RESPONSE TO COMMENTS DOCUMENT FOR

Emergency Planning and Community Right-to-Know Act; Guidance on
Reporting Options for Sections 311 and 312 and Interpretations

June 2010

Office of Emergency Management

Office of Solid Waste and Emergency Response

 U. S. Environmental Protection Agency

TABLE OF CONTENTS

											Page 

Statutory
Authority………………………………………………………
……....	       1

Background……………………………………………………
………………….

Summary of the Proposed
Guidance……………………………………………

Increased Flexibility for States and Local Governments with respect to 

Reporting under EPCRA sections 311 and
312………………………………..

UST Forms to fulfill the requirements for Tier I information 

Under EPCRA section
312……………………………………………….

Partnership programs for joint access to information and streamlined 

Submission of EPCRA sections 311 and
312……………………………

		SERC, LEPC and fire department interest in forming 

		partnership Program for joint access to information ………….

		Comments on draft guidance for partnership programs………

		Implementation of streamlined submittal guidance in 

		Conjunction with the guidance for electronic submittal of 

		EPCRA section 311 and 312 information……………………….

		Software programs used to obtain and store 311 and 312 

		Reporting
data……………………………………………………

		Information Systems to ensure timely and joint receipt of 

		Information by SERCs, LEPCs and fire departments…………

		Use of MOUs or other written documents to form partnership

	
Programs………………………………………………………
…..

		Restricting participation in partnerships……………………….

		Technical database management issues…………………………

Electronic submittal for EPCRA sections 311 and 312 reporting……..

	
Certification…………………………………………………
……

Incorporation of previous submissions into EPCRA section 312

Reporting………………………………………………………
…………

Electronic Access to facilities databases of
MSDSs……………………

EPCRA section 312 reporting to fulfill reporting requirements under 

Section
311……………………………………………………………
…….

Interpretation of the hazardous chemical exemption for solids under 

EPCRA section
311(e)(2)………………………………………………….

Emergency Planning
Notification…………………………………………

Emergency Release
Notification…………………………………………..

List of Commenters sorted by Organization
type……………………………….		 

		

      		

		

	

BACKGROUND

		The Emergency Planning and Community Right-to-Know Act of 1986
(EPCRA), which

was enacted as Title III of the Superfund Amendments and Reauthorization
Act of 1986 (Pub.L.

99-499), (SARA)Title III, establishes authorities for emergency planning
and preparedness, 

emergency release notification, community right-to-know reporting, and
toxic chemical release 

reporting.  It is intended to encourage State and local planning and
preparedness for releases of 

extremely hazardous substances and to provide the public, local
governments, fire departments, 

and other emergency officials with information concerning potential
chemical risks in their 

communities.  

	Section 302 of EPCRA requires facilities to notify their State
Emergency Response

Commission (SERC) and the local emergency planning committee (LEPC) of
any extremely 

hazardous substance (EHS) present at the site above its threshold
planning quantity (TPQ).  This 

information is then used by the Local Emergency Planning Committee
(LEPC) to develop

emergency response plan for the community.  EHSs and their TPQs as well
as the implementing

 regulations are codified in 40 CFR part 355.  

	Section 304 of EPCRA requires facilities to notify their SERC and the
community 

emergency coordinator for the LEPC of any release of an EHS or a CERCLA
hazardous 

substance above the reportable quantity.  The reportable quantities for
the CERCLA hazardous 

substances are in Table 302.4 of 40 CFR Part 302.  The implementing
regulations for section 

304 of  EPCRA are also codified in 40 CFR part 355. 

	Sections 311 and 312 of EPCRA require facilities to submit information
on hazardous 

chemicals at their sites above the threshold quantities.  The
information on hazardous chemicals

 is submitted to the SERC, LEPC and the local fire department.  The
implementing regulations 

can be found in 40 CFR part 370.  

	On June 8, 1998 (63 FR 31268), EPA published a proposed rule to
streamline the 

reporting requirements under EPCRA, in particular, sections 311 and 312.
 EPA proposed four 

major revisions and provided draft guidance on various options that
States and local agencies 

may wish to consider in implementing EPCRA sections 311 and 312.  The
four proposed 

revisions were:  (1) higher threshold levels for gasoline and diesel
fuel at retail gas stations;  (2) 

relief from routine reporting for substances with minimal hazards and
minimal risks; (3) relief 

from routine reporting for sand, gravel and rock salt ; and (4) ”Other
Regulatory Changes,” such

as:  reporting of mixtures; removing the Tier I and Tier II inventory
forms and instructions; and 

some minor changes to the emergency planning and emergency release
notification regulations 

(40 CFR part 355).  In addition, EPA proposed to rewrite 40 CFR parts
355 and 370 in plain 

language, using a question and answer format to help the regulated
community better understand 

the regulations.

	EPA finalized higher threshold levels for reporting gasoline and diesel
fuel at retail gas 

stations on February 11, 1999 (64 FR 7047).  On November 3, 2008 (73 FR
65452), the Agency 

finalized item in (4) above – “Other Regulatory Changes,” as
discussed in section IV.B. of the 

preamble to the 1998 proposed rule.  The remaining two proposed
revisions [(2) and (3) above] 

may be finalized at a later date.  

	This document contains the summary and response to comments related to
the draft

guidance provided in section V of the preamble to the June 1998 proposed
rule.  In that 

preamble, EPA suggested various options that State and local agencies
may wish to consider in 

implementing sections 311 and 312 of EPCRA.  EPA also proposed revisions
to a few 

interpretations for facilities to comply with EPCRA.  This document also
contains the summary 

and response to comments related to the proposed revisions to these
interpretations.  

SUMMARY OF THE PROPOSED GUIDANCE

	In order to streamline the reporting requirements under EPCRA sections
311 and 312 for 

facilities and to reduce information management burden for SERCs, LEPCs
and the fire 

departments, EPA suggested various reporting options in a form of
guidance in the preamble to 

the June 8, 1998 proposed rule.  The main objective of the guidance was
to provide 

flexibility to the State and local agencies in implementing sections 311
and 312.  In that 

preamble, EPA stated that States may implement any or all of the
reporting options provided in 

the preamble whether or not EPA finalize the guidance.  Since the
proposed rule, many States 

have adopted at least one or two reporting options such as electronic
filing via diskettes or on-

line filing of Tier II or the State equivalent reporting form.  States
were always given the 

flexibility to implement the EPCRA program as necessary to meet the
goals of EPCRA, which is to prepare and respond to releases of extremely
hazardous substances and to provide the public with information on
potential chemical risks in their communities.  The flexibility includes
adding more chemicals, setting lower reporting thresholds and creating a
reporting form or format that includes more information than is required
by the Federal reporting requirements.  

	EPA did not propose any regulatory changes with any of the reporting
options but sought 

comments on various reporting options under sections 311 and 312.  The
reporting options that 

were discussed are:  (1) UST forms to fulfill the requirements for Tier
I Information under 

EPCRA section 312; (2) Partnership programs for joint access to
information and streamlined 

submission of EPCRA sections 311 and 312; (3) Electronic submittal for
EPCRA sections 311

 and 312 reporting; and (4) Incorporation of previous submissions into
EPCRA section 312 

reporting.  These four options were given to reduce the information
management burden to 

States and local agencies as well as minimize the reporting burden to
the regulated community.  

	In addition, EPA also suggested more options to streamline reporting
and revise some 

existing regulatory interpretations for facilities.   The purpose for
providing these options was 

also to reduce information management burden for States and local
agencies.  These options are:  

(1) Electronic access to facilities databases of MSDSs; (2)
Interpretation of the hazardous 

chemical exemption for solids under EPCRA sections 311(e)(2); and (3)
EPCRA section 312 

reporting to fulfill reporting requirements under section 311.

	In the June 1998 preamble, EPA also proposed to define the term,
“promptly” in 

reference to providing notice of any changes relevant to emergency
planning (40 CFR part 355) 

and the term “as soon as practicable” in reference to providing
written follow-up emergency 

 notice under the emergency release notification requirements (40 CFR
part 355).  The Agency 

did not intent to revise the regulatory requirements but only provide
guidance for these two 

terms.  However, EPA received comments from many States and local
agencies that the term 

“promptly” should be defined in the regulations since receiving
information from facilities on 

changes relevant to emergency planning is crucial in developing and or
updating emergency 

response plans.  As a result, this term was defined in 40 CFR 355.20, in
the recent final rule that 

was published on November 3, 2008 (73 FR 65452).  The requirement in 40
CFR 355.20 states 

that, any changes relevant to emergency planning must be provided to the
LEPC within 30 days 

after the changes have occurred.  

	The term, “as soon as practicable” in reference to providing
written follow-up emergency 

notice will be provided as guidance.  The reason is that, facilities
would have to provide the 

initial notification immediately after a release occurs, which is
necessary to respond to the 

release by States and local emergency responders.  However, the written
follow-up notice would 

be better prepared after the facility has complete knowledge of the
release, its cause and possible 

prevention of another release.  

	This document includes a summary of all comments received for each of
the options

 discussed above and the Agency’s collective response to the comments
for each option. 

Increased Flexibility for States and Local Governments with Respect to
Reporting 

under EPCRA Sections 311 and 312

	In order to streamline compliance with the reporting requirements, EPA
proposed draft 

guidance in the preamble to the June 1998 proposed rule (63 FR 31268). 
EPA did not propose

any regulatory changes with any of the options provided, however the
Agency sought comments 

in developing the guidance.  The Agency stated in the 1998 preamble that
States and local 

agencies may implement any or all of the options regardless of whether
EPA issues final 

guidance, provided that options used meets the statutory and regulatory
requirements. 

