[Federal Register Volume 86, Number 224 (Wednesday, November 24, 2021)]
[Rules and Regulations]
[Pages 66953-66964]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-25646]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 372
[EPA-HQ-TRI-2016-0390; FRL-5879-02-OCSPP]
RIN 2070-AK16
Addition of Natural Gas Processing Facilities to the Toxics
Release Inventory
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is adding natural
gas processing (NGP) facilities (also known as natural gas liquid
extraction facilities) to the scope of the industrial sectors covered
by the reporting requirements of the Emergency Planning and Community
Right-to-Know Act (EPCRA), commonly known as the Toxics Release
Inventory (TRI), and the Pollution Prevention Act (PPA). Adding these
facilities will meaningfully increase the information available to the
public on releases and other waste management of listed chemicals from
the NGP sector and further the purposes of EPCRA.
DATES: This final rule is effective December 27, 2021 and shall apply
for the reporting year beginning January 1, 2022 (reports due July 1,
2023).
ADDRESSES: The docket for this action, identified by docket
identification (ID) number EPA-HQ-TRI-2016-0390, is available at http://www.regulations.gov or at the Office of Pollution Prevention and
Toxics Docket (OPPT Docket), Environmental Protection Agency Docket
Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 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 OPPT Docket is (202) 566-
0280. Please review the visitor instructions and additional information
about the docket available at http://www.epa.gov/dockets.
Due to the public health emergency, the EPA Docket Center (EPA/DC)
and Reading Room are by appointment only. For the latest status
information on EPA/DC services and docket access, visit https://www.epa.gov/dockets.
FOR FURTHER INFORMATION CONTACT: For technical information contact:
Daniel R. Ruedy, Data Gathering and Analysis Division, Mail Code 7410M,
Office of Pollution Prevention and Toxics, Environmental Protection
Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone
number: (202) 564-7974; email address: [email protected].
For general information contact: The Emergency Planning and
Community Right-to-Know Act Hotline; telephone numbers: Toll free at
(800) 424-9346 (select menu option 3) or (703) 348-5070 in the
Washington, DC Area and International; or go to https://www.epa.gov/home/epa-hotlines.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. Does this action apply to me?
Entities potentially regulated by this action are those facilities
that primarily engage in the recovery of liquid
[[Page 66954]]
hydrocarbons from oil and gas field gases and which manufacture,
process, or otherwise use chemicals listed at 40 CFR 372.65 and meet
the reporting requirements of EPCRA section 313, 42 U.S.C. 11023, and
PPA section 6607, 42 U.S.C. 13106. These facilities are categorized
under Standard Industrial Classification (SIC) code 1321 and North
American Industry Classification System (NAICS) code 211130. In
response to OMB's revisions to the NAICS codes effective January 1,
2017, EPA amended 40 CFR part 372 to include the relevant 2017 NAICS
codes for TRI reporting. EPA also modified the list of exceptions and
limitations previously included in the CFR for the applicable NAICS
codes for TRI reporting purposes.
If you have questions regarding the applicability of this action to
a particular entity, consult the person listed under FOR FURTHER
INFORMATION CONTACT.
B. What is the Agency's authority for taking this action?
This action is taken under EPCRA sections 313(b) and 328, 42 U.S.C.
11023(b) and 11048. Specifically, EPCRA section 313(b)(1)(B), 42 U.S.C.
11023(b)(1)(B), states that the Agency may ``add or delete Standard
Industrial Codes for purposes of subparagraph (A), but only to the
extent necessary to provide that each Standard Industrial Code is
relevant to the purposes of this section.'' In addition, Congress
granted EPA broad rulemaking authority under EPCRA section 328, 28
U.S.C. 11048, which provides that the ``Administrator may prescribe
such regulations as may be necessary to carry out this chapter.''
C. What action is the Agency taking?
EPA is adding NGP facilities to the list of industry sectors
subject to reporting under EPCRA section 313 and PPA section 6607. With
this addition, NGP facilities will be subject to TRI reporting for the
year beginning January 1, 2022, and required to file reports by July 1,
2023.
D. Why is the Agency taking this action?
EPA is adding this industry sector to the EPCRA section 313 list
because doing so will meaningfully increase the information available
to the public on releases and other waste management of listed
chemicals from the NGP sector and further the purposes of EPCRA section
313. In total, there are approximately 1.4 million people living within
three miles of at least one of the NGP facilities EPA identified. As
detailed in Unit IV.C. of this notice, some NGP facilities are located
in communities where there are potential Environmental Justice
considerations.
This action also addresses a petition (Ref. 1) submitted to EPA via
a letter dated October 24, 2012, from the Environmental Integrity
Project (EIP), together with 16 other organizations, and later joined
by two additional organizations (collectively, Petitioners) under
section 553(e) of the Administrative Procedure Act (APA) that asked EPA
to add the Oil and Gas Extraction industrial sector (SIC code 13) to
the scope of industrial sectors covered by the reporting requirements
of the TRI. On October 22, 2015, EPA granted, in part, the petition
insofar as it requested that EPA commence the rulemaking process to
propose adding NGP facilities to the scope of TRI. EPA denied the
remainder of the petition. The petition and related documents,
including EPA's response, can be found in Docket ID No. EPA-HQ-TRI-
2013-0281.
E. What are the incremental costs and benefits of this action?
EPA considered the incremental costs and benefits associated with
this rulemaking. EPA estimates the total incremental costs to be
approximately $11,846,000 to $18,044,000 in the first year and
approximately $5,641,000 to $8,593,000 in the steady state. In
addition, EPA performed a screening analysis on small entities and
determined this rulemaking will not have a significant economic impact
on a substantial number of small entities. A more detailed discussion
is included in Unit IV.C.
F. Are there potentially disproportionate impacts for children health?
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997),
as applying only to those regulatory actions that concern health or
safety risks that the EPA has reason to believe may disproportionately
affect children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it does not concern an environmental
health risk or safety risk.
G. What are the environmental justice impacts?
This regulatory action changes reporting requirements for NGP
facilities and does not have any direct impact on human health or the
environment. However, for communities living near NGP facilities, there
is the potential for new information about toxic chemical releases and
waste management practices occurring in those communities to become
available through the TRI reporting data. A more detailed discussion is
included in Unit IV. C.
II. Background
As discussed in the proposed rule of January 6, 2017 (82 FR 1651)
(FRL-9953-68) (Ref. 2), EPA proposed to add NGP facilities to the scope
of the industrial sectors covered by the reporting requirements of
section 313 of EPCRA and section 6607 of the PPA. In the proposed rule,
the Agency asserted that adding these facilities would meaningfully
increase the information available to the public on releases and other
waste management of listed chemicals from the NGP sector and further
the purposes of EPCRA section 313. In the proposed rule, EPA estimated
in 2017 that at least 282 NGP facilities in the U.S. would meet the TRI
employee threshold (10 full-time employees or equivalent) and
manufacture, process, or otherwise use (threshold activities) at least
one TRI-listed chemical in excess of applicable threshold quantities.
Collectively, NGP facilities in the U.S. manufacture, process, or
otherwise use at least 21 different TRI-listed chemicals, including n-
hexane, hydrogen sulfide, toluene, benzene, xylene, and methanol.
III. Response to Comments
Upon publication of the proposed rule, EPA initially provided a 60-
day comment period. EPA then granted an additional 60 days to allow
interested parties further time to prepare their comments (82 FR 12924)
(FRL-9959-41). The public comment period for the proposed rule closed
on May 6, 2017. EPA received 5,933 comments on the proposed rule.
