Toxics Release Inventory Form A Eligibility Revisions Implementing the 2009 Omnibus Appropriations Act, 19001-19006 [E9-9530]
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Federal Register / Vol. 74, No. 79 / Monday, April 27, 2009 / Rules and Regulations
unfunded mandate or significantly or
uniquely affect small governments, as
described in the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104–4). For
the same reason, this action also does
not significantly or uniquely affect the
communities of Tribal governments, as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000). This
action 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 (64
FR 43255, August 10, 1999), because it
merely authorizes State requirements as
part of the State RCRA hazardous waste
program without altering the
relationship or the distribution of power
and responsibilities established by
RCRA. This action also is not subject to
Executive Order 13045 (62 FR 19885,
April 23, 1997), because it is not
economically significant and it does not
make decisions based on environmental
health or safety risks. This rule is not
subject to Executive Order 13211,
‘‘Actions Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use’’ (66 FR 28355 (May
22, 2001)) because it is not a significant
regulatory action under Executive Order
12866.
Under RCRA 3006(b), EPA grants a
State’s application for authorization as
long as the State meets the criteria
required by RCRA. It would, thus, be
inconsistent with applicable law for
EPA, when it reviews a State
authorization application, to require the
use of any particular voluntary
consensus standard in place of another
standard that otherwise satisfies the
requirements of RCRA. Thus, the
requirements of section 12(d) of the
National Technology Transfer and
Advancement Act of 1995 (15 U.S.C.
272 note) do not apply. As required by
section 3 of Executive Order 12988 (61
FR 4729, February 7, 1996), in issuing
this rule, EPA has taken the necessary
steps to eliminate drafting errors and
ambiguity, minimize potential litigation,
and provide a clear legal standard for
affected conduct. EPA has complied
with Executive Order 12630 (53 FR
8859, March 15, 1988) by examining the
takings implications of the rule in
accordance with the ‘‘Attorney
General’s Supplemental Guidelines for
the Evaluation of Risk and Avoidance of
Unanticipated Takings’’ issued under
the Executive Order. This rule does not
impose an information collection
burden under the provisions of the
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Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.).
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 document 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 in the Federal Register. A
major rule cannot take effect until 60
days after it is published in the Federal
Register. This action is not a ‘‘major
rule’’ as defined by 5 U.S.C. 804(2). This
action will be effective June 26, 2009.
List of Subjects in 40 CFR Part 271
Environmental protection,
Administrative practice and procedure,
Confidential business information,
Hazardous waste, Hazardous waste
transportation, Indian lands,
Intergovernmental relations, Penalties,
Reporting and recordkeeping
requirements.
Authority: This action is issued under the
authority of sections 2002(a), 3006, and
7004(b) of the Solid Waste Disposal Act as
amended 42 U.S.C. 6912(a), 6926, 6974(b).
Dated: April 8, 2009.
Stephen S. Tuber,
Acting Regional Administrator, Region 8.
[FR Doc. E9–9544 Filed 4–24–09; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 372
[TRI–2009–0216; FRL–8897–4]
RIN 2025–AA25
Toxics Release Inventory Form A
Eligibility Revisions Implementing the
2009 Omnibus Appropriations Act
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: EPA is amending its
regulations on the eligibility criteria for
submitting a Form A Certification
Statement in lieu of the more detailed
Form R submitted by facilities subject to
TRI reporting under section 313 of the
Emergency Planning and Community
Right-to-Know Act of 1986 (EPCRA) and
section 6607 of the Pollution Prevention
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19001
Act of 1990 (PPA). This action is being
taken to comply with the ‘‘Omnibus
Appropriations Act of 2009’’ enacted on
March 11, 2009. As this action is being
taken to conform the regulations to a
Congressional legislative mandate,
notice and comment rulemaking is
unnecessary, and this rule is effective
immediately. Upon publication to the
Federal Register, the provisions of the
Toxics Release Inventory Burden
Reduction Final Rule will be removed
and the regulations in place prior to its
implementation will be restored as
described below.
DATES: This final rule is effective on
April 27, 2009.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. TRI–2009–0216. All documents in
the docket are listed in the EDOCKET
index at https://www.epa.gov/edocket.
Although listed in the index, some
information is not publicly available,
i.e., 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 in
EDOCKET or in hard copy at the OEI
Docket, EPA/DC, EPA West, Room
B102, 1301 Constitution Ave., NW.,
Washington, DC. The Public Reading
Room is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding
legal holidays. The telephone number
for the Public Reading Room is 202–
566–1744, and the telephone number for
the OEI Docket is 202–566–1752.
FOR FURTHER INFORMATION CONTACT: Cory
J. Wagner, Toxics Release Inventory
Program Division, Office of Information
Analysis and Access (2844T),
Environmental Protection Agency, 1200
Pennsylvania Ave., NW., Washington,
DC 20460; telephone number: 202–566–
1555; fax number: 202–566–0741; email: wagner.cory@epa.gov, for specific
information on this proposed rule, or for
more information on EPCRA section
313, the Emergency Planning and
Community Right-to-Know Hotline,
Environmental Protection Agency, Mail
Code 5101, 1200 Pennsylvania Ave.,
NW., Washington, DC 20460, Toll free:
1–800–424–9346, in Virginia and
Alaska: 703–412–9810 or Toll free TDD:
1–800–553–7672.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does This Action Apply to Me ?
This action applies to facilities that
submit annual reports under section 313
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of the Emergency Planning and
Community Right-to-Know Act (EPCRA)
and section 6607 of the Pollution
Prevention Act (PPA). It specifically
applies to those that submit the TRI
Form R or Form A Certification
Statement. (See https://www.epa.gov/tri/
report/index.htm#forms for detailed
information about EPA’s TRI reporting
forms.) To determine whether your
facility would be affected by this action,
you should carefully examine the
applicability criteria in part 372, subpart
B, of Title 40 of the Code of Federal
Regulations. If you have questions
regarding the applicability of this action
to a particular entity, consult the
individuals listed in the preceding FOR
FURTHER INFORMATION CONTACT section.
This action is also relevant to those
who utilize EPA’s TRI information,
including State agencies, local
governments, communities,
environmental groups and other nongovernmental organizations, as well as
members of the general public.
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II. Background and Rationale for
Action
In the Federal Register of December
22, 2006 (71 FR 76932), EPA issued the
Toxics Release Inventory Burden
Reduction Final Rule expanding Form A
eligibility for non-PBT chemicals and
allowing for the first time, and in
limited circumstances, Form A
eligibility for PBT chemicals.
