Toxics Release Inventory Burden Reduction Final Rule

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: December 22, 2006 (Volume 71, Number 246)]
[Rules and Regulations]
[Page 76932-76945]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22de06-15]

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 372
[TRI-2005-0073; FRL-8260-4]
RIN 2025-AA14

AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is revising the Toxics Release Inventory (TRI) reporting
requirements to reduce burden while continuing to provide valuable
information to the public, and promote recycling and treatment as
alternatives to disposal and other releases. TRI reporting is required
by section 313 of the Emergency Planning and Community Right-to-Know
Act (EPCRA) and section 6607 of the Pollution Prevention Act (PPA).
This rule expands non-Persistent Bioaccumulative and Toxic (non-PBT)
chemical eligibility for Form A by raising the eligibility threshold to
5,000 pounds of total annual waste management (i.e., releases,
recycling, energy recovery, and treatment for destruction) provided
total annual releases of the non-PBT chemical comprise no more than
2,000 pounds of the 5,000-pound total waste management limit. This rule
also allows, for the first time, limited use of Form A for PBT
chemicals when total annual releases of a PBT chemical are zero and the
total annual amount of the PBT chemical recycled, combusted for energy,
and treated for destruction does not exceed 500 pounds. This rule,
however, retains the current exclusion of dioxin and dioxin-like
compounds from Form A eligibility. By structuring Form A eligibility
for both PBT chemicals and non-PBT chemicals in a way that favors
recycling and treatment over disposal and other releases, today's rule
encourages facilities to reduce their releases and ensures that
valuable information will continue to be provided to the public
pursuant to the purposes of section 313 of EPCRA and section 6607 of
PPA. Further, to guard against situations where large non-production
related amounts are not reported on Form R and to provide greater
consistency between PBT chemical and non-PBT chemical Form A
eligibility, this rule redefines the non-PBT Form A eligibility
threshold to include non-production related amounts reported in Section
8.8 of Form R.

DATES: This rule is effective on January 22, 2007. The first reports
with the revised reporting requirements will be due on or before July
1, 2007, for reporting year (i.e., calendar year) 2006.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. TRI-2005-0073. All documents in the docket are listed in the docket
index at http://www.regulations.gov. Although listed in the index, some
information is not publicly available, i.e., confidential business
information (CBI) or other information, the disclosure of which is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically at http://www.regulations.gov or in hard copy
at the OEI Docket, EPA/DC, EPA West, Room B102, 1301 Constitution Ave.,
NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to
4:30 p.m., Monday through Friday, excluding legal holidays. The
telephone number for the Public Reading Room is (202) 566-1744, and the
telephone number for the OEI Docket is (202) 566-1752. Note: The EPA
Docket Center suffered damage due to flooding during the last week of
June 2006. The Docket Center is continuing to operate. However, during
the cleanup, there will be temporary changes to Docket Center telephone
numbers, addresses, and hours of operation for people who wish to visit
the Public Reading Room to view documents. Consult EPA's Federal
Register notice at 71 FR 38147 (July 5, 2006) or the EPA Web site at
http://www.epa.gov/epahome/dockets.htm for current information on
docket status, locations and telephone numbers.

FOR FURTHER INFORMATION CONTACT: For more specific information or
technical questions relating to this rule, contact Marc Edmonds, Toxics
Release Inventory Program Division, Office of Information Analysis and
Access (2844T), Environmental Protection Agency, 1200 Pennsylvania
Ave., NW., Washington, DC 20460; telephone number: 202-566-0758; fax
number: 202-566-0741; e-mail: edmonds.marc@epa.gov; or Larry Reisman,
Toxics Release Inventory Program Division, Office of Information
Analysis and Access (2844T), Environmental Protection Agency, 1200
Pennsylvania Ave., NW., Washington, DC 20460; telephone number: 202-
566-0751; fax number: 202-566-0741; e-mail: reisman.larry@epa.gov. The
press point of contact for this rule is Suzanne Ackerman, Office of
Public Affairs, 202-564-7819. For general inquiries relating to the
Toxics Release Inventory or more information on EPCRA section 313,
contact the TRI Information Center; toll free: 1-800-424-9346, in
Virginia and Alaska: 703-412-9810, toll free TDD: 1-800-553-7672, or
TDD DC area local: 703-412-3323.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Action Apply to Me?

This action applies to facilities that submit annual reports under
section 313 of the Emergency Planning and Community Right-to-Know Act
(EPCRA) and section 6607 of the Pollution Prevention Act (PPA). It
specifically applies to those that submit the TRI Form R or Form A
Certification Statement. (See http://www.epa.gov/tri/report/
index.htm#forms for detailed information about EPA's TRI reporting
forms.) To determine whether your facility would be affected by this
action, you should carefully examine the applicability criteria in part
372, subpart B, of Title 40 of the Code of Federal Regulations. If you
have questions regarding the applicability of this action to a
particular entity, consult the individuals listed in the preceding FOR
FURTHER INFORMATION CONTACT section.
This action is also relevant to those who utilize EPA's TRI
information, including State agencies, local governments, communities,
environmental groups and other non-governmental organizations, as well
as members of the general public.

II. What is EPA's Statutory Authority for Taking This Action?

This rule is being issued under sections 313(f)(2) and 328 of
EPCRA, 42 U.S.C. 11023(f)(2) and 11048. In general, section 313 of
EPCRA and section 6607 of the PPA require owners and operators of
facilities in specified Standard Industrial Classification (SIC) codes
that manufacture, process, or otherwise use a listed toxic chemical in
amounts above specified threshold levels to report certain facility-
specific information about such chemicals, including the annual
releases and other waste management quantities. This information is
submitted on EPA Form 9350-1 (Form R) or EPA Form 9350-2 (Form A) and
compiled in an annual Toxics Release Inventory (TRI). Each covered
facility must file a separate Form R for each listed chemical
manufactured, processed, or otherwise used in excess of applicable reporting

[[Page 76933]]

thresholds, which were initially established in section 313(f)(1). 42
U.S.C. 11023(f)(1). Congress set statutory default reporting thresholds
of 25,000 pounds for manufacturing, 25,000 pounds for processing, and
10,000 pounds for the otherwise use of a listed toxic chemical in EPCRA
section 313(f)(1). Id. EPA has authority to revise the threshold
amounts pursuant to section 313(f)(2); however, such revised threshold
amounts must obtain reporting on a substantial majority of total
releases of the chemical at all facilities subject to section 313. 42
U.S.C. 11023(f)(2). In addition, Congress granted EPA broad rulemaking
authority to allow the Agency to fully implement the statute. EPCRA
section 328 authorizes the ``Administrator [to] prescribe such
regulations as may be necessary to carry out this chapter.'' 42 U.S.C.
11048. Using these provisions, EPA may, at the Administrator's
discretion, modify reporting thresholds on classes of chemicals or
categories of facilities.
EPA has raised the reporting thresholds for a class of chemical
reports once previously. In 1994, EPA finalized a rule that created the
Form A Certification Statement (59 FR 61488). See 40 CFR 372.27. That
rule raised the reporting thresholds for manufacturing, processing, and
the otherwise use of listed toxic chemicals to one million pounds for a
category of facilities whose total annual reportable amount for a
particular chemical was 500 pounds or less. In that rulemaking, EPA
discussed the value of information that is collected on the Form A as
follows: ``EPA believes that the proposed annual certification will
provide information relating to the location of facilities
manufacturing, processing, or otherwise using these chemicals, that the
chemicals are being manufactured, processed, or otherwise used at
current reporting thresholds, and that chemical releases and transfers
for the purpose of treatment and/or disposal are [500 pounds or less]
per year (i.e., within a range of zero to [500] pounds per year).'' 59
FR 38527. EPA further indicated that the information collected on the
Form A helped to ensure that the revised thresholds continued to obtain
reporting on a substantial majority of releases.
The burden reduction approach in today's rule is modeled after the
approach taken in the 1994 Form A rulemaking. Today's rule expands Form
A eligibility for non-PBT chemicals and allows limited Form A
eligibility for PBT chemicals by raising the reporting threshold for
eligible chemicals at specifically defined categories of facilities.
Eligibility is determined on a chemical-by-chemical basis, rather than
a facility-wide basis. Under the expanded Form A eligibility,
facilities qualifying for the raised threshold for a given chemical
will continue to file an annual certification statement in place of a
Form R. Through its narrow definition of the category of facilities
eligible for the raised threshold and through the information collected
on the certification statements, EPA is ensuring that reporting under
the raised threshold will continue to ``obtain reporting on a
substantial majority of total releases of the chemical at all
facilities subject to the requirements of this section.''

III. What Is the Background and Purpose of These Actions?

A. What Are the Toxics Release Inventory Reporting Requirements and Who
Do They Affect?

Pursuant to section 313 of the Emergency Planning and Community
Right-to-Know Act (EPCRA), certain facilities that manufacture,
process, or otherwise use specified toxic chemicals in amounts above
reporting threshold levels must submit annually to EPA and to
designated State officials toxic chemical release forms containing
information specified by EPA. 42 U.S.C. 11023. These reports must be
filed by July 1 of each year for the previous calendar year. In
addition, pursuant to section 6607 of the Pollution Prevention Act
(PPA), facilities reporting under section 313 of EPCRA must also report
pollution prevention and waste management data, including recycling
information, for such chemicals. 42 U.S.C. 13106. These reports are
compiled and stored in EPA's database known as the Toxics Release
Inventory (TRI).
Regulations at 40 CFR part 372, subpart B, require facilities that
meet all of the following criteria to report:
• The facility has 10 or more full-time employee equivalents
(i.e., a total of 20,000 hours worked per year or greater; see 40 CFR
372.3); and
• The facility is included in a North American Industry
Classification System (NAICS) Code listed at 40 CFR 372.23 or under
Executive Order 13148, Federal facilities regardless of their industry
classification; and
• The facility manufactures (defined to include importing),
processes, or otherwise uses any EPCRA section 313 (TRI) chemical in
quantities greater than the established thresholds for the specific
chemical in the course of a calendar year.
Facilities that meet the criteria must file a Form R report or, in
some cases, may submit a Form A Certification Statement, for each
listed toxic chemical for which the criteria are met. As specified in
EPCRA section 313(a), the report for any calendar year must be
submitted on or before July 1 of the following year. For example,
reporting year 2004 data should have been postmarked on or before July
1, 2005.
The list of toxic chemicals subject to TRI reporting can be found
at 40 CFR 372.65. This list is also published every year as Table II in
the current version of the Toxics Release Inventory Reporting Forms and
Instructions. The current TRI chemical list contains 581 individually-
listed chemicals and 30 chemical categories.