The Agency received 5,470 duplicate or significantly similar
comments, leaving 463 unique comments received, of which 25 comments
received were substantive and related to the proposal. Eleven of those
comments were submitted by private citizens, one of which was submitted
anonymously (Docket ID EPA-HQ-TRI-2016-0127, 0202, 0218, 0251, 0268,
0269, 0393, 0452, 0453, 0470, 0486). Three comments submitted by
industry groups requested an extension to the original comment period
(0023, 0024, 0025). Comments were submitted from the following public
interest non-governmental organizations (NGOs): Environmental Action
Center (EAC) (0343), Earthworks (0375), Environmental Integrity Project
(EIP) (0334), Westmoreland Marcellus Citizens' Group (0435), and
Western Governors' Association (0481).
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Comments were also received from the following industry groups:
American Petroleum Institute (API) (0483), GPA Midstream (0475),
Marcellus Shale Coalition (0474), MarkWest (0484), and the Texas
Pipeline Association (TPA) (0478). A comment received from Black
Warrior Riverkeeper (0292) was not relevant to the proposed action.
Comments received from the public interest mass mail campaigns were
supportive of the proposed rule. With the exception of Western
Governors' Association, all comments received from private citizens and
public interest NGOs were supportive of the proposed rule, although
some provided recommendations to include more information in the final
rule. Comments received from industry groups were not supportive of the
rule. EPA's responses to all substantive comments relevant to the
proposed rule are detailed in the remainder of this Unit.
A. Petition Not Authorized by Law
1. Comment
Several commenters argued that the Petition that EIP submitted to
EPA was not authorized by law and therefore should neither have been
considered nor granted in part. Commenters stated that the statutory
provisions for TRI-related petitions are in EPCRA, are only intended
for changes to the chemical list, and do not allow the public to
petition for changes to the list of industry sectors that are subject
to TRI reporting requirements. One commenter stated that the
Congressional implication, therefore, is that other types of petitions
involving TRI are not allowed. Other commenters stated that the Agency
failed to address many considerations that are relevant to the decision
to add NGP facilities to the industry sector list for EPCRA section 313
TRI reporting.
2. EPA Response
The Agency disagrees with the commenters' arguments that the
Petition that EIP submitted to EPA was not authorized by law and should
not have been granted in part. The Administrative Procedure Act (APA)
governs the process by which federal agencies develop and issue
regulations. The APA includes requirements for publishing notices of
proposed and final rulemaking in the Federal Register, and it provides
opportunities for the public to comment on notices of proposed
rulemaking. Under the APA, federal agencies must give interested
persons the right to petition for the issuance, amendment, or repeal of
a rule. 5 U.S.C. 553(e). Accordingly, EIP submitted the petition under
the APA to request that EPA issue a rule to add oil and gas industry
sectors to the scope of the TRI program. That EPCRA also provides
citizens the opportunity to petition EPA for specific rulemaking
actions, specifically to request that the Agency modify the list of
chemicals applicable to TRI reporting requirements, does not supplant
the general petition process that the APA provides. Rather, the
specific EPCRA petition procedure provides a specific timeframe and
requirements for petitions that request changes to the TRI list of
covered chemicals.
EPCRA section 313(b)(1)(B), 42 U.S.C. 11023(b)(1)(B), states that
EPA ``may add or delete [SIC] Codes . . . to the extent necessary to
provide that each [SIC] code to which this section applies is relevant
to the purposes of [the TRI].'' In addition, Congress granted EPA broad
rulemaking authority under EPCRA section 328, 28 U.S.C. 11048, to
``prescribe such regulations as may be necessary to carry out this
chapter.''
The addition of NGP facilities to the scope of the industrial
sectors covered by the reporting requirements of EPCRA section 313 will
meaningfully increase the information available to the public on
releases and other waste management of listed chemicals from the NGP
sector. Thus, addition of this industrial sector is relevant and
necessary to carry out the purposes of the TRI.
B. Inadequate Notice
1. Comment
Some commenters believed that there was a lack of time, both to
submit comments on the proposed rule and to comply with the rule if
finalized. These commenters argued that there was not sufficient time
for them to adequately analyze all the supporting documents related to
the proposed rule and that historically the Agency held extensive
outreach prior to releasing any proposal to add additional sectors
required to report to TRI. One commenter requested the EPA ``allow
sufficient lead time to comply with the rule'' if finalized,
recommending reports not be due until at least 2019 (0475). One
commenter stated that a consultation with states within which these
facilities operate should have occurred to determine the necessity of
adding NGP facilities to the TRI, considering the presence of state
regulations.
2. EPA Response
EPA provided adequate notice to all interested stakeholders,
including the public, industry, and the States, regarding its proposal
to add NGP facilities to the scope of TRI. On October 24, 2012, the EIP
and sixteen other organizations submitted a Petition to EPA, requesting
that the Agency add the Oil and Gas Extraction sector, SIC code 13, to
the scope of sectors covered by TRI under section 313 of EPCRA. EPA
published a Federal Register notice on January 3, 2014 (79 FR 393)
(FRL-9904-82-OEI) acknowledging receipt of the petition from EIP and
placing the Petition in the public docket. On February 25, 2014, API
met with EPA to better understand EPA's intentions for the petition.
The Agency also received comments submitted from industry trade groups
in response to the EIP petition, which EPA made available in the public
docket.
On October 22, 2015, EPA granted, in part, the petition insofar as
it requested that EPA commence the rulemaking process to propose adding
NGP facilities to the scope of TRI Ref. 3) and published its response
in the public docket. On January 6, 2017, the Agency proposed to add
NGP facilities to the scope of the industrial sectors covered by the
reporting requirements of EPCRA section 313. The initial 60-day comment
period was January 6 to March 7, 2017. In response to requests from
multiple stakeholders, the Agency extended the comment period for an
additional 60 days from March 7, 2017 to May 6, 2017. Therefore, there
was sufficient notice for the proposal of adding NGP facilities to TRI.
States also had sufficient time to comment and request consultation
with the Agency. Further, TRI is a federal program designed to provide
information to the public and decisionmakers across all governmental
levels. TRI reporting requirements do not conflict with state
regulation of NGP facilities; rather, they help inform such regulation.
EPA agrees that sufficient lead time should be provided to comply
with the final rule, and has provided sufficient time in the rule
finalized in this action. EPCRA 313(a) provides that reporting shall be
submitted annually on or before July 1 and shall contain data
reflecting waste management occurring during the preceding calendar
year. Accordingly, this final rule is effective December 27, 2021 and
shall apply for the reporting year beginning January 1, 2022, such that
the first reports are due July 1, 2023. This timeframe provides ample
time for facilities to make reasonable estimates of releases and waste
management quantities for chemicals that they manufacture, process, or
otherwise use.
[[Page 66956]]
C. Scope of Addition too Narrow
1. Comment
One commenter suggested that EPA expand the description of the
proposed rule from mostly focusing on why it is adding NGP facilities
to the scope of industries required to report under TRI, to also
encompassing reasons for not requiring the rest of the Oil and Gas
Extraction Industry sector to report under TRI. Another commenter
asserted that the proposed rule did not sufficiently explain why it
limits the scope of the addition to NGP facilities alone, and that
while EPA explains that it will add NGP facilities to the list of TRI
reporting industries, the Agency insufficiently explains what this
limited scope means for chemical release data reporting and why the
Agency decided on such a limited scope.
2. EPA Response
In its response to the EIP Petition, the Agency provided its
rationale for proposing to add only NGP facilities from the Oil and Gas
Extraction sector at that time. As detailed in EPA's rationale in the
Petition Response (available at https://www.regulations.gov/document/EPA-HQ-TRI-2013-0281-0047 in regulations.gov), considerations of the
EPCRA statutory definition of ``facility,'' as well as numerous other
EPA activities addressing the oil and gas sector, warranted focusing
this rulemaking on NGP facilities specifically.