Support

In general, to streamline and reduce the record keeping and reporting
requirements, we support EPA’s proposed options for SERCs, LEPCs, and
fire departments, including using UST forms to fulfill Tier I
information requirements, allowing one submittal to a joint
SERC/LEPC/fire department database, electronic submittal of reports, and
incorporation of previous submittals. [101]

Opposition

The proposed changes will significantly increase costs and the risk of
non-compliance at companies with multiple facilities due to the loss of
consistency in data management and compliance reporting.  The benefits
of increased flexibility for state and local agencies must be balanced
against the total costs associated with implementing these changes. 
Companies with centralized tracking and reporting systems will be
required to invest significant amounts of time and money to re-program
existing computer systems. [139]

Agency Response

	The Agency proposed various reporting options for State and local
agencies in the June 1998 proposed rule to provide flexibility to these
agencies to implement the program as necessary for their community
emergency planning and response.  EPCRA was created to prepare for and
respond to accidental releases of extremely hazardous substances and to
provide the public with information on potential risks in their
community.  In order for the local emergency planning committee to
develop emergency response plans for their community and to provide the
public with information submitted under EPCRA, States may need to
develop methods to manage the information provided by facilities.  For
these reasons, EPA proposed various options for reporting under EPCRA
sections 311 and 312 and it is not required that States implement these
options.

A.	UST Forms to Fulfill the Requirements for Tier I Information Under
EPCRA Section 312

		At the time of the June 1998 proposal, many States were accepting Tier
I form, which contains the minimum information about hazardous chemicals
at a facility.  Only few States required Tier II form from the facility.
 In order to provide flexibility, States if they choose, have the option
to allow the underground storage tank (UST) form required under RCRA to
be used to comply with reporting requirements under section 312 of
EPCRA.  This option would also benefit the facilities that have only
USTs on their site with hazardous chemicals.  In most cases, these
facilities may be retail gas stations which have only the USTs that may
be subject to the reporting requirements under sections 311 and 312.  So
in order to reduce burden for these facilities, this option of
substituting UST form for Tier I was suggested.  At the same time, EPA
proposed to raise the reporting threshold for gasoline and diesel fuel
at retail gas stations provided that these facilities meet certain
requirements in order to be subject to the higher threshold.  As
mentioned in the background section of the document, EPA finalized the
higher reporting threshold for gasoline and diesel fuel on February 11,
1999 (64 FR 7047).  This section contains the summary of comments
received for this option and the Agency’s collective response. 

A few commenters supported using the UST forms to fulfill Tier I
requirements, but most commenters opposed the proposal.  Commenters
stated that it would be confusing and burdensome for LEPCs and fire
departments and would make electronic filing more difficult. Some stated
that the differences in information and filing schedules make this
approach inappropriate.  Other commenters stated that EPA’s approach
would not result in streamlining and that EPA should eliminate
duplicative reporting, not duplicative forms.  These commenters also
questioned the need for the approach because most states require Tier II
forms and because the higher gasoline threshold will remove most of the
facilities subject to UST reporting from Part 370.  One commenter
questioned the legality of multiple forms.

Support

By allowing programs for streamlined submittal and joint access to
sections 311-312 information, electronic submittal, reporting only
changes in information rather than complete new inventories each year
and allowing RCRA UST reports to fulfill EPCRA section 312 requirements,
facilities may be more inclined to comply with reporting requirements
and work with state and local regulatory agencies.  This also would
lessen the impact on those agencies required to maintain information
regarding community right-to-know and extremely hazardous substances.
[012]

We support EPA’s proposed “guidance” to state and local
governments that would allow the use of underground storage tank (UST)
forms to be used to comply with the reporting requirements under EPCRA
Section 312. [116]

I agree with the proposal to allow RCRA underground storage tank reports
to fulfill the requirements under section 312 of EPCRA.  This proposal
makes good sense and will reduce duplication of reports that, for the
most part, are going to the same location within local government.  This
process also will improve the accuracy of data. [014]

We have no objection at this time to the proposed change to allow UST
forms to fulfill the requirements for Tier I information. [098]

We agree that it would be helpful to use existing submittals, such as
UST reports, to satisfy EPCRA reporting requirements where appropriate.
[101]

We support the integration of reporting requirements where feasible. 
However, when implementing the consolidated reporting, EPA should issue
clear, concise guidance in the final rule that delineates the
requirements for such reports and demonstrates how the submission of the
reports satisfy the requirements of the various statutory obligations.
[106]

We support several of the ideas advanced by EPA in Part V of the
proposed rule, including EPA’s proposed “guidance” to state and
local governments that would allow the use of UST forms to comply with
the reporting requirements under EPCRA section 312.  These notification
forms contain ample information and can satisfy the intent of EPCRA
section 312.  This option would reduce unnecessary regulatory burdens,
be consistent with EPA’s desire to reinvent environmental regulation,
and continue to ensure protection of human health and the environment.
[116]

Opposition

The simple Tier II report is not burdensome enough to warrant a change. 
We would prefer the reporting entity file a report we are used to seeing
and make them do the work rather than put ourselves on the learning
curve. [018]

As for the use of UST reports to fulfill EPCRA section 312, we do not
currently receive RCRA reports and would prefer to leave them under
EPCRA section 312. [020]

EPA could have just as easily combined Tier Two and UST reporting, which
would require a small regulatory change, but certainly congruent with
the move to consolidated reporting.  EPA would be better serving all
stakeholders if, instead of promoting a plan that would withhold EPCRA
information from the public, it moved swiftly to allow electronic
reporting in all sectors for all EPCRA reports, as well as UST.  

Another option, the least expensive and most convenient for the
stakeholders, is to provide a federal reporting website at which a
facility, and the public with a read-only site, could access Tier II,
UST, and other reporting forms, post the data elements, and let whatever
environmental bureaucracies retrieve the data they need for themselves. 
This would go some distance in reducing repetitive and redundant
reporting, which saves money and improves productivity, which is good
for the economy and more consistent with goals in reducing paperwork. 
This would actually save money in at least two sectors and the
electronic reporting diminishes the storage space usually taken by
records in paper, which saves other money.  It would also boost UST
compliance. [034]

The use of UST forms to satisfy requirements under EPCRA section 312
(provided that all information is provided which is required on the Tier
I form) would not be a viable option in New Jersey, as Tier II level
information is required to be submitted by all facilities regulated by
section 312 in our state.

 

	In addition, we are concerned that the use of UST forms to satisfy
reporting requirements under section 312 would establish a separate
mechanism that citizens would be forced to use to obtain certain
information about the use of hazardous chemicals at a facility.  We
believe that all reporting required under section 312 be done via the
same reporting vehicle, the Tier I or II. [058]

Some states/LEPCs require more than the minimum data that EPA requires. 
For the UST form to meet the standard EPCRA reporting requirements in
Wisconsin, the SERC, the LEPC and the fire department must all receive
the information; they must contain at a minimum Tier I information and,
in Wisconsin, Tier II information; and they must be submitted annually
by March 1.  Taking this into consideration, it would appear that using
UST forms would complicate the reporting requirements under EPCRA. 
Because the submission requirements vary so greatly between programs it
is unlikely that this would serve to reduce the reporting burden.  EPCRA
provides for one agency to maintain records of hazardous materials; this
proposal would require an individual to go to another agency to obtain
complete information regarding on hazardous materials in the  community.
[061]

Here again, EPA attempts to reduce burden by proliferating special
requirements, rather than by dealing with the need for underlying
information reform.  UST forms are no substitute for Tier I reports. 
UST reports are not reported annually, do not identify materials or
quantities, do not identify parent companies, and are not reported
directly to local fire departments, SERCs, or LEPCs.  Rather than
combine requirements that are not truly the same, EPA should instead
promote the use of “intelligent” software that enables users to
fulfill multiple reporting requirements.  In this way EPA can achieve
real burden reduction, not just the proliferation of exemptions. [097]

While we agree with the EPA guidance to clarify this option is available
for implementation by State and local organizations, in our opinion, it
will probably not be an effective option.  In our experience, Tier II
information on chemicals in underground storage tanks does not typically
change from year to year, which makes annual section 312 reporting for
these substances fairly easy to begin with.  Because of differences
between UST form and section 312 information items, it may be more
burdensome to supplement a UST form than to update a previous Tier II
form.  Substitution of UST forms for Tier I or Tier II forms could be
especially burdensome for facilities with multiple chemicals, since UST
forms would have to be inserted amongst Tier I or Tier II forms for 
“non-UST” chemicals.  In addition, there would be an extra burden on
SERCs and LEPCs to explaining UST forms when fulfilling requests from
the public.

	It should also be noted that a large percentage of facilities in
Delaware are reporting electronically, and we expect the percentage to
grow.  Substitution of UST forms and electronic Tier II reporting would
not work together effectively. [104]

Because the Tier II report is required for compliance with the Texas
Community Right-to-Know Acts (TCRAs), we would not be able to accept UST
forms.  We are concerned about any proposal to allow UST forms to
substitute for Tier I information because such an allowance will create
confusion among members of the regulated community in states such as
Texas that do not accept the Tier I level of information.  In addition,
this allowance would create confusion for fire departments and LEPCs
because of the inconsistencies between the Tier I and UST formats, as
well as the inconsistencies in general information provided. [118]

We are opposed to the use of UST forms as described in the proposal.  
We have previously taken a position that UST forms do not fulfill
EPCRA’s needs and supported the elimination of Tier I and use of only
Tier II. [119, 129]

EPA needs to provide a consensus form for comment.  We would like to see
your composite form and instructions for further evaluation and
discussion; this should be an EPA/State/local partnership.  Decisions at
this point are premature until more information is gathered and
explained.  The RCRA UST program, not LEPCs/fire departments/SERCs,
should be the “keeper of the keys.”  UST information should be made
routinely available for LEPCs and fire departments as needed for
planning and response.  Almost universally, the Tier II has become the
routine EPCRA section 312 reporting mechanism.  Therefore, all Tier II
elements should be part of UST reporting.  A composite form is possible
but would have to reflect total current requirements of both programs
BEFORE its adoption.  Each program must retain its integrity unless
there is a full merging between program definitions, elements, etc.
[122]