B. What Led to the Development of This Rule?

Throughout the history of the TRI Program, the Agency has
implemented measures to reduce the TRI reporting burden on the
regulated community while still ensuring the provision of valuable
information to the public that fulfills the purposes of the TRI
program. ``Burden'' is the total time, effort, or financial resources
expended by persons to generate, maintain, retain, disclose, or provide
information to or for a Federal agency. 44 U.S.C. 3502(2). That
includes the time needed to review instructions; develop, acquire,
install, and utilize technology and systems for the purposes of
collecting, validating, and verifying information, processing and
maintaining information, and disclosing and providing information;
adjust the existing ways to comply with any previously applicable
instructions and requirements; train personnel to be able to respond to
a collection of information; search data sources; complete and review
the collection of information; and transmit or otherwise disclose the
information.
Through a range of compliance assistance activities, such as the
Toxic Chemical Release Inventory Reporting Forms and Instructions
(which is updated every year), industry training workshops, chemical-
specific and industry-specific guidance documents, and the TRI
Information Center (a call hotline), the Agency has shown a commitment
to enhancing the quality and consistency of reporting and assisting
those facilities that must comply with EPCRA section 313. In addition,
EPA has made considerable progress in reducing burden through
technology-based processes. One example of a technology-based process
is electronic reporting using the Toxics Release Inventory--Made Easy
(TRI-ME) software, an interactive, user-friendly software tool that guides

[[Page 76934]]

facilities through TRI reporting. Other technology-based examples
include the use of EPA's Central Data Exchange (CDX) for form
submission, and the use of data submitted to the Agency through other
EPA programs to pre-populate TRI data fields. These measures have
reduced the time, cost, and complexity of existing environmental
reporting requirements, while enhancing reporting effectiveness and
efficiency and continuing to provide useful information to the public
that fulfills the purposes of the TRI program.
The burden-reducing measure of particular relevance to today's rule
is the Form A Certification Statement, which EPA established through
rulemaking in 1994. This burden-reducing measure is based on an
alternate threshold for quantities manufactured, processed, or
otherwise used by those facilities with relatively low annual
reportable amounts of TRI chemicals. Pursuant to this 1994 rule, a
facility can use an alternate, higher reporting threshold for a non-PBT
chemical for which it has an annual reportable amount not exceeding 500
pounds. The annual reportable amount (ARA) was defined as the total of
the quantity released at the facility, the quantity treated at the
facility, the quantity recovered at the facility as a result of
recycling operations, the quantity combusted for the purpose of energy
recovery at the facility, and the quantity transferred off-site for
recycling, energy recovery, treatment, and/or disposal. This combined
total corresponds to the quantity of the toxic chemicals in production-
related waste (i.e., the sum of sections 8.1 through and including
section 8.7 on the Form R). Pursuant to the 1994 rule, the reporting
threshold for chemicals with an ARA less than or equal to 500 pounds is
one million pounds manufactured, processed, or otherwise used,
considered individually.
Beginning with the 1995 reporting year, facilities that meet the
ARA eligibility requirement and do not exceed the one-million-pound
reporting threshold for a particular toxic chemical can so certify by
using Form A, and thus avoid having to submit a detailed Form R. The
Form A serves to certify that a facility is not subject to Form R
reporting for a specific toxic chemical (Toxic Chemical Release
Inventory Reporting Forms and Instructions (EPA 260-B-04-001), pages 1-2).
The primary difference between information contained on Form R and
the Form A Certification Statement is that the Form R provides details
of releases and other waste management (e.g., total quantity of
releases to air, water, and land; and on- and off-site recycling,
treatment, and combustion for energy recovery), while the Form A does
not. If the reporter meets the criteria for using the Form A, the
reporter need only report the name of the chemical and certain facility
identification information. The Form A serves as a range report which,
to date, has told the public that the total production related waste
for the chemical is between zero and 500 pounds. Several chemicals can
be reported on each Form A.
In 1999, when EPA lowered reporting thresholds in the PBT rule, EPA
determined that allowing the Form A certification for PBT chemicals at
that time would be inconsistent with the intent of expanded PBT
chemical information (64 FR 58732, October 29, 1999) and so disallowed
the use of Form A for PBT chemicals. EPA cited concerns over releases
and other waste management of these chemicals at low levels and said
that, based on the information available to the Agency at that time, it
believed that the level of information from Form A was insufficient to
do meaningful analyses on PBT chemicals (Id. at 58733). EPA also stated
``the Agency believes that it is appropriate to collect and analyze
several years worth of data at the lowered thresholds before EPA
considers developing a new alternate threshold and reportable quantity
appropriate for PBT chemicals.'' (Id. at 58732).
In an effort to explore additional burden reduction opportunities,
EPA conducted a TRI Stakeholder Dialogue between November 2003 and
February 2004. A summary of this dialogue is available at
http://www.epa.gov/tri/programs/stakeholders/outreach.htm. The dialogue
process focused on identifying improvements to the TRI reporting
process and exploring a number of burden reduction options associated
with TRI reporting. As a result of the Stakeholder Dialogue and
subsequent comments from stakeholders, the Agency identified several
burden reducing options. These options fall into three broad
categories: (1) Relatively minor changes or modifications to the
reporting forms and the TRI-ME software; (2) expanding Form A
eligibility; and (3) reducing the frequency of reporting for some or
all reports.
EPA decided to address the three categories of changes through
separate actions, the first of which was promulgated in July 2005. In
July 2005, the Agency promulgated the TRI Reporting Forms Modification
Rule (70 FR 39931, July 12, 2005), which streamlined the current forms
by eliminating some fields and simplifying completion of others. The
changes eliminated some redundant or seldom-used data elements from
Forms A and R, and modified others that could be shortened, simplified,
or otherwise improved to reduce the time and costs required to complete
and submit annual TRI reports. The changes also improved data
consistency and reliability by replacing some elements on the forms
with information extracted from the EPA's Facility Registry System
(FRS), which includes data on most facilities subject to environmental
reporting requirements across EPA programs.
Today's rule, the second of the three categories of changes, which
the Agency has referred to as the ``Phase 2'' burden reduction
rulemaking, expands eligibility for Form A reporting for non-PBT
chemicals, and allows, for the first time, limited Form A reporting for
PBT chemicals with zero releases. In developing the proposed rule for
Phase 2, EPA considered input from stakeholders, and identified a
number of criteria to guide the development of the approach. The
criteria used by the Agency to develop the proposal continued to play a
guiding role in the development of today's final rule. These criteria
include providing meaningful data to users that fulfill the purposes of
the TRI program; providing an overall burden savings in hours needed
for reporting; providing benefits to both non-PBT and PBT reporting
facilities, as appropriate; ensuring that the approach is relatively
easy to implement; and creating incentives consistent with national
pollution prevention policy.
In a separate notice issued on October 4, 2005, the same day the
Phase 2 Proposed Rule was published in the Federal Register, EPA
announced its intent to explore potential approaches for modifying the
reporting frequency for facilities that report to TRI and its
notification to Congress, as required by 42 U.S.C. 11023(i), of its
intent to initiate a rulemaking to modify TRI reporting frequency. This
statutory provision requires one-year advance notification to Congress
before initiating such a rulemaking. Many commenters who responded to
the Phase 2 proposed rule to expand Form A eligibility also voiced
concerns over any modification to the TRI reporting frequency. Because
these comments are outside the scope of the Phase 2 rulemaking, EPA has
not responded to them as part of today's rule on expanded Form A
eligibility. With regard to TRI reporting frequency, the Agency has
decided not to pursue any changes in the TRI reporting frequency at
this time. While EPA does not intend to take any further actions

[[Page 76935]]

concerning the TRI reporting frequency, EPA will adhere to the process
outlined in 42 U.S.C. 11023(i)(5) and provide 12 months advance notice
to Congress if the Agency decides in the future to initiate changes to
the TRI reporting frequency.