D. Data Used To Evaluate NGP Facilities
1. Comment
Several comments from industry suggested that the data EPA
evaluated to support the proposed addition of NGP facilities were used
improperly and incorrectly identified the number of U.S. NGP facilities
that may trigger TRI reporting requirements. For example, in Table 2.2
of EPA's economic analysis for the proposed rule (Ref. 4), EPA based
its estimates of chemical forms TRI would receive on the number of
facilities Canada's National Pollutant Release Inventory (NPRI), a
program analogous to TRI, already covers that would be required to
report (estimating that it would receive 242 forms from 31 reporting
facilities with 10 or more full-time employees (FTEs) and reporting a
TRI chemical, or 7.81 forms per facility). API contends that EPA should
have included in its estimates those facilities with fewer than 10
FTEs, not reporting a TRI chemical, that would thus not report to TRI,
(which would result in less than one form per facility). API contends
that this shows the reporting would provide little benefit to further
the purposes of EPCRA section 313.
2. EPA Response
EPA analyzed data from multiple sources and used modeling
techniques to identify the estimated universe of NGP facilities that
could trigger TRI reporting requirements if EPA were to add NGP
facilities to the scope of industrial sectors covered by TRI (Ref. 4).
These data sources included the U.S. Energy Information Administration
survey (EIA-757 survey), Canada's NPRI, EPA's Risk Management Plan
(RMP) Program, and EPA's Greenhouse Gas Reporting Program (GHGRP).
Based on these datasets, EPA estimated that NGP facilities in the U.S.
collectively manufacture, process, or otherwise use more than 21
different TRI-listed chemicals. These chemicals include n-hexane,
hydrogen sulfide, toluene, benzene, xylene, and methanol. Since the
proposed rule, EPA updated its analysis and now estimates that between
321 and 489 NGP facilities in the U.S. would meet the TRI employee
threshold (10 full-time employees or equivalent) and manufacture,
process, or otherwise use at least one TRI-listed chemical in excess of
applicable threshold quantities (Ref. 5). Thus, because EPA is basing
its estimates of facilities that would report to TRI only on the counts
of NGP facilities with 10 or more full-time employees or equivalent and
not the entire universe of NGP facilities in the U.S., EPA's estimated
facility counts are commensurable with the 31 NPRI facilities and
associated forms-per-facility ratios identified in the NPRI data. EPA's
analysis clearly establishes that there are facilities within the
candidate NGP industry group whose reporting can reasonably be
anticipated to increase the information made available pursuant to
EPCRA section 313, or otherwise further the purpose of EPCRA section
313. Furthermore, based upon information submitted to the NPRI and the
2017 EIA-757 survey of NGP facilities, as well as based on EPA's
understanding of the sector, EPA expects that TRI reporting by U.S. NGP
facilities will provide substantial release and waste management data.
E. Improper Use of Canada's NPRI Data by EPA To Evaluate NGP Facilities
1. Comment
There were a few commenters who believed that EPA improperly used
Canada's NPRI data to evaluate NGP facilities in the U.S. The
commenters believe that EPA's use of the NPRI data overestimated the
number of NGP facilities and number of TRI chemicals that would trigger
thresholds to be reported under EPCRA section 313. One commenter
expressed concern that EPA utilized NPRI data selectively by using it
only to identify chemicals used in the NGP industry, but not to
recognize from those same NPRI data that reported releases are almost
exclusively to air, are therefore already reported to air emissions
programs, and no releases to other media or other unique information
would be reported to TRI (0334). Another commenter, though supportive
of the rule, recommended EPA base its information factor conclusion on
evidence from the actual facilities it would regulate rather than
surrogate data from the NPRI.
2. EPA Response
EPA disagrees that it improperly used Canada's NPRI data. The NPRI
data provide information on what chemicals and associated quantities
are universally used in the NGP industry. EPA used the NPRI data
alongside other domestic information sources (e.g., EIA-757) to
estimate what chemicals and associated quantities are likely used by
NGP facilities in the U.S. As detailed in Unit III.G.2 of this notice,
data reported to TRI include releases to media, including air, but also
many other data elements--such as pollution prevention and other source
reduction activities--not reported to air programs. That releases
reported by Canadian NGP facilities to NPRI are predominantly to air
does not render EPA's inferences on chemical usage improper or unsound,
nor does it have a bearing on the utility of air emissions data and
associated information reported to TRI. As stated in Unit III.G.2 of
this notice, TRI is a nationwide database that places data in a
central, publicly accessible location. Further, TRI data provide unique
benefits in that they are collected annually; they reflect chemical
emissions to multimedia, including air, water, and land; and they
encompass source reduction and other pollution practices. Simply put,
TRI reporting involves more than reporting on releases to air, and
increasing the TRI dataset to include reporting from NGP facilities
would provide access to data not otherwise available from other
programs, and in a format that is readily accessible and designed for
public use.
F. Prior Decision To Not Include Additional Oil and Gas Industry
Sectors
1. Comment
One commenter expressed concern that EPA did not provide sufficient
[[Page 66957]]
justification as to why the inclusion of NGP facilities under TRI
should be revisited and why NGP facilities should ultimately be made
subject to EPCRA section 313 reporting. Two other commenters, though in
support of the rule, recommended that EPA reconsider its decision to
limit the scope of the addition to processing facilities, and instead
include extraction and mid-stream compressor facilities. Another
commenter suggested that EPA include its rationale in the final rule
for limiting the scope of the proposed addition to processing
facilities.
2. EPA Response
EPA disagrees that it has not provided sufficient justification for
revisiting the inclusion of NGP facilities under TRI. In its 1997
sector addition rulemaking, EPA considered the addition of the oil and
gas industry group to TRI. At that time, EPA indicated that one
consideration for not including the industry group was concern over how
a ``facility'' would be defined for purposes of reporting in EPCRA
section 313 (61 FR 33592) (FRL-5379-3). That issue, in addition to
other questions, led EPA to not include, at the time, the oil and gas
industry group as a whole.
However, EPA has since determined that NGP facilities are
appropriate for addition to the scope of TRI. The triennial survey of
NGP facilities by the by the EIA (EIA-757 survey) (Ref. 6), identifies
478 NGP facilities in the lower 48 states as of 2017. The continued
growth of natural gas production since 2014 also provides justification
for revisiting the inclusion of NGP facilities (Ref. 5). EPA estimated
that over half of those facilities would annually meet TRI reporting
thresholds and, if covered by the reporting requirements of TRI, be
required to submit TRI information to EPA. The information likely to be
obtained from these facilities is not readily available elsewhere.
As described in the petition response (Ref. 3), when the three
factors that EPA considered in the 1997 TRI sector addition (Ref. 7)
are applied to NGP facilities, the chemical factor and activity factor
are met by most NGP facilities--many TRI-listed chemicals are regularly
manufactured, processed, or otherwise used at these facilities. With
respect to the information factor (i.e., the third factor), the
addition of NGP facilities to TRI would meaningfully increase the
information available to the public and further the purposes of EPCRA
section 313. As stated in Unit III.B.1 of this notice, using
information from Canada's NPRI, a program analogous to TRI and which
covers NGP facilities, EPA estimates that NGP facilities in the U.S.
collectively manufacture, process, or otherwise use more than 21
different TRI-listed chemicals. These chemicals include n-hexane,
hydrogen sulfide, toluene, benzene, xylene, and methanol. In contrast,
related facilities, such as extraction or compressor facilities, are
not likely to meet the TRI full-time employee or activity thresholds,
as EPA concluded in the 1997 TRI sector addition (Ref. 7).
