[Federal Register Volume 76, Number 190 (Friday, September 30, 2011)]
[Proposed Rules]
[Pages 60781-60788]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-24821]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 372
[EPA-HQ-OEI-2011-0196; FRL-9472-5]
RIN 2025-AA31
Toxics Release Inventory (TRI) Reporting for Facilities Located
in Indian Country and Clarification of Additional Opportunities
Available to Tribal Governments Under the TRI Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This action proposes to: require TRI reporting facilities
located in Indian country to report to the appropriate Tribal
government for the relevant area instead of the State; and improve and
clarify certain opportunities allowing Tribal governments to
participate more fully in the TRI Program. In 1990, EPA finalized
regulations in the Federal Register (FR) requiring facilities in Indian
country to submit annual TRI reports to EPA and the appropriate Tribal
government. These amendments, however, were inadvertently omitted from
the Code of Federal Regulations (CFR), and the relevant provisions were
later overwritten by a subsequent final rule, thus resulting in the
exclusion of the intended requirement from the CFR. EPA intends to
correct that inadvertent result by proposing this rule. Further,
because Tribal governmental structures may vary, EPA is proposing to
update its terminology to refer to the principal elected official of
the Tribe as the ``Tribal chairperson or equivalent elected official.''
EPA is also amending its definition of ``State'' for purposes of 40 CFR
part 372 to no longer include Indian country, so as to avoid any
confusing overlap in terminology with the proposed express discussion
of facilities in Indian country. With regard to the procedures for EPA
to modify the list of covered chemicals and TRI reporting facilities,
EPA proposes to clarify the opportunities available to Tribal
governments. In particular, EPA proposes to include within the relevant
provision an opportunity for the Tribal Chairperson or equivalent
elected official to request that EPA apply the TRI reporting
requirements to a specific facility located within the Tribe's Indian
country. Secondly, EPA is proposing that the Tribal Chairperson or
equivalent elected official may petition EPA to add or delete a
particular chemical respectively to or from the list of chemicals
covered by TRI. By increasing the participation and engagement of
Tribal governments in the TRI program, EPA is helping to increase
awareness of toxic releases within Tribal communities, thereby
increasing the understanding of potential human health and ecological
impacts from these hazardous chemicals.
DATES: Comments must be received on or before November 29, 2011.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OEI-2011-0196, by one of the following methods:
http://www.regulations.gov: Follow the on-line
instructions for submitting comments.
E-mail: [email protected].
Fax: 202-566-0677
Mail: Office of Environmental Information (OEI) Docket,
Environmental Protection Agency, Mailcode: 28221T, 1200 Pennsylvania
Ave., NW., Washington, DC 20460.
Hand Delivery: EPA Docket Center (EPA/DC), EPA West, Room
3334, 1301 Constitution Ave, NW., Washington, DC 20460. 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-OEI-
2011-0196. 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: 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 OEI Docket, EPA/DC,
EPA West, 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 OEI
Docket is (202) 566-1752.
[[Page 60782]]
FOR FURTHER INFORMATION CONTACT: Louise Camalier, Environmental
Analysis Division, Office of Environmental Information (2842T),
Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460; telephone number: (202) 566-0503; fax number:
(202) 566-0677; e-mail address: [email protected], for specific
information on this notice. For general information on EPRCA section
313, contact the Emergency Planning and Community Right-to-Know
Hotline, toll free at (800) 424-9346 or (703) 412-9810 in Virginia and
Alaska or toll free, TDD (800) 553-7672, http://www/epa/gov/epaoswer/
hotline/.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
You may be potentially affected by this action if you own or
operate a facility located in Indian country (18 U.S.C. 1151) with a
toxic chemical(s) known by the owner or operator to be manufactured
(including imported), processed, or otherwise used in excess of an
applicable threshold quantity, as referenced in 40 CFR 372.25, 372.27,
or 372.28, at its covered facility described in Sec. 372.22.
Potentially affected categories and entities may include, but are not
limited to:
----------------------------------------------------------------------------------------------------------------
Category Examples of potentially affected entities
---------------------------------------------------------------------------------------------------------------
Industry......................... Facilities included in the following NAICS manufacturing codes
(corresponding to SIC codes 20 through 39): 311*, 312*, 313*, 314*, 315*,
316, 321, 322, 323*, 324, 325*, 326*, 327, 331, 332, 333, 334*, 335*, 336,
337*, 339*, 111998*, 211112*, 212324*, 212325*, 212393*, 212399*, 488390*,
511110, 511120, 511130, 511140*, 511191, 511199, 512220, 512230*, 519130*,
541712*, or 811490*.
* Exceptions and/or limitations exist for these NAICS codes................
