[Federal Register: November 3, 2008 (Volume 73, Number 213)]
[Rules and Regulations]
[Page 65451-65484]
[DOCID:fr03no08-13]

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Part II

Environmental Protection Agency

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40 CFR 355 and 370

Emergency Planning and Community Right-to-Know Act; Amendments to
Emergency Planning and Notification; Emergency Release Notification and
Hazardous Chemical Reporting; Final Rule

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 355 and 370

[EPA-HQ-SFUND-1998-0002; FRL-8733-5]
RIN 2050-AE17

Emergency Planning and Community Right-to-Know Act; Amendments to
Emergency Planning and Notification; Emergency Release Notification and
Hazardous Chemical Reporting

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing changes to the Emergency Planning
Notification, Emergency Release Notification and Hazardous Chemical
Reporting regulations that were proposed on June 8, 1998. EPA proposed
four major revisions and provided draft guidance on various reporting
options that States and local agencies may wish to consider in
implementing the hazardous chemical reporting requirements. This action
addresses only those changes proposed under the heading ``Other
Regulatory Changes'' described in the preamble to the 1998 proposed
rule. This final action includes minor revisions to the Emergency
Planning Notification, Emergency Release Notification and Hazardous
Chemical Reporting regulations, codifying statutory requirements, and
clarifying certain interpretations and policy statements that EPA has
provided to the regulated community. This final action does not affect
public access to any of the information provided under the Emergency
Planning Notification, Emergency Release Notification and Hazardous
Chemical Reporting regulations. In addition to the regulatory changes,
the Agency is finalizing the plain language format of the regulations.
Each section in these regulations will be re-numbered and tables will
be added for further clarification. Improving the clarity of the
regulatory requirements will make the rule easier to understand and
improve compliance.

DATES: This final rule is effective on December 3, 2008.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-SFUND-1998-0002. All documents in the docket are listed on the
http://www.regulations.gov Web site. Although listed in the index, some
information is not publicly available, e.g., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the Internet and will be publicly available only in hard
copy form. Publicly available docket materials are available either
electronically through http://www.regulations.gov or in hard copy at
the Superfund Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution
Ave., NW., Washington, DC. The Public Reading Room is open from 8:30
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The
telephone number for the Public Reading Room is<PHONE_NUMBER>, and the
telephone number for the Superfund Docket is<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: Sicy Jacob, Office of Emergency
Management, Mail Code 5104A, Environmental Protection Agency, 1200
Pennsylvania Avenue, NW., Washington, DC 20004; telephone number: (202)
564-8019; fax number:<PHONE_NUMBER>; e-mail address:
<EMAIL_ADDRESS>Also contact the Superfund, TRI, EPCRA, RMP and Oil
Information Center at<PHONE_NUMBER> or<PHONE_NUMBER> (in the
Washington DC, metropolitan area). The Telecommunications Device for
the Deaf (TDD) number is<PHONE_NUMBER> or<PHONE_NUMBER> (in the
Washington, DC, metropolitan area.) You may wish to visit the Office of
Emergency Management (OEM) Internet site at http://www.epa.gov/
emergencies.

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

I. General Information
    A. Who is Affected by This Rule?
    B. What is the Statutory Authority for This Rule?
    C. What is the Background for This Rulemaking?
II. What are the Regulatory Changes in This Rule?
A. Reporting of Mixtures Under EPCRA Sections 311 and 312 (40 CFR
part 370)
    1. Background of the Proposed Revisions for the Reporting of
Mixtures
    2. Summary of the Proposed Revisions for the Reporting of
Mixtures
    3. Organizational Changes to the Reporting of Mixtures in This
Final Action
    4. Final Action on Proposed Revision (1): Removing the Phrase
``The Total Quantity of the Mixture'' From Sec.  370.28(b)(2)
    5. Final Action on Proposed Revision (2): Clarifying How To
Determine the Total Quantity of an EHS in Mixtures
    6. Final Action on Proposed Revision (3): Adding a Provision for
Determining the Quantity of a Non-EHS Hazardous Chemical Component
in a Mixture
    7. Final Action on Proposed Revision (4): Adding a Provision for
Determining the Quantity of a Non-EHS Hazardous Chemical When
Present in Pure Form and in Mixtures
    B. Tier I and Tier II Inventory Forms and Instructions
    1. Removal of Forms and Instructions From the Code of Federal
Regulations
    2. Revisions to the Forms and Instructions
    C. Penalties for Noncompliance
    D. Additional Changes to Parts 355 and 370 Regulations
    E. Definitions
    III. Statutory and Executive Orders
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132 (Federalism)
    F. Executive Order 13175 (Consultation and Coordination with
Indian Tribal Governments)
    G. Executive Order 13045
    H. Executive Order 13211 (Energy Effects)
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations
    K. Congressional Review Act

I. General Information

A. Who is Affected by This Rule?

    Entities that would be affected by this rule are those
organizations and facilities subject to the Emergency Planning and
Community Right-to-Know Act (EPCRA) and its implementing regulations
found in 40 CFR parts 355 and 370. To determine whether your facility
is affected by this action, you should carefully examine the sections
below that explain who must comply with the rule. If you have questions
regarding the applicability of this action to a particular entity,
consult the person listed in the preceding FOR FURTHER INFORMATION
CONTACT section.

B. What is the Statutory Authority for This Rule?

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

 C. What is the Background of This Rulemaking?

    Title III of SARA (EPCRA) establishes authorities for emergency
planning and preparedness, emergency release notification reporting,
community right-to-know reporting, and toxic chemical release
reporting. It is intended to encourage State and local planning and
preparedness for releases of extremely hazardous substances and to
provide the public, local governments, fire departments and other
emergency officials with information concerning

chemical releases and the potential chemical risks in their
communities. The implementing regulations for emergency planning,
emergency release notification and the chemicals subject to these
regulations (Extremely Hazardous Substances) are codified in 40 CFR
part 355. The implementing regulations for community right-to-know
reporting (or hazardous chemical reporting) are codified in 40 CFR part
370.
    On June 8, 1998, EPA published a proposed rule (63 FR 31268) to
streamline the reporting requirements under EPCRA, in particular,
sections 311 and 312. EPA proposed four major revisions and provided
draft guidance on various reporting options that State Emergency
Response Commissions (SERCs), Local Emergency Planning Committees
(LEPCs), and fire departments may wish to consider as they implement
EPCRA sections 311 and 312. The four proposed revisions were: (1)
Higher threshold levels for reporting gasoline and diesel fuel at
retail gas stations; (2) relief from routine reporting for substances
with minimal hazards and minimal risks; (3) relief from routine
reporting for sand, gravel and rock salt; and (4) ``Other Regulatory
Changes,'' such as: reporting of mixtures; removing the Tier I and Tier
II inventory forms and instructions from the CFR, as well as some minor
revisions to the forms and instructions; and some minor changes to the
emergency planning and emergency release notification regulations (40
CFR part 355).
    EPA finalized higher threshold levels for reporting gasoline and
diesel fuel at retail gas stations on February 11, 1999 (64 FR 7031).
In today's action, the Agency is finalizing only items in (4) above--
``Other Regulatory Changes,'' as discussed in section IV.B of the
preamble to the 1998 proposed rule. The remaining two proposed
revisions [(2) and (3) above] and the draft guidance related to EPCRA
sections 311 and 312 for States and local government agencies may be
finalized at a later date.

II. What are the Regulatory Changes in This Rule?

    This section of the notice provides a brief summary of this final
rule. Specifically, the changes in this final action include: (1)
Finalizing some of the proposed revisions on applying threshold
quantity and the reporting of mixtures under EPCRA sections 311 and
312; (2) removing the Tier I and II inventory forms and instructions
from the CFR, as well as making some minor changes to the forms and
instructions; and (3) codifying certain existing policies and
interpretations in 40 CFR parts 355 and 370. Today's action also: (1)
Re-writes the regulations in 40 CFR parts 355 and 370 in plain
language, using a question and answer format; (2) re-numbers and re-
organizes each section in 40 CFR parts 355 and 370; and (3) adds tables
in order to improve the clarity and understanding of certain reporting
requirements.
    The proposed changes to determining whether the thresholds have
been met or exceeded and reporting of mixtures under EPCRA sections 311
and 312 received the most comments. Commenters generally supported the
regulatory changes discussed in the June 1998 preamble. Details on the
significant comments received on mixture reporting and certain other
aspects of the final rule are provided below. For a more complete
discussion of all comments received and the Agency's response, please
see the Summary of Comments and Response document that is in the Docket
to today's rule as specified in the beginning of this notice.

 A. Reporting of Mixtures Under EPCRA Sections 311 and 312 (40 CFR Part
370)

 1. Background of the Proposed Revisions for the Reporting of Mixtures
    Sections 311 and 312 of EPCRA apply to any facility that is
required to prepare or have available a Material Safety Data Sheet
(MSDS) for any hazardous chemical under the Occupational Safety and
Health Administration (OSHA) and its implementing regulations. EPCRA
Sections 311(a)(3) and 312(a)(3) contain the statutory provisions for
reporting of mixtures containing hazardous chemicals. These provisions
state that for a mixture that is a hazardous chemical, a facility may
meet the reporting requirements of section 311 of EPCRA by submitting
an MSDS for the mixture or an MSDS for each hazardous chemical
component in the mixture. In lieu of submitting an MSDS for the
mixture, a facility may submit a list that contains the mixture or the
hazardous chemical components in the mixture. Section 311(a)(3) also
states that if more than one mixture at a facility contains the same
hazardous chemical, only one MSDS or one entry on the list of chemicals
is necessary for that hazardous chemical. Similarly, a facility may
meet the reporting requirements of section 312 by providing inventory
information only for the mixture or for each hazardous chemical
component in the mixture. In addition, section 312(a)(3) states that if
more than one mixture at a facility contains the same hazardous
chemical, only one listing on the inventory form is necessary for that
hazardous chemical.
    OSHA may require a facility owner or operator to prepare or have
available an MSDS for a pure chemical, a mixture and/or its hazardous
components. Therefore, owners and operators of facilities subject to
EPCRA sections 311 and 312 may have MSDSs for pure chemicals, mixtures,
and/or for individual hazardous chemical components in those mixtures.
For facilities that have only pure chemicals on site, determining if
the total amount of a hazardous chemical is at or above the reporting
threshold is straightforward. However, in many cases, facilities have
mixtures that contain hazardous chemical components, including both
extremely hazardous substances (EHSs) and non-EHSs. Before the
effective date of this final rule, 40 CFR part 370 specified how to
determine if a reporting threshold has been met or exceeded for
mixtures that contain EHSs. If the threshold is met, 40 CFR part 370
provided options to report either the hazardous chemical components or
the mixture itself. 40 CFR part 370 did not provide options for
determining if the reporting threshold has been met or exceeded for
mixtures containing non-EHS hazardous chemical components. In the
proposed rule, the Agency proposed to add requirements and/or options
for determining if the reporting threshold has been met or exceeded and
for reporting mixtures that contain non-EHS hazardous chemical
components.
    Although prior to the effective date of this final rule, the
regulations in 40 CFR part 370 did not include requirements and/or
options for determining if non-EHS hazardous chemical components in
mixtures are at or above the reporting threshold, the Agency provided
guidance on this issue in the preamble to the July 26, 1990 (55 FR
30632) final rule. In that preamble, EPA specified that, while
aggregation of non-EHS hazardous chemical components present in
mixtures is not required for determining if the reporting threshold is
met, the facility may choose to aggregate if they wish to report by
hazardous chemical components rather than reporting as mixtures. The
July 1990 rule finalized the reporting thresholds under sections 311
and 312 and established uniform effective dates for all facilities
subject to reporting under sections 311 and 312. Other revisions
included finalizing the revision of the definition of the term
``facility'' to include subsurface operations, the implementation of
all sections of EPCRA by Indian Tribes on Indian lands

