution prevention. Commenters urge EPA to clearly state that those 
who take advantage of the alternate threshold are not considered to be 
``covered facilities'' and should not be subject to additional 
``piggyback'' regulations.
    As discussed in unit III.E.1. of this preamble, the covered 
facility determination relative to these other requirements is a 
chemical-specific determination. If all potential Form R reports can be 
converted to certification statements, EPA estimates that approximately 
3,800 facilities would no longer be ``covered facilities'' for purposes 
of Form R reporting. In addition, approximately 6,000 other facilities 
would be eligible to convert one or more of their Form R reports to a 
certification statement (Ref. 4). However, facilities that can take 
advantage of the alternate threshold are required to report under EPCRA 
section 313 for purposes of submission of the alternate threshold 
certification statement for a specific chemical. The ultimate 
mitigation of the burden associated with the piggyback requirements 
will relate to the specific way in which those requirements reference 
TRI submitters or forms.

G. Effective Date

    Some commenters suggested that EPA consider alternatives to the 
effective date of the proposal. Suggestions included a retroactive date 
corresponding to the effective date of EPCRA, in essence applying the 
alternate threshold to all past reports under section 313. Others felt 
that no delays in promulgating this rule should prevent its application 
in reporting year 1995. Another commenter indicated that EPA should 
deliberate as long as is necessary to complete the analysis that 
supports this rule, while a few commenters requested that the effective 
date of the rule be applied to reporting year 1994.
    Contingent upon OMB approval, the alternate threshold rule is 
effective for reporting on activities beginning January 1, 1995, with 
the first receipt of certifications due on or before July 1, 1996. EPA 
will publish a technical amendment in the Federal Register when the 
reporting additions have been approved by OMB. As with any major 
changes in reporting requirements, EPA believes that both the regulated 
community, EPA, and the states require time to understand and prepare 
for implementing this change. The regulated community will need an 
opportunity to become fully aware of the alternate threshold and 
understand how it can apply to their data development and their own 
data management systems for TRI compliance purposes. EPA and the states 
need time to make necessary modifications in data systems to 
incorporate the certification statements. Also, changes to the Agency's 
automated reporting software have to be made and tested in order to add 
the certification statement feature.

IV. Rulemaking Record

    The record supporting this rule is contained in the TSCA docket, 
number OPPTS-400087. All documents, including an index of the docket, 
are available in the TSCA Nonconfidential Information Center (NCIC), 
also known as the TSCA Public Docket Office from 12 noon to 4 p.m., 
Monday through Friday, excluding legal holidays. The NCIC is located at 
EPA Headquarters, Rm. NE-B607, 401 M St., SW., Washington, DC 20460.

V. References

    (1) Regulatory Impact Analysis of the EPCRA Section 313 Alternate 
Threshold Final Rule; USEPA, (October 17, 1994).
    (2) Title III List of Lists, Consolidated List of Chemicals Subject 
to Reporting Under the Emergency Planning And Community Right-To-Know 
Act; USEPA, 560/492-011, (January 1992).
    (3) Toxic Release Inventory-Small Source Exemption Issues Paper; 
prepared by the Office of Pollution Prevention and Toxics, (January 27, 
1994).
    (4) TRI Data: Summary of Estimated Impacts (1991 verses 1992).

VI. Regulatory Assessment Requirements

A. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993) the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to review by the Office of Management and Budget 
(OMB) and the requirements of the Executive Order. Under section 3(f), 
the order defines as ``significant'' those regulatory actions likely to 
lead to a rule (1) Having an annual effect on the economy of $100 
million or more, or adversely and materially affecting a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local or tribal governments or communities 
(also referred to as ``economically significant''); (2) creating 
serious inconsistency or otherwise interfering with an action taken or 
planned by another agency; (3) materially altering the budgetary 
impacts of entitlements, grants, user fees, or loan programs; or (4) 
raising novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in this Executive 
Order.
    Pursuant to the terms of this Executive Order, EPA has determined 
that this rule is ``significant'' because of the novel policy issues 
arising out of the statutory mandate to maintain reporting on a 
substantial majority of releases if the reporting threshold under 
section 313(f)(1) is modified. This action was submitted to OMB for 
review, as required by Executive Order 12866, and any comments or 
changes made in response to OMB suggestions or recommendations have 
been documented in the public record.
    EPA has prepared a Regulatory Impact Analysis (RIA) in conjunction 
with this rulemaking. A copy of this document (titled ``Regulatory 
Impact Analysis of the Final Rule for the Alternate Threshold for EPCRA 
Section 313 Reporting'') is available in the TSCA Nonconfidential 
Information Center (NCIC) (also known as the TSCA Public Docket 
Office), for review and copying (see unit IV. of this preamble).
    EPA has estimated that the alternate threshold will generate $19 
million a year in savings. The savings from the final rule differ from 
the savings from the proposed rule because the basis of the facility 
category has been changed from releases and transfers to annual 
reportable amounts, and the level has been changed from 100 pounds to 
500 pounds. These differences are shown in Table 2 below.
    EPA is issuing a final rule to add chemicals and chemical 
categories to the EPCRA section 313 list. The alternate threshold is 
estimated to save an additional $3 million per year for reporting on 
these additional chemicals. Further information on the chemical 
additions will be presented the Federal Register.

