[Federal Register Volume 68, Number 173 (Monday, September 8, 2003)]
[Rules and Regulations]
[Pages 52978-52984]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-22770]
[[Page 52977]]
-----------------------------------------------------------------------
Part II
Environmental Protection Agency
-----------------------------------------------------------------------
40 CFR Part 355
Emergency Planning and Community Right-to-Know Act; Extremely Hazardous
Substances List; Modification of Threshold Planning Quantity for
Isophorone Diisocyanate; Final Rule
Federal Register / Vol. 68, No. 173 / Monday, September 8, 2003 /
Rules and Regulations
[[Page 52978]]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 355
[FRL-7554-9]
RIN 2050-AE43
Emergency Planning and Community Right-to-Know Act; Extremely
Hazardous Substances List; Modification of Threshold Planning Quantity
for Isophorone Diisocyanate
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule amends the list of extremely hazardous substances
(EHS) issued under the Emergency Planning and Community Right-to-Know
Act (EPCRA) by changing the threshold planning quantity (TPQ) for
isophorone diisocyanate (IPDI) from 100 pounds to 500 pounds.
DATES: This rule is effective October 8, 2003.
ADDRESSES: Copies of the documents relevant to this action (Docket No.
SFUND-2002-0009) are available for public inspection during normal
business hours from 8:30 a.m. to 4:30 p.m., Monday through Friday,
excluding federal holidays, at the Superfund Docket in the EPA Docket
Center (EPA/DC), EPA West, Room B102, 1301 Constitution Ave., NW.,
Washington, DC.
FOR FURTHER INFORMATION CONTACT: For general information, contact the
Emergency Planning and Community Right-to-Know Hotline at (800) 424-
9346 or (703) 412-9810, TDD (800) 553-7672, http://www.epa.gov/epaoswer/hotline/. For questions on the applicability of provisions
contained in 40 CFR part 355 or on the contents of this document,
contact: Sicy Jacob, Chemical Emergency Preparedness and Prevention
Office (5104A), Environmental Protection Agency, 1200 Pennsylvania
Avenue, NW., Washington DC 20460, Telephone: 202-564-8019; Fax: 202-
564-8233; email: [email protected].
SUPPLEMENTARY INFORMATION:
General Information
A. Affected Entities
Entities that may be affected by this action are those facilities
subject to 40 CFR part 355, Emergency Planning and Release
Notification.
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. SFUND-2002-0009. You may also refer to
Docket ID No. 300-PQ-R2 for any technical documents referenced in the
preamble to this document. The official public docket consists of the
documents specifically referenced in this action, any public comments
received, and other information related to this action. The public
docket does not include Confidential Business Information (CBI) or
other information the disclosure of which is restricted by statute. The
official public docket is the collection of materials that is available
for public viewing at the Superfund 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 Superfund Docket is (202) 566-0276.
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 submit or 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. Once in the system, select ``search,''
then key in the appropriate docket identification number.
Outline
I. Introduction and Background
A. Statutory Authority
B. Background
II. EPA's Methodology for Establishing TPQs for Liquids
III. Explanation of the Error in the October 1994 Proposed Rule
IV. Response to Comments on the October 12, 1994 Proposed Rule
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
G. Executive Order 13045: Protection of Children from
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions that Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act
I. Introduction and Background
A. Statutory Authority
This final rule is issued under sections 302 and 328 of the
Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA).
B. Background
On October 17, 1986, the President signed into law the Superfund
Amendments and Reauthorization Act of 1986 (``SARA''). Public Law 99-
499 (1986). Title III of SARA established a program designed to require
state and local planning and preparedness for spills or releases of
hazardous substances and to provide the public and local governments
with information concerning potential chemical hazards in their
communities. This program is codified as the Emergency Planning and
Community Right-to-Know Act of 1986 (EPCRA), 42 U.S.C. 11001-11050.