C. What Reporting Requirement Changes Did EPA Propose?

1. Form A Eligibility--PBT Chemicals
In October 2005, EPA issued a proposed rule that would allow
facilities reporting zero or not applicable (NA) for disposal or other
releases of a PBT chemical,\1\ except dioxin and dioxin-like compounds,
to use the Form A Certification Statement in lieu of Form R provided
the facilities do not exceed a one-million-pound manufacture, process,
or otherwise use activity threshold for the specific PBT chemical and
provided the facilities have 500 pounds or less of total other waste
management quantities for the chemical. The other waste management
quantities include all recycling, energy recovery, and treatment for
destruction. As it relates to the Form R, this proposed approach allows
a facility to use Form A for a specific PBT chemical when zero or NA is
reported for items a, b, c, and d of Section 8.1 (Total Disposal or
Other Releases) and the facility does not have any non-production-
related releases for the PBT chemical included in Section 8.8
(quantities released to the environment as a result of remedial
actions, catastrophic events, or one-time events not associated with
production processes). Under the proposed approach, the facility may
have other waste management quantities in Sections 8.2 through 8.8
totaling 500 pounds or less and still qualify for the Form A
Certification Statement. In summary, as proposed, facilities must
manufacture, process, or otherwise use no more than one million pounds
of a PBT chemical, have zero disposal or other releases in Section 8.1
and 8.8 for the chemical, and have 500 pounds or less of total other
waste management quantities in Sections 8.2 through 8.8 for the
chemical. The Agency has referred to this 500-pound PBT other waste
management sum of Sections 8.2 + 8.3 + 8.4 + 8.5 + 8.6 + 8.7+ 8.8 for
Form A eligibility as the PBT Reportable Amount (PRA).
---------------------------------------------------------------------------

\1\ Allowing Form A for PBT chemicals affects those chemicals
identified by EPA as ``chemicals of special concern'' in the October
1999 PBT rule to identify chemicals subject to a lower reporting
threshold. Currently, ``chemicals of special concern'' include only
certain chemicals that have been found to be ``persistent,
bioaccumulative, and toxic (PBT).'' Therefore, for the reader's
convenience, in the proposed rule EPA referred to the chemicals in
40 CFR 372.28 as ``PBT chemicals.'' In today's final rule EPA
continues to use the term ``PBT chemical'' in lieu of ``chemicals of
special concern'' for improved readability. For purposes of the
proposed rule as well as today's final rule, the Agency refers to
non-PBT chemicals, when referring to the larger group of TRI
chemicals that are not PBTs (i.e., not chemicals of special
concern). Should the Agency identify additional chemicals of special
concern in the future, at that time the Agency will consider whether
it is appropriate to extend these or other burden reduction measures
to those chemicals.
---------------------------------------------------------------------------

As discussed in the proposal, the inclusion of Section 8.8 waste
management amounts in PBT chemical Form A eligibility is different from
the approach taken to date for non-PBT chemical Form A eligibility.
Section 8.8 of the Form R is for release and other waste management
quantities of toxic chemicals associated with remedial actions,
catastrophic events, or one-time events not associated with production
processes. As explained in the proposed rule, the Agency examined data
from the 2003 reporting year and determined that some of the reporters
that had zero releases also reported quantities in Section 8.8 which
appear to be associated with ongoing CERCLA-related or RCRA-related
remediation. If any of these quantities are disposal or other releases,
the facility would not qualify for Form A. It is possible, however,
that some of these quantities represent other waste management
activities carried out to deal with waste created from non-production-
related events. Based on the assumption that local communities may be
concerned about the progress of these activities and may wish to track
non-release quantities in Section 8.8 exceeding 500 pounds using the
Form R, EPA proposed that both release and non-release Section 8.8
amounts be considered in determining Form A eligibility for PBT
chemicals. EPA acknowledged in the proposal that using a different
basis for reportable amount for PBT chemicals than has been used for
non-PBT chemicals could potentially confuse reporters. As a practical
matter, however, the inclusion of Section 8.8 in Form A eligibility
determinations for PBT chemicals only affects a small number of
facilities. In the proposed rule, the Agency requested comment on
whether Section 8.8 management amounts should be included in the
definition of the ARA for PBTs.
The proposed rule retained the current exclusion of dioxin and
dioxin-like compounds from Form A eligibility. As explained in the
proposal, because of the high toxicity of some dioxin and dioxin-like
compounds and the wide variation in toxicity among forms of dioxin, in
a prior action, EPA proposed adding toxic equivalency (TEQ) reporting
for the dioxin and dioxin-like compounds category (70 FR 10919, March
7, 2005). EPA proposed TEQ reporting in response to requests from TRI
reporters that EPA create a mechanism for facilities to report TEQ data
to provide important context for the dioxin and dioxin-like compounds
release data. In addition, EPA believes that the public will benefit
from the additional context and comparability of data provided by TEQ
reporting. Accordingly, in the proposed burden reduction rule, the
Agency decided to wait until the dioxin TEQ rulemaking is finalized and
until the Agency has appropriate data before considering whether this
class of PBT chemicals should be considered for Form A eligibility.
In the proposed rule, EPA stated that it is focusing on providing
burden relief for smaller businesses that have zero disposal or other
releases. EPA referred to the Stakeholder Dialogue, where some
commenters pointed out that there are reporters with no releases but
who send small amounts of TRI chemicals into more desirable management
techniques like recycling or energy recovery. Because the Agency
encourages reuse and recycling, it decided to explore whether a clearly
demarcated group of such reporters could be defined. EPA reasoned that
by expanding Form A eligibility as described in the proposed rule, the
Agency would be providing burden relief for PBT reporters with no
disposal or other releases and small quantities of other waste
management activities reportable in sections 8.2 through 8.8. The
Agency believes that this approach will encourage facilities to reduce
their releases of PBT chemicals to zero and, for those facilities that
are already not releasing any PBT chemicals, to accomplish further
source reduction so that their other waste management totals are low
enough to use this option (500 pounds or less). The Agency balanced
this pollution prevention incentive with the needs of TRI data users
who use this information for tracking and reporting trends in
recycling, waste treatment, and energy recovery, and decided that
limited Form A eligibility for PBT chemicals with zero releases would
be an appropriate approach for providing burden relief to this group of
reporters while minimizing the amount of useful detailed data that
would no longer be reported on Form R.
With regard to data that would no longer be reported on Form R, the
Agency analyzed TRI data submitted in previous reporting years. Based
on its analysis of the data, the Agency expected the group of PBT
chemicals

[[Page 76936]]

that would qualify for the proposed approach to represent a total of
approximately 2,700 Form Rs. This number of forms was expected to save
approximately 47,000 hours (or $2.1 million) of reporting burden
(Economic Analysis of Toxics Release Inventory Burden Reduction
Proposed Rule, EPA, September 2005). Of these 2,700 Forms Rs with zero
release amounts, approximately 2,100 also reflected zeros for the other
waste management activities of recycling, energy recovery, and
treatment for destruction. Accordingly, only about 600 Form Rs reported
non-zero amounts for at least one of the sections 8.2 through 8.8
(Economic Analysis of Toxics Release Inventory Burden Reduction
Proposed Rule, EPA, August, 2005). As discussed in the proposal, those
forms with some other waste management quantity are primarily forms for
lead and lead compounds; polycyclic aromatic compounds (PACs),
including benzo(g,h,i)perylene; and mercury and mercury compounds. At
the time of the proposal, these three chemicals accounted for about 98%
of the eligible reports with non-zero waste management quantities.
Prior to proposing, EPA analyzed the data TRI collects on these
three chemicals. EPA conducted an extensive analysis of lead reporters
in conjunction with the 2002 Public Data Release.\2\ Based on this
analysis, EPA found that the detailed information that would no longer
be reported on Form R under the proposed approach would be information
on the recycling of small amounts of lead; in particular, the off-site
transfer of lead waste to recyclers. EPA further noted that in addition
to the requirement of zero releases as proposed, facilities managing
lead and lead compounds cannot be conducting the activities of energy
recovery or treatment for destruction because metals may not be
reported in those categories.\3\ Similarly, for mercury and mercury
compounds, recycling \4\ is the only permissible waste management
activity in section 8 of Form R for those facilities that would qualify
for Form A under the proposal. Finally, for PACs and
benzo(g,h,i)perylene, EPA explained in the proposal its understanding
that facilities that produce small amounts of these chemicals may burn
the waste in a boiler or industrial furnace for energy recovery or
treatment for destruction via incineration. As a consequence of the
extremely high destruction efficiencies achieved in burning, combustion
in these units can result in zero releases for purposes of TRI
reporting. Since the PBT rule, which lowered reporting thresholds for
PACs, was published, the Agency has adopted new Clean Air Act (CAA)
Maximum Achievable Control Technology (MACT) standards for hazardous
waste combustion facilities that, among other things, help to ensure
that 99.99% of these chemicals are destroyed during either energy
recovery or incineration. These standards cover hazardous waste
incinerators and cement kilns. (See 40 CFR parts 63 and 264.) The MACT
standards also control products of incomplete combustion that may
result. With a PBT ARA limiting the total PACs treated to 500 pounds or
less, releases at the lowest allowable efficiency could be no more than
0.01% (or a maximum of .05 pound) for facilities that must comply with
these strict standards. The Guidance for Reporting Toxic Chemicals:
Polycyclic Aromatic Compounds Category (EPA 260-9-01-01, August 2001)
allows for this level of PACs to be rounded to zero. If, for any
reason, treatment of PACs does result in a release of even one pound,
the facility would no longer be eligible. So, while very small amounts
of releases may occur from facilities combusting 500 pounds or less,
the PAC chemicals are unlikely to be released at levels which would
require a non-zero response in section 8.1 and, therefore, the
completion of Form R.
---------------------------------------------------------------------------

\2\ See ``Lead: TRI Lead and Lead Compounds Reporting Years 2000-2002''
(U.S. EPA) at http://www.epa.gov/tri/tridata/tri02/index.htm.
\3\ The Agency's Toxic Chemical Release Inventory Reporting
Forms and Instructions (EPA 260-B-05-001, January 2005, Appendix B)
states that it is not appropriate to report energy recovery and
treatment for destruction for metals that are part of metal compound
categories with the exception of barium and barium compounds. When a
facility reports metals and their associated metal compound
categories it only reporits the parent metal portion of the
compounds. The parent metal cannot be destroyed nor can it be burned
for energy recovery so these matals should not be reported as such.
\4\ Ibid.
---------------------------------------------------------------------------

2. Form A Eligibility--Non-PBT Chemicals
As proposed, a facility reporting on a non-PBT chemical \5\ would
be able to use Form A if the facility meets the one-million-pound
manufacture, process, or otherwise use activity threshold and the
facility has 5,000 pounds or less of total ``annual reportable amount''
(ARA), defined as the combined total quantity released at the facility,
treated at the facility, recovered at the facility as a result of
recycling operations, combusted for the purpose of energy recovery at
the facility, and amounts transferred from the facility to off-site
locations for the purpose of recycling, energy recovery, treatment,
and/or disposal. This combined total ARA corresponds to the quantity of
the toxic chemical in production-related waste, i.e., the sum of
section 8.1 through and including section 8.7 of the Form R. This
proposed 5,000-pound ARA represents an increase from the 500-pound ARA
threshold that has been in effect since the 1994 Form A rulemaking.
---------------------------------------------------------------------------