Because TRI coverage of NGP facilities would meet the chemical,
activity, and information factors, and based on the number of NGP
facilities that would be required to report to TRI, the Agency has
provided adequate rationale for their addition to TRI.
G. The Addition the Rule Proposes Is Not Relevant to the Purposes of
TRI
1. Comment
Some commenters stated that the proposed rule would provide
redundant data, and it is unnecessary to include NGP facilities on TRI
because other regulatory programs already collect these data.
Commenters assert that much of these data are already in the public
domain and that NGP facilities already report spills and releases,
track waste disposal activities, and obtain air permits and report
deviations from permit conditions. In addition, commenters expressed
that the focus of TRI is to increase the level of publicly available
information to help communities plan for response actions in the event
of a release. Commenters also expressed that NGP facilities ``do not
pose the same level of risk as other facilities that Congress and EPA
have deemed significant enough to include in the TRI'' (0478) as well
as that hazardous air pollutants (HAPs) are already covered under the
National Emission Standards for Hazardous Air Pollutants (NESHAP),
which minimize risk of accidental releases. One commenter further
expressed concern that NGP facility release data reported to TRI could
be misunderstood or mischaracterized by the public, in that most NGP
facility releases are authorized by permits (e.g., Clean Air Act
permitting) and thus are planned and controlled.
2. EPA Response
EPA disagrees that the data reporting that the rule would require
is not relevant to the purposes of TRI. TRI's central focus is to
provide information to federal, state, and local governments and the
public, including citizens of communities surrounding covered
facilities; to inform persons about releases of toxic chemicals to the
environment; to assist governmental agencies, researchers, and other
persons in the conduct of research and data gathering; to aid in the
development of appropriate regulations, guidelines, and standards; and
for other similar purposes. Further, though planning for an emergency
response action is not a primary focus of TRI, information collected
under TRI do help inform decision-making related to potential risk
concerns. Moreover, the addition of NGP facilities would meaningfully
increase the information available to the public on releases and other
waste management of listed chemicals from the NGP sector and further
the purposes of EPCRA section 313. Further, TRI is a nationwide
database that places data in a central, publicly accessible location,
and TRI data are uniform and commensurable, better enabling meaningful
comparisons, analyses, and trend determinations.
The Agency is aware that the public may misunderstand or
misrepresent TRI data. Misuse or misinterpretation of information does
not mean that the basis for collecting the information is invalid. EPA
finds that the appropriate solution to this issue for TRI is education
and outreach, rather than a decision not to include an otherwise
eligible industry group on TRI. However, any potential for
misconstruing TRI data is not unique to NGP facilities or the data they
would submit. Further, EPA finds the activities and processes NGP
facilities conduct are analogous to those of the Petroleum Refineries
sector (NAICS 324110), which is a covered sector under TRI. Thus,
including NGP facilities would provide information to TRI similar to
what facilities in the petroleum refineries sector already provide. EPA
provides a ``Factors to Consider When Using Toxics Release Inventory
Data'' document to help stakeholders understand how to use TRI
appropriately (accessible at https://www.epa.gov/sites/production/files/2019-03/documents/factors_to_consider_march_2019.pdf). EPA is
amenable to recommendations on how to further improve stakeholders'
ability to make use of TRI data.
H. NGP Facilities are Currently Regulated by Law (Federal and State)
1. Comment
Some commenters referred to existing federal and state regulations,
among them EPA's National Emissions Inventory (NEI) program, which
already impose compliance obligations on NGP
[[Page 66958]]
facilities, as sufficient and a reason for EPA to withdraw the proposed
rule.
2. EPA Response
The Agency disagrees. Although EPA's NEI program also collects and
publishes air emissions data pertaining to NGP facilities, TRI
reporting by these facilities would offer key benefits the NEI does not
provide. First, the NEI is limited to air emissions, whereas TRI
requires disclosure of releases to air, land, and water, as well as
waste management and pollution prevention information. Second, the NEI
is published on a triennial basis, whereas TRI data are collected and
published annually. Third, the different purposes of the two programs
drive different uses of the data they collect. TRI was developed to
provide the public with information about the disposition of toxic
chemicals in their communities, whereas the NEI was developed to
collect data to support air modeling and risk assessments at the
national level.
Further, any generation or collection of overlapping data by TRI is
not unique to NGP facilities. As stated in its information collection
request (ICR) (Ref. 8), EPA anticipates some overlap of TRI and other
programs, and notes that section 313(g)(2) of EPCRA specifies that
respondents may use readily available data collected pursuant to other
provisions of law to complete the EPCRA section 313 reports.
Finally, information required by these other statutes may not
provide readily accessible multi-media release and transfer, inventory,
or pollution prevention data with the same scope, level of detail,
chemical coverage, and frequency of collection as data currently
included in TRI. As described in Unit III.G.2, given TRI's community-
right-to-know foundations, TRI data are designed to be especially
accessible and easy to use, and the systems that offer them to the
public over the Web provide numerous analysis, download, and
visualization tools. Thus, the rule provides benefits that other
regulations and programs do not.
I. NGP Reporting Imposes Significant Burdens on the Regulated Community
and EPA Underestimates These Burdens
1. Comment
Some commenters stated that EPA's proposed rule underestimates the
costs of compliance, the burden and related cost of reporting for NGP
facilities, and associated cost of collecting economic data. Commenters
also suggested that EPA does not take into account the full operational
activities of NGP facilities and that the burden analysis that EPA
conducted only considers cost to prepare and submit forms; the analysis
does not account for costs associated with tracking and analysis of
chemicals activity that do not reach reporting thresholds but
nonetheless must be tracked as part of determining TRI reporting
applicability. One commenter pointed to the 44 pages of guidance that
EPA has published on the subject of threshold calculations alone as
evidence of ambiguity and resultant baseline burden imposed on
facilities to merely determine their reporting obligation. Another
commenter suggested EPA reduce the scope of the final rule to focus
only on the approximately 21 chemicals used by NGP facilities and not
require reporting from NGP facilities on other TRI chemicals.
2. EPA Response
As detailed in Unit III.F.2 of this notice, according to a
triennial survey of NGP facilities by the EIA (EIA-757 survey),
described further in the economic analysis EPA prepared for this
rulemaking (Ref. 4), there were 517 NGP facilities in the lower 48
states as of 2012. Since the proposed rule, an updated EIA survey
estimated there were 478 such facilities as of 2017 (Ref. 5). EPA
estimates that more than half of these facilities would annually meet
TRI reporting thresholds for one or more of 21 different TRI-listed
chemicals and, if covered by the reporting requirements of TRI, would
be required to submit TRI information to EPA. The information likely to
be obtained from these facilities is not readily available elsewhere.
EPA disagrees that it has underestimated burden by failing to
account for activities ancillary to Form R or A submittal, such as rule
familiarization (i.e., staff at a facility that is reporting under
EPCRA section 313 for the first time must read the reporting package
and become familiar with the reporting requirements, which includes the
time needed to review instructions, and the time needed to train
personnel to respond to a collection of information), reporter
compliance determination, or non-reporter compliance determination
(i.e., those eligible facilities that will complete compliance
determination but will not file a Form R or Form A). As described in
the economic analysis of the proposed addition (Ref. 30) and included
in the docket for the proposed rule, the new methodology used to
estimate reporting burden in the proposed rule--Ratio-Based Burden
Methodology (RBBM)--is a restructured and simplified formulation of the
previously employed methodology; OMB approved this new methodology,
which was published on April 28, 2011 (Ref. 35). When estimating
reporting burden using RBBM, the Nominal Form R unit burden is the base
number and Form A unit burden is set at 61.5% of that value. These unit
burdens reflect burden associated with form activities including rule
familiarization, reporter compliance determination, calculations and
form completion, and recordkeeping. In addition to Form R and Form A
burden, total TRI Program burden is captured by adding non-form
burden--associated with supplier notification, non-reporter compliance
determination, and petitions--to form burden.