EPCRA required EPA to publish a list of Extremely Hazardous
Substances (EHS) and to establish threshold planning quantities for
each of these EHSs. Under EPCRA section 302, a facility which has
present an EHS in excess of its threshold planning quantity (TPQ) must
notify the State emergency response commission and local emergency
planning committee as well as participate in local emergency planning
activities.
The EHS list was established by EPA to identify chemical substances
which could cause serious irreversible health effects from accidental
releases (51 FR 13378). The EHS list and its TPQs are intended to help
communities focus on the substances and facilities of the most
immediate concern for emergency planning and response.
The TPQs are not absolute levels above which the EHS are dangerous
and below which they pose no threat at all. The TPQs provide a starting
point for identification of facilities to community response planners
so that they can determine whether or not these facilities pose a
potential problem in the event of an accidental release. EPA encourages
communities to go beyond the EHS list when evaluating the hazards of
facilities
[[Page 52979]]
in their community, in that facilities handling chemicals not on the
EHS list could be as hazardous as those handling EHSs.
1. Regulatory Background
The EHS list and their TPQs are codified in 40 CFR part 355,
appendices A & B. EPA's explanation for the methodologies used to
determine whether to list a substance as an EHS and for deriving the
TPQs is found in preambles to the Federal Register notices which
promulgated these rules and in technical support documents in the
rulemaking records. The relevant notices were published in the Federal
Register on November 17, 1986 (51 FR 41570) and April 22, 1987 (52 FR
13378).
EPA first published the EHS list and TPQs along with the
methodology for determining TPQ in the November 17, 1986 interim final
rule. In the April 22, 1987 final rule, EPA made a number of revisions.
Among other things, the April 1987 rule republished the EHS list, with
the addition of four new chemicals and revised the methodology for
determining some TPQs. EPA has since received several petitions to
amend the EHS list.
2. Summary of October 1994 Proposed Rulemaking
In the October 12, 1994 (59 FR 51816) proposed rulemaking, EPA
responded to seven petitions requesting action on substances listed as
EHSs. Among these petitions, H[uuml]ls America Inc. petitioned EPA to
delist isophorone diisocyanate (IPDI) (CAS No. 4098-71-9). EPA denied
the petition to delist IPDI because it meets the criteria for an EHSs.
However, in considering this petition, EPA noted that the TPQ had been
determined based on a mistaken assumption that IPDI is a reactive solid
at standard temperature, when in fact it is a liquid and not highly
reactive. Accordingly, using the methodology for calculating TPQs for
liquids, EPA proposed in 1994 to raise the TPQ for IPDI from 100 to
1,000 pounds, even though H[uuml]ls America did not request this change
in their petition.
As a result of EPA's action, H[uuml]ls America filed a lawsuit in
federal court challenging EPA's denial of the delisting petition for
IPDI. The Agency's decision not to delist IPDI was upheld by the United
States Court of Appeals for the District of Columbia Circuit (DC Cir.)
in H[uuml]ls America v. Browner, 83 F.3d 445 (1996). Accordingly,
today's rulemaking does not address any issues regarding whether IPDI
should be removed from the EHS list under EPCRA, but is limited solely
to the appropriateness of the TPQ for IPDI.
II. EPA's Methodology for Establishing TPQs for Liquids
The TPQs developed for EHSs are based on a ranking of the EHSs
according to their potential to become airborne and disperse and their
toxicological properties, with adjustments based on chemical reactivity
and other factors. The Immediately Dangerous to Life and Health (IDLH)
level developed by the National Institute of Occupational Safety and
Health (NIOSH), or an approximation of the IDLH based on animal
toxicity data, is used as an index of toxicity while the physical state
and volatility of the substance are used to derive an index of the
chemical's potential to become airborne and disperse. These two indices
are combined to produce an overall risk score or ``ranking factor''
defined as IDLH/V, where V is the index of potential to become airborne
and disperse. TPQs are then assigned to groups of EHSs according to
their relative ranking. The lowest rank (highest concern) is assigned
low quantities and the highest rank (lowest concern) is assigned high
quantities.
