[Federal Register Volume 76, Number 152 (Monday, August 8, 2011)]
[Proposed Rules]
[Pages 48093-48101]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-19900]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 370

[EPA-HQ-SFUND-2010-0763; FRL-9448-8]
RIN 2050-AG64


Hazardous Chemical Reporting: Revisions to the Emergency and 
Hazardous Chemical Inventory Forms (Tier I and Tier II)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The U.S Environmental Protection Agency (EPA or the Agency) is 
proposing to revise the Emergency and Hazardous Chemical Inventory 
Forms (Tier I and Tier II) under Section 312 of the Emergency Planning 
and Community Right-to-Know Act (EPCRA) to add new data elements and 
revise some existing data elements.

DATES: Comments must be received on or before October 7, 2011.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
SFUND-2010-0763 by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: [email protected].
     Fax: (202) 566-0224.
     Mail: EPA Docket Center, Superfund Docket, Environmental 
Protection Agency, Mailcode: 2822T, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460. In addition, please mail a copy of your comments 
on the information collection provisions to the Office of Information 
and Regulatory Affairs, Office of Management and Budget (OMB), Attn: 
Desk Officer for EPA, 725 17th St., NW., Washington, DC 20503.
     Hand Delivery: Environmental Protection Agency West 
Building, Room 3334, 1301 Constitution Avenue, NW., Washington, DC 
20004. Such deliveries are only accepted during the Docket's normal 
hours of operation, and special arrangements should be made for 
deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-SFUND-
2010-0763. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Superfund Docket, 
EPA/DC, EPA West Building, Room 3334, 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 Superfund Docket is (202) 566-0276.

FOR FURTHER INFORMATION CONTACT: Sicy Jacob, Office of Emergency 
Management, Mailcode 5104A, Environmental Protection Agency, 1200 
Pennsylvania Avenue, NW., Washington DC 20004; telephone number: (202) 
564-8019; fax number: (202) 564-2620; e-mail address: 
[email protected]. You may also contact the Superfund, TRI, EPCRA, RMP 
and Oil Information Center at (800) 424-9346 or (703) 412-9810 (in the 
Washington, DC, metropolitan area). You may wish to visit the Office of 
Emergency Management (OEM) Internet site at http://www.epa.gov/emergencies.

SUPPLEMENTARY INFORMATION: Here are the contents of today's preamble.

I. General Information
    A. Who is affected by this proposed rule?
    B. What should I consider as I prepare my comments for EPA?
    C. What is the statutory authority for this proposed rule?
    D. What is the background of this proposed rule?
II. What are the revisions that EPA is proposing on the Tier I and 
Tier II forms?
    A. Facility Identification
    B. Name of the Facility's Parent Company and Owner or Operator 
of the Facility
    C. Facility Emergency Coordinator

[[Page 48094]]

    D. Tier I and Tier II Information Contacts
    E. Subject to Emergency Planning Notification Under Section 302 
of EPCRA
    F. Subject to Chemical Accident Prevention Under Section 112(r) 
of the Clean Air Act (40 CFR part 68, Risk Management Program)
    G. Range Codes and Ranges for Reporting Maximum Amount and 
Average Daily Amount
III. What are the revisions specific to the Tier II form proposed by 
EPA in this rule?
    A. Chemical Information
    B. Storage Types and Conditions
IV. Statutory and Executive Orders
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order13563: Improving Regulation and Regulatory 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 (Energy Effects)
    I. National Technology Transfer and Advancement Act (``NTAA'')
    J. Executive Order 12898: (Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations)

 I. General Information

A. Who is affected by this proposed rule?

    Entities that would be affected by this proposed rule are those 
organizations and facilities subject to Section 312 of the Emergency 
Planning and Community Right-to-Know Act (EPCRA) and its implementing 
regulations found in 40 CFR part 370. 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. What should I consider as I prepare my comments for EPA?

    Tips for Preparing Your Comments. When submitting comments remember 
to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The Agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree, suggest alternatives, 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible.
     Make sure to submit your comments by the comment period 
deadline identified.

C. What is the statutory authority for this proposed rule?

    This proposed rule is being issued under EPCRA, which was enacted 
as Title III of the Superfund Amendments and Reauthorization Act (SARA) 
of 1986 (Pub. L. 99-499). The Agency relies on sections 312 and 328 of 
EPCRA for general rulemaking authority.