as well as the treatment of mixtures in threshold calculations.
2. Summary of the Proposed Revisions for the Reporting of Mixtures
    In the June 1998 proposed rule, the Agency proposed a number of
revisions to 40 CFR 370.28 for applying threshold quantities and the
reporting of mixtures under EPCRA sections 311 and 312. Specifically,
the proposed revisions to Sec.  370.28 were:
    (1) Removing the phrase ``the total quantity of the mixture'' from
Sec.  370.28(b)(2);
    (2) Adding a provision to clarify that, when determining the total
quantity of an EHS present at a facility, the quantity of that
substance present in a mixture must be included even if the total
quantity of that particular mixture is also being counted toward the
threshold level for that mixture;
    (3) Adding a provision for applying the threshold quantity to a
hazardous chemical component in a mixture when that hazardous chemical
component is not an EHS; and
    (4) Adding a provision for applying the threshold quantity to a
non-EHS hazardous chemical when that chemical is present both by itself
and as a component in a mixture.
    EPA requested comments on these proposed revisions, as well as on
the re-writing of the mixture reporting section in plain language,
using a question and answer format. EPA received a total of 38 comments
from industry, State and local governments, trade associations and
environmental groups. In general, commenters supported codifying
existing policies for the reporting of mixtures. However, several
commenters opposed two of the proposed revisions. An overview of the
comments received on each of the proposed revisions and the final
actions being taken by the Agency are discussed below.
3. Organizational Changes to the Reporting of Mixtures in This Final
Action
    In addition to the four proposed revisions described above, EPA
proposed re-organizing and re-numbering 40 CFR part 370. Commenters
provided general support for re-organizing and re-numbering 40 CFR part
370. As stated in the proposed rule, Sec.  370.28 is re-numbered as
Sec.  370.14. A table is also provided in Sec.  370.14(a) to clarify
the requirements and/or provide options to determine if reporting
thresholds have been met or exceeded for mixtures containing EHSs and
non-EHS hazardous chemical components. The table also shows how to
report mixtures that contain EHSs and non-EHS hazardous chemical
components. The basic reporting option stated in Sec.  370.28(a) is now
in the table in Sec.  370.14(a). This provision states that the owner
or operator of a facility may meet the MSDS and Tier I information
reporting requirements for mixtures containing hazardous chemicals by
either: (1) Reporting with respect to each component in the mixture
that is a hazardous chemical; or (2) reporting with respect to the
mixture itself, provided that the mixture itself is a hazardous
chemical.
    Section 370.28(a) also stated that, where practicable, the
reporting of mixtures by a facility be consistent for both inventory
and MSDS reporting. Although we proposed that the new section 370.14(d)
would restate this requirement, EPA has re-numbered this provision as
370.14(b) to provide further clarity and improve the flow of the
regulations.
4. Final Action on Proposed Revision (1): Removing the Phrase ``the
Total Quantity of the Mixture'' From Sec.  370.28(b)(2)
    In the process of re-organizing and re-numbering all the sections
in 40 CFR part 370, some of the requirements were consolidated into one
section. As a result, the Agency proposed to remove the phrase ``the
total quantity of the mixture'' from Sec.  370.28(b)(2). This
requirement states that if the facility chooses to report the mixture,
then the total quantity of the mixture present at the facility shall be
reported. Since the table in new section 370.14(a) directs the reader
to Sec. Sec.  370.30 and 370.40, which already provides this
information, EPA believed that this phrase did not need to be repeated.
EPA received five comments opposing this revision. Specifically, the
commenters argued that the sections that are cross-referenced,
Sec. Sec.  370.30 and 370.40, do not adequately address how mixtures
should be reported and thus, recommended that the phrase ``the total
quantity of the mixture'' should be retained for clarity. Based on
these comments, EPA has decided to retain this language in the final
rule. As noted above, the language is now in the table in Sec.
370.14(a).
5. Final Action on Proposed Revision (2): Clarifying How To Determine
the Total Quantity of an EHS in Mixtures
    Prior to this action, the regulation only stated that when
determining whether a reporting threshold for an EHS has been met or
exceeded, the owner or operator of a facility shall aggregate the
quantity of the EHS present as a component in all mixtures at the
facility and all other quantities of the EHS present at the facility.
The Agency proposed to amend the regulations to clarify that when
determining the total quantity of an EHS present at a facility, the
quantity present in a mixture must be included even if the total
quantity of that particular mixture is also being counted toward the
threshold level for that mixture. For example, a facility has 15,000
pounds of a hazardous chemical mixture which contains 6,000 pounds of
sulfuric acid, an EHS. Although the facility may report this mixture on
the Tier II form as a mixture since it is above the reporting threshold
of 10,000 pounds for a hazardous chemical, the facility must include
the amount of the sulfuric acid in this mixture when determining the
total quantity of the sulfuric acid present throughout the facility.
    Since publication of the July 1990 final rule, this has been EPA's
policy for determining if reporting thresholds have been met or
exceeded for mixtures that contain EHSs. Thus, the Agency was simply
proposing to include EPA's policy in the regulation. The Agency
received seven comments supporting this revision and four comments that
argued against the proposed revision. Some of the commenters who
supported this revision stated that this policy is consistent with the
regulatory language in Sec.  370.28(c). These commenters also stated
that EHSs should be reported this way to make sure that emergency
responders do not unknowingly encounter a mixture containing an EHS
component. The commenters who argued against this change stated that
this method may ``double count'' the EHS and increase the reporting
burden on large facilities. These commenters also argued that an EHS
component of a mixture often does not exhibit the same hazardous
properties as it does in its pure form, especially when present in a
mixture at low concentrations.
    EPA agrees with those commenters who supported the proposed
revision. In particular, we believe it is important for local
government officials to plan and prepare the community for emergencies
involving EHSs, and it is also important to protect emergency
responders. While EPA understands that this approach may increase the
burden for some facilities, we believe that any extra burden is
appropriate and necessary to protect emergency responders. EPA also
agrees with commenters that a hazardous component may not exhibit the
same hazardous properties of the pure chemical when present in a
mixture at low concentrations. For this reason, EPA established a de
minimis limit (1

percent for hazardous chemicals and 0.1 percent for carcinogens) below
which the component in a mixture need not be counted toward the
threshold quantity (October 15, 1987, 52 FR 38344).
    The requirement to aggregate EHSs present throughout the facility
under EPCRA sections 311 and 312 is consistent with the requirements
under emergency planning in EPCRA section 302. EPA anticipates that
LEPCs will request information about EHSs present at a facility in
developing emergency response plans. Therefore, EPA believes that
routine reporting of EHSs under sections 311 and 312 would facilitate
the planning process. For these reasons, EPA is clarifying in this
action that when determining the total quantity of an EHS present at a
facility, the quantity present in a mixture must be included even if
the total quantity of that particular mixture is also being counted
toward the threshold level for that mixture. The requirement for
aggregating the EHS is included in the table in Sec.  370.14(a).
    Once a facility determines that the reporting threshold has been
met for an EHS, the facility has the option to report that EHS
component in the mixture or the mixture itself. This option is provided
in the table in Sec.  370.14(a) as it was previously stated in Sec.
370.28(c)(2). If the facility chooses to report on the mixture itself,
the facility must indicate that this mixture contains an EHS and
provide the name of that EHS.
6. Final Action on Proposed Revision (3): Adding a Provision for
Determining the Quantity of a Non-EHS Hazardous Chemical Component in a
Mixture
    The third revision that EPA proposed was the addition of a
provision to determine if the reporting threshold has been met or
exceeded for mixtures that contain non-EHS hazardous chemical
components. Prior to this action, the regulations only specified
requirements for determining if a reporting threshold has been met or
exceeded for mixtures containing EHSs and for reporting mixtures
containing EHSs. However, in the preamble of the July 26, 1990 final
rule, the Agency provided options for mixtures containing non-EHS
hazardous chemical components. In that preamble, the Agency stated that
if a facility has mixtures that contain a non-EHS hazardous chemical
component, the facility may either add up the quantity of that non-EHS
hazardous chemical component present throughout the facility or
consider the total quantity of the mixture to determine if the
reporting threshold has been met or exceeded. For example, a facility
has two hazardous chemical mixtures, mixture A is 25,000 pounds and
mixture B is 15,000 pounds. Mixture A contains 15,000 pounds of
hazardous chemical X and 10,000 pounds of hazardous chemical Y. Mixture
B contains 10,000 pounds of hazardous chemical X and 5,000 pounds of
hazardous chemical Y. The facility owner or operator has the option of
adding up the total quantity of each of the hazardous components in
both mixtures and report each of the components on the Tier II form if
the reporting threshold of 10,000 pounds has been met or exceeded. In
this example, the total amount of hazardous chemical X is 25,000 pounds
and the total amount of hazardous chemical Y is 15,000 pounds, thus
both would need to be reported. The facility owner or operator also has
the option to report the mixtures on the Tier II form since both
mixtures exceed the reporting threshold of 10,000 pounds. In the June
1998 proposed rule, the Agency proposed to codify these options.
    In addition to providing these options, the Agency also proposed a
requirement for facilities that choose to report the non-EHS hazardous
chemical components of mixtures instead of reporting on the mixture
itself. The proposed rule stated that when determining if a reporting
threshold has been met or exceeded, these facilities must include the
quantity of a non-EHS hazardous chemical component present in a mixture
even if that particular mixture is also being counted toward the
threshold level for that mixture. In looking at the example above, in
addition to the two mixtures present at the facility, assume that the
facility has mixture C that contains 10,000 pounds of chemical X and
5,000 pounds of chemical Z. The facility decides to report this mixture
on the Tier II form rather than breaking it up into its hazardous
chemical components. The Agency proposed that if the facility chooses
to break up the components in mixtures A and B, then the facility must
also add the quantity of chemical X in mixture C to the quantities of
chemical X in mixtures A and B, even though the facility has decided to
report mixture C on the Tier II form.
    EPA received comments from industry and State and local government
agencies regarding this approach. They generally agreed that options
for determining if reporting thresholds have been met or exceeded for
mixtures containing non-EHS hazardous chemicals should be provided.
These commenters also stated that flexibility is important for those
operating sites that may only have MSDSs for mixtures. For these sites,
reporting on the total quantity of the mixture is preferable. One
commenter suggested that reporting individual non-EHS hazardous
chemical components should be required only if the facility has an MSDS
for that specific component.
    The Agency agrees with the commenters that the options proposed for
determining if reporting thresholds have been met or exceeded for non-
EHS hazardous chemicals present in mixtures are consistent with EPCRA
sections 311(a)(3) and 312(a)(3). The statute provides the facility
owner or operator with the option to either report the mixture itself
or each hazardous chemical component in the mixture. As stated by one
of the commenters, and EPA agrees, flexibility is important to those
sites that may only have MSDSs for mixtures. In that case, it is
preferable for a facility to submit an MSDS for the mixture under
section 311 and report the mixture on the inventory form under section
312. Therefore, the Agency is finalizing as proposed by providing
options for determining if a reporting threshold has been met or
exceeded for mixtures that contain non-EHS hazardous chemicals. The
facility has the option to either add up all the amounts of each non-
EHS hazardous chemical component present throughout the facility or
consider the total quantity of the mixture to determine whether the
total quantity equals or exceeds the reporting threshold. These options
were proposed to be added to the table in 370.14(b) that is re-numbered
as 370.14(a) in this final action.
    Once it is determined that the reporting threshold is met or
exceeded for either the non-EHS hazardous chemical component or the
mixture, the facility may report the quantity of non-EHS hazardous
chemical component or the mixture itself. The table in Sec.  370.14(a)
states these options.
    EPA also understands the concern raised by some commenters that
every facility is different. That is, in some cases, the OSHA
regulations may require a facility to prepare or have available an MSDS
for the mixture and/or its hazardous chemical components. This is the
reason that the Agency proposed to add a provision in Sec.
370.28(a)(2) with respect to consistency in MSDS (section 311) and
inventory reporting (section 312). This means that if the facility
owner or operator decides to report a mixture under section 311 by
submitting an MSDS for the mixture, then the facility owner or operator
should also report that mixture under section 312 and not report its
hazardous chemical components, unless the facility can show that it is
not practicable to do so. As stated in the preamble to the