Facilities included in the following NAICS codes (corresponding to SIC
codes other than SIC codes 20 through 39): 212111, 212112, 212113
(correspond to SIC 12, Coal Mining (except 1241)); or 212221, 212222,
212231, 212234, 212299 (correspond to SIC 10, Metal Mining (except 1011,
1081, and 1094)); or 221111, 221112, 221113, 221119, 221121, 221122,
221330 (Limited to facilities that combust coal and/or oil for the purpose
of generating power for distribution in commerce) (correspond to SIC 4911,
4931, and 4939, Electric Utilities); or 424690, 425110, 425120 (Limited to
facilities previously classified in SIC 5169, Chemicals and Allied
Products, Not Elsewhere Classified); or 424710 (corresponds to SIC 5171,
Petroleum Bulk Terminals and Plants); or 562112 (Limited to facilities
primarily engaged in solvent recovery services on a contract or fee basis
(previously classified under SIC 7389, Business Services, NEC)); or
562211, 562212, 562213, 562219, 562920 (Limited to facilities regulated
under the Resource Conservation and Recovery Act, subtitle C, 42 U.S.C.
6921 et seq.) (correspond to SIC 4953, Refuse Systems).
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. Some of the entities listed in the table have exemptions and/or
limitations regarding coverage, and 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.
Facilities in Indian country would no longer be required to report
to the States, although States would still receive this information
once it is available to the public. Tribes with facilities located in
their Indian country would receive the facility reports under this
proposal. This would represent a change for facilities, States, and
Tribes.
If you have questions regarding the applicability of this action to
a particular entity, consult the person listed in the preceding FOR
FURTHER INFORMATION CONTACT section.
B. How should I submit CBI to the agency?
Do not submit this information to EPA through http://www.regulations.gov or e-mail. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as
CBI and then identify electronically within the disk or CD-ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
II. Introduction
Since the beginning of the TRI Program in 1986, facilities that
meet TRI reporting requirements have been required to submit annual TRI
reports to EPA and the State in which they are located. In 1990, EPA
finalized regulations in the Federal Register (FR) requiring facilities
in Indian country to submit annual TRI reports to EPA and the
appropriate Tribal government (55 FR 30632). EPA's rationale supporting
those regulations was fully explained in the relevant preambles to the
proposed and final rules. Id.; 45 FR 12992. These amendments, however,
were inadvertently omitted from the CFR and later overwritten by a
subsequent final rule and left out of the CFR. To correct this
inadvertent omission, EPA intends to include these provisions in the
CFR, in 40 CFR 372.30(a), to require each facility located in Indian
country to submit its annual TRI reports to the appropriate Tribe,
rather than to the State in which the facility is geographically
located. The requirement for the facility to report to EPA would remain
the same.
To further encourage Tribal engagement and participation in the TRI
program, EPA also proposes to make explicitly clear in the regulations
certain additional opportunities for governments of federally-
recognized Tribes. The first opportunity would allow the Tribal
Chairperson or equivalent elected official to request that EPA apply
the TRI reporting requirements to a specific facility located within
the Tribe's Indian country, under the authority of EPCRA Section
313(b)(2). The second opportunity would allow the Tribal Chairperson or
equivalent elected official to petition EPA to add or delete a
particular chemical respectively to or from the list of chemicals
covered by TRI, under the authority of EPCRA Section 313(e)(2). EPA
proposes to treat these request and petitioning opportunities as EPA
currently treats those for Governors of States under EPCRA Sections
313(b)(2) and (e)(2). After EPA has received a formal request
[[Page 60783]]
from a Tribe, EPA would make its final decision on the facility
addition based on the criteria outlined in EPCRA Section 313(b)(2). EPA
may also act on its own motion to add a facility without anyone
requesting action. Opportunities for the public to participate in the
TRI program consist of the right to petition the EPA to add or delete a
particular chemical or chemicals to the TRI list of hazardous chemicals
for toxics release reporting.
III. Background Information
A. What does this document do and what action does this document
affect?
This document primarily proposes to fulfill the goals of the July
26, 1990, action (55 FR 30632), which required facilities located in
Indian country to report to the appropriate Tribal government and the
EPA, instead of to the State and EPA. This amendment, however, was
inadvertently omitted from the CFR and later overwritten by a
subsequent final rule. Therefore, EPA is proposing to update 40 CFR
372.30(a) to reflect the purpose of the 1990 amendment. Secondly, to
supplement this action, this document also clarifies existing TRI
reporting regulations and guidance to further enable Tribal governments
to participate more fully in the TRI Program.
Under today's proposal for 40 CFR 372.30(a), an owner or operator
of a TRI facility in Indian country would have to submit (to the extent
applicable) EPA's Form R, Form A, and Form R Schedule 1 to the official
designated by the Tribal Chairperson or equivalent elected official of
the relevant Tribe, as well as to EPA. The form(s) would no longer have
to be submitted to the State in which the facility is geographically
located. Under this proposal, facilities would select/provide the name
of the federally-recognized Tribe as part of the State data field in
the Address block on the TRI forms. To accommodate this, EPA would make
changes to the description of this data field on the TRI form. In
addition, EPA would modify the instructions that accompany the forms in
the annual TRI Reporting Forms & Instructions document accessible from
the TRI Web site.