D. What is the background of this proposed rule?

    Title III of SARA (EPCRA) establishes authorities for emergency 
planning and preparedness, emergency release notification reporting, 
community right-to-know reporting, and toxic chemical release 
reporting. It is intended to encourage State and local planning and 
preparedness for releases of extremely hazardous substances (EHSs) and 
to provide the public, local governments, fire departments and other 
emergency officials with information concerning chemical releases and 
the potential chemical risks in their communities. EPCRA consists of 
emergency planning notification and community right-to-know reporting 
of hazardous and toxic chemicals. The implementing regulations as well 
as substances and reporting thresholds are codified in 40 CFR parts 355 
and 370.
    Under the emergency planning provisions of EPCRA, codified in 40 
CFR part 355, a facility is required to provide a one-time notification 
to the State Emergency Response Commission (SERC) and the local 
emergency planning committee (LEPC) if the facility has any EHS present 
at the site in excess of its threshold planning quantity (TPQ). EHSs 
and their TPQs are listed in 40 CFR part 355, Appendix A and B. The 
emergency planning notification occurred approximately seven months 
after the law was passed for facilities that existed at that time. Any 
facilities that became subject to the notification requirement after 
that date are required to comply as provided in 40 CFR part 355. 
Facilities that are currently covered by these regulations are required 
to report only changes occurring at the facility that may be relevant 
to emergency planning. LEPCs use the information obtained from 
facilities to develop emergency response plans required under section 
303 of EPCRA. Section 303 of EPCRA also requires LEPCs to review these 
plans annually and to adjust them accordingly, for changes that have 
occurred in their community.
    Reporting requirements under the community right-to-know 
provisions, sections 311 and 312 of EPCRA are on-going obligations. 
Sections 311 and 312 of EPCRA apply to owners and operators of 
facilities that are required to prepare or have available a material 
safety data sheet (MSDS) for a hazardous chemical defined under the 
Occupational Safety and Health Act (OSHA) Hazard Communication Standard 
(HCS). If the hazardous chemical is present at or above the reporting 
thresholds specified in 40 CFR part 370, the facility owner or operator 
is required to submit a MSDS or a list that contains the hazardous 
chemical under section 311 of EPCRA. Under section 312 of EPCRA, if a 
hazardous chemical is present at or above the reporting threshold 
specified in 40 CFR part 370, the facility owner or operator is 
required to submit an emergency and hazardous chemical inventory form 
(Tier I or Tier II) to the SERC, LEPC and the local fire department 
annually by March 1.
    As required by section 312(g) of EPCRA, EPA published two emergency 
and hazardous chemical inventory reporting forms, Tier I and Tier II. 
The Tier I inventory form requires facilities to report minimum 
information on the general types and locations of hazardous chemicals 
present at the facility. The Tier II inventory form requires facilities 
to report specific information on the amounts and locations of 
hazardous chemicals present at the facility. The information required 
under Tier I and Tier II can be found in Sec. Sec.  370.41 and 370.42 
of the regulations.
    Section 312(a)(2) of EPCRA states that the owner or operator of a 
facility shall submit the Tier I inventory form annually by March 1 to 
the SERC, LEPC and the local fire department. However, section 312(e) 
states that the owner or operator of a facility shall submit the Tier 
II inventory form upon request by their SERC, LEPC or the fire 
department with jurisdiction over the facility. Currently, all states 
require facilities to submit the federal Tier II inventory form or the 
state developed inventory reporting form.
    In addition to the information obtained under the emergency 
planning

[[Page 48095]]

provisions of EPCRA, LEPCs use the information provided on the 
facility's annual emergency and hazardous chemical inventory form to 
update the emergency response plan for their communities. States were 
always given the flexibility to implement the EPCRA program as 
appropriate for their State to meet the goals of EPCRA, which is to 
prepare for and respond to releases of EHSs and to provide the public 
with information on potential chemical risks in their communities. This 
flexibility includes adding more chemicals, setting lower reporting 
thresholds and creating a reporting form or format that includes more 
information than is required by the federal reporting requirements. 
Some States developed their own inventory reporting form, including 
electronic reporting format. Other States use the federal inventory 
reporting form or the federal electronic reporting format, Tier2 
Submit.
    Over the years, stakeholders requested that EPA add new data 
elements to the forms that would be useful to improve their community 
emergency response plans. In this action, EPA is proposing new data 
elements to make the forms more useful for State and local agencies and 
to better inform the public on chemical hazards in their communities. 
We are also proposing to revise some existing data elements to make 
reporting easier for facilities. The elements proposed herein are 
intended to meet the purpose of EPCRA (Title III of SARA) which is ``* 
* * to encourage and support State and local planning for emergencies 
caused by the release of hazardous chemicals and to provide citizens 
and governments with information concerning potential chemical hazards 
present in their communities.'' See 55 FR 30632, Community Right-to-
Know Reporting Requirements, Final Rule, July 26, 1990.

II. What are the revisions that EPA is proposing on the Tier I and Tier 
II forms?

    The Tier I and Tier II forms were first published in 1987 and were 
amended in 1990. Recently, State and local agencies requested that EPA 
modify these forms to include new data elements and revise existing 
data elements to make it more useful for emergency planning and 
response. EPA requests public comment on each of the new and revised 
data elements proposed by EPA in this notice for the Tier I and Tier II 
forms. These elements are described below.
    Information requirements for the Tier I and Tier II forms can be 
found in 40 CFR 370.41 and 370.42, respectively. Current Tier I and II 
forms are available on the Agency's Web site at http://www.epa.gov/emergencies. Additionally, the current Tier I and Tier II inventory 
forms and the proposed Tier I and II inventory forms with the 
additional elements and changes highlighted are in the docket for 
today's rulemaking under the docket number EPA-HQ-SFUND-2010-0763.