While the flexibility of using the UST form to meet the Tier I reporting
requirements may reduce the burden of having to complete another
reporting form, there are some disadvantages to this optional reporting
form.  Allowing the use of another form (UST forms) to fulfill Tier I
requirements could create inconsistent and fragmented inventory
information.  Also, the use of separate reporting forms may be
inconsistent with the EPCRA section 312(g) requirements for a uniform
format.  Although EPA discounts this in the preamble (63 FR 31286) by
stating that EPCRA does not require the use of a uniform format for
submission of the section 312 information, the last sentence of section
312(g) clearly indicates that the intent of the uniform format is for
the submittal of information.  Additionally, for the UST form to reduce
the reporting burden, all three of the recipients (SERC, LEPC, and the
fire department) must accept the form in lieu of the Tier I report.
[133]

We oppose allowing UST forms to fulfill EPCRA section 312 reporting
requirements.  This would mean that UST forms would have to be changed
to accommodate EPCRA data elements not included in current report.  Or a
facility would have to submit supplemental information along with their
submissions to the local agencies to provide the required information. 
The format of these submissions would be entirely different from other
reports that will hinder efforts at data automation and implementation
of electronic submittal programs. [147]

We believe this proposal could lead to confusion for the LEPCs and fire
departments by having to look for the same information on two different
forms and file the forms in an intermingled manner. [165]

We believe the RCRA one-time reporting requirement will confuse
businesses and many will not report annually using a “one-time”
form. [167, 180]

UST forms do not contain sufficient information to accomplish hazard
analyses and vulnerability studies required under EPCRA.  The forms do
not reach the SERC, LEPC, or local fire departments nor are they updated
on a current basis by the agency receiving them.  The reverse option
might be considered, that the UST program use the EPCRA inventory
reporting to meet their reporting requirements.  Maine has been using a
state form that requires considerably more information found to be very
useful for inventory reporting.  We would not support using UST
reporting information in place of our own.

Some facilities have both underground and above ground storage.  Others
have only above ground storage.  Those facilities subject to reporting
who are not subject to UST reporting would have to be treated
differently.  This eliminates consistency and creates additional
confusion.  This proposal would not reduce reporting burdens, would not
provide any benefits with respect to preserving public health and safety
or achieving EPCRA’s environmental goals, will probably not reduce
costs to individuals, businesses, and government, and the flexible
options would simply create more confusion.  Rewriting the regulations
in plain English would not reduce the regulatory burden, just shift it
somewhat for some of the regulated community. [177]

As the Federal Register notice recognizes, there may be many
opportunities to use data submitted under other environmental programs
to fulfill some or all of the EPCRA section 312 requirements. 
Unfortunately, each alternative poses its own set of circumstances which
limits the ease of application or reduces its effectiveness for a
national program.  Use of the UST form is one example.  Not all EPCRA
agencies administer the RCRA/UST program.  There may be significant data
adjustment and data manipulation costs to adapt UST data elements and
collection protocols to meet EPCRA requirements and to provide access to
the UST data for EPCRA program officials and the community.  Florida
recently developed a proposal to consolidate UST/EPCRA Tier II reporting
and community right-to-know access for retail petroleum facilities. 
Development of the system was estimated to cost $100,000.  In addition,
in our experience, the majority of the current reporters that would
benefit from this option are retail petroleum and diesel facilities. 
EPA’s proposal to raise the reporting threshold for this group may
make the UST Tier I option unnecessary. [178]

This proposal seems to contradict EPA’s proposal to raise the
threshold for facilities under this requirement.  The number of
facilities this proposal would affect then would not be sufficient to
warrant a change that would be unsatisfactory and difficult to
implement. [L13]

Agency Response

Tier I information is the minimum information required under EPCRA
section 312 and the implementing regulations.  When the proposed rule
was published in June 1998, some States were accepting the Tier I form. 
However, all States now require facilities to submit the State form or
the Federal Tier II inventory form.  Therefore, the Agency believes that
this flexibility which was proposed in 1998 may not be beneficial.  

The guidance for using the UST form instead of Tier I was proposed
mainly for

retail gas stations since these facilities may only have underground
storage tanks (UST)

with hazardous chemicals and therefore may only use this option.  All
other facilities may

have other methods for storing hazardous chemicals other than USTs.  As
one of the commenters stated, EPA proposed to raise the reporting
threshold for gasoline and diesel fuel for these substances stored at
retail gas stations and therefore, most of the retail gas stations may
not need to report these substances since they may fall under the new
reporting threshold.  Since EPA finalized the higher reporting
thresholds for gasoline and diesel fuel on February 11, 1999 (64 FR
7031), most retail gas stations may not need to comply with the
reporting requirements under EPCRA sections 311 and 312.  Therefore, EPA
believes that this guidance for using UST form instead of the Tier I
form is no longer useful.  

Other

Kansas currently allows facilities to submit the above and underground
storage tank forms in lieu of Tier II for petroleum fuels.  Kansas has
modified the storage tank form to assure that all the required
information under EPCRA is included.  Facilities can submit the AST/UST
Tier II to the SERC, LEPC, and fire department. [108]

Because a broader group uses EPCRA section 312 than UST, the UST forms
should become a Tier II add-on.  Generally UST forms only go to the
program assigned to Underground Storage Tank Regulation; normally this
is not the agency or department designated to receive EPCRA reports. 
Typically, LEPCs, the SERC co-chair agencies, and most fire departments
do not have ready access to UST forms.  UST forms focus on tank age and
construction material.  A note area on a Tier II form to indicate age of
storage vessel/tank vat and material could be beneficial to emergency
planners as a hazard analysis tool.  However, emergency contact
information, location, and average volume in storage are important to
local planners and responders. [119, 129]

The facility and emergency contact information contained on the Tier II
form is vital in maintaining the link for emergency purposes.  We
recommend that UST owner/operators report facility and emergency contact
information annually (by March 1) with the UST form attached to the Tier
II form.  Also, there are occasions when UST owners submit other
regulated material on the Tier II Form.  They could then complete the
other chemical-specific information and send to the SERC, LEPC, and fire
department as usual. [123]

EPA has failed to accurately take account of the information available
to the public, emergency responders, and local emergency planning
agencies through Underground Storage Tank registrations.  Annual
reporting under EPCRA was designed for manufacturing facilities that use
and store a broad range of chemicals that varies from year to year.  It
was not intended to be a duplicative, unnecessary, and burdensome
reporting of the same information year after year.  It should come as no
surprise to LEPCS, fire departments, or the public that diesel and
gasoline fuel are stored in USTs installed for diesel and gasoline fuel
storage.

Although RCRA does not require UST registration forms to be submitted to
LEPCs, many state and local regulations require that UST forms be
submitted to local agencies and fire departments.  The so-called
flexibility that EPA has offered in this proposed rule is merely a
rewording of existing duplicative and burdensome regulations.  The
current proposal merely allows facilities to annually submit a UST
registration form with the additional EPCRA information.  This is not
streamlining.

EPA should instead raise the Tier I threshold reporting level for diesel
and gasoline fuel stored by fleet facilities and allow states and local
communities the real flexibility of determining how and when they need
to receive information.  States and localities not currently requiring
local reporting of USTs could modify their regulations to require that
UST forms be sent to LEPCs or local fire departments.  Retention of the
zero threshold for complying with Tier II requests would allow LEPCs and
local fire departments to obtain hazard data when needed.

Alternatively, states could take advantage of Internet technology to
make UST registration forms available via the Internet to LEPCS, fire
departments, and the public; this is already being done in Missouri and
Florida.  All 50 states and the District of Columbia have established
Internet web pages for their environmental regulatory agencies.  These
are broadly accessible locations for the dissemination of UST
registrations and would obviate the need to annually send UST
information to LEPCs and represent a true case of streamlining. [131]

We have not previously evaluated the use of UST forms to meet the
reporting requirements under EPCRA section 312 and have not requested
that EPA allow this flexibility.  This has not been an issue in North
Carolina.  If other states can justify a need for this flexibility, the
new rules should support such.  UST reports provide good information if
properly entered into a reporting system. [140]

Agency Response

As stated above, EPA proposed this draft guidance mainly for those
facilities that have only underground storage tanks at the site, such as
retail gas stations.  EPA is aware that other facilities have
underground storage tanks as well as above ground storage tanks so these
facilities may have to submit UST form as well as Tier II form to comply
with section 312 of EPCRA.  As commenters suggested, raising the
threshold for gasoline and diesel would relieve burden for retail gas
stations which was EPA’s intention for providing this flexibility. 
Since the reporting threshold for gasoline and diesel fuel was raised
for retail gas stations in February 1999, these facilities reporting
burden was reduced.  

In addition to providing burden for retail gas stations, information
management burden was reduced for SERCs, LEPCs and the local fire
departments who receive Tier II reports from retail gas stations.  Some
of the States informed EPA that flexibility should be given to the
States to collect information under section 312 of EPCRA according to
their needs, such as, substituting the UST form for Tier I form.  EPA
understands that few States right-to-know program offices are within
their UST program offices.  For these States, information sharing is
easier between these programs.  For other States, the flexibility for
substituting UST for Tier I may not be beneficial.  Also, as stated
earlier in this document, since all States now require facilities to
submit Tier II form which may contain more information than the UST
form, substituting UST form would not be practical unless UST
regulations are revised to include all information required by Tier II.

  

B.	Partnership Programs for Joint Access to Information and Streamlined
Submission of EPCRA Sections 311 And 312 Reporting

EPA proposed guidance on facilitating reduced submissions by allowing
SERCs, LEPCs, and fire departments to agree that one agency would
receive the information and make it available electronically to the
other two entities.

