Federal Register, Volume 63 Issue 27 (Tuesday, February 10, 1998)

[Federal Register Volume 63, Number 27 (Tuesday, February 10, 1998)]
[Proposed Rules]
[Pages 6691-6698]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-3316]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 372

[OPPTS-400122; FRL-5760-2]


Emergency Planning and Community Right to Know; Section 313, 
Toxic Release Inventory Reporting; Notice of Receipt of Petition

AGENCY: Environmental Protection Agency (EPA).


[[Page 6692]]


ACTION: Notice of receipt of petition and request for comments.

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SUMMARY: This notice announces the receipt of a petition from the 
Natural Resources Defense Council (NRDC), Defenders of Wildlife, 
National Audubon Society and the Humane Society of the United States, 
requesting EPA to initiate rulemaking to add Standard Industrial 
Classification (SIC) Code 45, Transportation by Air, to the list of 
facilities required to report releases under section 313 of the 
Emergency Planning and Community Right-to-Know Act (EPCRA) and section 
6607 of the Pollution Prevention Act of 1990 (PPA). The petition was 
submitted pursuant to section 313(b)(1)(B) of EPCRA and sections 553(e) 
and 555(e) of the Administrative Procedure Act (APA). Also, as part of 
this notice, EPA, as requested by the petitioners, is publishing the 
petition in its entirety. Finally, EPA is seeking comments from 
interested or potentially affected parties concerning issues associated 
with adding airports to the list of facilities that must report under 
section 313 of EPCRA and section 6607 of the PPA, and the motor vehicle 
exemption under 40 CFR 372.38(c).

DATES: Written comments in response to this request for comments must 
be received on or before April 13, 1998.

ADDRESSES: Each comment must bear the docket control number ``OPPTS-
400122.'' All comments should be sent in triplicate to: OPPT Document 
Control Officer (7407), Office of Pollution Prevention and Toxics, 
Environmental Protection Agency, 401 M St., SW., Room G-099, East 
Tower, Washington, DC 20460.
    Comments and data may also be submitted electronically to: oppt. 
[email protected]. Follow the instructions under Unit IV. of this 
document. No Confidential Business Information (CBI) should be 
submitted through e-mail.
    All comments which contain information claimed as CBI must be 
clearly marked as such. Three sanitized copies of any comments 
containing information claimed as CBI must also be submitted and will 
be placed in the public record for this action. Persons submitting 
information on any portion of which they believe is entitled to 
treatment as CBI by EPA must assert a business confidentiality claim in 
accordance with 40 CFR 2.203(b) for each such portion. This claim must 
be made at the time that the information is submitted to EPA. If a 
submitter does not assert a confidentiality claim at the time of 
submission, EPA will consider this as a waiver of any confidentiality 
claim and the information may be made available to the public by EPA 
without further notice to the submitter.

FOR FURTHER INFORMATION CONTACT: Vicki Anderson at (202) 260-3544, e-
mail: [email protected]. for specific information 
regarding this notice. For further information on EPCRA section 313, 
contact the Emergency Planning and Community Right-to-Know Hotline, 
Environmental Protection Agency, Mail Stop 5101, 401 M St., SW., 
Washington, DC 20460, Toll-free: 1-800-535-0202, in Virginia and 
Alaska: 703-412-9877 or Toll free TDD: 800-553-7672.

SUPPLEMENTARY INFORMATION:

I. Background

    On April 16, 1997, the EPA received a petition from the Natural 
Resources Defense Council, Defenders of Wildlife, National Audubon 
Society, and the Humane Society of the United States, requesting EPA to 
initiate rulemaking to add Standard Industrial Classification (SIC) 
Code 45, Transportation by Air, to the list of facilities required to 
report releases under section 313 of the Emergency Planning and 
Community Right-to-Know Act and section 6607 of the PPA. The 
petitioners also requested that the petition be printed in the Federal 
Register. The following is the complete text of the petition:

II. The Petition

April 16, 1997
The Honorable Carol Browner
Administrator
United States Environmental Protection Agency
401 M Street SW
Washington, D.C. 20460

    Re: Petition to Add Standard Industrial Classification Code 45, 
Transportation By Air, to the List of Facilities Required to Report 
Releases of Chemicals

Dear Administrator Browner:
    Pursuant to section 313(b)(1)(B) of the Emergency Planning and 
Community Right to Know Act (EPCRA) 42 U.S.C. Sec.  11023(b)(1)(B), 
and sections 553(e) and 555(e) of the Administrative Procedure Act, 
5 U.S.C. Secs.  553(e), the undersigned groups hereby petition the 
United States Environmental Protection Agency (EPA) to initiate 
rulemaking to add Standard Industrial Code (SIC) 45, Transportation 
by Air, which includes airports, airline terminals, and aircraft 
maintenance facilities, to the list of facilities required to report 
releases of toxic chemicals listed on the Toxic Release Inventory 
(TRI). We also request that EPA immediately publish this petition in 
the Federal Register.
    SIC Code 45 facilities are responsible for the release of 
millions of pounds of toxic chemicals into the environment each 
year. Nevertheless, EPA eliminated SIC Code 45 from its first 
industry expansion rulemaking, despite EPA's own findings that show 
SIC Code 45 facilities release more toxic chemicals than do most of 
the facilities currently proposed for reporting.
    For over three years, EPA analyses have shown that SIC Code 45 
facilities should be required to report TRI chemical releases. SIC 
Code 45 was a ``Primary Candidate'' for inclusion in EPA's industry 
expansion rulemaking based on volume of TRI chemicals 
released.¹ In fact, SIC Code 45 ranked third among 25 SIC 
codes considered for inclusion in the rule. While SIC Code 45 
facilities use TRI-listed chemicals for a variety of purposes, 
ethylene glycol is the TRI chemical used in the greatest quantities 
at these facilities. According to EPA's own estimates, during icing 
conditions at the 17 busiest airports in the United States, some 58 
million pounds of ethylene glycol are released to the environment 
each year.² Thus, SIC Code 45 facilities clearly warrant 
listing.
    The undersigned (Natural Resources Defense Council, Defenders of 
Wildlife, National Audubon Society, and the Humane Society of the 
United States), represent a group of environmental, wildlife, and 
humane organizations. The Natural Resources Defense Council (NRDC) 
is an environmental advocacy organization with over 350,000 members 
and contributors nationwide. Since 1970, NRDC's scientists and 
attorneys have been key players in virtually every critical 
environmental issue. Defenders of Wildlife, representing 200,000 
members, is one of the leading national organizations fighting to 
preserve America's endangered species and biological diversity. 
National Audubon Society, representing 550,000 members works to 
conserve and restore natural ecosystems, focusing on birds and other 
wildlife for the benefit of humanity and the earth's biological 
diversity. The Humane Society of the United States, with 4.4 million 
members and constituents, is the largest animal protection 
organization in the United States. Collectively, the undersigned 
groups represent over 5 million members and constituents.
I. Introduction
    The fundamental purposes of EPCRA are to inform citizens of 
toxic chemical use in their neighborhoods and to encourage industry 
to reduce toxic chemical use. Since its enactment in 1986, EPCRA has 
successfully achieved a significant reduction in toxic chemical use. 
As Administrator, you have noted, ``the success of the program comes 
from the public's and industry's use of this information to motivate 
and empower initiatives at all levels; from facility teams, to 
community groups, to trade associations, and state and local 
government.''³ EPA's failure to include SIC Code 45 in 
its facility expansion rule has achieved the opposite result; recent 
data demonstrates that ethylene glycol use at SIC Code 45 facilities 
is increasing. Because ethylene glycol is cheaper than less toxic 
alternatives, EPA's failure to include SIC Code 45 facilities in the 
facility expansion rule has eliminated a critical incentive for 
these facilities to use less toxic chemicals.
    In order to fulfill EPCRA's source reduction and public 
information objectives, EPA must act to carry out its original 
intention to require SIC Code 45 facilities to