A. Facility Identification

    In addition to the information currently required on the Tier I and 
Tier II forms under facility identification, we are proposing to add 
new data elements for facility phone number, latitude and longitude, 
and number of full-time employees.
    Section 312 covers a broad range of chemicals and facilities. Some 
of the facilities covered under section 312 also may be subject to the 
Chemical Accident Prevention under section 112 (r) of the Clean Air Act 
(CAA), also known as the Risk Management Program or the Toxic Release 
Inventory (TRI) Program under section 313 of EPCRA. For those 
facilities that are subject to these programs, EPA is also proposing to 
add data elements for facility identification numbers that are assigned 
under these two programs. These data elements should be readily 
available to facilities that are covered by these two programs. 
Stakeholders have requested that EPA add these data elements in order 
to provide more complete information on the facilities to the public 
and to the State and local agencies responsible for emergency planning 
and response.
    In addition to reporting the number of full-time employees, local 
emergency responders requested that EPA require facilities such as 
hotels, colleges, universities, and convention centers to report the 
total number of people that may occupy a building at any given time, to 
assist them in emergency planning and response. While EPA is not 
including this additional element in today's proposal, EPA requests 
comments if number of occupants should also be added as a data element 
to the Tier I and II inventory forms.

B. Name of the Facility's Parent Company and Owner or Operator of the 
Facility

    States and LEPCs informed EPA that some facilities have sites in 
remote locations and do not have operators present at all times. Thus, 
if there is a need to contact someone in an emergency, emergency 
response officials and State and local agencies need the contact 
information of the facility's parent company or the owner or operator 
of the facility. Therefore, under the facility identification section, 
EPA is also proposing to require facilities to provide information on 
the facility's parent company and the owner or operator of the 
facility, such as name, address and phone number, as well as the Dun 
and Bradstreet number of the facility's parent company. EPA is also 
proposing that the facility owner or operator provide their e-mail 
address.

C. Facility Emergency Coordinator

    Under EPCRA section 303(d)(1), a facility is required to provide 
the LEPC with the name and contact information of a facility 
representative who will participate in the emergency planning process 
as a facility emergency coordinator. The regulations in Sec.  355.20 
(c) require facilities to notify LEPCs of any changes relevant to the 
emergency planning within 30 days after the changes have occurred. 
However, EPA also believes that this information should be provided on 
the facility's annual inventory form since LEPCs and other emergency 
response coordinators may need this information during an emergency. 
Therefore, EPA is proposing to add this data element to the Tier I and 
Tier II forms.

D. Tier I and Tier II Information Contacts

    Since the information reported under EPCRA section 312 is used by 
LEPCs to improve emergency response plans, these entities may need to 
contact the facility regarding information that is reported on the Tier 
I and Tier II reporting forms. The information filed under section 312 
is also used by emergency response officials during an emergency 
situation. As requested by these entities, the Agency is proposing to 
require the name, title, phone number and e-mail address of the person 
knowledgeable or responsible for completing the information on the Tier 
I and Tier II forms.

E. Subject to Emergency Planning Under Section 302 of EPCRA

    EPCRA section 302(c) requires facilities to notify their SERC and 
LEPC that they are subject to emergency planning if there is an EHS 
present at the facility at or above its threshold planning quantity 
(TPQ). For facilities in existence when EPCRA was enacted, this was a 
one-time notification that occurred approximately seven months after 
enactment (in May 1987). Facilities that became subject to the 
emergency planning notification requirement after this date are 
required to provide notification to their SERC and LEPC within sixty 
days of becoming subject to the requirements.

[[Page 48096]]

    EPCRA section 303(a) requires each LEPC to develop an emergency 
response plan for their communities. Such plans were to be developed in 
two years after the enactment of EPCRA (October 1988). EPCRA section 
303(a) also requires LEPCs to review the emergency response plan once a 
year. LEPCs use the information reported by facilities under section 
302(c) to develop or update the emergency response plans in their 
community. The Agency believes that some of the facilities which 
complied with the requirements under section 302(c) may no longer be 
subject to emergency planning, for a number of reasons, including using 
a chemical that is safer than an EHS, having an EHS below the TPQ, etc. 
The Agency also believes that facilities that may become subject to the 
annual inventory reporting under EPCRA section 312 may not be aware of 
the requirements under EPCRA section 302. The EPCRA section 312 
reporting requirement covers a broad range of chemicals, including EHSs 
that are subject to emergency planning.
    The reporting thresholds and requirements for EHSs are different 
under sections 302 and 312. The reporting requirement for EHSs under 
section 302 is to provide notification to the SERC and LEPC if the 
facility has any EHS at or above the TPQ in order to complete emergency 
planning requirements for the community. The reporting requirement for 
EHSs under section 312 is to submit an inventory form annually by March 
1 to the SERC, LEPC and the local fire department if the EHS is present 
at a facility at any one time in an amount equal to or greater than 500 
pounds or the TPQ, whichever is less in order to inform the public of 
chemical hazards in their community.
    Since the notification under section 302(c) is a one-time 
notification which occurred in 1987 for most facilities, and since 
section 303(a) requires LEPCs to update the emergency plan annually, it 
would be useful for LEPCs to get an update from facilities clarifying 
whether they are still subject to emergency planning. This will help 
ensure that local emergency plans are up-to-date and include all 
appropriate facilities.
    To better account for facilities subject to emergency planning and 
for LEPCs to use this information to improve the emergency response 
plans in their community, LEPCs requested that EPA require facilities 
to report if they are subject to emergency planning notification under 
EPCRA section 302. As a result, the Agency is proposing to add a new 
data element to indicate if facilities are subject to the emergency 
planning notification under EPCRA section 302.