EPA disagrees with TPA's assertion that quantity of guidance on a
subject is indicative of that subject's complexity and resulting burden
that this rule would place on NGP facilities to assess their reporting
obligations and prepare and submit reports. The 44 pages of guidance on
threshold calculations to which TPA refers is a compendium of questions
EPA has received over time from facilities across all TRI-covered
industry sectors. It is not reasonable to suggest that a single NGP
facility or all NGP facilities in aggregate would encounter a
comparable quantity, or even a substantive portion, of those unique
scenarios that all facilities in all covered industry sectors have
identified in the TRI program's 35 years of existence where detailed
guidance was provided. Further, EPA disagrees with TPA's suggestions
that the Agency's offering of an ``advanced concepts'' training course
and a threshold screening tool demonstrate the complexity of reporting.
That some facilities have dealt with complexities does not lead to the
conclusion that all facilities will face complexities. Indeed, TPA
fails to identify any specific complexity that NGP facilities would
face, whether shared by all covered facilities or specifically by NGP
facilities due to this sector's unique activity characteristics.
Where reporting requirements for NGP facilities overlap with other
state and federal laws, as several commenters have identified, the
Agency finds that because facilities already collect data and have
mechanisms in place to do so, any additional burden increment from
reporting to TRI on such overlapping requirements will be minimal.
Finally, EPA disagrees that NGP facilities otherwise subject to
reporting should be restricted to only report on the 21 TRI-listed
chemicals EPA has identified as associated with the NGP industry. As
described at 42 U.S.C. 11023(a) and (b)(1)(A) and (B), EPA has
authority to
[[Page 66959]]
require reporting from covered facilities on all TRI-listed chemicals.
While EPA has identified 21 TRI-listed chemicals associated with the
NGP industry, the burden of determining what other TRI-listed chemicals
or chemical categories is not associated with a specific facility is
minimal. Requiring NGP facilities to report to TRI on chemicals and
chemical categories in addition to the 21 that EPA has associated with
the NGP industry is consistent with furthering the purposes of EPCRA
section 313.
J. Applicability of Executive Order 13771
1. Comment
Some commenters (0483, 0474, 0478) suggested that EPA consider E.O.
13771 (Reducing Regulation and Controlling Regulatory Costs), which
they claim specifies that any new regulation should impose zero
incremental costs and that EPA identify two existing regulations to be
eliminated to offset any potential incremental costs of a new
regulation. Commenters believe that, in contravention of E.O. 13771,
the proposed rule creates undue burden with limited benefit and is
incompatible with the objective of energy independence and economic
growth. API also stated that in EPA's response to the EIP petition on
October 22, 2015, the Agency wrote that NGP facilities are already
subject to a wide range of multi-media requirements, suggesting that
the existence of these requirements bolsters its position that this
action is in contravention of E.O. 13771.
2. EPA Response
Executive Order 13771 of January 30, 2017 was revoked on January
20, 2021. Thus, EPA finds that comments referencing E.O. 13771 are
moot. EPA has delineated its response to concerns of undue and
unwarranted burden in Unit III.C.4. of this notice.
Confusion for Facilities in Determining TRI Applicability
K. Definition of ``Facility'' Is Flawed and Confusing for Industry
1. Comment
Some commenters believed that the statutory definition of
``facility,'' as applied to NGP facilities in the context of this rule,
is flawed and creates confusion among industry and significant burden
in understanding TRI reporting requirements. One commenter stated that
the unique definitions of facility under other (non-TRI) statutes and
programs used by EPA in its TRI estimations inflated the actual number
of NGP facilities that may need to report if the rule were finalized
and NGP were added as a covered industry sector under TRI. One
commenter stated that the definition of facility results in coverage of
small and insignificant sources of emissions and contends that the
occasional inclusion of remote non-NGP operations in reporting to TRI
is an unintended consequence that goes beyond Congressional intent.
Commenters further cite previously identified issues with how to apply
the definition of ``facility'' to the entire Oil and Gas Industrial
Sector as mentioned in the 1996 proposed rule (finalized in 1997), when
EPA deferred adding the oil and gas extraction industry group ``because
of questions regarding how particular facilities should be
identified,'' (61 FR 33588) (FRL-5379-3), and assert that these
questions apply to the proposed NGP rule as well. On the other hand,
some commenters felt that EPA should interpret the facility definition
more ``broadly'' to capture a collectively large source of potential
environmental contamination from the Oil and Gas Industrial Sector more
broadly.
2. EPA Response
EPCRA section 329(4) defines the term ``facility'' to mean ``all
buildings, equipment, structures, and other stationary items which are
located on a single site or on contiguous or adjacent sites and which
are owned or operated by the same person (or by any person which
controls, is controlled by, or under common control with, such person)
. . . .'' 42 U.S.C. 11049(4). See also, 40 CFR 372.3, which reflects
the statutory definition and provides that a facility may contain more
than one establishment, which the term establishment being defined as
an economic unit, generally at a single physical location, where
business is conducted or where services or industrial operations are
performed. EPA disagrees that its application of the statutory
definition of ``facility'' to the NGP facilities that are the subject
of this rule is flawed. This rule does not add the entire Oil and Gas
Industrial Sector to the TRI, and thus the ``questions regarding how
particular facilities should be identified'' (61 FR 33588) (FRL-5379-3)
at play in the 1996 proposed and 1997 final rule are not at play here.
As EPA explained at pages 5-6 of its response to the EIP Petition,
available at https://www.regulations.gov/document/EPA-HQ-TRI-2013-0281-0047, ``[u]nlike the remainder of this industrial sector . . ., natural
gas processing plants readily meet the statutory definition of
`facility' at EPCRA section 329(4), 42 U.S.C. 11049(4).''
EPA also disagrees with the recommendation to apply the facility
definition more ``broadly'' as part of this addition, such that
geographically discrete oil and gas operations under common ownership
should constitute a single facility under EPCRA. This comment to apply
the ``facility'' definition more ``broadly,'' like the EIP petition,
references Sierra Club, Inc. v. Tyson Foods, Inc., 299 F. Supp. 2d 693
(W.D. Ky. 2003), where discrete chicken houses spaced 50 to 60 feet
apart, under common ownership, were considered a single facility under
EPCRA. As detailed in its petition response, EPA finds the average
physical distances separating oil and gas operations far exceed those
at issue in Sierra Club, Inc. v. Tyson Foods, Inc. However, there will
be situations where distances between sites will warrant such sites
being considered one facility for TRI-reporting purposes. As an
example, in scenarios where sites that would otherwise be contiguous or
adjacent are separated by a right of way, such sites are considered one
facility for Section 313 reporting purposes. Further, as indicated in
the proposed rule, contiguous or adjacent sites with a common owner or
operator can result in such sites being included in the reporting
required by an NGP facility, though these contiguous or adjacent sites
would otherwise not trigger reporting had they been geographically
distant from the TRI-covered NGP facility. In light of the statutory
definition of ``facility,'' which specifically provides that such
adjacent or contiguous facilities under common ownership are a single
facility, the Agency disagrees that inclusion of such facilities in
reporting to TRI is contrary to Congressional intent.