The index of potential to become airborne and disperse (V) is
derived using the physical state of the substance and a measure of its
volatility. For EHSs that are gases at ambient conditions and powdered
solids with a particle size less than 100 micron, V is assumed to have
a value of 1, indicating that in an accidental release, the chemical
could easily become airborne and disperse. Solids in non-powdered form
are assigned the highest TPQ meaning that chemicals in this physical
state are not likely to become airborne and disperse.
For liquid EHSs, V is derived from the rate of volatilization
expected from a spill of the liquid at its boiling point. The rate of
volatilization is driven by the molecular weight of the substance and
its boiling point temperature as in the following equation:
V = 1.6M0.67/(T + 273)
where M is the molecular weight of the substance and T is the boiling
temperature ([deg]C). Note that for liquids with low boiling points
(volatile liquids), V will approach 1 (more like a gas), while high
boiling liquids have a V much less than 1.
The Agency could have evaluated the rate of volatilization from a
spill of the liquid at ambient conditions rather than at the liquid's
boiling point. Typically, to calculate the rate of volatilization of a
liquid at ambient conditions, an ambient temperature must be chosen and
the liquid's vapor pressure at that ambient temperature must be known.
Chemical reference books often publish the vapor pressure for many
common substances at 20 or 25 [deg]C. However, some of the liquids on
the EHS list either have a vapor pressure at a different temperature or
they have no published vapor pressure. The Agency could have estimated
or calculated vapor pressures for these substances but the accuracy of
such estimates or calculations could be questioned. A more critical
question is the choice of an appropriate ambient temperature. Ambient
temperatures vary widely across the United States and an accidental
release scenario could involve heat from, for example, a loss of
reactor cooling or from a fire. The choice of an appropriate ambient
temperature would be influenced by site-specific or release scenario
specific factors. Since the Agency needed to apply a methodology
uniformly to all liquid EHSs rather than chemical-by-chemical or site-
by-site, the Agency therefore chose to evaluate the rate of
volatilization using the substance's boiling point. All of the liquids
on the EHS list have a published boiling point.
As noted above, once V is determined, the ``ranking factor'' is
calculated from IDLH/V. If an IDLH value is not available, as is the
case for most of the EHSs, EPA uses an IDLH equivalent value estimated
from acute animal toxicity data. Data such as the lowest lethal
airborne concentration (LCLO), lethal airborne concentration
for 50% of the test animals (LC50), lowest lethal dose
(LDLO), or lethal dose for 50% of the test animals
(LD50) are used. NIOSH has indicated that the IDLH is most
similar to the LCLO; the other toxicity data needs to be
adjusted and converted to an airborne dose comparable to an IDLH as
follows: (1) Estimated IDLH = LC50 x 0.1; (2) estimated IDLH
= LD50 x 0.01; and (3) estimated IDLH = LDLO x
0.1.
So, for each liquid, gas, and solid on the EHS list, EPA calculates
the ranking factor as described above. Once all the chemicals are
ranked, they are grouped by orders of magnitude of ranking factor and
threshold quantities are assigned to these groups. The table below
shows the ranking factor and the threshold quantities assigned to them.
(Source: Threshold Planning Quantities Technical Support Document,
April 7, 1987).
[[Page 52980]]
------------------------------------------------------------------------
Threshold
Ranking factor quantity (lb)
------------------------------------------------------------------------
< 1 x 10-3............................................ 1
=10-3 to <10-2............................. 10
=10-2 to <10-1............................. 100
=10-1 to <1................................ 500
=1 to <10.................................. 1,000 a
=10........................................ 10,000
------------------------------------------------------------------------
Since there was no IDLH value available for IPDI at the time the
EHS list was developed (and there still is not one), EPA estimates the
IDLH equivalent for IPDI by multiplying its LC50 of 0.12 mg/
l over a 4-hour exposure period by 0.1. This results in an IDLH value
of 0.012 mg/l. To calculate V, EPA uses the boiling point for IPDI of
350 degrees Centigrade and a molecular weight of 222 g/mole in the
above equation to obtain 0.096. Then the index value is derived by
dividing the level of concern (0.012) by the V factor (0.096) to obtain
0.13. Using the ranking factor value for IPDI, of 0.13, and the table
above, the TPQ value should be 500 pounds.
