[Federal Register Volume 67, Number 197 (Thursday, October 10, 2002)]
[Proposed Rules]
[Pages 63060-63064]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-25851]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 372

[OEI-2002-0010; FRL-6724-4]


Overburden Exemption; Toxic Chemical Release Reporting; Community 
Right-to-Know; Administrative Procedure Act

AGENCY: Environmental Protection Agency (EPA).

ACTION: Denial of petition.

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SUMMARY: EPA is denying an Administrative Procedure Act (APA) petition 
to modify its definition of ``overburden'' to include both consolidated 
and unconsolidated material. Currently, unconsolidated material is 
eligible for the overburden exemption to reporting required under 
section 313 of the Emergency Planning and Community Right-to-Know Act 
of 1986 (EPCRA) and section 6607 of the Pollution Prevention Act of 
1990 (PPA). Specifically, EPA is denying this petition because EPA's 
review of the petition and available information resulted in the 
conclusion that consolidated rock includes materials that often contain 
toxic chemicals above negligible amounts, often in significant 
quantities.

FOR FURTHER INFORMATION CONTACT: Peter South, Petition Manager, U.S. 
Environmental Protection Agency, Mail Code 2844T, 1200 Pennsylvania 
Ave., NW., Washington, DC 20460, 202-566-0745, e-mail: 
[email protected]. For specific information on this document, or for 
more information on EPCRA section 313, contact the Emergency Planning 
and Community Right-to-Know Hotline, U.S. Environmental Protection 
Agency, Mail Code 5101, 1200 Pennsylvania Ave., NW., Washington, DC 
20460, Toll free: 1-800-535-0202, in Virginia and Alaska: 703-412-9877 
or Toll free TDD: 1-800-553-7672. Information concerning this notice is 
also available on EPA's Web site at http://www.epa.gov/tri.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Action Apply to Me?

    This notice does not make any changes to existing regulations. 
However, you may be affected by this notice if you are a metal mining 
facility, or a facility that carries out metal mining activities. 
Potentially affected categories and entities may include, but are not 
limited to:

------------------------------------------------------------------------
                                             Examples of potentially
                Category                       interested entities
------------------------------------------------------------------------
Industry...............................  Metal mining facilities that
                                          remove and manage overburden
                                          and waste rock to access
                                          target ore; SIC major group
                                          codes 10 (except 1011, 1081,
                                          and 1094).
Federal Government.....................  Federal facilities.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be affected by this 
action. Other types of entities not listed in the table could also be 
affected. To determine whether your facility would be affected by this 
action, you should carefully examine the applicability criteria in part 
372, subpart B of Title 40 of the Code of Federal Regulations (CFR). If 
you have questions regarding the applicability of this action to a 
particular entity, consult the person listed in the preceding FOR 
FURTHER INFORMATION CONTACT section.

B. How Can I Get Copies Of This Document and Other Related Information?

    1. Docket. EPA has established an official public docket for this 
action under Docket ID No. OEI-2002-0010.
    The public docket includes information considered by EPA in 
developing this action, including the documents listed below, which are 
physically located in the docket. In addition, interested parties 
should consult documents that are referenced in the documents that EPA 
has placed in the docket, regardless of whether these referenced 
documents are physically located in the docket. For assistance in 
locating documents that are referenced in documents that EPA has placed 
in the docket, but that are not physically located in the docket, 
please consult the person listed in the

[[Page 63061]]

preceding FOR FURTHER INFORMATION CONTACT section. Although a part of 
the official docket, the public docket does not include Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. The official public docket is the collection of 
materials that is available for public viewing at the Overburden 
Exemption Docket in the EPA Docket Center, (EPA/DC) EPA West, Room 
B102, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket 
Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays. The telephone number for the 
Reading Room is (202) 566-1742, and the telephone number for the 
Overburden Exemption Docket is (202) 566-1752.
    2. Electronic Access. You may access this Federal Register document 
electronically through the EPA Internet under the ``Federal Register'' 
listings at http://www.epa.gov/fedrgstr/.
    An electronic version of the public docket is available through 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at http://www.epa.gov/edocket/ to view public comments, 
access the index listing of the contents of the official public docket, 
and to access those documents in the public docket that are available 
electronically. Although not all docket materials may be available 
electronically, you may still access any of the publicly available 
docket materials through the docket facility identified in Unit I.B. 
Once in the system, select ``search,'' then key in the appropriate 
docket identification number.

