[Federal Register Volume 70, Number 125 (Thursday, June 30, 2005)]
[Rules and Regulations]
[Pages 37698-37700]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-12928]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 372

[TRI-2005-0027; FRL-7532-5]


Deletion of Methyl Ethyl Ketone; Toxic Chemical Release 
Reporting; Community Right-to-Know

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is today amending its regulations to delete methyl ethyl 
ketone (MEK) from the list of chemicals subject to reporting 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). This action is being taken to comply with a DC Circuit 
decision and order

[[Page 37699]]

requiring the Agency to delete MEK. Because this action is being taken 
to conform the regulations to the court's order, notice and comment are 
unnecessary, and this rule is effective immediately. Upon promulgation 
of this rule, facilities will no longer be required under EPCRA section 
313 to report releases of and other waste management information on 
MEK, including those that occurred during the 2004 reporting year.

DATES: This final rule is effective on June 30, 2005.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. TRI-2005-0027. All documents in the docket are listed in the 
EDOCKET index at http://www.epa.gov/edocket. Although listed in the 
index, some information is not publicly available, i.e., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, is not placed on the Internet 
and will be publicly available only in hard copy form. Publicly 
available docket materials are available either electronically in 
EDOCKET or in hard copy at the OEI Docket, EPA/DC, EPA West, Room B102, 
1301 Constitution Ave., NW., Washington, DC. The 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 Public Reading Room is 
202-566-1744, and the telephone number for the OEI Docket is 202-566-
1752.

FOR FURTHER INFORMATION CONTACT: Daniel R. Bushman, Toxics Release 
Inventory Program Division, Office of Information Analysis and Access 
(2844T), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460; telephone number: 202-566-0743; fax number: 202-
566-0741; e-mail: [email protected], for specific 
information on this proposed rule, or for more information on EPCRA 
section 313, the Emergency Planning and Community Right-to-Know 
Hotline, Environmental Protection Agency, Mail Code 5101, 1200 
Pennsylvania Ave., NW., Washington, DC 20460, Toll free: 1-800-424-
9346, in Virginia and Alaska: 703-412-9810 or Toll free TDD: 1-800-553-
7672.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Final Rule Apply to Me?

    You may be potentially affected by this proposed rule if you 
manufacture, process, or otherwise use methyl ethyl ketone. Potentially 
affected categories and entities may include, but are not limited to:

------------------------------------------------------------------------
                                               Examples of potentially
                 Category                         affected entities
------------------------------------------------------------------------
Industry..................................  SIC major group codes 10
                                             (except 1011, 1081, and
                                             1094); 12 (except 1241); or
                                             20 through 39; or industry
                                             codes 4911 (limited to
                                             facilities that combust
                                             coal and/or oil for the
                                             purpose of generating power
                                             for distribution in
                                             commerce); or 4931 (limited
                                             to facilities that combust
                                             coal and/or oil for the
                                             purpose of generating power
                                             for distribution in
                                             commerce); or 4939 (limited
                                             to facilities that combust
                                             coal and/or oil for the
                                             purpose of generating power
                                             for distribution in
                                             commerce); or 4953 (limited
                                             to facilities regulated
                                             under the Resource
                                             Conservation and Recovery
                                             Act, subtitle C, 42 U.S.C.
                                             section 6921 et seq.); or
                                             5169; or 5171; or 7389
                                             (limited to facilities
                                             primarily engaged in
                                             solvent recovery services
                                             on a contract or fee
                                             basis).
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. 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.

II. Background and Rationale for Action

    In the Federal Register of March 30, 1998 (63 FR 15195), EPA issued 
a Denial of Petition entitled ``Methyl Ethyl Ketone; Toxic Chemical 
Release Reporting; Community Right-to-Know.'' The denial was in 
response to a petition from the Ketones Panel of the Chemical 
Manufacturers Association (CMA) that requested the deletion of methyl 
ethyl ketone from the list of chemicals reportable under EPCRA section 
313 and PPA section 6607.
    The American Chemistry Council (formerly CMA) filed suit 
challenging EPA's decision in the United States District Court for the 
District of Columbia. Subsequently, the court granted summary judgment 
in favor of EPA. See American Chemistry Council v. Whitman, 309 F.Supp. 
2d 111 (D.D.C. 2004). On appeal, the Court of Appeals for the District 
of Columbia Circuit reversed the lower court's decision, vacating the 
lower court's decision, and directing the district court to issue an 
order to ``direct EPA to delete MEK from the TRI.'' 406 F.3d 738, 742 
(D.C. Cir. 2005). The Circuit Court issued its mandate on June 13, 2005 
(Ref. 1).
    Accordingly, EPA is issuing this final rule revising the EPCRA 
section 313 list of reportable chemicals in 40 CFR 372.65 to delete 
methyl ethyl ketone. Under 5 U.S.C. 553(b)(3)(A), the notice-and-
comment requirements of the Federal Administrative Procedure Act (5 
U.S.C. 551-706) do not apply where the Agency ``for good cause finds . 
. . that notice and public procedure thereon are impracticable, 
unnecessary, or contrary to the public interest.'' Because this action 
is being taken merely to comply with the court's direction and because 
the court's order left EPA no discretion in implementing that order EPA 
hereby finds that notice and comment on this action are unnecessary.
    This action is effective immediately upon publication in the 
Federal Register. Under 5 U.S.C. 553(d)(3), 30-day advance notice of a 
rule is not required where the Agency provides otherwise for good 
cause. EPA finds that good cause for an immediate effective date exists 
in this case, because as explained below, there would be no purpose in 
requiring facilities to file reports for a chemical that does not 
satisfy any of the criteria of EPCRA section 313(d)(2)(A)-(C).
    This action becomes effective June 30, 2005. Since the court order 
removing MEK from the TRI was issued before July 1, 2005 the last year 
in which facilities had to file a TRI report for MEK was 2004, covering 
releases and other activities that occurred in 2003. EPCRA section 
313(d)(4) provides that ``[a]ny revision'' to the section 313 list of 
toxic chemicals shall take effect on a delayed basis. EPA interprets 
this delayed effective date provision to apply only to actions that add 
chemicals to the section 313 list. For deletions, EPA may, in its 
discretion, make such actions immediately effective. An immediate 
effective date is authorized,