Although it is true that RMP and GHGRP have unique definitions of
``facility,'' which differ from EPCRA and may cause EPA's estimates of
NGP facilities to be higher or lower than those that would ultimately
report to TRI, EPA finds that data from these programs are appropriate
for modeling the universe of NGP facilities in the U.S. that would
report to TRI as a range--the lower bound estimate of which is 321
facilities--as well as estimating burden and determining if the
addition would increase information made available pursuant to EPCRA
section 313.
L. Confusion for Facilities in Determining TRI Applicability
1. Comment
One commenter recommended that EPA clarify issues related to how
[[Page 66960]]
facilities determine their NAICS classification by referencing the 2012
NAICS in the proposal, as significant changes were made to six of the
NAICS sectors in 2017.
2. EPA Response
TRI requires facilities to determine their own NAICS code(s), based
on their on-site activities and by conducting NAICS keyword and 2- to
6-digit searches on the U.S. Census Bureau website. Further, facilities
may include multiple establishments that may have different NAICS codes
as distinct and separate economic units. For TRI reporting, these
facilities determine which economic activity contributes the majority
or plurality of the facility's revenue. If the total value added of the
products produced, shipped, or services provided at establishments with
covered NAICS codes is greater than 50 percent of the value added of
the entire facility's products and services, the entire facility meets
the NAICS code criterion. If an establishment with a covered NAICS code
has a value added of services or products shipped or produced that is
greater than any other establishment within the facility (40 CFR
372.22(b)(3)), the facility also meets the NAICS code criterion. A
final rule was published in the Federal Register on December 26, 2017
(82 FR 60906) (FRL-9970-02) to adopt 2017 NAICS codes for reporting
year (RY) 2017 and subsequent reporting years. Accordingly, this final
rule adds the portion of the industry sector categorized under NAICS
211130 to the scope of TRI requirements. Qualifiers for NAICS codes are
common in TRI reporting requirements.
M. Naturally Occurring Argument
1. Comment
One commenter claimed that prior case law (the comment cited
Barrick Goldstrike Mines, Inc. v. Whitman, 26 F. Supp. 2d 28, 41
(D.D.C. 2003), and Nat'l Min. Ass'n v. Browner, 2001 WL 1886840, No.
CIV. A. 97 N 2665, at *6 (D. Colo. 2001)) ``established (1) that under
EPCRA section 313, the term `manufacture' of TRI chemicals is limited
to the creation of the TRI chemical or compound as a result of human or
industrial activities, and naturally occurring TRI chemicals and
compounds originally present in a raw material feedstock will not be
considered as `manufactured' within the meaning of EPCRA section 313
and (2) the corollary that activities involving unaltered naturally
occurring chemicals and compounds cannot be considered as `processing'
within the meaning of EPCRA section 313 as the activity of `processing'
requires the predicate of the EPCRA section 313 `manufacture' of the
TRI chemical.'' (0482) This commenter contends that activities
involving naturally occurring chemicals and compounds cannot be
considered for manufacturing and processing thresholds. Based on this
contention, the commenter asserts that EPA has overestimated the number
of chemicals and facilities expected to trigger thresholds and thus
provided a flawed rationale for the rule.
2. EPA Response
EPA disagrees with the commenters' interpretation of cited case
law. The courts did not determine that manufacture is limited to the
creation of the TRI chemical; the courts instead held that preparation
of a listed chemical can only be considered ``processing,'' per the
EPCRA definition, where the chemical has already been ``manufactured''
by some other activity. Further, it was noted that manufacture includes
activities such as preparation. When natural gas is extracted from the
Earth, it may contain chemical components other than methane. During
and after extraction, the natural gas and its components undergo
various separation and preparation activities. When it reaches an NGP
facility, the natural gas is no longer the naturally-occurring, raw
material it was at the time of extraction; it has already undergone
preparation activities prior to and upon arriving at the NGP facility.
The NGP facility then continues preparing and processing the natural
gas--separating certain impurities and other components, among other
activities--and distributes into commerce the methane gas and certain
other products. EPA finds these activities constitute ``processing''
within the meaning of EPCRA section 313(b)(1)(C)(ii) and 40 CFR 372.3,
and align with longstanding interpretations of the processing threshold
activity, such as facilities that primarily recover sulfur from natural
gas (originally added by Congress when enacting the statute), and the
Petroleum Refineries sector, which are already covered under TRI.
IV. Summary of Final Rule
A. Scope of Addition
In this action, EPA is adding NGP facilities to the list of
facilities subject to EPCRA section 313 reporting requirements.
The proposed rule contained information on EPA's review of the
natural gas liquid extraction sector and these specific NGP facilities
(Ref. 2). NGP facilities are stationary surface facilities that receive
gas from a gathering system that collects raw natural gas from many
nearby wells and prepares the gas for delivery to the NGP facilities.
These NGP facilities further process the natural gas (composed
primarily of methane) to industrial or pipeline specifications and
extract heavier liquid hydrocarbons from the prepared field natural
gas. During this process, natural gas liquids (NGLs) (i.e.,
hydrocarbons heavier than methane) and contaminants (e.g., hydrogen
sulfide, carbon dioxide, and nitrogen) are separated from the natural
gas stream, resulting in processed, pipeline-quality natural gas. NGLs
are fractionated on-site into isolated streams (e.g., ethane, propane,
butanes, natural gasoline) or shipped off-site for subsequent
fractionation or other processing. Hydrogen sulfide is often either
disposed through underground injection or reacted into sulfuric acid or
elemental sulfur, while carbon dioxide and nitrogen may be emitted to
the atmosphere. The processed pipeline-quality natural gas is then
transferred to consumers via intra- and inter-state pipeline networks.
NGLs are primarily used as feedstocks by petrochemical manufacturers or
refineries. SIC 1321 (Natural Gas Liquids) and NAICS 211130 (Natural
Gas Liquid Extraction) comprise establishments that recover liquid
hydrocarbons from oil and gas field gases (see discussion in Unit I.A.
of this notice). NAICS 211130 includes facilities that recover sulfur
from natural gas--such facilities already report TRI data to EPA
because they are in SIC 2819 (Industrial Inorganic Chemicals, Not
Otherwise Classified), which is a manufacturing sector covered by TRI.
Current regulations only require NAICS 211130 facilities that recover
sulfur from natural gas to report TRI data (i.e., facilities in SIC
2819). Specifically, 40 CFR 372.23(b), which covers NAICS codes that
correspond to SIC codes 20 through 39, lists NAICS 211130 but states:
``Limited to facilities that recover sulfur from natural gas and
previously classified under SIC 2819, Industrial Inorganic chemicals,
Not Elsewhere Classified.'' By adding SIC 1321 to the scope of industry
sectors covered by TRI and including SIC 1321 into the qualifier for
the NAICS 211130 listing, EPA is expanding TRI coverage to include all
NGP facilities that meet TRI-reporting thresholds.