Specifically, the December 2006 final
rule allowed facilities to use Form A in
lieu of Form R for TRI-listed PBT
chemicals (except dioxin and dioxinlike compounds) when there were no
annual releases of the PBT chemical, the
facility’s total annual amount of the
chemical recycled, combusted for
energy recovery, and/or treated for
destruction did not exceed 500 pounds,
and the facility did not manufacture,
process, or otherwise use more than one
million pounds of the PBT chemical. As
it related to the Form R data elements,
the December 2006 final rule allowed a
facility to use Form A instead of Form
R for a specific PBT chemical (other
than dioxin and dioxin-like compounds)
when zero or not applicable (NA) was
reported for items a, b, c, and d of
Section 8.1 (Total Disposal or Other
Releases), the facility did not have any
non-production-related releases of the
PBT chemical included in Section 8.8
(quantity released to the environment as
a result of remedial actions, catastrophic
events, or one-time events not
associated with production processes),
and the total amount reported for
recycling, energy recovery, and/or
treatment for destruction in Section 8.2
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through and including Section 8.8 did
not exceed 500 pounds.
The December 2006 final rule also
expanded non-PBT chemical eligibility
for Form A by raising the annual
reportable amount (ARA) eligibility
criterion to 5,000 pounds for total
annual waste management (i.e., releases,
recycling, energy recovery, and
treatment for destruction) provided total
annual releases of the non-PBT
chemical comprised no more than 2,000
pounds of the 5,000-pound total waste
management limit. In other words, the
December 2006 final rule allowed
facilities to use Form A in lieu of Form
R for a non-PBT chemical when the
facility’s total annual reportable amount
of the chemical released, recycled,
combusted for energy recovery, and/or
treated for destruction did not exceed
5,000 pounds, the facility’s total annual
releases of the chemical did not exceed
2,000 pounds, and the facility did not
manufacture, process, or otherwise use
more than one million pounds of the
non-PBT chemical. As it related to the
Form R data elements, the December
2006 final rule allowed a facility to
consider Form A for a non-PBT
chemical when the sum of Section 8.1
through and including Section 8.8 did
not exceed 5,000 pounds and the sum
of amounts reported for items a, b, c,
and d of Section 8.1 (Total Disposal or
Other Releases) and any nonproduction-related releases reported in
Section 8.8 (Quantity released to the
environment as a result of remedial
actions, catastrophic events, or one-time
events not associated with production
processes) did not exceed 2,000 pounds.
For more information about the
December 2006 final rule and to obtain
the rule’s supporting materials visit the
TRI Web site at https://www.epa.gov/tri
and the docket for the December 2006
rule at https://www.regulations.gov
under docket TRI–2005–0073.
On March 11, 2009, the Omnibus
Appropriations Act of 2009 (‘‘the Act’’)
was enacted. The Act reads, in pertinent
part:
(1) None of the funds made available by
this or any other Act may, hereafter, be used
to implement the final rule promulgated by
the Administrator of the Environmental
Protection Agency entitled ‘Toxics Release
Inventory Burden Reduction Final Rule’ (71
Fed. Reg. 76932); and (2) the final rule
described in paragraph (1) shall have no force
or effect. The affected regulatory text shall
revert to what it was before the final rule
described in paragraph (1) became effective,
until any future action taken by the
Administrator.
Accordingly, EPA is issuing today’s
final rule revising Form A eligibility for
both PBT and non-PBT chemicals to the
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thresholds established prior to the 2006
TRI Burden Reduction Final Rule.
Under 5 U.S.C. 553(b)(3)(B), the noticeand-comment requirements of the
Federal Administrative Procedure Act (5
U.S.C. 551–706) do not apply where the
Agency ‘‘for good cause finds * * * that
notice and public procedure thereon are
impracticable, unnecessary, or contrary
to the public interest.’’ Because this
action is being taken to comply with an
Act of Congress and EPA has no
discretion as to the outcome of this rule,
EPA hereby finds that notice and
comment on this action are
unnecessary.
Accordingly, today’s rule modifies
Form A eligibility provided for at 40
CFR section 372.27 (Alternate
thresholds and certifications). For PBT
chemicals, this final rule eliminates
Form A eligibility for those chemicals
listed at 40 CFR section 372.28. For nonPBT chemicals, today’s final rule
reinstates the 500-pound annual
reporting amount (the total of releases
and other waste management) and
1,000,000 pounds manufactured,
processed or otherwise used Form A
eligibility threshold in effect prior to
December 22, 2006. This includes
releases and waste management
activities (Section 8.1 through and
including Section 8.7) which are
counted against the 500 pound
threshold criterion.
Today’s rule is effective immediately
upon publication in the Federal
Register and affects reports filed for
RY2008 (due July 1, 2009) forward.
Under 5 U.S.C. 553(d)(3), this rule is
effective immediately for good cause
because the Omnibus Appropriations
Act prohibits the Agency from
expending any funds to implement the
former reporting requirements and
mandated that the regulations revert to
the prior version.
If a facility submitted a TRI Form A
for RY 2008 on or after March 11, 2009,
and still used the 2006 TRI Burden
Reduction Final Rule to determine its
eligibility for Form A, then the facility
must determine whether it is still
eligible to file Form A. The Omnibus
Appropriation Act set back the Form A
criteria to previous levels as of March
11. If the facility determines that it is no
longer eligible to file Form A, then EPA
requires the facility to revise and
resubmit its RY 2008 report on Form R.
Facilities are not permitted to submit a
Form A for PBT chemicals.
EPA recognizes that this change is
occurring after 2008 reporting year
during which the data collected for the
Reporting Year 2008 filing, due on July
1, 2009, was collected. EPCRA requires
facilities to make their best estimates
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based on the available data (See EPCRA
§ 313(g)(2)). Facilities can seek further
advice from EPA regions and the states
about this rule change.
III. References
1. Omnibus Appropriations Act of
2009, Public Law No. 111–8 (March 11,
2009).
IV. What Are the Statutory and
Executive Order Reviews Associated
With This Action?
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. EPA
prepared a brief analysis of the potential
costs and benefits associated with this
action. This analysis is contained here.
1. Methodology
To estimate the incremental costs,
economic impacts, and benefits of this
rule, the Agency estimated both the cost
and burden of completing Form R and
Form A as well as the number of
affected entities. The Agency has used
Reporting Year (RY) 2007 for TRI data.