F. Subject to Chemical Accident Prevention Under Section 112(r) of the 
Clean Air Act (40 CFR Part 68, Risk Management Program)

    Section 112(r) of the Clean Air Act (CAA) amendments of 1990 
requires certain facilities to develop and implement a risk management 
program to prevent accidental releases of regulated chemicals. 
Facilities subject to section 112(r) of the CAA are required to 
implement an accident prevention program and an emergency response 
program, conduct hazard assessment and summarize and submit to EPA 
information about these programs and hazards in a risk management plan 
(RMP). The implementing regulations are codified in 40 CFR part 68, 
Chemical Accident Prevention, also known as the Risk Management 
Program.
    In addition to the information reported under EPCRA section 312, 
LEPCs and States use the information reported in RMPs to improve the 
emergency response plans in each community. In order to better serve 
this purpose, EPA is proposing to add a new data element to both the 
Tier I and Tier II forms to indicate whether the facility is subject to 
chemical accident prevention under section 112(r) of the CAA.

G. Range Codes and Ranges for Reporting Maximum Amount and Average 
Daily Amount

    As stated in EPCRA section 312(d), the information requirements in 
40 CFR 370.41 and 370.42 for the Tier I and Tier II forms currently 
list range codes for reporting the maximum amount and average daily 
amounts of hazardous chemicals present at the site in the preceding 
calendar year. The range codes currently listed in the regulations are 
very broad. Such information is not as useful as specific quantity 
information for effective emergency response planning. Since the 
statute specifically states that an estimate in ranges for the maximum 
amount and average daily amount should be reported on the Tier I and II 
inventory forms, the regulations would still require facilities to 
report in ranges. However, in order for the States, local agencies and 
emergency response officials to have information on the maximum amount 
and average daily amount that are closer to the actual amounts present 
at the facility, EPA is proposing to narrow the ranges that are in the 
existing regulations. EPA specifically seeks comments if the range 
codes and the ranges proposed below would be more useful to LEPCs for 
effective emergency response planning or for responding to emergencies, 
and if not, what ranges would be more useful to the LEPCs for effective 
emergency response planning or for responding to emergencies.

------------------------------------------------------------------------
                                       Weight range in pounds
       Range codes        ----------------------------------------------
                               From                    To
------------------------------------------------------------------------
01.......................            0  99.
02.......................          100  499.
03.......................          500  999.
04.......................        1,000  4,999.
05.......................        5,000  9,999.
06.......................       10,000  24,999.
07.......................       25,000  49,999.
08.......................       50,000  74,999.
09.......................       75,000  99,999.
10.......................      100,000  499,999.
11.......................      500,000  999,999.
12.......................    1,000,000  9,999,999.
13.......................   10,000,000  Greater than 10
                                        million.
------------------------------------------------------------------------

III. What are the revisions specific to the Tier II form proposed by 
EPA in this rule?

    Facilities are required to report specific information about 
hazardous chemicals on the Tier II inventory form. Some states may 
require additional information than that which is required under the 
federal reporting requirements. In addition to the new data elements 
proposed in the previous section of this document, EPA is proposing to 
revise some existing data elements on the Tier II federal inventory 
form.

A. Chemical Information

    In the final rule published on November 3, 2008 (73 FR 65452), EPA 
clarified how to report a hazardous chemical mixture after determining 
if the mixture or its hazardous components meet or exceed the reporting 
thresholds specified in 40 CFR part 370. In that notice, the Agency 
clarified that if a hazardous chemical in the mixture is an EHS, the 
facility has to aggregate any and all amounts of that EHS present 
throughout the facility in mixtures and in pure form to determine if 
the reporting threshold for EHS has been met or exceeded. If the 
reporting threshold for that EHS is exceeded, then the facility would 
have an option to report the mixture or the EHS component.
    To determine if the reporting threshold has been met or exceeded 
for a mixture that contains a non-EHS hazardous chemical component, a 
facility has the option to either add up

[[Page 48097]]

all the amounts of that non-EHS hazardous chemical present as a 
component in all mixtures and all other quantities of that non-EHS 
hazardous chemical present throughout the facility or consider the 
total quantity of that mixture present throughout the facility. Once it 
is determined that the reporting threshold is met or exceeded for 
either the non-EHS hazardous chemical component or the mixture, the 
facility has the option to report the non-EHS hazardous chemical 
component or the mixture itself. See Sec.  370.14 for requirements on 
reporting mixtures. As stated in Sec.  370.14(b), EPA encourages 
facilities to be consistent with their reporting under EPCRA section 
311 when reporting mixtures.
    In this notice, EPA is proposing to modify the chemical information 
reporting section of the Tier II inventory form to make it more user-
friendly for States and local agencies, as well as the emergency 
response officials. This revision will also benefit facilities by 
clarifying how to report mixtures on the Tier II form. Specifically, 
the current form requires facilities to report the name of the mixture, 
indicate whether the mixture contains an EHS, indicate the physical and 
health hazards of the mixture, and report the amount present on-site, 
as well as the type of storage and storage locations. The regulated 
community and the state and local agencies, however, are unsure if the 
amount present on-site refers to the mixture or the non-EHS hazardous 
chemical or the EHS in the mixture. In order to clarify the reporting 
of pure chemicals vs. mixtures, the proposed Tier II form has separate 
entries for mixtures and pure chemicals. The entry for mixtures 
includes a separate line for mixture name, amount of mixture present 
(i.e. maximum and average daily amount), the EHS(s) name, and the 
amount of EHS(s) present (i.e. maximum and average daily amount). 
Facilities still have the option to report the mixture or the hazardous 
chemical component as stated in Sec.  370.14.