\5\ For the purposes of the proposed rule and the final rule,
``non-PBT chemicals'' indicates all listed TRI chemicals that are
not ``chemicals of special concern,'' which are listed in 40 CFR 372.28.
---------------------------------------------------------------------------

As part of the proposed rule, the Agency requested comment on
whether the ARA for non-PBT chemicals should be modified to include
section 8.8 management information. As discussed above, section 8.8 of
the Form R collects release and other waste management quantities of
toxic chemicals resulting from remedial actions, catastrophic events,
or one-time events not associated with production processes.
Recognizing that a different basis for the reportable amount for PBT
chemicals and non-PBT chemicals poses some risk of confusion among
reporters, EPA specifically asked for comment on whether the ARA for
non-PBT chemicals should be modified to include section 8.8 amounts,
thereby making the proposed PBT annual reportable amount, which
includes section 8.8 amounts, and the non-PBT annual reportable amount
more consistent.
In the proposal, EPA explained that after several years of
reporting experience, the Agency believes it is appropriate to increase
the ARA to expand eligibility for Form A for non-PBT chemicals. During
the stakeholder dialogue, a number of stakeholders suggested increasing
the ARA to 5,000 pounds. In addition to proposing an ARA of 5,000
pounds, EPA also analyzed and requested comment on 1,000-pound and
2,000-pound ARA levels. Recognizing that the 500-pound ARA, which has
been available to reporters since the 1994 rulemaking (59 FR 61488),
gained a measure of success in reducing reporting burden, the Agency
stated in the proposal that it believes a higher ARA would provide
additional burden relief to facilities and at the same time continue to
allow the TRI program to provide valuable information to the public
that fulfills the purposes of the TRI program.
From the standpoint of burden relief, the Agency's analysis at the
time of the proposal indicated that a 5,000-pound ARA would extend Form
A eligibility to around 12,000 non-PBT Form Rs, saving approximately
117,000 hours (or $5.2 million) of reporting burden. For more
information about the burden reduction

[[Page 76937]]

expected from the proposed rule, refer to the Economic Analysis of Toxics
Release Inventory Burden Reduction Proposed Rule, EPA, September 2005.
Even with this proposed increase in eligible forms, the percentage
of total release and other waste management pounds that would be newly
eligible for Form A under a 5,000-pound ARA would be less than 1% of
total release and other waste management amounts reported annually on
Form R nationwide. Specifically, under the proposed 5,000-pound
threshold, the Agency expected approximately 14 million pounds of
releases (0.34% of total non-PBT releases) and 25 million pounds of
total production-related waste (0.11% of non-PBT total production-
related waste) to become newly eligible for Form A reporting.
The Agency also considered the impact the proposed rule would have
at the local level and asked for comment on whether changes to the ARA
would adversely impact local community uses of the information. In the
proposal, EPA looked at the number of Zip Codes affected by a 5,000-
pound ARA, as well as the number and identity of chemicals where all
Form R reports could convert to Form A Certification Statements at the
higher threshold. Detailed analyses of the impacts on communities and
individual chemicals are provided in the Economic Analysis for the
proposed rule (Economic Analysis of Toxics Release Inventory Burden
Reduction Proposed Rule, EPA, September 2005). As part of the proposal,
EPA also summarized the potential impacts on reporting that could
result from raising the ARA to 1,000 pounds and 2,000 pounds.
Prior to proposing, EPA weighed the value of Form A against the
potential loss of detailed Form R information. Data users know that a
facility filing a Form A is a potential source of releases and other
waste management activities. As discussed in the proposed rule, data
users would know that for any non-PBT chemical submitted on a Form A,
the total for releases (Section 8.1) and total production related waste
(the sum of Sections 8.1 through and including Section 8.7) does not
exceed 5,000 pounds. In other words, each Form A would serve as a range
report which informs the public that total releases, as well as total
production related waste (which includes releases), is in the range of
zero to 5,000 pounds. TRI data users are currently able to access Form
A facility information via Envirofacts and TRI Explorer (http://
www.epa.gov/triexplorer/). Under the proposal, data users would still
be able to obtain national information such as the number of Form As
filed each year by individual chemical. Using EZ Query in Envirofacts
(http://www.epa.gov/enviro/), data users would be able to access
individual chemical Form As along with the TRI Facility Identification
Numbers (TRIFIDs) and names of the facilities submitting Form As.
Existing Form A utilization was another factor considered by the
Agency prior to issuing the proposed rule. The Agency observed that
facilities use Form A for only slightly over half of the forms (54%)
potentially eligible. As discussed in the proposal, there are a number
of possible reasons for this estimated utilization rate. Some
facilities may be using in excess of the one-million-pound alternate
threshold \6\ (e.g. users of feedstock chemicals like nitrapyrin and
producers of pesticides or pharmaceuticals) and, therefore, they are
ineligible for Form A. Other facilities may report on Form R out of a
desire to showcase their pollution prevention efforts. Still other
facilities may find the Form R to be an efficient mechanism for
tracking their material balances. A facility, having collected all of
this information, may also be making a Form R submission to demonstrate
good environmental stewardship. Regardless of the factors that prompt
facilities to use Form R when they may be eligible for Form A, the
Agency does not believe the rate of Form A utilization would be
significantly higher at a 5,000-pound threshold than it is at the
current 500-pound ARA threshold.
---------------------------------------------------------------------------

\6\ For the purposes of the proposed rule and the final rule,
``non-PBT chemicals'' indicates all listed TRI chemicals that are
not ``which are listed in 40 CFR 372.28.''
---------------------------------------------------------------------------

IV. Summary of This Final Rule

Today's final rule allows facilities to use Form A in lieu of Form
R for a PBT chemical as proposed when there are no annual releases of
the PBT chemical, the facility's total annual amount of the chemical
recycled, combusted for energy recovery, and/or treated for destruction
does not exceed 500 pounds, and the facility has not manufactured,
processed, or otherwise used more than one million pounds of the PBT
chemical. As it relates to the Form R data elements, this final rule
allows a facility to use Form A instead of Form R for a specific PBT
chemical when zero or not applicable (NA) is reported for items a, b,
c, and d of Section 8.1 (Total Disposal or Other Releases), the
facility does not have any non-production-related releases of the PBT
chemical included in Section 8.8 (quantity released to the environment
as a result of remedial actions, catastrophic events, or one-time
events not associated with production processes), and the total amount
reported for recycling, energy recovery, and/or treatment for
destruction in Section 8.2 through and including Section 8.8 does not
exceed 500 pounds. Further, for the same reasons discussed in the
proposal (and discussed above in Unit III.C.1), this final rule retains
the current exclusion of dioxin and dioxin-like compounds from Form A
eligibility.
Based on comments received and information analyzed since the
proposed rule, EPA decided to finalize a hybrid approach to the
proposed expansion of Form A eligibility for non-PBT chemicals. Today's
rule expands non-PBT chemical eligibility for Form A by raising the
eligibility threshold to 5,000 pounds for total annual waste management
(i.e., releases, recycling, energy recovery, and treatment for
destruction), as proposed, provided total annual releases of the non-
PBT chemical comprise no more than 2,000 pounds of the 5,000-pound
total waste management limit. While the proposed rule also advanced a
5,000-pound threshold, it did not place any limit on the amount of
releases that a facility may consider toward the 5,000-pound threshold
amount. In response to comments on data use impacts at the local level
from the loss of detailed Form R information, and in particular, the
loss of detailed Form R release information, EPA has decided to place a
2,000-pound limit on releases of non-PBT chemicals. By placing a 2,000-
pound limit on the amount of releases that may be applied to the 5,000-
pound Form A eligibility threshold, EPA is preserving on Form R a
significant amount of the release and other waste management
information that was expected to be eligible for Form A under the
proposal. At the same time, by limiting the release portion of the non-
PBT ARA to 2,000 pounds, EPA is providing an incentive for facilities
to recycle or use other preferred forms of waste management other than
release.
In addition, based on comments regarding consistency between Form A
eligibility for PBT chemicals and Form A eligibility for non-PBT
chemicals, as well as concerns over the potential loss of detailed Form
R information on large, accidental releases, EPA has decided to include
Section 8.8 non-production related quantities in the calculations to
determine whether facilities have met the 5,000-pound ARA for non-PBT
chemical Form A eligibility. Accordingly, pursuant to this rule, the
Form A ARA for non-PBT chemicals is

[[Page 76938]]

now comprised of the sum of Section 8.1 through and including Section 8.8.
In summary, today's final rule allows facilities to use Form A in
lieu of Form R for a non-PBT chemical when the facility's total annual
amount of the chemical released, recycled, combusted for energy
recovery, and/or treated for destruction does not exceed 5,000 pounds,
the facility's total annual releases of the chemical do not exceed
2,000 pounds, and the facility has not manufactured, processed, or
otherwise used more than one million pounds of the non-PBT chemical. As
it relates to the Form R data elements, this final rule allows a
facility to consider Form A for a non-PBT chemical when the sum of
Section 8.1 through and including Section 8.8 does not exceed 5,000
pounds and the sum of amounts reported for items a, b, c, and d of
Section 8.1 (Total Disposal or Other Releases) and any non-production-
related releases reported in Section 8.8 (Quantity released to the
environment as a result of remedial actions, catastrophic events, or
one-time events not associated with production processes) does not
exceed 2,000 pounds.

V. Summary of Public Comments and EPA Responses

EPA received well over 100,000 comments in response to the proposed
rule. After accounting for about a dozen mass mail campaigns, docket
staff identified approximately 5,000 distinct comments. These 5,000
comments are listed separately in the EPA docket for this rulemaking,
and along with supporting materials for this rule, individual comments
can be accessed at http://www.regulations.gov under docket ID TRI-2005-
0073.