Also under today's proposal, EPA proposes to clarify request and
petitioning rights available to Tribal governments. A Tribe would have
the opportunity to request EPA to require TRI reporting by a facility
in the Indian country of that Tribe. Tribes would also have the
opportunity to petition for the addition or deletion of a chemical,
which would apply to all facilities that manufacture (including
import), process, or otherwise use the particular chemical. The
statute--at sections 313(b)(2) and 313(d)--expressly authorizes the
Administrator to apply TRI reporting requirements to particular
facilities and to add or delete chemicals to or from the list of
chemicals subject to TRI reporting. The statute provides opportunities
for Governors of States to request that particular facilities be
subject to TRI reporting or that specific chemicals be added to or
deleted from the TRI reporting list (EPCRA Section 313(b)(2), (e)(2)).
Similar to the process for Governors, after EPA has received a formal
request from a Tribe, EPA would make its final decision on the facility
addition based on the criteria outlined in EPCRA Section 313(b)(2). EPA
may also act on its own motion to add a facility without anyone
requesting action. EPA believes that these same opportunities are
appropriately available to Tribal governments under the statute and EPA
proposes to interpret these provisions so that the Tribal Chairperson
or equivalent elected official may make similar requests to EPA.
Ultimately, it is EPA that determines whether TRI reporting
requirements will apply to a particular facility or whether a specific
chemical will be added to, or deleted from, the TRI chemicals list.
B. What is the agency's authority for taking this action?
EPA proposes this rule under sections 313, 328, and 329 of EPCRA,
42 U.S.C. 11023, 11048 and 11049.
EPCRA Section 313(a) requires that the TRI reporting form be
submitted to EPA and the official(s) of the State designated by the
Governor. Section 329 defines ``State'' to mean ``any State of the
United States, the District of Columbia, the Commonwealth of Puerto
Rico, Guam, American Samoa, the United States Virgin Islands, the
Northern Mariana Islands, and any other territory or possession over
which the United States has jurisdiction.'' The statute has no separate
definition of, or explicit reference to, Indian Tribes or Indian
country. As EPA has explained previously, however, Congress clearly
intended the statute's protections to apply to all persons nationwide,
including in Indian country. See, e.g., 55 FR 30632, 30641-30642 (July
26, 1990); 54 FR 12992, 13000-13002 (March 29, 1989). In the context of
a facility located in Indian country, EPA interprets section 313(a) as
requiring reporting to EPA and the official designated by the Tribal
Chairperson or equivalent elected official for the relevant area of
Indian country. As discussed in EPA's prior notices, the statutory
language, the legislative history, and principles of Federal law
relating to Indian Tribes and Indian country support the application of
EPCRA in Indian country and EPA's reasonable interpretation of section
313(a) requirements. Id.
This reasonable interpretation of the statute is reinforced by the
broad grant of rulemaking authority from Congress to EPA under EPCRA.
Section 328 provides that the ``Administrator may prescribe such
regulations as may be necessary to carry out this chapter.'' 42 U.S.C.
11048.
For purposes of regulatory clarity, EPA has proposed that the
reporting requirements for a facility in Indian country be discussed
expressly in part 372. Part 372 already contains a definition of Indian
country at 40 CFR 372.3. To avoid any confusing overlap, EPA has
proposed to remove Indian country from the definition of ``State'' as
that term is used in part 372.
EPA also expressly interprets section 313(b)(2) and (e)(2) in the
context of Indian Tribes. In the case of a facility located in Indian
country, EPA interprets section 313(b)(2) as allowing requests by a
Tribal Chairperson or equivalent elected official that EPA apply TRI
reporting requirements to a facility located in the requesting Tribe's
Indian country. EPA also interprets section 313(e)(2) as allowing
petitions by a Tribal Chairperson or equivalent elected official
requesting that EPA add or delete a chemical to or from the list of
chemicals subject to TRI reporting. EPA's interpretation of each of
these provisions flows from the same reasoning and authority as
discussed above for section 313(a). EPA also notes that in all cases it
is EPA, not a Tribe or State, that makes the final determination
whether a facility or chemical should be subject to the TRI program.
EPA believes that each of these Tribal roles will enhance Tribal
participation in the TRI program and the availability of relevant
information to communities within Indian country consistent with
statutory authorities and requirements. EPA notes that pursuant to
EPA's 1990 rulemaking cited above, federally-recognized Indian Tribes
already participate in other important elements of implementation of
EPCRA in Indian country. Today's proposed rulemaking would, among other
things, rectify the inadvertent omission from the CFR of Tribal roles
in the TRI program.