The Agency identified the number of
potentially affected respondents
currently completing Form As or
eligible to complete Form A due to the
Phase 2 Burden Reduction Rule that
may be required to complete Form R as
a result of today’s final rule. The Agency
compared the baseline burden
associated with completing Form A
with the burden associated with
completing Form R. The total burden
and cost associated with this rule is the
difference between the unit burden and
cost of filing a Form R rather than a
Form A for those respondents that were
eligible to file a Form A as a result of
the Burden Reduction Rule times the
number of respondents affected. There
are also a few filers who had filed Form
As before the Burden Reduction Rule,
who were subsequently required to file
Form Rs after the Burden Reduction
Rule, because the final rule stated that
Section 8.8 releases must be included in
the calculation of the releases for
determining eligibility for using Form
19003
A. After this revision of the Form A
eligibility, Section 8.8 releases no longer
apply to the calculation of releases for
determining eligibility for Form A, and
these respondents may return to
eligibility to file Form As. For these
forms, the Agency has calculated the
burden and cost reduction of returning
to Form A eligibility for these particular
Form R respondents.
2. Cost and Burden Results
Table 1 summarize the potential
annual cost and burden increase of this
final rule for filers who would have
been eligible to file Form A under the
Burden Reduction Rule and who will
now be required to file Form Rs. Table
2 summarizes the decrease in Cost and
Burden due to this rule for a small
number of respondents who were
required to file form Rs as a result of the
Burden Reduction Rule, but who are
now eligible to file Form As. The net
cost and burden of the rule is the total
increase from Table 1 minus the total
decrease in Table 2.
TABLE 1—POTENTIAL ANNUAL COST AND BURDEN INCREASE OF THE TOXICS RELEASE INVENTORY FORM A ELIGIBILITY
REVISIONS IMPLEMENTING THE 2009 OMNIBUS APPROPRIATIONS ACT: RESPONDENTS FILING FORM RS WHO WERE
ELIGIBLE TO FILE FORM AS UNDER THE BURDEN REDUCTION RULE
Number of
forms
Option type
PBT ..........................................................
non-PBT ...................................................
PBT & non-PBT Combined ......................
Total burden
hour increase
Total burden
hour increase
per Form R
38,020
102,846
140,867
15.4
9.1
10.3
2,462
11,246
13,708
Total cost
increase
$2,004,470
5,368,519
7,372,988
Average cost
increase per
form
$814
477
538
Percent of
total
cost/burden
(percent)
27
73
100
TABLE 2—POTENTIAL ANNUAL COST AND BURDEN DECREASE OF THE TOXICS RELEASE INVENTORY FORM A ELIGIBILITY
REVISIONS IMPLEMENTING THE 2009 OMNIBUS APPROPRIATIONS ACT: RESPONDENTS WHO ARE NOW ELIGIBLE TO
FILE FORM AS WHO WOULD HAVE BEEN REQUIRED TO FILE FORM RS UNDER THE BURDEN REDUCTION RULE
Number of
forms
Option type
PBT ..........................................................
non-PBT ...................................................
PBT & non-PBT Combined ......................
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Total burden
hour decrease
per Form A
0
302
302
0.0
9.1
9.1
0
33
33
The cost and burden is the increased
burden due to respondents who now
must file Form Rs who were formerly
eligible for Form A, $7,372,988, minus
the decrease in burden due to the return
to Form A eligibility of some Form R
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Total burden
hour decrease
filers, $15,753, yielding the increase in
cost and burden of this rule as
$7,357,235.00.
3. Impacts to data when EPA
promulgated the Burden Reduction Rule
in December 2006, it calculated the
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Total cost
decrease
$0
15,753
15,753
Average cost
decrease per
form
$0
477
477
Percent of
total
cost/burden
(percent)
0
100
100
impact of the data that would be lost if
all respondents who were eligible to use
Form A as a result of the rule did so.
One analysis looked at the number of
pounds of releases and wastes that
might not be reported on Form Rs.
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TABLE 1—PERCENTAGE OF TOTAL RELEASES AND OTHER WASTE MANAGEMENT POUNDS NOT REPORTED DUE TO NEW
AND EXPANDED FORM A ELIGIBILITY
Total releases
not reported
Lbs
New Eligibility for Form A: PBT Chemicals Option .....................................................................
Expanded Eligibility for Form A: Non-PBT Chemicals Option ....................................................
As a result of the Toxics Release
Inventory Form A Eligibility Revisions
Implementing the 2009 Omnibus
Appropriations Act, all releases and
wastes will be reported on From Rs and
the local communities will be aware of
them.
Total
production
related waste
not reported
on Form R
Lbs
Total non-production related
waste not
reported on
Form R
Lbs
0
5,713,104
83,129
16,052,663
283
83,832
EPA also examined the potential
impact on zip codes if all the Form Rs
that indicated eligibility for Form A,
reported on Form As.
TABLE 2—ZIP CODES ELIGIBLE FOR FORM A REPORTING (PBT AND NON-PBT OPTIONS)
Number of
zip codes
Zip codes with at least one Form R newly eligible for Form A ...................................................
Zip codes with all Form Rs newly eligible for Form A ................................................................
4,246
557
Percent of
total zip
codes
containing
Form Rs
(percent)
47.4
6.2
Average No.
of Form Rs
per zip code
13.55
2.04
Note: Based on the RY2004 Frozen TRI data, there are 8,961 five-digit zip codes with TRI Form R data.
Source: Frozen RY2004 TRI data.
As shown on the chart above, nearly
half of all zip codes would lose some
release information and 557 zip codes
would lose all the release information
that would have been available before
the Burden Reduction Rule. This
information will now be restored to
those communities.
B. Paperwork Reduction Act
dwashington3 on PROD1PC60 with RULES
The reversal of the 2006 TRI Burden
Reduction Rule will increase the overall
reporting and recordkeeping burden
estimate provided for EPCRA section
313, but this action has been approved
as a change request by OMB under the
Paperwork Reduction Act (PRA), 44
U.S.C. 3501 et seq. This action is being
taken as a result of a congressional
mandate and without any discretion on
the part of EPA. Because of this reversal,
burden is being shifted from the Form
A Information Collection Request (OMB
No. 2070–0143) back to the Form R
Information Collection Request (OMB
No. 2070–0093). Based on Reporting
Year (RY) 2005 data, the shifted burden
is estimated to be 140,565 hours and a
cost of $7,357,235.
C. Regulatory Flexibility Act (RFA), as
Amended by the Small Business
Regulatory Enforcement Fairness Act of
1996 (SBREFA), 5 U.S.C. 601 et seq.
Today’s rule is not subject to the
Regulatory Flexibility Act (RFA), which
generally requires an agency to prepare
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a regulatory flexibility analysis for any
rule that will have a significant
economic impact on a substantial
number of small entities. The RFA
applies only to rules subject to notice
and comment rulemaking requirements
under the Administrative Procedure Act
(APA) or any other statute. This rule is
not subject to notice and comment
requirements under the APA or any
other statute because although the rule
is subject to the APA, the Agency has
invoked the ‘‘good cause’’ exemption
under 5 U.S.C. 553(b), therefore it is not
subject to the notice and comment
requirement.
federalism implications’’ is defined in
the Executive Order to include
regulations that have ‘‘substantial direct
effects on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government.’’ This rule
does not have federalism implications.