General Comments

We strongly feel that if one form containing all data required by each
agency and approved by each of the agencies involved in the gathering of
information such as the SERC, LEPC, local fire departments, UST agency,
etc., then the needs of all the involved agencies can be met with a
single filing. [103]

Arizona is currently pursuing web site accessibility for Tier II
reporting.  We support the concept of reducing and streamlining
submission of EPCRA, MSDS, and Tier data and would be quite interested
in piloting a partnership program to promote streamlined submission of
EPCRA information.  We concur in concept with what has been offered.
[122]

We agree that forming partnerships between LEPCs, fire departments, and
SERCs would be a useful feature to include in the new regulations to
eliminate filing of a duplicate sets of information.  We suggest that
the partnership be responsible for determining if it is necessary to
have the information electronically accessible.  Because most
departments, LEPCS, and SERCs today don’t have their MSDSs
electronically accessible, why should they have to have them in a
“partnership?” [048]

Not all LEPCs/fire departments are tuned into, use, or understand this
evolving technology.  Should this be the mechanism for facilities to
report Tier II, UST, or minimally inherent hazardous material, a
mechanism must be set up to notify the SERC/LEPC/fire department that
the data are on this national database system. [123]

Agency Response

		EPA is aware that since the publication of the proposed rule, many
States have already adopted some of the options provided in the draft
guidance in the preamble.  The Agency will continue to encourage the
States and local agencies to work together to manage the information
received from facilities and make these available to the public.  

	

B.1.	SERC, LEPC, and fire department interest in forming partnership
programs for joint access to information

Many commenters supported the idea of partnerships to allow filing of
information to a single point.  Other commenters supported the proposal,
but cited a number of problems associated with single point of
submission.  They noted that many LEPCs and fire departments do not have
access to computers or the Internet.  A few commenters opposed the
proposal.

Support

Finding a way to streamline the reporting process would be the most
positive change since the law came into effect.  All reports in the
county go to a single source in local government to eliminate the need
to have every fire station and every volunteer fire department maintain
a file.  The receiving location would put information on a computer
database or a master list and forward it to the state.  This would
eliminate hundreds or even thousands of pages of report information
being handled two, three, or four times.  This process would provide a
more accurate reporting system, better customer service for the
facility, better control, and better access over a twenty-four hour
period.  Where possible, the report could be made part of the local
hazardous materials permitting process.  The permit and hazardous
materials information could be collected at the same time.  The facility
representative would verify the facility’s inventory at the same time
the permit is issued or renewed thereby ensuring accuracy of facility
inventory. [014]

I strongly agree that LEPCs, fire department, and SERCs should be
allowed to form partnerships.  In the City of Springfield’s case, the
LEPC is the primary handler of EPCRA info.  We have a strong bond with
the city’s fire department and it would be nice to eliminate filing of
a duplicate set of information by the facilities.  I would encourage EPA
to allow formal partnerships to exist and reduce the amount of paper
filing on the part of facilities.  By making it a local option, we would
make the decision to form or not form the partnerships. [048]

We strongly support partnership programs for the joint access to
information and streamlined submission of EPCRA section 311/312
information.  This should be considered a long-term project supplemental
to the sharing of data from Risk Management Programs with LEPCs and fire
departments by way of CAMEO.  This would encourage the establishment of
a comprehensive regional response system. [055] 

We support the concept of partnerships between the SERC, fire
department, and LEPC that would permit facilities to submit information
required under EPCRA section 312 only to the SERC and not the fire
department or LEPC.  We are presently discussing the possibility of
posting on the Internet all chemical inventory information received from
the community right-to-know survey used to collect information required
under the state program and section 312 of EPCRA.  This would give local
facilities access to the data submitted without having to receive paper
copies.  Our current public access system requires users to have
specific software and a modem. [058]

We see no reason why facilities could not satisfy their EPCRA section
311 and 312 reporting requirements through a single point of contact (as
long as SERCs, LEPCs, and local fire departments jointly receive the
information as required).  We support and encourage compilation of
information into a single database, such as a web site accessible from
the Internet. [097]

With regard to the possibility of the SERCs, LEPCs, and the fire
departments forming partnerships for joint access to information; we
would be pleased to participate in such a program. [098, 103]

We strongly support partnerships among the SERC, LEPC, and fire
departments that allow joint receipt of reports and sharing of
information.  Several LEPCs and fire departments currently use this
option already in North and South Carolina.  It helps to reduce our
paperwork burden and theirs as well. [139]

We are very interested in being able to establish joint partnerships
with LEPCs and fire departments for the receipt of information submitted
under EPCRA sections 311 and 312.  Such partnerships will benefit the
regulated facilities by allowing them to reduce their number of
submittals, and will also reduce the burden on SERCs, LEPCs, and fire
departments because there is the potential to have data entry/storage
limited to one entity, thus saving time and resources, and limiting the
potential for error.  EPA is urged to attempt to grant the greatest
flexibility in establishing guidance. [140]

This proposal would allow for submission of Tier II information to one
agency, which would disseminate that information to the other receiving
agencies.  It addresses the need for public access and availability of
information to local emergency response personnel.  This is a good idea
that will save duplicative efforts of SERCs and LEPCs where data
management is concerned. [147]

We concur with EPA’s goal to explore information-sharing partnerships.
[167, 180]

The proposed streamlining of the filing process will lower compliance
burdens. [L05]

Support with reservations

We encourage EPA to investigate the possibilities of a joint electronic
database.  However, EPA should remember that many fire departments and
LEPCs would not have access to an electronic database due to lack of
computer equipment, trained computer personnel, and access to the
Internet.  EPA should consider ways to address these concerns, possibly
through grants, before implementing such databases. Since the CAMEO
system is already in place in many fire departments, LEPCs, and SERCs,
any electronic databases should be compatible with that system. [011,
57]

It may be beneficial to allow for joint access to information submitted
under sections 311 and 312 to the SERC, LEPC and fire department;
however, our experience with CAMEO and other databases has not been
successful.  It is important to continue to allow a facility to report
using the current forms (as opposed to requiring use of a joint
database) until such time as reliable systems and databases can be
developed.  Issues such as confidential business information (required
to be reported under EPCRA) and the variety of systems or databases
maintained by the SERC, LEPC, and fire department that could be required
of a regulated facility need to be resolved prior to EPA actively
encouraging joint databases.  In addition, providing access to a SERC,
LEPC, or local fire department to a facility’s database for MSDSs is
unlikely to streamline reporting by the facility.  Necessary training of
the SERC, LEPC, or fire department, system updates, and measures to
insure that access is uninterrupted even in an emergency could increase
reporting burdens for facilities. [105]

We support the concept of local/state partnerships for shared databases
and data management.  This would not only leverage resources more
effectively, but would also promote better data quality.  However,
states should be provided maximum flexibility to manage data in the
manner that is most effective for the state and local government and not
be constrained by overly-burdensome bureaucratic procedures. [106]

Opportunities seem to lie ahead for allowing partnerships for electronic
submissions.  When a SERC, LEPC, and fire department can access a Tier
II database, these three organizations should be allowed to take
advantage of technology that seemed impossible when EPCRA was adopted.
In an under-funded program, it will be complicated to take advantage of
electronic submissions. Many volunteer fire departments may never have
official Internet access to use the inventory data in an emergency. 

Requiring written information and public notice of such partnerships
places a burden where none is necessary.  If partnerships are
established, the notices should appear in the SERC/LEPC industry
inventory instructions.  The public is not really affected in that they
will be provided a hard copy, or during the course of business the SERC
or LEPC will advise them that the information can be more quickly
received by accessing an electronic database, if the SERC/LEPC fire
departments determine that it should be a publicly accessible database
(There are many officials who have expressed concern that terrorists may
access such information.).  Some members also feel that this is an
additional unfunded mandate.

Based on the above, some type of paper submission will probably continue
to be necessary for the foreseeable future.  Use of MOUs seems too
limiting.  Perhaps the terminology could include partnership agreements
and contracts.  Someone will need to agree to house and maintain the
database for all current recipients. [119, 129]

The option to develop partnership programs for joint submissions already
exists; however, some of the proposed options are burdensome.  All three
recipients need to be in agreement throughout a state or increased
burdens will be experienced and enforcement programs will be
jeopardized. [119, 129]

I think partnerships are great, but if everyone does not pull their own
weight the partnership falls apart.  If you are going to require more,
then funding should be available to match the requirements. [129a]

The partnership identified by EPA is an excellent idea and should be
further explored by the Agency.  The idea, as presented in the preamble,
would appear to reduce the burden on the regulated community and would
go far in making inventory information more readily available to the
public, possibly via the World Wide Web.  If promulgated, the
partnership should be voluntary to accommodate those regulated
facilities that may not have an electronic database capability or to
accommodate the different levels of funding available to the state and
local authorities for establishing and maintaining a database. [133]

We support a statewide system for submittal of information, but do not
support a voluntary, fragmented program where each of 120 LEPCs or 800
fire departments decide on a different, limited partnership.  Such an
approach would create confusion, defeat the purpose of reporting, and
create a burden on the SERC. [L13]

Oppose

Under present circumstances, a majority of the local groups would not
have the time, equipment, or training to be completely accessible to an
electronic database. [011]

LEPCs and fire departments are probably not going to spend their time
establishing formal partnerships and Memorandums of Understanding.  We
don’t feel we need the structure to share information and help one
another.  The only formal document that we all work on is the community
emergency response plan that incorporates the information that EPCRA is
concerned with. [18]

We have always provided assistance to facilities in compliance paperwork
and other actions.  We feel that a centralized compliance point would
take away the working relationship that we have with our facilities.
[096]

We do not support this proposal which would change the requirement that
facilities report MSDS and TIER II reports to three entities (i.e. the
SERC, LEPC and fire department).  The proposal to permit submission to
one of the three entities or to a central database would impose a
significant additional burden on governmental entities.  The
establishment of partnerships between the “entities” would be
particularly difficult in Connecticut which has 155 LEPCs. [145]

Maine has struggled with data entry since EPCRA began.  We intended to
do data entry at state level and provide copies to LEPCs via diskette
transfer from CAMEO to CAMEO.  We have learned several hard lessons from
this.  The sheer volume means some data is very delayed getting to LEPCs
because there is so much to do.  If it is impossible to complete data
entry and updating of an electronic data base in a small state on a
timely basis, expecting a central clearinghouse to be updated and
provide access to information on a timely basis is not feasible.  Of
Maine’s 16 LEPCs, less than half actively use electronic transmission
of communication on a regular basis.  Of Maine’s 456 fire departments,
about 1/4 to 1/3 have a computer.  They don’t have funding to provide
it and only about 5 percent have full-time staff.   Joint access to
information is not an expectation.