[[Page 6693]]

report TRI releases. As demonstrated below, adding SIC Code 45 to 
the list of industries required to report TRI releases achieves 
EPCRA's statutory purposes and satisfies EPA's decisional criteria 
for adding facilities under EPCRA.
II. SIC Code 45 Meets EPA's Criteria for Addition to the List of 
Facilities Required to Report TRI Releases
    Under EPCRA section 313(b)(1)(B), EPA may add industry groups to 
the list of facilities required to report TRI releases where EPA 
determines that adding an industry to the list furthers the purposes 
of EPCRA.⁴ EPA established three criteria or factors for 
adding facilities under EPCRA section 313(b)(1)(B) in its first 
facility expansion rulemaking: (1) the ``chemical'' factor; (2) the 
``activity'' factor ; (3) the ``information'' factor. SIC Code 45 
facilities satisfy each of these criteria and therefore should be 
required to report TRI releases.
A. The Chemical Factor
    In addressing whether the chemical factor is met, EPA considers 
evidence that facilities within an industry group are reasonably 
anticipated to use one or more EPCRA 313 listed chemicals as part of 
its routine operations.⁵ There can be little question 
that substantial amounts of TRI chemicals are present at SIC Code 45 
facilities. In its industry profile, EPA determined that toxic 
chemicals used by SIC Code 45 facilities include ethylene glycol, 
trichloroethylene, methylene chloride, acetone, chloroform, methyl 
ethyl ketone, isopropyl alcohol, glycol ethers, toluene, xylene, and 
other petroleum distillates.⁶1. Ethylene Glycol is Toxic to Humans and Wildlife
    The quantities of ethylene glycol used at SIC Code 45 facilities 
pose significant risks to humans, companion animals, and wildlife. 
Requiring airports to report ethylene glycol releases will encourage 
more extensive use of less toxic alternatives and will therefore 
reduce human and wildlife exposure to a toxic substance.
    The acute oral toxicity of ethylene glycol in humans is well 
documented. Initially, ethylene glycol causes impairment of the 
nervous system, followed by cardiopulmonary toxicity and severe 
metabolic acidosis (i.e., the blood becomes unacceptably acidic). 
Kidney failure, major neurological disruption, and death can 
follow.⁷ The lethal dose of ingested ethylene glycol in 
humans is approximately 1.57g/kg body weight.⁸ For a 155 
pound person, this dose is approximately equal to three ounces. In 
1994, 4,792 cases of ethylene glycol ingestion were reported to 
poison control centers throughout the United States.⁹ Of 
these exposures, 106 cases were life-threatening or resulted in 
significant residual disability, and 34 cases resulted in 
death.¹⁰Chronic effects from ethylene glycol ingestion include 
reproductive, developmental, and renal effects. Ethylene glycol was 
found to cause birth defects in mice.¹¹ EPA has 
recognized the heightened chronic toxicity of ethylene glycol by 
establishing Reference Doses (RfDs)¹² and long-term 
Drinking Water Health Advisories. The RfD of ethylene glycol is 2.0 
mg/kg/day.¹³ The Drinking Water Health Advisory for 
ethylene glycol is 5.5 mg/L for children and 19.25 mg/L for 
adults.¹⁴ The FDA has stated that drugs containing 
ethylene glycol are considered dangerous to health and are 
misbranded¹⁵ and that ``under no circumstances [is 
ethylene glycol] to be used in any product, whether food, drug, or 
cosmetic that is likely to be taken internally or otherwise absorbed 
by external application.''¹⁶Ethylene glycol has also been shown to be toxic by 
inhalation. Inhalation, of course, is the likely exposure pathway 
for airport users such as passenger and flight crew as well as 
airport ground crews. Exposure to as little as 3 to 67 mg/m³ 
of ethylene glycol for a thirty-day period caused throat irritation 
and headaches in humans.¹⁷ Levels above 140 mg/m³ 
caused pronounced respiratory irritation, and subjects could not 
tolerate levels of 200 mg/m³.¹⁸ In animals 
ethylene glycol has been shown to cause irritation of the eyes and 
respiratory tract, as well as the intestine and lymph nodes. 
Further, inhalation of ethylene glycol has been shown to cause birth 
defects in laboratory experiments.¹⁹Ethylene glycol is also extremely toxic to animals. 
Moreover, since it has a sweet taste, it is attractive to both wild 
animals and companion animals, thus increasing the likelihood of 
ingestion. A recent study of small practice veterinarians throughout 
the United States found that more than 90,000 dogs and cats die each 
year from ingesting ethylene glycol antifreeze.²⁰ Another 
study estimated that almost 30 percent of all documented dog and cat 
poisonings were due to ethylene glycol.²¹ Endangered 
species have also been poisoned. In 1992, a California Condor drank 
antifreeze and died.²² Migratory birds and large, as well 
as small animals have succumbed. In 1989, the remains of a polar 
bear were found on an Alaskan island; ethylene glycol was present in 
the soil under the carcass. The polar bear apparently ingested an 
ethylene glycol mixture that was used to mark the centerline of 
roads and runways covered with snow and ice.²³2. Health Effects of Other Toxic Substances Used at Many 
Airports
    While ethylene glycol appears to be the most prevalent toxic 
substance used at airports, maintenance facilities at many airports 
apply chemicals including trichloroethylene, toluene, methylene 
chloride, chloroform and glycol ethers, which can have serious human 
health implications. For example, breathing large amounts of 
methylene chloride for even short periods adversely affects the 
human nervous system and the heart, and repeated exposure to 
methylene chloride causes kidney and liver damage and cancer in 
laboratory tests--repeat exposure may likewise cause cancer in 
humans.²⁴ Very high levels of chloroform may result in 
unconsciousness and death, and in moderate amounts chloroform 
affected reproduction in animal studies. In addition, the Department 
of Health and Human Services has determined that chloroform may 
reasonably be anticipated to be a carcinogen.²⁵ Low-to-
moderate levels of toluene from long-term exposure can cause memory 
loss, nausea, loss of appetite, and hearing loss. Toluene also 
affects the kidneys. Repeated exposure to high levels of toluene can 
cause permanent brain and speech damage, vision and hearing 
problems, memory loss and decreased mental ability.²⁶3. Significant Human and Wildlife Exposure Results From 
Deicing Operations
    Release of very large volumes of ethylene glycol during deicing 
and anti-icing operations create the potential for human exposures 
that may have significant health consequences for airline 
passengers, employees, and other service personnel.²⁷ For 
example, ethylene glycol has been measured during deicing operations 
at levels up to 18 mg/L in ambient air.²⁸ One study 
showed that an airline deicing employee could be exposed to 104 mg/
m³ of ethylene glycol through a saturated mask,²⁹ 
which would exceed the concentration of 100 mg/m³³⁰ in 
the current ACGIH TLV if the employee sprayed for eight hours. 
Ethylene glycol has also been measured inside aircraft during 
deicing operations at levels close to 2 mg/L.³¹A recent survey found that 45 of the 50 busiest airports 
in the United States were located within three miles of an ocean, 
bay, lake, reservoir, river, wetland or stream.³² 
Ethylene glycol has the potential to enter drinking water supplies 
through discharges to surface waters or releases to ground water. 
Moreover, unless the ethylene glycol fluid is captured for 
recycling, which does not appear to be a common airport practice in 
the United States,³³ the fluid may puddle on-site, 
infiltrate soil, flow into creeks, streams, or rivers, or be 
retained in on-site retention basins. Wildlife forage in these 
environs. Migratory birds are particularly attracted to pooled 
water. SIC Code 45 facilities may be located adjacent to or in the 
vicinity of wildlife refuges. For example, John F. Kennedy 
International Airport in New York borders on the Jamaica Bay 
National Wildlife Refuge--a critical habitat for many species of 
migratory birds, waterfowl, and wildlife. Denver's airport is near 
the Rocky Mountain Arsenal National Wildlife Refuge.
    Ethylene glycol has been measured in stormwater following 
deicing operations in concentrations as high as 19,800 mg/L,³⁴ 
and up to 13,200 mg/L in receiving waters.³⁵ Ethylene 
glycol in stormwater runoff at Salt Lake City International Airport 
was measured at 19,000 mg/L.³⁶ Levels of ethylene glycol 
at Denver's Stapleton Airport ranged from zero to 5,050 mg/L, with 
some later concentrations exceeding 100,000 mg/L.³⁷ These 
levels far exceed the EPA's one-day federal drinking water health 
advisory for ethylene glycol of 18.86 mg/L for children.
    Because most ethylene glycol releases at airports occur during 
cold weather, significant concentrations of ethylene glycol will be 
present downstream from airports. Glycols do not rapidly biodegrade 
at low temperatures.³⁸ Since biodegradation of ethylene 
glycol occurs slowly at low temperatures, ethylene glycol travels 
farther down river ecosystems or through the soil before any 
biodegradation occurs. Further, biodegradation of ethylene glycol in 
ground water proceeds at a slower rate than in surface water because 
of the limited microbial populations and less available