II. Introduction

A. What Is the Statutory Authority for This Action?

    This action is taken under the Administrative Procedure Act (APA), 
5 U.S.C. secs 551-559, 701-706.

B. What Is the General Background for This Action?

    Section 313 of EPCRA requires certain facilities manufacturing, 
processing, or otherwise using listed toxic chemicals in amounts above 
reporting threshold levels, to report their environmental releases of 
such chemicals annually. These facilities must also report pollution 
prevention and recycling data for such chemicals, pursuant to section 
6607 of the Pollution Prevention Act of 1990 (PPA), 42 U.S.C. 13106.
    On May 1, 1997, EPA added metal mining and six other industry 
groups to the list of facilities subject to the reporting requirements 
of section 313 of EPCRA. 62 FR 23833. EPA added these groups in order 
to enhance the public's knowledge about the use and disposition of 
toxic chemicals in their communities.
    EPA defines ``overburden'' as ``the unconsolidated material that 
overlies a deposit of useful materials or ores.'' 40 CFR 372.3. Due to 
the Agency's understanding that overburden contained EPCRA section 313 
chemicals in negligible amounts and that reporting was unlikely to 
provide the public with information valuable enough to warrant 
reporting, EPA exempted EPCRA section 313 chemicals in overburden from 
EPCRA section 313 and PPA section 6607 reporting requirements. EPA does 
not require compliance determinations or reporting of releases or other 
waste management information for listed chemicals which exist in 
overburden removed prior to removal of waste rock or extraction of the 
target ore. The Agency's rationale in providing the overburden 
exemption, as defined above, was dependent on EPA's understanding that 
overburden contained toxic chemicals only in negligible amounts, and 
therefore was unlikely to generate any reporting. 62 FR 23859. The 
same, however, could not be determined for consolidated rock, and 
therefore EPA did not extend the exemption to this material. Id.

