[Federal Register Volume 74, Number 162 (Monday, August 24, 2009)]
[Proposed Rules]
[Pages 42625-42631]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-20293]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 372
[EPA-HQ-TRI-2009-0602; FRL-8948-3]
RIN 2025-AA24
Toxics Release Inventory Articles Exemption Clarification
Proposed Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA proposes to take two actions relating to the articles
exemption under the Toxics Release Inventory (TRI) program. First, EPA
proposes to formally remove a paragraph of guidance dealing with
releases due to natural weathering of products that appeared in the
Reporting Forms and Instructions (RF&I) from 1988 to 2001. This
guidance was absent from the Reporting Forms and Instructions after
2001, but formal notice of its removal was never issued. EPA here
provides notice that this language has been removed and may not be
relied on by reporting facilities. Second, EPA is proposing an
interpretation of how the articles exemption applies to the Wood
Treating Industry, specifically to treated wood that has completed the
treatment process. We are requesting comment on both of these actions.
DATES: Comments, identified by Docket ID No. EPA-HQ-TRI-2009-0602, must
be received by EPA on or before October 23, 2009.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
TRI-2009-0602, by one of the following methods:
http://www.regulations.gov: Follow the on-line
instructions for submitting comments.
E-mail: [email protected]
Mail: OEI Docket, Environmental Protection Agency,
Mailcode 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
Hand Delivery: EPA/DC, EPA West, Room 3334, 1301
Constitution Ave., NW., Washington, DC 20460. Such deliveries are only
accepted during the Docket's normal hours of operation, and special
arrangements should be made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-TRI-
2009-0602. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information for which
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters or any form of encryption and must be
free of any defects or viruses. For additional information about EPA's
public docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
for which disclosure is restricted by statute. Certain other materials,
such as copyrighted material, will be publicly available only in hard
copy. Publicly available docket materials are available either
electronically in http://www.regulations.gov or in hard copy at the OEI
Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW.,
Washington, DC. This Docket Facility is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding legal holidays. The Public
Reading Room is open Monday through Friday, excluding legal holidays.
The telephone number for the Public Reading Room is (202) 566-1744, and
the telephone number for the OEI Docket is (202) 566-1752.
FOR FURTHER INFORMATION CONTACT: For general information on TRI,
contact the Emergency Planning and Community Right-to-Know Hotline at
(800) 424-9346 or (703) 412-9810, TDD (800) 553-7672, http://www.epa.gov/epaoswer/hotline/. For specific information on this
rulemaking contact: Steven DeBord, Toxics Release Inventory Program
Division, Mailcode 2844T, OEI,
[[Page 42626]]
Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania
Ave., NW., Washington, DC 20460; Telephone: (202) 566-0731; E-mail:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Why Is EPA Issuing This Proposed Rule?
EPA has learned that there is some confusion in the regulated
community regarding a paragraph discussing the articles exemption that
appeared in the Reporting Forms and Instructions (RF&I) between 1988
and 2001. This paragraph paraphrased guidance issued in an October 24,
1988, letter to a specific facility. In 2001, we determined that the
paragraph could be misinterpreted as indicating that the exemption has
a broader scope than intended, and therefore the paragraph was not
included in subsequent Reporting Forms and Instructions. Removal of the
paragraph occurred without public notice or opportunity for comment. We
are now providing notice of the removal and an opportunity for comment.
We are aware that the Wood Treating Industry has relied upon a
misinterpretation of the RF&I paragraph in determining the amount of
releases reportable from their facilities. We are proposing an
explanation of how the articles exemption applies to the Wood Treating
Industry.