proposed rule, it is important for the MSDS information to correspond
with the inventory information to ensure consistency in the qualitative
and quantitative information received regarding the hazards of
chemicals stored on site. The requirement for consistency in reporting,
which was in Sec.  370.28(a)(2), is now in Sec.  370.14(b).
7. Final Action on Proposed Revision (4): Adding a Provision for
Determining the Quantity of a Non-EHS Hazardous Chemical When Present
in Pure Form and in Mixtures
    The fourth revision that EPA proposed was to specify requirements
for the owner or operator to determine if reporting thresholds have
been met or exceeded when a non-EHS hazardous chemical is present both
by itself and as a component in mixture(s). While EPA intended to
address non-EHS hazardous chemicals with this revision, the term ``non-
EHS'' was inadvertently left out of the regulatory language in Sec.
370.14(e). However, the preamble language included the term ``non-EHS''
within the discussion of this proposed revision. The proposed
regulatory language indicated that if a hazardous chemical (should have
stated non-EHS hazardous chemical) is present at a facility both by
itself and as a component in mixture(s), the facility must determine
the total amount of that chemical and compare it to the reporting
threshold. To determine this quantity, the facility would have to add
together all quantities of the non-EHS hazardous chemical present at
the facility, including the quantity present in concentrations greater
than 1% in all mixtures. For example, a facility has a non-EHS
hazardous chemical in pure form and in mixtures throughout the
facility. This proposed requirement states that the facility owner or
operator must add the quantity of that non-EHS hazardous chemical in
pure form to those quantities of that non-EHS hazardous chemical in
mixtures to determine if the reporting threshold of 10,000 pounds is
met or exceeded. The purpose of this proposed revision was to establish
a clear method for accurately calculating the quantity of non-EHS
chemicals present.
    Four commenters supported this proposed revision and nine
commenters opposed it. The commenters that supported it stated that
this method would more accurately account for the total amount of a
non-EHS hazardous chemical in both its pure form and in mixtures
present at a facility. Most of the commenters who opposed this revision
stated that requiring facilities to aggregate the amounts of non-EHSs
on site in mixtures with non-EHS hazardous chemicals present in pure
form will impose a great burden on facilities, as well as State and
local government agencies that manage the submitted reports. The
commenters also argued that requiring aggregation of non-EHSs is
unnecessary as information on these chemicals is not required for
emergency planning purposes. Commenters also stated that the
aggregation will not provide meaningful hazard information to emergency
responders. Most of the commenters agreed with the Agency that
aggregating and reporting EHSs present throughout the facility is vital
to emergency planning and is important to emergency responders.
However, these same commenters opposed aggregating non-EHS hazardous
chemicals present throughout the facility.
    After reviewing and considering all the comments received, the
Agency has decided not to adopt this proposed revision. EPA agrees with
those commenters that stated that this approach imposes a burden on
most facilities and does not improve local emergency planning efforts,
as EPCRA sections 302 and 303 do not require the incorporation of non-
EHSs into the comprehensive emergency response plan. As mentioned
earlier in this section, EPA has determined that data on EHSs have
greater emergency planning and right-to-know value to communities than
do data on non-EHSs. Thus, as mentioned above, EPA is not requiring
facilities to aggregate non-EHS hazardous chemical components in
mixtures and in pure form to determine if the threshold level is met.

B. Tier I and Tier II Inventory Forms and Instructions

1. Removal of Forms and Instructions From the Code of Federal
Regulations
    The Agency proposed to remove the Tier I and Tier II inventory
forms and instructions from the Code of Federal Regulations (CFR). In
the preamble to the proposed rule, the Agency stated that removing the
forms (and instructions) from the CFR would make it easier for the
Agency to make minor changes to them. Under the Paperwork Reduction Act
(PRA), the Agency must submit any forms used to collect information
from the regulated community to the Office of Management and Budget
(OMB) for review and approval. The Agency must develop a supporting
statement explaining the reasons, the method, and the burden hours and
costs imposed on the regulated community for the collection of the
information. Once approved, these forms receive an OMB control number
and expiration date, usually three years from approval. To continue
using these forms, the Agency must submit them along with the
supporting statement to be reviewed and renewed by OMB by the
expiration date. Therefore, if the forms remain in the CFR, the Agency
would need to reprint them every three years just to reflect the new
OMB information collection date, even if no other changes were made to
the form.
    Sixteen commenters, mainly consisting of State and local government
agencies, supported the removal of the forms and instructions from the
CFR. Commenters from industry also supported removal of the forms from
the CFR and making them available on EPA's Web site. Five commenters,
however, opposed the removal of the forms and the instructions from the
CFR.
    Commenters who supported the change did so because they believe
that once the forms and instructions are removed, EPA can make minor
changes to them with minimal expense. Some commenters stated that most
States have developed their own forms with additional specific
requirements; therefore, States would make their forms available to the
regulated community. Other supporters also suggested that any major
changes to the forms should still be made in a rulemaking process and
not just through the public comment period during the renewal and
approval process for the information collection requirements under the
Paperwork Reduction Act (PRA). Commenters that opposed the removal of
the forms and instructions from the CFR were concerned that EPA would
change them without going through a public notice and comment (e.g. via
rulemaking) process. Some of the commenters also suggested that the
Agency should require the use of only the Federal Tier I and Tier II
forms, instead of allowing separate forms for each State, since the
Federal forms promote uniformity of reporting.
    In response to these comments and as described in the proposal, EPA
has decided to remove the forms and instructions from the CFR, as
proposed. However, revised Sec. Sec.  370.41 and 370.42 will contain a
narrative description of the Tier I and Tier II informational
requirements. The Tier I and Tier II forms and instructions will be
available on the Agency's Web site at http://www.epa.gov/emergencies.
If the Agency makes significant changes to the forms in the future, we
would go through the rulemaking process and solicit public comment
before such changes were made to the form.

    We would also note that while EPA agrees with the commenters that
reporting should generally be uniform, EPA also believes that each
State should have the flexibility to collect the hazardous chemical
inventory information it needs to develop emergency plans for its
communities. States can implement EPCRA according to their needs and
may promulgate requirements that are more stringent than the Federal
requirements. States also can add more chemicals, set lower reporting
thresholds and require facilities to report using a State form,
including the electronic submission of information. At present, most
States have their own reporting formats or have requirements that are
more stringent than the Federal Regulations. Thus, facilities are
encouraged to contact their States to determine whether any additional
requirements or formats are required by their States.
2. Revisions to the Forms and Instructions
    In addition to proposing to remove the forms and instructions from
the CFR, EPA also proposed several changes to the forms and one change
to the instructions. However, before discussing these, and as way of
background, EPA stated in the preamble to the proposed rule that the
Agency was undertaking an agency-wide initiative to streamline and
consolidate the Agency's collection and maintenance of environmental
data, which was intended to improve EPA's management and use of such
information, as well as to provide improved public access to such
information by creating links between major data sources. This
initiative, the Facility Identification Initiative, would establish a
unique Facility Identification Number for facilities that submit
environmental data to EPA under various regulatory programs. EPA would
then be able to establish links among records of environmental data
relative to a specific facility and also establish means for the public
to access the Agency's data using this number.
    Thus, EPA proposed and sought public comment on whether to require
facilities to report their Facility Identification Number on their Tier
I (or Tier II) form, when reporting under EPCRA section 312, if such a
number has been assigned under another State or Federal environmental
program. EPA received a total of thirty-five comments on this issue.
Twenty-five commenters supported and ten commenters opposed this
revision. Commenters that supported this change stated that the
inclusion of the Facility Identification Number will facilitate
information sharing between localities and EPA. These commenters also
stated that it would be helpful to integrate environmental reporting
across program areas. However, those commenters that did not support
the change argued that many of the facilities that comply with the Tier
II reporting requirement would not have a number because they may not
have to comply with other environmental programs. Other commenters
suggested that this data element should be optional.
    Based on our evaluation of the comments, we have decided not to
require the Facility Identification Number be reported on these forms.
The Agency agrees with the commenters that some facilities may not have
a number assigned to them. Also, EPA is aware that many States assign a
number to their facilities, which is also labeled as ``Facility
Identification Number.'' EPA believes that facilities could become
confused with two numbers assigned by EPA and the State. Therefore,
this data element will not be included on the Tier I and Tier II forms
at this time.
    The second change that was proposed to the Tier I and Tier II forms
was to require facilities to report the North American Industry
Classification System (NAICS) code for their facility on their forms
instead of the Standard Industrial Classification (SIC) code. The SIC
codes were replaced by the NAICS codes in 1997. When the proposed rule
was published in June 1998, facilities were just becoming familiar with
the new codes and the Agency received many adverse comments on this
proposed change. Commenters stated that it was premature to require
this change since the industry is not very familiar with the new codes.
However, other commenters supported the change to the NAICS code, but
suggested that the Agency should allow facilities to report both codes
until the codes are universally accepted.
    Since the rule was first proposed in 1998, the Agency believes that
facilities should now be familiar with the NAICS codes since they may
have been using them to comply with other EPA programs. Therefore, as
proposed, EPA is requiring that facilities use the NAICS code for their
facility on their Tier I and Tier II forms. The Agency will revise
these forms to reflect this change.
    Finally, as mentioned in the preamble to the proposed rule, EPA is
revising the informational requirements to the Tier II form in Sec.
370.42 to require facilities to report ``chemical name or the common
name of the chemical as provided on the Material Safety Data Sheet.''
Commenters indicated general support for this revision. Therefore, in
this final action, the Tier II Informational Requirements in Sec.
370.42 codifies this statutory requirement.