It will not have substantial direct effects
on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government, as
specified in Executive Order 13132.
D. Unfunded Mandates Reform Act
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
Because the agency has made a ‘‘good
cause’’ finding that this action is not
subject to notice-and-comment
requirements under the Administrative
Procedure Act or any other statute [see
Section II above], it is not subject to
sections 202 and 205 of the Unfunded
Mandates Reform Act of 1995 (Pub. L.
104–4).
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
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government and Indian tribes.’’ This
rule does not have tribal implications. It
will not have substantial direct effects
on tribal governments, on the
relationship between the Federal
government and Indian tribes, or on the
distribution of power and
responsibilities between the Federal
government and Indian tribes, as
specified in Executive Order 13175.
G. Executive Order 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.
dwashington3 on PROD1PC60 with RULES
H. Executive Order 13211, Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
This rule is not a ‘‘significant energy
action’’ as defined in Executive Order
13211, ‘‘Actions Concerning Regulations
That Significantly Affect Energy Supply,
Distribution, or Use’’ (66 FR 28355, May
22, 2001) because it is not likely to have
a significant adverse effect on the
supply, distribution, or use of energy.
Today’s rule increases only
recordkeeping and reporting burden for
TRI reporters. It will not cause
reductions in supply or production of
oil, fuel, coal, or electricity. Nor will it
result in increased energy prices,
increased cost of energy distribution, or
an increased dependence on foreign
supplies of energy.
I. National Technology Transfer and
Advancement Act
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (‘‘NTTAA’’), Public Law
104–113, section 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary
consensus standards in its regulatory
activities unless to do so would be
inconsistent with applicable law or
otherwise impractical. Voluntary
consensus standards are technical
standards (e.g., materials specifications,
test methods, sampling procedures, and
business practices) that are developed or
adopted by voluntary consensus
standards bodies. The NTTAA directs
EPA to provide Congress, through OMB,
explanations when the Agency decides
not to use available and applicable
voluntary consensus standards. This
rule does not establish technical
VerDate Nov<24>2008
14:31 Apr 24, 2009
Jkt 217001
19005
standards. Therefore, EPA did not
consider the use of any voluntary
consensus standards.
effective date April 27, 2009. This
action is not a ‘‘major rule’’ as defined
by 5 U.S.C. 804(2).
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 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. The principal
consequence of today’s action will be to
increase the amount of detailed
information available on toxic chemical
releases or management and therefore,
EPA does not have any evidence that
this rule will have a direct effect on
human health or environmental
conditions.
List of Subjects in 40 CFR Part 372
Environmental protection,
Community right-to-know, Reporting
and recordkeeping requirements, Toxic
chemicals.
K. Congressional Review Act
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this rule and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. Section 808 of the
Congressional Review Act provides that
any rule for which the issuing agency
for good cause finds (and incorporates
the finding and a brief statement of
reasons therefore in the rule) that notice
and public procedure thereon are
impracticable, unnecessary, or contrary
to the public interest, shall take effect at
such time as the agency promulgating
the rule determines (5 U.S.C. 808(2)). As
stated previously, EPA has made such a
good cause finding, including the
reasons therefore, and established an
PO 00000
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Fmt 4700
Sfmt 4700
Dated: April 20, 2009.
Lisa P. Jackson,
Administrator.
Therefore, 40 CFR part 372 is
amended as follows:
■
PART 372—[AMENDED]
1. The authority citation for part 372
continues to read as follows:
■
Authority: 42 U.S.C. 11023 and 11048.
Subpart A—[Amended]
2. Revise § 372.10(d) introductory text
to read as follows:
■
§ 372.10
Recordkeeping.
*
*
*
*
*
(d) Each owner or operator who
determines that the owner operator may
apply the alternate threshold as
specified under § 372.27(a) must retain
the following records for a period of 3
years from the date of the submission of
the certification statement as required
under §372.27(b):
*
*
*
*
*
Subpart B—[Amended]
3. Section 372.27 is amended as
follows:
■ a. Revise section heading.
■ b. Revise paragraph (a).
■ c. Revise paragraph (b).
■ d. Revise paragraph (e).
■
§ 372.27 Alternate threshold and
certification.
(a) Except as provided in paragraph
(e) of this section, with respect to the
manufacture, process, or otherwise use
of a toxic chemical, the owner or
operator of a facility may apply an
alternate threshold of 1 million pounds
per year to that chemical if the owner
or operator calculates that the facility
would have an annual reportable
amount of that toxic chemical not
exceeding 500 pounds for the combined
total quantities released at the facility,
disposed within the facility, treated at
the facility (as represented by amounts
destroyed or converted by treatment
processes), recovered at the facility as a
result of recycle operations, combusted
for the purpose of energy recovery at the
facility, and amounts transferred from
the facility to off-site locations for the
purpose of recycle, energy recovery,
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19006
Federal Register / Vol. 74, No. 79 / Monday, April 27, 2009 / Rules and Regulations
treatment, and/or disposal. These
volumes correspond to the sum of
amounts reportable for data elements on
EPA Form R (EPA Form 9350–1; Rev.
12/4/93) as Part II column B or sections
8.1 (quantity released), 8.2 (quantity
used for energy recovery on-site), 8.3
(quantity used for energy recovery offsite), 8.4 (quantity recycled on-site), 8.5
(quantity recycled off-site), 8.6 (quantity
treated on-site), and 8.7 (quantity
treated off-site).
(b) If an owner or operator of a facility
determines that the owner or operator
may apply the alternate reporting
threshold specified in paragraph (a) of
this section for a specific toxic
chemical, the owner or operator is not
required to submit a report for that
chemical under § 372.30, but must
submit a certification statement that
contains the information required in
§ 372.95. The owner or operator of the
facility must also keep records as
specified in § 372.10(d).
*
*
*
*
*
(e) The provisions of this section do
not apply to any chemicals listed in
§ 372.28.
Subpart E—[Amended]
4. Section 372.95 is amended as
follows:
■ a. Revise section heading.
■ b. Revise paragraph (b) introductory
text.
■ c. Revise paragraph (b)(4).