III. Explanation of the Error in the October 1994 Proposed Rule
As part of the Agency's review of the petition to delist IPDI from
the EHS list, EPA discovered that IPDI was mistakenly listed as a
reactive solid, as opposed to a liquid. As a result, EPA recalculated
IPDI's ranking factor using the equation listed in the previous section
of this preamble and proposed in October 1994, to raise the TPQ from
100 to 1,000 pounds.
During the process of finalizing the rule, EPA reviewed all
documents and memos related to the October 1994 proposed rule. During
the review, EPA discovered that an error was made in reading the table
of ranking factors and the corresponding threshold quantities. To be
certain, EPA again reviewed IPDI's physical/chemical properties and re-
calculated the ranking factor. The IDLH, V factor, and ranking factor
were calculated correctly in the 1994 proposed rule, however, the
Agency incorrectly identified the TPQ for IPDI; the proposal should
have stated 500 pounds instead of 1,000 pounds. EPA is now finalizing
the TPQ for IPDI to the correct value of 500 pounds.
On February 27, 2002, EPA sent a letter to Degussa Corporation
(successor to ``H[uuml]ls America, Inc.'') informing them of the error
and provided them an additional opportunity to submit comments. The
letter explained the error made in the 1994 proposal and discussed the
correct TPQ value. Degussa stated that they do not have any additional
comments other than those submitted in response to the 1994 proposal.
Accordingly, below, EPA responds to those comments filed by Huls
America in 1994.
IV. Response to Comments on the October 12, 1994 Proposed Rule
EPA received comments only from Huls America. While Huls America
disagreed with EPA's decision to deny the petition to delete IPDI from
the EHS list, the company acknowledged that the issue would be
addressed in the litigation. Since the listing of the IPDI has been
upheld by the court, this notice will not deal with that issue.
With respect to the TPQ for IPDI, Huls America argues that the
highest TPQ category of 10,000 pounds should be assigned. This is
because IPDI is non-volatile and is toxic only at levels well above its
saturated vapor concentration. Because EPA has not considered relative
vapor pressure in calculating TPQs for such non-volatile compounds, the
TPQs bear no relationship to the very low potential for compounds to
disperse beyond a facility boundary. Therefore, IPDI, which has a very
low vapor pressure is unlikely to present any risk at the fenceline in
the event of a release. The commenter also disagreed with EPA's TPQ
methodology, particularly with respect to EPA's assumption that
dispersion is relatively similar from chemical to chemical. The
commenter stated that the aerosol acute toxicity data do not support
the need to set the TPQ for IPDI below 10,000 pounds. In fact, Huls
argues that because IPDI's toxicity was determined using an aerosol
form of the chemical, the dispersability of IPDI for calculating the
TPQ should be based on the aerosol form rather than on liquid
volatility. The commenter also stated that IPDI is manufactured and
processed in closed vessels which are not under pressure. So, there is
less likelihood that accidents may occur.
EPA disagrees with Huls' assertion that it did not consider
relative vapor pressure and that the TPQs for non-volatile compounds
such as IPDI bear no relationship to the very low potential for these
compounds to disperse beyond a facility boundary as a result of a spill
or release. In general, non-volatile liquid chemicals have relatively
low vapor pressure and relatively high boiling points. These substances
are not as likely as volatile liquids to disperse beyond a facility
boundary. As described above, EPA uses the liquid boiling point to
calculate a V factor which is used as a relative measure of the ability
of the substance to become airborne and disperse downwind. Non-volatile
substances with high boiling points will give a small V factor which
generates a larger ranking factor than volatile substances with a large
V factor. The V factor is likely to be the same using either the
substance's boiling point or ambient vapor pressure. The larger the
ranking factor, the greater the TPQ. Therefore, a large TPQ would
reflect a relative inability of a substance to travel off-site.