C. Penalties for Noncompliance

    The penalties for noncompliance with the emergency release
notification and hazardous chemical reporting requirements were stated
in Sec. Sec.  355.50 and 370.5, respectively. The Tier I and Tier II
form instructions contained in Sec. Sec.  370.40 and 370.41 also
included a description of potential penalties for noncompliance with
the hazardous chemical reporting requirements. In order to streamline
the regulations, EPA proposed removing these provisions from the CFR,
since the penalties are already established in the statute. Commenters
supported this change. Thus, the final rule will not contain this
language.
    It should also be noted that EPA believes it is appropriate to
remove the penalty information from this regulation because penalties
are periodically adjusted and published in the Federal Register in a
separate action. Under the Debt Collection Improvement Act (DCIA) of
1996, EPA makes adjustments to the Civil Monetary Penalties at least
once every four years to account for inflation. Therefore any penalty
information printed in an EPA regulation would become obsolete once the
next four year cycle begins. The Agency would need to update every rule
that contains penalty information; instead, it publishes current
penalty information for all regulations in the Civil Penalty Inflation
Adjustment Rule. The most recent publication of the Civil Penalty
Inflation Adjustment Rule was published in the Federal Register on
February 13, 2004 (69 FR 7126).

D. Additional Changes to 40 CFR Parts 355 and 370 Regulations

    EPA proposed some minor changes to the regulations in 40 CFR parts
355 and 370 to make the rules clearer and easier to use. Some of the
proposed changes included codifying policy statements that EPA has
provided to the regulated community, clarifying some requirements, and
restating the statutory requirements. Commenters generally supported
these changes and thus, the regulations have been amended to reflect
these changes. As it was stated earlier in this action, EPA has re-
numbered the sections in both 40 CFR parts 355 and 370. Thus, the
discussion below reflects the re-numbered sections where the changes
can be found.
     SERC and LEPC--The Agency proposed replacing the phrase
``State Emergency Response Commission'' with SERC and the phrase
``Local Emergency

Planning Committee'' with LEPC in 40 CFR parts 355 and 370, since these
terms are now commonly used by the regulated community and the public.
Commenters supported this change and EPA is adopting it in this final
action. These terms are added to the definition sections in 40 CFR
parts 355 and 370. The definitions of these terms can be found in
Sec. Sec.  355.61 and 370.66.
     Quantity of an extremely hazardous substance in a
mixture--The instructions for calculating the quantity of an EHS
present in a mixture for emergency planning in Sec.  355.30(e)(1), are
now in Sec.  355.13. The terms ``mixture'' and ``solution'' are both
used in these instructions. EPA proposed to remove the term
``solution'' since the definition of the term ``mixture'' includes
``solution.'' Most commenters supported this change. EPA has also
replaced the term ``mass'' with the term ``weight,'' which is more
familiar to the public. For purposes of these regulations, these two
terms are synonymous. EPA also received comments supporting this
revision. Both of these proposed changes are finalized in today's
action. In addition, section 355.13 now includes an example calculation
to improve understanding of these instructions.
     Extremely Hazardous Substances in solid form--The
instructions to determine which threshold planning quantity (TPQ) to
use for an EHS in solid form in Sec.  355.30(e)(2)(i) are now in Sec.
355.15. EPA proposed to replace the phrases ``exists in'' and ``is
handled in'' with ``is in'' in these instructions, since this phrase is
simpler and easier to understand. EPA received comments supporting this
change and is finalizing it in today's action.
     Facility Emergency Coordinator--The regulations for
emergency planning first promulgated on April 22, 1987 (52 FR 13395)
set forth requirements in Sec.  355.30(c) that require the owner or
operator of a facility to notify the LEPC (or the Governor if there is
no LEPC) of the name of the facility emergency coordinator or the
facility representative. In the 1998 proposed rule, EPA proposed that
the SERC be notified if there is no LEPC, or the Governor if there is
no SERC. The Agency proposed this change because most States now have
functioning SERCs than when the regulations were first promulgated in
April 1987. EPA received comments supporting this revision. In re-
organizing and re-numbering part 355, this requirement is now finalized
in Sec.  355.20.
    The regulations in Sec.  355.30(c) also require that the name of
the facility emergency coordinator be provided on or before September
17, 1987 or 30 days after an LEPC is established, whichever is earlier.
This notification deadline corresponds to the statutory deadline found
in EPCRA section 303(d)(1). Neither the statute nor the current
regulations establish a deadline for providing this information if a
facility becomes subject to the emergency planning requirements (that
is, an EHS first becomes present at the facility in excess of its TPQ,
or the EHS list is revised and an EHS on the revised list is present at
the facility in excess of its TPQ), after September 17, 1987 or if a
new LEPC is established. EPCRA section 302(c) does, however, require
that, within 60 days after becoming subject to the emergency planning
requirements, a facility must provide notice that it is subject to
these requirements. EPA believes that the name of the facility
emergency coordinator is an integral part of the emergency planning
notification requirements, and should therefore be provided at the same
time as the emergency planning notice. Accordingly, the Agency proposed
this change and new Sec.  355.20 now requires that the name of the
facility emergency coordinator be provided by September 17, 1987, or
within 30 days of the establishment of an LEPC (in accordance with the
statutory deadline at EPCRA section 303 (d) (1)), or within 60 days
after a facility becomes subject to EPCRA's emergency planning
requirements (consistent with EPCRA section 302(c)). In today's action,
the deadline for notification of the name of the facility emergency
coordinator is now consistent with the deadline for a facility to
provide notice that it is subject to the emergency planning
requirements (see revised Sec.  355.20). Section 355.20 presents a
summary in table format of the information that is required under
EPCRA's emergency planning requirements, including the types of
information reported, required recipients of the information, and
deadlines for reporting. All commenters supported this revision.
     Emergency Planning Notification.
    Section 355.30 requires that a facility notify the SERC that it is
subject to the emergency planning requirements under EPCRA section 302.
EPA proposed that the LEPC also be notified. This would be consistent
with section 302(c) of EPCRA, which requires that an owner or operator
notify the SERC and LEPC when his facility becomes subject to the
emergency planning requirements. This revised notification requirement
is now in Sec.  355.20.
    In order for the regulations to be consistent with the statutory
requirements in EPCRA section 303(d)(1), the Agency proposed to add
``within 30 days after establishment of an LEPC'' in Sec.  355.20.
Prior to the revisions finalized in this rulemaking, Sec.  355.30(b)
only stated that the notification be provided on or before May 17, 1987
or within 60 days after a facility first becomes subject to the
requirements. Commenters supported these revisions, although we decided
to re-phrase it as ``within 30 days after an LEPC is established.'' The
table in Sec.  355.20 now includes this phrase for emergency planning
notification and facility emergency coordinator.
    In the process of rewriting the regulations in plain language
format, EPA realized that the dates, May 17, 1987 and September 17,
1987 in Sec.  355.30 for emergency planning notification and facility
emergency coordinator are no longer applicable. Therefore, EPA decided
to remove those dates from the revised regulations in Sec.  355.20.
     Changes relevant to emergency planning.
    Prior to the revisions finalized in this rulemaking, Sec.
355.30(d) stated that facility owners or operators were required to
inform the LEPC of any changes occurring at the facility which may be
relevant to emergency planning. In re-designating all the sections in
this part, EPA proposed that this requirement be in Sec.  355.20 and to
include the term ``promptly'' in order to be consistent with EPCRA
section 303(d)(2). Commenters supported this revision, but suggested
that the Agency provide a specific time period, such as 10, 20 or 30
days, rather than using a vague term. EPA agrees with the commenters,
but also notes that the changes that may occur at a facility could be
important for developing and maintaining emergency plans. Therefore,
EPA is requiring that information about changes at a facility relevant
to emergency planning must be submitted within 30 days of such changes.
Changes relevant to emergency planning may include, but not be limited
to, notifying that facility is no longer in operation, new EHSs are
present at the facility, EHSs are moved to a different location at the
facility, EHSs are no longer present at the facility, etc.
     Format for emergency planning and release notifications.
    Since the promulgation of the final rule on April 22, 1987 (52 FR
13379), EPA's policy has been that emergency planning notification
under EPCRA section 302 should be provided in writing. However, the
regulations do not specify how emergency planning notification shall be
provided. In this

action, EPA has added a new section 355.21, to codify our existing
policy to recommend that facilities provide emergency planning
notification in writing.
    EPA also proposed to add section 355.41 to the emergency release
notification under the EPCRA section 304 requirements which clarifies
that the initial notification should be oral and the follow-up
notification should be in writing. EPA does not specify a particular
format, but does note that an LEPC may request a specific format for
submission of this information. Commenters supported both of these
revisions.
     24-hour time period for release notification.
    The emergency release notification requirements in Sec.  355.40 do
not indicate the time period in which a release of a reportable
quantity must occur to trigger emergency release notification
requirements. Under EPCRA section 304(a), releases are reportable if
they occur in a manner that requires, or would require, notification
under CERCLA section 103(a). EPA's interpretation has been that the 24-
hour time period under CERCLA also applies to EPCRA. This time period
was proposed and is now added to the regulations in Sec.  355.33, which
states that the ``release of a reportable quantity * * * within any 24-
hour period'' triggers the emergency release notification requirements.
Commenters supported this revision.
     Releases during transportation.
    The emergency release notification requirements that apply to the
release of a substance during transportation (or storage incident to
transportation) in Sec.  355.40(b)(4)(ii) are now in Sec.  355.42(b).
EPA proposed to remove the term ``transportation-related release'' and
its definition from this section since this term may add confusion to
the requirements. EPA also proposed to revise this requirement to be
consistent with the language in the statute in section 304(b)(1). The
statute states: ``* * * with respect to transportation of a substance
subject to the requirements of this section, or storage incident to
such transportation, the notice * * * calling the operator.'' EPA
believes that the requirement is easier to understand if the term
``transportation-related release'' is removed from the regulations and
replaced with the words ``release during transportation and storage
incident to transportation.'' Commenters supported this revision.
     Releases that are continuous.
    Under the definitions in 40 CFR 302.8(b), a release that is
continuous and stable in quantity and rate qualifies for reduced
reporting requirements under EPCRA. The requirements for reporting
continuous releases in Sec.  355.40(a)(2)(iii) are now in Sec.  355.32.
Continuous releases are subject to four notification requirements. As
stated in the proposed rule, these notification requirements have been
reorganized in today's action in order to clarify that the community
emergency coordinator of the LEPC and the SERC of any State that is
likely to be affected by the release must be notified in each of the
four release notifications (in addition to the notifications required
under 40 CFR 302.8). Commenters supported this revision.
     State or local format for reporting inventory information.
    One of the main goals of the June 1998 proposed rule was to provide
flexibility for SERCs and LEPCs with respect to the manner in which
information is reported under EPCRA sections 311 and 312. Sections
370.40 and 370.41 proposed flexibility in that State or local forms
could be used for reporting inventory information, as long as the
content is identical to the uniform Federal forms (Tier I or Tier II
forms). EPA is revising these provisions so that the use of a State or
local format is allowed, as proposed. The provisions allow the
submittal of inventory information in a variety of ways, including
electronic, as long as all the information required under the statute
and its implementing regulations is provided. These revisions are set
forth in Sec.  370.40. Commenters supported this revision.
    EPA also proposed that, when using State or local formats for
reporting inventory information, the use of State or local codes for
weight ranges are allowed, provided that the weight ranges are no
broader than those provided in Sec.  370.43. EPA also proposed that
State or local codes for storage types and conditions can be used
provided that the codes specify the same or more detailed information
as that specified in Sec.  370.43. As proposed, the Agency has added
paragraph (d) to Sec.  370.43, allowing this flexibility. Commenters
supported this revision.
     SERC or LEPC response to a request for Tier II information
within 45 days.
    In order to be consistent with the language in EPCRA section
312(e)(3)(D), EPA proposed to add, ``A SERC or LEPC must respond to a
request for Tier II information * * * within 45 days of receiving such
a request.'' Section 370.61(b) in today's action adds this new
requirement. Commenters supported this revision.