[[Page 6694]]

oxygen in groundwater. Thus, there is a greater potential that 
humans and wildlife will be exposed to a toxic chemical.
    In addition, both ethylene glycol and a less toxic alternative, 
propylene glycol, exert a strong biochemical oxygen demand (BOD) on 
receiving waters. This contributes to eutrophication (oxygen 
depletion), nuisance algal blooms, and fishery impacts.
    Ethylene glycol releases are by no means the only threat to 
surface and groundwater that result from operations at SIC Code 45 
facilities. Leaking underground storage tanks and pipes are a 
significant problem. For example, John F. Kennedy International, 
Dallas-Fort Worth, Atlanta, Los Angeles International, San 
Francisco, Cleveland, and Miami airports have all reported leaking 
underground tanks.³⁹ At John F. Kennedy International 
there are two underground plumes of aviation fuel beneath the 
airport, estimated to contain 3-5 million gallons of jet fuel, that 
resulted from leaking underground pipes.⁴⁰B. The Activity Factor
    Under the activity factor EPA considers evidence that facilities 
within an industry group manufacture, process, or otherwise use one 
or more TRI chemicals.⁴¹ EPA has determined that 
facilities in SIC Code 45 may process or otherwise use TRI 
chemicals, especially ethylene glycol, when conducting aircraft and 
ground surface deicing or anti-icing operations and maintaining, 
repairing, and cleaning aircraft.⁴²During icing conditions, SIC Code 45 facilities apply 
ethylene glycol to aircraft using hand-held applicators that contain 
a volume of fluid in a canister connected to a hose and spray 
nozzle. In most cases, aircraft deicing is conducted at the terminal 
gate just prior to take-off. At some facilities, aircraft deicing is 
conducted away from the gate. Sometimes, if an aircraft is held too 
long at or away from the gate, more than one application of ethylene 
glycol will be required. Ethylene glycol use at SIC Code 45 
facilities is probably unique among TRI chemical use in that its use 
requires ethylene glycol to be deliberately sprayed into the 
environment.
    EPA determined that ethylene glycol was the chemical used in the 
largest quantities by SIC Code 45 facilities. During winter months 
when icy conditions exist, airports and airlines use deicing and 
anti-icing fluids to ensure passenger safety. If an airplane is 
covered with ice or snow, thousands of gallons of deicing solution 
may be necessary to deice just one aircraft. Salt Lake City Airport 
has reported using 175 to 600 gallons (1,300 to 4,460 pounds) per 
aircraft.⁴³ Depending on weather conditions, Detroit 
Metropolitan Airport reported that deicing may require 1,000 to 
3,000 gallons (7,400 to 22,300 pounds) of deicing fluid for a 
commercial plane the size of a DC-8.⁴⁴ In a ``worst-
case'' situation, as much as 4,000 gallons of a 50-50 mixture of 
glycol and water has been used at Detroit Metropolitan Airport on a 
large airplane when it was coated with one-half inch of ice.⁴⁵ 
Up to 1,000 gallons (7,400 pounds) has often been used to deice a 
single aircraft under severe weather conditions at Stapleton 
International Airport in Denver.⁴⁶Per day and over a full season, airports use ethylene 
glycol in staggering amounts. Based on information filed with its 
NPDES permit, Chicago O'Hare International Airport reported that 
from July 1975 to June 1981, its average annual use of ethylene 
glycol deicing fluid was 348,500 gallons (almost 2.9 million 
pounds).⁴⁷ Assuming a 90 day de-icing season (undoubtedly 
longer than reality), this amounts to an average of over 3,800 
gallons (36,000 pounds) per day. Similarly, a study at Baltimore 
Washington International Airport (BWI) estimated between 250,000 and 
280,000 gallons (approximately 1,489,600 pounds) of ethylene glycol 
are used per year.⁴⁸ EPA reports that the 41st busiest 
airport in the United States (based on numbers of departures), 
Standiford Field in Louisville, Kentucky, used an average of 33,000 
pounds of ethylene glycol per day in connection with its deicing 
operations in December 1991 and January and February 1992.⁴⁹ 
EPA also reports, based on a survey conducted by the Airports 
Council International (ACI), that annual ethylene glycol use at 35 
SIC Code 45 facilities ranged from 1,500 to 4,491,400 gallons 
undiluted (13,965 to 41,814,934 pounds).⁵⁰The vast majority of the ethylene glycol used is released 
directly into the environment as airport and runway runoff. 
Consistent with these reported volumes of ethylene glycol used for 
deicing operations, EPA's industry profile for SIC Code 45 estimated 
that 58 million pounds of ethylene glycol would be released annually 
during icing conditions at the 17 busiest airports in the United 
States. If these facilities had been required to report ethylene 
glycol releases in 1993, ethylene glycol would have ranked 
approximately 12th out of the 316 TRI chemicals reporting TRI 
release in 1993--outranking total reported releases of such TRI 
chemicals as sulfuric acid, manganese compounds, and 
trichloroethylene.⁵¹ If required to report, SIC Code 45 
facilities would have ranked 9th in total volume of releases among 
20 industries reporting under TRI.⁵²Ethylene glycol releases from airports are already 
required to be reported in Canada and to some State agencies in the 
U.S. Experience under the Canadian National Pollutant Release 
Inventory (NPRI) generally confirms U.S. projections. The NPRI 
indicates that over one-half of the facilities with the largest 
releases of ethylene glycol were airports or aviation service 
companies.⁵³ In 1993, ethylene glycol ranked ninth in 
volume of total releases among all reported chemicals in 
Canada.⁵⁴ Moreover, of the top 10 facilities reporting 
ethylene glycol in 1993, six were airports, airbases, or aviation 
service facilities. Ethylene glycol releases for these facilities 
alone combined totaled 1,326 tons (2,652,000 pounds).⁵⁵ 
Similarly, SIC Code 45 facilities in Minnesota and Massachusetts 
report ethylene glycol use to state agencies.⁵⁶ In 
Minnesota, four facilities reported ethylene glycol use from 80,000 
to 2.2 million pounds in 1993. In Massachusetts, one airline 
reported using 276,000 pounds or gallons (the report did not specify 
a unit) of ethylene glycol.⁵⁷In addition to ethylene glycol releases from aircraft 
deicing, SIC Code 45 facilities use ethylene glycol to maintain 
traction on runways during icy conditions. EPA reported, based on 
the ACI survey, that 4,000 to 36,000 gallons (37,240 to 335,160 
pounds) of ethylene glycol was used by one airport to deice airfield 
surfaces each year.⁵⁸ At Chicago O'Hare International 
Airport 6.8 million pounds of a 60 percent ethylene glycol solution 
was applied to runways during the period July 1975 to June 
1981.⁵⁹Ethylene glycol is also a common base for automotive 
antifreeze. Airport ground service equipment and rental car parking 
lots may also release ethylene glycol.
    Other airport operations use other toxic chemicals (see footnote 
6). As EPA noted, cleaning is an essential process in the 
maintenance and repair of commercial aircraft.⁶⁰ Cleaning 
removes contaminants and prepares parts for subsequent inspection, 
repair, bonding, coating, and testing. Aircraft metals and 
electronics are the primary focus of cleaning activities. Metal 
cleaning removes oil, grease, and other contaminants from metal 
parts, while electronics cleaning removes of flux residues that 
remain after soldering operations and conducted. In both cases, SIC 
Code 45 facilities use TRI listed solvents in cleaning operations.
C. The Information Factor
    Under the information factor, EPA considers evidence regarding 
whether requiring a candidate industry group to report is reasonably 
anticipated to increase the information made available pursuant to 
EPCRA section 313 or otherwise further the purposes of EPCRA section 
313. In making this determination EPA considers evidence related to 
one or more of the following: whether a significant portion of 
facilities within the candidate industry group (1) are likely to 
exceed the 313 reporting thresholds, (2) are likely to be subject to 
an existing statutory or regulatory exemption, (3) are likely to 
contain release and waste management data, or (4) whether a 
significant portion of the facilities within the industry group are 
expected to file a TRI certification statement.⁶¹1. Requiring SIC Code 45 Facilities to Report Will Increase 
the Information Made Available Pursuant to EPCRA section 313
    EPA estimates that if SIC Code 45 facilities were required to 
report TRI releases, 824 facilities would submit 984 reports.⁶² 
EPA further estimates that 748 of these reports would be submitted 
based on ethylene glycol use in connection with deicing 
operations.⁶³ Given EPA estimates that ethylene glycol 
use may exceed 58 million pounds per year, requiring SIC Code 45 
facilities to report ethylene glycol releases unquestionably 
increases the amount of information made available to the public 
pursuant to EPCRA section 313.
    The public has no other means by which to learn that huge 
quantities of toxic ethylene glycol are being released in their 
communities. While section 103(a) of the Comprehensive Environmental 
Response Compensation and Liability Act (CERCLA), 42 U.S.C.Sec.  
9603(a); requires any person in charge of a facility from which 
CERCLA hazardous substances has been released in a quantity that 
exceeds its reportable quantity (RQ) within a 24 hour period to 
immediately

