[Federal Register Volume 71, Number 175 (Monday, September 11, 2006)]
[Rules and Regulations]
[Pages 53331-53335]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-14849]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 355
[EPA-HQ-SFUND-2005-0520; FRL-8217-4]
RIN 2050-AG32
Reportable Quantity Adjustment for Isophorone Diisocyanate
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is taking direct
final action to adjust the reportable quantity (RQ) for Isophorone
Diisocyanate (IPDI). Reportable quantities for many Extremely Hazardous
Substances (EHS) under the Emergency Planning and Community Right-to-
Know Act (EPCRA) were adjusted to their threshold planning quantities
(TPQ) in a final rule on May 7, 1996. On September 8, 2003, EPA
modified the TPQ for IPDI to 500 pounds.
However, EPA inadvertently omitted an RQ adjustment for this
substance. Therefore, EPA is now adjusting the RQ for IPDI to be 500
pounds.
DATES: This final rule is effective on November 13, 2006, unless EPA
receives adverse comments by October 11, 2006.
[[Page 53332]]
If adverse comment is received, EPA will publish a timely withdrawal of
this direct final rule in the Federal Register informing the public
that the rule will not take effect.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-SFUND-2005-0520. All documents in the docket are listed on
the www.regulations.gov website. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, 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
www.regulations.gov or in hard copy at the Superfund Docket, EPA/DC,
EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is (202) 566-1744, and the telephone number for the
Superfund Docket is (202) 566-0276. Note: The EPA Docket Center
suffered damage due to flooding during the last week of June 2006. The
Docket Center is continuing to operate. However, during the cleanup,
there will be temporary changes to Docket Center telephone numbers,
addresses, and hours of operation for people who wish to make hand
deliveries or visit the Public Reading Room to view documents. Consult
EPA's Federal Register notice at 71 FR 38147 (July 5, 2006) or the EPA
Web site at http://www.epa.gov/epahome/dockets.htm for current
information on docket operations, locations and telephone numbers. The
Docket Center's mailing address for U.S. mail and the procedure for
submitting comments to www.regulations.gov are not affected by the
flooding and will remain the same.
FOR FURTHER INFORMATION CONTACT: Sicy Jacob, Office of Emergency
Management, 5104A, Environmental Protection Agency, 1200 Pennsylvania
Avenue NW.; telephone number: (202) 564-8019; fax number: (202) 564-
2620; e-mail address: [email protected].
SUPPLEMENTARY INFORMATION: EPA is publishing this rule without prior
proposal because we view the RQ adjustment for IPDI as non-
controversial. We anticipate no adverse comments since this adjustment
is consistent with the approach we used in the May 7, 1996 final rule
for setting RQs for other EHSs. We believe conforming the RQ to the TPQ
will have no impact on human health and the environment since the TPQ
methodology as explained in both the interim final rule (November 17,
1986, 51 FR 41570) and the final rule (April 22, 1987, 52 FR 13378) is
based on the possibility of harm from release.
This direct final rule will be effective on November 13, 2006
without further notice, unless we receive adverse comment by October
11, 2006. In the ``Proposed Rules'' section of today's Federal Register
publication, we are publishing a separate document that will serve as
the proposal to adjust the RQ for IPDI, if adverse comments are filed.
If EPA receives adverse comment on this chemical-specific RQ
adjustment, we will publish a timely withdrawal in the federal Register
and will address all public comments in a subsequent final rule based
on the proposed rule. We will not institute a second comment period on
this action. Any parties interested in commenting on this action must
do so at this time.
I. What Is the Authority for This Action?
Section 328 of the Emergency Planning and Community Right-to-Know
Act (EPCRA) of 1986 authorizes the Administrator to issue regulations
to carry out the statute, including EPCRA section 304.
II. What Is the General Background for This Action?
The Emergency Planning and Community Right-to-Know Act (EPCRA) was
established to encourage state and local planning and preparedness for
spills or releases of Extremely Hazardous Substances (EHSs) and to
provide the public and local governments with information concerning
chemical releases and the potential chemical risks in their
communities. EPCRA contains provisions requiring facilities to report
the presence, use and releases of EHSs (described in sections 302 and
304) and hazardous and toxic chemicals (described in sections 311, 312,
and 313 respectively). The implementing regulations for these statutory
requirements are codified in 40 CFR parts 355, 370 and 372.
