[Federal Register Volume 64, Number 28 (Thursday, February 11, 1999)]
[Rules and Regulations]
[Pages 7032-7047]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-3255]


      

[[Page 7031]]

_______________________________________________________________________

Part IV





Environmental Protection Agency





_______________________________________________________________________



40 CFR Parts 9 and 370



Emergency Planning and Community Right-to-Know Programs; Amendments to 
Hazardous Chemical Reporting Thresholds for Gasoline and Diesel Fuel at 
Retail Gas Stations; Final Rule

  Federal Register / Vol. 64, No. 28 / Thursday, February 11, 1999 / 
Rules and Regulations  

[[Page 7032]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 9 and 370

[FRL-6300-5]
RIN 2050-AE58


Emergency Planning and Community Right-to-Know Programs; 
Amendments to Hazardous Chemical Reporting Thresholds for Gasoline and 
Diesel Fuel at Retail Gas Stations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: In today's final rule, EPA is raising the thresholds that 
trigger Material Safety Data Sheet (MSDS) reporting and annual chemical 
inventory reporting under sections 311 and 312 of the Emergency 
Planning and Community Right-To-Know Act of 1986 (EPCRA), for gasoline 
and diesel fuel stored entirely underground at retail gas stations that 
comply with requirements for underground storage tanks (USTs). Today's 
final rule promulgates new threshold levels of 75,000 gallons for 
gasoline and 100,000 gallons for diesel fuel. These new thresholds will 
relieve most retail gas stations from reporting gasoline and diesel 
fuel under EPCRA. The change is intended to reduce reporting burdens 
while preserving the important public health and safety benefits of the 
hazardous chemical reporting requirements.

EFFECTIVE DATE: February 11, 1999.

ADDRESSES: Copies of materials relevant to this rulemaking are 
contained in the CERCLA Docket Office--Docket Number 300RR-IF1, 1235 
Jefferson Davis Highway, Crystal Gateway #1, First Floor, Arlington, VA 
22202. The docket, which contains the administrative record for 40 CFR 
part 370, is available for inspection between the hours of 9 a.m. and 4 
p.m., Monday through Friday, excluding Federal holidays. You can make 
an appointment to review the docket by calling 703/603-9232. You may 
copy a maximum of 266 pages from any regulatory docket at no cost. If 
the number of pages copied exceeds 266, however, you will be charged an 
administrative fee of $25 and a charge of $0.15 per page for each page 
after 266. The docket will mail copies of materials to you if you are 
outside of the Washington, DC metropolitan area.

FOR FURTHER INFORMATION CONTACT: The RCRA/UST, Superfund, and EPCRA 
Hotline (the Hotline) at 800/424-9346 (in the Washington, DC 
metropolitan area, contact 703/412-9810). The Telecommunications Device 
for the Deaf (TDD) Hotline number is 800/535-7672 (in the Washington, 
DC metropolitan area, 703/412-3323). Also contact John Ferris or Meg 
Victor, Chemical Emergency Preparedness and Prevention Office (CEPPO), 
MC 5104, U.S. EPA, 401 M Street SW, Washington, DC 20460, 202/260-4043 
or 202/260-1379, respectively. You may wish to visit the CEPPO Internet 
site at www.epa.gov/ceppo.

SUPPLEMENTARY INFORMATION: The contents of the SUPPLEMENTARY 
INFORMATION section of today's preamble are:

I. Entities Affected by This Rule
II. Introduction
    A. Statutory Authority for This Rulemaking
    B. Background of this Rulemaking
III. Discussion of the Final Rule
    A. General Discussion
    B. Changes to the Proposal
IV. Discussion of Public Comments Received on the Proposal
    A. Access to Right-to-Know Information on Retail Gas Stations
    B. Knowledge of Locations and Hazards at Retail Gas Stations
    C. Need for Information on Gas Stations for Emergency Planning 
and Response
    D. Relationship of This Rule to the Underground Storage Tank 
Program
    E. Effect of This Rule on the Funding of State and Local 
Programs
    F. State or Local Thresholds for Gasoline and Diesel Fuel
    G. Alternative Thresholds for Gasoline and Diesel Fuel
    H. Zero Threshold for Reporting in Response to Requests for 
Information
    I. Effect of the Timing of This Rule on State and Local Programs
    J. Effect of This Rule on the Regulatory Burden to Emergency 
Planners and Industry
    K. Thresholds for Other Facilities/Chemicals
    L. Gasoline and Diesel Fuel Thresholds in Gallons Rather Than 
Pounds
    M. Defining Gasoline and Diesel Fuel
    N. ``Retail Gas Station'' Definition
V. Regulatory Analysis
    A. Executive Order 12866
    B. Executive Order 12875
    C. Executive Order 12898
    D. Executive Order 13045
    E. Executive Order 13084
    F. Regulatory Flexibility Act
    G. Paperwork Reduction Act
    H. Unfunded Mandates Reform Act
    I. National Technology Transfer and Advancement Act
    J. Congressional Review Act

I. Entities Affected by This Rule

    Two general categories of entities are affected by this rule. These 
categories are industry and state, local, and tribal governments. 
Within these general categories the rule affects numerous entities, 
including:

------------------------------------------------------------------------
                                   Examples of potentially regulated
           Category                             entities
------------------------------------------------------------------------
Industry.....................  Retail gas stations.
State, Local, and Tribal       State Emergency Response Commissions
 Governments.                   (SERCs), Tribal Emergency Response
                                Commissions (TERCs), Local Emergency
                                Planning Committees (LEPCs), and fire
                                departments receive the information
                                provided under EPCRA sections 311 and
                                312.
------------------------------------------------------------------------

    This table is not exhaustive, but rather it provides a guide for 
readers affected by this action. To determine whether this action 
affects your facility, you should carefully examine section 370.20 in 
today's rule, which explains the applicability of this rule. If you 
have questions regarding the applicability of this action to a 
particular entity, consult the Hotline or the people listed in the 
preceding FOR FURTHER INFORMATION CONTACT section.

II. Introduction

A. Statutory Authority for This Rulemaking

    This final rule is issued under the Emergency Planning and 
Community Right-To-Know Act of 1986 (EPCRA), which was enacted as Title 
III of the Superfund Amendments and Reauthorization Act of 1986 (Pub. 
L. 99-499), (SARA).

B. Background of This Rulemaking

    EPCRA establishes a program to (1) encourage state and local 
planning for responding to releases of hazardous chemicals and to (2) 
provide the public, local governments, fire departments, and other 
emergency officials with information concerning chemical releases and 
the potential chemical risks in their communities. EPCRA section 311 
requires facilities that have hazardous chemicals above specified 
thresholds to provide either MSDSs for

[[Page 7033]]

those chemicals or a list of those chemicals to their State Emergency 
Response Commission (SERC), Local Emergency Planning Committee (LEPC), 
and local fire department. (For purposes of brevity in this document, 
the term ``SERC'' is meant to include Tribal Emergency Response 
Commissions (TERCs)). Under EPCRA section 312, these facilities must 
also report annually to the SERC, LEPC, and local fire department on 
the quantities and locations of hazardous chemicals they have on site 
above specified thresholds. Hazardous chemicals are those that meet the 
criteria developed by the U.S. Occupational Safety and Health 
Administration (OSHA) (except as provided in EPCRA 311(e)). EPA 
estimates that approximately 850,000 facilities are subject to 
reporting under EPCRA sections 311 and 312.
    Facilities must report under section 312 either Tier I or Tier II 
inventory information. Tier I inventory information is the minimum 
information that facilities must report to comply with section 312, and 
includes information on the general types and locations of hazardous 
chemicals at the facility. Tier II inventory information is more 
specific information on amounts and locations of hazardous chemicals at 
the facility. A facility can choose to report Tier II inventory 
information, and must report it if requested by the SERC, LEPC or fire 
department, or if a state or local law requires it.
    On October 15, 1987 (52 FR 38344) and July 26, 1990 (55 FR 30632), 
EPA published final rules setting reporting requirements and threshold 
quantities for reporting under EPCRA sections 311 and 312. A facility 
must report on a hazardous chemical only if at any time during the 
prior year it had a quantity of the chemical equal to or greater than 
the threshold. For extremely hazardous substances (EHSs) (listed in 40 
CFR part 355), the threshold is the lesser of 500 pounds or the 
threshold planning quantity listed in 40 CFR part 355. For all non-EHS 
hazardous chemicals, the threshold quantity has been 10,000 pounds 
(today's rule changes the 10,000 pound threshold in certain situations 
for gasoline and diesel fuel, which are non-EHS hazardous chemicals). 
However, if the LEPC requests MSDSs or the SERC, LEPC or fire 
department requests inventory information from a facility, the 
threshold for reporting in response to requests is zero (as established 
in the October 15, 1987 rule, 52 FR 38365). In other words, a facility 
with any quantity of a hazardous chemical is required to provide this 
information upon request by a SERC, LEPC or fire department.
    On June 8, 1998 (63 FR 31267), EPA proposed raising the thresholds 
for gasoline and diesel fuel stored entirely underground at retail gas 
stations in compliance with the underground storage tank (UST) 
regulations. EPA proposed the higher thresholds because input from 
stakeholders and the experience gained through the first 10 years of 
EPCRA implementation indicated that emergency responders and the public 
are generally aware of the hazards of gasoline and diesel fuel and know 
the locations of retail gas stations. Therefore, nationwide annual 
reporting for these operations would not be necessary to meet the 
objectives of EPCRA sections 311 and 312. The proposed thresholds would 
provide relief from annual reporting for approximately 193,000 retail 
gas stations. The proposal gave the public 90 days to comment.
    Today, EPA is adopting the proposed thresholds of 75,000 gallons 
for gasoline (all grades combined) and 100,000 gallons for diesel fuel 
(all grades combined) when these fuels are stored entirely underground 
at retail gas stations that are in compliance with the UST 
requirements.
    EPA proposed other changes in the June 8, 1998, notice in addition 
to raising the gasoline and diesel fuel reporting thresholds. At this 
time the Agency has not reached a final decision on these other 
proposed changes, and they are not addressed in this rule.

III. Discussion of the Final Rule

    This section of the notice provides a brief summary of the final 
rule, including the Agency's rationale for promulgating the rule and 
some issues involved in this rulemaking. The following section in this 
notice, which is called ``Discussion of Public Comments Received on the 
Proposal,'' provides a summary of the public comments received on the 
proposal, and of the Agency's responses to the comments. If you are 
interested in a more detailed discussion of the rule, the Agency's 
rationale, and the issues involved in the rulemaking, you should read 
the ``Discussion of Public Comments Received on the Proposal'' section 
in this notice. You can review an even more detailed summary of the 
public comments and the Agency's responses, entitled ``Comment Response 
Summary: EPCRA Sections 311-312 Proposal to Raise Reporting Thresholds 
for Gasoline and Diesel Fuel,'' which is available from the CERCLA 
Docket Office in docket number 300RR-IF1 (for the address of the docket 
office, see the ADDRESSES section in this notice).