■
§ 372.95 Alternate threshold certification
and instructions.
dwashington3 on PROD1PC60 with RULES
*
*
*
*
*
(b) Alternate threshold certification
statement elements. The following
information must be reported on an
alternate threshold certification
statement pursuant to § 372.27(b):
*
*
*
*
*
(4) Signature of a senior management
official certifying the following:
pursuant to 40 CFR 372.27, ‘‘I hereby
certify that to the best of my knowledge
and belief for the toxic chemical listed
in this statement, the annual reportable
amount, as defined in 40 CFR 372.27(a),
did not exceed 500 pounds for this
reporting year and that the chemical
was manufactured, or processed, or
otherwise used in an amount not
exceeding 1 million pounds during this
reporting year.’’
*
*
*
*
*
[FR Doc. E9–9530 Filed 4–24–09; 8:45 am]
BILLING CODE 6560–50–P
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Jkt 217001
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
45 CFR Parts 160 and 164
Guidance Specifying the Technologies
and Methodologies That Render
Protected Health Information
Unusable, Unreadable, or
Indecipherable to Unauthorized
Individuals for Purposes of the Breach
Notification Requirements Under
Section 13402 of Title XIII (Health
Information Technology for Economic
and Clinical Health Act) of the
American Recovery and Reinvestment
Act of 2009; Request for Information
AGENCY: Office of the Secretary,
Department of Health and Human
Services.
ACTION: Guidance and Request for
Information.
SUMMARY: This document is guidance
and a request for comments under
section 13402 of the Health Information
Technology for Economic and Clinical
Health (HITECH) Act, Title XIII of
Division A and Title IV of Division B of
the American Recovery and
Reinvestment Act of 2009 (ARRA) (Pub.
L. 111–5). ARRA was enacted on
February 17, 2009. The HITECH Act (the
Act) at section 13402 requires the
Department of Health and Human
Services (HHS) to issue interim final
regulations within 180 days of
enactment to require covered entities
under the Health Insurance Portability
and Accountability Act of 1996 (HIPAA)
and their business associates to provide
for notification in the case of breaches
of unsecured protected health
information. For purposes of these
requirements, section 13402(h) of the
Act defines ‘‘unsecured protected health
information’’ to mean protected health
information that is not secured through
the use of a technology or methodology
specified by the Secretary in guidance,
and requires the Secretary to issue such
guidance no later than 60 days after
enactment and to specify within the
technologies and methodologies that
render protected health information
unusable, unreadable, or indecipherable
to unauthorized individuals. Through
this document, HHS is issuing the
required guidance and seeking public
comment both on the guidance as well
as the breach notification provisions of
the Act generally to inform the future
rulemaking and updates to the
guidance.
DATES: Comments must be submitted on
or before May 21, 2009. The guidance is
applicable upon issuance, which
occurred on April 17, 2009, through
PO 00000
Frm 00030
Fmt 4700
Sfmt 4700
posting on the HHS Web site at https://
www.hhs.gov/ocr/privacy. However, the
guidance will apply to breaches 30 days
after publication of the forthcoming
interim final regulations. If we
determine that the guidance should be
modified based on public comments, we
will issue updated guidance prior to or
concurrently with the regulations.
ADDRESSES: Written comments may be
submitted through any of the methods
specified below. Please do not submit
duplicate comments.
• Federal eRulemaking Portal: You
may submit electronic comments at
https://www.regulations.gov. Follow the
instructions for submitting electronic
comments. Attachments should be in
Microsoft Word, WordPerfect, or Excel;
however, we prefer Microsoft Word.
• Regular, Express, or Overnight Mail:
You may mail written comments (one
original and two copies) to the following
address only: U.S. Department of Health
and Human Services, Office for Civil
Rights, Attention: HITECH Breach
Notification, Hubert H. Humphrey
Building, Room 509F, 200
Independence Avenue, SW.,
Washington, DC 20201.
• Hand Delivery or Courier: If you
prefer, you may deliver (by hand or
courier) your written comments (one
original and two copies) to the following
address only: Office for Civil Rights,
Attention: HITECH Breach Notification,
Hubert H. Humphrey Building, Room
509F, 200 Independence Avenue, SW.,
Washington, DC 20201. (Because access
to the interior of the Hubert H.
Humphrey Building is not readily
available to persons without federal
government identification, commenters
are encouraged to leave their comments
in the mail drop slots located in the
main lobby of the building.)
Inspection of Public Comments: All
comments received before the close of
the comment period will be available for
public inspection, including any
personally identifiable or confidential
business information that is included in
a comment. We will post all comments
received before the close of the
comment period at https://
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Andra Wicks, 202–205–2292.
SUPPLEMENTARY INFORMATION:
I. Background
The Health Information Technology
for Economic and Clinical Health
(HITECH) Act was enacted on February
17, 2009, as Title XIII of Division A and
Title IV of Division B of the American
Recovery and Reinvestment Act of 2009
(ARRA) (Pub. L. 111–5). Subtitle D of
E:\FR\FM\27APR1.SGM
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]]>Agencies
[Federal Register Volume 74, Number 79 (Monday, April 27, 2009)]
[Rules and Regulations]
[Pages 19001-19006]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-9530]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 372
[TRI-2009-0216; FRL-8897-4]
RIN 2025-AA25
Toxics Release Inventory Form A Eligibility Revisions
Implementing the 2009 Omnibus Appropriations Act
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is amending its regulations on the eligibility criteria
for submitting a Form A Certification Statement in lieu of the more
detailed Form R submitted by facilities subject to TRI reporting under
section 313 of the Emergency Planning and Community Right-to-Know Act
of 1986 (EPCRA) and section 6607 of the Pollution Prevention Act of
1990 (PPA). This action is being taken to comply with the ``Omnibus
Appropriations Act of 2009'' enacted on March 11, 2009. As this action
is being taken to conform the regulations to a Congressional
legislative mandate, notice and comment rulemaking is unnecessary, and
this rule is effective immediately. Upon publication to the Federal
Register, the provisions of the Toxics Release Inventory Burden
Reduction Final Rule will be removed and the regulations in place prior
to its implementation will be restored as described below.
DATES: This final rule is effective on April 27, 2009.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. TRI-2009-0216. All documents in the docket are listed in the
EDOCKET index at https://www.epa.gov/edocket. Although listed in the
index, some information is not publicly available, i.e., 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 in
EDOCKET or in hard copy at the OEI Docket, EPA/DC, EPA West, Room B102,
1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding
legal holidays. The telephone number for the Public Reading Room is
202-566-1744, and the telephone number for the OEI Docket is 202-566-
1752.