III. What Does This Petition Request of the Agency?

    EPA received a petition from the National Mining Association (NMA) 
on December 22, 1998, and additional information in a letter on May 7, 
1999. NMA petitioned the Agency to modify the EPCRA section 313 
definition of ``overburden'' to include both consolidated and 
unconsolidated material. Refs. 1 and 2. Currently, only unconsolidated 
material is considered as overburden under the Toxics Release Inventory 
(TRI) program, and therefore only unconsolidated material is eligible 
for the overburden exemption under EPCRA section 313.
    NMA asserts that the EPCRA section 313 definition of overburden is 
inconsistent with that of the mining industry, the body of technical 
evidence, leading technical authorities, and other federal regulatory 
definitions. Refs. 1 and 2. NMA considers overburden to include both 
the consolidated and unconsolidated material that overlies an ore 
deposit. NMA petitioned EPA to include consolidated material in 
addition to unconsolidated material in the definition of overburden 
under EPCRA section 313 and thus make consolidated material eligible 
for the overburden exemption.
    NMA cites two technical references: the American Geological 
Institute (AGI) Dictionary of Mining, Mineral, and Related Terms, Ref. 
3, and the Glossary of Selected Geologic Terms with Special Reference 
to Their Use in Engineering, Ref. 4. The AGI defines overburden as: 
overburden (a) Designates material of any nature, consolidated or 
unconsolidated, that overlies a deposit of useful materials, ores, or 
coal--esp. those deposits that are mined from the surface by open cuts. 
(Stokes, 1955) (b) Loose soil, sand, gravel, etc. that lies above the 
bedrock. Also called burden, capping cover, drift, mantle, surface. See 
also: baring; burden; top. (Stokes, 1955). Ref. 3.
    The Glossary of Selected Geologic Terms with Special Reference to 
Their Use in Engineering, by W. L Stokes and D. J. Varnes, defines 
overburden as: overburden, n. A term used by geologists and engineers 
in several different senses. By some it is used to designate material 
of any nature, consolidated or unconsolidated, that overlies a deposit 
of useful materials, ores, or coal, especially those deposits that are 
mined from the surface by open cuts. As employed by others overburden 
designates only loose soil, sand, gravel, etc., that lies above the 
bedrock. The term should not be used without specific definition. Ref. 
4.
    In addition, NMA cites two EPA definitions and four other federal 
regulatory definitions that define overburden to include both 
consolidated and unconsolidated material. The EPA's National Pollutant 
Discharge Elimination System (NPDES) (40 CFR 122.26(b)(10)) defines 
overburden as: Overburden means any material of any nature, 
consolidated or unconsolidated, that overlies a mineral deposit, 
excluding topsoil or similar naturally-occurring surface materials that 
are not disturbed by mining operations. Ref. 2.
    EPA's Office of Solid Waste (OSW) 1985 Report to Congress: Wastes 
from the Extraction and Beneficiation of Metallic Ores, Phosphate Rock, 
Asbestos, Overburden from Uranium Mining, and Oil Shale defines 
overburden as: ``consolidated or unconsolidated material overlying the 
mined area.'' Ref. 5.
    The other federal agency definitions include: the Mine Safety and 
Health Administration (MSHA), the Office of Surface Mining (OSM), the 
Bureau of Land Management (BLM), and the Bureau of Indian Affairs 
(BIA). Ref. 2.

[[Page 63062]]

IV. What Is the Regulatory Status of the Overburden Exemption?

    The regulatory definition of overburden under EPCRA section 313 is 
the unconsolidated material that overlies a deposit of useful materials 
or ores. 40 CFR 372.3. In most cases, overburden contains EPCRA section 
313 chemicals in negligible amounts and reporting is unlikely to 
provide the public with sufficient valuable information to justify 
reporting.
    In contrast, waste rock (including consolidated rock) may be acid-
generating and may contain toxic metals above negligible amounts that 
after release can be mobilized and be transported through the 
environment. EPA considers waste rock (including consolidated rock) as 
distinct from overburden for purposes of reporting under EPCRA section 
313. 62 FR 23859. In fact, EPA's definition of overburden specifically 
excludes waste rock: ``It [overburden] does not include any portion of 
the ore or waste rock.'' 40 CFR 372.3. Waste rock (including 
consolidated rock) is generally considered that portion of the ore body 
that is barren or submarginal rock or ore which has been mined but 
under normal conditions is not considered of sufficient value to 
warrant treatment. Waste rock is part of the ore body and may, 
depending upon economic conditions, become a valuable source of metal. 
Waste rock (including consolidated rock) may also be further 
distributed in commerce for other uses such as road construction. 
Although waste rock (including consolidated rock) may typically contain 
lower concentrations of metals and other constituents than the target 
ore, it often contains toxic chemicals above negligible amounts.