A. Comments on Form A Eligibility--PBT Chemicals

Some commenters supporting EPA's proposed option to extend Form A
reporting to PBT chemicals favor the option because it would provide
burden relief but no actual release data would be lost. Some commenters
also state that the proposal will not compromise public health or
reduce the ability to plan for emergency responses, and that most
people are interested solely in releases to the environment. Other
commenters suggest that EPA's proposal would encourage pollution
prevention, as facilities would work to eliminate releases and minimize
waste generation of PBT chemicals in order to qualify for Form A. On
the other hand, some commenters express general opposition to the
proposed option for PBT chemicals. Some of those in opposition suggest
that PBT chemicals are too persistent and dangerous to human and
environmental health for the reporting requirements to be relaxed and
therefore, they recommend that the Agency maintain the current
reporting requirements for these chemicals.
EPA agrees with commenters who stated that the proposed approach
for allowing Form A for PBT chemicals provides incentives that would
result in positive environmental impacts. By limiting Form A
eligibility to facilities with zero PBT releases and 500 pounds or
fewer other waste management quantities (i.e., recycling, energy
recovery, and treatment for destruction), EPA is encouraging facilities
to reduce releases and other waste management to meet these targets.
For chemicals such as lead and mercury, this approach will encourage
recycling and/or source reduction, both desirable waste management
techniques. Further, because the proposed rule requires zero releases
for PBT chemical Form A eligibility, there will be no loss of detailed
Form R release information; therefore, the proposal does not affect the
use of TRI release data to gauge direct impacts on public health.
Some commenters express opposition to expanding the use of Form A
to PBT chemicals because it would result in some important non-release
data no longer being reported on Form R. Concerns include the potential
serious health impacts associated with these chemicals (especially
lead, PACs and mercury) and thus the need to have public data on even
small quantities managed by facilities. Comments also express concerns
about the loss of the ability to assess potential liabilities of
facilities that handle PBTs.
EPA believes that allowing Form A for PBT chemicals as conditioned
in the proposal will not result in an appreciable reduction in the data
reported to the Agency. As EPA stated in the preamble to the proposal,
it anticipates this rule will have a minimal impact on the national
totals for waste management. The Agency estimates that 0.01% of total
waste management will go unreported on Form R as a result of this
component of the rule. (Economic Analysis of Toxics Release Inventory
Burden Reduction Proposed Rule, EPA September, 2005). The quantity of
lead recycled and eligible for this option would be approximately
0.0084% of the lead recycled by all TRI reporters. The corresponding
figures for PACs and mercury are 0.023% and 0.3%, respectively. As EPA
stated in the proposed rule, it expects that 2,700 PBT chemical reports
would qualify for Form A under this rule. On an individual facility
basis, data users will know that the facility filing Form A for a PBT
chemical has zero releases and between zero and 500 pounds of combined
recycling, energy recovery, and treatment for destruction. In addition,
data users will know that the facility has manufactured, processed or
otherwise used the PBT chemical above the relevant thresholds and did
not exceed the one-million-pound alternate threshold for Form A. EPA
believes that this is an appropriate level of detail for public
reporting for these substances when there are zero releases and waste
management totals are under 500 pounds.
Several commenters express opposition to the proposed option for
PBT chemicals because the proposal provides minimal burden reduction
while losing important publicly available data. One commenter estimates
that the average cost savings per facility would be only $1,035, which
the commenter argues does not justify the expected loss of information
from the rule. Another commenter estimates that 77% of facilities
eligible to use Form A for PBTs report zero for both releases and other
waste management and therefore do not save burden by switching to Form
A. Other commenters support EPA's proposed option for PBTs because of
the helpful burden reduction for facilities that have zero releases.
These commenters state that the burden of reporting is substantial and
that burden relief is needed, especially for reporters that have zero
releases and are managing their chemicals in an environmentally
responsible manner. Some commenters also suggested that additional
burden reduction could be provided by allowing use of Form A for PBT
chemical reports with small, non-zero release quantities.
EPA believes that the rule will result in significant burden
reduction without losing crucial information. Facilities that use Form
A for a PBT chemical will save an estimated 15.5 hours of burden for
each Form A submitted instead of a Form R. From the standpoint of total
burden, the Agency estimates that the approximately 1,800 facilities
eligible for this option will save approximately 36,000 hours (or $1.8
million) of reporting burden. In response to comments that the burden
savings is minimal because the majority of facilities eligible for this
option have no waste management quantities to report (i.e., zeros in
Sections 8.1 through 8.8), such facilities will still realize burden
savings from no longer having to complete all of the Form R data
elements (e.g., the Production Ratio in Part II, Section 8.9; and the
maximum

[[Page 76939]]

amount of the TRI chemical on-site at any one time during the year in
Part II, Section 4).
While a higher PBT-release level would provide additional burden
reduction, EPA believes that a zero release amount under current TRI
reporting requirements strikes an appropriate balance between paperwork
burden and the provision of valuable information consistent with the
goals and statutory purposes of the TRI program. EPA notes that under
current TRI reporting guidance, facilities are already allowed to round
small PBT chemical releases to zero. As discussed in the preamble to
the PBT chemical final rule (64 FR 58672, October 29, 1999), facilities
are required to report PBT chemical releases greater than 0.1 pound
(except dioxins). In that preamble, the Agency stated that it believes
that facilities may be able to calculate their estimates of releases to
one-tenth of a pound and that such guidance is consistent with the
requirements of sections 313(g) and (h).

B. Comments on Form A Eligibility--Non-PBT Chemicals

1. Overview
Commenters who support EPA's proposed expansion of Form A
eligibility for non-PBT chemicals assert that the proposed rule would
provide significant burden relief from TRI reporting--especially for
small facilities. These proponents argue that this relief would be
significant despite the need to calculate releases and other waste
management amounts to determine if they qualify for Form A.
Other commenters opposed to the proposed rule focused on the impact
at the local level from the detailed Form R waste management
information that would no longer be reported on Form R. While many of
these commenters recognize that the potential non-reporting of detailed
Form R waste management information represents less than 1% of the
total waste management reported nationwide on Form R, they argue that
at the local level, a 5,000-pound Form A range of release and other
waste management information will adversely affect the ability of data
users to perform local trend analyses, monitor the performance of
individual facilities, and more generally, meet the intended purpose of
the data collection to inform the public, government, and other data
users about releases of toxic chemicals to the environment. Many
commenters gave examples of local data uses that could be affected by
the proposed rule such as identifying pollution-prevention
opportunities, conducting risk analyses, identifying trends in toxic
exposures, conducting spatial analyses of toxic hazards, setting
environmental and public-health policy, and evaluating trends in the
environmental performance of individual companies.
After a thorough consideration of commenters' concerns about the
potential non-reporting of detailed Form R information, EPA has decided
to modify the proposed 5,000-pound total waste management threshold for
Form A by placing a 2,000-pound limit on releases of non-PBT chemicals
eligible for Form A. In today's final rule, in order for a facility to
use the Form A Certification Statement for a non-PBT chemical, the
facility cannot have more than 5,000 pounds of total annual waste-
management (i.e., releases, recycling, energy recovery, and treatment
for destruction) of that chemical, and the contribution of total annual
releases toward the 5,000-pound total annual waste management amount
must be no greater than 2,000 pounds. This approach is partially
responsive to those commenters who expressed a preference for a lower
ARA than the proposed 5,000-pound cutoff. Under today's rule, Form A
continues to serve as a range report and with regard to releases, it
will inform the public that a facility filing a Form A for a specific
non-PBT chemical has total annual releases of that chemical in the
range of zero to 2,000 pounds. With regard to total waste management
(which includes releases), today's rule increases the current range of
zero to 500 pounds to zero to 5,000 pounds. The Agency believes that
today's approach effectively balances concerns associated with
potential non-reporting of detailed Form R release information against
total paperwork burden and the promotion of recycling and treatment as
alternatives to disposal and other releases.
Specifically, by finalizing a Form A eligibility threshold that
favors the waste management activities of recycling, energy recovery,
and treatment for destruction over disposal and other releases, this
rule responds to comments about the proposed rule's failure to promote
improvements in environmental performance. By placing a 2,000-pound
limit on the amount of non-PBT chemical releases that may be applied to
the 5,000-pound threshold for Form A eligibility, today's rule actively
encourages facilities to make improvements in environmental performance
consistent with national pollution-prevention policy. That is, it
creates incentives for facilities to move away from disposal and other
releases towards treatment and recycling. In addition, by including all
waste management activities in the Form A eligibility criteria, EPA is
encouraging facilities above the 5,000-pound ARA to reduce their total
waste management in order to qualify for Form A.
2. Comments on the Impact of the Annual Reportable Amount (ARA)
Criterion on Environmental Performance
Some commenters state that recycling, energy recovery, and
treatment for destruction should be excluded from the ARA to provide
facilities with an incentive for pollution-prevention activities. EPA
believes that it has addressed this comment in the final rule by
providing one threshold (2,000 pounds) which considers only releases,
and a second threshold (5,000 pounds) that includes releases to the
environment and other waste management activities. EPA believes that by
including these other waste management activities in the 5,000-pound
eligibility threshold, it is promoting pollution prevention. Section
6602 of the Pollution Prevention Act states that ``pollution should be
prevented or reduced at the source whenever feasible.'' Accordingly,
the Agency has decided to continue to include all waste management
activities under the Form A threshold determination in the expectation
that the cost savings associated with using Form A instead of Form R
would provide incentives to promote source reduction. Further, by
limiting the release portion of the 5,000-pound ARA to 2,000 pounds,
today's rule structures Form A eligibility in a way that encourages
treatment, recycling, and/or energy recovery over releases, which is
consistent with national policy under the Pollution Prevention Act.
One commenter opposes increasing the 500-pound ARA because the
Agency has not yet defined the Section 8 waste management data
elements. To support this position, the commenter asserts that there
are significant data-quality problems with the Section 8 data. This
commenter believes EPA should not consider raising the Form A threshold
until the Agency fixes these data-quality problems.
EPA has provided various forms of compliance assistance (e.g.,
guidance, training sessions, a call center, a TRI Web site, reporting
software) to improve data quality and to promote consistent TRI
reporting. Recognizing that there still is room for improvement, the
Agency intends to continue its outreach efforts to improve data quality
through reporting compliance. Nevertheless, EPA believes that today's
final rule