FOR FURTHER INFORMATION CONTACT: Cory J. Wagner, Toxics Release
Inventory Program Division, Office of Information Analysis and Access
(2844T), Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460; telephone number: 202-566-1555; fax number: 202-
566-0741; e-mail: wagner.cory@epa.gov, for specific information on this
proposed rule, or for more information on EPCRA section 313, the
Emergency Planning and Community Right-to-Know Hotline, Environmental
Protection Agency, Mail Code 5101, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460, Toll free: 1-800-424-9346, in Virginia and
Alaska: 703-412-9810 or Toll free TDD: 1-800-553-7672.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does This Action Apply to Me ?
This action applies to facilities that submit annual reports under
section 313
[[Page 19002]]
of the Emergency Planning and Community Right-to-Know Act (EPCRA) and
section 6607 of the Pollution Prevention Act (PPA). It specifically
applies to those that submit the TRI Form R or Form A Certification
Statement. (See https://www.epa.gov/tri/report/index.htm#forms for
detailed information about EPA's TRI reporting forms.) To determine
whether your facility would be affected by this action, you should
carefully examine the applicability criteria in part 372, subpart B, of
Title 40 of the Code of Federal Regulations. If you have questions
regarding the applicability of this action to a particular entity,
consult the individuals listed in the preceding FOR FURTHER INFORMATION
CONTACT section.
This action is also relevant to those who utilize EPA's TRI
information, including State agencies, local governments, communities,
environmental groups and other non-governmental organizations, as well
as members of the general public.
II. Background and Rationale for Action
In the Federal Register of December 22, 2006 (71 FR 76932), EPA
issued the Toxics Release Inventory Burden Reduction Final Rule
expanding Form A eligibility for non-PBT chemicals and allowing for the
first time, and in limited circumstances, Form A eligibility for PBT
chemicals. Specifically, the December 2006 final rule allowed
facilities to use Form A in lieu of Form R for TRI-listed PBT chemicals
(except dioxin and dioxin-like compounds) when there were no annual
releases of the PBT chemical, the facility's total annual amount of the
chemical recycled, combusted for energy recovery, and/or treated for
destruction did not exceed 500 pounds, and the facility did not
manufacture, process, or otherwise use more than one million pounds of
the PBT chemical. As it related to the Form R data elements, the
December 2006 final rule allowed a facility to use Form A instead of
Form R for a specific PBT chemical (other than dioxin and dioxin-like
compounds) when zero or not applicable (NA) was reported for items a,
b, c, and d of Section 8.1 (Total Disposal or Other Releases), the
facility did not have any non-production-related releases of the PBT
chemical included in Section 8.8 (quantity released to the environment
as a result of remedial actions, catastrophic events, or one-time
events not associated with production processes), and the total amount
reported for recycling, energy recovery, and/or treatment for
destruction in Section 8.2 through and including Section 8.8 did not
exceed 500 pounds.
The December 2006 final rule also expanded non-PBT chemical
eligibility for Form A by raising the annual reportable amount (ARA)
eligibility criterion to 5,000 pounds for total annual waste management
(i.e., releases, recycling, energy recovery, and treatment for
destruction) provided total annual releases of the non-PBT chemical
comprised no more than 2,000 pounds of the 5,000-pound total waste
management limit. In other words, the December 2006 final rule allowed
facilities to use Form A in lieu of Form R for a non-PBT chemical when
the facility's total annual reportable amount of the chemical released,
recycled, combusted for energy recovery, and/or treated for destruction
did not exceed 5,000 pounds, the facility's total annual releases of
the chemical did not exceed 2,000 pounds, and the facility did not
manufacture, process, or otherwise use more than one million pounds of
the non-PBT chemical. As it related to the Form R data elements, the
December 2006 final rule allowed a facility to consider Form A for a
non-PBT chemical when the sum of Section 8.1 through and including
Section 8.8 did not exceed 5,000 pounds and the sum of amounts reported
for items a, b, c, and d of Section 8.1 (Total Disposal or Other
Releases) and any non-production-related releases reported in Section
8.8 (Quantity released to the environment as a result of remedial
actions, catastrophic events, or one-time events not associated with
production processes) did not exceed 2,000 pounds. For more information
about the December 2006 final rule and to obtain the rule's supporting
materials visit the TRI Web site at https://www.epa.gov/tri and the
docket for the December 2006 rule at https://www.regulations.gov under
docket TRI-2005-0073.
On March 11, 2009, the Omnibus Appropriations Act of 2009 (``the
Act'') was enacted. The Act reads, in pertinent part:
(1) None of the funds made available by this or any other Act
may, hereafter, be used to implement the final rule promulgated by
the Administrator of the Environmental Protection Agency entitled
`Toxics Release Inventory Burden Reduction Final Rule' (71 Fed. Reg.
76932); and (2) the final rule described in paragraph (1) shall have
no force or effect. The affected regulatory text shall revert to
what it was before the final rule described in paragraph (1) became
effective, until any future action taken by the Administrator.
Accordingly, EPA is issuing today's final rule revising Form A
eligibility for both PBT and non-PBT chemicals to the thresholds
established prior to the 2006 TRI Burden Reduction Final Rule. Under 5
U.S.C. 553(b)(3)(B), the notice-and-comment requirements of the Federal
Administrative Procedure Act (5 U.S.C. 551-706) do not apply where the
Agency ``for good cause finds * * * that notice and public procedure
thereon are impracticable, unnecessary, or contrary to the public
interest.'' Because this action is being taken to comply with an Act of
Congress and EPA has no discretion as to the outcome of this rule, EPA
hereby finds that notice and comment on this action are unnecessary.
Accordingly, today's rule modifies Form A eligibility provided for
at 40 CFR section 372.27 (Alternate thresholds and certifications). For
PBT chemicals, this final rule eliminates Form A eligibility for those
chemicals listed at 40 CFR section 372.28. For non-PBT chemicals,
today's final rule reinstates the 500-pound annual reporting amount
(the total of releases and other waste management) and 1,000,000 pounds
manufactured, processed or otherwise used Form A eligibility threshold
in effect prior to December 22, 2006. This includes releases and waste
management activities (Section 8.1 through and including Section 8.7)
which are counted against the 500 pound threshold criterion.
Today's rule is effective immediately upon publication in the
Federal Register and affects reports filed for RY2008 (due July 1,
2009) forward. Under 5 U.S.C. 553(d)(3), this rule is effective
immediately for good cause because the Omnibus Appropriations Act
prohibits the Agency from expending any funds to implement the former
reporting requirements and mandated that the regulations revert to the
prior version.
If a facility submitted a TRI Form A for RY 2008 on or after March
11, 2009, and still used the 2006 TRI Burden Reduction Final Rule to
determine its eligibility for Form A, then the facility must determine
whether it is still eligible to file Form A. The Omnibus Appropriation
Act set back the Form A criteria to previous levels as of March 11. If
the facility determines that it is no longer eligible to file Form A,
then EPA requires the facility to revise and resubmit its RY 2008
report on Form R. Facilities are not permitted to submit a Form A for
PBT chemicals.