V. What Is EPA's Rationale for Denial?

    In adding metal mining to the list of facilities subject to the 
reporting requirements of EPCRA section 313 (62 FR 23833), EPA provided 
the overburden exemption due to the Agency's understanding that 
overburden contained EPCRA section 313 chemicals in negligible amounts 
and that reporting was unlikely to provide the public with sufficient 
valuable information to justify reporting. EPA was not able to make the 
same determination for the consolidated rock that surrounds the ore 
body or the ore body itself. Therefore, the Agency specifically defined 
overburden to only include ``unconsolidated material that overlies a 
deposit of useful materials or ores.'' 40 CFR 372.3.
    The Agency specifically did not exempt consolidated mining material 
(i.e., waste rock, including consolidated rock) due to EPA's 
understanding that consolidated rock and/or waste rock often contains 
toxic chemicals above negligible amounts. Neither the petition 
submitted by NMA nor the documents which define overburden in a broader 
manner than the TRI program contain information that would allow EPA to 
change its conclusion. Without that type of information, EPA is 
unwilling to extend an exemption to materials which contain toxic 
chemicals above negligible amounts and for which reporting is likely to 
provide the public with valuable information. EPA's determination 
relies on the legal doctrine of the de minimis non curat lex: ``the law 
does not concern itself with trifling matters,'' Alabama Power Co. v. 
Costle, 636 F.2d 323, 360 (D.C. Cir. 1979). The de minimis principle 
recognizes that most regulatory statutes permit the ``implication'' 
that an agency has the authority to craft exemptions ``when the burdens 
of regulation yield a gain of trivial or no value.'' Alabama Power, 636 
F .2d at 360-61. EPA has found no information to conclude that 
consolidated mining material contains EPCRA section 313 chemicals in 
only negligible amounts. As such, EPA limited this particular exemption 
to include overburden as defined under EPCRA section 313 (i.e., 
unconsolidated material) and did not extend it to consolidated material 
(i.e., waste rock including consolidated rock) which often contains 
EPCRA section 313 toxic chemicals above negligible amounts.
    Furthermore, after they are released, the metals that are contained 
in waste rock and consolidated rock can be mobilized and transported 
through the environment. Significant human health and environmental 
damages are caused by the management of mining wastes (i.e., extraction 
and beneficiation). Refs. 6, 7, and 8. Therefore, reporting on these 
materials will be valuable to the public.
    In addition, NMA's proposed basis for expansion of the TRI 
definition of overburden--that EPA's definition is inconsistent with 
that of the industry--is not persuasive. Both the AGI definition and 
the Stokes and Varnes definition provide similar two-part sub-
definitions that are significantly different. Although the first sub-
definition provided by AGI is consistent with NMA's assertion that 
overburden can contain both consolidated and unconsolidated material, 
the second sub-definition clearly supports EPA's understanding that 
overburden is also defined to include only loose material (e.g., 
``Loose soil, sand, gravel, etc. that lies above the bedrock.''). 
Stokes and Varnes provide a similar two-part definition by recognizing 
two equally acceptable definitions of the term overburden. Stokes and 
Varnes define overburden as (a) ``* * * material of any nature, 
consolidated or unconsolidated * * *'' and (b) ``only loose soil, sand, 
gravel, etc., that lies above bedrock.'' In addition, Stokes and Varnes 
highlight the fact that the term overburden should not be used without 
``specific definition,'' which EPA provided in the initial rule. 
Although the term overburden is used by certain government and industry 
groups to include both consolidated and unconsolidated material, EPA's 
current definition for the TRI program that overburden includes only 
unconsolidated material is clearly consistent with the leading 
technical industry references. As was noted by Stokes and Varnes, the 
term overburden can accurately be defined to include only 
unconsolidated material. It is critical, however, when using the term 
to provide specific definition.
    In addition, NMA asserts that the EPCRA section 313 definition of 
overburden is inconsistent with EPA's Office of Solid Waste (OSW) 1985 
Report to Congress, Wastes from the Extraction and Beneficiation of 
Metallic Ores, Phosphate Rock, Asbestos, Overburden from Uranium 
Mining, and Oil Shale. The 1985 Report to Congress defines overburden 
as the ``consolidated or unconsolidated material overlying the mined 
area.'' Ref. 5. From a regulatory standpoint under the Resource 
Conservation and Recovery Act (RCRA) (42 U.S.C. 6901-6992k), all 
overburden which is not returned to the pit is a component of the term 
mine waste. The 1985 Report to Congress defines mine waste as ``the 
soil or rock that mining operations generate during the process of 
gaining access to an ore or mineral body, and includes the overburden 
(consolidated or unconsolidated material overlying the mined area) from 
surface mines, underground mine development rock (rock removed while 
sinking shafts, accessing, or exploiting the ore body), and other waste 
rock, including the rock interbedded with the ore or mineral body.'' 
Ref. 5. Mine waste is a RCRA solid waste, but is exempt from regulation 
as a hazardous waste. 40 CFR 261.4(b)(7).
    The 1985 Report to Congress reflects the understanding the Agency 
had at the time on the nature and types of mining wastes. The 1985 
Report to Congress did, however, clearly point out the Agency's 
concerns that overburden and other types of mine wastes had caused