Further, CAMEO does not allow an updating function to occur. 
Transferred information for a facility becomes an additional facility
with duplication of existing data.  Accordingly, most LEPCs actively
using CAMEO have decided to update their own data, so duplication of
activities have not been eliminated.  We have attempted to work with EPA
Region 1, technical support, and CAMEO technicians without resolution. 
This would have accomplished the elimination of a duplication of
efforts.  Perhaps if EPA committed to improving CAMEO to accomplish data
transfers more effectively, some of this duplication could be
eliminated.

I hope other states will inform EPA if they have been overburdened with
public requests for EPCRA information.  Maine certainly has not.  Making
data accessible on the Internet has not been identified as a high
priority.

The establishment of partnerships also establishes situations where some
facilities are treated differently than others.  Maine would find it
very difficult to appropriately inform facilities in isolated situations
of different reporting requirements that apply to them because of these
partnerships.  In many instances, a corporate headquarters completes the
reporting for up to 175 individual facilities in their company.  It
would be extremely difficult for these companies to modify their
reporting to reflect differing situations concerning partnerships. 
Monitoring, verifying, and correcting submissions would quickly offset
any savings realized.

This will reduce reporting burdens for some facilities, but information
would not be available to local fire departments, LEPC’s or the SERC
on a timely basis.  There are no public health and safety benefits from
this proposal.  It will reduce costs to individuals and businesses. 
However, costs to the government will not be reduced if you consider
government could not have access to emergency information on a timely
basis for planning or responding.  The proposal provides no benefits to
EPCRA’s environmental goals.  States would need flexible options. 
[177]

Increasing flexibility to streamline compliance continues to guarantee
that reporting becomes useless.  The intent is to protect the public and
we believe the public is now being protected.  To allow less consistency
would simply cause obsolescence of the system.  The idea of having
reporting to an entity which would allow SERC, LEPCs, and fire
department to obtain information simply would not work.  If information
is not provided to LEPCs, fire departments, and SERC, the information
will be lost and you may have streamlined middle policy and pleased
major reporting entities but you will destroy the protection of the
population. [OC-4]

Agency Response

The main reason that the Agency proposed the option of joint access is
to reduce burden on the regulated community.  This option may also
reduce information management burden on some implementing agencies. 
That is, if a SERC takes the responsibility to develop a reporting
format for facilities to submit Tier II or the equivalent State form,
then the LEPCs and the fire departments may be able to access the
information on-line.  If the LEPCs and/or the fire departments do not
have the capability to access the information on-line, then the States
may provide the Tier II information to these entities on diskettes or
hard copy.  

At the time of the June 1998 proposed rule, only few States were
accepting Tier II or the State form electronically.  At the present
time, many States have developed their own electronic reporting system
or using EPA’s Tier II reporting system (Tier2 Submit).  EPA is aware
that some of these States are accepting Tier II on-line.  EPA is
encouraging these States to explore ways to have joint access to the
information with the LEPCs and the fire departments.  EPA assumes that
since the time of the proposed rule, most of the LEPCs and the fire
departments have the capability to accept Tier II electronically.  For
those that do not have the capability, States may find other ways (i.e.,
hard copies or diskettes) to provide access to these entities.  This
eliminates searching through hundreds of papers during an emergency
situation. 

EPA understands that funding may be a problem in developing
partnerships.  Since EPCRA program is more mature than it was ten years
ago, many States may have funding available through State reporting fee
system, federal grants etc.  EPA is encouraging States to use the money
available from these to develop a database system and set up access to
information for LEPCs and fire departments.   

B.2.	Comments on draft guidance for partnership programs

We encourage EPA to develop guidance for partnership programs for joint
access to information. Although we currently lack the resources to
establish a statewide database of Tier II chemical information to share
with LEPCs and fire departments, this type of project is a long-term
goal.  It would be very useful to have guidance from EPA in advance of
establishing such partnerships to reduce the data management burdens of
fire departments and LEPCs.  We encourage EPA to consider providing
grant funding to states and local agencies to develop such partnerships;
funding is especially critical for development of electronic databases
and computer networks.  As for how the partnerships should be
established, we favor the suggestion to require written documents, such
as Memoranda of Understanding, to ensure that all parties understand
their obligations. [118]

California adopted a chemical inventory reporting program in 1986 that
regulates approximately 110,000 businesses.  We could not possibly
manage 110,000 inventory reports, therefore a single point of submission
at the local level was established.  California Health and Safety Code
Chapter 6.95 (HSC), Section 25506 (b) states that:

“Any person who files an inventory form required under Section 25509
with the administering agency shall be deemed to have filed the
inventory form required by subsection (a) of Section 11022 of Title 42
of the United States Code with the state emergency response commission
and emergency planning committee established pursuant to Section 11001
of Title 42 of the United States Code.”

To allow SERC and LEPC access to these inventories HSC 25506 (a) states:

“The administering agency shall transmit copies of the entire business
plan or any information contained in the business plan to any requesting
state or local agency.”

However, the statute currently does not necessitate the use of an
electronic database for the transmission of this data.  It is possible
that such a database will be developed within the next five years, but,
with the different electronic capabilities throughout the state, it is
not feasible currently.  We suggest that EPA place flexibility, allowing
for non electronic means of streamline submission, into their guidance. 
OES system has been in place for 10 years, providing the community,
first responders, and the state with right-to-know information. [L15]

Agency Response

As stated in the preamble to the proposed rule, States are given the
flexibility to set up the EPCRA program as needed in each of the
community in their States.  None of the options provided in the draft
guidance of the proposed rule is a requirement.  States are allowed to
choose any or all of the options to implement the program.  The Agency
is encouraging States to choose any of the options provided to reduce
burden on regulated community and on all three entities.  

B.3.	Implementation of streamlined submittal guidance in conjunction
with the guidance for electronic submittal of EPCRA sections 311 and 312
information

A few commenters stated that they generally support electronic filing. 
They had reservations about the feasibility of such systems for all
communities.  One commenter stated that EPA should provide the database.

It makes sense to notify the regulated community and the public so that
they are aware of, and can put to use, the streamlined submittal option.
 The question is how to do this.  EPA needs to create a marketing plan
for this.  The website project termed the Better BOLDER Project would be
an important first step in accomplishing these goals. [034]

The electronic submission of EPCRA section 311 and 312 information
should be available as an option as soon as practicable when it is
technically feasible.  It is unlikely that smaller facilities will have
this capability in the near future and for that reason this should
remain optional.  Problems regarding certification, confidential
location, and trade secret information will most likely be resolved
through advances in computer technology. [061]

We support and encourage electronic submission of EPCRA reports.  EPA
should develop the infrastructure needed to manage information
electronically. [097]

We are generally supportive of electronic submittal.  Again, this is a
three-party agreement and one party may need to receive a paper record. 
To avoid placing the burden on government as an unfunded mandate, the
final regulation should state that paper copies as needed will be
provided by the owner/operator. [119]

Restricting data submittals to a centralized database would possibly
work well for states that have established, centralized data programs,
but this flexibility should be extended to non-computerized systems to
meet the needs of others.  As suggested by EPA, this could include
allowing local fire departments to establish partnerships with LEPCs, so
that regulated facilities could meet the need to submit forms to both
bodies by submitting one form to one body.  This will work well for many
counties in North Carolina where fire departments are closely linked to
the emergency management offices that support LEPCs by maintaining EPCRA
section 311 and 312 reporting information. [140]

California adopted an inventory reporting program in 1986 that regulates
approximately 110,000 businesses.  We could not possibly manage 110,000
inventory reports; therefore, a single point of submission at the local
level was established.  California Health Safety Code Chapter 6.95
(HSC), Section 25506 (b) states that:

“Any person who files an inventory form required under Section 25509
with the administering agency shall be deemed to have filed the
inventory form required by subsection (a) of Section 11022 of Title 42
of the United States Code with the state emergency response commission
and emergency planning committee established pursuant to Section 11001
of Title 42 of the United States Code.”

To allow state emergency response committee (SERC) and local emergency
planning committee (LEPC) access to these inventories HSC 25506 (a)
states:

“The administering agency shall transmit copies of the entire business
plan or any information contained in the business plan to any requesting
state or local agency.”

However, the statute currently does not necessitate the use of an
electronic database for the transmission of this data.  It is possible
that such a database will be developed within the next five years, but
currently with the different electronic capabilities throughout the
state it is not feasible.

We suggest that EPA place flexibility, allowing for non electronic means
of streamline submission, into their guidance.  Our system has been in
place for 10 years, providing the community, first responders, and the
state with right-to-know information. [OC-6]

Agency Response

As stated in EPA’s response in the previous section, States may or may
not choose any of the options suggested by EPA to implement the program.
 Since the publication of the proposed rule, the Agency developed an
electronic reporting system, Tier2 Submit, which many States use.  Other
States have developed their own electronic reporting which they require
facilities to use.   States are given the flexibility to implement the
EPCRA program as needed in their States for emergency planning and
response.  