II. Does This Action Apply to Me?
This action applies to facilities that submit annual reports under
section 313 of the Emergency Planning and Community Right-to-Know Act
(EPCRA) and section 6607 of the Pollution Prevention Act (PPA). To
determine whether your facility would be affected by this action, you
should carefully examine the applicability criteria in part 372,
subpart B, of Title 40 of the Code of Federal Regulations. If you have
questions regarding the applicability of this action to a particular
entity, consult the individuals listed in the preceding FOR FURTHER
INFORMATION CONTACT section. This action is also relevant to those who
utilize EPA's TRI information, including State agencies, local
governments, communities, environmental groups and other non-
governmental organizations, as well as members of the general public.
III. What Is EPA's Statutory Authority for Taking This Action?
These actions are proposed under sections 313(g), 313(h), and 328
of EPCRA, 42 U.S.C. 11023(g), 11023(h) and 11048, and section 6607 of
the Pollution Prevention Act (PPA), 42 U.S.C. 13106.
In addition, Congress granted EPA broad rulemaking authority. EPCRA
section 328 provides that the ``Administrator may prescribe such
regulations as may be necessary to carry out this chapter'' (28 U.S.C.
11048).
IV. Background Information
A. What Are the Toxics Release Inventory Reporting Requirements and Who
Do They Affect?
Pursuant to section 313 of the Emergency Planning and Community
Right-to-Know Act (EPCRA), certain facilities that manufacture,
process, or otherwise use specified toxic chemicals in amounts above
reporting threshold levels must submit annually to EPA and to
designated State officials toxic chemical release forms containing
information specified by EPA. 42 U.S.C. 11023. In addition, pursuant to
section 6607 of the Pollution Prevention Act (PPA), facilities
reporting under section 313 of EPCRA must also report pollution
prevention and waste management data, including recycling information,
for such chemicals. 42 U.S.C. 13106. These reports are compiled and
stored in EPA's database known as the Toxics Release Inventory (TRI).
Regulations at 40 CFR part 372, subpart B, require facilities that
meet all of the following criteria to report:
The facility has 10 or more full-time employee equivalents
(i.e., a total of 20,000 hours worked per year or greater; see 40 CFR
372.3); and
The facility is included in a North American Industry
Classification System (NAICS) Code listed at 40 CFR 372.23 or under
Executive Order 13148, Federal facilities regardless of their industry
classification; and
The facility manufactures (defined to include importing),
processes, or otherwise uses any EPCRA section 313 (TRI) chemical in
quantities greater than the established thresholds for the specific
chemical in the course of a calendar year.
Facilities that meet the criteria must file a Form R report or, in
some cases, may submit a Form A Certification Statement, for each
listed toxic chemical for which the criteria are met. As specified in
EPCRA section 313(a), the report for any calendar year must be
submitted on or before July 1 of the following year. For example,
reporting year 2004 data should have been postmarked on or before July
1, 2005.
The list of toxic chemicals subject to TRI reporting can be found
at 40 CFR 372.65. This list is also published every year as Table II in
the current version of the Toxics Release Inventory Reporting Forms and
Instructions. The current TRI chemical list contains 581 chemicals and
30 chemical categories.
The manufacturing, processing, or otherwise use of a toxic chemical
are threshold activities that trigger reporting to the TRI program.
After a regulated facility determines it has performed a threshold
activity with a listed chemical, that facility then calculates
quantities of the chemical that are manufactured, processed, or
otherwise used at the facility to determine if the threshold quantity
has been exceeded and reporting is required. In 1988, EPA promulgated
an articles exemption from threshold quantity calculations and
reporting requirements for manufactured items that contain toxic
chemicals. (53 FR 4500, February 16, 1988)
B. Definition of Article
The term ``article'' is defined in the TRI regulations at 40 CFR
372.3:
``Article'' means a manufactured item: (1) Which is formed to a
specific shape or design during manufacture; (2) which has end use
functions dependent in whole or in part upon its shape or design
during end use; and (3) which does not release a toxic chemical
under normal conditions of processing or use of that item at the
facility or establishments.