C. What is an Indian Tribe, and what kind of land is Indian country?
As defined at 40 CFR 372.3, ``Indian Tribe'' refers to those Tribes
that are
[[Page 60784]]
``federally-recognized by the Secretary of the Interior.'' The
Secretary of the Interior maintains a list of federally-recognized
Indian Tribes, which is published periodically in the Federal Register.
As also set forth at 40 CFR 372.3, ``Indian country'' means Indian
country as defined in 18 U.S.C. 1151, which defines Indian country as:
all land within the limits of any Indian reservation under the
jurisdiction of the United States government, notwithstanding the
issuance of any patent, and including rights-of-way running through the
reservation; all dependent Indian communities within the borders of the
United States whether within the original or subsequently acquired
territory thereof, and whether within or without the limits of a State;
and all Indian allotments, the Indian titles to which have not been
extinguished, including rights-of-way running through the same.
D. What is a Tribe's responsibility under this rule?
Under this proposed rule and per the intent of the 1990 regulation,
a Tribe's only responsibility would be to receive any TRI reports
submitted by facilities located within its Indian country.
E. How would Tribes receive reports from facilities?
Under this proposed rule, Tribes may define how they would like to
receive reports from TRI facilities. If a Tribe provides no specific
guidance as to receipt, owners and operators of TRI facilities would
mail TRI reports to the appropriate Tribal government representative.
Tribes would be requested by EPA to provide a mailing address and
contact name to be published on the TRI Web site, so that facilities in
Indian country would know where to send their TRI reports. If no
specific contact is provided, EPA would use the Tribal Council or
Tribal Environmental Department as the default contact. As described
further below, Tribal governments could also chose to provide
electronic options for report submittal.
F. How would the proposal affect TRI reporting facilities and the
States or Tribes to which they would report?
1. Submission of TRI Reports to Tribal Governments
As described above, under the proposal the owner or operator of a
facility located in Indian country would have to submit their TRI
reports to the relevant Tribal government in lieu of the State
government. The requirement to submit the report to EPA would remain
unchanged. In many cases, this means the owner or operator would mail a
copy of the TRI report to the specific Tribal government
representative. As noted, Tribal governments may also choose to allow
for electronic submittal of TRI reports. If a Tribal government becomes
a member of the Internet-based TRI Data Exchange, then the owner or
operator of a facility could meet its dual EPA/Tribal reporting
requirements by submitting its TRI report to EPA via TRI Made Easy
(TRI-ME) Web, a Web-based application that allows facilities to submit
a paperless report. EPA would then automatically transmit the report to
the appropriate Tribe (instead of the State) via the TRI Data Exchange.
If the facility is located in the Indian country of a Tribe that
does not become a member of the TRI Data Exchange, then the facility
would be required to submit a TRI report to EPA and also separately to
the appropriate Tribe. The approach described above is the same as for
EPA and States for those facilities not located in Indian country.
2. Requests by Tribal Governments for EPA To Add Specific Facilities to
TRI
Under this proposed rule, a Tribe would have the opportunity to
request that EPA require that a currently non-covered facility located
in its Indian country report the facility's releases and other waste
management to TRI. Under the statute, it is EPA that applies TRI
reporting requirements to particular facilities (EPCRA Section
313(b)(2)). Section 313(b)(2) also provides an opportunity for
Governors of States to request that EPA apply TRI requirements to
facilities in their areas. The addition of certain facilities that
would otherwise not be covered by TRI helps to aid communities and
leaders to comprehensively assess chemical releases to their local
environment. EPA proposes to interpret this provision to provide a
similar opportunity for the Tribal Chairperson or equivalent elected
official to request that EPA apply TRI reporting requirements to
particular facilities located in the Tribe's Indian country. This
opportunity for Tribes to request that EPA add a facility located in
its Indian country can address situations where a Tribal government
becomes aware of a facility that manufactures (including imports),
processes, or otherwise uses a TRI chemical yet does not meet the full
criteria to trigger reporting. This opportunity to add the facility may
help the Tribe better understand chemical risks within their Indian
country.
This would be an opportunity and not a requirement, which means
that the Tribal Chairperson or equivalent elected official would not be
required to request the addition of a facility; however, he or she may
do so, for instance, if there is a concern about toxic releases coming
from that facility. After EPA has received a formal request from a
Tribe, EPA would make its final decision on the facility addition based
on the criteria outlined in EPCRA Section 313(b)(2). EPA may also act
on its own motion to add a facility without anyone requesting action.