A. General Discussion

    EPCRA sections 311(b) and 312(b) give EPA authority to establish 
threshold quantities for the reporting of hazardous chemicals. These 
statutory provisions give EPA discretion to base the thresholds on 
classes of chemicals or categories of facilities.
    Today's final rule amends 40 CFR 370.20, which contains the 
applicability provisions for the hazardous chemical reporting 
requirements under EPCRA sections 311 and 312. Section 370.20 is 
amended to provide new threshold levels for gasoline and diesel fuel at 
retail gas stations (subject to certain criteria as discussed below), 
and to provide a definition for ``retail gas station.'' Section 370.20 
is also reformatted to make it easier to understand the requirements.
    For gasoline and diesel fuel, when stored entirely underground at a 
retail gas station that is in compliance with all applicable UST 
requirements (40 CFR part 280 or requirements of the state UST program 
approved by the Agency under 40 CFR part 281), the new minimum 
thresholds for reporting under EPCRA sections 311 and 312 are 75,000 
gallons for gasoline and 100,000 gallons for diesel fuel. In order for 
a retail gas station to be eligible to apply the new thresholds for 
reporting for a given calendar year, the facility must have been in 
compliance with UST requirements at all times during that year. For 
purposes of this rule, EPA defines ``retail gas station'' as ``a retail 
facility engaged in selling gasoline and/or diesel fuel principally to 
the public, for motor vehicle use on land.'' This rule is effective 
beginning with the 1998 calendar year reporting, which is due on or 
before March 1, 1999.
    Over the years since EPCRA was enacted, EPA has heard from many 
stakeholders that the section 311 and 312 reports for gasoline and 
diesel fuel from retail gas stations are unnecessary for emergency 
planning and community right-to-know purposes. Stakeholders have 
pointed out that the public and emergency planners and responders are 
generally aware of the locations of gas stations and of the hazards of 
gasoline and diesel fuel, without the need for EPCRA reporting. 
Further, they have pointed out that some of the information reported by 
retail gas stations under EPCRA sections 311 and 312 duplicates some of 
the information already reported under UST requirements. EPA has 
evaluated this issue, and believes that section 311 and 312 reporting 
is not warranted nationwide, for gasoline and diesel fuel stored 
entirely underground

[[Page 7034]]

at retail gas stations that are in compliance with the UST 
requirements.
    As discussed in EPA's June 8, 1998, proposed rule, the Agency 
believes that gasoline and diesel fuel, when stored entirely 
underground at retail gas stations that are in compliance with UST 
requirements, present a special situation for which separate reporting 
thresholds under EPCRA sections 311 and 312 are warranted. Factors 
contributing to this special situation, and which EPA considered in 
establishing the higher reporting thresholds, include: (1) The public 
and local emergency officials are generally familiar with the location 
of retail gas stations, are aware that these facilities have gasoline 
and diesel fuel, and can typically discern the general storage location 
of the gasoline and diesel fuel at the facility; (2) the public and 
local emergency officials generally are aware of the hazards associated 
with gasoline and diesel fuel; (3) retail gas stations typically store 
gasoline and diesel fuel in tanks that are entirely underground, which 
generally mitigates the risk of catastrophic release; and (4) 
underground storage tanks are regulated under the Underground Storage 
Tank (UST) program of the Resource Conservation and Recovery Act 
(RCRA), so a comprehensive regulatory program is in place that 
establishes standards for the safe performance and operation of USTs, 
including a requirement to notify government agencies of the presence 
of such tanks. Although each of these factors alone wouldn't 
necessarily warrant separate higher thresholds, in combination these 
factors present a special situation for gasoline and diesel fuel stored 
at retail gas stations. For these reasons, EPA has raised the threshold 
levels for reporting under EPCRA sections 311 and 312, for gasoline and 
diesel fuel stored entirely underground at retail gas stations that are 
in compliance with UST requirements. The new threshold levels will 
relieve retail gas stations that have typical quantities of gasoline 
and diesel fuel from routinely reporting these fuels under EPCRA. Gas 
stations having unusually large inventories will continue to report 
their gasoline and diesel fuel.
    Although EPCRA section 311 and 312 reporting will not be required 
nationwide for gasoline and diesel fuel stored at retail gas stations 
meeting the criteria in this rule, some state or local governments may 
want such reporting. For example, some state or local agencies may find 
it convenient for emergency planning purposes to receive information on 
retail gas stations reported annually on an inventory form. State or 
local emergency officials who want to obtain this information can still 
receive it under EPCRA regulations upon request, because this rule does 
not amend the threshold for reporting in response to a request, which 
is zero. See 40 CFR 370.20 for the zero threshold provision. Those 
state or local governments that want retail gas stations to report 
routinely can also establish state or local laws with lower reporting 
thresholds than the new federal thresholds promulgated today.
    In addition to hazardous chemical reporting, state or local 
emergency officials may also be able to obtain information on retail 
gas stations from their state UST offices and other sources, such as 
telephone listings, chambers of commerce, or trade associations. EPA 
believes that communications between local emergency planners and 
facility owners or operators need not be restricted to EPCRA section 
311 and 312 reporting.
    In establishing new EPCRA sections 311 and 312 reporting thresholds 
for gasoline and diesel fuel, EPA seeks to strike a balance between the 
value of information generated for the public and emergency planners 
and responders, and the burden of generating that information. EPA 
believes that excluding the majority of retail gas stations from the 
requirement to report routinely under EPCRA sections 311 and 312 will 
promote a more manageable EPCRA program, while still protecting the 
public health and safety of individuals in the community and emergency 
response officials. Retail gas stations are a large portion of the 
regulated community under EPCRA sections 311 and 312. Relieving the 
majority of retail gas stations from routine EPCRA reporting will 
reduce the quantity of paperwork that SERCs, LEPCs and fire department 
file, allowing them to focus their resources on other facilities. Since 
information on the chemical hazards at retail gas stations is already 
generally known, and can be accessed by means other than EPCRA 
reporting, emergency planning and response activities will not be 
impaired.
    In addition to the new threshold levels for gasoline and diesel 
fuel under EPCRA sections 311 and 312, EPA's June 8, 1998, notice 
proposed other changes to the regulations at 40 CFR parts 355 and 370. 
At this time, the Agency is only finalizing the new thresholds for 
gasoline and diesel fuel at retail gas stations. The Agency has not 
reached any decision on any other of the changes proposed in the June 8 
notice. The Agency also has not reached any decision on any other 
issues that arose in the public comments on the June 8 notice, 
including new thresholds for gasoline and diesel fuel stored at 
facilities other than retail gas stations, or new thresholds for other 
types of fuels.
    Today's rule becomes effective upon publication in the Federal 
Register. The Administrative Procedure Act (APA) generally requires 
that a rule not become effective until at least 30 days after its 
publication. See 5 U.S.C. Sec. 553(d). The APA exempts from this 
requirement a rule ``that grants or recognizes an exemption or relieves 
a restriction.'' Today's rule provides relief from routine EPCRA 
reporting on gasoline and diesel fuel to all qualifying gas stations. 
Therefore the rule qualifies for the effective date exemption provided 
by the APA.

B. Changes to the Proposal

Plain Language Format
    On June 8, EPA proposed to re-write and reorganize all of the 
regulations at 40 CFR parts 355 and 370 in ``plain language'' format, 
to make the regulations easier to understand and to use. EPA is not 
finalizing the proposed ``plain language'' regulatory language at this 
time. The final rule published today, which amends 40 CFR 370.20, is 
written in a format consistent with the current language in the CFR. 
Therefore, the final regulatory language raising the gasoline and 
diesel fuel thresholds is in a format different from that of the 
proposed language. Although today's rule is not written in the ``plain 
language'' format that was proposed in the June 8 notice, EPA has 
reorganized section 370.20 to make it easier to understand. While all 
of section 370.20 has been reorganized, the only substantive regulatory 
changes that EPA has made to that section are the new gasoline and 
diesel fuel thresholds. When EPA promulgates 40 CFR parts 355 and 370 
in ``plain language'' format, today's rule will be reformatted 
accordingly.
Definition of Retail Gas Station
    For the purposes of today's rule, EPA defines ``retail gas 
station'' as ``a retail facility engaged in selling gasoline and/or 
diesel fuel principally to the public, for motor vehicle use on land.'' 
This definition is added to 40 CFR section 370.20. The final definition 
published today is different from the proposed definition in several 
ways, as discussed below.
    EPA's final definition of ``retail gas station'' does not 
explicitly include convenience stores, although the proposed definition 
included them specifically. Any convenience store that is a ``retail 
facility engaged in selling

[[Page 7035]]

gasoline and/or diesel fuel principally to the public'' is included in 
EPA's definition of ``retail gas station.'' EPA has chosen to 
promulgate a broad definition of ``retail gas station'' for the purpose 
of this rule, rather than listing specific facilities such as truck 
stops or convenience stores that retail gasoline, to avoid excluding 
other facilities by implication.
    EPA has added the phrase ``for motor vehicle use on land'' to the 
definition of ``retail gas station'' as it was published in the 
proposed rule. The Agency added this phrase to clarify that gas 
stations in marinas and airports that sell fuel for boats or airplanes 
are not intended to be included in the definition of ``retail gas 
station'' for the purposes of this rule at this time.
    EPA has added ``and/or diesel fuel'' to the definition to clarify 
that ``retail gas station'' includes those facilities that sell diesel 
fuel primarily to the public.
    EPA changed the phrase ``retail gasoline facility principally 
engaged in selling gasoline to the public,'' to ``retail facility 
engaged in selling gasoline and/or diesel fuel principally to the 
public,'' in the final definition because the proposed definition might 
have led to interpretations that were more narrow than the Agency's 
intended meaning of the term. EPA made this change to clarify that a 
facility's primary sales need not necessarily be of gasoline or diesel 
fuel in order to be considered a ``retail gas station'' for purposes of 
this rule. In other words, the facility does not have to make the 
majority of its sales in gasoline or diesel fuel. However, the majority 
of the facility's sales of gasoline and/or diesel fuel must be to the 
public, to be considered a ``retail gas station'' for purposes of this 
rule.
Compliance With UST Requirements
    In EPA's proposed rule, the new gasoline and diesel fuel thresholds 
applied only to gasoline or diesel fuel ``at a retail gas station, when 
stored in tanks entirely underground and in compliance with the UST 
regulations at 40 CFR part 280 * * *'' The final rule language, 
however, limits applicability of the new thresholds to gasoline or 
diesel fuel ``that was in tank(s) entirely underground, at a retail gas 
station that was in compliance at all times during the preceding 
calender year with all applicable Underground Storage Tank (UST) 
requirements (40 CFR part 280 or requirements of the state UST program 
approved by the Agency under 40 CFR part 281) * * *'' EPA made several 
clarifying changes to the proposed language, as discussed below.
    First, the final rule language clarifies that to be eligible for 
the new gasoline and diesel fuel thresholds, a retail gas station must 
be in compliance with either the Federal UST requirements at 40 CFR 
part 280 or, the state UST requirements of the program approved by EPA 
to operate in lieu of the Federal UST program. Second, the final rule 
clarifies that, in order for a retail gas station to be eligible to 
apply the new thresholds for reporting for a given calendar year, the 
facility must have been in compliance with UST requirements at all 
times during that year. And third, the final rule clarifies that an 
entire retail gas station must be in compliance with applicable UST 
requirements to apply the new thresholds.
    If a retail gas station was temporarily out of compliance with UST 
requirements at any time during a particular calendar year, the 
facility is ineligible to use the new gasoline and diesel fuel 
thresholds for reporting for that calendar year. Instead, it must use 
the standard 10,000 pound hazardous chemical thresholds for any 
gasoline or diesel fuel it had during that year.
    A retail gas station that was in compliance with UST requirements 
at all times during the preceding year--and is therefore eligible for 
that year to apply the new thresholds to their gasoline and diesel fuel 
that are stored entirely underground--applies gasoline and diesel fuel 
thresholds as follows:

--If the gas station had present at least 10,000 pounds of gasoline or 
diesel fuel stored in tank(s) not entirely underground, the gas station 
owner/operator must report the gasoline or diesel fuel. The owner/
operator must report on the total gasoline or diesel fuel at the 
facility, regardless of whether it is stored aboveground or 
underground.
--If the gas station had present at least 75,000 gallons of gasoline or 
100,000 gallons of diesel fuel stored in tank(s) entirely underground, 
the gas station owner/operator must report the gasoline or diesel fuel. 
The owner/operator must report on the total gasoline or diesel fuel at 
the facility, regardless of whether it is stored aboveground or 
underground.
--If the gas station had neither 10,000 pounds of gasoline or diesel 
fuel stored in tank(s) not entirely underground, nor 75,000 gallons of 
gasoline or 100,000 gallons of diesel fuel stored in tank(s) entirely 
underground, the gas station need not report any gasoline or diesel 
fuel.