[[Page 76940]]

appropriately balances the paperwork burdens of reporting against the
promotion of pollution prevention and the requirement to provide the
public and other data users with valuable information that is
consistent with the goals and statutory purposes of the TRI program.
3. Comments on the Rule's Impact on Local Risk Screening Analyses
Many commenters opposed to the proposed rule assert that small
releases that may no longer be reported on Form R as a result of the
proposed rule do not necessarily pose less risk at the local level than
the larger releases that will continue to be reported on Form R. Some
of these commenters discuss the negative impact the proposed rule would
have on county-level risk rankings generated by the Agency's Risk
Screening Environmental Indicators (RSEI) software program, which
relies on TRI release data. Some commenters describe specific county-
level risk rankings generated by RSEI for which the order and
composition of rankings would change under the proposed rule.
Another comment asserts that the RSEI tool can be used to show that
the proposed rule would not adversely affect the use of TRI data to
identify toxic releases that pose significant risk at the local level
because 99% of counties would not have significant changes in reported
risk. Further, some commenters state that allowing facilities that
report minimal releases to utilize Form A could improve the quality of
the TRI database by focusing attention on detailed Form R release
information that represents a potential risk to the public. They also
noted that the small reduction in detailed information would be far
outweighed by the benefits of the proposed rule, in terms of reduced
costs and paperwork affecting the economic competitiveness of small
businesses and the counties they serve.
EPA believes that while RSEI is a valuable screening tool for
identifying risk-related situations of high potential concern, and
which warrant further evaluation, it makes assumptions about chemical
toxicity and exposure pathways that may not hold true at the local
level where a more robust risk assessment could be undertaken depending
on the intended use of the data. RSEI analysis alone does not provide a
detailed or quantitative assessment of risk (e.g., excess cases of
cancer). By itself, RSEI is not designed as a substitute for more
comprehensive, site-specific risk assessments. More information on the
functionality and limitations of RSEI can be found at
http://www.epa.gov/oppt/rsei.
4. Environmental Justice (EJ) Concerns
A number of commenters raised concerns about the proposed rule's
potential Environmental Justice (EJ) impacts. Specifically, commenters
are concerned about the potential health effects and other impacts from
releases near minority and low-income populations. EPA has given
careful consideration to these comments. In the preamble to the
proposed rule, the Agency concluded (referring to both the PBT and non-
PBT portions), that ``EPA has no indication that either option will
disproportionately impact minority or low-income communities.'' After
publication of the proposed rule, and in response to a request for
information from three members of the U.S. House of Representatives,
the Agency estimated that minorities comprise 31.8% of the U.S.
population and 41.8% of the population residing within one mile of
facilities that filed at least one Form R for reporting year 2003.
Minorities make up an estimated 43.5% of the population residing within
one mile of facilities that would qualify for Form A in reporting year
2003 under the proposed rule. EPA also estimated that those individuals
living below the Census Bureau poverty level account for 12.9% of the
U.S. population and 16.5% of the population living within one mile of
facilities that filed at least one Form R for reporting year 2003. The
figure for facilities that would qualify for Form A under the proposed
rule is 17.0%. Based on the information provided to Congress, EPA said
that ``the results show little variance between the percent of
communities with facilities filing Form Rs and the percent of
communities where facilities would be able to file Form A under the
proposed rule.'' As noted in more detail below, EPA does not have any
evidence that this rule will have a direct effect on human health or
environmental conditions. Based on these results, EPA believes that the
rule will not disproportionately affect the environment or public
health in minority or low-income communities.
EPA recognizes that TRI provides important information that may
indirectly lead to improved health and environmental conditions at the
community level. Although today's action was not specifically crafted
to address minority and disadvantaged communities, the reduced number
of facilities eligible for Form A under today's rule, as compared to
the proposed rule, means that there will be more detailed information
available to communities generally, including minority and
disadvantaged communities.
5. Comments on Specific Chemicals
Many commenters raised concerns about specific chemicals. In the
proposed rule, EPA asked for comment on whether any of the chemicals
potentially eligible for the 5,000-pound ARA are of a sufficient level
of concern to justify excluding them from eligibility for Form A at the
higher threshold. Commenters voiced concerns about the potential non-
reporting of TRI release information on the Hazardous Air Pollutants
(HAPs) regulated under the Clean Air Act (CAA). Other commenters asked
EPA to exclude carcinogens from Form A eligibility at the proposed
5,000-pound ARA or to consider human developmental effects of the toxic
chemical when assessing eligibility.
The Agency factored into its decision-making for today's action the
impact that the proposed rule could have on HAP chemical release
information. Agency analysis estimated that 32 TRI-listed HAP chemicals
identified by the Agency as ``priority urban air toxics'' could account
for as many as 2,600 of the approximately 12,000 Form Rs at issue under
the proposal. While these 2,600 forms account for almost 20% of all
Form Rs submitted for these HAPs, they account for only 0.4% of total
releases reported to TRI for these 32 HAP chemicals.
Moreover, in today's final rule, the Agency set a 2,000-pound limit
on non-PBT chemical releases, which will have a smaller impact on
detailed reporting of HAP data than the proposed rule. In addition,
although TRI provides valuable data on facility HAP emissions, broader
coverage of stationary source HAP emissions, as well as data on mobile
sources of HAPs, are available from EPA's publicly available National
Emissions Inventory (NEI). After thoughtful consideration, EPA has
decided to apply today's expanded Form A eligibility to all TRI-listed
non-PBT chemicals.
6. Form A Utilization Rate and the Agency's Enforcement Policy
As discussed in the preamble to the proposed rule, the Agency
considered the existing Form A utilization rate when deciding how much
to expand the eligibility for Form A under this rule. Specifically, the
Agency has observed to date that only slightly over half of the forms
(54%) that facilities submit to TRI that could use Form A are actually
submitted on Form As. The Agency believes there are a number of
possible reasons for this estimated utilization rate, including the
desire to showcase

[[Page 76941]]

pollution prevention efforts on Form R and the desire to demonstrate
good environmental stewardship. The Agency is not convinced that the
rate of Form A utilization is likely to be significantly higher at a
5,000-pound ARA with a 2,000-pound release limit than the rate of
utilization to date with the 500-pound ARA threshold. However, many
comments say that the lack of a clear EPA enforcement policy for the
erroneous submission of Form A by facilities acting in good-faith
contributes to an unnecessarily low Form A utilization rate. These
commenters believe that Form A will continue to be underutilized unless
and until the Agency widely clarifies its enforcement policy among the
regulated community. Reporters should note that on March 30, 2005, EPA
issued a memorandum restating its enforcement policy for reporters who
submit a Form A in lieu of a Form R when the reporters did not qualify
for the alternate threshold reporting exemption. At all times since the
alternate reporting threshold was created, EPA enforcement policy has
been to treat such a violation as a Level 3 violation, which is the
same level at which data quality violations are treated. However, when
a person subject to reporting fails to file either a Form R or a Form
A, that violation will be treated as a Level 1 (failure to report)
violation, even if the person could have qualified for the alternate
reporting threshold and the report could have been made on a Form A in
lieu of a Form R.\7\
---------------------------------------------------------------------------

\7\ There are six levels of violations with Level 1 imposing the
highest penalty and Level 6 the lowest. Thus, the severity of a
Level 3 violation is less than that of a Level 1. The March 30,
2005, memorandum and all other EPCRA Section 313 enforcement policy
documents can be found at
http://cfpub.epa.gov/compliance/resources/policies/civil/epcra/index.cfm.

---------------------------------------------------------------------------

7. Including Section 8.8 in the Non-PBT ARA
Commenters generally support modifying the Form A ARA to include
Section 8.8 quantities. Section 8.8 of the Form R is intended to
capture release and other waste management quantities resulting from
remedial actions, catastrophic events, or one-time events not
associated with production processes. Several commenters assert that
one-time events or accidental releases can result in substantial
releases to the environment. One commenter states that although Section
8.8 release amounts are not the direct result of production activities,
these releases are still generated as a result of facilities doing
business manufacturing, processing, or otherwise using TRI-listed
chemicals, and therefore, Section 8.8 quantities should be included in
the ARA. Another commenter notes that if catastrophic events are rare,
as EPA may be assuming, then shielding them from disclosure would not
yield any appreciable reduction in paperwork. One commenter supports
modifying the ARA to include Section 8.8 waste management quantities,
since including the waste management amounts of Section 8.8 in the ARA
for PBT chemicals and not in the ARA for non-PBT chemicals would add
unnecessary complexity in determining Form A eligibility.
For several reasons, EPA has decided to include Section 8.8 non-
production-related quantities in the calculations to determine whether
facilities have met the 5,000-pound ARA for non-PBT chemical Form A
eligibility. First, EPA agrees with commenters that while Section 8.8
release and other waste management amounts are not the direct result of
production-related activities, and therefore, are less amenable to
source-reduction efforts, reporting on Section 8.8 quantities provides
important information in the same way the reporting on production-
related release and other waste management amounts informs
stakeholders. Second, EPA agrees that the ARA for non-PBT chemicals
should include Section 8.8 waste management amounts in order to create
consistency with the PBT eligibility criteria. In other words,
including the waste management amounts of Section 8.8 in the Form A
threshold determination for PBT chemicals and not in the ARA for non-
PBT chemicals would add unnecessary complexity in determining Form A
eligibility. Third, EPA does not expect the inclusion of Section 8.8
amounts in the Form A threshold determination for non-PBT chemicals to
add a significant amount of burden to those facilities considering Form
A. Less than 4% of all non-PBT chemical Form Rs have a value greater
than zero in Section 8.8. Accordingly, Section 8.8 quantities will not
play any role in most Form A eligibility determinations. Furthermore,
because Section 8.8 is restricted to quantities involving remedial
actions, catastrophic events, or one-time events not associated with
production processes, EPA does not expect Section 8.8 quantities to
factor into any facility's Form A eligibility determinations on a
regular basis. Accordingly, based on this final rule, facilities are
required to include quantities reported in Section 8.8 in their non-PBT
chemical ARA threshold determinations for Form A eligibility.