EPA's consultation with Tribes consisted of two consultation calls
(February 7 and 28 of 2011), and during these calls EPA facilitated
discussion and collected comments from Tribes in response to the
actions proposed in this rule. Furthermore, EPA officiated two
additional webinars for representatives from the National Tribal Air
Association (NTAA) on March 17 and 30 of 2011, as well as hosting an
electronic discussion forum (or ``blog'') to collect electronic
feedback from interested parties. Material summarizing these meetings
and the blog can be accessed from the docket for this proposed rule
(Docket ID No. EPA-HQ-OEI-2011-0196).
During the Agency's consultation with Tribes, EPA received several
positive comments about this proposed clarification to the request
rights for Tribes to add a facility to the TRI. As EPA has heard in
consultation, however, Tribes may be concerned about such facilities
that are not in Indian country but are located nearby, where releases
of those chemicals may inevitably reach and affect Indian country lands
and communities. Although the opportunity expressly provided by the
statute to request the addition of a facility under EPCRA 313 only
extends to a facility located in the relevant State and, under this
proposed rule, Indian country, EPA would consider any concerns and
information about facilities outside of the State or Indian country in
the exercise of EPA's discretionary authority, including concerns and
information brought to EPA's attention by a Tribal chairperson or
equivalent elected official, and/or similarly, Governors of States.
This possibility is especially relevant in situations where a facility
releases chemicals into or near a Territory boundary or interstate
community, yet it is not located within that Governor's or Tribal
Chairperson or equivalent elected official's jurisdiction. While there
is no 180-day time limit as there is for chemical petitions, and while
this proposed rule does not address these general request opportunities
which are already in existence, EPA, as a matter of administrative
policy, would give such requests from Tribal governments (as
[[Page 60785]]
well as Governors of States) appropriate priority and consideration.
The impact on owners and operators of facilities that EPA includes
within the TRI reporting program pursuant to the authority of EPCRA
Section 313(b)(2) is that they would be required to report to EPA and
the relevant Tribe (for facilities located in Indian country) or State
(for facilities outside of Indian country) under TRI. The impact from
this opportunity on citizens around the requested facility would be
access to additional information on chemicals being managed at the
facility if EPA adds the facility.
3. Petitions by Tribal Governments for EPA To Add or Delete Specific
Chemicals to TRI List
Under this proposed rule, Tribes would have the same opportunity as
Governors of States to petition EPA to require that a chemical be added
to or removed from the TRI list of toxic chemicals. Ultimately, it is
EPA that determines whether the chemical will be added to, or deleted
from, the TRI list. If EPA adds a chemical to the list, such action
would affect all facilities releasing the particular substance,
regardless of a facility's location inside or outside of the
petitioning Tribe's Indian country. This type of provision already
applies in the context of petitions by Governors of States (EPCRA
Section 313(e)(2)). Therefore, EPA proposes to interpret the statute to
provide similar opportunities to the Tribal Chairperson or equivalent
elected official. This would be an opportunity and not a requirement.
In other words, the Tribal Chairperson or equivalent elected official
would not be required to petition EPA to modify the list of substances
managed by TRI; however, he or she may do so, for instance, if there is
a concern about toxic releases of that substance.
If EPA receives a petition from a Tribe that requests the addition
of a particular chemical, EPA would have 180 days to respond with
either the initiation of a rulemaking to add the chemical to the list
or an explanation of why the petition does not meet the requirements to
add a chemical to the list. The petition would need to be based on the
criteria provided in subparagraph (A), (B), or (C) of EPCRA Section
313(d)(2). As a matter of administrative policy, EPA places a high
priority on petitions from Tribes to add a chemical. However, if EPA
does not respond within 180 days of receipt of a Tribe's petition to
add a chemical, the chemical would be added to the list pursuant to
EPCRA Section 313(e)(2).
Within 180 days of receipt of a Tribe's petition to delete a
chemical based on the criteria provided in subparagraph (A), (B), or
(C) of EPCRA Section 313(d)(2), EPA would either initiate a rulemaking
to delete the chemical or explain why EPA denied the petition. Unlike
the analogous process for petitions to add a chemical, however, the
chemical would not be deleted within 180 days if EPA failed to respond.
During the Agency's consultation with Tribes, EPA received several
positive comments about this proposed clarification to the petition
rights for Tribes to add a chemical to the TRI reporting list. For more
information, the materials summarizing these meetings and the blog can
be accessed from the docket for this proposed rule (Docket ID No. EPA-
HQ-OEI-2011-0196).
Further, any person may petition EPA to add or delete a chemical
based on certain grounds specified under EPCRA Section 313(e)(1).
However, if EPA receives a petition by a private citizen to add a
chemical and EPA fails to respond within 180 days, the chemical would
not necessarily be added. This result distinguishes citizen petitions
to add a chemical from petitions to add a chemical by a Governor of a
State or, as clarified under this proposed rule, the Tribal Chairperson
or equivalent elected official (compare EPCRA Section 313(e)(1) with
EPCRA Section 313(e)(2)).