[[Page 6695]]

notify the National Response Center, few SIC Code 45 facilities have 
complied with CERCLA's requirements. For those that do, reports are 
not easily accessed by the pubic.
    The Air Transport Association (ATA) reported to its members and 
to the Federal aviation Administration that CERCLA section 103 
reporting was not triggered by ethylene glycol use, because 
``ethylene glycol is typically discharged via storm sewers to a 
NPDES permitted outfall.''⁶⁴ While it is true that CERCLA 
section 103(a) reporting contains an exemption for federally 
permitted releases, the ATA's analysis is nevertheless incorrect. To 
be exempt from CERCLA release reporting, ethylene glycol must be in 
stormwater discharged through an outfall and must either (1) comply 
with the effluent limits prescribed in the permit, or (2) be treated 
in an on-site treatment system as prescribed in the permit, or (3) 
be a continuous or anticipated intermittent discharge that is 
conveyed to a point source as provided in the permit or permit 
application.⁶⁵ Presently, not all SIC Code 45 facilities 
have NPDES permits that provide for the management or treatment of 
ethylene glycol. For those that do, the permit may not yet include 
effluent limitations for ethylene glycol.⁶⁶Moreover, EPA's current permitting approach to airports, 
the industrial storm water NPDES program, is not structured to yield 
either consistent use and release data, or consistent pollution 
prevention technology implementation. TRI does not have similar 
exemptions and is therefore the most complete and accessible source 
of information for the public on toxic chemical releases. EPA's 
failure to require SIC Code 45 facilities to report toxic chemical 
use negates TRI's public informational purpose.
    The EPA has stated that TRI reporting not only increases the 
public's knowledge of pollutants released to the environment, but 
also improves public understanding of the health and environmental 
risks of toxic chemicals, allows the public to make informed 
decisions on where to work and live, enhances the ability of 
corporate lenders and purchasers to more accurately gauge a 
facility's potential liability, and assists federal, state, and 
local authorities in making better decisions on acceptable levels of 
toxics in communities.⁶⁷ This is particularly important 
where there exist acceptable alternatives as in the case of ethylene 
glycol deicing. In light of this public informational purpose, EPA 
should be more inclusive, rather than less, when considering 
potential benefits of TRI reporting for particular industrial 
sectors. Including SIC Code 45 facilities would serve this public 
purpose by encouraging dissemination of information about releases 
of toxic substances such as ethylene glycol.
2. Requiring SIC Code 45 Facilities to Report Furthers the Purposes 
of EPCRA
    When it appeared that EPA would require the reporting of 
ethylene glycol, SIC Code 45 facilities significantly reduced their 
use of ethylene glycol deicing fluids. Before ethylene glycol was 
considered for placement on the TRI, it was the leading constituent 
of deicing fluid. With the TRI listing, however, some product 
substitution with less toxic alternatives occurred, although 
alternative deicing fluids cost somewhat more than ethylene glycol. 
As President Clinton recently stated, EPCRA is intended to ``provide 
a strong incentive for businesses to find their own ways of 
preventing pollution.''⁶⁸ However this promising trend 
has been reversed due to the exception of SIC code 45 
facilities.⁶⁹Using available alternatives to ethylene glycol avoids 
releases of TRI-listed toxic chemical without compromising aviation 
safety and passenger protection. In addition, because less toxic 
propylene glycol-based alternatives have a bitter taste, they are 
not attractive to birds and wildlife. (As noted above, ethylene 
glycol is sweet tasting and is attractive to birds and wildlife.) It 
is important to note that all glycols are toxic to aquatic life, as 
they place a high biochemical oxygen demand (BOD) on receiving 
waters. Using infra-red heat from aircraft deicing is one promising 
technique that offers the possibility of eliminating glycol use 
altogether.⁷⁰ Such less toxic alternatives are 
``environmentally preferable'' to ethylene glycol fluids under 
criteria set forth in the Pollution Prevention Act of 1990 (the 
PPA).⁷¹ Encouraging product substitution achieves the 
important goal of source reduction under both TRI and the 
PPA.⁷²By failing to include SIC Code 45 facilities in the 
proposed rule, EPA has sent the wrong message. The EPA has begun to 
convey the message to stakeholders that it is no longer concerned 
about ethylene glycol use at these facilities. Such a message 
weakens the incentive for SIC Code 45 facilities to voluntarily 
reduce ethylene glycol use. In order to continue decreasing the 
amount of ethylene glycol that is released from airport deicing 
operations, EPA must require airports to report ethylene glycol 
releases on an annual basis.
3. EPA Misapplied the Motor Vehicle Exemption to Exclude SIC Code 45 
Facilities From the Industry Expansion Rulemaking
    Based on its third place ranking for volume of toxic chemical 
releases, SIC Code 45 facilities were retained by EPA as a ``Primary 
Candidate'' for inclusion in the proposed rule.⁷³ Yet, 
without explanation, the Agency removed SIC Code 45 facilities from 
further consideration, asserting that operations at these facilities 
fall within the motor vehicle exemption.⁷⁴ There is no 
basis in the administrative record for EPA's application of the 
motor vehicle exemption. To the contrary, the record expressly 
indicates that the motor vehicle exemption should not apply to SIC 
Code 45 facilities because air transportation is the primary 
economic function.
    By applying the motor vehicle exemption to airport deicing 
operations, EPA has misconstrued the purpose of the exemption. In 
order to place some limitations on the definition of ``otherwise 
use'' under section 313, EPA developed a list of certain exempt uses 
of toxic chemicals including the ``use of products containing toxic 
chemicals for the purpose of maintaining motor vehicles operated by 
the facility.''⁷⁵ The motor vehicle exemption is not a 
statutory exemption under EPCRA.
    In the proposed facility expansion rule, EPA explained that 
``the use of materials containing listed section 313 chemicals for 
the purpose of maintaining motor vehicles is believed by EPA to be 
an incidental chemical use relative to the overall function of 
facilities currently covered under section 313.⁷⁶ The 
spraying of vast quantities of deicing fluids on aircraft at 
airports is neither a maintenance activity nor is it ``incidental'' 
to the overall function of airports.
    The Air Transportation Association of America (ATAA) in comments 
submitted to the Agency made clear that ``the use of deicing fluids 
is an integral aspect of ensuring aviation safety and a required 
component of FAA-approved airline deicing programs prescribed by FAA 
regulations.''⁷⁷ While ATAA argued that the motor 
exemption should apply to the use of solvents in aircraft 
maintenance operations, ATAA did not describe deicing operations as 
part of those maintenance activities.⁷⁸ We, however, urge 
that all activities as SIC Code 45 facilities be listed. Consistent 
with ATAA's position, EPA's own economic analysis assumed correctly 
that the motor vehicle exemption would not apply to facilities at 
which air transportation is the ``primary economic 
function.''⁷⁹ Nevertheless, the Agency eliminated SIC 
Code 45 facilities from the proposed rule based on the motor vehicle 
exemption, without any supporting reasoning, either in the rule or 
in the documents supporting the rule.
IV. Conclusion
    The undersigned organizations seek to make EPA aware of the 
health and ecological risks associated with ethylene glycol use at 
SIC Code 45 facilities and the need to require these facilities to 
report their releases under the TRI. By this petition, we request 
that EPA immediately initiate and promptly conclude rulemaking to 
require SIC Code 45 facilities report their toxic chemical use under 
the TRI. We also request that EPA immediately publish this petition 
in the Federal Register.
    Respectfully submitted,
    /s/
    Peter Lehner
    Senior Attorney
    Natural Resources Defense Council

    /s/
    Jennifer Stenzel
    Research Associate
    Natural Resources Defense Council

    /s/
    James K. Wyerman
    Vice President for Program
    Defenders of Wildlife

    /s/
    John D. Echeverria
    General Council
    National Audubon Society

    /s/
    Patricia Forkan
    Executive Vice President
    Humane Society of the United States

    /s/
    Leslie Sinclair, DVM
    Director of Companion Animal Care
    Humane Society of the United States

Footnotes

[[Page 6696]]