VI. What Are the Statutory and Executive Order Reviews Associated With
This Action?

A. Executive Order 12866, Regulatory Planning and Review

Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993),
this action is a ``significant regulatory action.'' Accordingly, EPA
submitted this action to the Office of Management and Budget (OMB) for
review under EO 12866 and any changes made in response to OMB
recommendations have been documented in the docket for this action.
In addition, EPA prepared an analysis of the potential costs and
benefits associated with this action. This analysis is contained in
``Economic Analysis of the Toxics Release Inventory Phase 2 Burden
Reduction Rule.'' A copy of the analysis is available in the docket for
this action and the analysis is briefly summarized here. For more
information, see the Economic Analysis of Toxics Release Inventory
Phase 2 Burden Reduction Rule.
1. Methodology
To estimate the cost savings, incremental costs, economic impacts,
and benefits of this rule, the Agency estimated both the cost and
burden of completing Form R and Form A as well as the number of
affected entities. The Agency has used Reporting Year (RY) 2004 for TRI
data. The Agency identified the number of potentially affected
respondents currently completing Form Rs that may be eligible for
burden savings under the new Form A eligibility for PBT chemicals and
the expanded Form A eligibility for non-PBT chemicals. For both PBT
chemical and non-PBT chemical eligibility, the Agency compared the
baseline burden for completing Form R with the burden for completing
Form A. The total burden and cost savings associated with this rule are
the product of the unit burden and cost savings per form times the
number of forms newly eligible for Form A pursuant to this rule. Given
that only 54% of currently eligible reports are filed using Form A,
this approach may overestimate the actual burden reduction from the
rule, but EPA believes that it is appropriate to base its estimates on
the burden reduction that the rule makes available to reporters, even
if not all of them choose to use it.
2. Cost and Burden Savings Results
Table 1 summarizes the potential annual cost and burden savings of
the Phase 2 TRI Burden Reduction rule, if all newly eligible reports
are filed using Form A.

[[Page 76942]]

Table 1.--Potential Annual Cost and Burden Savings of the Phase 2 TRI Burden Reduction Rule
[Reporting year 2004 TRI data]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Total annual Percent of
Number of potentially Burden burden Cost savings Total annual total cost/
Option newly eligible eligible savings per savings per Form R cost savings burden
Form R's facilities Form R (hours) (hours) (percent)
--------------------------------------------------------------------------------------------------------------------------------------------------------
New Form A Eligibility for PBT chemicals 2,360 1,796 15.5 36,480 $748 $1,764,969 30
Increase ARA for Non-PBT chemicals to 9,501 5,317 9.1 86,924 438 4,160,239 70
5,000 pounds but limit disposal and
other releases to 2000 pounds..........
---------------------------------------------------------------------------------------------------------------
Total of Options.................... 11,861 6,670 .............. 123,404 500 5,925,208 100
--------------------------------------------------------------------------------------------------------------------------------------------------------

Table 1 does not reflect those non-PBT forms that may lose their
current Form A eligibility as a result of including Section 8.8 amounts
(e.g., catastrophic events) in the ARA threshold determinations for
Form A eligibility. While the exact number of newly ineligible forms
cannot be calculated, a reasonable estimate of the number of newly
ineligible forms is 95, which equates to 1% of the 9,501 non-PBT forms
estimated to be newly eligible for Form A. The estimate of 95 forms is
based on the sum of 45 Form Rs and 50 Form As, which are estimated to
be ineligible for Form A if Section 8.8 data are included in the Form A
eligibility criteria and applied to 2004 reports. Specifically, a
review of the approximately 10,000 Form Rs for reporting year 2004 that
currently appear to be eligible for Form A at the 500-pound ARA reveals
about 45 forms that would be ineligible for Form A as a result of
including Section 8.8 amounts in Form A threshold determinations.
Because Form R does not record quantities related to the activity
threshold, this estimate assumes facilities have not manufactured,
processed or otherwise used more than one million pounds. EPA also
recognizes that some number of currently filed Form As will become
newly ineligible for Form A because of today's requirement to include
Section 8.8 amounts in Form A eligibility determinations. Since Form A
does not provide specific waste management quantities, EPA cannot
estimate with certainty the number of Form As that may become newly
ineligible for Form A as a result of today's rule. However, if one
assumes the approximately 10,000 Form Rs that appear to be eligible for
Form A at the 500-pound ARA are representative of the approximately
11,000 Form As currently filed under the 500-pound ARA, then one could
estimate that 50 of the 11,000 Form As would be ineligible for Form A
as a result of today's rule ((45/10,000) x 11,000 = 50). For more
information on Section 8.8 and Form A eligibility see Chapter 6 of the
Economic Analysis.
EPA estimates that the total annual burden savings for this
proposal is 123,404 hours, excluding the 1% burden increase from newly-
ineligible facilities. EPA estimates the total annual cost savings for
this proposal is $5.9 million. Average annual cost savings for
facilities submitting Form As in lieu of Form Rs is $438 per form for
non-PBT reports and $748 per form for PBT reports.
3. Impacts to Data
EPA has evaluated the potential impacts to data reported to the
public for the rule and determined that the likelihood of significant
impacts is minimal. For New Form A Eligibility for PBT chemicals, the
TRI chemical report submitted must certify that no production-related
or non-production-related releases to the environment occurred. The
balance of management of these TRI chemicals is most likely either
recycling or management through energy recovery or treatment for
destruction at quantities totaling 500 pounds or less based on our
knowledge of the chemicals and how they are managed. For Expanded Form
A Eligibility for non-PBT chemicals, the Agency has evaluated both
total release pounds and total annual reportable amount (ARA) pounds
that may no longer be reported on Form R as a result of this final
rule. Relative to the ARA of 500 pounds that includes total production-
related waste (sections 8.1 through and including 8.7), approximately
5.7 million additional release pounds (0.14% of all TRI release pounds)
and 10.5 million additional annual reportable amount pounds (0.06% of
all TRI annual reportable amount pounds) would be eligible for Form A
reporting as a result of this final rule. As noted above, based on
historical experience, EPA projects that not all eligible reporters
will use Form A. For those that do, the Form A for non-PBTs provides a
range report of zero to 5,000 pounds for annual reportable amounts, and
zero to 2,000 pounds for disposal and other releases, including non-
production-related releases. Further information on how specific
chemicals are affected can be found in the economic analysis of this
rulemaking.

B. Paperwork Reduction Act

This action is a burden reduction rule and does not impose any new
information collection burden. However, the Office of Management and
Budget (OMB) has previously approved the information collection
requirements contained in the existing regulations under the provisions
of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned
OMB control numbers 2070-0093 and 2070-0143. A copy of the OMB approved
Information Collection Requests (ICRs) may be obtained from Susan Auby,
Collection Strategies Division; U.S. Environmental Protection Agency
(2822T); 1200 Pennsylvania Ave., NW., Washington, DC 20460 or by
calling (202) 566-1672.
EPA calculated the potential reporting and recordkeeping burden
reduction for this rule to be 123,404 hours and the potential cost
savings to be $5.9 million per year. As noted above, actual burden
reduction and cost savings will likely be somewhat less. Burden means
total time, effort, or financial resources expended by persons to
generate, maintain, retain, disclose, or provide information to or for
a Federal agency. That includes the time needed to review instructions;
develop, acquire, install, and utilize technology and systems for the
purposes of collecting, validating, and verifying information, processing

[[Page 76943]]

and maintaining information, and disclosing and providing information;
adjust the existing ways to comply with any previously applicable
instructions and requirements; train personnel to be able to respond to
a collection of information; search data sources; complete and review
the collection of information; and transmit or otherwise disclose the
information.

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 Regulatory Flexibility Act 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 this rule on small
entities, small entity is defined as: (1) A small business as defined
by the Small Business Administration's regulations at 13 CFR 121.201;
(2) a small governmental jurisdiction that is a government of a city,
county, town, school district or special district with a population of
less than 50,000; and (3) a small organization that is any not-for-
profit enterprise which is independently owned and operated and is not
dominant in its field.
After considering the economic impacts of today's rule on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. The economic
impact analysis conducted for today's rule indicates that these
revisions to Form R and Form A would generally result in savings to
affected entities compared to baseline requirements. However, some
businesses that currently file one or more Form A's would be required
to file Form R's as a result of including Section 8.8 amounts (e.g.,
catastrophic events) in the ARA threshold determinations for Form A
eligibility. While this rule will result in a cost savings for most
affected entities, these businesses would suffer a burden increase.
Since the burden increase will be attributable to significant non-
production-related wastes (i.e., unusual events) the number of
facilities experiencing this burden each year will likely remain about
the same, although the specific facilities are likely to change.
This rule is expected to adversely affect 19 parent companies that
own 32 facilities that currently file Form A submissions. Of the
affected parent companies, approximately 45 percent, or 9 companies,
are small businesses as defined by the Small Business Administration.
No small governments or small organizations are expected to be affected
by this action. Each affected small business is expected to expend
approximately 14 hours per year to comply with the additional reporting
requirements. Based on the incremental cost estimates for these burden
hours, the number of facilities owned by each small business, and the
annual revenues of the affected small businesses, all 9 affected small
businesses are expected to experience incremental cost impacts of less
than one percent of annual revenues. See Chapter 7 (Small Entity Impact
Analysis) of the Economic Analysis.