EPA recognizes that this change is occurring after 2008 reporting
year during which the data collected for the Reporting Year 2008
filing, due on July 1, 2009, was collected. EPCRA requires facilities
to make their best estimates
[[Page 19003]]
based on the available data (See EPCRA Sec. 313(g)(2)). Facilities can
seek further advice from EPA regions and the states about this rule
change.
III. References
1. Omnibus Appropriations Act of 2009, Public Law No. 111-8 (March
11, 2009).
IV. What Are the Statutory and Executive Order Reviews Associated With
This Action?
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. EPA prepared a brief
analysis of the potential costs and benefits associated with this
action. This analysis is contained here.
1. Methodology
To estimate the incremental costs, economic impacts, and benefits
of this rule, the Agency estimated both the cost and burden of
completing Form R and Form A as well as the number of affected
entities. The Agency has used Reporting Year (RY) 2007 for TRI data.
The Agency identified the number of potentially affected respondents
currently completing Form As or eligible to complete Form A due to the
Phase 2 Burden Reduction Rule that may be required to complete Form R
as a result of today's final rule. The Agency compared the baseline
burden associated with completing Form A with the burden associated
with completing Form R. The total burden and cost associated with this
rule is the difference between the unit burden and cost of filing a
Form R rather than a Form A for those respondents that were eligible to
file a Form A as a result of the Burden Reduction Rule times the number
of respondents affected. There are also a few filers who had filed Form
As before the Burden Reduction Rule, who were subsequently required to
file Form Rs after the Burden Reduction Rule, because the final rule
stated that Section 8.8 releases must be included in the calculation of
the releases for determining eligibility for using Form A. After this
revision of the Form A eligibility, Section 8.8 releases no longer
apply to the calculation of releases for determining eligibility for
Form A, and these respondents may return to eligibility to file Form
As. For these forms, the Agency has calculated the burden and cost
reduction of returning to Form A eligibility for these particular Form
R respondents.
2. Cost and Burden Results
Table 1 summarize the potential annual cost and burden increase of
this final rule for filers who would have been eligible to file Form A
under the Burden Reduction Rule and who will now be required to file
Form Rs. Table 2 summarizes the decrease in Cost and Burden due to this
rule for a small number of respondents who were required to file form
Rs as a result of the Burden Reduction Rule, but who are now eligible
to file Form As. The net cost and burden of the rule is the total
increase from Table 1 minus the total decrease in Table 2.
Table 1--Potential Annual Cost and Burden Increase of the Toxics Release Inventory Form A Eligibility Revisions Implementing the 2009 Omnibus
Appropriations Act: Respondents Filing Form Rs Who Were Eligible To File Form As Under the Burden Reduction Rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
Percent of
Number of Total burden Total burden Total cost Average cost total cost/
Option type forms hour increase hour increase increase increase per burden
per Form R form (percent)
--------------------------------------------------------------------------------------------------------------------------------------------------------
PBT..................................................... 2,462 38,020 15.4 $2,004,470 $814 27
non-PBT................................................. 11,246 102,846 9.1 5,368,519 477 73
PBT & non-PBT Combined.................................. 13,708 140,867 10.3 7,372,988 538 100
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 2--Potential Annual Cost and Burden Decrease of the Toxics Release Inventory Form A Eligibility Revisions Implementing the 2009 Omnibus
Appropriations Act: Respondents Who Are Now Eligible To File Form As Who Would Have Been Required To File Form Rs under the Burden Reduction Rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
Percent of
Number of Total burden Total burden Total cost Average cost total cost/
Option type forms hour decrease hour decrease decrease decrease per burden
per Form A form (percent)
--------------------------------------------------------------------------------------------------------------------------------------------------------
PBT..................................................... 0 0 0.0 $0 $0 0
non-PBT................................................. 33 302 9.1 15,753 477 100
PBT & non-PBT Combined.................................. 33 302 9.1 15,753 477 100
--------------------------------------------------------------------------------------------------------------------------------------------------------
The cost and burden is the increased burden due to respondents who
now must file Form Rs who were formerly eligible for Form A,
$7,372,988, minus the decrease in burden due to the return to Form A
eligibility of some Form R filers, $15,753, yielding the increase in
cost and burden of this rule as $7,357,235.00.
3. Impacts to data when EPA promulgated the Burden Reduction Rule
in December 2006, it calculated the impact of the data that would be
lost if all respondents who were eligible to use Form A as a result of
the rule did so. One analysis looked at the number of pounds of
releases and wastes that might not be reported on Form Rs.
[[Page 19004]]
Table 1--Percentage of Total Releases and Other Waste Management Pounds Not Reported Due to New and Expanded
Form A Eligibility
----------------------------------------------------------------------------------------------------------------
Total Total non-
Total releases production production
not reported related waste related waste
Lbs not reported not reported
on Form R Lbs on Form R Lbs
----------------------------------------------------------------------------------------------------------------
New Eligibility for Form A: PBT Chemicals Option................ 0 83,129 283
Expanded Eligibility for Form A: Non-PBT Chemicals Option....... 5,713,104 16,052,663 83,832
----------------------------------------------------------------------------------------------------------------
As a result of the Toxics Release Inventory Form A Eligibility
Revisions Implementing the 2009 Omnibus Appropriations Act, all
releases and wastes will be reported on From Rs and the local
communities will be aware of them.
EPA also examined the potential impact on zip codes if all the Form
Rs that indicated eligibility for Form A, reported on Form As.
Table 2--Zip Codes Eligible for Form A Reporting (PBT and Non-PBT Options)
----------------------------------------------------------------------------------------------------------------
Percent of
total zip
Number of zip codes Average No. of
codes containing Form Rs per
Form Rs zip code
(percent)
----------------------------------------------------------------------------------------------------------------
Zip codes with at least one Form R newly eligible for Form A.... 4,246 47.4 13.55
Zip codes with all Form Rs newly eligible for Form A............ 557 6.2 2.04
----------------------------------------------------------------------------------------------------------------
Note: Based on the RY2004 Frozen TRI data, there are 8,961 five-digit zip codes with TRI Form R data.
Source: Frozen RY2004 TRI data.
As shown on the chart above, nearly half of all zip codes would
lose some release information and 557 zip codes would lose all the
release information that would have been available before the Burden
Reduction Rule. This information will now be restored to those
communities.