E. Definitions

    EPA proposed to combine all definitions found in both 40 CFR parts
355 and 370 into one section at the end of 40 CFR part 355 in order to
improve the readability of the rule. By placing the consolidated
definitions section at the end of 40 CFR part 355, the reader would not
have to read through all of the definitions before seeing how they are
used in the text. EPA sought comments on whether these changes improve
the readability of the rule. Many of the commenters suggested that both
40 CFR parts 355 and 370 should have a definition section. Therefore,
EPA will include a definition section at the end of each part in Sec.
355.61 and Sec.  370.66 under the heading ``How are key words in this
part defined?''
    EPA also proposed some minor revisions to some of the terms found
in the definition section for 40 CFR parts 355 and 370. The Agency is
finalizing all of the changes, as proposed.
     Act. The term ``Act,'' used to define ``the Superfund
Amendments and Reauthorization Act of 1986'' in 40 CFR part 355, has
been removed from the definition section. Each of the laws, the
Emergency Planning and Community Right-to-Know Act (EPCRA) and the
Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA) are used in today's action by name of the Act. Therefore, EPA
decided to remove the term ``Act.'' Commenters supported this revision.
     SERC or LEPC. The terms ``commission'' and ``committee''
have been replaced with ``SERC'' and ``LEPC.'' Commenters supported
this revision.
     EPCRA and OSHA. The definitions of these acronyms are
added to the definition sections as proposed. Commenters supported this
revision.
     Facility. The final rule, published on July 26, 1990 (55
FR 30634), revised the definition of facility for both 40 CFR parts 355
and 370 to clarify that the definition includes subsurface structures
that are man-made or natural structures into which hazardous chemicals
are purposefully placed or removed through human means, such that the
structures function as a containment structure. The purpose of this
revision was to clarify that the term ``structures'' in the definition
of ``facility'' is not limited to surface structures, but also includes
subsurface structures. However, the Agency inadvertently omitted the
phrase ``all natural structures in which chemicals are purposefully
placed or removed through human means such that it functions as a
containment structure for

human use'' in 40 CFR part 355. EPA intended both 40 CFR parts 355 and
370 to have the same definition. This discrepancy is being corrected in
this final rule.
    EPA received a total of five comments; two commenters supported
this change and one provided a comment that was outside the scope of
the proposed rule. Two other commenters requested that EPA re-confirm
the policy that the Agency issued in a letter dated October 25, 1990,
to the American Petroleum Institute (API).
    In that letter, EPA clarified that oil and gas deposits with
indefinite boundaries are not structures within the definition of
facility and therefore not considered part of the ``facility.''
However, natural structures that function as containment structures,
such as a cave or a salt dome which have more definite boundaries are
considered structures within the definition of ``facility.'' EPA
concluded that, for emergency planning, emergency release notification,
and hazardous chemical reporting, the definition of ``facility'' does
not include oil or gas deposits and thus, is re-confirming this policy
today.
     Hazardous Substances. The terms ``CERCLA hazardous
substances'' and ``extremely hazardous substances'' were proposed to be
placed together in the definition section under the term ``hazardous
substances'' in order to eliminate the confusion between them. EPA
received two comments that supported this minor change. However, one
commenter suggested that ``CERCLA hazardous substances'' and
``extremely hazardous substances'' should be separate items in the
definition in order to make it easier to locate these terms. EPA
decided to keep both terms as separate entries in the definition
section of 40 CFR part 355.
     Hazardous Chemical. Two organizational changes were
proposed to improve the clarity of this definition. The first was to
re-format the list of the exceptions to the term. The second was to
move the phrase ``present in the same form and concentration as a
product packaged for distribution and use by the general public'' to
the exceptions to the definition of the term ``hazardous chemical.''
Prior to the revisions in this rulemaking, this phrase was defined
separately in the definition section. The Agency believes that
including this phrase in the list of exceptions to the term ``hazardous
chemical'' will assist the reader to better understand its meaning. EPA
received one comment that supported this revision. One commenter,
however, argued that this exemption should not be allowed since many
products sold to the general public are extremely dangerous. While EPA
agrees that some products sold to the general public may pose a danger,
the statute provides exemptions from the term ``hazardous chemical''
and EPA is only restating the statutory exemption in the definition
section. Thus, this change is being finalized today.
     Inventory form. The Tier I and Tier II forms have been
removed from the regulations in 40 CFR part 370 as discussed previously
in the preamble. However, this term is kept in the definition section
in 40 CFR part 370 and is revised to indicate that the information
requirements for these forms can be found in Sec. Sec.  370.40 through
370.45. EPA received two comments that supported this revision.
     Medium or media. This term is added to the definition
section in 40 CFR part 355.
     Mixture. The term ``mixture'' is used in both 40 CFR parts
355 and 370. However, the definition of this term only appeared in 40
CFR part 355. Thus, EPA is including this term in the definition
section of both Sec. Sec.  355.61 and 370.66. EPA also is clarifying
that the definition of ``mixture'' in 40 CFR part 370 is the same as
used in 29 CFR 1910.1200(c), since the applicability of 40 CFR part 370
is based on OSHA's hazard communication standard (29 CFR 1910.1200).
EPA received one comment that supported this revision. In addition, the
prior definition to the term ``mixture'' included ``compounds.'' In a
compound, the various constituents do not retain their individual
identities, so a ``compound'' should not be treated as a mixture.
Therefore, as stated in the preamble to the proposed rule, EPA has
decided to remove the term ``compound'' from the definition of mixture.
     Reportable Quantity. Prior to the revisions in this
rulemaking, the definition of the term ``reportable quantity'' stated
that ``for any CERCLA hazardous substance, its reportable quantity is
established in Table 302.4 of 40 CFR part 302, for such substance. For
any other substance, the reportable quantity is one pound.'' EPA
proposed and is revising this definition to add the phrase ``for any
extremely hazardous substance, its reportable quantity means the
reportable quantity established in appendices A and B of this part.''
EPA also proposed and is adding the phrase, ``unless and until
superseded by regulations establishing a reportable quantity for newly
listed EHSs or CERCLA hazardous substances, a weight of 1 pound shall
be the reportable quantity.'' Commenters supported this revision.
     Threshold Planning Quantity. The term ``threshold planning
quantity'' only appeared in the definition section in 40 CFR part 355.
Since this term is also used in 40 CFR part 370, this term will also be
included in the definition section in 40 CFR part 370. EPA received one
comment that supported this revision.
     Tribe. As proposed, the term ``Tribe'' is placed with the
definition of Indian Tribe. These terms will appear in the definition
section in both 40 CFR parts 355 and 370. EPA received one comment that
supported this revision.

III. Statutory and Executive Order Reviews

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.
    This final action only includes minor revisions to 40 CFR parts 355
and 370, codifies statutory requirements, and clarifies certain
interpretations and policy statements that EPA has provided to the
regulated community. In addition, this final action is re-written in a
plain language format, including adding tables and examples, to assist
the regulated community better understand the requirements.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden.
This final action only includes minor revisions to 40 CFR parts 355 and
370, codifies statutory requirements, and clarifies certain
interpretations and policy statements that EPA has provided to the
regulated community. This final action also is re-written in a plain
language format to assist the regulated community better understand the
requirements.
    However, OMB has previously approved the information collection
requirements contained in the existing regulations at 40 CFR parts 355
and 370 under the provisions of the Paperwork Reduction Act, 44 U.S.C.
3501 et seq. and has assigned OMB control numbers 2050-0092 and 2050-
0072, EPA ICR numbers 1395.06 and 1352.10, respectively.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedures 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.
    The RFA provides default definitions for each type of small entity.
Small entities are defined as: (1) A small business as defined by the
Small Business Administration's (SBA) regulations at 13 CFR 121.201;
(2) a small governmental jurisdiction that is a government of a city,
county, town, school district or special district with a population of
less than 50,000; and (3) a small organization that is any ``not-for-
profit enterprise which is independently owned and operated and is not
dominant in its field.'' However, the RFA also authorizes an agency to
use alternative definitions for each category of small entity, ``which
are appropriate to the activities of the agency'' after proposing the
alternative definition(s) in the Federal Register and taking comment. 5
U.S.C. 601(3)-(5). In addition, to establish an alternative small
business definition, agencies must consult with SBA's Chief Counsel for
Advocacy.
    After considering the economic impacts of today's final rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. In
determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives, ``which minimize any significant
economic impact of the rule on small entities.'' 5 U.S.C. 603 and 604.
Thus, an agency may certify that a rule will not have a significant
economic impact on a substantial number of small entities if the rule
relieves regulatory burden, or otherwise has a positive economic effect
on all of the small entities subject to the rule.
    This final action only includes minor revisions to 40 CFR parts 355
and 370, codifies statutory requirements, and clarifies certain
interpretations and policy statements that EPA has provided to the
regulated community. This final action also re-writes the regulations
in a plain language format to assist the regulated community to better
understand the requirements. We have therefore concluded that today's
final action will relieve regulatory burden for all affected small
entities.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, sections 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
    Today's rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, or tribal
governments or the private sector. This final action only includes
minor revisions to 40 CFR parts 355 and 370, codifies statutory
requirements, and clarifies certain interpretations and policy
statements that EPA has provided to the regulated community. This final
action also is re-written in a plain language format to assist the
regulated community better understand the requirements. Most of the
revisions included in this final action, including the plain language
rewrite, are intended to help the States, Tribal governments and local
government agencies better explain the requirements and implement the
program under EPCRA. Thus, this rule does not impose any requirements
on State, local or tribal governments.

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 government 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 final 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. This final action only includes
minor revisions to 40 CFR parts 355 and 370, codifies statutory
requirements, and clarifies certain interpretations and policy
statements that EPA has provided to the regulated community. This final
action also is re-written in a plain language format to assist the
regulated community to better understand the requirements. Most of the
revisions included in this final action, including the plain language
rewrite, are intended to help the States, Tribal governments and local
agencies. These entities will be able to better explain the
requirements and implement the program under EPCRA. This rule does not
impose any requirements on State, local or tribal governments. Thus,
Executive Order 13132 does not apply to this rule.

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

    Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 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.''
This final rule does not have tribal implications, as specified in
Executive Order 13175. This final action only includes minor revisions
to 40 CFR parts 355 and 370, codifies statutory requirements, and
clarifies certain interpretations and policy statements that EPA has
provided to the regulated community. This final action also is re-
written in a plain language format to assist the regulated community to
better understand the requirements. Most of the revisions included in
this final action, including the plain language rewrite are intended to
help Tribal governments, so these entities can better explain the
requirements and implement the program under EPCRA. This rule does not
impose any requirements on State, local or tribal governments. Thus,
Executive Order 13175 does not apply to this rule.