    If a retail gas station temporarily ceases operations for an entire 
calendar year, then for that year the facility does not fit EPA's 
definition of a retail gas station (for the purposes of this rule, a 
facility must be ``* * * engaged in selling gasoline and/or diesel fuel 
principally to the public * * *'' to be considered a retail gas 
station). Such a facility would be subject to the standard 10,000 pound 
reporting thresholds for gasoline and diesel fuel under EPCRA sections 
311 and 312 for that calendar year, regardless of whether its gasoline 
and diesel fuel are stored entirely underground, and regardless of 
whether the facility was in compliance with UST requirements for that 
year. If a retail gas station ceases operations only for a portion of a 
calendar year the facility still may apply the new gasoline and diesel 
fuel thresholds (provided the facility meets all of the criteria in 
today's rule, including complying with UST requirements).
    If a retail gas station closes any or all of its underground tanks 
either permanently or temporarily, the tanks must be closed in 
compliance with applicable UST requirements. A facility cannot apply 
the new gasoline and diesel fuel thresholds if it has closed 
underground tanks not in compliance with UST requirements.
    A facility is not in compliance with the UST requirements (and 
therefore not eligible for the higher EPCRA thresholds of today's rule) 
when it first fails to meet the UST requirements. For example, if an 
owner or operator of a retail gas station has a tank system that was 
not in compliance with UST requirements that went into effect in 
December of 1998 (see 40 CFR 280.21(a) and 281.31), that owner or 
operator cannot apply the new thresholds in today's rule for the EPCRA 
section 312 report that is due March 1, 1999.
    For more information on compliance with UST requirements and the 
relationship between this rule and the UST program see section IV.D in 
this preamble, which discusses the public comments received on this 
issue and the Agency's responses.

IV. Discussion of Public Comments Received on the Proposal

    EPA received 164 comments related to the new thresholds for 
gasoline and diesel fuel from a variety of stakeholders, primarily 
state and local government, industry, and the public. The number of 
commenters in each group is as follows: industry, 20 commenters; SERCs 
and state government agencies, 17 commenters; LEPCs and local 
government agencies, 47 commenters; public interest groups, 2 
commenters; individuals, 73 commenters; tribal governments, 2

[[Page 7036]]

commenters; professional organizations, 1 commenter; and Federal 
agencies, 1 commenter. A complete summary of all comments and EPA's 
responses to them is presented in ``Comment Response Summary: EPCRA 
Sections 311-312 Proposal to Raise Reporting Thresholds for Gasoline 
and Diesel Fuel,'' which is available from the docket (see ADDRESSES 
above). The major issues raised by the commenters and the Agency's 
responses to them are described below.

A. Access to Right-to-Know Information on Retail Gas Stations

    Several commenters stated that the proposal decreases ready access 
to community right-to-know information concerning retail gas stations 
and their hazards. EPA believes that the public and emergency response 
officials have a general knowledge of the locations of retail gas 
stations in their communities, and a general knowledge of the hazards 
associated with gasoline and diesel fuel. Routine reporting under EPCRA 
is not necessary nationwide for the public and emergency planners and 
responders to have knowledge of gas stations. Retail gas stations 
prominently advertise the presence of gasoline and diesel fuel at their 
facilities, encourage the public to come on site, and often permit the 
public to dispense the gasoline and diesel fuel themselves.
    Further, any SERC, LEPC, fire department, or member of the public 
that wants more specific information on retail gas stations may obtain 
it in several ways. First, this rule does not change the existing 
requirements for providing MSDSs and inventory information upon 
request. The SERC, LEPC or fire department having jurisdiction over a 
facility may ask a facility's owner or operator to submit inventory 
information, and the owner or operator must comply with such a request 
(the threshold is zero for reporting in response to such a request). 
Additionally, any person may obtain MSDS or inventory information with 
respect to a specific facility by requesting it (MSDS requests are made 
to the LEPC; inventory information requests are made to the SERC or 
LEPC). If the SERC or LEPC does not have the requested information, it 
must request the information from the facility. (However, in the case 
of a facility that doesn't store more than 10,000 pounds of the 
substance, the statute provides that a person's request for inventory 
information must include a statement of need, and the SERC or LEPC has 
discretion on whether to request the information from the facility. 
Note that the new higher thresholds for reporting for gasoline and 
diesel fuel don't affect this statutory 10,000 pound level.) Facilities 
must provide requested information to the SERC or LEPC making the 
request, and SERCs and LEPCs then must make the requested information 
available.
    SERCs, LEPCs, fire departments, and members of the public also can 
obtain information on retail gas stations from other sources. They can 
contact their UST offices, or can take advantage of information 
available elsewhere in telephone listings, chambers of commerce, or 
trade associations to obtain information on gas stations in their 
planning areas. Finally, state or local governments that want to 
receive inventory information routinely from retail gas stations can 
set lower thresholds for gas and diesel fuel at retail gas stations 
under state or local laws.
    In summary, the public can still receive information on gas 
stations from their SERCs or LEPCs. If those agencies do not have the 
requested information, generally they must request it from the facility 
and provide it to the person making the request. At the same time, 
EPCRA is not the only source of information on retail gas stations. The 
public can also obtain information on retail gas stations from other 
agencies, such as UST agencies.
    EPA acknowledges that in some cases some information on retail gas 
stations may now be less readily available, but this does not justify 
nationwide the substantial burdens of routine reporting by retail gas 
stations. The purposes of EPCRA reporting are to provide information to 
state and local emergency officials for planning for chemical 
emergencies, and to provide information to the public on the potential 
chemical risks in their communities. Since information on retail gas 
stations is generally known to emergency responders and the public, and 
more specific information is available, the general purpose of EPCRA 
reporting is satisfied without the need for retail gas stations to 
report routinely.
    The Agency recognizes that some SERCs, LEPCs or fire departments 
send EPCRA section 312 reporting packages to retail gas stations that 
have submitted section 312 reports for the previous reporting year. 
Sending such reporting packages to retail gas stations could be 
considered requesting information from specific facilities under EPCRA 
section 312, for which the reporting threshold is zero (see 40 CFR 
370.20). Retail gas stations receiving such packages should contact the 
SERC, LEPC or fire department that sent the package, to determine if 
they are required to report.

B. Knowledge of Locations and Hazards at Retail Gas Stations

    A number of commenters supported the proposed increases in 
reporting thresholds for gasoline and diesel fuel, asserting that the 
public and emergency responders are aware of the locations of retail 
gasoline stations independent of EPCRA reporting. Others emphasized 
that the public and emergency responders are knowledgeable about the 
hazards of gasoline and diesel fuel. However, a number of commenters 
disagreed and argued that the public and emergency responders are not 
aware of the locations or hazards associated with gasoline and diesel 
fuel.
    EPA believes the public and emergency response officials already 
have a general knowledge of the locations of retail gas stations, and 
of the general storage locations for gasoline and diesel fuel at gas 
stations. Retail gas stations prominently advertise the locations of 
their facilities, and the presence of gasoline and diesel fuel at these 
facilities. The general storage location for the gasoline and diesel 
fuel can be determined by the location of the fuel pumps at a facility.
    EPA further believes the public and emergency response officials 
already have a general knowledge of the hazards associated with 
gasoline and diesel fuel storage at retail gas stations. Gasoline and 
diesel fuel are common substances that are widely used by the public, 
and so are familiar to them. Further, routine reporting under EPCRA is 
not necessary to obtain more specific hazard information. Anyone 
requiring more specific hazard information on gasoline and diesel fuel 
(beyond the fire and explosion hazards that are already well known) may 
obtain it in several ways.
    First, this rule does not change the existing requirements for 
providing upon request MSDSs and inventory information on gasoline and 
diesel fuel at gas stations--all individuals may obtain MSDS or 
inventory information with respect to a specific facility by requesting 
it (MSDS information is requested from the LEPC; inventory information 
is requested from the SERC or LEPC). Second, some facilities provide 
hazard labeling voluntarily at their fuel pumps. EPA encourages this 
practice, which makes some hazard information and warning immediately 
available to the consumer at the point of use. In addition, some MSDS 
information may be obtained from other sources--for example, some 
businesses post MSDSs for their products on the Internet. In summary, 
information on the hazards of gasoline and diesel fuel has been 
available, is well known, and

[[Page 7037]]

will continue to be available upon request without routine EPCRA 
reporting.
    Several commenters described the hazards posed by gasoline and 
diesel fuel at retail gas stations and noted that the proposal did not 
eliminate these hazards. One commenter argued that by raising the 
threshold level EPA is suggesting that these facilities no longer pose 
a risk. A few organizations noted that petroleum-based substances are 
involved in a substantial number of chemical emergencies.
    EPA recognizes that hazards exist at retail gas stations and does 
not suggest that state and local agencies stop planning for emergencies 
involving such facilities. State and local agencies set their own 
priorities for emergency planning, based on their assessment of local 
chemical risks and resources. However, EPA believes that routine 
reporting by retail gas stations is not necessary nationwide for 
emergency planners to plan for emergencies involving retail gas 
stations. The public and local emergency officials are generally 
familiar with the locations of gas stations, the gasoline and diesel 
fuel stored at gas stations, and the hazards of those products. EPA's 
objective is to find a sound balance between the burden of collecting 
information and the value of that information. As noted previously, 
state and local emergency officials who want to obtain this information 
can receive it upon request under EPCRA regulations (the threshold for 
reporting in response to a request is zero; see 40 CFR 370.20); they 
may be able to obtain information from their state UST offices; and 
they can require the information under state or local law and can 
consult available sources such as telephone listings and trade 
associations, for locations or other information on gas stations.
    One commenter asked whether LEPCs can request information on 
components of gasoline that are hazardous, such as benzene or MTBE. If 
a SERC or LEPC specifically requests a facility to complete a Tier II 
report, the SERC or LEPC could specify that the facility report based 
on the components of the gasoline. However, the retail gasoline station 
may not know the concentration of the various constituents that make up 
gasoline because MSDSs are not required to contain this information.
    Finally, several of the comments addressed the risk of ground water 
contamination. EPA recognizes that protecting groundwater is critical 
and understands that USTs have the potential to contaminate 
groundwater. However, the UST program is the regulatory program that 
provides for the protection of groundwater from leaking underground 
storage tanks. EPA's UST requirements (codified at 40 CFR part 280), as 
well as the requirements of state UST programs approved by EPA, 
establish standards for the safe performance and operation of USTs to 
protect groundwater.