EPA believes that boiling point is a reflection of relative vapor
pressure since non-volatile liquids have a low vapor pressure and a
correspondingly high boiling point while volatile liquids have a high
vapor pressure and a correspondingly low boiling point. Of the 183
liquid chemicals on the EHS list, only 18 chemicals have less than or
the same vapor pressure as IPDI, and only 17 chemicals have higher or
the same boiling point as IPDI. Therefore, when compared to the other
chemicals on the EHS list, the ability of IPDI to disperse is
relatively the same when considering either vapor pressure (as the
petitioner requests) or boiling point (as the methodology now
considers). For this reason, changing the methodology from boiling
point to vapor pressure will not likely have a significant impact on
IPDI's rank in comparison to other chemicals and consequently, its TPQ.
While both of these factors demonstrate that IPDI under standard
temperatures and pressures is less likely to disperse (relative to the
other liquids on the EHS list), its TPQ is based on its boiling point
and its acute toxicity (not by boiling point or toxicity alone) like
other listed liquids.
EPA also disagrees that its TPQ methodology is improper,
particularly with respect to the assumption that dispersion is
relatively similar from chemical to chemical. EPA recognizes that once
airborne, fine powders, aerosols, mists, or dense or lighter than air
vapor clouds or gases may disperse differently from one another,
depending on the density and concentration of the substance in the air,
the air temperature, humidity, and other chemical- and dispersion-
specific factors. A rigorous analysis of the unique dispersion
characteristics could be conducted for each listed EHS substance.
However, such an analysis is highly influenced by site-specific factors
such as meteorology, terrain, and the accidental release scenario.
Since the Agency does not have site-specific data for all sites
potentially handling the EHS substances and a methodology for
determination of the TPQ needs to be uniformly applied, the Agency
assumed, that for purposes of a relative ranking, that the airborne
dispersion of particles and vapors will likely be similar across the
range of
[[Page 52981]]
listed gases, liquids and solids that become airborne.
EPA also notes that it does not use only dispersion potential or
only toxicity to determine the TPQ. Instead, the method that EPA chose
to establish TPQs for substances on the EHS list uses a combination of
the toxicity of the chemical and the potential for these compounds to
disperse beyond the facility boundary. Further, EPA did not assign TPQs
based on any particular accident scenario or any specific handling
situation. Instead, EPA chose to rank the chemicals against each other
to get a relative idea of the potential accidental release significance
or hazard associated with that chemical; a chemical with a ``low'' rank
is more hazardous than one with a ``high'' rank (``hazard'' being a
combination of toxicity and dispersion potential). EPA chose not to
rank only by toxicity because a highly toxic chemical such as IPDI (a
non-volatile substance) would be assigned a very low TPQ while a
slightly less toxic but volatile substance would be assigned a greater
TPQ.
H[uuml]ls also argues that because IPDI's toxicity was determined
using an aerosol form of the chemical, the dispersion factor portion of
the TPQ should consider the aerosol form rather than liquid
volatilization based on boiling point. The Agency disagrees with this
comment. Substances were added to the EHS list if dermal, oral, or
inhalation toxicity test results meet certain toxicity criteria. While
it is likely that toxic gases are listed because of inhalation
toxicity, liquids and solids could be listed not only because of
inhalation toxicity but also dermal or oral toxicity. In an accidental
release scenario, hazardous chemicals could be dispersed in many ways
generating human exposure, potentially via all three pathways (e.g. via
inhalation, oral or dermal exposure). Consequently, for purposes of
determining the TPQ, the Agency chose to focus on the substance's
physical state to determine the likely route of exposure that might
result from an accidental release rather than the state of the
substance used for toxicity testing. In other words, gases and liquids
would become airborne due to volatilization while solids become
airborne due to the force of an event such as an explosion. Certainly,
liquids could become airborne as a result of an explosion generating an
exposure not only to vapor but to aerosols that would be generated by
the force of that explosion. If the Agency had used this approach to
determine dispersability, all liquid substances would essentially have
the same dispersion potential and would be ranked by their toxicity. In
this case, the TPQ for IPDI would end up being very low due to its high
acute toxicity level in comparison to other liquids. EPA notes that
H[uuml]ls' comment does not suggest a way to determine a relative
ranking using an aerosol form, but simply argues that there is no basis
for a TPQ of anything less than the maximum of 10,000 pounds. In fact,
there is no basis for a TPQ of 10,000 pounds while there is ample
toxicity data to suggest a much lower TPQ.