If EPA adds a chemical(s) to the TRI list (through its own
initiative under Section 313(d) or in response to a petition), the
impact on owners and operators of facilities with the toxic chemical(s)
in question would be that they would be required to evaluate the TRI
reporting requirements with the new chemical and, if appropriate, based
on those requirements, report under TRI to EPA and the relevant State
or, if located in Indian country, the relevant or appropriate Tribe.
The impact from this action by EPA on Tribes, States, and the general
public would be that they would have access to information on new toxic
chemicals being managed at facilities across the nation. The potential
impact from this action on industry consists of the cost of compliance
for facilities that would have to report for a particular chemical that
was added.
IV. References
EPA has established an official public docket for this action under
Docket ID No. EPA-HQ-OEI-2011-0196. The public docket includes
information considered by EPA in developing this action, which is
electronically or physically located in the docket. In addition,
interested parties should consult documents that are referenced in the
documents that EPA has placed in the docket, regardless of whether
these referenced documents are electronically or physically located in
the docket. For assistance in locating documents that are referenced in
documents that EPA has placed in the docket, but that are not
electronically or physically located in the docket, please consult the
person listed in the above FOR FURTHER INFORMATION CONTACT section.
V. Statutory and Executive Order reviews associated with this action?
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 (EO) 12866 (58 FR 51735, October 4, 1993) and
is therefore not subject to review under EOs 12866 and 13563 (76 FR
3821, January 21, 2011).
B. Paperwork Reduction Act
This proposed rule does not contain any new information collection
requirements that require additional approval by the Office of
Management and Budget (OMB) under the Paperwork Reduction Act (PRA), 44
U.S.C. 3501 et seq. Currently, the facilities subject to the reporting
requirements under EPCRA 313 and PPA 6607 may use (to the extent
applicable) the EPA Toxic Chemical Release Inventory Form R (EPA Form
9350-1), the EPA Toxic Chemical Release Inventory Form A (EPA Form
9350-2), and the EPA Toxic Chemical Release Inventory Form R Schedule 1
(EPA Form 9350-3) for dioxin and dioxin-like compounds. The Form R must
be completed if a facility manufactures, processes, or otherwise uses
any listed chemical above threshold quantities and meets certain other
criteria. For the Form A, EPA established an alternative threshold for
facilities with low annual reportable amounts of a listed toxic
chemical. A facility that meets the appropriate reporting thresholds,
but estimates that the total annual reportable amount of the chemical
does not exceed 500 pounds per year, can take advantage of an
alternative manufacture, process, or otherwise use threshold of 1
million pounds per year of the chemical, provided that certain
conditions are met, and submit the Form A instead of the Form R. In
addition, respondents may designate the specific chemical
[[Page 60786]]
identity of a substance as a trade secret pursuant to EPCRA section 322
42 U.S.C. 11042: 40 CFR part 350.
OMB has approved the reporting burden associated with the EPCRA
Section 313 reporting requirements under OMB Control number 2070-0093
(EPA Information Collection Request (ICR) No. 1363.15); OMB control
number 2070-0143 (EPA ICR No. 1704.09); and OMB Control 2070-0078 (EPA
ICR No. 1428). As provided in 5 CFR 1320.5(b) and 1320.6(a), 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 relevant to EPA's regulations
are listed in 40 CFR part 9, 48 CFR chapter 15, and displayed on the
information collection instruments (e.g., forms, instructions).
EPA estimates the incremental burden for facilities located in
Indian country to send their reports to the Tribe instead of the State
to average, in the first year, approximately $26.71 per facility for
the 51 facilities located in Indian country. EPA estimates an
incremental burden of $18.14 for the remaining 20,746 TRI reporters.
Thus, the total first year incremental cost associated with the rule is
estimated at $377,695 based on 6,934 total burden hours. In subsequent
years, there is no incremental reporting burden, given that the burden
created by the rule is limited to rule familiarization and compliance
determination in which facilities will only engage in the first year.
These estimates include the time needed to become familiar with the new
requirement (rule familiarization) and to determine whether the
facility is located in Indian country (compliance determination). The
actual burden on any facility may be different from this estimate
depending on how much time it takes individual facilities to complete
these activities. Upon promulgation of a final rule, the Agency may
determine that the existing burden estimates in the ICR need to be
amended in order to account for an increase in burden associated with
the final action. If so, the Agency will submit an information
collection worksheet (ICW) to OMB requesting that the total burden in
the ICR be amended, as appropriate.