[[Page 63063]]

significant environmental damages. Since then, as a result of the 
Bevill rulemakings (54 FR 36592 September 1, 1989; 55 FR 2322, January 
23, 1990; 56 FR 27300, June 13, 1991) and the Land Disposal 
Restrictions Phase IV rulemaking (63 FR 28556, May 26, 1998), the 
Agency has significantly improved its understanding of the nature and 
types of mining wastes. The Bevill rulemakings were promulgated to 
establish a regulatory approach to identify the differences between 
extraction/beneficiation wastes from mineral processing wastes. The 
Agency's most recent assessment of the environmental risks posed by 
mining waste confirms the Agency's 1985 concerns and indicates that 
mine waste continues to cause environmental damage throughout the U.S. 
Refs. 7 and 8.
    NMA also asserts that the EPCRA section 313 definition of 
overburden is inconsistent with EPA's National Pollutant Discharge 
Elimination System (NPDES) (CFR 122.26(b)(10)) and other federal agency 
definitions, including: the Mine Safety and Health Administration 
(MSHA), the Office of Surface Mining (OSM), the Bureau of Land 
Management (BLM), and the Bureau of Indian Affairs (BIA). Ref. 2.
    Because the statutes governing these programs and the purposes of 
these programs are different from those for the TRI program, it is 
reasonable for the TRI program to define overburden differently than 
other programs. Clearly, the purpose of each of these programs (direct 
regulation) is quite different from the purposes related to the 
reporting of releases and other waste management under EPCRA section 
313 (information collection and dissemination). The TRI program was 
established by Congress under EPCRA section 313 in response to public 
demand for information on toxic chemicals being released in their 
communities. For example, in a study of 306 of the approximately 1,000 
operating hard rock mines in the U.S., EPA found that approximately 
228,145 people (including 55,374 children under the age of four) and 
89,335 households live within 1 mile of one of the 306 active mine 
sites. Ref. 9. The entire concept of the TRI program is founded on the 
belief that the public has the right to know about chemical usage and 
release in the areas in which they live, as well as the hazards that 
may be associated with these chemicals. As such, it is reasonable that 
the EPCRA section 313 program defines overburden differently than other 
federal regulatory programs.
    In the TRI Program's final facility expansion rulemaking (62 FR 
23833), EPA determined that it was important for the communities that 
surrounded mining facilities to have information on the releases and 
other waste management activities that are associated with those 
facilities. A broader interpretation of the EPCRA section 313 
definition of overburden would result in significantly less information 
being transmitted to these communities. Recognizing that the purpose of 
EPCRA section 313 is to provide information to the public, it is 
reasonable for the TRI program to have more narrowly defined the term 
overburden--and therefore the scope of the overburden exemption--in 
order to accomplish the goals of the facility expansion rulemaking, the 
TRI program, and the statute.
    In conclusion, NMA makes the argument that the EPCRA section 313 
definition of overburden is inconsistent with that of the mining 
industry, the body of technical evidence, leading technical 
authorities, and other federal regulatory definitions. As stated above, 
NMA's argument is not persuasive because the EPCRA definition of 
overburden is actually consistent with leading technical industry 
references. Neither the petition submitted by NMA nor the documents 
which define overburden in a broader manner than the TRI program 
contain information that would allow EPA to change its conclusion that 
consolidated rock and/or waste rock often contain toxic chemicals above 
negligible amounts. Without that type of information, EPA is unwilling 
to extend an exemption to materials which contain toxic chemicals above 
negligible amounts and for which reporting is likely to provide the 
public with valuable information. Therefore, EPA is denying this 
petition.