G. Executive Order 13045

    This action is not subject to EO 13045 (62 FR 19885, April 23,
1997) because it is not economically significant as defined in EO
12866, and because the Agency does not believe the environmental health
or safety risks addressed by this action present a disproportionate
risk to children. This final action only includes minor revisions to 40
CFR parts 355 and 370, codifies statutory requirements, and clarifies
certain interpretations and policy statements that EPA has provided to
the regulated community. This final action also is re-written in a
plain language format to assist the regulated community better
understand the requirements.

H. Executive Order 13211 (Energy Effects)

    This action is not a ``significant energy action'' as defined in
Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy. This final action only includes minor
revisions to 40 CFR parts 355 and 370, codifies statutory requirements,
and clarifies certain interpretations and policy statements that EPA
has provided to the regulated community. This final action also is re-
written in a plain language format to assist the regulated community
better understand the requirements.
    Under Executive Order 12866, this action is a ``significant
regulatory action''. Accordingly, EPA submitted this action to the
Office of Management 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.

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, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless doing so would be inconsistent with applicable law or
would otherwise be impractical. Voluntary consensus standards are
technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations of when the Agency
decides not to use available and applicable voluntary consensus
standards. This action does not involve technical standards. Therefore,
EPA did not consider the use of any voluntary consensus standards.

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

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
    EPA has determined that this final rule does not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. This final action only includes minor revisions to 40 CFR
parts 355 and 370, codifies statutory requirements, and clarifies
certain interpretations and policy statements that EPA has provided to
the regulated community. This final action also is re-written in a
plain language format to assist the regulated community in better
understanding the requirements. In addition, this final action does not
affect public access to any of the information provided under the
Emergency Planning Notification, Emergency Release Notification and
Hazardous Chemical Reporting regulations.

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 the 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).

List of Subjects in 40 CFR Parts 355 and 370

    Environmental protection, Chemicals, Hazardous substances,
Penalties, Reporting and recordkeeping requirements, Superfund.

    Dated: October 17, 2008.
Stephen L. Johnson,
Administrator.

0
For the reasons set out in the preamble, title 40, chapter 1 of the
Code of Federal Regulations is amended as follows:
0
1. Part 355 is revised to read as follows:

PART 355--EMERGENCY PLANNING AND NOTIFICATION

Subpart A--General Information
Sec.
355.1 What is the purpose of this part?
355.2 Who do ``you,'' ``I,'' and ``your'' refer to in this part?
355.3 Which section contains the definitions of the keywords used in
this part?
Subpart B--Emergency Planning

Who Must Comply

355.10 Must my facility comply with the emergency planning
requirements of this subpart?
355.11 To what substances do the emergency planning requirements of
this subpart apply?
355.12 What quantities of extremely hazardous substances trigger
emergency planning requirements?
355.13 How do I calculate the quantity of an extremely hazardous
substance present in mixtures?
355.14 Do I have to aggregate extremely hazardous substances to
determine the total quantity present?

355.15 Which threshold planning quantity do I use for an extremely
hazardous substance present at my facility in solid form?
355.16 How do I determine the quantity of extremely hazardous
substances present for certain forms of solids?

How To Comply

355.20 If this subpart applies to my facility, what information must
I provide, who must I submit it to, and when is it due?
355.21 In what format should the information be submitted?
Subpart C--Emergency Release Notification

Who Must Comply

355.30 What facilities must comply with the emergency release
notification requirements of this subpart?
355.31 What types of releases are exempt from the emergency release
notification requirements of this subpart?
355.32 Which emergency release notification requirements apply to
continuous releases?
355.33 What release quantities of EHSs and CERCLA hazardous
substances trigger the emergency release notification requirements
of this subpart?

How To Comply

355.40 What information must I provide?
355.41 In what format should the information be submitted?
355.42 To whom must I submit the information?
355.43 When must I submit the information?
Subpart D--Additional Provisions
355.60 What is the relationship between the emergency release
notification requirements of this part and the release notification
requirements of CERCLA?
355.61 How are keywords in this part defined?

Appendix A to Part 355--The List of Extremely Hazardous Substances and
Their Threshold Planning Quantities (Alphabetical Order)

Appendix B to Part 355--The List of Extremely Hazardous Substances and
Their Threshold Planning Quantities (CAS Number Order)

    Authority: Sections 302, 303, 304, 325, 327, 328, and 329 of the
Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA)
(42 U.S.C. 11002, 11003, 11004, 11045, 11047, 11048, and 11049).

Subpart A--General Information

Sec.  355.1  What is the purpose of this part?

    (a) This part (40 CFR part 355) establishes requirements for a
facility to provide information necessary for developing and
implementing State and local chemical emergency response plans, and
requirements for emergency notification of chemical releases. This part
also lists Extremely Hazardous Substances (EHSs) and Threshold Planning
Quantities (TPQs) in Appendices A and B, which are used in determining
if you are subject to these requirements.
    (b) This part is written in a special format to make it easier to
understand the regulatory requirements. Like other Environmental
Protection Agency (EPA) regulations, this part establishes enforceable
legal requirements. Information considered non-binding guidance under
EPCRA is indicated in this regulation by the word ``note'' and a
smaller typeface. Such notes are provided for information purposes only
and are not considered legally binding under this part.

Sec.  355.2  Who do ``you,'' ``I,'' and ``your'' refer to in this part?

    Throughout this part, ``you,'' ``I,'' and ``your'' refer to the
owner or operator of a facility.

Sec.  355.3  Which section contains the definitions of the key words
used in this part?

    The definitions of key words used in this part are in Sec.  355.61.
It is important to read the definitions for these key words because the
definition explains the word's specific meaning associated with the
regulations in this part.

Subpart B--Emergency Planning

Who Must Comply

Sec.  355.10  Must my facility comply with the emergency planning
requirements of this subpart?

    You must comply with the emergency planning requirements in this
subpart if your facility meets either of the following two conditions:
    (a) Any extremely hazardous substance (EHS) is present at your
facility in an amount equal to or greater than its threshold planning
quantity (TPQ), or
    (b) Your facility has been designated for emergency planning
purposes, after public notice and opportunity for comment, by one of
the following three entities:
    (1) The State Emergency Response Commission (SERC).
    (2) The Governor of the State in which your facility is located.
    (3) The Chief Executive Officer of the Tribe for the Indian Tribe
under whose jurisdiction your facility is located.

Sec.  355.11  To what substances do the emergency planning requirements
of this subpart apply?

    The emergency planning requirements of this subpart apply to any
EHS listed in Appendices A and B of this part. Additionally, if a
facility is designated for emergency planning purposes, as provided in
Sec.  355.10(b), substances that are not EHSs at this facility may
become subject to the emergency planning requirements.

Sec.  355.12  What quantities of extremely hazardous substances trigger
emergency planning requirements?

    Any EHS present at your facility in an amount equal to or greater
than its TPQ triggers the emergency planning requirements of this
subpart. The TPQs are listed in Appendices A and B of this part in the
column labeled ``threshold planning quantity.''

Sec.  355.13  How do I calculate the quantity of an extremely hazardous
substance present in mixtures?

    If an EHS is present in a mixture in a particular container,
determine the quantity (in pounds) of the EHS in that container by
multiplying the concentration of the EHS (in weight percent) by the
weight (in pounds) of the mixture in the container. If the
concentration of an EHS is less than or equal to one percent in the
mixture, you do not have to count that EHS. Here is an example
calculation:
    Example: You have 150 pounds of a mixture that contains 20
weight percent of a certain EHS. The quantity of EHS present in the
mixture is:

EHS (in pounds)
    = (weight percent of EHS) x (weight of mixture)
    = (20 percent) x (150 pound mixture)
    = (0.20) x (150)
EHS (in pounds)
    = 30 pounds

Sec.  355.14  Do I have to aggregate extremely hazardous substances to
determine the total quantity present?

    You must aggregate (i.e., add together) the amounts of each EHS at
your facility to determine if a TPQ is present. This means that, for a
particular EHS, you must determine the total amount present at any one
time at your facility by adding together the quantity of pure EHS and
the quantity contained in all mixtures, regardless of location, number
of containers, or method of storage. You do not have to count an EHS in
a mixture if the concentration of that EHS is less than or equal to one
percent.

Sec.  355.15  Which threshold planning quantity do I use for an
extremely hazardous substance present at my facility in solid form?

    EHSs that are in solid form are subject to one of two different
TPQs (for example, TPQs may be listed as 500/10,000 pounds), both of
which are listed in Appendices A and B of this part. Here is how to
determine which of the two listed TPQs you must use for an

EHS present at your facility in solid form:
    (a) Use the lower TPQ from Appendices A and B of this part if the
solid:
    (1) Is in powdered form and has a particle size less than 100
microns;
    (2) Is in solution;
    (3) Is in molten form; or
    (4) Meets the criteria for a National Fire Protection Association
(NFPA) rating of 2, 3 or 4 for reactivity.
    Note to paragraph (a): Use the instructions in Sec.  355.16 to
calculate the quantity present for the categories of solids listed in
paragraphs (a)(1), (2) and (3) of this section.
    (b) If the solid does not meet one of the criteria in paragraph (a)
of this section, then the TPQ is 10,000 pounds.

Sec.  355.16  How do I determine the quantity of extremely hazardous
substances present for certain forms of solids?

    For the three forms of solids that are listed in Sec.  355.15(a)(1)
through (3), use these instructions to determine the quantity of
extremely hazardous substance present:
    (a) Solid in powdered form with a particle size less than 100
microns. Multiply the weight percent of solid with a particle size less
than 100 microns in a particular container by the total weight of solid
in the container.
    (b) Solid in solution. Multiply the weight percent of solid in
solution in a particular container by the total weight of solution in
the container.
    (c) Solid in molten form. Multiply the weight of solid in molten
form by 0.3.

How to Comply

Sec.  355.20  If this subpart applies to my facility, what information
must I provide, who must I submit it to, and when is it due?

    Use this table to determine the information you must provide, who
to provide it to, and when:

----------------------------------------------------------------------------------------------------------------
   What types of emergency planning    What information must I   To whom must I provide  When must I provide the
      notification are required?               provide?            the  information?           information?
----------------------------------------------------------------------------------------------------------------
(a) Emergency planning notification..  You must provide notice  To the SERC and the      Within 60 days after
                                        that your facility is    LEPC.                    your facility first
                                        subject to the                                    becomes subject to the
                                        emergency planning                                requirements of this
                                        requirements of this                              subpart. If no LEPC
                                        subpart.                                          exists for your
                                                                                facility at the time
                                                                                you are required to
                                                                                provide emergency
                                                                                planning notification,
                                                                                then you should report
                                                                                to the LEPC within 30
                                                                                days after an LEPC is
                                                                                established for the
                                                                                emergency planning
                                                                                district in which your
                                                                                facility is located.
(b) Facility emergency coordinator...  You must designate a     To the LEPC (or the      Within 60 days after
                                        facility                 SERC if there is no      your facility first
                                        representative who       LEPC, or the Governor    becomes subject to the
                                        will participate in      if there is no SERC).    requirements of this
                                        the local emergency                               subpart. If no LEPC
                                        planning process as a                             exists when you first
                                        facility emergency                                report, then provide
                                        response coordinator.                             an additional report
                                        You must provide                                  to the LEPC within 30
                                        notice of this                                    days after such LEPC
                                        facility                                          is established for the
                                        representative.                                   emergency planning
                                                                                district in which your
                                                                                facility is located.
(c) Changes relevant to emergency      You must provide notice  To the LEPC............  Within 30 days after
 planning.                              of any changes                                    the changes have
                                        occurring at your                                 occurred.
                                        facility that may be
                                        relevant to emergency
                                        planning.
(d) Requested information............  You must provide any     To the LEPC............  Promptly. Note: The
                                        information necessary                             LEPC may specify a
                                        for developing or                                 time frame for this
                                        implementing the local                            information.
                                        emergency plan if the
                                        LEPC requests it.
----------------------------------------------------------------------------------------------------------------

Sec.  355.21  In what format should the information be submitted?