C. Need for Information on Gas Stations for Emergency Planning and 
Response

    Many SERCs, LEPCs, and fire departments commented that they do not 
need inventory information reported on retail gas stations, and that 
managing the gas station data takes limited resources away from more 
hazardous, less familiar situations. With higher Federal thresholds for 
gasoline and diesel fuel, SERCs, LEPCs and fire departments still have 
the flexibility to obtain the information that they need from gas 
stations for emergency planning and community right-to-know purposes, 
while those that do not want or need such information can implement a 
program that directs their resources elsewhere. Because SERCS, LEPCs 
and fire departments receive only the information that they need, this 
rule reduces their burden in administering EPCRA as well as minimizing 
the burden on retail gas stations.
    Many other commenters, primarily LEPCs and SERCs, addressed the 
need to continue current reporting thresholds for retail gas stations 
to ensure the continued availability of information needed for 
emergency planning and response. Commenters mentioned a need to receive 
notice of changes in ownership or contact information, and a need for 
specific information on locations and amounts stored at retail gas 
stations.
    EPA believes that local emergency planners can include gas stations 
in their emergency plans without the need for nationwide annual 
reporting under EPCRA sections 311 and 312. Local emergency officials 
are generally familiar with the location of retail gas stations, are 
aware that gasoline and diesel fuel are stored at gas stations, and can 
discern the general storage location of the gas and diesel fuel at gas 
stations. Also, as noted above, they can obtain the information from 
sources other than EPCRA reporting.
    Some comments supported the use of current inventory reporting to 
enable local agencies to track changes in emergency contact 
information, including 24-hour emergency contacts. EPA does not believe 
that the need by some SERCs, LEPCs, and fire departments for 24-hour 
emergency contact reporting justifies retaining EPCRA sections 311 and 
312 reporting nationwide for gas and diesel fuel at retail gas 
stations. State or local governments that need the 24-hour emergency 
contact information may obtain it from retail gas stations by 
requesting inventory information under EPCRA 312; they could tailor 
their requests to require only the emergency contact information (by 
indicating in a request that the respondent may comply with the request 
by providing only the specified information). State or local 
governments can also require gas stations to report emergency contact 
information under state or local law. Other means exist for obtaining 
contact information, including state UST offices, fire inspection 
reports, chamber of commerce information, telephone listings, or trade 
associations.
    Many states collect annual fees or insurance premiums for 
registered USTs, so the potential exists for an annual update of 
emergency contact information at the time that the fees are submitted. 
EPA encourages EPCRA and UST offices to work together toward obtaining 
24-hour emergency contact information from gas stations for those EPCRA 
programs desiring this information.
    Some comments suggested that EPA still require that retail gas 
stations report annually some basic information, such as owner or 
operator name and emergency contacts. One commenter suggested that full 
reporting be required on a specified interval, such as every three 
years. Several commenters suggested that EPA require one-time-only 
reporting for retail gas stations, with additional reports only if 
substantive information changes or the facility goes out of business. 
Another commenter suggested that gas stations submit an annual 
certification that they qualify for the higher thresholds.
    EPA has determined that routine reporting under EPCRA sections 311 
and 312 is not needed nationwide for gasoline and diesel fuel stored at 
retail gas stations under the criteria set forth in the rule. State and 
local governments, however, may choose to implement state or local laws 
to tailor EPCRA programs to suit their own needs and resources. For 
example, state or local governments could require gas stations to 
report less frequently than yearly, make an ``initial'' or ``one-time-
only'' notification, or submit annual certifications under state or 
local laws. EPA believes that it is better to allow state and local 
agencies to decide whether this information is needed from retail gas 
stations and have them seek the information through state or local 
statutes or other means.

[[Page 7038]]

    Gas stations already must make an initial notification for their 
gasoline and diesel fuel USTs under the Federal UST regulations (40 CFR 
part 280). This is a ``one-time-only'' notification such as that 
suggested by the commenters. EPA encourages coordination between UST 
program offices and EPCRA program offices to disseminate UST 
information to EPCRA agencies and the public. EPA expects that, as 
cooperative relationships develop between EPCRA program offices and UST 
program offices, access to UST information will increase.
    A few commenters argued that the proposal weakens the relationship 
between LEPCs and fire departments and owners/operators of gas 
stations. One commenter feared that the proposed rule would cause 
confusion and make LEPCs look bad. EPA understands the importance of 
communications between LEPCs/fire departments and gas station owners/
operators. LEPCs and fire departments can contact gas station owners/
operators to maintain communications, and can (and many routinely do) 
conduct inspections in their local planning districts. Communications 
between LEPCs and retail gas stations need not (and ideally should not) 
be restricted to formal yearly reporting. EPA does not believe that 
EPCRA routine reporting under sections 311 and 312 is the most 
efficient way for the local agencies and retail gas stations to 
communicate.

D. Relationship of This Rule to the Underground Storage Tank Program

    The new EPCRA thresholds apply only to gasoline and diesel fuel in 
tanks entirely underground at retail gas stations that comply with 
Federal UST requirements (40 CFR part 280) or, if applicable, 
requirements of the state UST program approved by the Agency under 40 
CFR part 281. The UST program establishes standards for the safe 
performance and operation of USTs, and requires facilities to make UST 
notifications. Some of the information reported under UST duplicates 
some of the information reported under EPCRA, and can be valuable for 
emergency planning purposes.
    States with UST programs approved under 40 CFR part 281 are 
authorized to administer their state UST program in lieu of the Federal 
program. State UST programs may be implemented by regulation or by 
statute. Approximately half of the states currently have approved state 
UST programs. All approvals and withdrawals of approvals are published 
in the Federal Register. Whether or not a state operates an approved 
UST program, UST notification forms are submitted to the state (or 
territory), not to EPA. Retail gas stations on Indian Lands must comply 
with the Federal UST requirements (40 CFR part 280).
    EPA provides addresses and phone numbers for state and territorial 
UST contacts on the Internet at www.epa.gov/swerust1/states/
statcon1.htm, and through the RCRA/UST, Superfund & EPCRA Hotline, at 
(800) 424-9346. Information about state UST program approval (including 
a list of approved states) may be accessed at www.epa.gov/swerust1/
states/spa1.htm.
    Free plain language publications are available to help people 
understand the Federal UST requirements. Such publications, for example 
``Musts for USTs,'' are available through the RCRA/UST, Superfund & 
EPCRA Hotline, and at EPA's Office of Underground Storage Tanks (OUST) 
Internet site at www.epa.gov/oust.
Availability and Usefulness of UST Information
    Some commenters expressed support for the proposal by saying that 
state UST databases can be used as a right-to-know resource. Others, 
however, commented that the UST reporting does not provide adequate 
emergency planning information, and therefore is not a proper 
substitute for EPCRA routine reporting.
    The Federal UST regulations (40 CFR part 280) require the following 
information in the UST notifications: name, address, and phone number 
of the owner of the UST(s); address of the facility at which the UST(s) 
are located; name, title, and phone number of a contact person at the 
tank location; type of notification (for example, amended or 
subsequent); certification; tank information, including status of 
tank(s), estimated age, estimated total capacity, material of 
construction, internal protection, external protection, and piping; and 
substance currently or last stored in greatest quantity by volume. 
(There are additional information requirements for tank(s) installed 
after December 22, 1988.) Much of this information can be valuable for 
emergency planning purposes. In addition, many of the states require 
additional information from UST facilities, beyond the information 
required under the Federal regulations.
    Furthermore, EPA does not intend that UST information will be the 
sole source of emergency planning information for retail gas stations. 
As discussed above, those emergency planners that want information from 
gas stations have a number of other options for obtaining information 
from those facilities.
    A number of commenters also feared that UST information may not be 
readily accessible to LEPCs, emergency responders, and the public. 
Several commenters suggested that EPA make UST information more 
accessible or modify the UST form. Commenters suggested that the UST 
form should be submitted to EPCRA agencies to ensure that the UST data 
are available. One commenter asked whether EPA would collect UST data 
and make it available to EPCRA agencies. Another commenter suggested 
that underground storage tank rules should be modified to guarantee 
public access to UST information.
    The states and territories receive UST notification forms. EPA sees 
no need to duplicate the collection of UST information and provide such 
information to state and local EPCRA agencies. It would be more 
efficient and would encourage working relationships if state and local 
emergency planners request UST information directly from state UST 
agencies. EPA also notes that a change to the UST regulations would be 
outside the scope of this rulemaking.
    EPA understands that in the majority of states, UST information is 
currently not reported directly to LEPCs or other emergency planners 
and responders. The Agency encourages increased coordination between 
UST program offices and EPCRA program offices desiring information on 
retail gas stations, to improve communication of UST information to 
SERCs, LEPCs, and fire departments.
    States may choose to combine the UST and EPCRA reporting forms and 
in fact are encouraged to do so, provided that all of the requirements 
for both programs are met. Any comprehensive form would need to satisfy 
the requirements for contents of submission, timing of submission, and 
recipients of the submission for both the UST and EPCRA programs. The 
preamble to the June 8, 1998, proposal (63 FR 31267) provides further 
guidance on this issue.
    Although states may choose to collect and disseminate information 
on retail gas stations through their UST programs, EPA has determined 
that on a nationwide basis it is not necessary to require that gas 
stations report annually under EPCRA sections 311 and 312. EPA believes 
both the public and emergency responders are already aware of most of 
the information that is submitted under EPCRA sections 311 and 312 for 
gas stations, specifically the identity of the chemical stored and the 
hazards associated with the chemical.

[[Page 7039]]