    ¹Environmental Protection Agency, Development of SIC 
Code Candidates: Screening Document (June 1996).
    ² Science Applications International Corporation, SIC 
Code Profile 45 Transportation By Air (1994).
    ³ EPA, Report to President Clinton, Expansion of 
Community Right-to-Know Reporting to Include Chemical Use Data: 
Phase III of the Toxics Release Inventory at 2.
    ⁴ 61 Fed. Reg. 33588, 33593 (June 27, 1996).
    ⁵ Id. at 33594.
    ⁶ Science Applications International Corporation, SIC 
Code Profile 45: Transportation by Air (1994). See also, EPA, 
Economic Analysis of the Proposed Rule to Add Certain Industries to 
EPCRA Section 313 (June 1996) at H-2 (facilities under SIC Code 45 
are expected to report dicholormethane, ethylene glycol, methyl 
ethyl ketone, sulfuric acid, toluene, 1,1,1-trichloroethene, and 
trichloroethylene).
    ⁷ Agency for Toxic Substances and Disease Registry, 
Ethylene/Propylene Glycol: Case Studies in Environmental Medicine, 
US Department of Health and Human Services, prepared by DeLima 
Associates, San Rafael, California (Aug. 1992).
    ⁸ The estimate was derived from the lowest dose of 
ethylene glycol reported to cause death in humans, which was 100 ml 
of ethylene glycol. Laug, E.P., H.O. Calvery, H.J. Morris, and G. 
Woodard (1939), The toxicology of some glycols and derivatives, 21 
J. Ind. Hyd. Toxicol. 173. On a body weight basis, ethylene glycol 
is more toxic in humans than animal species. Andrews, L.S. and R. 
Snyder (1991), Toxic effects of solvents and vapors, in M.O. Amdur, 
J. Doull and C.D. Klaasen, eds. Cassarett and Doull's Toxicology: 
The Basic Science of Poisons 4th ed. Pergamon Press, New York.
    ⁹ Litovitz, T.L., L. Felberg, et al., 1994 Annual 
Report of the American Association of Poison Control Centers for 
Toxic Exposure Surveillance System, reprinted in 13 Am. J. Emerg. 
Med. 551 (1995).
    ¹⁰ In 1991, 19 deaths were reported; in 1992, eight 
deaths were reported, and in 1993, 13 deaths were reported. 
Litovitz, T.L., L.R. Clark, and R. A. Soloway, 1993 Annual Report of 
The American Association of Poison Control Centers Toxic Exposure 
Surveillance System,,[sic] reprinted in 12 Am. J. Emerg. Med. 546 
(1994); Litovitz, T.L., K.C. Holm, et al., 1992 Annual Report of the 
American Association of Poison Control Centers Toxic Exposure 
Surveillance System, reprinted in 11 Am. J. Emerg. Med. 494 (1993); 
Litovitz, T.L., K.C. Holm, et. al., 1991 Annual Report of the 
American Association of Poison Control Centers Toxic Exposure 
Surveillance System, reprinted in 10 Am. J. Emerg. Med. 452 (1992).
    ¹¹ Ethylene Glycol was found to cause birth defects 
at doses of 1640 mg/kg/day. Lamb, J.C., R.R. Maronpot, D.K. Gulati, 
V.S. Russell, L. Hommel-Barnes, P.S. Sabharwal, Reproductive and 
developmental toxicity of ethylene glycol in the mouse, 81 Toxicol. 
Appl. Pharmcol. 110-112 (1985).
    ¹² An RfD is an estimate of the maximum lifetime 
daily dose of a substance that will not cause noncarcinogenic 
effects over a lifetime of ingestion.
    ¹³ The RfD is based on an oral feeding study in rats. 
See Depass, L.R., R. H. Garman, M.D., Woodside, W.E., Giddons, R.R. 
Maronpot, and C.S. Weil, Chronic toxicity and oncogenicity of 
ethylene glycol in rats and mice, 7 Fund. Appl. Toxicol. 547 (1986).
    ¹⁴ Ethylene Glycol Health Advisory, US Environmental 
Protection Agency, Office of Drinking Water (Mar. 31, 1987).
    ¹⁵ FDA correspondence with industry, TC-389, Aug. 6, 
194, reprinted in Kleinfeld, V.A. and C.W. Dunn, Federal Food Drug 
and Cosmetic Act Judicial Administrative Record, 1938-1949, Food and 
Drug Law Institute, Commerce Clearing House, Chicago (1978) (FDA 
Trade Correspondence were pre-1946, informal opinions of the FDA 
based on replies to day-to-day inquiries; since 1946, the FDA has 
published Statements of General Policy or Interpretation in the 
Federal Register).
    ¹⁶ FDA Correspondence with industry, TC-402, May 14, 
1943, reprinted in Kleinfeld, V.A. and C.W. Dunn, Federal food [sic] 
Drug and Cosmetic Act Judicial Administrative Record, 1936-1949, 
Food and Drug Law Institute, Commerce Clearing House Chicago (1978). 
Ethylene Glycol has limited approval as an indirect food additive. 
It may only be used as a component of food packaging adhesives. 
[sic] 21 C.F.R. Sec. 175.105 (1995) and in the manufacture of 
various coatings and components of food contact surfaces. 21 C.F.R. 
Sec.  175.390, 175.300, 175.320, 175.1200, 177.1630, 177.1680, 
177.2420, 176.2105 and 176.300 (1995).