C. Articles Exemption
The articles exemption at 40 CFR 372.38(b) states:
Articles. If a toxic chemical is present in an article at a
covered facility, a person is not required to consider the quantity
of the toxic chemical present in such article when determining
whether an applicable threshold has been met under Sec. 372.25,
Sec. 372.27, or Sec. 372.28 or determining the amount of release
to be reported under Sec. 372.30. This exemption applies whether
the person received the article from another person or the person
produced the article. However, this exemption applies only to the
quantity of the toxic chemical present in the article. If the toxic
chemical is manufactured (including imported), processed, or
otherwise used at the covered facility other than as part of the
article, in excess of an applicable threshold quantity set forth in
Sec. 372.25, Sec. 372.27, or Sec. 372.28, the person is required
to report under Sec. 372.30. Persons potentially subject to this
exemption should carefully review the definitions of article and
release in Sec. 372.3. If a release of a toxic chemical occurs as a
result of the processing or use of an item at the facility, that
item does not meet the definition of article.
V. What Led to the Development of This Proposed Rule?
In 2007, members of the wood treating industry (``the wood
treaters'') contacted EPA for guidance on reporting releases from
treated wood after it has left the treatment process and is either
sitting on a drip pad or in storage. The wood
[[Page 42627]]
treaters cited various past EPA guidance documents including a
paragraph found in the Reporting Forms and Instructions (RF&I) from
1988 to 2001 for the contention that they need not report releases from
treated wood in storage. EPA responded in an October 15, 2007, letter
explaining that the wood treaters had misinterpreted the past guidance
and when the guidance is properly applied to their processes, releases
from wood post-treatment must be reported to EPA. The wood treaters
challenged this letter and, on May 15, 2008, a preliminary injunction
was issued by the U.S. District Court for the District of Columbia
against EPA enforcing its interpretation. EPA is proposing this rule to
clarify past guidance on this issue and to provide an opportunity for
public comment on its interpretation. The following is a chronology of
relevant guidance that has been issued relating to the articles
exemption and how it applies under circumstances of natural weathering.
In 1988, a facility that used plastic wrap to enclose their
products posed a question to EPA concerning releases from the plastic.
The facility asked how the articles exemption applied to extremely
minor releases occurring from the hot-knife cutting of the plastic
film. We explained in a letter that even though the releases were
extremely small, they were in fact caused by the use of the film. (Oct.
24, 1988, letter from Charles Elkins, Director of Office of Toxic
Substances, to Geraldine Cox of Chemical Manufacturers Association;
``Elkins letter''). As such, we determined that these releases were not
exempt under the articles exemption because they resulted from use of
the plastic wrap. To distinguish from these releases that were caused
by use of the plastic, we addressed even smaller releases, for
instance, releases that the plastic rolls emitted while sitting in
storage before use. It is noteworthy that this facility did not
manufacture the plastic wrap but had it delivered by an outside
supplier. The rolls while sitting in storage had not yet been processed
or used at the facility. We explained that certain very low level
releases that occur over the life of the product would not disqualify
an item from the articles exemption if they were analogous to
``weathering'' or ``natural deterioration.'' For the plastic film, we
said ``the normal low-level migration of [toxic chemicals] from the
plastic film does not constitute a release reportable under Section
313.''
In the 1988 RF&I, we inserted language paraphrasing the rationale
of the Elkins letter. The inserted language in the RF&I said:
You are not required to count as a release, quantities of an
EPCRA section 313 chemical that are lost due to natural weathering
or corrosion, normal/natural degradation of a product, or normal
migration of an EPCRA section 313 chemical from a product. For
example, amounts of an EPCRA section 313 chemical that migrate from
plastic products in storage do not have to be counted in estimates
of releases of that EPCRA section 313 chemical from the facility.