B.4.	Software programs used to obtain and store 311 and 312 reporting
data

There are several electronic reporting systems on the market.  There
should be some way of looking at these systems for system compatibility.
 The three primary systems seem to be SDS EM2000TM (new player), EIS,
and CAMEO.  If we make CAMEO the main player and ensure integration of
EIS and SDS EM2000TM into a CAMEO system, we will cover an estimated 90
percent of the electronic reporting systems on the market.  Each LEPC
can select the one best suited for its use and they can partner with the
state in the final selection of the statewide system. [014]

Since the CAMEO system is already in place in many fire departments,
LEPCs, and SERCs, any electronic databases should be compatible with
that system. [031]

We have been strong advocates of electronic filing and offer a service
to all facilities within the city of preparing Tier II forms with the
Tier II 5.0 software.  This has been a tremendous help to small and
larger facilities.  We have every facility’s Tier II form inventory
data stored in our software.  We adopted this posture to ease the data
transfer problems into CAMEO.  Each year we call or get called to print
out their forms.  The facility is asked for any changes or updates and
is responsible for proofing and signing.  This process insures a more
accurate form since errors are corrected in the master files as they are
found.  I would suggest that future versions of Tier II 5.0 and Tier II
Windows retain, as part of the file structure, the name and title of the
person who signed the form.  It currently is not saved. [048]

Our data are currently maintained in CAMEO and are a major part of our
emergency response data.  The information is maintained on a secure net
with 24-hour access for our emergency responders. [096]

Kansas has a software program developed to allow facilities to submit
Tier II information by diskette.  The March 1, 1998, Tier II submittal
was the first reporting period where facilities were able to use the
software.  When technology exists within the Kansas Department of Health
and Environment, we will evaluate the possibility of facilities
submitting electronically. [108]

We currently enter hard copy data from Tier II forms into the CAMEO
Windows data base.  If electronic submittal of Tier II information is
adopted, we recommend EPA design appropriate software programs for
conversion of submitted data directly into the CAMEO data base to ease
data entry requirements. [143]

Agency Response

		Since the proposed rule was published in June 1998, EPA developed an
electronic reporting software, Tier2 Submit. A new version of this
software is developed for every reporting year to incorporate new state
specific fields. Tier2 Submit is designed to export Tier II Chemical
inventory data into the emergency planning software - CAMEOfm.  As
stated earlier in this document, States may use Tier2 Submit or States
may develop their own reporting system.  Tier2 Submit contains all of
the data elements required by federal EPA regulations, optional data
elements which are commonly required by the States, and also custom
fields to accommodate additional data elements required by individual
States.   For complete details and instructions on how to download Tier2
Submit, visit EPA’s website at   HYPERLINK
"http://www.epa.gov/emergencies/content/epcra/tier2.htm" 
www.epa.gov/emergencies/content/epcra/tier2.htm .  The Agency website
also includes links to the State reporting requirements.  

  

B.5.	Information systems to ensure timely and joint receipt of
information by SERCs, LEPCs, and fire departments

Several commenters provided information on existing state systems.  They
noted that EPA’s goal of timely access for all parties is currently
unrealistic because of the time required to enter and check data.  Other
commenters said that such systems, while desirable, will not reach many
fire departments and LEPCs because they lack the resources for Internet
access.  One LEPC stated that it would continue to require reports if a
state system existed.

We encourage EPA to investigate the possibilities of a joint electronic
database.  However, EPA should remember that many fire departments and
LEPCs would not have access to an electronic database due to the lack of
computer equipment, lack of trained computer personnel, and lack of
access to the Internet.  EPA should consider ways to address these
concerns, possibly through grants, before implementing such databases. 
Since the CAMEO system is already in place in many Fire Departments,
LEPCs, and SERCs, any electronic databases should be compatible with
that system. [009, 031]

If the SERCs, LEPCs, and fire departments had unrestricted access to a
statewide electronic database, then for any facility in the state,
timely submission to the central electronic database could constitute
timely submission to each entity under EPCRA.  In addition, the portions
of this electronic database that are the data elements the public has a
right to know under EPCRA should be made available to the public via the
Internet and at the LEPC or SERC.  As a facility opens or changes
chemical processes, the real-time data can be uploaded via Internet or
diskette to the database.  This can fulfill the section 311
requirements, too.  This is what the EPA-funded BOLDER Project will soon
do.  

In addition, the NRT should either sponsor or have access to this
database.  Recently, when Texas City received a terrorist bomb threat,
FEMA and the FBI contacted EPA Region 6 to determine what chemicals
might be involved, and EPA had no idea!  EPA should host the electronic
data warehouse.  This ends the issue of unfunded mandates and provides
for regularity in databases.  Most federal environmental laws are
EPA’s responsibility, and EPA is web-enabling much of this
information.  It is time to do the same for EPCRA chemical storage and
hazard information, to give this information the same and equal
treatment. [034]

Timely submission to the joint database would constitute timely
submission to all three entities. [061]

If this proposal required the sharing of hard copy submissions, then it
would place an unreasonable burden on the state and LEPC.  Individual
determinations by LEPCs and fire departments as to whether they want
copies of section 311/312 information/forms will also increase the
burden on the SERCs.  SERCs will have to track which agencies have
requested what information from which facility and will thus complicate
SERC compliance activities and actions.  If a computer database could be
used for the joint access to information, then it should be manageable
from a workload perspective.  A statewide database would appear to be
more practicable than many individual databases managed at the local
level.  If the intent is to have the SERC responsible for the
dissemination of information to LEPCs and local fire departments that do
not have Internet capabilities, this would also be a considerable
administrative burden as many states have hundreds of fire departments,
many of them volunteer.  Wisconsin has over 800 fire departments, most
of whom do not have Internet capabilities, and less than half of the
LEPCs in Wisconsin have Internet capability.  One entity, in most
instances this would most likely be the SERC, should have the
responsibility for the development and maintenance of one statewide
database. [061]

Wisconsin has a statewide database that can be accessed through the
Internet.  Joint access to one database is feasible only if all parties
have access to the database. [061]

This LEPC plans to remain an individual compliance point for EPCRA
reporting.  If the SERC creates a centralized database, then we will use
that for compliance checks, but will still require information to be
sent directly to us. [096]

While we would support the submission of one report to a joint database,
it is questionable whether the SERCS, LEPCS, and fire departments would
have the resources to implement such a system.  EPA should continue to
explore options to encourage the use of a joint database. [101]

We strongly agree that creation of partnerships presents an excellent
opportunity for streamlining.  However, due to current technologic and
basic operational constraints, the EPA proposed guidance as presented is
too restrictive.  We recommend that EPA consider including additional
options for partnerships.

Delaware has an established state-wide information system for managing
and distributing EPCRA information.  The system is overseen by the
Hazardous Materials Information Management Committee (HMIMC), a
committee of the Delaware SERC.  The system agreed upon and implemented
revolves around the CAMEO software; in addition to CAMEO, the system
also includes the MARPLOT and ALOHA software applications.

Within the Delaware system, each organization is assigned
responsibilities based upon their particular areas of expertise.  These
responsibilities were discussed and mutually agreed upon.  The
Department of Natural Resources and Environmental Control (DNREC) is
responsible for Hazardous Chemical Inventory, Toxic Release Inventory,
and Emergency Release Notification data.  The LEPCs (each for their
district) are responsible for special population information, plotting
facilities and special populations on maps, screenings and scenarios,
transportation route data, additional emergency contacts, and response
resources.  The 911 Fire Dispatch Centers (for each county) are
responsible for verification of address information and identification
of fire districts and cross streets for facilities.  The State Fire
School is responsible for data transfer.

Because of a variety of basic operational and technology limitations,
the most difficult step was establishment of procedures for updating and
exchanging data.  CAMEO is not currently designed for use in a
multi-user network arrangement.  As such, each organization maintains an
individual stand-alone copy.  Delaware facilities submit EPCRA reports
centrally to DNREC, which is responsible for entering the information
into CAMEO.  Information in the DNREC system is periodically downloaded
to the State Fire School, which disseminates the information to the Fire
Dispatch Centers and LEPCs statewide.  As the Fire Dispatch Centers and
LEPCs enter information for which they are responsible, information is
uploaded to the Fire School and integrated into the main CAMEO version
at DNREC.  Guidelines for entering data within the system and procedures
for logging activities were established.  In support of the system, the
Delaware SERC financed the purchase of standard computer hardware and
software for system users to facilitate data exchange.  The HMIMC
organized and provided training for system users, and continues to do so
today.

The EPA proposed guidance as presented only allows for streamlined
centralized reporting if the reports are available on the reporting
deadline to all designated recipients.  We have been working with and
discussing enhancements to our central system for several years, and
based upon our experience we do not feel the proposed EPA guidance is
realistic at this time for the following reasons:

		(1)	For all designated recipients to have access to reported data on
the reporting deadline, direct on-line electronic submission would be
required.  As EPA states, a number of Federal agencies, including EPA,
have been striving to develop methods for certification of
electronically submitted data.  This is a difficult issue, and EPA has
not yet resolved it.

		(2)	To our knowledge, an information system which can accept on-line
EPCRA submittals directly and allow multi-user access by the necessary
recipients does not currently exist.  The CAMEO system cannot currently
fulfill this role.  It has several limitations, including that it is not
currently a multi-user network system.  CAMEO could be modified, or a
new system developed, but it will take time.

		(3)	If reports are submitted on-line and are immediately available
within the system for use by emergency planners and responders, data
quality issues could pose a significant problem.  In the early years of
EPCRA reporting, Delaware also experimented with a central information
system.  Information was attempted to be entered into a database exactly
as reported and then distributed to emergency planning and response
organizations.  Because of data quality problems, this initial effort
was abandoned and the data removed from use.  Based on this experience,
quality control procedures were discussed and incorporated by the HMIMC
into the centralized information system we are using today.  Quality
assurance activities must be conducted on the data prior to distribution
for use, or confidence in the system, and eventually use of the data,
will decline and the data may eventually, be discarded or deleted.  This
is based on twelve years of experience in managing this type of system.