Entirely Underground Tanks
    Several organizations supported the proposal to increase reporting 
thresholds for gasoline and diesel fuel in entirely underground tanks. 
However, several other commenters argued that the phrase ``entirely 
underground tanks'' will cause confusion, because EPA's UST regulations 
also apply to partially underground storage tanks. A few commenters 
wrote that EPA should not limit the thresholds to ``entirely 
underground'' tanks. They noted that aboveground tanks are subject to 
fire protection standards and other rules, such as Spill Prevention, 
Control, and Countermeasures (SPCC) rules, that minimize environmental 
risk from such tanks. These commenters also stated that aboveground 
tanks pose less of a risk to groundwater.
    The new EPCRA reporting thresholds for gasoline and diesel fuel at 
retail gas stations apply only to fuel stored in tanks that are 
entirely underground, because entirely underground storage of gasoline 
and diesel fuel offers an added level of protection from certain 
emergencies in comparison to aboveground storage. If an underground 
storage tank and piping holding gasoline or diesel fuel fails, 
releasing a large quantity of fuel, the fuel remains under the ground, 
away from air and ignition sources. Releases below ground can be 
detected by monitoring (required under UST regulations) so that 
emergency response action can be taken to recover the fuel and minimize 
contamination. By contrast, if an aboveground tank or pipeline fails, 
releasing a large quantity of gasoline or diesel fuel, the fuel will 
quickly spread and form a pool on the surface of the ground or on paved 
areas and evaporate, potentially exposing people to harmful vapors. 
Since a pool of fuel can mix with air, an explosion or large fire can 
occur if an ignition source is available. Further, aboveground tanks 
and piping are vulnerable to collision with vehicles, severe weather, 
and static discharge (lightning). For these reasons, the higher 
thresholds apply only to gasoline and diesel fuel when they are stored 
entirely underground.
    The Federal UST regulations at 40 CFR 280.12 define an underground 
storage tank as any tank system that has over 10 percent of its volume 
underground. Because the UST program and the new EPCRA gasoline and 
diesel thresholds apply to different universes of tanks, the EPCRA rule 
cannot use the UST definition in promulgating the new reporting 
thresholds. Although this rule (codified in 40 CFR part 370) does refer 
to entirely underground tanks, it neither provides a definition of an 
underground storage tank nor changes the existing definition under the 
UST program.
    Storage tanks that are entirely underground are included within the 
definition of UST and would be subject to the UST requirements. EPA has 
made compliance with the UST requirements an additional condition for 
applicability of the new gasoline and diesel fuel reporting thresholds 
under EPCRA.
    One commenter argued that EPA should not cover aboveground tanks 
that are located far from populations. This comment is outside of the 
scope of this rulemaking. EPA also notes that EPCRA 311 and 312 provide 
access to hazardous chemical information in all covered facilities, and 
do not limit the information solely to chemicals that could affect the 
population outside the storage site boundaries. One important reason 
for this is that emergency responders use EPCRA information for 
planning for responses within the facility boundary.
Compliance With UST Requirements
    Prior to this rule, retail gas stations had to report on gasoline 
and diesel fuel regardless of whether they complied with the UST 
requirements or whether their tanks were leaking. The new gasoline and 
diesel fuel thresholds provide an incentive to these facilities to 
comply with UST requirements. Simply being regulated under the UST 
program is not sufficient for applicability of the new gasoline and 
diesel fuel thresholds--the new thresholds only apply to gasoline and 
diesel fuel stored entirely underground at retail gas stations that are 
in compliance with Federal UST requirements (40 CFR part 280) or 
requirements of the state UST programs approved by EPA under 40 CFR 
part 281.
    Many commenters agreed with EPA that compliance with RCRA's UST 
regulations minimizes the risk of accidental release of hazardous 
chemicals. All USTs must comply with regulations concerning: (1) 
Design, construction, installation and notification; (2) general 
operating requirements; (3) release detection; (4) release reporting, 
investigation, and confirmation; (5) release response and corrective 
action; (6) out of service USTs and closure; and (7) financial 
assurance (for USTs containing petroleum). Therefore, a comprehensive 
regulatory program (including notifications to government entities) is 
in place that establishes standards for the safe performance and 
operation of USTs. Limiting use of the new gasoline and diesel fuel 
thresholds to those facilities in compliance with the UST program 
assures that only those facilities less likely to face failure of their 
USTs are relieved from routine reporting under EPCRA sections 311 and 
312.
    A number of commenters asked EPA for clarification on issues 
related to how non-compliance with UST requirements affects the gas and 
diesel fuel thresholds. Commenters asked whether compliance with UST 
requirements includes compliance with state UST programs approved by 
EPA under 40 CFR part 281. Some commenters were concerned about who was 
responsible for determining that a facility was in compliance with the 
UST requirements; a few stated that LEPCs, SERCs, and fire departments 
did not have the resources or expertise to make such determinations. 
Commenters asked that EPA clarify whether temporary non-compliance 
affects eligibility for the higher thresholds.
    Today's final rule clarifies that applicability of the new gasoline 
and diesel fuel thresholds is contingent upon compliance with Federal 
UST requirements (40 CFR part 280) or, if applicable, the requirements 
of the state UST program approved by EPA under 40 CFR part 281.
    If a retail gas station is not in compliance with all applicable 
UST requirements at any time during a calendar year, it may not apply 
the new higher gasoline and diesel fuel thresholds for EPCRA reporting 
for that calendar year. If that retail gas station exceeded the 10,000-
pound reporting threshold for gasoline or diesel fuel during that year, 
it is subject to EPCRA penalties if it does not properly report under 
EPCRA sections 311 and 312.
    A facility is not in compliance with the UST requirements (and 
therefore not eligible for the higher EPCRA thresholds of today's rule) 
when it first fails to meet the UST requirements. For example, if an 
owner or operator of a retail gas station has a tank system that was 
not in compliance with UST requirements that went into effect in 
December of 1998 (see 40 CFR 280.21(a) and 281.31), that owner or 
operator can not apply the new thresholds in today's rule for the EPCRA 
section 312 report that is due March 1, 1999.
    An entire retail gas station must be in compliance with all 
applicable UST requirements to apply the new thresholds. If one tank at 
a retail gas station is out of compliance with UST requirements then 
that facility may not apply the new gasoline and diesel thresholds, 
even if other tanks at the facility are in compliance with the 
requirements.

[[Page 7040]]

    LEPCs, SERCs, and fire departments are not required to make the 
determination themselves on whether a facility is in compliance with 
UST requirements, but may obtain compliance information from state UST 
programs. State UST program databases are in general available to EPCRA 
agencies, although data quality, availability, and searchability vary 
from state to state. EPA believes that the information generated 
through the UST and EPCRA programs, both of which regulate the safe 
operation of retail gas stations, should be coordinated to reduce 
duplication of effort, and in pursuit of good government and sound 
public policy. EPA encourages both programs to more closely coordinate 
information sharing efforts at the state and local levels.
    The fact that a retail gas station files an EPCRA section 311 or 
312 report is not an admission that it is out of compliance with UST 
requirements. A facility may voluntarily submit its MSDS or hazardous 
chemical inventory information to local emergency planners.
    A commenter asked how a decision in the plaintiff's favor in a 
citizen suit for violation of UST requirements at a retail gas station 
would affect the applicability of the new higher thresholds for 
gasoline and diesel fuel under EPCRA. If a court found a retail gas 
station out of compliance with UST regulations, that facility could not 
apply the new gasoline and diesel fuel thresholds for reporting for any 
calendar year during which the facility was out of compliance with such 
UST requirements.

E. Effect of This Rule on the Funding of State and Local Programs

    EPA understands that some states generate funds for support of 
state or local EPCRA programs through fees collected from facilities 
that comply with section 312. Such states may lose revenue since the 
majority of retail gas stations will no longer report their gasoline 
and diesel fuel inventories due to EPA's new thresholds.
    Some commenters in support of the proposal stated that funding 
should not be an issue in EPA's decision to promulgate the change in 
reporting thresholds for gasoline and diesel fuel. However, other 
organizations noted that lack of funding is an important issue for the 
proposed threshold changes.
    The goals of reporting under EPCRA sections 311 and 312 are to 
provide information to the public on the hazardous chemicals present in 
their communities and to provide information for emergency planning. 
The EPCRA statute does not address the collection of fees for EPCRA 
reporting.
    State and local governments establish fee programs under state or 
local laws and such programs are not attributable to this or other 
EPCRA rules.
    Although EPCRA does not provide for annual Federal funds for state 
implementation of the EPCRA program, some Federal funds are available 
to support emergency planning and community right-to-know programs (for 
example, Hazardous Materials Emergency Preparedness Grants administered 
through the U.S. Department of Transportation).

F. State or Local Thresholds for Gasoline and Diesel Fuel

    EPA's June 8 proposal explained that although the new gasoline and 
diesel fuel thresholds would provide relief from routine reporting 
under EPCRA, state and local governments always may choose to establish 
lower thresholds under their own laws. Some commenters requested that 
EPA not encourage states to set their own thresholds. They feared that 
the proposal would be ineffective in accomplishing the intended 
reduction in paperwork burdens, because states would use their 
threshold setting authorities to set lower gasoline and diesel fuel 
thresholds. One commenter suggested that EPA issue non-binding guidance 
to encourage states to use EPA's thresholds.
    EPCRA section 321 specifically states that EPCRA does not preempt 
any state or local law. If a state or local government chooses to 
impose different reporting requirements (for example, different 
information, different thresholds) or fees to cover state or local 
costs, EPA has no authority to change these state rules. These state or 
local rules do not replace EPCRA requirements, but rather are in 
addition to the Federal reporting rules. States or local governments 
may elect to merge their requirements with EPCRA reporting (for 
example, by asking for additional information or requiring the 
submission of EPCRA forms for chemicals held at lower thresholds), but 
these state rules do not alter the basic requirements all covered 
facilities must meet to comply with EPCRA sections 311 and 312.
    State and local governments have always had the authority to 
establish lower thresholds for reporting under state or local law. EPA 
merely points out that state or local governments have authority to set 
lower thresholds if this suits their emergency planning and community 
right-to-know needs. States and local governments have their own 
circumstances, needs, resources, and issues concerning emergency 
planning and community right-to-know.
    Because many state and local entities do support EPA's proposal, 
EPA expects that many gas stations will see reporting burden relief. 
EPA believes that raising the reporting thresholds for gasoline and 
diesel fuel at retail gas stations will still achieve the goals of 
planning for chemical emergencies and providing right-to-know 
information (since the information is available elsewhere), while 
enabling all planners and responders to concentrate on the priorities 
and needs in their own communities.
    One state agency commented that it is difficult to establish more 
stringent thresholds at the state level. Nevertheless, neither EPCRA 
nor other Federal laws prohibit states from using their own authorities 
to enact state or local laws establishing lower thresholds for 
reporting. Any substantive or procedural limitations that states impose 
upon their own authority to promulgate lower thresholds are matters of 
state and local laws. It is neither feasible nor appropriate for EPA to 
characterize the difficulty of state or local political decisions.
    Any state or local government that wants to continue to receive 
gasoline and diesel fuel reporting from retail gas stations at a 10,000 
pound threshold can do so by enacting state or local laws, or by using 
the authority to request information from facilities (for which the 
reporting threshold is zero; see 40 CFR 370.20).

G. Alternative Thresholds for Gasoline and Diesel Fuel

    Several commenters supported the proposed threshold levels for 
gasoline and diesel fuel as appropriate. However, a number of 
commenters stated that the thresholds are arbitrary because they do not 
correspond to the inventory range values on the Tier II form or to an 
amount that could pose a threat as the result of a release. Other 
commenters stated that the proposal unfairly excludes the largest 
retail gas stations, even though these facilities meet the criteria 
described by EPA with regard to awareness of their hazards among the 
public and responders and coverage by UST regulations.
    The new gasoline and diesel fuel thresholds promulgated in this 
rule are 75,000 gallons for gasoline and 100,000 gallons for diesel 
fuel. The Agency's intent is to establish new thresholds corresponding 
to amounts just higher than the typical total amounts of gasoline and 
diesel fuel held at retail gas stations, so that facilities with 
typical

[[Page 7041]]

inventories would be relieved from reporting. EPA based the new 
thresholds on data showing that the following were typical fuel 
capacities at retail stations: gas stations--approximately 32,000 
gallons of gasoline overall (all grades combined), and approximately 
8,000 gallons of diesel fuel overall; truck stops that retail fuel to 
the public--approximately 60,000 gallons of gasoline overall, and 
90,000 gallons of diesel fuel overall. [See Memorandum to the Docket 
re: Gas Station Capacity and Universe. Dated October 8, 1997 (300RR-
IF1-2-26) in Docket 300RR-IF1 to this rule.]
    The majority of retail gas stations, including truck stops, will 
have gasoline and diesel fuel inventories below the new thresholds. 
However, facilities with unusually large inventories will exceed the 
thresholds and will continue to be subject to routine reporting under 
EPCRA sections 311 and 312. EPA believes that the public and emergency 
officials are generally aware of the approximate quantities stored at 
typical gas stations (including truck stops), so emergency planning can 
occur without the need for routine reporting nationwide. In contrast, 
because the public and emergency officials may not be aware of the 
amount stored at facilities with atypically large inventories, those 
retail gas stations are still subject to annual EPCRA reporting.
    One commenter suggested that EPA adopt only one threshold for 
gasoline and diesel fuel, that of 100,000 gallons. EPA decided to 
distinguish between gasoline and diesel fuel to specify the thresholds 
because the typical amounts of gasoline and diesel fuel found at retail 
gas stations differ. The Agency believes that 75,000 and 100,000 
gallons are the upper bound quantities for gasoline and diesel fuel 
respectively that are stored at typical retail gas stations. Retail gas 
stations with unusually large inventories of gasoline or diesel fuel 
are still required to report, since they store atypical amounts of 
gasoline and/or diesel fuel. Providing a single 100,000-gallon 
threshold for both gasoline and diesel fuel would extend the reporting 
exclusion to stations holding unusually large quantities of gasoline.
    In addition, some commenters argued that EPA should regulate 
gasoline and diesel fuel under EPCRA in a manner consistent with the 
Spill Prevention, Control, and Countermeasures (SPCC) regulations at 40 
CFR 112. Under the SPCC regulations, the capacity (for underground 
storage of oil, including gasoline and diesel fuel) that triggers the 
requirement for development of an SPCC plan is 42,000 gallons. 
Commenters argued that if the thresholds for gasoline or diesel fuel 
were to be raised, they should not be higher than 42,000 gallons.
    EPA does not believe that the thresholds established for EPCRA 
sections 311 and 312 reporting need to be consistent with the Spill 
Prevention, Control, and Countermeasures (SPCC) program, because these 
programs serve very different purposes. The EPCRA reporting thresholds 
should be based on the purpose to be served by the information 
reported. The purpose of the SPCC program is to help prevent discharges 
of oil from certain aboveground and underground storage facilities. The 
SPCC program requires regulated facilities to prepare SPCC plans that 
address the facility's design, operation, and maintenance procedures 
established to prevent spills from occurring, as well as 
countermeasures to control, contain, clean up, and mitigate the effects 
of an oil spill that could affect navigable waters and adjoining 
shorelines. The SPCC reporting quantity was established commensurate 
with this purpose. In contrast, the purpose of EPCRA sections 311 and 
312 reporting is to provide information to the public about the 
presence of hazardous chemicals in their community and to emergency 
planners and responders for emergency planning, prevention, and 
response. EPA believes that EPCRA's purposes are served by the 
threshold levels proposed in this rulemaking.
    Further, the purpose of the increase in the EPCRA thresholds for 
gasoline and diesel fuel, when stored in tanks entirely underground in 
typical amounts at facilities that are in compliance with the UST 
program, is to exclude facilities where emergency response officials 
and the public are generally aware of the approximate gasoline and 
diesel fuel quantities stored at those facilities. Thus, the increased 
thresholds for retail gas stations will promote a more manageable EPCRA 
program while still providing the information needed to protect the 
public health and safety of individuals in the community and emergency 
response officials. The SPCC threshold proposed by commenters would not 
fully serve this purpose because it is too low. If EPA adopted the SPCC 
threshold, many retail gas stations that EPA intends to exclude would 
continue to routinely report on their gasoline and diesel fuel 
inventories under EPCRA, although emergency response officials and the 
public are generally aware of the approximate quantities stored at 
those facilities.
    In addition, because EPA believes that the UST program offers 
equivalent protection to the SPCC program, EPA has proposed regulations 
(56 FR 54612, 54625, October 22, 1991) to exclude from SPCC coverage 
underground storage tanks (as defined in section 112.2 of the SPCC 
rule) currently subject to the technical requirements of the UST 
program in 40 CFR part 280. Thus, the SPCC threshold quantities would 
no longer be applicable to these tanks.