B. Storage Types and Conditions

    The Tier II form currently requires facilities to report the codes 
for types of storage (i.e. above ground tank, steel drum) and storage 
conditions (i.e. temperature, pressure). A code is currently listed for 
each type of storage and storage conditions in Sec.  370.43. In order 
to make the form more user-friendly and also to have information 
readily available to emergency response officials in an emergency, EPA 
proposes that facilities list the types of storage (i.e. above ground 
tank, steel drum) and storage conditions (i.e. ambient temperature, 
ambient pressure) on the Tier II form rather than noting the reporting 
codes.
    EPA seeks public comment on all the proposed new data elements and 
revisions of the existing data elements described in this proposed 
rule. The Agency also requests that commenters, including State and 
local agencies suggest any additional information that should be added 
to the Tier I and Tier II forms in order to make them more useful for 
emergency planning and response.
    Finally, we would note that the Agency is not proposing to revise 
the introductory paragraph to Sec. Sec.  370.41 and 370.42. However, 
since we are proposing to add some new data elements and proposing to 
revise some existing data elements, we re-arranged and re-numbered all 
the paragraphs to be consistent with how each data element appears on 
the Tier I and Tier II inventory forms.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under the Executive Orders 12866 and 
13563 (76 FR 3821, January 21, 2011). We believe this action is 
administrative and non-controversial. The proposed data elements are 
readily available to the facility. Stakeholders requested that EPA add 
these new data elements because the additional information would 
improve community emergency response planning. In addition, revising 
the existing data elements will make the forms more user-friendly.
    The proposed regulation will not 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.

B. Paperwork Reduction Act

    The information collection requirements in this proposed rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The 
Information Collection Request (ICR) document prepared by EPA has been 
assigned EPA ICR number 1352.13. This action may impose only minimal 
reporting burden on facilities since the data elements proposed are 
readily available to the facility. Revising the existing data elements 
will make the forms more user-friendly and ease reporting requirements 
for facilities. Stakeholders requested that EPA add the new data 
elements since the additional information would be useful to develop or 
modify their community emergency response plans. New data elements, 
such as facility emergency coordinator needs to be updated annually for 
LEPCs to coordinate the emergency plans and response to emergencies in 
their community.
    The Office of Management and Budget (OMB) has previously approved 
the information collection requirements contained in regulations at 40 
CFR part 370 which includes information requirements for the Tier I and 
Tier II inventory forms, under the provisions of the Paperwork 
Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control 
number 2050-0072, EPA ICR number 1352.11. The OMB control numbers for 
EPA's regulations are listed in 40 CFR part 9. Burden is defined at 5 
CFR 1320.3(b). 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.
    To comment on the Agency's need for this information, the accuracy 
of the provided burden estimates, and any suggested methods for 
minimizing respondent burden, EPA has established a public docket for 
this rule, which includes this ICR, under Docket ID number EPA-HQ-
SFUND-2010-0763. Submit any comments related to the ICR to EPA and OMB. 
See ADDRESSES section at the beginning of this notice for where to 
submit comments to EPA. Send comments to OMB at the Office of 
Information and Regulatory Affairs, Office of Management and Budget, 
725 17th Street, NW., Washington, DC 20503, Attention: Desk Office for 
EPA. Since OMB is required to make a decision concerning the ICR 
between 30 and 60 days after August 8, 2011, a comment to OMB is best 
assured of having its full effect if OMB receives it by September 7, 
2011. The final rule will respond to any OMB or public comments on the 
information collection requirements contained in this proposal.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment

[[Page 48098]]

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 proposed rule on 
small entities, small entity is defined as: (1) A small business as 
defined by the Small Business Administration's (SBA) regulations 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 proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. 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 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 new data elements that we are proposing to add have been 
requested by stakeholders in an effort to develop or modify their 
community emergency response plans. In addition, revising the existing 
data elements will make the forms more user-friendly, and thus, will 
make reporting easier for facilities and will make the forms more user-
friendly for state and local officials.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1532-1538 for State, local, or tribal governments or the private 
sector. This proposed rule does not impose any new requirements on 
State, local or tribal governments. The data elements we are proposing 
to add to the Tier I and Tier II inventory forms will be useful to 
state, local and tribal governments to develop or modify their 
community emergency response plans. In addition, the proposed revision 
to the existing data elements will make the forms more user-friendly.
    This action is also not subject to the requirements of section 203 
of UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments.