    EPA does not require any specific format. EPA recommends that you
submit the information described in Sec.  355.20 in writing in order to
insure appropriate documentation. The SERC or LEPC may request that
this information be submitted in a specific format.

Subpart C--Emergency Release Notification

Who Must Comply

Sec.  355.30  What facilities must comply with the emergency release
notification requirements of this subpart?

    You must comply with the emergency release notification
requirements in this subpart if both of these two conditions are met:
    (a) You produce, use, or store a hazardous chemical at your
facility; and
    (b) You release a reportable quantity (RQ) of any EHS or of a
hazardous substance as defined by the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA Hazardous Substance)
at your facility. Certain releases are exempted from these
requirements. Exempted releases are listed in Sec.  355.31.
    Note to paragraph (b): In addition to the emergency release
notification requirements of this subpart, releases of CERCLA hazardous
substances are subject to the notification requirements under CERCLA.
This is explained further in subpart D of this part.

Sec.  355.31  What types of releases are exempt from the emergency
release notification requirements of this subpart?

    You do not have to provide emergency release notification under
this subpart for any of the following six types of releases of EHSs or
CERCLA hazardous substances that occur at your facility:
    (a) Any release that results in exposure to persons solely within
the boundaries of your facility.
    (b) Any release that is a federally permitted release as defined in
section 101(10) of CERCLA.
    (c) Any release of a pesticide product that is exempt from
reporting under section 103(e) of CERCLA.
    (d) Any release that does not meet the definition of release under
section

101(22) of CERCLA and is therefore exempt from CERCLA section 103(a)
reporting.
    (e) Any radionuclide release that occurs:
    (1) Naturally in soil from land holdings such as parks, golf
courses, or other large tracts of land.
    (2) Naturally from land disturbance activities, including farming,
construction, and land disturbance incidental to extraction during
mining activities, except that which occurs at uranium, phosphate, tin,
zircon, hafnium, vanadium, monazite, and rare earth mines. Land
disturbance incidental to extraction includes: Land clearing;
overburden removal and stockpiling; excavating, handling, transporting,
and storing ores and other raw (not beneficiated or processed)
materials; and replacing in mined-out areas coal ash, earthen materials
from farming or construction, or overburden or other raw materials
generated from the exempted mining activities.
    (3) From the dumping and transportation of coal and coal ash
(including fly ash, bottom ash, and boiler slags), including the
dumping and land spreading operations that occur during coal ash uses.
    (4) From piles of coal and coal ash, including fly ash, bottom ash,
and boiler slags.
    (f) Any release less than 1,000 pounds per 24 hours of nitrogen
oxide or nitrogen dioxide to the air which is the result of combustion
and combustion related activities.

Sec.  355.32  Which emergency release notification requirements apply
to continuous releases?

    If the release of an EHS or CERCLA hazardous substance is
continuous and stable in quantity and rate at your facility as defined
in 40 CFR 302.8(b), then the release qualifies for reduced reporting
requirements under this subpart. Under these reduced reporting
requirements, you do not need to provide the notifications required
under Sec.  355.40. However, in addition to the notifications required
under 40 CFR 302.8, you must make all of the following notifications to
the community emergency coordinator for the LEPC for any area likely to
be affected by the release and to the SERC of any State likely to be
affected by the release:
    (a) Initial notifications as specified in 40 CFR 302.8 (d) and (e).
    (b) Notification of a ``statistically significant increase,''
defined in 40 CFR 302.8(b) as any increase above the upper bound of the
reported normal range.
    (c) Notification of a ``new release'' as specified in 40 CFR
302.8(g)(1).
    (d) Notification of a change in the normal range of the release as
specified under 40 CFR 302.8(g)(2).

Sec.  355.33  What release quantities of EHSs and CERCLA hazardous
substances trigger the emergency release notification requirements of
this subpart?

    The release of a reportable quantity (RQ) of an EHS or CERCLA
hazardous substance within any 24-hour period triggers the emergency
release notification requirements. RQs for EHSs are listed in
Appendices A and B of this part in the column labeled ``reportable
quantity.'' RQs for CERCLA hazardous substances are listed in Table
302.4 of 40 CFR 302.4 in the column labeled ``final RQ.''

How To Comply

Sec.  355.40  What information must I provide?

    You must make two separate notifications to comply with the
emergency release notification requirements of this subpart: an
immediate notification, and as soon as practicable thereafter a written
follow-up emergency notification (or notifications, as more information
becomes available).
    (a) Immediate notification. The notice required under this section
shall include as much of the following information known at the time.
However, the retrieval of this information should not cause a delay in
the notification on the emergency response.
    (1) The chemical name or identity of any substance involved in the
release.
    (2) Indicate whether the substance is an EHS.
    (3) Provide an estimate of the quantity of any such substance that
was released into the environment.
    (4) State the time and duration of the release.
    (5) The medium or media into which the release occurred.
    (6) Any known or anticipated acute or chronic health risks
associated with the emergency and, where appropriate, advice regarding
medical attention necessary for exposed individuals.
    (7) Proper precautions to take as a result of the release,
including evacuation (unless such information is readily available to
the community emergency coordinator pursuant to the emergency plan).
    (8) The name and telephone number of the individual (or
individuals) to be contacted for further information.
    (b) Written follow-up emergency notification. Except for releases
that occur during transportation or from storage incident to
transportation, you must provide a written follow-up emergency notice
(or notices, as more information becomes available), as soon as
practicable after the release. In the written follow-up emergency
notice, you must provide and update the information required in the
immediate notification and include additional information with respect
to all of the following:
    (1) Actions taken to respond and contain the release.
    (2) Any known or anticipated acute or chronic health risks
associated with the release.
    (3) Where appropriate, advice regarding medical attention necessary
for exposed individuals.
    (c) You are not required to submit a written follow-up notification
for a release that occurred during transportation or from storage
incident to transportation. See Sec.  355.42(b) for requirements for
reporting such releases.

Sec.  355.41  In what format should the information be submitted?

    The immediate notification, described in Sec.  355.40(a), should be
oral. The follow-up emergency notification, described in Sec.
355.40(b), shall be in writing. EPA does not specify a particular
format for the written follow-up emergency notification.
    Note: The LEPC may request a specific format for this information.

Sec.  355.42  To whom must I submit the information?

    (a) You must provide the immediate emergency release notification
information and the written follow-up notification to:
    (1) The community emergency coordinator for the LEPC of any area
likely to be affected by the release (if there is no LEPC, notify the
relevant local emergency response personnel); and
    (2) The SERC of any State likely to be affected by the release.
    (b) For a release that occurs during transportation or from storage
incident to transportation, you may meet the requirements of this
subpart by notifying the 911 operator (or in the absence of a 911
emergency telephone number, the operator) of the immediate notification
information listed in Sec.  355.40(a). You are not required under this
subpart to submit a written follow-up notification, as described in
Sec.  355.40(b), for such a release.

Sec.  355.43  When must I submit the information?

    (a) You must provide the required emergency release notification

information described under Sec.  355.40(a), immediately.
    (b) You must provide the written follow-up emergency notice (or
notices, as more information becomes available) described under Sec.
355.40(b), as soon as practicable after the release.

Subpart D--Additional Provisions

Sec.  355.60  What is the relationship between the emergency release
notification requirements of this part and the release notification
requirements of CERCLA?

    The emergency release notification requirements of this part are in
addition to the release notification requirements of CERCLA. If you
have a release of a CERCLA hazardous substance, you must comply with
the emergency release notification requirements of this part and the
release notification requirements of CERCLA section 103, codified at 40
CFR part 302. Use this table to determine which emergency release
notification requirements apply to your release:

------------------------------------------------------------------------
                                  And if the release  And if the release
  If a reportable quantity of a      is reportable       is reportable
 substance is released within a       under EPCRA        under CERCLA
 24-hour period at your facility   Section 304, you    Section 103, you
                                         must                must
------------------------------------------------------------------------
(a) And the substance is on BOTH  Notify the LEPC     Comply with the
 the list of EHSs (Appendices A    and the SERC in     release
 and B of this part) AND the       accordance with     notification
 list of CERCLA Hazardous          Sec.  Sec.          requirements of
 Substances (40 CFR 302.4).        355.40 through      CERCLA section
                                   355.43 of this      103 and its
                                   part (except for    implementing
                                   a release during    regulations (40
                                   transportation or   CFR part 302).
                                   from storage        Call the NRC at
                                   incident to<PHONE_NUMBER>.
                                   transportation;
                                   see Sec.
                                   355.42(b)).
(b) And the substance is on the   Notify the LEPC     Comply with the
 list of CERCLA Hazardous          and the SERC, in    release
 Substances (40 CFR 302.4) and     accordance with     notification
 not on the list of EHSs           Sec.  Sec.          requirements of
 (Appendices A and B of this       355.40 through      CERCLA section
 part).                            355.43 of this      103 and its
                                   part (except for    implementing
                                   a release during    regulations (40
                                   transportation or   CFR part 302).
                                   from storage        Call the NRC at
                                   incident to<PHONE_NUMBER>.
                                   transportation;
                                   see in Sec.
                                   355.42(b)).
(c) And the substance is on the   Notify the LEPC
 list of EHSs (Appendices A and    and the SERC in
 B of this part) and not the       accordance with
 list of CERCLA Hazardous          Sec.  Sec.
 Substances (40 CFR 302.4).        355.40 through
                                   355.43 of this
                                   part (except for
                                   a release during
                                   transportation or
                                   from storage
                                   incident to
                                   transportation;
                                   see Sec.
                                   355.42(b)) .
------------------------------------------------------------------------
Note: This table only applies to reportable releases, not to exempt
  releases.

Sec.  355.61  How are key words in this part defined?