H. Zero Threshold for Reporting in Response to Requests for Information

    EPCRA regulations provide that a facility owner or operator must 
submit an MSDS to the LEPC upon request, and must submit Tier II 
inventory information to the SERC, LEPC or fire department upon request 
(see 40 CFR 370.21(d) and 370.25(c)). The regulations also specify that 
the threshold for reporting in response to requests for MSDS or Tier II 
inventory information is zero. In other words, a facility with any 
quantity of a hazardous chemical is required to provide information 
upon request by the SERC, LEPC or fire department. In the preamble to 
the June 8 proposal, EPA pointed out that the zero threshold provision 
is a useful tool that any SERCs, LEPCs or fire departments who want 
information from retail gas stations can use to obtain such 
information.
    Several commenters on the proposal discussed the zero threshold 
provision for reporting information in response to requests. A 
commenter stated that EPA must maintain the zero reporting threshold 
for requested information from retail gas stations. Another stated that 
maintaining the zero threshold will encourage states to require annual 
Tier II reporting, which will increase the burden on facilities (Tier 
II information is more comprehensive than Tier I information).
    The zero threshold provision for reporting in response to a request 
for MSDS or Tier II inventory information has been in effect since 
October 15, 1987, when EPA promulgated a final rule establishing the 
reporting requirements under EPCRA sections 311 and 312 (52 FR 38344). 
EPA has not proposed to change the zero threshold provision. Moreover, 
EPA understands that most states require Tier II reports annually under 
state laws or regulations; today's rule does not affect these state 
requirements.
    EPA has determined that routine reporting under EPCRA sections 311 
and 312 is not needed nationwide for gasoline and diesel fuel stored at 
retail gas stations under the criteria set forth in this rule. Some 
state and local governments, however, may want MSDS or inventory 
information from retail gas

[[Page 7042]]

stations. The zero threshold provision for reporting in response to 
requests provides state and local agencies the flexibility to customize 
the information that they receive to their emergency planning needs and 
the needs of their communities. They can tailor their requests to 
include any subset of the sections 311 and 312 information, by 
indicating in a request that the respondent may comply with the request 
by providing only the specified information. For example, they could 
request only the emergency contact information. Also, they can request 
that information be reported at any threshold level that suits their 
needs, from zero up to the federal thresholds.

I. Effect of the Timing of This Rule on State and Local Programs

    A few states suggested that if they want to continue to receive 
routine EPCRA reports from retail gas stations, it will be difficult to 
enact state legislation in time for it to be effective before EPA's 
gasoline and diesel fuel threshold changes take effect. Some asked that 
EPA allow time for outreach to facilities, or for state and local 
officials to make adjustments to their programs.
    EPA notes that the Agency has discussed the issue of raising the 
thresholds for reporting of gasoline and diesel fuel for retail gas 
stations for many years with state officials as a way to eliminate 
duplication of reporting requirements with the UST programs. Recently, 
EPA discussed this issue with state officials at the Hazardous Material 
Spills Conference in April 1998. The proposal to raise the thresholds 
was issued in June 1998; EPA has continued communicating with 
stakeholders since the publication of the proposed rule. EPA indicated 
its intent to raise these reporting thresholds effective for reports 
due March 1, 1999, in a letter to SERCs dated November 30, 1998.
    EPA acknowledges the difficulties in the timing of this rulemaking 
for SERCs, LEPCs or fire departments that want to receive information 
from retail gas stations, but does not believe that these outweigh the 
benefits nationwide in reducing an unnecessary burden for all 
communities. EPA is willing to work with states to assist with 
compliance packages and in other ways during this transition period, 
and so indicated in the November 30, 1998 letter to the SERCs. EPA does 
not believe that continuing this reporting nationwide for an additional 
year is justified. States still have authority to obtain the 
information through requesting information under sections 311 and 312, 
through the UST programs, and possibly using other existing state and 
local statutes or establishing new ones.

J. Effect of This Rule on the Regulatory Burden to Emergency Planners 
and Industry

    Some commenters agreed with the Agency that the higher gasoline and 
diesel fuel thresholds will decrease the regulatory burden to retail 
gas stations, and the efforts of emergency planners that receive the 
EPCRA reports. Other commenters stated that the proposed thresholds 
will increase the burden to SERCs and LEPCs, noting in particular the 
efforts associated with responding to public requests for information, 
maintaining accurate lists of retail gas stations for planning 
purposes, and ensuring compliance with UST requirements. Some 
commenters stated that EPCRA reporting is not burdensome to gas 
stations and, after the initial submission, requires only a minimal 
amount of time annually.
    The information collection analysis for this rule estimates a 
decrease in the burden to facility respondents in complying with EPCRA 
sections 311 and 312 of 587,389 hours per year. This estimate includes 
the time (averaging approximately 2 hours per facility) necessary to 
submit the Tier I form for the estimated 193,000 retail gas stations 
now subject to the higher gasoline and diesel fuel thresholds, and the 
time necessary for new retail gas stations to familiarize themselves 
with the regulations (averaging approximately 10 hours per new 
facility). EPA estimates an overall cost savings of more than $16 
million dollars per year as a result of this rule. This figure includes 
the reduction in costs to retail gas stations for complying, and the 
reduction in costs to SERCs, LEPCs and fire departments for archiving 
and maintaining information. EPA believes that, for SERCs, LEPCs and 
fire departments that choose to manage EPCRA data for retail gas 
stations, information management efforts will now be reduced because 
they can tailor the collection of information to suit only their 
particular needs.
    Even if a retail gas station can simply copy their inventory forms 
from the previous year, sign and re-date the forms, and submit them for 
EPCRA compliance, the facility needs to spend time managing the 
information before it is reported, ensuring the information is accurate 
or modifying it to reflect changes, confirming the addresses of the 
SERC, LEPC, and local fire department, and submitting the information. 
Although the reduction in burden to an individual gas station by this 
rulemaking may not seem large, the overall reduction nationwide is 
significant.
    EPA's analysis for this rule shows that the costs to SERCs, LEPCs 
and fire departments nationwide will decrease by a total of 
approximately $45,000, because of a reduction in the amount of 
paperwork that will have to be managed under EPCRA. EPA believes that 
the number of public requests to SERCs and LEPCs nationwide for MSDS 
and inventory information (estimated to be over 17,000 per year) will 
not change as a result of this rule. The reporting thresholds should 
have no effect on a member of the public's interest in having 
information on retail gas stations.
    The Agency recognizes that some SERCs, LEPCs or fire departments 
may consult other sources of information beyond routine EPCRA reporting 
(such as state UST programs or requests for inventory information) in 
developing their emergency plans and responding to public inquiries. It 
is more efficient overall if only those SERCs, LEPCs or fire 
departments that want or need the information obtain it, rather than 
requiring reporting nationwide.
    For those state or local governments that choose to enact state or 
local laws to continue to receive hazardous chemical inventory reports 
from gas stations, there will be effort involved in enacting such laws, 
although this will be a one-time effort. The flexibility provided by 
this rule allows those governments to decide where to allocate their 
resources.

K. Thresholds for Other Facilities/Chemicals

    In the proposal, EPA suggested that gasoline and diesel fuel stored 
at retail gas stations under the criteria discussed in the rule present 
a special situation for which separate reporting thresholds under EPCRA 
sections 311 and 312 are warranted. In developing the proposal, EPA 
considered whether any other chemicals or facilities should also be 
relieved of routine EPCRA reporting, such as propane at propane 
retailers; or gasoline or diesel fuel at motor pools, van and bus 
lines, rental car facilities and other vehicle fleets, or marinas. EPA 
did not propose to raise the reporting thresholds for any of these 
other chemicals or facilities, but asked for public comment on whether 
they should also be relieved from routine EPCRA reporting.
    Many commenters stated that it would be inappropriate to raise the 
EPCRA sections 311 and 312 reporting thresholds for facilities other 
than retail gas stations. Others, however, requested that EPA expand 
the applicability of the

[[Page 7043]]

increased reporting thresholds beyond retail gas stations to cover 
other facilities. Types of facilities addressed in the proposal and 
mentioned by the commenters include fueling stations for marinas, 
rental car facilities, bus lines, motor pools, and other vehicle 
fleets.
    Some commenters suggested raising the thresholds for other types of 
facilities that were not mentioned in the proposal, including 
automobile and truck dealerships, aircraft service facilities, electric 
utility operation centers, manufacturing and other non-retail 
facilities, municipal and state fleet facilities (for example, school 
bus and public works garages), Federal facilities, residential and 
commercial buildings, and trucking terminals. Some commenters wrote 
that promulgation of higher gasoline and diesel fuel thresholds for 
retail gas stations will cause other industries to request similar 
burden relief, which, if approved, would increase the emergency 
planning burden on local agencies.
    The Agency notes that this final rule only addresses and 
promulgates higher reporting thresholds for gasoline and diesel fuel 
when stored in tanks entirely underground at retail gas stations that 
are in compliance with UST requirements. At this time EPA has not 
reached a final decision on whether to expand the applicability of the 
higher thresholds to other facilities. The standard 10,000-pound 
reporting threshold continues to apply for gasoline, diesel fuel, and 
other non-EHS hazardous chemicals stored at these other facilities. 
(See below for a discussion of the definition of ``retail gas station'' 
for the purposes of this rule.)
    Several commenters addressed propane retailers and propane, 
suggesting that propane should not be eligible for a higher reporting 
threshold. A few commenters suggested that raising the thresholds for 
gasoline and diesel fuel may cause industry to request that thresholds 
for other substances, such as propane, also be raised. Some commenters 
requested that the higher threshold apply to kerosene. Most of these 
commenters stated that kerosene is very similar to diesel fuel and, 
thus, should be subject to the same 100,000-gallon proposed reporting 
threshold. Commenters also mentioned other petroleum products, 
including heating fuels (for example, #2 fuel oil), aviation fuel, and 
other alternative fuels (for example, methanol- and ethanol-related 
mixtures M85, E85, and E95).
    This final rule only addresses and promulgates higher reporting 
thresholds for gasoline and diesel fuel when stored in tanks entirely 
underground at retail gas stations that are in compliance with UST 
requirements. At this time the Agency has not reached a final decision 
on whether to expand the applicability of the higher thresholds to 
substances other than gasoline and diesel fuel. For the purposes of 
this rule, however, EPA does not consider the substances listed by the 
commenters to be included in the higher thresholds established for 
gasoline and diesel fuel. (See below for a discussion of the meaning of 
the terms ``gasoline'' and ``diesel fuel'' for the purposes of this 
rule.) The standard 10,000-pound reporting threshold continues to apply 
to all non-EHS hazardous chemicals, except gasoline and diesel fuel 
stored at retail gas stations under the criteria set forth in this 
rule.