E. Executive Order 13132 (Federalism)

    This action 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. The data elements we are proposing 
to add to the Tier I and Tier II inventory forms will be useful to 
state, local and tribal governments to develop or modify their 
community emergency response plan. In addition, the proposed revision 
to the existing data elements will make the forms more user-friendly.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this proposed action 
from State and local officials.

F. Executive Order 13175 (Consultation and Coordination With Indian 
Tribal Governments)

    This action does not have tribal implications, as specified in 
Executive Order 13175, (65 FR 67249, November 9, 2000). The data 
elements we are proposing to add to the Tier I and Tier II inventory 
forms will be useful to the tribal governments to develop or modify 
their community emergency response plans. In addition, the proposed 
revision to the existing data elements will make the forms more user-
friendly. This action does not impose any new requirements on tribal 
governments. Thus, Executive Order 13175 does not apply to this action.

G. Executive Order 13045 (Protection of Children From Environmental 
Health Risks and Safety Risks)

    This action is not subject to EO 13045 (62 FR 19885, April 23, 
1997) because it is not economically significant as defined in 
Executive Order 12866 and because the Agency does not believe the 
environmental health or safety risks addressed by this action present a 
disproportionate risk to children. The additional information that we 
are proposing to add to the Tier I and Tier II inventory forms will be 
useful to State and local officials to assist them in preparing the 
community in an emergency situation.

H. Executive Order 13211 (Energy Effects)

    This action is not a ``significant energy action'' as defined in 
Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy.

I. National Technology Transfer and Advancement Act (``NTTAA'')

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (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 
would otherwise be impractical. Voluntary consensus standards are 
technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. NTTAA directs EPA to 
provide Congress, through OMB, explanations of when the Agency decides 
not to use available and applicable voluntary consensus standards.
    This proposed rule does not involve technical standards. Therefore, 
EPA does not consider the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order (EO) 12898 (59 FR 7629 (February 16, 1994)) 
establishes Federal executive policy on environmental justice. Its main 
provision directs federal agencies, to the greatest extent practicable 
and permitted by law, to make environmental justice part of their 
mission by identifying and addressing, as appropriate, 
disproportionately high and adverse human health or environmental 
effects of their programs, policies, and activities on minority 
populations and low-income populations in the United States.
    EPA has determined that this proposed rule does not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. The new data elements that the Agency is proposing

[[Page 48099]]

would be useful to develop or modify the community's emergency response 
plan. In addition, revising the existing data elements will make the 
forms more user-friendly.

List of Subjects in 40 CFR Part 370

    Emergency Planning and Community Right-to-Know Act (EPCRA), 
Hazardous chemicals, Emergency and hazardous chemical inventory forms, 
Hazardous substances, Intergovernmental relations, Reporting 
requirements, Superfund, Tier I and Tier II inventory forms.

    Dated: August 1, 2011.
Lisa P. Jackson,
Administrator.
    For the reasons discussed in the preamble, title 40, chapter I of 
the Code of Federal Regulations is proposed to be amended as follows:

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

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

    Authority:  42 U.S.C. 11021 and 11022.

    2. Section 370.41 is revised to read as follows:


Sec.  370.41  What is Tier I inventory information?

    Tier I information provides State and local officials and the 
public with information on the general types and locations of hazardous 
chemicals present at your facility during the previous calendar year. 
The Tier I information is the minimum information that you must provide 
to be in compliance with the inventory reporting requirements of this 
part. If you are reporting Tier I information, you must report 
aggregate information on hazardous chemicals by hazard categories. 
There are two health hazard categories and three physical hazard 
categories for purposes of reporting under this part. These five hazard 
categories are defined in 40 CFR 370.66. Tier I information includes 
all of the following:
    (a) The calendar year for the reporting period.
    (b) The complete name and address of the location of your facility 
(include the full street address or state road, city, county, State and 
zip code), phone number, latitude, longitude, and the number of full 
time employees (FTE).
    (c) The North American Industry Classification System (NAICS) code 
for your facility.
    (d) Toxic Release Inventory (TRI) and Risk Management Plan (RMP) 
identification numbers, if available.
    (e) The Dun & Bradstreet number of your facility.
    (f) The name, mailing address, phone number and email address of 
the owner or operator of the facility.
    (g) The name, mailing address, phone number, Dun & Bradstreet 
number and email address of the facility's parent company.
    (h) The name, title, phone number(s) and email address of at least 
one local individual that can act as a referral if emergency responders 
need assistance in responding to a chemical accident at your facility. 
You must also provide an emergency phone number which will be available 
24 hours a day, every day.
    (i) An indication whether your facility is subject to the emergency 
planning notification requirement under section 302 of EPCRA, codified 
in 40 CFR part 355.
    (j) The name, title, phone number, 24-hour phone number, and email 
address of the facility emergency coordinator.

    Note to paragraph (j):  Section 303(d)(1) of EPCRA requires 
facilities subject to the emergency planning notification 
requirement to designate a facility representative who will 
participate in the local emergency planning process as a facility 
emergency coordinator. EPA encourages facilities that are not 
subject to the emergency planning notification requirement also to 
provide this information, if available, for effective emergency 
planning in your community.