    CERCLA means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended.
    CERCLA hazardous substance means a substance defined in section
101(14) of CERCLA and listed in Table 302.4 of 40 CFR 302.4.
    Chief Executive Officer of the Tribe means the person who is
recognized by the Bureau of Indian Affairs as the chief elected
administrative officer of the Tribe.
    Environment includes water, air, and land and the interrelationship
that exists among and between water, air, and land and all living
things.
    EPCRA means the Emergency Planning and Community Right-To-Know Act
of 1986.
    Extremely hazardous substance (EHS) means a substance listed in
Appendices A and B of this part.
    Facility means all buildings, equipment, structures, and other
stationary items that are located on a single site or on contiguous or
adjacent sites and that are owned or operated by the same person (or by
any person that controls, is controlled by, or under common control
with, such person). Facility includes manmade structures, as well as
all natural structures in which chemicals are purposefully placed or
removed through human means such that it functions as a containment
structure for human use. For purposes of emergency release
notification, the term includes motor vehicles, rolling stock, and
aircraft.
    Hazardous chemical means any hazardous chemical as defined under 29
CFR 1910.1200(c), except that this term does not include:
    (1) Any food, food additive, color additive, drug, or cosmetic
regulated by the Food and Drug Administration.
    (2) Any substance present as a solid in any manufactured item to
the extent exposure to the substance does not occur under normal
conditions of use.
    (3) Any substance to the extent it is used:
    (i) For personal, family, or household purposes, or is present in
the same form and concentration as a product packaged for distribution
and use by the general public. Present in the same form and
concentration as a product packaged for distribution and use by the
general public means a substance packaged in a similar manner and
present in the same concentration as the substance when packaged for
use by the general public, whether or not it is intended for
distribution to the general public or used for the same purpose as when
it is packaged for use by the general public;
    (ii) In a research laboratory or hospital or other medical facility
under the direct supervision of a technically qualified individual; or
    (iii) In routine agricultural operations or is a fertilizer held
for sale by a retailer to the ultimate customer.
    Indian Country means Indian country defined in 18 U.S.C. 1151 as:
    (1) All land within the limits of any Indian reservation under the
jurisdiction of the United States government, notwithstanding the
issuance of any patent, and, including rights-of-way running through
the reservation;
    (2) All dependent Indian communities within the borders of the
United States whether within the original or subsequently acquired
territory thereof, and whether within or without the limits of a State;
and
    (3) All Indian allotments, the Indian titles to which have not been
extinguished, including rights-of-way running through the same.
    Indian Tribe or Tribe means those Tribes federally recognized by
the Secretary of the Interior.
    LEPC means the Local Emergency Planning Committee appointed by the
State Emergency Response Commission.
    Medium or media means the environment (i.e., air, water, land).
    Mixture means, for the purposes of 40 CFR part 355, a heterogeneous
association of substances where the various individual substances
retain their identities and can usually be separated by mechanical
means. This definition includes, for the purposes of 40 CFR part 355,
solutions but does not include alloys or amalgams.
    Person means any individual, trust, firm, joint stock company,
corporation (including a government corporation),

partnership, association, State, municipality, commission, political
subdivision of a State, or interstate body.
    Release means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, or
disposing into the environment (including the abandonment or discarding
of barrels, containers, and other closed receptacles) of any hazardous
chemical, EHS, or CERCLA hazardous substance.
    Reportable quantity means, for any CERCLA hazardous substance, the
quantity established in Table 302.4 of 40 CFR 302.4, for such
substance. For any EHS, reportable quantity means the quantity
established in Appendices A and B of this part for such substance.
Unless and until superseded by regulations establishing a reportable
quantity for newly listed EHSs or CERCLA hazardous substances, a weight
of 1 pound shall be the reportable quantity.
    SERC means the State Emergency Response Commission for the State in
which the facility is located except where the facility is located in
Indian Country, in which case, SERC means the Emergency Response
Commission for the Tribe under whose jurisdiction the facility is
located. In the absence of a SERC for a State or Indian Tribe, the
Governor or the chief executive officer of the tribe, respectively,
shall be the SERC. Where there is a cooperative agreement between a
State and a Tribe, the SERC shall be the entity identified in the
agreement.
    State means any State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the
United States Virgin Islands, the Northern Mariana Islands, any other
territory or possession over which the United States has jurisdiction
and Indian Country.
    Threshold planning quantity means, for a substance listed in
Appendices A and B of this part, the quantity listed in the column
``threshold planning quantity'' for that substance.

   Appendix A to Part 355--The List of Extremely Hazardous Substances and Their Threshold Planning Quantities
                                              [Alphabetical Order]
----------------------------------------------------------------------------------------------------------------
                                                                                Reportable        Threshold
             CAS No.                     Chemical name             Notes         quantity *    planning quantity
                                                                                (pounds)          (pounds)
----------------------------------------------------------------------------------------------------------------
75-86-5..........................  Acetone Cyanohydrin.....  ................              10              1,000
1752-30-3........................  Acetone                   ................           1,000       1,000/10,000
                                    Thiosemicarbazide.
107-02-8.........................  Acrolein................  ................               1                500
79-06-1..........................  Acrylamide..............  f...............           5,000       1,000/10,000
107-13-1.........................  Acrylonitrile...........  f...............             100             10,000
814-68-6.........................  Acrylyl Chloride........  d...............             100                100
111-69-3.........................  Adiponitrile............  f...............           1,000              1,000
116-06-3.........................  Aldicarb................  b...............               1         100/10,000
309-00-2.........................  Aldrin..................  ................               1         500/10,000
107-18-6.........................  Allyl Alcohol...........  ................             100              1,000
107-11-9.........................  Allylamine..............  ................             500                500
20859-73-8.......................  Aluminum Phosphide......  a...............             100                500
54-62-6..........................  Aminopterin.............  ................             500         500/10,000
78-53-5..........................  Amiton..................  ................             500                500
3734-97-2........................  Amiton Oxalate..........  ................             100         100/10,000
7664-41-7........................  Ammonia.................  f...............             100                500
300-62-9.........................  Amphetamine.............  ................           1,000              1,000
62-53-3..........................  Aniline.................  f...............           5,000              1,000
88-05-1..........................  Aniline, 2,4,6-Trimethyl- ................             500                500
                                    .
7783-70-2........................  Antimony Pentafluoride..  ................             500                500
1397-94-0........................  Antimycin A.............  b...............           1,000       1,000/10,000
86-88-4..........................  ANTU....................  ................             100         500/10,000
1303-28-2........................  Arsenic Pentoxide.......  ................               1         100/10,000
1327-53-3........................  Arsenous Oxide..........  d...............               1         100/10,000
7784-34-1........................  Arsenous Trichloride....  ................               1                500
7784-42-1........................  Arsine..................  ................             100                100
2642-71-9........................  Azinphos-Ethyl..........  ................             100         100/10,000
86-50-0..........................  Azinphos-Methyl.........  ................               1          10/10,000
98-87-3..........................  Benzal Chloride.........  ................           5,000                500
98-16-8..........................  Benzenamine, 3-           ................             500                500
                                    (Trifluoromethyl)-.
100-14-1.........................  Benzene, 1-               ................             500         500/10,000
                                    (Chloromethyl)-4-Nitro-.
98-05-5..........................  Benzenearsonic Acid.....  ................              10          10/10,000
3615-21-2........................  Benzimidazole, 4,5-       c...............             500         500/10,000
                                    Dichloro-2-
                                    (Trifluoromethyl)-.
98-07-7..........................  Benzotrichloride........  ................              10                100
100-44-7.........................  Benzyl Chloride.........  ................             100                500
140-29-4.........................  Benzyl Cyanide..........  d...............             500                500
15271-41-7.......................  Bicyclo[2.2.1]Heptane-2-  ................             500         500/10,000
                                    Carbonitrile, 5-Chloro-
                                    6-
                                    ((((Methylamino)Carbony
                                    l)Oxy)Imino)-, (1s-(1-
                                    alpha,2-beta,4-alpha,5-
                                    alpha,6E))-.
534-07-6.........................  Bis(Chloromethyl) Ketone  ................              10          10/10,000
4044-65-9........................  Bitoscanate.............  ................             500         500/10,000
10294-34-5.......................  Boron Trichloride.......  ................             500                500
7637-07-2........................  Boron Trifluoride.......  ................             500                500
353-42-4.........................  Boron Trifluoride         ................           1,000              1,000
                                    Compound With Methyl
                                    Ether (1:1).
28772-56-7.......................  Bromadiolone............  ................             100         100/10,000
7726-95-6........................  Bromine.................  f...............             500                500
1306-19-0........................  Cadmium Oxide...........  ................             100         100/10,000

2223-93-0........................  Cadmium Stearate........  b...............           1,000       1,000/10,000
7778-44-1........................  Calcium Arsenate........  ................               1         500/10,000
8001-35-2........................  Camphechlor.............  ................               1         500/10,000
56-25-7..........................  Cantharidin.............  ................             100         100/10,000
51-83-2..........................  Carbachol Chloride......  ................             500         500/10,000
26419-73-8.......................  Carbamic Acid, Methyl-,   ................             100         100/10,000
                                    O-(((2,4-Dimethyl-1, 3-
                                    Dithiolan-2-
                                    yl)Methylene)Amino)-.
1563-66-2........................  Carbofuran..............  ................              10          10/10,000
75-15-0..........................  Carbon Disulfide........  f...............             100             10,000
786-19-6.........................  Carbophenothion.........  ................             500                500
57-74-9..........................  Chlordane...............  ................               1              1,000
470-90-6.........................  Chlorfenvinfos..........  ................             500                500
7782-50-5........................  Chlorine................  ................              10                100
24934-91-6.......................  Chlormephos.............  ................             500                500
999-81-5.........................  Chlormequat Chloride....  d...............             100         100/10,000
79-11-8..........................  Chloroacetic Acid.......  ................             100         100/10,000
107-07-3.........................  Chloroethanol...........  ................             500                500
627-11-2.........................  Chloroethyl               ................           1,000              1,000
                                    Chloroformate.
67-66-3..........................  Chloroform..............  f...............              10             10,000
542-88-1.........................  Chloromethyl Ether......  d...............              10                100
107-30-2.........................  Chloromethyl Methyl       b...............              10                100
                                    Ether.
3691-35-8........................  Chlorophacinone.........  ................             100         100/10,000
1982-47-4........................  Chloroxuron.............  ................             500         500/10,000
21923-23-9.......................  Chlorthiophos...........  d...............             500                500
10025-73-7.......................  Chromic Chloride........  ................               1           1/10,000
62207-76-5.......................  Cobalt, ((2,2'-(1,2-      ................             100         100/10,000
                                    Ethanediylbis
                                    (Nitrilomethylidyne))
                                    Bis(6-
                                    Fluorophenolato))(2-)-
                                    N,N',O,O')-.
10210-68-1.......................  Cobalt Carbonyl.........  d...............              10          10/10,000
64-86-8..........................  Colchicine..............  d...............              10          10/10,000
56-72-4..........................  Coumaphos...............  ................              10         100/10,000
5836-29-3........................  Coumatetralyl...........  ................             500         500/10,000
95-48-7..........................  Cresol, o-..............  ................             100       1,000/10,000
535-89-7.........................  Crimidine...............  ................             100         100/10,000
4170-30-3........................  Crotonaldehyde..........  ................             100              1,000
123-73-9.........................  Crotonaldehyde, (E)-....  ................             100              1,000
506-68-3.........................  Cyanogen Bromide........  ................           1,000         500/10,000
506-78-5.........................  Cyanogen Iodide.........  ................           1,000       1,000/10,000
2636-26-2........................  Cyanophos...............  ................           1,000              1,000
675-14-9.........................  Cyanuric Fluoride.......  ................             100                100
66-81-9..........................  Cycloheximide...........  ................             100         100/10,000
108-91-8.........................  Cyclohexylamine.........  f...............          10,000             10,000
17702-41-9.......................  Decaborane(14)..........  ................             500         500/10,000
8065-48-3........................  Demeton.................  ................             500                500
919-86-8.........................  Demeton-S-Methyl........  ................             500                500
10311-84-9.......................  Dialifor................  ................             100         100/10,000
19287-45-7.......................  Diborane................  ................             100                100
111-44-4.........................  Dichloroethyl ether.....  ................              10             10,000
149-74-6.........................  Dichloromethylphenylsila  ................           1,000              1,000
                                    ne.
62-73-7..........................  Dichlorvos..............  ................              10              1,000