L. Gasoline and Diesel Fuel Thresholds in Gallons Rather Than Pounds

    A number of commenters addressed the Agency's decision to set the 
proposed higher thresholds for gasoline and diesel fuel in gallons 
instead of pounds. Many of these supported the change to gallons. 
Others suggested that EPA change thresholds for all liquids to gallons 
and that reporting should be in gallons as well.
    This rulemaking addresses only new thresholds for gasoline and 
diesel fuel held entirely underground at retail gas stations. The 
Agency chose to express the thresholds in gallons instead of pounds to 
make it easier for retail gas stations to make their compliance 
determination, since their gasoline and/or diesel inventory is 
typically expressed in gallons. EPA's proposal did not address other 
issues that commenters have raised, including changing thresholds for 
other liquids from pounds to gallons or reporting in gallons instead of 
or in addition to pounds. These other changes are outside the scope of 
this rulemaking.
    EPA believes that very few retail gas stations will have 
inventories over the new gasoline and diesel fuel thresholds and will 
therefore need to report. For those who must report, consistent with 
past practices and the reporting requirements of EPCRA, reporting as 
required in Federal regulations is in pounds. States may (as some do 
already) allow reporting in gallons, in pounds, or in both, consistent 
with their statutes, past practices, and any reporting structures or 
software they may have developed.
    One commenter requested that the Agency eliminate all range codes 
used to report inventory information, and require written inventory 
amounts with all liquids in gallons and all dry chemicals in pounds. 
EPA's proposed rule did not address elimination of or changes to the 
codes; such a change is outside the scope of this rulemaking.

M. Defining Gasoline and Diesel Fuel

    A number of commenters discussed whether ``gasoline'' and ``diesel 
fuel'' should be defined for purposes of this rule. Some argued for 
definitions; others agreed with the Agency that such definitions are 
not needed. Among those supporting definitions, some stated that 
kerosene should be included in the definition of diesel fuel as should 
heating fuel and aviation fuel. One commenter asserted that lack of a 
definition could lead to the application of the new thresholds to 
alternative fuel mixtures that contain large concentrations of methanol 
or ethanol.
    The concepts of ``gasoline'' and ``diesel fuel,'' used as fuel in 
motor vehicles (or motor vehicle type engines), are generally 
understood by the regulated community and the public. Therefore, EPA 
does not believe that formal definitions are needed for the purposes of 
this rule. Definitions for ``gasoline'' and ``diesel fuel'' might be 
too broad or too narrow for their use in this rule and would require 
revisions for new gasoline or diesel fuel formulations. Codifying 
formal definitions of ``gasoline'' and ``diesel fuel'' would add 
unnecessary complexity to this rule since these terms are popularly 
understood.
    Alternative fuels containing different proportions of ethanol, 
alternative fuels containing methanol, other alternative fuels, 
aviation fuel, heating fuel, and kerosene are not generally described 
as or called ``gasoline'' or ``diesel fuel'' and are not commonly 
understood to be present at retail gas stations. One exception--EPA 
includes gasohol within the term ``gasoline'' for purposes of this 
rule. Gasohol, which is composed of at least 90 percent gasoline and up 
to 10 percent ethanol, is commonly understood to be included in the 
term ``gasoline.'' Therefore, this regulation, which establishes new 
thresholds for gasoline and diesel fuel at retail gas stations, does 
not apply to any alternative fuels (except for gasohol), aviation fuel, 
heating fuel or kerosene. The standard hazardous chemical threshold of 
10,000 pounds (or lower thresholds for EHSs) continues to apply to 
these other fuels.
    A few commenters suggested the need for clarification of the 
Chemical Abstracts Service Registry Number (CASRN) for gasoline and 
diesel fuel. EPA believes that listing CAS numbers for gasoline and 
diesel fuel is unnecessary and could cause confusion for both gas 
station operators and the

[[Page 7044]]

general public who may not be familiar with CAS numbers. As noted 
above, the general public is familiar with the terms ``gasoline'' and 
``diesel fuel'; specifying CAS numbers, which are unfamiliar to many 
and subject to change, may cause confusion and will not add clarity. 
EPA recognizes that there are various formulations of gasoline 
throughout the year as well as differences in formulations throughout 
the country, adding to possible confusion should EPA begin to specify 
subsets of ``gasoline.''

N. ``Retail Gas Station'' Definition

    Several comment letters discussed the definition proposed for 
``retail gas station'' for this rule. One commenter stated that the 
phrase ``retail gas station'' need not be defined because it is 
commonly understood. Others objected to the inclusion of the phrase 
``convenience store'' and argued for the inclusion of truck stops. For 
the purposes of this rule, EPA defines ``retail gas station'' as ``a 
retail facility engaged in selling gasoline and/or diesel fuel 
principally to the public, for motor vehicle use on land.'' EPA asserts 
that this definition is sufficient for the purposes of this rule 
because the Agency's intended meaning is clearly understood by the 
general public. The Agency believes that a definition of ``retail gas 
station'' is necessary for the purposes of this rule to limit use of 
the new gasoline and diesel fuel thresholds to those facilities that 
meet the specific criteria set forth in the rule.
    EPA has added the phrase ``for motor vehicle use on land'' to the 
definition of ``retail gas station'' as it was published in the 
proposed rule. The Agency added this phrase to clarify that gas 
stations in marinas and airports that sell fuel for boats or airplanes 
are not intended to be included in the definition of ``retail gas 
station'' for the purposes of this rule at this time. EPA received some 
comments suggesting that the new gasoline and diesel fuel thresholds be 
applied to facilities other than ``retail gas stations.'' The Agency 
has not reached a decision on whether to apply the new thresholds at 
other facilities. The new thresholds apply only at ``retail gas 
stations'' as defined in this rule.
    A commenter suggested that ``truck stops'' be explicitly included 
in the definition of ``retail gas station.'' EPA intends that any truck 
stop that is a retail facility engaged in selling gasoline and/or 
diesel fuel principally to the public is included in the definition of 
``retail gas station'' for the purposes of this rule. Such a truck stop 
is covered by EPA's definition of ``retail gas station'; therefore, 
truck stops need not be explicitly included. Convenience stores that 
retail gasoline to the public are also covered by EPA's definition of 
``retail gas station,'' and need not be explicitly included. EPA has 
chosen to promulgate a broad definition of ``retail gas station,'' 
rather than listing specific facilities such as truck stops or 
convenience stores that retail gasoline, to avoid excluding other 
facilities by implication.
    One commenter suggested that EPA not include convenience stores 
under the proposed rule because not all convenience stores sell 
gasoline. EPA notes that convenience stores that sell gasoline and 
diesel fuel satisfy the same criteria described in the proposal that 
apply to other retail gas stations; namely, the public and local 
emergency officials are generally familiar with the location of these 
facilities and the hazards associated with the gasoline and diesel fuel 
dispensed there, convenience stores typically store gasoline and diesel 
fuel in tanks that are entirely underground, and these tanks are 
regulated under RCRA's UST program. Convenience stores that are also 
retail gas stations have recognizable pumps, which the public can 
readily see. As with other retail gas stations, convenience stores that 
retail gasoline and diesel fuel to the public advertise the presence of 
these fuels at their facilities, invite the public to come on site, and 
generally allow the public to dispense the fuels themselves.
    A number of organizations submitted comments on the issue of 
specific SIC/NAICS codes for retail gas stations covered by the 
proposal. Some commenters supported the listing of specific SIC or 
NAICS codes, while others did not think such codes were necessary or 
useful. EPA has determined that SIC/NAICS codes are too restrictive and 
should not be used to determine applicability of the new gasoline and 
diesel fuel thresholds. SIC codes (to be replaced eventually with NAICS 
codes) can change with shifts in the economy and, if specified, could 
possibly include facilities not meeting the criteria for the new 
thresholds. The use of multiple overlapping codes would only add 
confusion.

V. Regulatory Analysis

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 Office of Management and Budget (OMB) review 
and the requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:

    (1) Have an annual effect on the economy of $100 million or more 
or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with 
an action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, 
grants, user fees, or loan programs or the rights and obligations of 
recipients thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.

    Pursuant to the terms of the Executive Order, it has been 
determined that this rule is a ``significant regulatory action'' 
because it raises novel policy issues. Nevertheless, after reviewing 
information regarding this action, OMB has waived review of this 
action.

B. Executive Order 12875

    Under Executive Order 12875, EPA may not issue a regulation that is 
not required by statute and that creates a mandate upon a State, local 
or tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments, or EPA consults with those governments. If EPA complies by 
consulting, Executive Order 12875 requires EPA to provide to the Office 
of Management and Budget a description of the extent of EPA's prior 
consultation with representatives of affected State, local and tribal 
governments, the nature of their concerns, any written communications 
from the governments, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 12875 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of State, local and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.''
    Today's rule does not create a mandate on State, local or tribal 
governments. The rule does not impose any enforceable duties on these 
entities. Accordingly, the requirements of section 1(a) of Executive 
Order 12875 do not apply to this rule.

C. Executive Order 12898

    Executive Order 12898 requires that each Federal agency make 
achieving environmental justice part of its mission by identifying and 
addressing, as

[[Page 7045]]

appropriate, disproportionately high and adverse human health or 
environmental effects of its programs, policies, and activities on 
minorities and low-income populations. EPA has determined that the 
regulatory changes in this rule will not have a disproportionate impact 
on minorities and low-income populations. This rule does not address 
health or environmental risks or standards. Furthermore, this rule will 
affect regulated entities (retail gas stations) that are located 
throughout all communities, not only in low income or minority 
communities.

D. Executive Order 13045

    Executive Order 13045: ``Protection of Children from Environmental 
Health Risks and Safety Risks'': (62 FR 19885, April 23, 1997) applies 
to any rule that: (1) Is determined to be ``economically significant'' 
as defined under E.O. 12866, and (2) concerns an environmental health 
or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    EPA interprets E.O. 13045 as applying only to those regulatory 
actions that are based on health or safety risks, such that the 
analysis required under section 5-501 of the order has the potential to 
influence the regulation. This rule is not subject to E.O. 13045 
because it does not establish an environmental standard intended to 
mitigate health or safety risks. In addition, the rule is not subject 
to the Executive Order because it is not economically significant as 
defined in Executive Order 12866.