    ¹⁷ Wills, J.H., E.S. Coulston, E.S. Harris, E.W. 
McChesney, J.C. Russell, and D.M. Serronne, Inhalation of 
aerosolized ethylene glycol in man, 7 Clin. Toxicol. 463 (1974).
    ¹⁸ Id.
    ¹⁹ Tyl, R.W., B. Ballantyne, et al., Evaluation of 
the developmental toxicity of ethylene glycol aerosol in CD-1 mice 
by nose-only exposure. 27 Fund. Appl. Toxicol. 49 (1995).
    ²⁰ American Society for the Prevention of Cruelty to 
Animals and Safe Brands (1996). LD50 values for ethylene 
glycol range from 4.0 to 15.4 g/kg for rats, mice, and guinea pigs. 
Bornmann, G., Grundwirkungen der Glykile und ihre Bedeutung fur die 
Toxizata, 4 Arzenimittelforschung 643 (1954) (mice); Clark, C.R., et 
al. Toxicolgical assessment of heath transfer fluids proposed for 
use in solar energy applications, 51 Toxicol. Appl. Pharmacol. 529 
(1979) (rats); Smyth; H.F., Jr,. Et al., The single dose toxicity of 
some glycols and derivatives, 23 J. Ind. Hyg. Toxicol. 259 (1941) 
(guinea pigs).
    ²¹ Rowland, J., Incidence of ethylene glycol 
intoxication in dogs and cats seen at Colorado State University 
Veterinary Teaching Hospital, 29 Vet. Hum Toxicol. 41 (1987). The 
minimum lethal dose reported for ethylene glycol in rats is 3.8 g/kg 
and 7.3 g/kg in dogs. Clark, Marshal et al., supra note 35 (rats); 
Sanyer, J.L. et al. Systematic treatment of ethylene glycol 
toxicosis in dogs, 34 J. Amer. Vet. Med. Assoc., 527 (1973), as 
cited in National Toxicology Program, NTP Technical Report on the 
Toxicology and Carcinogenesis Studies of Ethylene Glycol (CAS No. 
107-21) in B6C3F1 Mice (Feed Studies) NIH Publication No. 93-3144, 
US Department of Health and Human Services (Feb. 1993).
    ²² U.S. Fish and Wildlife Service, 17 Endangered 
Species Technical Bulletin 2 (1992). See also, U.S. Fish and 
Wildlife Services, Fact Sheet: California Condor, (Gymnogyps 
Californianus) (undated).
    ²³ S. Anstrup, C. Gardner, K. Myers, F. Oehme, 
Ethylene Glycol (Antifreeze) Poisoning in a Free-Ranging Polar Bear, 
31 Vet. Hum. Toxicol. 317 (1989).
    ²⁴ U.S. Environmental Protection Agency, Office of 
Pollution Prevention and Toxics, Chemicals in the Environment: 
Methylene Chloride (Dichloromethane) (CAS No. 75-09-2) (1994).
    ²⁵ U. S. Department of Health and Human Services, 
Agency for Toxic Substances and Disease Registry, Fact Sheet on 
Chloroform (1993).
    ²⁶ U.S. Department of Health and Human Services, 
Agency for Toxic Substances and Disease Registry, Fact Sheet on 
Toluene (1995).
    ²⁷ In 1995, a pilot of a commuter flight was doused 
with deicer fluid while boarding the aircraft at Philadelphia 
International Airport. The Philadelphia Inquirer (December 21, 
1995).
    ²⁸ Council of Environmentally Sound Deicing, Ethylene 
Glycol: The Scientific Basis for Its Retention on EPA's Toxics 
Release Inventory (Feb. 1996).
    ²⁹ Montgomery, J.F., A Discussion of the 
Toxicological and Biological Effects of Deicing Fluids, American 
Airlines Environmental Department, at 15 (Sept. 28, 1994).
    ³⁰ American Conference of Governmental Industrial 
Hygienists, 1995-1996 Threshold Limit Values for Chemical Substances 
and Physical Agents and Biological Exposure Indices (BEIs), 
Cincinnati, Ohio at 21 (1995).
    ³¹ Council for Environmentally Sound Deicing, 
Ethylene Glycol: The Scientific Basis for its Retention on EPA's 
Toxics Release Inventory (Feb. 1996).
    ³² Natural Resources Defense Council, Flying Off 
Course (1996) at 56.
    ³³ Id. at 69.
    ³⁴ MacDonald, D.D., I.D. Cuthbert, and P.M. Outridge, 
Canadian Environmental Quality guidelines for Three Glycols Used in 
Aircraft Deicing/Anti-icing Fluids: Ethylene Glycol; Diethylene 
Glycol; and Propylene Glycol, EcoHealth Branch, Environment Canada, 
Ottawa, Ontario, Canada, at 15, 76 (Table 10) (Sept. 1992).
    ³⁵ Ethylene Glycol levels, based on indirect 
measurements, reached peak concentrations as high as 59,360 mg/L. 
Id. At 15, 78 (Table 12).
    ³⁶ Sills, R.D., and P.A. Blakeslee, Environmental 
Impact of Deicers in Airport Stormwater Runoff at 324 in F.M. 
D'Irti, ed., Chemical Deicers in the Environment, Lewis Publishers, 
Boca Raton, Fla. (1992).
    ³⁷ U.S. EPA, Office of Water, Permits Division, 
Contractor Report -- Guidance for Issuing NPDES Storm Water Permits 
for Airports, at 2-8 (Sept. 28, 1990).
    ³⁸ Klecka, G.M., C.L. Carpenter, B.D. Landenberger, 
Biodegradation of aircraft deicing fluids in soil at low 
temperatures, 25 Ecotoxicol. Environ. Safety 280-285 (1993).
    ³⁹ NRDC, Flying Off Course (1996) at 57.
    ⁴⁰ Id.
    ⁴¹ 61 Fed. Reg. at 33594