This rule does not add to TRI coverage of natural gas field
facilities that only recover condensate from a stream of natural gas,
lease separation facilities that separate condensate from natural gas,
or natural gas pipeline
[[Page 66961]]
compressor stations that supply energy to move gas through transmission
or distribution lines into storage. Additional examples of operations
that this rule does not add to TRI coverage include Joule-Thompson
valves, dew point depression valves, and isolated or standalone Joule-
Thompson skids. The industrial operations described in this paragraph
often occur at or close to extraction sites and are typically
classified under NAICS codes other than 211130 (e.g., NAICS 221210
(Distribution of Natural Gas)), and thus are not within the scope of
the NAICS code addition. However, the term ``facility'' is defined by
EPCRA section 329(4) as all buildings, equipment, structures, and other
stationary items which are located on a single site or on contiguous or
adjacent sites and which are owned or operated by the same person (or
by any person which controls, is controlled by, or under common control
with, such person) 42 U.S.C. 11049(4). Accordingly, operations
described in this paragraph could be part of a single ``facility'' with
TRI reporting and recordkeeping requirements if they are contiguous or
adjacent to ``buildings, equipment, structures, and other stationary
items'' with a common owner or operator that are in a covered TRI
industrial sector.
B. Why do some natural gas processing facilities already submit TRI
reporting forms to EPA?
Some NGP facilities are already subject to TRI reporting
requirements because NGP facilities that recover sulfur from natural
gas are part of a manufacturing sector that was originally subjected to
reporting to TRI by Congress. Specifically, the scope of TRI sectors
subject to reporting includes SIC code 2819 (Industrial Inorganic
Chemicals, Not Elsewhere Classified), which was one of the
manufacturing sectors in SIC 20-39 originally required to report to TRI
by Congress. SIC code 2819 crosswalks to several manufacturing sector
NAICS codes, including 211130 (Natural Gas Extraction), but only to the
extent that it includes facilities that engage in sulfur recovery from
natural gas.
Thus, when EPA began to use NAICS codes for TRI reporting purposes,
the Agency listed NAICS 211112 (for 2002, 2007 and 2012 NAICS) with a
qualifier to limit TRI coverage of the sector to facilities that fit
SIC code 2819. The 2017 NAICS for Natural Gas Extraction was updated to
NAICS 211130. See 40 CFR 372.23(b) (211130--Natural Gas Extraction):
``Limited to facilities that recover sulfur from natural gas
(previously classified under SIC 2819, Industrial Inorganic chemicals,
NEC (recovering sulfur from natural gas)).''
C. What are the environmental justice impacts of the final rule?
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
the federal executive policy on environmental justice (EJ). Its main
provision directs federal agencies, to the greatest extent practicable
and permitted by law, to make EJ 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
U.S. Executive Order 14008 (86 FR 19, February 1, 2021) reiterated a
commitment to securing EJ and, among other provisions, directed
agencies to make achieving EJ a part of their missions by developing
programs, policies, and activities to address the cumulative impacts of
environmental, health, and climate-related issues in disadvantaged
communities.
This regulatory action changes reporting requirements for NGP
facilities and does not have any direct impact on human health or the
environment. However, for communities living near NGP facilities, there
is the potential for new information about toxic chemical releases and
waste management practices occurring in those communities to become
available through the TRI reporting data.
To better understand how many people live near these facilities and
the demographics of those communities, EPA used the EJSCREEN
environmental justice screening and mapping tool (Ref. 10) to aggregate
information about their populations and demographics. EJSCREEN uses
information about the population living in each Census block group
contained within a user-defined radius to estimate the total population
and related demographic indicator information. In past screening
experience, EPA has found it helpful to establish a suggested starting
point for the purpose of identifying geographic areas that may warrant
further EJ consideration, analysis, or outreach. For early applications
of EJSCREEN, EPA identified the 80th percentile filter as that initial
starting point. See Technical Information about EJSCREEN at https://www.epa.gov/ejscreen/technical-information-about-ejscreen for more
information (Ref. 11).
Latitude and longitude information was available for all but seven
facilities included in the upper bound estimate of the universe of
affected NGP facilities, enabling EPA to make use of EJSREEN for 482 of
the affected NGP facilities. Using EJSREEN, EPA summarized population
demographics using a one- and three-mile radius around each facility to
identify and understand EJ impacts in communities and help identify a
community's potential vulnerability to environmental and health
concerns.
In total, there are approximately 1.4 million people living within
three miles of at least one of the 482 NGP facilities identified.
Demographic information about the number of these facilities exceeding
the 80th national percentile value is included below. Some NGP
facilities are located in communities where there are potential EJ
considerations. For example, 41 NGP facilities are located in a three-
mile radius of communities where the low-income indicator exceeds the
80th percentile. Note that potential EJ impacts in communities can be
different when considered at distances other than the one- or three-
mile radii considered in the analysis provided below.
Table 1--Demographic Information Based on One and Three-Mile Radii Around NGP Facilities Using EJSCREEN Data
--------------------------------------------------------------------------------------------------------------------------------------------------------
Facilities exceeding 80th percentile
---------------------------------------------------------------
One-mile radius Three-mile radius
Demographic indicator Description ---------------------------------------------------------------
Percent (out Percent (out
Number of 482) Number of 482)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Low Income..................................... The percent of individuals in 42 8.7 41 8.5
households where the household income
is less than or equal to twice the
federal ``poverty level''.
[[Page 66962]]
People of Color................................ The percent of individuals who list 20 4.1 31 6.4
their racial status as a race other
than white alone and/or list their
ethnicity as Hispanic or Latino.
Less than High School Education................ The percent of people age 25 or older 87 18.0 134 27.8
whose education is short of a high
school diploma.
Linguistic Isolation........................... The percent of people living in a 34 7.1 67 14.0
household in which all members age 14
years and over speak a non-English
language and also speak English less
than ``very well'' (have difficulty
with English).
Demographic Index.............................. Average of the Low Income and People of 23 4.8 32 6.6
Color indicators.
--------------------------------------------------------------------------------------------------------------------------------------------------------
It is important to note that one of the TRI program's primary goals
is to engage in outreach to promote sustainability, inform community-
based environmental decision-making, and work toward environmental
justice with the goal of achieving environmental protections for all
communities. To meet this goal, the TRI program: Builds awareness of
TRI resources through focused communications; Promotes discussion and
collaboration among data users through webinars and conferences;
Assists individual users and communities with analyses and
interpretation; Engages with community and academic stakeholders to
enhance understanding and use of data; and Develops tailored resources
for supporting environmental justice and tribal research.
V. References
The following is a listing of the documents that are specifically
referenced in this document. The docket includes these documents and
other information considered by EPA, including documents that are
referenced within the documents that are included in the docket, even
if the referenced document is not physically located in the docket. For
assistance in locating these other documents, please consult the person
listed under FOR FURTHER INFORMATION CONTACT.
1. Environmental Integrity Project, Chesapeake Climate Action
Network, CitizenShale, Clean Air Council, Clean Water Action,
Delaware Riverkeeper Network, Earthworks, Elected Officials to
Protect New York, Environmental Advocates of New York, Lower
Susquehanna Riverkeeper, Natural Resources Defense Council, OMB
Watch, PennEnvironment, Powder River Basin Resource Council, San
Juan Citizens Council, Sierra Club, Texas Campaign for the
Environment. Petition to Add the Oil and Gas Extraction Industry,
Standard Industrial Code 13, to the List of Facilities Required to
Report under the Toxics Release Inventory. October 24, 2012.
2. EPA. Proposed Rule; Addition of Natural Gas Processing Facilities
to the Toxics Release Inventory (TRI). Federal Register. 82 FR 1651,
January 6, 2017 (FRL-9953-68).
3. USEPA. Formal Response to October 24, 2012, Petition to Add the
Oil and Gas Extraction Industry, Standard Industrial Classification
Code 13, to the List of Facilities Required to Report under Section
313 of the Emergency Planning and Community Right-to-Know Act.
October 22, 2015.
4. USEPA, OPPT. Economic Analysis of the Proposed Addition of
Natural Gas Processing Facilities to the Toxics Release Inventory.
August 11, 2016.