The Agency would appreciate any comments or information that could
be used to: (1) Evaluate whether the proposed collection of information
is necessary for the proper performance of the functions of the Agency,
including whether the information will have practical utility; (2)
evaluate the reasonableness of the Agency's estimate of the incremental
burden associated with the proposed rule, including the validity of the
methodology and assumptions used; (3) enhance the quality, utility, and
clarity of the information to be collected; and (4) minimize the burden
of the collection of information on those who are to respond, including
through the use of appropriate automated electronic, mechanical, or
other technological collection techniques or other forms of information
technology, e.g., permitting electronic submission of responses. Please
submit your comments within 60 days as specified at the beginning of
this proposal.
C. Regulatory Flexibility Act (RFA), as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et
seq.
The RFA 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, small entity is defined as: (1) A
business that is classified as a ``small business'' by the Small
Business Administration 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. All
of the 3,185 potentially affected small entities have cost impacts of
less than 1% in the first year of the rulemaking. Note that facilities
do not incur reporting burden or costs in subsequent years of the
rulemaking. No small entities are projected to have a cost impact of 1%
or greater. Of the 3,185 estimated cost impacts, there is a maximum
impact of approximately 0.13% and a median impact of approximately
0.002%. A more detailed analysis of the impacts on small entities is
located in EPA's economic analysis support document, Economic Analysis
of the Proposed Toxics Release Inventory (TRI) Reporting Rule for
Facilities Located in Indian Country, located in the docket.
After considering the economic impacts of this rule on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. We continue
to be interested in the potential impacts of the proposed rule on small
entities and welcome comments on issues related to such impacts.
D. Unfunded Mandates Reform Act (UMRA)
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.
EPA's economic analysis indicates that the total cost of this rule is
estimated to be $377,695 in the first year of reporting, and $0 in
subsequent years. Thus, this rule is not subject to the requirements of
sections 202 or 205 of UMRA.
This rule 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. Small governments
are not subject to the EPCRA section 313 reporting requirements.
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. This action relates to toxic
chemical reporting under EPCRA section 313, which primarily affects
private sector facilities. Thus, Executive Order 13132 does not apply
to this action.
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 have some Tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). This action
relates to toxic chemical reporting under EPCRA section 313, which
primarily affects private sector facilities; however, it does have
Tribal implications in the way that the Agency is proposing a change in
the current way toxic chemical reporting information is transmitted and
received. EPA organized and provided a formal consultation with Tribes
to discuss the
[[Page 60787]]
proposed actions that may have the potential to affect one or more
Tribes or areas of interest to Tribes. Two consultation calls occurred
on February 7 and 28 of 2011, and during these calls EPA facilitated
discussion and collected comments from Tribes in response to the
actions proposed in this rule. During the Agency's consultation with
Tribes, EPA received several positive comments about this proposed
clarification to the request rights for Tribes to add a facility to the
TRI, as well as the petitioning rights to add or delete a chemical.
Furthermore, EPA officiated two additional Webinars for representatives
from the National Tribal Air Association (NTAA) on March 17 and 30 of
2011, as well as hosting a blog to collect electronic feedback from
interested parties. Additionally, in the spirit of EO 13175, and
consistent with EPA policy to promote communications between EPA and
Indian Tribal governments, EPA specifically solicits additional comment
on this proposed action from Tribal officials.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying
only to those regulatory actions that concern health or safety risks,
such that the analysis required under section 5-501 of the EO has the
potential to influence the regulation. This action is not subject to EO
13045 because it does not establish an environmental standard intended
to mitigate health or safety risks.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not subject to Executive Order 13211 (66 FR 28355,
May 22, 2001), because it is not a significant regulatory action under
Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law No. 104-113, 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. NTTAA directs EPA to
provide Congress, through OMB, explanations when the Agency decides not
to use available and applicable voluntary consensus standards.
This proposed rulemaking does not involve technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
EO 12898 (59 FR 7629, Feb. 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 will 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. This proposed rule provides opportunities to request the
addition of additional chemicals to the EPCRA section 313 reporting
requirements. By adding chemicals to the list of toxic chemicals
subject to reporting under section 313 of EPCRA, EPA would be providing
communities across the United States (including minority populations
and low-income populations) with access to data which they may use to
seek lower exposures and consequently, reductions in chemical risks for
themselves and their children. This information can also be used by
government agencies and others to identify potential problems, set
priorities, and take appropriate steps to reduce any potential risks to
human health and the environment. Therefore, the informational benefits
of the proposed rule will have a positive impact on the human health
and environmental impacts of minority populations, low-income
populations, and children.
List of Subjects in 40 CFR Part 372
Environmental protection, Community right-to-know, Reporting and
recordkeeping requirements, Tribes, and Indian country.
Dated: September 21, 2011.
Lisa P. Jackson,
Administrator.
Therefore, it is proposed that 40 CFR part 372 be amended as
follows:
PART 372--[AMENDED]
1. The authority citation for part 372 continues to read as
follows:
Authority: 42 U.S.C. 11023 and 11048.