B. Paperwork Reduction Act
The reversal of the 2006 TRI Burden Reduction Rule will increase
the overall reporting and recordkeeping burden estimate provided for
EPCRA section 313, but this action has been approved as a change
request by OMB under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501
et seq. This action is being taken as a result of a congressional
mandate and without any discretion on the part of EPA. Because of this
reversal, burden is being shifted from the Form A Information
Collection Request (OMB No. 2070-0143) back to the Form R Information
Collection Request (OMB No. 2070-0093). Based on Reporting Year (RY)
2005 data, the shifted burden is estimated to be 140,565 hours and a
cost of $7,357,235.
C. Regulatory Flexibility Act (RFA), as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et
seq.
Today's rule is not subject to the Regulatory Flexibility Act
(RFA), which generally requires an agency to prepare a regulatory
flexibility analysis for any rule that will have a significant economic
impact on a substantial number of small entities. The RFA applies only
to rules subject to notice and comment rulemaking requirements under
the Administrative Procedure Act (APA) or any other statute. This rule
is not subject to notice and comment requirements under the APA or any
other statute because although the rule is subject to the APA, the
Agency has invoked the ``good cause'' exemption under 5 U.S.C. 553(b),
therefore it is not subject to the notice and comment requirement.
D. Unfunded Mandates Reform Act
Because the agency has made a ``good cause'' finding that this
action is not subject to notice-and-comment requirements under the
Administrative Procedure Act or any other statute [see Section II
above], it is not subject to sections 202 and 205 of the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4).
E. Executive Order 13132, Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.'' This rule
does not have federalism implications. It will not have substantial
direct effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132.
F. Executive Order 13175, Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (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
[[Page 19005]]
government and Indian tribes.'' This rule does not have tribal
implications. It will not have substantial direct effects on tribal
governments, on the relationship between the Federal government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal government and Indian tribes, as specified in
Executive Order 13175.
G. Executive Order 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 rule is not a ``significant energy action'' as defined in
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001) because it is not likely to have a significant
adverse effect on the supply, distribution, or use of energy. Today's
rule increases only recordkeeping and reporting burden for TRI
reporters. It will not cause reductions in supply or production of oil,
fuel, coal, or electricity. Nor will it result in increased energy
prices, increased cost of energy distribution, or an increased
dependence on foreign supplies of energy.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards. This
rule does not establish technical standards. Therefore, EPA did not
consider the use of any voluntary consensus standards.
J. 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 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. The principal consequence of today's action will be to
increase the amount of detailed information available on toxic chemical
releases or management and therefore, EPA does not have any evidence
that this rule will have a direct effect on human health or
environmental conditions.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. Section 808 of the
Congressional Review Act provides that any rule for which the issuing
agency for good cause finds (and incorporates the finding and a brief
statement of reasons therefore in the rule) that notice and public
procedure thereon are impracticable, unnecessary, or contrary to the
public interest, shall take effect at such time as the agency
promulgating the rule determines (5 U.S.C. 808(2)). As stated
previously, EPA has made such a good cause finding, including the
reasons therefore, and established an effective date April 27, 2009.
This action is not a ``major rule'' as defined by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 372
Environmental protection, Community right-to-know, Reporting and
recordkeeping requirements, Toxic chemicals.
Dated: April 20, 2009.
Lisa P. Jackson,
Administrator.
0
Therefore, 40 CFR part 372 is amended as follows:
PART 372--[AMENDED]
0
1. The authority citation for part 372 continues to read as follows:
Authority: 42 U.S.C. 11023 and 11048.
Subpart A--[Amended]
0
2. Revise Sec. 372.10(d) introductory text to read as follows:
Sec. 372.10 Recordkeeping.
* * * * *
(d) Each owner or operator who determines that the owner operator
may apply the alternate threshold as specified under Sec. 372.27(a)
must retain the following records for a period of 3 years from the date
of the submission of the certification statement as required under
Sec. 372.27(b):
* * * * *
Subpart B--[Amended]
0
3. Section 372.27 is amended as follows:
0
a. Revise section heading.
0
b. Revise paragraph (a).
0
c. Revise paragraph (b).
0
d. Revise paragraph (e).
Sec. 372.27 Alternate threshold and certification.
(a) Except as provided in paragraph (e) of this section, with
respect to the manufacture, process, or otherwise use of a toxic
chemical, the owner or operator of a facility may apply an alternate
threshold of 1 million pounds per year to that chemical if the owner or
operator calculates that the facility would have an annual reportable
amount of that toxic chemical not exceeding 500 pounds for the combined
total quantities released at the facility, disposed within the
facility, treated at the facility (as represented by amounts destroyed
or converted by treatment processes), recovered at the facility as a
result of recycle operations, combusted for the purpose of energy
recovery at the facility, and amounts transferred from the facility to
off-site locations for the purpose of recycle, energy recovery,
[[Page 19006]]
treatment, and/or disposal. These volumes correspond to the sum of
amounts reportable for data elements on EPA Form R (EPA Form 9350-1;
Rev. 12/4/93) as Part II column B or sections 8.1 (quantity released),
8.2 (quantity used for energy recovery on-site), 8.3 (quantity used for
energy recovery off-site), 8.4 (quantity recycled on-site), 8.5
(quantity recycled off-site), 8.6 (quantity treated on-site), and 8.7
(quantity treated off-site).
(b) If an owner or operator of a facility determines that the owner
or operator may apply the alternate reporting threshold specified in
paragraph (a) of this section for a specific toxic chemical, the owner
or operator is not required to submit a report for that chemical under
Sec. 372.30, but must submit a certification statement that contains
the information required in Sec. 372.95. The owner or operator of the
facility must also keep records as specified in Sec. 372.10(d).
* * * * *
(e) The provisions of this section do not apply to any chemicals
listed in Sec. 372.28.
Subpart E--[Amended]
0
4. Section 372.95 is amended as follows:
0
a. Revise section heading.
0
b. Revise paragraph (b) introductory text.
0
c. Revise paragraph (b)(4).
Sec. 372.95 Alternate threshold certification and instructions.
* * * * *
(b) Alternate threshold certification statement elements. The
following information must be reported on an alternate threshold
certification statement pursuant to Sec. 372.27(b):
* * * * *
(4) Signature of a senior management official certifying the
following: pursuant to 40 CFR 372.27, ``I hereby certify that to the
best of my knowledge and belief for the toxic chemical listed in this
statement, the annual reportable amount, as defined in 40 CFR
372.27(a), did not exceed 500 pounds for this reporting year and that
the chemical was manufactured, or processed, or otherwise used in an
amount not exceeding 1 million pounds during this reporting year.''
* * * * *
[FR Doc. E9-9530 Filed 4-24-09; 8:45 am]
BILLING CODE 6560-50-P