		(4)	As stated above, for all designated recipients to have access to
reported data on the reporting deadline, direct on-line electronic
submission would be required.  Many businesses, particularly small
businesses, will not have the capability to submit in this manner.  As
such, they would not be able to capitalize on the burden reduction
offered by centralized streamlined reporting as proposed by EPA.

Although our centralized system does not operate as outlined in the EPA
proposed guidance, it has several advantages:

		(1)	Centralized reporting regardless of the method of reporting
(paper, diskette, etc.) eases the burden on all reporting facilities,
including those small businesses which may not have adequate resources
for electronic reporting.

		(2)	Questions on reporting issues are directed to a central location,
resulting in more consistent guidance to facilities.

		(3)	Centralized reporting and data entry allows for consistent quality
assurance activities to be conducted on the data prior to use by
emergency planning and response organizations. 

		(4)	If a revision(s) is deemed necessary from a facility as a result
of quality assurance review activities, the revision(s) only needs to be
sent to the central reporting location.

		(5)	Each LEPC and fire department does not have to devote resources to
collecting and managing facility reports and dealing with reporting
issues.  Except for one, all fire departments in Delaware are volunteer
and do not typically have the resources to collect and manage EPCRA
information.  Having EPCRA information centrally submitted, quality
assured, computerized, and available 24 hours a day through trained
personnel in the 911 Fire Dispatch Centers is a more effective approach.
 In the event a fire department wants facility information for
pre-planning or other non-emergency use, the information can still be
obtained from the 911 Fire Dispatch Centers, or from other system users
such as the LEPCs or DNREC.

		(6)	Access and retrieval of data in an emergency situation is
improved.  With Delaware’s system, the number of system users is
limited.  Through training and frequent use, a limited number of system
users can maintain a level of proficiency within the system that a
multitude of casual users could not.

	

		(7)	Delaware collects reports electronically on computer diskette from
a large number of facilities.  If these reports were not collected
centrally, paper copies would also have to be generated for submission
to other designated recipients.

One of the critical elements set forth by EPA in the proposed guidance
is that any partnership program for joint access to information would
need to ensure that the SERC, the LEPC, and the fire department each
receive or have direct access to Tier I and Tier II information by March
1.  We recommend that EPA consider additional flexibility in this area. 
In Delaware, it currently takes approximately 6 months from the March 1
deadline for all submittals to be quality assured (including obtaining
necessary revisions from facilities), entered into CAMEO, and
distributed.  As the percentage of facilities reporting electronically
via diskette continues to increase, we anticipate this processing time
will decrease.  However, it would still take several months if all
facilities reported on diskette.  Several reasons for EPA to consider
flexibility on this point, such as the lack of time for quality
assurance, have already been discussed.  In addition, we recommend EPA
also consider the following:

	(1)	As noted by EPA, much of the data from facilities does not change
from year to year.  As such, immediate access to the data for all
designated recipients by the March 1 deadline would not be of
significance for much of the data.

	(2)	The information submitted on Tier I and Tier II reports is in
reality historical information and potentially outdated upon receipt. 
The information represents chemical use and storage activities at the
facility during the previous calendar year.  Reported chemicals may have
already been removed from the site.  Additional chemicals may have been
brought on site above the threshold, but not yet been reported (these
new chemicals would eventually have to be reported under section 311,
but not for 3 months).  Most importantly, chemical amounts and storage
locations could have already changed significantly prior to submission
of the report.  Unless these changes are considered to impact emergency
planning activities of the LEPCS, there is no requirement for these
types of changes to be reported until the following year.  These points
are not meant to negate the importance of the data, but rather to point
out that information reported under Sections 311 and 312 can only be
relied upon as initial information concerning potential substances and
storage situations at reporting facilities.  In an emergency, responders
will always be required to take a conservative approach and attempt to
obtain the most recent information from contacts at the facility.

There are many situations where hazardous chemicals are used and stored
by facilities, but because of the conditions of storage or other
factors, the chemicals are not reportable.  For example, the exemption
for products “packaged in the same form and concentration as products,
packaged for distribution and use by the general public” allows for
numerous situations where large quantities of hazardous chemicals above
the threshold amount are not reportable.  Hazardous chemical inventory
reports under sections 311 and 312 do not present a complete picture for
a facility. [104]

With regard to certification, signing submissions to all three
recipients of the data seems unnecessary.  In most cases, the signature
recipient could be either the SERC or the LEPC.  The organization that
would be most likely to pursue enforcement could be designated by the
state to receive the signature copy.  Signed copies could be submitted
once every three years with electronic copies being submitted in the
interim years, unless an inventory revision was made.  Technically it
would be beneficial if the certified revisions could be a part of the
311 submission as the SERC/LEPC/fire departments must be notified within
ninety days (which is too long).  By allowing this alternative, the
March 1 burden to track changes would be diffused throughout the year.
[119]

When you talk about unrestricted access to statewide electronic
database, you must consider there are some who have no electronic
databases, let alone access. [129a]

We would like for EPA to consider its definition of “timely” access,
in relationship to the “timeliness” that exists in the current
system, which is not necessarily or realistically immediate. [140]

The Florida SERC has established a statewide database of EPCRA sections
311 and 312 information that it routinely shares with LEPCs, local
governments, and the public.  Advances in technology have greatly
enhanced the accessibility and efficiency of this information and the
SERC continues to explore methods to improve its data management
practices.  However, under the current regulations, submission of
reporting information to the SERC does not relieve facilities from the
obligation to report to the LEPCs and local fire departments.  In
previous discussions with EPA, the Florida SERC was advised that it
could not serve as the EPCRA owner/operator’s “agent” to provide
required reporting information to the LEPCs and fire departments.

The deadline to report EPCRA information also makes joint access and
submission problematic. It is difficult to develop a system in which
EPCRA data is jointly “received” by all required parties by the
annual March 1 deadline.  Florida encourages EPA to continue to explore
methods to revise its regulations to better reflect the use of
technology, but reminds the agency that development, administration and
maintenance of automated data systems can be quite expensive. Florida
asks the agency to reflect on the level of funds committed to its recent
initiative to establish a centralize automated database for risk
management plans, or its ongoing investment in the section 313 Toxic
Release Inventory database, both of which include a much smaller
universe of reporters, as an indication of the costs which may be
associated with automated data submission.  Without dedicated federal
resources, few SERCs, LEPCs, or fire departments will be able to take
advantage of this option. [178]

We support efforts at partnership but point out that this proposal is
dependent upon unrestricted access to a central database.  In Kentucky
there are over 800 volunteer fire departments, and our LEPCs are all
volunteers.  We know that having access to a central database would be
problematic on a statewide basis, therefore defeating the purpose of
reporting. [L13]

Agency Response

As stated earlier in this document, EPA suggested the idea for joint
access to the information mainly to reduce reporting burden on regulated
community and to reduce information management burden for LEPCs and fire
departments.  EPA understands that some LEPCs and fire departments do
not have the training or resources for electronic access.  Since the
proposed rule was published, EPA became aware that many LEPCs and fire
department do have computer equipment or other resources to manage the
information submitted to them.  For those LEPCs and fire departments
that do not have the capability of electronic access, the States may
provide Tier II reports to these entities in hard copy.  States are
given the flexibility to choose any method to establish joint access. 
Whichever way the States choose to establish partnership or joint access
to the information, it must meet the reporting deadline specified in the
statute, that is, March 1.  To accomplish this, States may want to
revise the State right-to-know program to require facilities to submit
Tier II or the State equivalent form before March 1 so that States will
have enough time to provide access to the other two entities by March 1,
therefore meeting the statutory deadline.  EPA assumes that most of the
States do have the capability to provide timely access to the Tier II
information to LEPCs and the fire departments since these States are
already requiring electronic submissions from facilities.  

As mentioned earlier in this document, forming partnerships or joint
access is not a requirement.  Prior to the 1998 proposed rule, some
States and local agencies have requested EPA to provide flexibility to
implement the program as necessary in each State.  EPA responded to that
request by providing draft guidance in the preamble to the proposed
rule.  EPA specifically stated that States may choose any of the
reporting options provided whether or not EPA finalize the guidance. 
EPA is aware that some States already adopted some of the options
provided in the proposed guidance. 

		

B.6.	Use of MOUs or other written documents to form partnership programs

Commenters were divided on whether MOUs or written documents would be
needed.

The partnerships should be formally delineated through MOUs. [034]

One database, maintained by the SERC, would seem to preclude the need
for formal partnerships or MOUs. [061]

Would establishment of a formal MOU for management of information allow
SERCS, LEPCs, or fire departments to direct submittals to other
locations? (Presently, SERCS, LEPCs, and fire departments can forward
reports to a central agency or organization for processing after they
are received.  Could they simply be directed to that central location to
begin with?)

EPA has the authority to establish infinite thresholds for certain
substances.  Could this authority be used to establish infinite
thresholds for all substances for reporting to an LEPC or a fire
department if they have entered into a formal MOU for collection and
management of the information by another entity? [104]

Requiring written information and public notice of such partnerships
places a burden where none is necessary.  If partnerships are
established, the notices should appear in the SERC/LEPC industry
inventory instruction books. [129]

Some type of paper submission will probably continue to be necessary
during the foreseeable future.  Use of MOUs seems too limiting.  Perhaps
the terminology could include partnership agreements and contracts.
[129]

We endorse the principle that such agreements should be in writing, thus
defining expectations and providing facilities protection. [140]

Agency Response

		The proposed option to have MOUs or other written documents showing
the roles and responsibilities of each entity may be needed for assuring
the regulated community that submitting Tier II to one entity would
satisfy the reporting requirements under EPCRA section 312.  The States
are given the flexibility to develop any written agreement as necessary.
 