                      Table 2.--Summary of Cost Comparison Between Proposed and Final Rule                      
----------------------------------------------------------------------------------------------------------------
                                                                   Final Rule (500lb.                           
                                        Proposed Rule (100lb.      Annual Reportable       Final Rule with New  
                                        Release and Transfer)           Amount)                 Chemicals       
----------------------------------------------------------------------------------------------------------------
Number of facilities with one or more                                                                           
 reports affected                                       10,200                    9,900                   11,600
                                                                                                                
Number of facilities with all reports                                                                           
 affected                                                3,600                    3,800                    4,500
                                                                                                                
Number of reports affected                              20,500                   20,100                   23,600
                                                                                                                
Industry savings per report affected                    $1,264                     $912                     $912
                                                                                                                
EPA savings per report affected                         $33.20                   $33.20                   $33.20
                                                                                                                
Annual industry savings                          $25.9 million            $18.4 million            $21.5 million
                                                                                                                
Annual EPA savings                                $0.7 million             $0.7 million             $0.8 million
----------------------------------------------------------------------------------------------------------------
Source--RIA.                                                                                                    


    The savings described in Table 2 above are only related to those 
actions that are required under EPCRA section 313. There are other 
requirements that are linked to reporting under EPCRA section 313, but 
that are not required by it. EPA is aware of 13 states that place a fee 
or tax on facilities that file a Form R or report to EPA under EPCRA 
section 313, and 7 states that mandate pollution prevention plans from 
such facilities. EPA has also created special requirements for certain 
facilities with NPDES storm water permits that report under EPCRA 
section 313.
    The alternate threshold may also create savings related to the 
linked requirements. Since a facility that can take advantage of the 
alternate threshold is not a ``covered facility'' for purposes of a 
specific Form R submission, the linkage to state requirements may no 
longer hold. This will not necessarily increase net social benefits, 
because the linked fees and taxes are transfers (and there will be a 
corresponding decrease in state revenues), and the benefits of covering 
these facilities under the pollution prevention planning requirements 
may be lost. Moreover, these states may choose to reimpose the linked 
requirements, even if the facilities have not filed a Form R.

B. Regulatory Flexibility Act

    Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 
U.S.C. 605(b), the Administrator certifies that this rule will not have 
a significant economic impact on a substantial number of small 
entities. Because this rule will result in cost savings to facilities, 
EPA certifies that small entities will not be significantly affected by 
it.

C. Paperwork Reduction Act

    The information collection requirements in this rule have been 
submitted for approval to OMB under the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq. An Information Collection Request document has been 
prepared by EPA (ICR No. 1704.01) and a copy may be obtained from Sandy 
Farmer, Information Policy Branch, Mail Code 2136, EPA, 401 M St., SW., 
Washington, DC 20460 or by calling (202) 260-2740. These requirements 
are not effective until OMB approves them and a technical amendment to 
that effect is published in the Federal Register.
    This collection of information has an estimated reporting burden 
averaging 33 hours per response and an estimated annual recordkeeping 
burden averaging 6 hours per respondent. These estimates include time 
for reviewing instructions, searching existing data sources, gathering 
and maintaining the data needed, and completing and reviewing the 
collection of information.

List of Subjects in 40 CFR Part 372

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

    Dated: November 22, 1994.
Carol M. Browner,
Administrator.

    Therefore, 40 CFR part 372 is amended as follows:

PART 372--[AMENDED]

    1. The authority citation for part 372 continues to read as 
follows:

    Authority: 42 U.S.C. 11023 and 11048.

    2. In Sec. 372.10, by adding a new paragraph (d) to read as 
follows:


Sec. 372.10  Recordkeeping.

    *  *  *  *  *
    (d) Each owner or operator who determines that the owner operator 
may apply the alternate threshold as specified under Sec. 372.27(a) 
must retain the following records for a period of 3 years from the date 
of the submission of the certification statement as required under 
Sec. 372.27(b):
    (1) A copy of each certification statement submitted by the person 
under Sec. 372.27(b).
    (2) All supporting materials and documentation used by the person 
to make the compliance determination that the facility or establishment 
is eligible to apply the alternate threshold as specified in 
Sec. 372.27.
    (3) Documentation supporting the certification statement submitted 
under Sec. 372.27(b) including:
    (i) Data supporting the determination of whether the alternate 
threshold specified under Sec. 372.27(a) applies for each toxic 
chemical.
    (ii) Documentation supporting the calculation of annual reportable 
amount, as defined in Sec. 372.27(a), for each toxic chemical, 
including documentation supporting the calculations and the 
calculations of each data element combined for the annual reportable 
amount.
    (iii) Receipts or manifests associated with the transfer of each 
chemical in waste to off-site locations.
    3. In Sec. 372.22, by revising paragraph (c) to read as follows:


Sec. 372.22   Covered facilities for toxic chemical release reporting.