E. Executive Order 13084

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of Indian tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that significantly or uniquely affect their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. This rule raises existing 
reporting thresholds for gasoline and diesel fuel at retail gas 
stations nationwide. In cases where the Indian tribal governments are 
themselves subject to the reporting requirements, this rule reduces 
their reporting burden. Accordingly, the requirements of section 3(b) 
of Executive Order 13084 do not apply to this rule.

F. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996), whenever an agency is required to publish a notice of rulemaking 
for any proposed or final rule, it must prepare and make available for 
public comment a regulatory flexibility analysis that describes the 
effect of the rule on small entities (i.e., small businesses, small 
organizations, and small governmental jurisdictions). This analysis is 
unnecessary, however, if the agency's administrator certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities.
    EPA has examined this rule's effect on small entities as required 
by the Regulatory Flexibility Act and has determined that this action 
will not have a significant economic impact on a substantial number of 
small entities. This rule would reduce regulatory burdens for small 
entities. The overall economic effect of this regulation has been 
determined to equate to 587,389 hours of burden reduction at a total 
cost saving of approximately $16 million per year to all regulated 
entities. Therefore, this regulation will result in a cost savings. 
Accordingly, the Agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
This rule, therefore, does not require a regulatory flexibility 
analysis.

G. Paperwork Reduction Act

    The Office of Management and Budget (OMB) has approved the 
information collection requirements contained in this rule under the 
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and 
has assigned OMB control number 2050-0072.
    EPA currently has an approved ICR (ICR No. 1352.06) of $66,435,442 
for the existing EPCRA sections 311 and 312 reporting requirements (40 
CFR part 370). This burden estimate is based on the estimates of 
803,682 annual responses from 679,051 respondents. The average burden 
for MSDS reporting under 40 CFR 370.21 is estimated at 12.8 hours for 
new and newly regulated facilities and approximately 2 hours for those 
existing facilities that obtain new or revised MSDSs or receive 
requests for MSDSs from local governments. For new and newly regulated 
facilities, this burden includes the time required to read and 
understand the regulations, to determine which chemicals meet or exceed 
reporting thresholds, and to submit MSDSs or lists of chemicals to 
SERC, LEPCs, and local fire departments. For existing facilities, this 
burden includes the time required to submit revised MSDSs and new MSDSs 
to local officials. The average reporting burden for facilities to 
perform Tier I or Tier II inventory reporting under 40 CFR 370.25 is 
estimated to be approximately 3.2 hours per facility, including the 
time to develop and submit the information. There are no recordkeeping 
requirements for facilities under EPCRA sections 311 and 312. The 
average burden for state and local governments to respond to requests 
for MSDSs or Tier II information under 40 CFR 370.30 is estimated to be 
0.25 hours per request.
    As part of the President's program for reinventing government and 
reforming regulatory policy, EPA is reducing the reporting burden 
imposed by the EPCRA regulations at 40 CFR Part 370. EPA anticipates 
that today's final rule will reduce the burden on facilities for part 
370 from 2,960,215 hours to 2,372,826 hours, for a reduction of 587,389 
hours under ICR number 1352.06. EPA estimates the overall cost savings 
(including burden hour costs) from this rule to be more than $16 
million. This figure includes estimated cost savings for facilities of 
approximately $16 million nationwide; and estimated cost savings for 
SERCs, LEPCs and fire departments of approximately $45,000 nationwide. 
The savings for SERCs, LEPCs and fire departments result from a 
reduction in the capitol costs needed to archive and maintain 
information.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a

[[Page 7046]]

Federal agency. This includes the time needed to review instructions; 
develop, acquire, install, and use technology and systems for the 
purposes of collecting, validating, and verifying information, 
processing and maintaining information, and disclosing and providing 
information; adjust the existing ways to comply with any previously 
applicable instructions and requirements; train personnel to be able to 
respond to a collection of information; search data sources; complete 
and review the collection of information; and transmit or otherwise 
disclose the information.
    In the ICR associated with this regulation (ICR number 1352.06), 
the agency has decided to adjust the time necessary for SERCs and LEPCs 
to respond to public inquiries from .17 hours to .25 hours. This 
adjustment is not due to today's action, but rather the Agency is 
taking this opportunity to make this adjustment because the Agency 
believes that the average time of .25 hours per request more adequately 
reflects the time necessary to respond to public inquiries.
    EPA is also taking this opportunity to amend the table of currently 
approved information collection request (ICR) control numbers issued by 
OMB for various regulations. Today's changes amends the table to list 
those information requirements promulgated under the Hazardous Chemical 
Reporting: Community Right-to-Know which appeared in the Federal 
Register on October 15, 1987 (52 FR 38333). The affected regulations 
are codified at 40 Code of Federal Regulations (CFR) part 370. EPA will 
continue to present OMB control numbers in a consolidated table format 
to be codified in 40 CFR part 9 of the Agency's regulations, and in 
each CFR volume containing EPA regulations. The table lists the section 
numbers with reporting and recordkeeping requirements, and the current 
OMB control numbers. This listing of the OMB control numbers and their 
subsequent codification in the CFR satisfy the requirements of the 
Paperwork Reduction Act (44 U.S.C. 3501 et seq.) and OMB's implementing 
regulations at 5 CFR part 1320.
    This ICR was previously subject to public notice and comment prior 
to OMB approval. As a result, EPA finds that there is ``good cause'' 
under section 553(b)(B) of the Administrative Procedures Act (5 U.S.C. 
553(b)(B)) to amend this table without prior notice and comment. Due to 
the technical nature of the table, further notice and comment would be 
unnecessary.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR part 9 and 48 CFR Chapter 15.

H. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    Today's rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for state, local and tribal 
governments or the private sector. This rule does not impose an 
enforceable duty on any state, local or tribal governments or the 
private sector. For this same reason, EPA has determined that this rule 
does not contain a Federal mandate that may result in expenditures of 
$100 million or more for state, local and tribal governments, in the 
aggregate, or the private sector in any one year. Thus, today's rule is 
not subject to the requirements of sections 202 and 205 of UMRA.
    EPA also has determined that this rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments. The intent of this rule is to provide burden relief to 
regulated entities, including small governments.

I. National Technology Transfer and Advancement Act

    As noted in the proposed rule, Section 12(d) of the National 
Technology Transfer and Advancement Act of 1995 (``NTTAA''), Pub. L. 
104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use 
voluntary consensus standards in its regulatory activities unless to do 
so would be inconsistent with applicable law or otherwise impractical. 
Voluntary consensus standards are technical standards (e.g., materials 
specifications, test methods, sampling procedures, and business 
practices) that are developed or adopted by voluntary consensus 
standards bodies. The NTTAA directs EPA to provide Congress, through 
OMB, explanations when the Agency decides not to use available and 
applicable voluntary consensus standards.
    This action does not involve technical standards. Therefore, EPA 
did not consider the use of any voluntary consensus standards.

J. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. This action is not 
a ``major rule'' as defined by 5 U.S.C. 804(2). This rule will be 
effective February 11, 1999.

List of Subjects in 40 CFR parts 9 and 370

    Environmental protection, Chemicals, Community right-to-know, 
Disaster assistance, Hazardous Substances, Intergovernmental relations, 
Natural resources, Reporting and recordkeeping requirements, Superfund.


[[Page 7047]]


    Dated: February 4, 1999.
Carol M. Browner,
Administrator.

    For the reasons set out in the preamble, 40 CFR parts 9 and 370 are 
amended as follows:

PART 9--OMB APPROVALS UNDER THE PAPERWORK REDUCTION ACT

    1. The authority citation for part 9 continues to read as follows:

    Authority: 7 U.S.C. 135 et seq., 136-136y; 15 U.S.C. 2001, 2003, 
2005, 2006, 2601-2671; 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33 
U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318, 1321, 1326, 1330, 
1342, 1344, 1345 (d) and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, 
1971-1975 Comp. p. 973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g, 
300g-1, 300g-2, 300g-3, 300g-4, 300g-5, 300g-6, 300j-1, 300j-2, 
300j-3, 300j-4, 300j-9, 1857 et seq., 6901-6992k, 7401-7671q, 7542, 
9601-9657, 11023, 11048.

    2. Section 9.1 is amended by adding a new heading with entries in 
numerical order to the table to read as follows:


Sec. 9.1  OMB approvals under the Paperwork Reduction Act.

* * * * *

------------------------------------------------------------------------
                                                             OMB control
                      40 CFR citation                            No.
------------------------------------------------------------------------
 
                 *        *        *        *        *
          Hazardous Chemical Reporting: Community Right-to-Know
 
370.21.....................................................    2050-0072
370.25.....................................................    2050-0072
370.30.....................................................    2050-0072
 
                  *        *        *        *        *
------------------------------------------------------------------------

PART 370--HAZARDOUS CHEMICAL REPORTING: COMMUNITY RIGHT-TO-KNOW

    1. The authority citation for part 370 continues to read as 
follows:

    Authority: Secs. 311, 312, 324, 325, 328, 329 of Pub. L. 99-499, 
100 Stat. 1613, 42 U.S.C. 11011, 11012, 11024, 11025, 11028, 11029.

    2. Section 370.20 is revised to read as follows:


Sec. 370.20  Applicability.

    (a) General. The requirements of this subpart apply to any facility 
that is required to prepare or have available a material safety data 
sheet (MSDS) for a hazardous chemical under the Occupational Safety and 
Health Act of 1970 and regulations promulgated under that Act.
    (b) Minimum threshold levels. Except as provided in paragraph 
(b)(5) of this section, the minimum threshold level for reporting under 
this subpart shall be as specified in paragraphs (b)(1), (b)(2), (b)(3) 
and (b)(4) of this section:
    (1) The minimum threshold for reporting for extremely hazardous 
substances is 500 pounds (or 227 kgs--approximately 55 gallons) or the 
TPQ, whichever is lower.
    (2) The minimum threshold for reporting for gasoline (all grades 
combined) that was in tank(s) entirely underground, at a retail gas 
station that was in compliance at all times during the preceding 
calendar year with all applicable Underground Storage Tank (UST) 
requirements (40 CFR part 280 or requirements of the state UST program 
approved by the Agency under 40 CFR part 281), is 75,000 gallons (or 
approximately 283,900 liters). For purposes of this part, retail gas 
station means a retail facility engaged in selling gasoline and/or 
diesel fuel principally to the public, for motor vehicle use on land.
    (3) The minimum threshold for reporting for diesel fuel (all grades 
combined) that was in tank(s) entirely underground, at a retail gas 
station that was in compliance at all times during the preceding 
calendar year with all applicable UST requirements (40 CFR part 280 or 
requirements of the state UST program approved by the Agency under 40 
CFR part 281), is 100,000 gallons (or approximately 378,500 liters).
    (4) The minimum threshold for reporting for all other hazardous 
chemicals is 10,000 pounds (or 4,540 kgs.)
    (5) The minimum threshold for reporting in response to requests for 
submission of an MSDS or a Tier II form under Secs. 370.21(d) and 
370.25(c) of this part shall be zero.
    (c) MSDS reporting. The owner or operator of a facility subject to 
this subpart shall submit an MSDS on or before October 17, 1990 (or 
within three months after the facility first becomes subject to this 
subpart), for all hazardous chemicals present at the facility at any 
one time in amounts equal to or greater than their thresholds.
    (d) Inventory reporting. The owner or operator of a facility 
subject to this subpart shall submit the Tier I form (or Tier II form) 
on or before March 1, 1991 (or March 1 of the first year after the 
facility first becomes subject to this subpart), and annually 
thereafter, covering all hazardous chemicals present at a facility at 
any one time during the preceding calendar year in amounts equal to or 
greater than their thresholds.

[FR Doc. 99-3255 Filed 2-10-99; 8:45 am]
BILLING CODE 6560-50-U