When the above-quoted text was reviewed in preparation for release of
the 2002 RF&I, we determined that it could cause confusion among
reporting facilities because the guidance was to be applied only in
limited circumstances that were not clearly explained. The guidance was
directed at items that had qualified as articles prior to any natural
weathering because these items did not release toxic chemicals due to
processing or use at the facility. It did not address how processing or
use of an item could change the reportability of releases from the
item. EPA, therefore, determined not to include this language in the
2002, and subsequent, RF&I. EPA did not, however, provide formal notice
or explanation of the removal of this language.
VI. Proposed Action
A. First Proposed Action: Withdrawal of Paragraph From RF&I Guidance
With this proposed rule, we give notice of our intent to formally
remove the following language that was found in the Reporting Forms and
Instructions (RF&I) from 1988 to 2001:
You are not required to count as a release, quantities of an
EPCRA section 313 chemical that are lost due to natural weathering
or corrosion, normal/natural degradation of a product, or normal
migration of an EPCRA section 313 chemical from a product. For
example, amounts of an EPCRA section 313 chemical that migrate from
plastic products in storage do not have to be counted in estimates
of releases of that EPCRA section 313 chemical from the facility.
We do not propose to replace this removed language in the RF&I and
we will not rely upon this language in any future determinations. As
discussed above, this paragraph was a poor paraphrasing of the 1988
Elkins letter. The interpretation set forth in the Elkins letter still
represents Agency policy and is much better stated in that letter than
it was in the short paraphrasing that appeared in the RF&I from 1988 to
2001. The Elkins letter, when read in its entirety, presents relevant
context and explains clearly what constitutes natural weathering or
deterioration and how these are addressed by the articles exemption.
Given the ready availability of that guidance, we see no reason to
either reproduce it or attempt to paraphrase it in the RF&I. We are
requesting comment on the above interpretation and the corresponding
removal of the paragraph in the RF&I.
B. Second Proposed Action: Application of This Interpretation to the
Wood Treating Industry
As mentioned above, in at least one industry (facilities engaged in
treating of lumber with preservatives such as creosote), some
facilities have improperly used the articles exemption to avoid
reporting potentially large releases from items in storage. In the case
at hand, lumber had been impregnated with a number of toxic chemicals
(as preservatives), and after treatment, the lumber sat in various
types of holding areas, or was moved directly to transportation
vehicles. In any case, it appeared that some amount of toxic chemicals
continued to be emitted to the air (and/or still dripping to pads or
the ground) at the facility as a result of the treatment. Several
facilities had incorrectly applied the Elkins and RF&I guidance and
determined that the releases and off-gassing of toxic chemicals from
freshly manufactured treated wood products could be considered
``natural weathering'' or ``low-level migration'' releases and thus
would be exempt from reporting based on the RF&I paragraph.
We do not dispute the assertion of the trade association
representing wood treaters that some ambiguity existed in the various
iterations of our past guidance with respect to appropriate treatment
of very low levels of releases that are analogous to ``weathering'' or
``natural deterioration,'' and that further clarification with
opportunity to comment would be appropriate. This proposed rule
clarifies how the articles exemption applies to the wood treatment
industry.
The articles exemption clearly states that an item releasing toxic
chemicals as a result of processing or use of the item, does not
qualify as an article. (40 CFR 372.38(b)) EPA did not intend for the
phrase ``as a result of processing or use'' to apply only at the
instant of processing or use. That would imply that releases from an
item that result from use or processing but occur at a later time could
be ignored. When Congress passed EPCRA, the intent was to provide
communities and others with as full a view as practicable with respect
to releases of toxic chemicals. (42 U.S.C.11023) When EPA crafted the
definition of article in 372.3, the Agency expected that the qualifier
``does not release a toxic chemical under normal conditions of
processing or use'' of the
[[Page 42628]]
item was sufficient to reduce burden on facilities calculating
threshold quantities and still capture important information on toxic
releases. We emphasized in the 1988 preamble to the Final Toxic
Chemical Release Reporting Rule ``that under this definition an item
will not qualify as an article if there are releases of toxic chemicals
from the normal use or processing of that item'' and when applying this
definition, facilities ``should keep this release factor in mind.'' (53
FR 4507, February 16, 1988) The preamble did not specifically define
``normal use or processing,'' but it provided examples for applying the
release factor. For instance, the milling of metals generates fume or
dust which would disqualify the metal as an article. As a
counterexample, if the only release is the disposal of solid scrap that
is recognizable as having the same form as the item, the item can still
qualify as an article. In general, the disposal of an item after use is
not a release that would disqualify an item from being an article.