VI. What Are the References Cited in This Notice?

    1. National Mining Association. Letter entitled: EPA Response to 
NMA Queries. December 22, 1998.
    2. National Mining Association. Letter entitled: December 22, 1998, 
NMA Petition on TRI Regulatory Definition of ``Overburden.'' May 7, 
1999.
    3. American Geological Institute. Dictionary of Mining, Mineral, 
and Related Terms, 2nd Edition, American Geological Institute (1997).
    4. Stokes, W. L. and Varnes, D.J. Glossary of Selected Geologic 
Terms With Special Reference to Their Use in Engineering, Colorado 
Scientific Society Proceedings, Vol. 16, (1955).
    5. U.S. EPA. Report to Congress, Wastes from the Extraction and 
Beneficiation of Metallic Ores, Phosphate Rock, Asbestos, Overburden 
from Uranium Mining, and Oil Shale, U.S. Environmental Protection 
Agency, EPA 530-SW-85-033 (December 31, 1985).
    6. U.S. EPA/Region 10. EPA and Hard Rock Mining: A Source Book for 
Industry in the Northwest and Alaska (Draft), U.S. Environmental 
Protection Agency, EPA 910-R-99-016 (November 1999).
    7. U.S. EPA/Office of Solid Waste. Human Health and Environmental 
Damages from Mining and Mineral Processing Wastes, U.S. Environmental 
Protection Agency, Technical Background Document Supporting the Final 
Rule: Land Disposal Restrictions Phase IV: Final Rule Promulgating 
Treatment Standards for Metal Wastes and Mineral Processing Wastes; 
Mineral Processing Secondary Materials and Bevill Exclusion Issues; 
Treatment Standards for Hazardous Soils, and Exclusion of Recycled Wood 
Preserving Wastewaters, RCRA Docket No. F-98-2P4F-FFFFF (April 1998).
    8. U.S. EPA/Office of Solid Waste. Damage Cases and Environmental 
Releases from Mines and Mineral Processing Sites, U.S. Environmental 
Protection Agency, Technical Background Document Supporting the Final 
Rule: Land Disposal Restrictions Phase IV: Final Rule Promulgating 
Treatment Standards for Metal Wastes and Mineral Processing Wastes; 
Mineral Processing Secondary Materials and Bevill Exclusion Issues; 
Treatment Standards for Hazardous Soils, and Exclusion of Recycled Wood 
Preserving Wastewaters, RCRA Docket No. F-98-2P4F-FFFFF (April 1998).
    9. U.S. EPA/Office of Solid Waste. Population Studies of Mines and 
Mineral Processing Sites, U.S. Environmental Protection Agency, 
Technical Background Document Supporting the Final Rule: Land Disposal 
Restrictions Phase IV: Final Rule Promulgating Treatment Standards for 
Metal Wastes and Mineral Processing Wastes; Mineral Processing 
Secondary Materials and Bevill Exclusion Issues; Treatment Standards 
for Hazardous Soils, and Exclusion of Recycled Wood Preserving 
Wastewaters, RCRA Docket No. F-98-2P4F-FFFFF (April 1998).

VII. What Are the Regulatory Assessment Requirements for This Action?

A. Executive Order 12866

    This action does not require review by the Office of Management and 
Budget (OMB) under Executive Order 12866, entitled Regulatory Planning 
and Review (58 FR 51735, October 4, 1993),

[[Page 63064]]

because denial of an APA rulemaking petition is not a ``significant 
regulatory action'' subject to review by OMB under E.O. 12866.