    (k) An indication whether your facility is subject to the chemical 
accident prevention requirements under Section 112(r) of the Clean Air 
Act, codified in 40 CFR part 68, Chemical Accident Prevention 
Provisions, also known as the Risk Management Program regulations.
    (l) The name, title, phone number, and email address of the person 
to contact for the information contained in the Tier I form.
    (m) Certification. The owner or operator or the officially 
designated representative of the owner or operator must certify that 
all information included in the Tier I submission is true, accurate, 
and complete as follows: ``I certify under penalty of law that I have 
personally examined and am familiar with the information and that based 
on my inquiry of those individuals responsible for obtaining the 
information, I believe that the submitted information is true, 
accurate, and complete.'' This certification shall be accompanied by 
your full name, official title, signature, date signed, and total 
number of pages in the submission including all attachments.

    Note to paragraph (m):  Some states require electronic reporting 
(on-line or via diskettes) and electronic certification. Contact 
your state for the specific requirements in that state.

    (n) An indication whether you are including any attachments 
(optional).
    (o) An indication whether the information being reported is 
identical to that submitted the previous year.
    (p) An estimate (in ranges) of the maximum amount of hazardous 
chemicals in each hazard category present at your facility at any time 
during the preceding calendar year. You must use codes that correspond 
to different ranges. The range codes are provided in Sec.  370.43.
    (q) An estimate (in ranges) of the average daily amount of 
hazardous chemicals in each hazard category present at your facility 
during the preceding calendar year. You must use codes that correspond 
to different ranges. The range codes are provided in Sec.  370.43.
    (r) The maximum number of days that any single hazardous chemical 
within each hazard category was present at your facility during the 
reporting period.
    (s) The general locations of all applicable chemicals for each 
hazard type. General locations should include the names or 
identification of buildings, tank fields, lots, sheds or other such 
areas. You may also attach one of the following with your Tier I 
inventory form.
    (A) A site plan with site indicated for buildings, lots, areas, 
etc. throughout your facility.
    (B) A list of site coordinate abbreviations that correspond to 
buildings, lots, areas, etc., throughout your facility.
    (C) A description of dikes and other safeguard measures for storage 
locations throughout your facility.
    3. Section 370.42 is revised to read as follows:


Sec.  370.42  What is Tier II inventory information?

    Tier II information provides State and local officials and the 
public with specific information on amounts and locations of hazardous 
chemicals present at your facility during the previous calendar year. 
Some states may require you to use a state reporting format including 
electronic reporting and certification for submitting your hazardous 
chemical inventory. Contact your state for the specific requirements in 
that state.
    If you are reporting Tier II information, you must include all of 
the following:
    (a) The calendar year of the reporting period.

[[Page 48100]]

    (b) The complete name and address of the location of your facility 
(include the full street address or state road, city, county, State and 
zip code), phone number, latitude, longitude, and the number of full-
time employees (FTE).
    (c) The North American Industry Classification System (NAICS) code 
for your facility.
    (d) Toxic Release Inventory (TRI) and Risk Management Plan (RMP) 
identification numbers, if available.
    (e) The Dun & Bradstreet number of your facility.
    (f) The name, mailing address, phone number, Dun & Bradstreet 
number and email address of the facility's parent company.
    (g) The name, mailing address, phone number and email address of 
the owner or operator of the facility.
    (h) The name, title, phone number(s) and email address of at least 
one local individual that can act as a referral if emergency responders 
need assistance in responding to a chemical accident at your facility. 
You must also provide an emergency phone number which will be available 
24 hours a day, every day.
    (i) The name, title, phone number and email address of the person 
to contact regarding information contained in the Tier II report.
    (j) An indication if your facility is subject to the emergency 
planning notification requirement under section 302 of EPCRA, codified 
in 40 CFR part 355.
    (k) The name, title, phone number, 24-hour phone number and email 
address of the facility emergency coordinator.

    Note to paragraph (k): Section 303(d)(1) of EPCRA requires 
facilities subject to the emergency planning notification 
requirement to designate a facility representative who will 
participate in the local emergency planning process as a facility 
emergency coordinator. EPA encourages facilities not subject to the 
emergency planning notification requirement also to provide this 
information, if available, for effective emergency planning in your 
community.

    (l) An indication whether your facility is subject to the chemical 
accident prevention requirements under section 112(r) of the Clean Air 
Act (CAA), codified in 40 CFR part 68, Chemical Accident Prevention 
Provisions, also known as the Risk Management Program regulations.
    (m) Certification. The owner or operator or the officially 
designated representative of the owner or operator must certify that 
all information included in the Tier II submission is true, accurate, 
and complete as follows: ``I certify under penalty of law that I have 
personally examined and am familiar with the information and that based 
on my inquiry of those individuals responsible for obtaining the 
information, I believe that the submitted information is true, 
accurate, and complete.'' This certification must be accompanied by 
your full name, official title, signature, date signed, and total 
number of pages in the submission including all Confidential and Non-
Confidential Information Sheets and all attachments.

    Note to paragraph (m): Some states require electronic reporting 
(on-line or via diskettes) and electronic certification. Contact 
your state for the specific requirements in that state.