Section 302 of EPCRA directs EPA to publish the list of EHSs and
their threshold planning quantities (TPQs). EPA published a final rule
with the list of EHSs and their TPQs on April 22, 1987 (52 FR 13378).
The list of EHS is defined in section 302(a)(2) as the ``list of
substances published in November, 1985 by the Administrator in Appendix
A of the Chemical Emergency Preparedness Program Interim Guidance.''
This list was established by EPA to identity chemical substances which
could cause serious irreversible health effects from accidental
releases (52 FR 13378). Under section 302, a facility which has present
an EHS in excess of its TPQ must notify its state emergency response
commission (SERC) and work with the local emergency planning committee
(LEPC) on emergency planning activities.
Section 304 of EPCRA requires immediate reporting of certain
releases of EHSs and hazardous substances listed under the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA) to SERCs and LEPCs, similar to the release reporting
provisions of CERCLA section 103. A facility is required to notify the
SERC and the LEPC if the release of an EHS or hazardous substance
occurs at or above the reportable quantity (RQ). In the 1987 Federal
Register notice, EPA also published the RQs for EHSs. Many of the EHSs
are also listed as CERCLA hazardous substances and their RQs are
established under CERCLA.
CERCLA section 103 requires facilities to notify the national
response center of any release of a hazardous substance in an amount
equal to or in excess of its RQ. EPCRA section 304 notification is in
addition to the CERCLA section 103 notification. Although similar, the
purpose of both reporting requirements is somewhat different.
Information derived from CERCLA section 103 can be used for Federal
planning and coordination of response entities and for federal
contingency plans. EPCRA reporting generally is designed to enhance
local and state emergency response capability to protect the public in
the event of dangerous chemical releases. The potential hazards posed
by EHSs make state and local notification critical to effective and
timely emergency response in the community.
EPCRA section 304(a) provides that chemicals on the EHS list which
do not have an RQ assigned to them by regulation will have a reportable
quantity of l pound. Certain EHSs (i.e., those that are not also CERCLA
hazardous substances with RQs assigned under CERCLA) were assigned the
statutory RQ of one pound in the April, 1987 final rule. On August 30,
1989 (54 FR 35988), EPA proposed to revise the RQs for these EHSs. In a
final rule published on May 7, 1996, (61 FR 20473), EPA raised the
statutory reportable quantities for these EHSs, assigning the RQ for
each hazardous substance to be the same as their TPQs.
[[Page 53333]]
In the May, 1996 final rule, EPA used the TPQ methodology to adjust
the RQs (see 61 FR 20473). As explained in that rulemaking, the Agency
believes EHS RQs should be based on a hazardous substance's potential
for immediate effects; this approach reflects the fact that EPCRA
reporting of EHS releases is required because EHSs are acutely toxic
and can potentially pose an immediate hazard upon release. The TPQ
methodology, designed specifically for EHSs, is based on such effects,
utilizing a ``level of concern'' based upon short-term exposure
concentrations that could lead to serious irreversible health effects.
Where the TPQ for an EHS (that is not a CERCLA hazardous substance)
represents a quantity that could cause serious health consequences if
an accident were to occur with that quantity, the Agency believes it is
appropriate to set the RQs for that EHS using a consistent risk-based
approach. In this manner, the Agency can harmonize EHS reporting
requirements for purposes of EPCRA section 302 (using TPQs) and EPCRA
section 304 (using RQs).
III. What Is the Revision in This Action?
On September 8, 2003 (68 FR 52978), EPA modified the TPQ for
Isophorone Diisocyanate (IPDI) (CAS No. 4098-71-9) to 500 pounds. IPDI
was one of the EHSs RQ that was adjusted using the TPQ methodology.
When the TPQ for IPDI was modified in September 2003, EPA inadvertently
did not make a corresponding RQ adjustment for IPDI. Currently, the RQ
for this chemical is set at 100 pounds.
The RQ should have been changed to be consistent with the adjusted
TPQ, which is 500 pounds. Therefore, consistent with the approach
described in the May, 1996 final rule, EPA is amending the rules to
ensure the RQ for this chemical is the same as its TPQ.
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and
is therefore not subject to review under the EO.
B. Paperwork Reduction Act
This action does not impose any new information collection burden.