    *  *  *  *  *
    (c) The facility manufactured (including imported), processed, or 
otherwise used a toxic chemical in excess of an applicable threshold 
quantity of that chemical set forth in Sec. 372.25 or Sec. 372.27.
    4. In Sec. 372.25, by revising the introductory paragraph to read 
as follows:


Sec. 372.25   Thresholds for reporting.

    Except as provided in Sec. 372.27, the threshold amounts for 
purposes of reporting under Sec. 372.30 for toxic chemicals are as 
follows:
    *  *  *  *  *
    5. By adding new Sec. 372.27 to read as follows:


Sec. 372.27   Alternate threshold and certification.

    (a) With respect to the manufacture, process, or otherwise use of a 
toxic chemical, the owner or operator of a facility may apply an 
alternate threshold of 1 million pounds per year to that chemical if 
the owner or operator calculates that the facility would have an annual 
reportable amount of that toxic chemical not exceeding 500 pounds for 
the combined total quantities released at the facility, disposed within 
the facility, treated at the facility (as represented by amounts 
destroyed or converted by treatment processes), recovered at the 
facility as a result of recycle operations, combusted for the purpose 
of energy recovery at the facility, and amounts transferred from the 
facility to off-site locations for the purpose of recycle, energy 
recovery, treatment, and/or disposal. These volumes correspond to the 
sum of amounts reportable for data elements on EPA Form R (EPA Form 
9350-1; Rev. 12/4/93) as Part II column B or sections 8.1 (quantity 
released), 8.2 (quantity used for energy recovery on-site), 8.3 
(quantity used for energy recovery off-site), 8.4 (quantity recycled 
on-site), 8.5 (quantity recycled off-site), 8.6 (quantity treated on-
site), and 8.7 (quantity treated off-site).
    (b) If an owner or operator of a facility determines that the owner 
or operator may apply the alternate reporting threshold specified in 
paragraph (a) of this section for a specific toxic chemical, the owner 
or operator is not required to submit a report for that chemical under 
Sec. 372.30, but must submit a certification statement that contains 
the information required in Sec. 372.95. The owner or operator of the 
facility must also keep records as specified in Sec. 372.10(d).
    (c) Threshold determination provisions of Sec. 372.25 and 
exemptions pertaining to threshold determinations in Sec. 372.38 are 
applicable to the determination of whether the alternate threshold has 
been met.
    (d) Each certification statement under this section for activities 
involving a toxic chemical that occurred during a calendar year at a 
facility must be submitted to EPA and to the State in which the 
facility is located on or before July 1 of the next year.
    6. By adding a new Sec. 372.95 to read as follow:


Sec. 372.95  Alternate threshold certification and instructions.

    (a) Availability of the alternate threshold certification statement 
and instructions. Availability of the alternate threshold certification 
statement and instructions is the same as provided in Sec. 372.85(a) 
for availability of the reporting form and instructions.
    (b) Alternate threshold certification statement elements. The 
following information must be reported on an alternate threshold 
certification statement pursuant to Sec. 372.27(b):
    (1) Reporting year.
    (2) An indication of whether the chemical identified is being 
claimed as trade secret.
    (3) Chemical name and CAS number (if applicable) of the chemical, 
or the category name.
    (4) Signature of a senior management official certifying the 
following: pursuant to 40 CFR 372.27, ``I hereby certify that to the 
best of my knowledge and belief for the toxic chemical listed in this 
statement, the annual reportable amount, as defined in 40 CFR 
372.27(a), did not exceed 500 pounds for this reporting year and that 
the chemical was manufactured, or processed, or otherwise used in an 
amount not exceeding 1 million pounds during this reporting year.''
    (5) Date signed.
    (6) Facility name and address.
    (7) Mailing address of the facility if different than paragraph 
(b)(6) of this section.
    (8) Toxic chemical release inventory facility identification number 
if known.
    (9) Name and telephone number of a technical contact.
    (10) The four-digit SIC codes for the facility or establishments in 
the facility.
    (11) Latitude and longitude coordinates for the facility.
    (12) Dun and Bradstreet Number of the facility.
    (13) EPA Identification Number(s) (RCRA) I.D. Number(s) of the 
facility.
    (14) Facility NPDES Permit Number(s).
    (15) Underground Injection Well Code (UIC) I.D. Number(s) of the 
facility.
    (16) Name of the facility's parent company.
    (17) Parent company's Dun and Bradstreet Number.
[FR Doc. 94-29377 Filed 11-29-94; 8:45 am]
BILLING CODE 6560-50-F