2. In Sec. 372.3, the definition of ``Chief Executive Officer of
the tribe'' is removed, the definition of ``State'' is revised, and the
definition ``Tribal Chairperson or equivalent elected official'' is
added in alphabetical order to read as follows:
Sec. 372.3 Definitions.
State means any State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the
United States Virgin Islands, the Commonwealth of the Northern Mariana
Islands, and any other territory or possession over which the United
States has jurisdiction.
* * * * *
Tribal Chairperson or equivalent elected official means the person
who is recognized by the Bureau of Indian Affairs as the chief elected
administrative officer of the Tribe.
* * * * *
3. Add Sec. 372.20 to subpart B to read as follows:
Sec. 372.20 Process for modifying covered chemicals and facilities.
(a) Request to add a facility to the TRI list of covered
facilities.
(1) The Administrator, on his own motion or at the request of a
Governor of a State (with regard to facilities located in that State)
or a Tribal Chairperson or equivalent elected official (with regard to
facilities located in the Indian country of that Tribe), may apply the
requirements of section 313 of Title III to the owners and operators of
any particular facility that manufactures, processes, or otherwise uses
a toxic chemical listed under subsection (c) of section 313 of Title
III if the Administrator determines that such action is warranted on
the basis of toxicity of the toxic chemical, proximity to other
facilities that release the toxic chemical or to population centers,
the history of releases of such chemical at such facility, or such
other factors as the Administrator deems appropriate.
(b) Petition to add or delete a chemical from TRI list of covered
chemicals.
(1) In general. Any person may petition the Administrator to add or
[[Page 60788]]
delete a chemical to or from the list described in subsection (c) of
section 313 of Title III on the basis of the criteria in subparagraph
(A) or (B) of subsection (d)(2) and (d)(3) of section 313 of Title III.
Within 180 days after receipt of a petition, the Administrator shall
take one of the following actions:
(i) Initiate a rulemaking to add or delete the chemical to or from
the list, in accordance with subsection (d)(2) or (d)(3) of section 313
of Title III.
(ii) Publish an explanation of why the petition is denied.
(2) State and Tribal petitions. A State Governor, or a Tribal
chairperson or equivalent elected official, may petition the
Administrator to add or delete a chemical to or from the list described
in subsection (c) of section 313 of Title III on the basis of the
criteria in subparagraph (A), (B), or (C) of subsection (d)(2) of
section 313 of Title III. In the case of such a petition from a State
Governor, or a Tribal Chairperson or equivalent elected official, to
delete a chemical, the petition shall be treated in the same manner as
a petition received under paragraph (b)(1) of this section. In the case
of such a petition from a State Governor, or a Tribal Chairperson or
equivalent elected official, to add a chemical, the chemical will be
added to the list within 180 days after receipt of the petition, unless
the Administrator:
(i) Initiates a rulemaking to add the chemical to the list, in
accordance with section (d)(2) of section 313 of Title III, or
(ii) Publishes an explanation of why the Administrator believes the
petition does not meet the requirement of subsection (d)(2) of section
313 of Title III for adding a chemical to the list.
4. In Sec. 372.27, paragraph (d) is revised to read as follows:
Sec. 372.27, Alternate threshold and certification.
* * * * *
(d) Each certification statement under this section for activities
involving a toxic chemical that occurred during a calendar year at a
facility must be submitted to EPA and to the State in which the
facility is located on or before July 1 of the next year. If the
covered facility is located in Indian country, the facility shall
submit the certification statement as described above to EPA and to the
official designated by the Tribal Chairperson or equivalent elected
official of the relevant Indian Tribe, instead of to the State.
* * * * *
5. In Sec. 372.30(a), paragraph (a) is revised to read as follows:
Sec. 372.30 Reporting requirements and schedule for reporting.
(a) For each toxic chemical known by the owner or operator to be
manufactured (including imported), processed, or otherwise used in
excess of an applicable threshold quantity in Sec. 372.25, Sec.
372.27, or Sec. 372.28 at its covered facility described in Sec.
372.22 for a calendar year, the owner or operator must submit to EPA
and to the State in which the facility is located a completed EPA Form
R (EPA Form 9350-1), EPA Form A (EPA Form 9350-2), and, for the dioxin
and dioxin-like compounds category, EPA Form R Schedule 1 (EPA Form
9350-3) in accordance with the instructions referred to in subpart E of
this part. If the covered facility is located in Indian country, the
facility shall submit (to the extent applicable) a completed EPA Form
R, Form A, and Form R Schedule 1 as described above to EPA and to the
official designated by the Tribal Chairperson or equivalent elected
official of the relevant Indian Tribe, instead of to the State.
* * * * *
[FR Doc. 2011-24821 Filed 9-29-11; 8:45 am]
BILLING CODE 6560-50-P