D. Unfunded Mandates Reform Act

EPA has determined that this rule does not contain a Federal
mandate that may result in expenditures of $100 million or more for
State, local, and tribal governments, in the aggregate, or the private
sector in any one year. This rule is estimated to save compliance costs
of $5.9 million annually to the private sector. In addition, this rule
does not create any additional federally enforceable duty for State,
local and tribal governments. Thus, today's rule is not subject to the
requirements of sections 202 and 205 of the UMRA.

E. Executive Order 13132, Federalism

Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.'' This rule
does not have federalism implications. It will not have substantial
direct effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132.

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

Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (59 FR 22951, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal Government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.'' This rule does not have tribal
implications. It will not have substantial direct effects on tribal
governments, on the relationship between the Federal Government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian tribes, as specified in
Executive Order 13175.

G. Executive Order 13211, Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use

This rule is not a ``significant energy action'' as defined in
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (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. Today's
rule reduces recordkeeping and reporting burden for TRI reporters. It
will not cause reductions in supply or production of oil, fuel, coal,
or electricity. Nor will it result in increased energy prices,
increased cost of energy distribution, or an increased dependence on
foreign supplies of energy.

H. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks

``Protection of Children From Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997) applies to any rule that EPA
determines (1) ``economically significant'' as defined under Executive
Order 12866, and (2) concerns an environmental health or safety risk
that EPA has reason to believe may have a disproportionate effect on
children. If the regulatory action meets both criteria, the Agency must
evaluate the environmental health

[[Page 76944]]

or safety effects of the planned rule on children and explain why the
planned regulation is preferable to other potential effective and
reasonably feasible alternatives considered by the Agency. This rule is
not subject to E.O. 13045 because it is not an economically significant
rule as defined by E.O. 12866.

I. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards. This
rule does not establish technical standards. Therefore, EPA did not
consider the use of any voluntary consensus standards.

J. Environmental Justice

Under Executive Order 12898, ``Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations,'' EPA has undertaken to incorporate environmental justice
into its policies and programs. EPA is committed to addressing
environmental justice concerns, and is assuming a leadership role in
environmental justice initiatives to enhance environmental quality for
all residents of the United States. The Agency's goals are to ensure
that: (1) No segment of the population, regardless of race, color,
national origin, or income, bears disproportionately high and adverse
human health and environmental effects as a result of EPA's policies,
programs, and activities; and (2) all people are treated fairly and are
given the opportunity to participate meaningfully in the development,
implementation, and enforcement of environmental laws, regulations, and
policies.
The TRI Program is an environmental information program. While it
provides important information that may indirectly lead to improved
health and environmental conditions on the community level, it is not
an emissions release control regulation that could directly affect
health and environmental outcomes in a community. The principal
consequence of today's action will be to reduce the amount of detailed
information available on some toxic chemical releases or management.
However, as pointed out in the previous discussion, the impacts will be
very small in terms of total national figures. EPA believes that the
data provided under this rule will continue to provide valuable
information that fulfills the purposes of the TRI program. By
structuring Form A eligibility for both PBT chemicals and non-PBT
chemicals in a way that favors recycling and treatment over disposal
and other releases, today's rule encourages facilities to reduce their
releases and ensures that valuable information will continue to be
provided to the public pursuant to the purposes of section 313 of EPCRA
and section 6607 of PPA. Furthermore, only the non-PBT chemical portion
of today's rule will have any effect on the reporting of chemicals
released to the environment. The PBT chemical portion of this rule
requires that facilities reporting PBTs have no releases in order to be
eligible for Form A. EPA does not have any evidence that this rule will
have a direct effect on human health or environmental conditions. The
Agency has given careful consideration to the level of detail in the
information available to minority and low-income communities. While
there is a higher proportion of minority and low-income communities in
close proximity to some TRI facilities than in the population
generally, the rule does not appear to have a disproportionate impact
on these communities, since facilities in these communities are no more
likely than elsewhere to become eligible to use Form A as a result of
the rule. Results of the environmental justice assessment on the final
rule are available in the information docket.

K. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective January 22, 2007.

List of Subjects in 40 CFR Part 372

Environmental protection, Community right-to-know, Reporting and
recordkeeping requirements, Toxic chemicals.

Dated: December 18, 2006.
Stephen L. Johnson,
Administrator.

• Therefore, 40 CFR part 372 is 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.

Subpart A--[Amended]

• 2. Revise Sec. 372.10(d) introductory text to read as follows:

Sec. 372.10 Recordkeeping.

* * * * *
(d) Each owner or operator who determines that the owner operator
may apply one of the alternate thresholds as specified under Sec.
372.27(a) must retain the following records for a period of 3 years
from the date of the submission of the certification statement as
required under Sec. 372.27(b):
* * * * *

Subpart B--[Amended]

• 3. Section 372.27 is amended as follows:
• i. Revise section heading.
• ii. Revise paragraph (a).
• iii. Revise paragraph (b).
• iv. Revise paragraph (e).

Sec. 372.27 Alternate thresholds and certifications.

(a) Except as provided in paragraph (e) of this section:
(1) General. With respect to the manufacture, process, or otherwise
use of a toxic chemical, the owner or operator of a facility may apply
an alternate threshold of 1 million pounds per year to that chemical if
the owner or operator calculates that the facility would have:
(i) No more than 2,000 pounds of total on-site and off-site
disposal or other releases (including disposal or other releases that
resulted from catastrophic events); and
(ii) An annual reportable amount of that toxic chemical not
exceeding 5,000 pounds for the combined total quantities released at
the facility;

[[Page 76945]]

disposed within the facility; treated for destruction at the facility;
recovered at the facility as a result of recycling operations;
combusted for the purpose of energy recovery at the facility;
transferred from the facility to off-site locations for the purpose of
recycling, energy recovery, treatment, and/or disposal; and managed as
a result of remedial actions, catastrophic events, or one-time events
not associated with production processes during the reporting year.
These volumes correspond to the sum of amounts reportable for data
elements on EPA Form R (EPA Form 9350-1; Rev. 01/2006) as Part II
column B or sections 8.1 (total quantity released), 8.2 (quantity used
for energy recovery on-site), 8.3 (quantity used for energy recovery
off-site), 8.4 (quantity recycled on-site), 8.5 (quantity recycled off-
site), 8.6 (quantity treated on-site), 8.7 (quantity treated off-site),
and 8.8 (quantity released to the environment as a result of remedial
actions, catastrophic events, or one-time events not associated with
production processes).
(2) Chemicals of Special Concern. With respect to the manufacture,
process, or otherwise use of a toxic chemical, the owner or operator of
a facility may apply an alternate threshold of 1 million pounds per
year to that chemical if the owner or operator calculates that the
facility would have:
(i) Zero on-site and off-site disposal or other releases (including
disposal or other releases that resulted from catastrophic events); and
(ii) An ``Annual Reportable Amount of a Chemical of Special
Concern'' not exceeding 500 pounds. The ``Annual Reportable Amount of a
Chemical of Special Concern'' is the combined total of:
(A) Quantities treated for destruction at the facility;
(B) Quantities recovered at the facility as a result of recycling
operations;
(C) Quantities combusted for the purpose of energy recovery at the
facility;
(D) Quantities transferred from the facility to off-site locations
for the purpose of recycling, energy recovery, and/or treatment; and
(E) Quantities managed through recycling, energy recovery, or
treatment for destruction that were the result of remedial actions,
catastrophic events, or one-time events not associated with production
processes during the reporting year.
(b) If an owner or operator of a facility determines that the owner
or operator may apply one of the alternate reporting thresholds
specified in paragraph (a) of this section for a specific toxic
chemical, the owner or operator is not required to submit a report for
that chemical under Sec. 372.30, but must submit a certification
statement that contains the information required in Sec. 372.95. The
owner or operator of the facility must also keep records as specified
in Sec. 372.10(d).
* * * * *
(e) The alternative thresholds described in paragraph (a) of this
section are limited by the following:
(1) The provisions of paragraph (a)(1) of this section do not apply
to any chemicals listed in Sec. 372.28.
(2) The provisions of paragraph (a)(2) of this section apply only
to chemicals listed in Sec. 372.28.
(3) Dioxins and dioxin-like compounds are not eligible for the
alternate thresholds described in paragraph (a) of this section.

Subpart E--[Amended]

• 4. Section 372.95 is amended as follows:
• i. Revise section heading.
• ii. Revise paragraph (b) introductory text.
• iii. Revise paragraph (b)(4).

Sec. 372.95 Alternate threshold certifications and instructions.

* * * * *
(b) Alternate threshold certification statement elements. The
following information must be reported on an alternate threshold
certification statement pursuant to Sec. 372.27(b):
* * * * *
(4) Signature of a senior management official certifying one of the
following:
(i) Pursuant to 40 CFR 372.27(a)(1), ``I hereby certify that to the
best of my knowledge and belief for the toxic chemical(s) listed in
this statement, for this reporting year, the annual reportable amount
for each chemical, as defined in 40 CFR 372.27(a)(1), did not exceed
5,000 pounds, which included no more than 2,000 pounds of total
disposal or other releases to the environment, and that the chemical
was manufactured, or processed, or otherwise used in an amount not
exceeding 1 million pounds during this reporting year;'' and/or
(ii) Pursuant to 40 CFR 372.27(a)(2), ``I hereby certify that to
the best of my knowledge and belief for the toxic chemical(s) of
special concern listed in this statement, there were zero disposals or
other releases to the environment (including disposals or other
releases that resulted from catastrophic events) for this reporting
year, the ``Annual Reportable Amount of a Chemical of Special Concern''
for each such chemical, as defined in 40 CFR 372.27(a)(2), did not
exceed 500 pounds for this reporting year, and that the chemical was
manufactured, or processed, or otherwise used in an amount not
exceeding 1 million pounds during this reporting year.''
* * * * *
[FR Doc. E6-21958 Filed 12-21-06; 8:45 am]
BILLING CODE 6560-50-P

Notices For
2009
2008
2007
2006
2005
2004
2003
2002
2001
2000
1999
1998
1997
1996
1995
1994

Toxics Release Inventory Burden Reduction Final Rule

Local Navigation