[[Page 6697]]

    ⁴² EPA, Economic Analysis of the Proposed Rule to Add 
Certain Industries to EPCRA Section 313 (June 1996) at H-1.
    ⁴³ ERC Environmental and Energy Services Co., EPA 
Contractor Report Guidance for Issuing NPDES Storm Water Permits for 
Airports (1990) at 2-4.
    ⁴⁴ Id. At 2-5.
    ⁴⁵ Id.
    ⁴⁶ Id.
    ⁴⁷ Id.
    ⁴⁸ Science Applications International Corporation, 
SIC Code Profile 45: Transportation by Air (1994) at 7.
    ⁴⁹ EPA, Office of Prevention, Pesticides and Toxic 
Substances, Expanded Exposure Assessment for Ethylene Glycol In 
Response to Delisting Petition (June 16, 1995).
    ⁵⁰ EPA, Economic Analysis of the Proposed Rule to Add 
Certain Industries to EPCRA Section 313 (June 1996) at H-4.
    ⁵¹ EPA, 1993 Toxics Release Inventory: Public Data 
Release (1995) Document No. 745-R-95-010.
    ⁵² Id.
    ⁵³ Twenty-seven airports reported ethylene glycol 
releases in 1993 with ethylene glycol releases totaling 2166.7 tons 
(4,333,400 pounds). This constituted 57 percent of all reported 
ethylene glycol release. Environment Canada Summary Report of the 
1993 National Pollutant Release Inventory at 28-29 (undated).
    ⁵⁴ Id. At 11.
    ⁵⁵ Id.
    ⁵⁶ EPA, Economic Analysis of the Proposed Rule to Add 
Certain Industries to EPCRA Section 313 (June 1996) at H-13.
    ⁵⁷ Id. If the unit reported was gallons, ethylene 
glycol releases exceeded 2.3 million pounds.
    ⁵⁸ EPA, Economic Analysis of the Proposed Rule to Add 
Certain Industries to EPCRA Section 313 (June 1996) at H-5.
    ⁵⁹ ERC Environmental and Energy Services Co., EPA 
Contractor Report Guidance for Issuing NPDES Storm Water Permits for 
Airports (1990) at 2-6.
    ⁶⁰ Science Applications International Corporation, 
SIC Code Profile 45: Transportation By Air (1994) at 14.
    ⁶¹ 61 Fed. Reg. at 33594.
    ⁶² EPA, Economic Analysis of the Proposed Rule to Add 
Certain Industries to EPCRA Section 313 (June 1996) at H-18.
    ⁶³ Id.
    ⁶⁴ ATA, Summary Report to the Federal Aviation 
Administration Regarding Environmental Issues Associated with 
Aircraft Deicing and the Use of Glycol-Based Fluids (undated).
    ⁶⁵ R. Van Voorhees and Green, C. EPA Clarifies 
Reporting Requirements for Ethylene Glycol Releases from Airport De-
Icing Operations, BNA, Analysis Perspective (August 30, 1996).
    ⁶⁶ See Buchholz v. Dayton International Airport et 
al., (Magistrates Report and Recommendation), Case No. C-3-94-435 
(S.D. Ohio, June 26, 1995) (citizen suit filed under the CWA and 
RCRA against the airport by residents who use a creek receiving 
airport deicing flows for drinking, bathing, washing clothes, and 
dishes).
    ⁶⁷ 60 Fed. Reg. 59664 (Nov. 28 1995).
    ⁶⁸ Report to President Clinton, Expansion of 
Community Right-to-Know Reporting to Include Chemical Use Data: 
Phase III of the Toxics Release Inventory (EPA Report to the 
President) at 2 (undated).
    ⁶⁹ The trend away from ethylene glycol use, however, 
was superseded by an FAA safety rule in the early 1990's that 
effectively mandated a doubling in the volume of de-icing products 
applied at airports; thus we are still seeing the massive quantities 
of ethylene glycol in use that was documented earlier in this 
petition.
    ⁷⁰ NRDC, Flying Off Course (1996) at 63.
    ⁷¹ 42 U.S.C. Secs. 13101-09 (West 1995).
    ⁷² Section 6603(5)(A) defines ``source reduction'' as 
any practice that reduces the amount of any hazard from any 
hazardous substance, pollutant, or contaminant entering any waste 
stream or otherwise released into the environment, including 
substitution of raw materials. 42 U.S.C. Sec.  113102(5)(A).
    ⁷³ EPA Development of SIC Code Candidates: Screening 
Document (June 1996) at 13.
    ⁷⁴ Id. at 17.
    ⁷⁵ 53 Fed. Reg. 4506 (Feb. 16, 1988).
    ⁷⁶ 61 Fed. Reg. 33596 (emphasis added).
    ⁷⁷ ATAA Comments on EPA's Consideration of Airports 
for Inclusion in the TRI Program, May 25, 1995 (Docket #400104, D3-
0010) at 4.
    ⁷⁸ See Id. at 11-12. 79 EPA, Economic Analysis of the 
Proposed Rule to Add Certain Industries to EPCRA Section 313 (June 
1996) at H-1.