Rather, it reduces burden on those facilities that may have an
accidental release of this chemical below 500 pounds. OMB has
previously approved the information collection requirements contained
in the existing regulations, 40 CFR part 355, under the provisions of
the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned
OMB control number 2050-0092, EPA ICR No. 1395.06. A copy of the OMB
approved Information Collection Request (ICR) may be obtained from
Susan Auby, Collection Strategies Division; U. S. Environmental
Protection Agency (2822T); 1200 Pennsylvania Avenue., NW., Washington,
DC 20460 or by calling (202) 566-1672.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act generally requires an agency to
prepare a regulatory flexibility analysis of any rule subject to notice
and comment rulemaking requirements under the Administrative Procedure
Act or any other statute, unless the agency certifies that the rule
will not have a significant economic impact on a substantial number of
small entities. Small entities include small businesses, small
organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small
entities, a small entity is defined by the Small Business
Administration by category of business using North American Industrial
Classification System (NAICS) and codified at 13 CFR 121.201; (2) a
small governmental jurisdiction that is a government of a city, county,
town, school district or special district with a population of less
than 50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
After considering the economic impacts of today's direct 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 action does not have any significant economic impact on small
entities. This action is intended to reduce burden on facilities that
may have an accidental release of Isophorone Diisocyanate below 500
pounds. We have therefore concluded that today's direct final rule 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 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, section 205 of 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-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted.
[[Page 53334]]
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 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.
EPA has determined that this action contains no regulatory
requirements that might significantly or uniquely affect small
governments. As explained above, this action would reduce burden on
those facilities that may have accidental releases of Isophorone
Diisocyanate in small quantities. Therefore, we have determined that
today's rule is not subject to the requirements of sections 202, 203 or
205 of UMRA.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This action does not have federalism implications. It would not
have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. This action would not preempt
State law or regulations. 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 action does not have
tribal implications, as specified in Executive Order 13175.
This action is intended to reduce burden on regulated entities that
may have releases of this chemical in small quantities. Thus, Executive
Order 13175 does not apply to this rule.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866; and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency. EPA
interprets Executive Order 13045 as applying only to those regulatory
actions that are based on health or safety risks, such that the
analysis required under section 5-501 of the Order has the potential to
influence the regulation. This action is not subject to Executive Order
13045 because the Agency does not have reason to believe the
environmental health or safety risks addressed by this action present a
disproportionate risk to children.
H. Executive Order 13211: Actions that Significantly Affect Energy
Supply, Distribution, or Use
This action is not a ``significant energy action'' as defined in
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001) because it is not likely to have a significant
adverse effect on the supply, distribution, or use of energy.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards such as materials specifications, test methods,
sampling procedures, and business practices that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
This action does not involve technical standards. Therefore, NTTAA
does not apply.
J. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
List of Subjects in 40 CFR Part 355
Environmental Protection, Chemicals, Hazardous Substances,
Extremely Hazardous Substances, Reportable Quantities.
Dated: August 31, 2006.
Stephen L. Johnson,
Administrator.
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For the reasons set out in the preamble, part 355 of title 40 of the
Code of Federal Regulations is amended as follows:
PART 355--EMERGENCY PLANNING AND NOTIFICATION
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1. The authority citation for part 355 continues to read as follows:
Authority: 42 U.S.C. 11002, 11004, and 11048.
Appendix A--[Amended]
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2. In Appendix A, the table is amended by revising the entry for CAS
No.``4098-71-9'' (chemical name--Isophorone Diisocyanate) to read as
follows:
Appendix A to Part 355--The List of Extremely Hazardous Substances and
Their Threshold Planning Quantities
[[Page 53335]]
[Alphabetical Order]
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Threshold
Reportable planning
CAS No. Chemical name Notes quantity quantity
(pounds) (pounds)
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* * * * * * *
4098-71-9...................... Isophorone Diisocyanate.. .......................... 500 500
* * * * * * *
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0
3. In Appendix B, the table is amended by revising the entry for CAS
No. ``4098-71-9'' (chemical name--Isophorone Diisocyanate) to read as
follows:
Appendix B to Part 355--The List of Extremely Hazardous Substances and
Their Threshold Planning Quantities
[CAS No. Order]
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Threshold
Reportable planning
CAS No. Chemical name Notes quantity quantity
(pounds) (pounds)
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* * * * * * *
4098-71-9...................... Isophorone Diisocyanate.. .......................... 500 500
* * * * * * *
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[FR Doc. E6-14849 Filed 9-8-06; 8:45 am]
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