EPA acknowledges that releases of IPDI, and any other chemical on
the EHS list, will not always result in an off-site consequence.
However, since the requirement under EPCRA section 302 is for
facilities to be included in the local preparedness efforts, the level
of effort necessary for the facility to comply with section 302 is up
to local planners. It is not possible for EPA to determine how all of
the chemicals on the EHS list will behave during all potential
processing and accidental release scenarios (including the chemical
being involved in a building fire or explosion). EPA agrees that test
data may be obtained by exposing the chemical to extreme conditions,
however, these results would demonstrate that IPDI can be toxic under
certain circumstances at relatively low concentration levels. TPQs
including that for IPDI, are set based on toxicity and ability to
disperse, relative to the other chemicals on the EHS list. While EPA
takes toxicity and the chemical's ability to be dispersed into account
in determining the TPQ, EPA believes the actual threat of off-site
consequences posed by the actual processing conditions at the facility
is best determined at the local level. If it is extremely unlikely that
chemicals at a specific facility could cause off-site impacts, the
local community may request little effort from the facility. Site
specific factors (including whether the chemical is processed under
high pressures and temperatures) can be discussed at this level.
The petitioner has also argued that since IPDI is manufactured and
processed in closed vessels which are not under pressure, there is
virtually no likelihood that it would disperse beyond the site of
release. EPA disagrees. Even if H[uuml]ls' America does manufacture or
process in closed vessels which are not under pressure, there may be
some end users of this chemical that may use it for other manufacturing
processes which may be at high pressure or temperature or the closed
vessels could be exposed to fire. EPA is not saying that the TPQ that
is now being set for IPDI (500 pounds) or any quantity for that matter,
will definitely travel off-site and cause major consequences. As EPA
stated in the April 1987 final rule and the technical support documents
supporting that rule, TPQs are for reporting purposes only, in other
words, to provide information to local planning committees to focus
their emergency planning and response efforts.
It is important to note that the Agency considered other methods
for the development of the threshold planning quantities. After
considerable analysis and review of public comments on the proposed
rule, the Agency chose to develop the TPQs using a relative ranking
method that considers the toxicity and the chemical's ability to become
airborne. The other methods had more limitations than this approach.
The first method considered involved predicting a specific quantity for
each chemical that, if accidentally released, would result in
significant acute health effects at a fixed distance from the release
site. However, this approach is affected greatly by site-specific
factors, such as the potential release scenario, weather and dispersion
conditions, and processing conditions. Therefore, the Agency decided
not to adopt this approach. Another method that the Agency considered
was to assign categories of threshold planning quantities to groups of
chemicals ranked by their toxicity. As noted above, those chemicals
that are highly toxic (such as IPDI) and relatively non-volatile could
be assigned a very low TPQ while a slightly less toxic but volatile
substance would be assigned a greater TPQ. Since this does not seem
appropriate from an emergency planning and preparedness perspective,
the Agency rejected this approach. One last method considered was to
assign a default quantity of 2 pounds for each EHS. If the Agency did
not take any action to assign a TPQ for an EHS, the statutory threshold
of 2 pounds would have been effective. Of these four methods, the
Agency believes that the relative ranking method using the toxicity of
the chemical, its molecular weight and boiling point to rank and assign
a threshold planning quantity, was the most appropriate. For a more
detailed explanation of each of these methods, see the November 17,
1986 interim final rule, the April 22, 1987 final rule, and the
technical support documents.