III. Issues

    There are two issues that could potentially affect reporting by 
airports: (1) Whether airports would be exempt from reporting the 
majority of their toxic chemical releases because of the motor vehicle 
exemption, and (2) whether airports fit within the definition of 
facility under 40 CFR 372.1. In addition, there are issues relating to 
the application of the motor vehicle exemption as it pertains to motor 
vehicles used in industries recently added to the list of facilities 
subject to EPCRA section 313 reporting requirements. In light of these 
concerns, EPA is considering a modification in the motor vehicle 
exemption. The Agency is interested in receiving comments regarding 
these issues and other matters relevant to the petition and its 
response from potentially affected or interested parties. The comments 
will help EPA better understand relevant issues surrounding the 
addition of airports to the list of facilities required to report 
pursuant to section 313 of EPCRA, and the motor vehicle exemption in 
general.

A. Motor Vehicle Exemption

    EPA is seeking comments from potentially affected and interested 
parties concerning whether the use of ethylene glycol and other EPCRA 
section 313 chemicals at airports would or should be exempt under the 
Motor Vehicle Maintenance Exemption, 40 CFR 372.38(c).
    In the February 16, 1988 Final Rule implementing the reporting 
requirements of EPCRA section 313 (53 FR 4500), EPA limited the 
definition of ``otherwise use'' by exempting certain uses of toxic 
chemicals. Section 372.38(c) states that if a toxic chemical is used at 
a covered facility for a purpose described in paragraph (c), a person 
is not required to consider the quantity of the toxic chemical used for 
such purpose when determining whether an applicable threshold has been 
met under Sec. 372.25 or when determining the amount of releases to be 
reported under Sec. 372.30. 40 CFR 372.38(c)(4) further states that 
``use of products containing toxic chemicals for the purpose of 
maintaining motor vehicles operated by the facility'' are exempted from 
reporting under 40 CFR 372.30.
    In previous guidance, EPA has stated that airplanes are motor 
vehicles and that this exemption applies to fuels and other products 
containing toxic chemicals for the purpose of maintaining motor 
vehicles (see Toxic Chemical Release Inventory Reporting Package for 
1990, January 1991, EPA 560/4-91-001, p. A-5). In keeping with this 
guidance, toxic chemicals found in gasoline, diesel fuel, brake and 
transmission fluids, oils and lubricants, antifreeze, batteries, 
cleaning solutions, and solvents in paints may be excluded from 
reporting under Sec. 372.30 as long as a facility uses these products 
to maintain its motor vehicles. While motor vehicle maintenance may be 
an incidental activity at the facilities originally subject to EPCRA 
section 313 reporting requirements (i.e., the manufacturing sector), 
EPA believes that this is not the case at airports, where the 
maintenance of vehicles is integral to the activities at the airport. 
For example, use of ethylene glycol to de-ice planes and runways is 
essential for the operation of airplanes when icy conditions and 
inclement weather may hinder their safe operation. In such cases, the 
use of ethylene glycol is in no way ``incidental'' to the operation of 
airports. In addition, EPA believes that maintaining motor vehicles is 
integral to activities that occur at some of the industry groups 
recently added to the list of facilities subject to reporting under 
EPCRA section 313 and PPA section 6607 (see 62 FR 23834, May 1, 1997). 
For example, use of earth moving equipment is an integral part of the 
mining industry and use of tanker trucks is an integral part of the 
operation of bulk petroleum stations.

[[Page 6698]]

    EPA, therefore, requests comments on a number of options to modify 
or eliminate the motor vehicle exemption at 40 CFR 372.38(c)(4). These 
options include:
    1. Making no change to the motor vehicle exemption.
    2. Not allowing certain industries, such as the transportation 
industry, in which motor vehicle use is the industry's main activity, 
to take the motor vehicle exemption. The motor vehicle exemption would 
continue to apply to other covered industries.
    3. For covered industries, narrowing the motor vehicle exemption so 
that it would only apply to incidental motor vehicle use. It would not 
apply to any activity that is process-related. For example: the motor 
vehicle exemption would not apply to toxic chemicals used in jet fuel 
while a jet is at an airport, deicing, and other vehicle maintenance 
activities. As a second example, for covered industries such as metal 
mining and bulk petroleum stations, the motor vehicle exemption would 
no longer apply to vehicles used in processing activities (e.g., earth-
moving equipment or trucks and transport vehicles at petroleum 
facilities which are maintained on-site), or
    4. Eliminating the motor vehicle exemption entirely.

B. Definition of Facility under EPCRA

    1. Definition of facility. Under EPCRA section 329(4) and 40 CFR 
372.1, a ``facility'' means all buildings, equipment, structures and 
other stationery items which are located on a single site or on 
contiguous or adjacent sites and which are owned or operated by the 
same person (or by any person which controls, is controlled by, or 
under common control with such person). A facility may contain more 
than one establishment.
    2. Application of definition of facility to airports. Airports 
typically operate under a single management organization known as the 
airport ``authority'' which, in most cases is a public agency. Airline 
carriers that have contracts with the airport authority to conduct 
business on airport property are commonly known as ``tenants'' of the 
airport. In order to comply with various state and Federal 
environmental regulations, an airline may require (as part of a lease 
agreement) a tenant to report its aggregate releases of toxic or 
hazardous chemicals directly to the owners or operators of the airport 
authority.
    On the other hand, the Agency recognizes that if airports were 
required to report under section 313 of EPCRA and section 6607 of the 
PPA, there could be unique reporting issues associated with their 
ownership, operation, and control. Therefore, the Agency is interested 
in receiving comments or information concerning how airports operate 
and the practical impacts of requiring airports to report under section 
313 of EPCRA and section 6607 of the PPA. Information gathered from 
commenters will be used by the agency to determine whether airports 
fall within the definition of facility.

IV. Public Record and Electronic Submissions

    The official record for this document, as well as the public 
version, has been established for this rulemaking under docket control 
number ``OPPTS-400122'' (including comments and data submitted 
electronically as described below). A public version of this record, 
including printed, paper versions of electronic comments, which does 
not include any information claimed as CBI, is available for inspection 
from 12 noon to 4 p.m., Monday through Friday, excluding legal 
holidays. The official record is located in the TSCA Nonconfidential 
Information Center, Rm. NE-B607, 401 M St., SW., Washington, DC.
    Electronic comments can be sent directly to EPA at:
    [email protected]


    Electronic comments must be submitted as an ASCII file avoiding the 
use of special characters and any form of encryption. Comments and data 
will also be accepted on disks in WordPerfect 5.1/6.1 or ASCII file 
format. All comments and data in electronic form must be identified by 
the docket control number ``OPPTS-400122.'' Electronic comments on this 
document may be filed online at many Federal Depository Libraries.

List of Subjects in 40 CFR Part 372

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

    Dated: January 29, 1998.
Lynn R. Goldman,
Assistant Administrator for Prevention, Pesticides and Toxic 
Substances.

[FR Doc. 98-3316 Filed 2-9-98; 8:45 am]
BILLING CODE 6560-50-F