5. USEPA, OPPT. Addendum to the Economic Analysis of the Proposed
Addition of Natural Gas Processing Facilities to the Toxics Release
Inventory; Applicable to the Final Rule. November 2021.
6. US Energy Information Administration (EIA). 757 Natural Gas
Processing Plant Survey. 2017. https://www.eia.gov/survey/#eia-757.
7. USEPA. Final Rule; Addition of Facilities in Certain Industry
Sectors; Revised Interpretation of Otherwise Use; Toxic Release
Inventory Reporting; Community Right-to-Know. Federal Register. 62
FR 23834. May 1, 1997. (FRL-5578-3).
8. USEPA, OPPT. Supporting Statement for an Information Collection
Request (ICR) Under the Paperwork Reduction Act (PRA). Final Rule
ICR; Addition of Natural Gas Processing Facilities to the Toxics
Release Inventory (TRI). EPA ICR No. 2560.01; OMB Control No. 2070-
[NEW]. November 2016.
9. USEPA, OPPT. TRI Regulatory Development Branch: Revising TRI
Burden to Ratio-Based Methodology. https://www.epa.gov/sites/default/files/documents/136321RatioBasedMethodology.pdf.
10. USEPA. EPA's Environmental Justice Screening and Mapping Tool
(Version 2020). https://ejscreen.epa.gov/mapper.
11. USEPA. EJSCREEN Environmental Justice Mapping and Screening
Tool; EJSCREEN Technical Documentation. September 2019.
VI. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.
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 and was
therefore not submitted to the Office of Management and Budget (OMB)
for review under Executive Orders 12866 (58 FR 51735, October 4, 1993)
and 13563 (76 FR 3821, January 21, 2011).
B. Paperwork Reduction Act (PRA)
The information collection activities in this rule have been
submitted for approval to OMB under the PRA, 44 U.S.C. 3501 et seq. The
Information Collection Request (ICR) document that EPA prepared is
assigned EPA ICR No. 2560.01 and OMB Control No.: 2070-[NEW] (Ref.8).
You can find a copy of the ICR in the docket for this rule, and it is
briefly summarized here. The information collection requirements are
not enforceable until OMB approves them.
Currently, the facilities subject to the reporting requirements
under EPCRA section 313 and PPA section 6607 may use either EPA Toxic
Chemicals Release Inventory Form R (EPA Form 1B9350-
[[Page 66963]]
1), or EPA Toxic Chemicals Release Inventory Form A (EPA Form 1B9350-
2). 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
identity of a substance as a trade secret pursuant to EPCRA section 322
(42 U.S.C. 11042) and 40 CFR part 350. OMB has approved the reporting
and recordkeeping requirements related to Forms A and R, supplier
notification, and petitions under OMB Control number 2070-0212 (EPA
Information Collection Request (ICR) No. 2613.05) and those related to
trade secret designations under OMB Control 2050-0078 (EPA ICR No.
1428.11). As such, this ICR is intended to amend the existing ICR to
include the following additional details:
Respondents/affected entities: NGP facilities.
Respondent's obligation to respond: Mandatory (EPCRA section 313).
Estimated number of respondents: 321 to 489.
Frequency of response: Annual.
Total estimated burden: 181,000 to 276,000 burden hours in the
first year and approximately 86,000 to 131,000 burden hours in the
steady state. Burden is defined at 5 CFR 1320.3(b).
Total estimated cost: approximately $11,846,000 to $18,044,000 in
the first year and approximately $5,641,000 to $8,593,000 in the steady
state.
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 the
EPA's regulations in 40 CFR are listed in 40 CFR part 9. When OMB
approves this ICR, the Agency will announce that approval in the
Federal Register and publish a technical amendment to 40 CFR part 9 to
display the OMB control number for the approved information collection
activities contained in this final rule.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA, 5
U.S.C. 601 et seq. The small entities subject to the requirements of
this action are NGP facilities. The Agency determined in its original
economic analysis that the 282-444 facilities estimated to be impacted
by this action are linked to 76-90 parent entities, of which 32-41
qualify as small businesses as defined by the RFA, all of which are
estimated to incur an annualized cost impact of less than 1%. Details
of this analysis are presented in the EPA economic analysis (Ref. 4).
As the fundamentals of that analysis apply here as well, the final rule
is not expected to significantly impact a substantial number of small
entities.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain an unfunded mandate of $100 million or
more as described in UMRA, 2 U.S.C. 1531-1538, and does not
significantly or uniquely affect small governments. The action imposes
no enforceable duty on any state, local or tribal governments or the
private sector.
E. Executive Order 13132: Federalism
This action does not have federalism implications, as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999). 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.
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). This rule will
not impose substantial direct compliance costs on Indian 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
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997),
as applying only to those regulatory actions that concern health or
safety risks that the EPA has reason to believe may disproportionately
affect children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it does not concern an environmental
health risk or safety risk.
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 likely to have a significant adverse
effect on the supply, distribution or use of energy and has not
otherwise been designated by the Administrator of the Office of
Information and Regulatory Affairs as a significant energy action.
I. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve technical standards. As such,
NTTAA section 12(d), 15 U.S.C. 272 note, does not apply to this action.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
In accordance with Executive Order 12898 (59 FR 7629, February 16,
1994) and Executive Order 14008 (86 FR 7619, January 27, 2021), EPA
finds that this action will not result in disproportionately high and
adverse human health, environmental, climate-related, or other
cumulative impacts on disadvantaged communities. As discussed in more
detail in Unit IV.C., EPA used the EJSCREEN environmental justice
screening and mapping tool to better understand how many people live
near these facilities and the demographics of those communities. The
information collected through TRI reporting will serve to inform
communities living near NGP facilities, and there is the potential for
new information about toxic chemical releases and waste management
practices occurring in those communities to become available through
the TRI reporting data.
K. Congressional Review Act (CRA)
This action is subject to the CRA, 5 U.S.C. 801 et seq., and EPA
will submit a rule report to each House of the Congress and to the
Comptroller General of the United States. This action is not a ``major
rule'' as defined by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 372
Environmental protection, community right-to-know, reporting and
recordkeeping requirements, and toxic chemicals.
[[Page 66964]]
Dated: November 18, 2021.
Michal Freedhoff,
Assistant Administrator, Office of Chemical Safety and Pollution
Prevention.
Therefore, for the reasons stated in the preamble, EPA is amending
40 CFR part 372 as follows:
PART 372--TOXIC CHEMICAL RELEASE REPORTING: COMMUNITY RIGHT-TO-KNOW
0
1. The authority citation for part 372 continues to read as follows:
Authority: 42 U.S.C. 11023 and 11048.
0
2. Amend Sec. 372.23 by:
0
a. Adding numerically an entry for ``1321'' to the table in paragraph
(a);
0
b. Adding numerically an entry for ``211130--Natural Gas Extraction''
to the table in paragraph (c).
The additions read as follows:
Sec. 372.23 SIC and NAICS codes to which this Part applies.
(a) * * *
------------------------------------------------------------------------
Major group or industry code Exceptions and/or limitations
------------------------------------------------------------------------
* * * * * * *
1321...................................
* * * * * * *
------------------------------------------------------------------------
* * * * *
(c) * * *
------------------------------------------------------------------------
Subsector code or industry code Exceptions and/or limitations
------------------------------------------------------------------------
211130--Natural Gas Extraction......... Limited to facilities
classified under SIC 1321,
Natural Gas Liquids.
* * * * * * *
------------------------------------------------------------------------
[FR Doc. 2021-25646 Filed 11-23-21; 8:45 am]
BILLING CODE 6560-50-P