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency
[[Page 52982]]
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.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review. This action affects only one
chemical and in fact, reduces the burden on those facilities that
handle IPDI in small quantities.
B. Paperwork Reduction Act
This action does not impose any new information collection burden.
This final rule will relieve burden for some facilities that handle
IPDI in small quantities. Currently, the threshold planning quantity
for IPDI is 100 pounds. It is now being raised to 500 pounds.
Therefore, we conclude that this action does not impose any new
information collection burden, rather, it will relieve some burden.
This rule will not provide a significant amount of burden
reduction, however, the Office of Management and Budget (OMB) has
previously approved the information collection requirements contained
in the existing regulations 40 CFR Part 355 under the provisions of the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB
control number 2050-0092, (EPA ICR No. 1395.05). Copies of the ICR
document(s) may be obtained from Susan Auby, by mail at U.S.
Environmental Protection Agency, Collection Strategies Division (Mail
Code 2822T), 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001, by
email at [email protected], or by calling (202) 566-1672. A copy may
also be downloaded off the internet at http://www.epa.gov/icr. Include
the ICR and /or OMB number in any correspondence.
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 Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C.
601 et. seq, generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small
entities, a small entity is defined as: (1) A small business that is
defined by the Small Business Administration by category of business
using North American Industrial Classification System (NAICS) and
codified at 13 CFR 121.201; (2) a small governmental jurisdiction that
is a government of a city, county, town, school district or special
district with a population of less than 50,000; and (3) a small
organization that is any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.
After considering the economic impacts of today's action on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This action
will relieve some small entities handling IDPI in small quantities.
In determining whether a rule has a significant economic impact on
a substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the proposed rule on small entities.'' 5 U.S.C. 603
and 604. Thus, an agency may certify that a rule will not have a
significant economic impact on a substantial number of small entities
if the rule relieves regulatory burden, or otherwise has a positive
economic effect on all of the small entities subject to the rule. The
revised threshold for IDPI, which will raise it from 100 pounds to 500
pounds, may relieve many small entities that handle this chemical in
small amounts from the reporting requirement. We have therefore
concluded that this rule will relieve regulatory burden for affected
small entities.
D. 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
[[Page 52983]]
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.
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. This rule will provide burden relief, and
doesn't impose additional costs to State, local, or tribal governments,
or to the private sector. Thus, today's rule is not subject to the
requirements of sections 202 and 205 of the UMRA.
EPA also has determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. The rule will provide burden relief to regulated entities.
E. Executive Order 13132: Federalism
Executive Order 13132, ``Federalism'' (64 FR 43255, August 10,
1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by state and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the 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.''
This final rule does not have federalism implications. It will not
have substantial direct effects on the 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. This rule does not impose a
substantial economic burden on state and local governments, nor would
it restrict state and local governments from establishing other more
stringent, regulations. Thus, Executive Order 13132 does not apply to
this rule.
The purpose of this rule is to correct the TPQ for IPDI based on
EPA's existing methodology. This rule relieves some burden on the local
governments in preparing emergency response plans since fewer
facilities may be now subject to reporting this chemical. This action
does not prevent any state governments from enforcing more stringent
standards for this chemical.
F. Executive Order 13175: Consultation and Coordination with Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop ``an accountable process to ensure meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
This final rule does not have tribal implications. It will not have
substantial direct effect on tribal governments, on the relationship
between the Federal government and Indian tribes, or on the
distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
Thus, Executive Order 13175 does not apply to this rule.
The purpose of this rule is to correct the TPQ for IPDI based on
EPA's existing methodology. This rule relieves some burden on tribal
governments in preparing emergency response plans since fewer
facilities may be now subject to reporting this chemical. This action
does not prevent tribal governments from enforcing more stringent
standards for this chemical.