The original intent of the articles exemption was to reduce burden
on facilities that had articles on their premises by reducing the
materials that would have to be evaluated for threshold and release
determinations. (53 FR 4507, February 16, 1988) The exemption was not
intended to exclude reporting on releases that could lead to exposure
to toxic chemicals and the qualifier to the definition of ``article''
was crafted to ensure those releases would still be reported.
As noted above, we are now aware of instances where items may have
exited the production or manufacturing phase and are still releasing
toxic chemicals at the facility--a scenario not discussed in the 1988
Final Rule. These items are being held in storage at the facility and
despite the fact they are not in that instant being processed or used
continue to release toxic chemicals that are due to the item's earlier
processing or use at the facility.
For example, consider a manufacturer of treated lumber products
that has finished the processing (i.e., injection) of the lumber items.
From the moment of the processing through and including when the lumber
is in storage, the lumber continues to release toxic chemicals into the
environment due only to the processing. If the chemicals hadn't been
injected during the processing, they wouldn't be released during
storage. So long as the lumber is releasing toxic chemicals as a result
of the earlier processing, it will not qualify as an article. When the
manufacturer incorrectly applies the articles exemption from the point
processing ends, he or she undercounts facility-wide emissions to the
environment.
EPA believes it is reasonable to limit the applicability of the
articles exemption to releases other than those from processing or use
of an item because the purpose of the TRI program is to provide
comprehensive information on releases. Among other similar purposes,
section 313 of EPCRA is intended to inform communities about toxic
chemicals in their area and provide information to regulators to aid in
the development of regulations. Without collecting information on post-
processing releases, communities near lumber yards, and others such as
regulators who need to understand facility-wide emissions, would be
given a skewed view of the actual emissions from the wood treating
operation as a whole.
Further, EPA believes wood treaters are in a unique position to
provide information on post-processing releases because they have
knowledge of the types and quantities of chemicals used in the
treatment and of their likely disposition (e.g., whether they stay in
the product). Wood treaters may use the data they have available to
them to estimate such releases. Section 313(g)(2) of EPCRA provides ``a
facility may use readily available data (including monitoring data)
collected pursuant to other provisions of law, or, where such data are
not readily available, reasonable estimates of the amounts involved.''
42 U.S.C. 11023(g)(2). ECPRA does not require ``monitoring or
measurement of the quantities, concentration or frequency of any toxic
chemical released into the environment beyond that monitoring and
measurement required under other provisions of law or regulation.'' Id.
Given this standard for providing information on toxic chemicals, EPA
believes that wood treating facilities should be able to use the
existing data available to them to estimate releases from treated wood
after it has exited the treatment process.
Post-processing releases are distinguishable from low-level
releases due to natural weathering of articles because releases due to
natural weathering are not the result of any processing or use of the
article conducted at a facility. In other words, nothing a facility has
done will cause these natural releases from articles to occur. Because
the natural weathering occurs regardless of processing or use, the
facility may not have any reliable information on how much is being
released. Lacking any information of even what chemicals are involved
could lead a facility to provide highly inaccurate information. EPA
believes the usefulness of such reporting on releases from natural
weathering from articles does not outweigh the burden required to
report on such releases.