[[Page 37700]]

in these circumstances, under 5 U.S.C. 553(d)(1) because a deletion 
from the section 313 list relieves a regulatory restriction. EPA 
believes that where a chemical does not satisfy any of the criteria of 
section 313(d)(2)(A)(C), no purpose is served by requiring facilities 
to collect data or file TRI reports for that chemical, or, therefore, 
by leaving that chemical on the section 313 list for any additional 
period of time. This construction of section 313(d)(4) is consistent 
with previous rules deleting chemicals from the section 313 list. For 
further discussion of the rationale for immediate effective dates for 
EPCRA section 313 delistings, see 59 FR 33205 (June 28, 1994).

III. References

    1. American Chemistry Council v. Johnson, No. 04-5189, (DC Cir. 
June 13, 2005).

IV. Statutory and Executive Order Reviews

    This rule is not a significant regulatory action, as defined under 
EO 12866, and therefore 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), or 
Executive Order 13045, entitled Protection of Children from 
Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 
1997). It also does not meet the requirements for review under Title II 
of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4), 
Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 
1999), Executive Order 13175, entitled Consultation and Coordination 
With Indian Tribal Governments (65 FR 67249, November 9, 2000), 
Executive Order 13211, entitled Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, 
May 22, 2001), or Executive Order 12898, entitled Federal Actions to 
Address Environmental Justice in Minority Populations and Low-Income 
Populations (59 FR 7629, February 16, 1994). In addition, this rule 
does not impose any impact on small entities and thus does not require 
preparation of a regulatory flexibility analysis under the Regulatory 
Flexibility Act (RFA) (5 U.S.C. 601 et seq.).
    The deletion of methyl ethyl ketone from the EPCRA section 313 list 
will reduce the overall reporting and recordkeeping burden estimate 
provided for EPCRA section 313, but this action does not require any 
review or approval by OMB under the Paperwork Reduction Act (PRA), 44 
U.S.C. 3501 et seq. until EPA decides to subtract the total burden 
eliminated by today's action from the EPCRA section 313 overall burden 
approved by OMB. At some point in the future, EPA will determine the 
total EPCRA section 313 burden associated with the deletion of methyl 
ethyl ketone, and will complete the required Information Collection 
Worksheet to adjust the total EPCRA section 313 estimate. The reporting 
and recordkeeping burdens associated with EPCRA section 313 are 
approved by OMB under OMB No. 2070-0093 (EPCRA section 313 base program 
and Form R, EPA ICR No. 1363) and under OMB No. 2070-0145 (Form A, EPA 
ICR No. 1704). The current public reporting burden for EPCRA section 
313 is estimated to be 34.2 hours for a Form R submitter and 20.6 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. For reporting year 2003 there were 1,515 
Form Rs submitted for methyl ethyl ketone and 108 Form As submitted.
    Pursuant to the Congressional Review Act, 5 U.S.C. 801 et seq., as 
added by the Small Business Regulatory Enforcement Fairness Act of 
1996, 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. However, section 808 of that Act 
provides that any rule for which the issuing agency for good cause 
finds (and incorporates the finding and a brief statement of reasons 
therefore in the rule) that notice and public procedure thereon are 
impracticable, unnecessary, or contrary to the public interest, shall 
take effect at such time as the agency promulgating the rule determines 
(5 U.S.C. 808(2)). As stated previously, EPA has made such a good cause 
finding, including the reasons therefore, and established an effective 
date of June 30, 2005. This rule is not a ``major rule'' as defined by 
5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 372

    Environmental protection, Intergovernmental relations, Reporting 
and recordkeeping requirements.

    Dated: June 24, 2005.
Stephen L. Johnson,
Administrator.

0
Therefore, 40 CFR part 372 is amended to read as follows:
0
1. The authority citation for part 372 continues to read as follows:

    Authority: 42 U.S.C. 11013 and 11028.


Sec.  372.65  [Amended]

0
2. Section 372.65 is amended by removing the entry for methyl ethyl 
ketone under paragraph (a), and removing the entire CAS No. entry for 
78-93-3 under paragraph (b).

[FR Doc. 05-12928 Filed 6-29-05; 8:45 am]
BILLING CODE 6560-50-P