G. Executive Order 13045: Protection of Children From Environmental
Health & Safety Risks
The Executive Order 13045, entitled ``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 Executive Order 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. This
final rule is not subject to Executive Order 13045 because (a) it is
not an economically significant regulatory action as defined by
Executive Order 12866 and (b) the environmental health or safety risks
addressed by this action do not have a disproportionate effect on
children.
EPA is not modifying its methodology for establishing threshold
planning quantities. The Agency is correcting the TPQ for IPDI based on
its existing methodology. Therefore, this action does not have a
disproportionate effect on children. As previously described, the TPQ
drives a reporting requirement; such reporting provides chemical hazard
information for emergency preparedness and planning. Raising the TPQ
for IPDI may result in less overall reporting information for IPDI.
However, in the context of all information collected, IPDI information
will be properly scaled to other hazards that may be present in a
community allowing a community to properly focus its emergency
preparedness and planning efforts as needed. Therefore, this action
does not have a disproportionate effect on children.
H. Executive Order 13211 (Energy Effects)
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a
significant regulatory action under Executive Order 12866.
I. National Technology Transfer Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 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, business practices, etc.) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA requires EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
This final rule does not involve technical standards. EPA is
establishing the correct TPQ for IPDI using existing methodologies.
Therefore, EPA is not considering the use of any voluntary consensus
standards.
[[Page 52984]]
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 requires that each Federal agency make
achieving environmental justice part of its mission by identifying and
addressing, as appropriate, disproportionately high and adverse human
health or environmental effects of its programs, policies, and
activities on minorities and low-income populations. In today's action,
the Agency is correcting the TPQ for IPDI based on its existing
methodology, thereby providing burden relief to those facilities that
handle IPDI in small quantities. EPA is not changing its methodology
for establishing threshold planning quantities. Any local effects must
be considered on a case-by-case basis at local communities. State and
local officials will continue to get information on this chemical from
facilities, but can better focus on chemicals that are more hazardous.
Therefore, this particular action will not have any impact on any
minority or low-income populations.
K. 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. A Major rule cannot
take effect until 60 days after it is published 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 October 8, 2003.
List of Subjects in 40 CFR Part 355
Environmental Protection, Air pollution control, Chemicals,
Hazardous substances, Reporting and recordkeeping requirements,
Superfund.
Dated: September 2, 2003.
Marianne Lamont Horinko,
Acting Administrator.
0
For the reasons set out in the preamble, part 355 of title 40 of the
Code of Federal Regulations is amended as follows:
PART 355--EMERGENCY PLANNING AND NOTIFICATION
0
1. The authority citation for part 355 continues to read as follows:
Authority: 42 U.S.C. 11002, 11004, and 11048.
Appendix A--[Amended]
0
2. In Appendix A the table is amended by revising the entry for CAS No.
``4098-71-9'' (chemical name--Isophorone Diisocyanate) to read as
follows:
Appendix A to Part 355--The List of Extremely Hazardous Substances and Their Threshold Planning Quantities
[Alphabetical Order]
----------------------------------------------------------------------------------------------------------------
Reportable Threshold
CAS No. Chemical name Notes quantity* planning quantity
(pounds) (pounds)
----------------------------------------------------------------------------------------------------------------
* * * * * * *
4098-71-9........................... Isophorone ............ 100 500
Diisocyanate..
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Appendix B--[Amended]0
3. In Appendix B the table is amended by revising the entry for CAS No.
``4098--71-9'' (chemical name--isophorone diisocyanate) to read as
follows:
Appendix B to Part 355--The List of Extremely Hazardous Substances and Their Threshold Planning Quantities
[CAS No. Order]
----------------------------------------------------------------------------------------------------------------
Reportable Threshold
CAS No. Chemical name Notes quantity* planning quantity
(pounds) (pounds)
----------------------------------------------------------------------------------------------------------------
* * * * * * *
4098-71-9........................... Isophorone ............ 100 500
Diisocyanate..
* * * * * * *
----------------------------------------------------------------------------------------------------------------
[FR Doc. 03-22770 Filed 9-5-03; 8:45 am]
BILLING CODE 6560-50-U