B. Regulatory Flexibility Act

    Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA) 
(5 U.S.C. 601 et seq.), the Agency hereby certifies that this denial 
will not have a significant impact on a substantial number of small 
entities. This determination is based on the fact that this denial will 
not result in any adverse economic impacts on the facilities subject to 
reporting under EPCRA section 313, regardless of the size of the 
facility.

C. Paperwork Reduction Act

    This petition denial will not reduce or increase the overall 
reporting and record keeping burden estimate provided for the TRI 
program, and does not require any review or approval by OMB under the 
Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. As such, it is 
not necessary for EPA to determine the total TRI burden associated with 
this action.
    The reporting and record keeping burdens associated with TRI are 
approved by OMB under OMB No. 2070-0093 (Form R, EPA ICR No. 1363) and 
under OMB No. 2070-0145 (Form A, EPA ICR No. 1704). The current public 
reporting burden for TRI is estimated to average 52.1 hours for a Form 
R submitter and 34.6 hours for a Form A submitter. These estimates 
include the time needed for reviewing instructions, searching existing 
data sources, gathering and maintaining the data needed, and completing 
and reviewing the collection of information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control number for this 
information collection appears above. In addition, the OMB control 
number for EPA's regulations, after initial display in the final rule, 
are displayed on the collection instruments and are also listed in 40 
CFR part 9.

D. Unfunded Mandates Reform Act and Executive Orders 13084 and 13132

    Since this action involves the denial of an APA rulemaking 
petition, it does not impose any enforceable duty, contain any unfunded 
mandate, or otherwise have any effect on small governments as described 
in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). For the 
same reason, it is not subject to the requirement for prior 
consultation with Indian tribal governments as specified in Executive 
Order 13084, entitled Consultation and Coordination with Indian Tribal 
Governments (63 FR 27655, May 19,1998). Nor will this action have a 
substantial direct effect on States, on the relationship between the 
national government and the States, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 
1999).

E. Executive Order 12898

    Pursuant to Executive Order 12898, entitled Federal Actions to 
Address Environmental Justice in Minority Populations and Low-Income 
Populations (59 FR 7629, February 16, 1994), the Agency must consider 
environmental justice related issues with regard to the potential 
impacts of this action on environmental and health conditions in low-
income populations and minority populations. The Agency has determined 
that this action will not result in environmental justice related 
issues.

F. Executive Order 13045

    Pursuant to Executive Order 13045, entitled Protection of Children 
from Environmental Health Risks and Safety Risks (62 FR 19885, April 
23, 1997), if an action is economically significant under Executive 
Order 12866, the Agency must, to the extent permitted by law and 
consistent with the Agency's mission, identify and assess the 
environmental health risks and safety risks that may disproportionately 
affect children. Since this action is not economically significant 
under Executive Order 12866, this action is not subject to Executive 
Order 13045.

G. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA) (15 U.S.C. 272 note) directs EPA to use voluntary 
consensus standards in its regulatory activities unless doing so would 
be inconsistent with applicable law or impractical. Voluntary consensus 
standards are technical standards (e.g., materials specifications, test 
methods, sampling procedures, etc.) 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, nor did EPA 
consider the use of any voluntary consensus standards. In general, 
EPCRA does not prescribe technical standards to be used for threshold 
determinations or completion of EPCRA section 313 reports. EPCRA 
section 313(g)(2) states that ``In order to provide the information 
required under this section, the owner or operator of a facility may 
use readily available data (including monitoring data) collected 
pursuant to other provisions of law, or, where such data are not 
readily available, reasonable estimates of the amounts involved. 
Nothing in this section requires the monitoring or measurement of the 
quantities, concentration, or frequency of any toxic chemical released 
into the environment beyond that monitoring and measurement required 
under other provisions of law or regulation.''

List of Subjects in 40 CFR Part 372

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

    Dated: September 19, 2002.
Kimberly T. Nelson,
Assistant Administrator, Office of Environmental Information.
[FR Doc. 02-25851 Filed 10-9-02; 8:45 am]
BILLING CODE 6560-50-P