    (n) An indication whether you are including any attachments 
(optional).
    (o) An indication whether the information being reported is 
identical to that submitted the previous year.
    (p) For each hazardous chemical that you are required to report, 
you must:
    (1) Provide the chemical name (or the common name of the chemical) 
or the name of the mixture as provided on the Material Safety Data 
Sheet (MSDS) and provide the Chemical Abstract Service (CAS) registry 
number of the chemical(s) provided on the MSDS. If you are withholding 
the name in accordance with trade secret criteria, you must provide the 
generic class or category that is structurally descriptive of the 
chemical and indicate that the name is withheld because of trade 
secrecy. Trade secret criteria are addressed in Sec.  370.64(a). Two 
separate entries are provided to make reporting easier for your 
facility.

    Note to paragraph (p)(1): As provided in Sec.  370.14(a), if you 
have a mixture that is a hazardous chemical on site you have an 
option to report the hazardous component or the mixture itself. See 
Sec.  370.14 for more information on how to determine if a reporting 
threshold is met for a mixture containing a hazardous chemical and 
how to report that mixture.

    (2) Indicate whether the chemical is a solid, liquid, or gas; and 
whether the chemical is an EHS. If reporting a hazardous chemical 
component in the mixture, indicate that it is part of a mixture.

    Note to paragraph (p)(2): As provided in Sec.  370.14(b), for 
each specific mixture, EPA encourages facilities to be consistent 
with their reporting under EPCRA section 311.

    (3) Provide the name of each EHS in the mixture if you are 
reporting a mixture that contains an EHS. As provided in Sec.  
370.14(a), you also have an option to report the non-EHS hazardous 
components in the mixture.
    (4) Indicate which hazard categories apply to the chemical. The 
five hazard categories are defined in Sec.  370.66.
    (5) Provide an estimate (in ranges) of the maximum amount of the 
hazardous chemical present at your facility on any single day during 
the preceding calendar year. If the hazardous chemical is a mixture, 
provide an estimate of the total amount of the mixture. If the mixture 
contains any EHS, provide the total amount of each EHS in that mixture. 
You must use codes that correspond to different ranges. The range codes 
are in Sec.  370.43.
    (6) Provide an estimate (in ranges) of the average daily amount of 
the hazardous chemical present at your facility during the preceding 
calendar year. If the hazardous chemical is a mixture, provide an 
estimate of the average daily amount of the mixture. If the mixture 
contains any EHS, provide the average daily amount of each EHS in the 
mixture. You must use codes that correspond to different ranges. The 
range codes are in Sec.  370.43.
    (7) Provide the maximum number of days that the hazardous chemical 
was present at your facility during the preceding calendar year.
    (8) Provide the type of storage for the hazardous chemical or the 
mixture containing the hazardous chemical at your facility. Examples 
for type of storage: Above-ground tank, plastic or non-metallic drum, 
steel drum, cylinder, rail car, etc.
    (9) Provide the storage conditions for the hazardous chemical or 
the mixture containing the hazardous chemical at your facility. 
Examples for type of storage conditions: Ambient pressure, less than 
ambient temperature/pressure, cryogenic conditions, etc.
    (10)(i) Provide a brief description of the precise location(s) of 
the hazardous chemical or the mixture at your facility. You may also 
attach one of the following with your Tier II inventory form.
    (A) A site plan with site indicated for buildings, lots, areas, 
etc. throughout your facility.
    (B) A list of site coordinate abbreviations that correspond to 
buildings, lots, areas, etc., throughout your facility.
    (C) A description of dikes and other safeguard measures for storage 
locations throughout your facility.
    (ii) Under EPCRA section 324, you may choose to withhold from 
disclosure to the public the location information for a specific 
chemical. If you choose to withhold the location information from 
disclosure to the public, you must clearly indicate that the 
information is ``confidential.'' You must provide the

[[Page 48101]]

confidential location information on a separate sheet from the other 
Tier II information (which will be disclosed to the public), and attach 
the Confidential Location Information Sheet to the other Tier II 
information. Indicate any attachments you are including.
    4. Section 370.43 is revised as follows:


Sec.  370.43  What codes are used to report Tier I and Tier II 
inventory information?

    (a) Except as provided in paragraph (d) of this section, you must 
use the following codes to report the maximum amount and average daily 
amount when reporting Tier I or Tier II inventory information:

------------------------------------------------------------------------
                                       Weight range in pounds
       Range codes        ----------------------------------------------
                               From                    To
------------------------------------------------------------------------
01.......................            0  99.
02.......................          100  499.
03.......................          500  999.
04.......................        1,000  4,999.
05.......................        5,000  9,999.
06.......................       10,000  24,999.
07.......................       25,000  49,999.
08.......................       50,000  74,999.
09.......................       75,000  99,999.
10.......................      100,000  499,999.
11.......................      500,000  999,999.
12.......................    1,000,000  9,999,999.
13.......................   10,000,000  Greater than 10
                                        million.
------------------------------------------------------------------------


    Note to paragraph (a): To convert gas or liquid volume to weight 
in pounds, multiply by an appropriate density factor.

    (b) Your SERC or LEPC may provide other range codes for reporting 
maximum amount and average daily amount, or may require reporting of 
specific amounts. You may use your SERC's or LEPC's range codes (or 
specific amounts) provided the ranges are not broader than the ranges 
in paragraph (a) of this section.

[FR Doc. 2011-19900 Filed 8-5-11; 8:45 am]
BILLING CODE 6560-50-P