Based upon the discussion above, our interpretation of how the
articles exemption applies to the Wood Treating Industry is:
1. The Elkins guidance concerning ``natural weathering'', ``natural
deterioration'', or ``low-level migration'' releases of chemicals does
not apply to releases that occur due to processing or use even if those
releases occur after processing or use has ended;
2. There is a rebuttable presumption that any releases (e.g. off-
gassing or drippage) of toxic chemicals from treated items at the wood
treatment facility are ``as a result of processing or use at the
facility;''
3. If a release of a toxic chemical occurs as a result of the
processing or use of an item at the facility, that item does not meet
the definition of article and the releases from the item are not
exempt.
We are requesting comment on this interpretation of the TRI
regulations.
VII. How will this action affect EPA rules and policies concerning
toxic releases from materials held in storage at facilities?
Finally, we wish to summarize how releases from materials or items
in storage that do not qualify as articles must be reported at
facilities where a threshold activity has been triggered. Although
storage is not a threshold activity, regulated facilities may still be
required to report 313 toxic chemical releases from storage if a
threshold activity is performed, and threshold quantities are exceeded
at the facility. 40 CFR 372.25(c) states that ``the facility must
report if it exceeds any applicable threshold and must report on all
activities at the facility involving the chemical, except as provided
in Sec. 372.38.''
We have further explained this requirement when asked: ``If a
facility has a chemical in storage but does not process or otherwise
use it during the reporting year, is the owner/operator subject to
reporting?'' Our response was:
No. Storage, in itself, would not meet an activity threshold
under EPCRA Section 313 (Note: the facility may have reporting
requirements under other portions of EPCRA such as Sections 311 and
312). However, if the facility exceeds the manufacturing,
processing, or otherwise use threshold for the same toxic chemical
elsewhere at the facility, the facility must consider releases from
the storage of the toxic chemical. The facility must also consider
the amount of the Section
[[Page 42629]]
313 chemical in storage when calculating the maximum amount on-site
during the year. (Question 87 found in the 1998 EPCRA Section 313
Questions and Answers document, December 1998, EPA 745-B-98-004)
With this proposed rule, we are not altering the requirement of
reporting releases from items or products in storage when reporting is
triggered by threshold activities at the facility.
VIII. Regulatory Assessment Requirements
A. Executive Order 12866, Regulatory Planning and Review
OMB has determined this action is not a ``significant regulatory
action'' under the terms of Executive Order (EO) 12866 (58 FR 51735,
October 4, 1993) and therefore is not subject to review under the EO.
EPA prepared an analysis of the potential costs and benefits associated
with this action. This analysis is contained in the ``Economic Analysis
of the Toxics Release Inventory Articles Exemption Clarification
Proposed Rule.'' A copy of the analysis, which is available in the
docket for this action, is described below.
1. Methodology
This proposed rule is expected to create additional burden for only
the Wood Preservation industry. No additional facilities will be
brought under TRI jurisdiction through this rule.
This industry (NAICS 321114) consists of ``establishments primarily
engaged in (1) treating wood sawed, planed, or shaped in other
establishments with creosote or other preservatives such as chromated
copper arsenate to prevent decay and to protect against fire and
insects and/or (2) sawing round wood poles, pilings, and posts and
treating them with preservatives (US Census Bureau, 2003).'' At issue
in the proposed rule is the potential release (during storage) and
subsequent reporting of TRI chemicals found in wood preservation.
Clarification of the articles exemption rule as it applies to the
correct reporting of these chemical releases will only apply to current
TRI reporters as it does not affect reporting threshold calculations.
It will not change the number of facilities reporting to TRI or the
number of reports filed.
Since the proposed rule simply removes certain language and
clarifies other language in the TRI Reporting Forms and Instructions
document, facilities are only expected to incur burden due to rule
familiarization. The current OMB-approved TRI reporting burden
estimates assume that facilities have made all required calculations as
a part of form completion. Therefore, any calculations that wood
preservation facilities might incur to revise their release estimates
to include quantities they currently do not include in release amounts
are not attributable to the proposed rule given that they should
already have been made.
Under the proposed rule, EPA expects that 252 Wood Preservation
facilities (NAICS 321114) would incur rule familiarization burden. The
incremental burden estimates associated with rule familiarization
consist of time to read and interpret the clarified language outlined
in the proposed rule and are based on the following assumptions:
The first-year management burden includes 15 minutes to be
briefed regarding the clarified language. It is assumed that facilities
will fully comprehend the clarified language by the subsequent year of
reporting; therefore, no rule familiarization burden is required in
subsequent years.
The first-year technical burden includes 30 minutes to
read and interpret the clarified language. An additional 15 minutes
will be required to brief management regarding the clarified language.
It is assumed that facilities will fully comprehend the clarified
language by the subsequent year of reporting; therefore, no rule
familiarization burden is required in subsequent years.
There is no first or subsequent-year burden on clerical
staff associated with rule familiarization.
2. Cost and Burden Results
Unit and Total incremental reporting burden and costs associated
with the proposed rule are presented in Tables 1 and 2 below.
Table 1--Estimated First and Subsequent Year Burden Associated With the Proposed Rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
Labor category
Activity ------------------------------------------------ Total unit Number of Total burden
Managerial Technical Clerical burden facilities
--------------------------------------------------------------------------------------------------------------------------------------------------------
Incremental First-Year Burden (hours)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Rule Familiarization.................................... 0.25 0.75 0.00 1.00 252 252
-----------------------------------------------------------------------------------------------
Total............................................... 0.25 0.75 0.00 1.00 252 252
--------------------------------------------------------------------------------------------------------------------------------------------------------
Incremental Subsequent-Year Burden (hours)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Form Completion......................................... 0.00 0.00 0.00 0.00 0 0
-----------------------------------------------------------------------------------------------
Total............................................... 0.00 0.00 0.00 0.00 0 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 2--Estimated Incremental Costs Associated With the Proposed Rule
----------------------------------------------------------------------------------------------------------------
Number of
Activity Unit cost facilities Total cost
----------------------------------------------------------------------------------------------------------------
First Year
----------------------------------------------------------------------------------------------------------------
Rule Familiarization............................................ $55.07 252 $13,877
-----------------------------------------------
Annual Total................................................ .............. .............. 13,877
----------------------------------------------------------------------------------------------------------------
[[Page 42630]]
Subsequent Years
----------------------------------------------------------------------------------------------------------------
Rule Familiarization............................................ $0.00 0 0.00
-----------------------------------------------
Annual Total................................................ .............. .............. 0.00
----------------------------------------------------------------------------------------------------------------
This proposed rule is estimated to result in one-time compliance
burden of 252 hours with an associated cost of $13,877.00 to subject
facilities in the first year that the rule takes affect.
3. Data Impacts
The impact of this action should be primarily the inclusion to the
reportable emissions totals of any releases from treated lumber items
that some facilities may have previously considered exempt as articles.
For more information, see the Economic Analysis of the Toxics
Release Inventory Articles Exemption Clarification Proposed Rule.
B. Paperwork Reduction Act
According to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et
seq., an agency may not conduct or sponsor, and a person is not
required to respond, to a collection of information that requires
Office of Management and Budget (OMB) approval under the PRA, unless it
has been approved by OMB and displays a valid OMB control number. The
information collection requirements related to the Toxic Release
Inventory are already approved by the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. That
Information Collection Requests (ICRs) documents have been approved
under OMB control numbers 2070-0093 and 2070-0143 (EPA ICR numbers 1363
and 1704 respectively). This rule does not impose any new requirements
that require additional OMB approval.
The Paperwork Reduction Act mandates that federal agencies estimate
the record keeping and reporting burden of a proposed rule. In this
context, the term ``burden'' is interpreted as the total time, effort,
or financial resources expended by people to generate, maintain,
retain, disclose, or provide information to or for a federal agency.
This includes the time needed by regulated entities to review
instructions and to develop, acquire, install, and use technology and
systems to collect, validate, verify, and disclose information. Time
taken to adjust existing ways to comply with any previously applicable
instructions and requirements and to train personnel to respond to the
information collection task is also included. In this section, burden
hours for both the industry respondents and the government are
estimated.
C. Regulatory Flexibility Act (RFA), as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 USC 601 et seq.
The Regulatory Flexibility Act generally requires an agency to
prepare a regulatory flexibility analysis of any rule subject to
notice-and-comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of this rule on small
entities, small entity is defined as: (1) A small business that is
primarily engaged in (1) treating wood sawed, planed, or shaped in
other establishments with creosote or other preservatives such as
chromated copper arsenate to prevent decay and to protect against fire
and insects and/or (2) sawing round wood poles, pilings, and posts and
treating them with preservatives as defined by NAICS code 321114 with
annual receipts less than 10 million dollars (based on Small Business
Administration size standards); (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.
The estimated impacts to small companies under the proposed rule
are presented in Table 3 below. The 252 facilities are owned by 158
parent companies. Of the 158 affected parent companies, 148 are small
businesses. Of the affected small businesses, all 148 have cost impacts
of less than 1%. No small businesses are projected to have a cost
impact of 1% or greater. Of the 148 estimated cost impacts, there is a
maximum impact of .089% and a minimum impact of 0.000001% each
affecting one small business. The mean and median impacts are estimated
to be 0.003% and 0.001% respectively.
Table 3--Summary of Impacts on Small Entities
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated
Estimated Estimated number of small Estimated Estimated
number of number of entities with number of small number of small
affected affected small impacts of 3 entities with entities with
entities entities percent or impacts between impacts less
greater 1 and 3 percent than 1 percent
--------------------------------------------------------------------------------------------------------------------------------------------------------
First Year.................................................... 158 148 0 0 148
% of Small Entities........................................... ................ ................ 0 0 100
Subsequent Years.............................................. 0 0 0 0 0
% of Small Entities........................................... ................ ................ 0 0 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 42631]]
After considering the economic impacts of this rule on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities.
We continue to be interested in the potential impacts of the
proposed rule on small entities and welcome comments on issues related
to such impacts.
D. Unfunded Mandates Reform Act
EPA has determined that this proposed rule does not contain a
Federal mandate that may result in expenditures of $100 million or more
for State, local, and tribal governments, in the aggregate, or the
private sector in any one year. This proposed rule is estimated to
result in one-time compliance costs of $13,877.00 to the private
sector. In addition, this rule does not create any additional federally
enforceable duty for State, local and tribal governments. Thus, this
proposed rule is not subject to the requirements of sections 202 and
205 of the UMRA.
E. Executive Order 13132, Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.'' This
proposed rule does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132.
F. Executive Order 13175, Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal Government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.'' This proposed rule does not
have tribal implications. It will not have substantial direct effects
on tribal governments, on the relationship between the Federal
government and Indian tribes, or on the distribution of power and
responsibilities between the Federal government and Indian tribes, as
specified in Executive Order 13175.
G. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying
only to those regulatory actions that concern health or safety risks,
such that the analysis required under section 5-501 of the EO has the
potential to influence the regulation. This action is not subject to EO
13045 because it does not establish an environmental standard intended
to mitigate health or safety risks.
H. Executive Order 13211, Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not subject to Executive Order 13211 (66 FR 28355
(May 22, 2001)), because it is not a significant regulatory action
under Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards. This
proposed rule does not establish 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 proposed rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment.
This proposed rule does not relax the control measures on sources
regulated by the rule and therefore will not cause emissions increases
from these sources.
List of Subjects in 40 CFR Part 372
Environmental protection, Community right-to-know, Reporting and
recordkeeping requirements, Toxic chemicals, Articles Exemption.
Dated: August 17, 2009.
Lisa P. Jackson,
Administrator.
[FR Doc. E9-20293 Filed 8-21-09; 8:45 am]
BILLING CODE 6560-50-P