B.7.	Restricting participation in partnerships

Initially, only Tier II reports that do not contain confidential
information should be allowed.  Those requesting confidential status
should be instructed to continue to submit their “confidential
location forms “as they have in the past.  This would prevent
accidental or hacker access of information which companies wish to have
protected. [119]

Agency Response

		Those States that wish to form partnerships should determine how they
would like to handle reports that contain confidential location
information.

B.8.	Technical database management issues

Commenters raised a number of issues related to database management. 
Several stated that a single standard is needed; if each develops its
own standard, the burden on industry will increase.  Other comments
repeated concerns about the costs of databases and the LEPCs’ and fire
departments’ lack of access.  One commenter sought guidance on how
long records must be maintained.

Because the CAMEO system is already in place in many fire departments,
LEPCs, and SERCs, any electronic databases should be compatible with
that system. [011]

EPA should be aware that letters referencing previous submittals would
not be compatible with electronic databases and would require manual
updating.  If the EPA is serious about building electronic databases,
the issue of referencing previous submittals by letter might have to be
revisited. [011, 031]

If EPA adopts an electronic submission requirement, that requirement
should take into account the data transfer needs of local and state
agencies -- insure that they interface with CAMEO, for example.  Having
a electronic form is little better than paper if it cannot be processed
in the existing software system.  That requirement would better be left
to the states, leaving the SERCs to determine the appropriate electronic
form software to be used. [048]

Facilities submitting Tier II information could vary as much as 52
different ways, depending on the various requirements of each state. 
This variety can be standardized if this electronic database is
maintained centrally by EPA or another agency.  This approach would
provide consistent information especially if the database would rejects
incomplete electronic data submissions. [123]

We are very concerned because Ohio requires a map as a part of its Tier
II submission.  Fire officials have repeatedly commented that these site
maps are one of the top items that make EPCRA inventory reports useful
to them.  Ohio has recently placed its industry instruction book on its
home page with downloadable forms.  However, we are still four or five
years away from being able to handle site maps electronically.

In an under-funded program, it will be complicated to take advantage of
electronic submissions. Many volunteer fire departments (and some
companies) may never have official Internet access to use the
inventories in an emergency. [129]

Someone will need to agree to house and maintain the database for all
current recipients. [129]

With EPCRA now in its tenth or eleventh year, the paper reports are
beginning to become somewhat of a problem.  As we continue our efforts
to have an active compliance program subsequently receiving more and
more reports annually, we find that we are searching for ways to manage
the files.  How long do we absolutely have to keep the facility records
in hard copy or original copy sent to us by the facilities?  After a few
years, can we scan the section 312 reports into the computer and dispose
of the original?

What we would like to do is be able to scan the 312 report onto the
computer and save it either to floppy or to CD.  This would solve our
storage problems and also still allow us to access the facility records
for future information requests or compliance questions.  This is an
item that needs to be included in the LEPC Procedure Manual. [129a]

One option for a jointly accessed data base would be to define a
standard file format.  The file could then be imported into the data
management tool of each organization’s choice.  The recipients of the
information (SERC, LEPC, and fire department) could make relevant
decisions regarding what information is important for their specific
needs.  If properly developed, with the participation of all involved
organizations (i.e., a joint partnership), comprehensive inventory and
hazard information would be available in an easily managed format.  The
partnership could establish and refine the format for the electronic
data, and provide ongoing support with development of data management
tools. [133]

Agency Response

		As stated earlier in this document, since the proposed rule was
published, EPA has developed an electronic reporting system, Tier2
Submit which is compatible with CAMEO.  EPA is also aware that some
States also developed their own reporting system which is compatible
with CAMEO.  

		The commenter raised that EPA should maintain the reporting system
rather than each State requiring submission created by each State. 
EPCRA was created to prepare and protect the public from emergency
release of extremely hazardous substances.  Since EPCRA requires LEPC to
develop emergency response plans for each community, the States and the
locals need the information reported under EPCRA.  Therefore, the States
are given the flexibility to implement the program as necessary for each
community in their State.  Further, the statute requires facilities to
submit information to the SERC, LEPC and the fire department.  

There is no requirement under EPCRA section 312 for facilities or for
the implementing agencies about recordkeeping.  States may include this
requirement in the State right-to-know regulations if the States wish to
do so.  

C.	Electronic Submittal for EPCRA Sections 311 and 312 Reporting

		Since the beginning of the EPCRA program, the Agency encouraged States
to implement the program as necessary to meet the goals of EPCRA, to
prepare and respond to emergency releases of extremely hazardous
substances and provide information on potential chemical risks in their
community.  States were given the flexibility to implement the program
such as adding more chemicals, setting lower reporting thresholds, etc. 
 Over the years, States have expressed that handling thousands of hard
copy submissions of Tier I/II form is too much burden on them.  So some
States have requested EPA to allow them to create an electronic
reporting format for facilities to use for complying with EPCRA section
312.  Electronic reporting would also reduce burden on facilities since
they don’t have to re-create most of the information from year to
year.  Facilities would have to enter most of the information on the
Tier II form only in the first year and then revise the information as
needed in subsequent years.  Also, in order to achieve the option
discussed in the previous section of this document, joint access,
electronic reporting is necessary if the State choose to do so.  

Many commenters supported electronic submittals.  Some supported it, but
noted that it would not be practical for many LEPCs, fire departments,
and smaller facilities.  A number of commenters opposed the idea because
of the burden on state and local agencies.  Other commenters provided
support for and ideas about certification for electronic submissions.

Support

By allowing programs for streamlined submittal and joint access to
section 311 and 312 information, electronic submittal, reporting only
changes in information rather than complete new inventories each year,
and allowing RCA UST reports to fulfill EPCRA section 312 requirements,
facilities may be more inclined to comply with reporting requirements
and work with state and local regulatory agencies.  This also would
lessen the impact on those agencies required to maintain information
regarding community right to know and extremely hazardous substances.
[012]

Submittal of Tier II reports in an electronic format is a good idea. 
This information should then be immediately accessible to update CAMEO
and GIS maps.  Reporting Tier II information that loads directly onto
commonly used software for emergency management will provide an
incentive for the LEPC to promote electronic Tier II reporting.  The
file required for mapping has a DBF suffix. [018]

We have no problems with electronic submission of section 311-312
information. [020]

We support electronic submittal, the incorporation of previous
submissions, electronic access to facility MSDSs and using section 312
to fulfill the section 311 requirements.  These proposals are much
needed advancements to streamline the reporting process and eliminate
confusion. [096]

We believe that sources should have the option of submitting the
required EPCRA information electronically.  Such an approach has been
effective in reducing the paperwork burden under other EPA reporting
regulations. [101]

In 1995, Delaware initiated a pilot project to accept Tier II
information electronically from reporting facilities.  Using a
contractor, we modified the federal Tier II software to incorporate
state-specific requirements and the results of industry comments.  Aside
from the same basic data capabilities of the federal software, the
Delaware Tier II software conducts state-specific edit checks, generates
error reports, calculates state reporting fees, generates a fee summary,
and generates a certification letter to accompany the submitted
diskettes.  Additionally, the software was designed to export directly
to our state CAMEO system.  For facilities that wish to report
electronically using their own software, we provide them with
information on the required data structure and format so they can mirror
submittals from Delaware Tier II.

For the first two years, we slowly expanded distribution of the
software.  This year, we offered the software to all reporting
facilities in Delaware.  To assist facilities that wished to submit
electronically but did not have the necessary computer capabilities,
computers and the software were made available at the LEPC offices.  Out
of approximately 1240 facilities which reported chemicals in inventory
for 1997, approximately 520 (or roughly 42 percent) submitted
electronically on diskette. 

Any facility reporting electronically must submit a diskette containing
the Tier II data alone with a signed certification letter to our central
EPCRA Reporting Program.  If an owner or operator is submitting reports
for multiple facilities, all information may be included on one
diskette.  However, a certification letter must be signed for each
facility.  Delaware also requires facilities to include site plot plans
along with Tier II reports (these are scanned into the system and made
available to all users along with the rest of the data).  Presently,
these are submitted on paper along with the diskettes, but we are
attempting to establish guidelines allowing electronic submission of
these as well.  A facility may use the Delaware Tier II software to
report under section 311, but in most cases a written letter is sent.

Concerning confidential location information, facilities simply enter
this information in the software the same as non-confidential
information.  However, there is a check box in the software for
facilities to identify the location descriptions being claimed
confidential.  When transferred into our main system, the confidential
designation is transferred along with the corresponding data.  If a
public request is received for information on a facility which reported
electronically, the information is either printed from our main CAMEO
system or from the Delaware Tier II software after loading the
facility’s data from the diskette.  During printing, the confidential
information is excluded.  Handling confidential information within
electronic submittals on diskette has not posed a problem.

Delaware has been considering the option of direct on-line submission
and would like to move in that direction.  The primary obstacle is the
certification issue.  With respect to electronic reporting, this is the
main area where EPA guidance is necessary. [104]

We support electronic submittal of data, in that it has been found to
improve data quality and provides some reduction of burden for reporting
facilities.  The submission of EPCRA section 313 data in an electronic
format has provided several benefits.  These data are submitted on disk
with a cover letter (as described in option 2), which fulfills the
signatory requirements.  For disk submittal, there are several issues
which have surfaced which may be common to electronic data management
for EPCRA sections 311 and 312.  These include the following:

		(1)	Software modifications should be implemented a minimum of 9 months
prior to the reporting deadline.  This would allow adequate time to
modify any relevant data management systems within the reporting
facility or corporate data systems from which data on the report is
extracted.  It would also allow adequate time to correct any program
errors in the software which may affect the integrity of the reported
data (such as occurred with the 1996 TRI AFR).

		(2)	A mechanism for facility verification of the data, as loaded and
managed by the regulatory agency or other entity managing the data, is
essential.  The necessity for this has been highlighted by the
observation of discrepancies in data among various databases which are
currently using TRI data.  Errors have been uncovered in public
databases for TRI data, facility location coordinates, and other
environmental data reported to and managed by state and federal
agencies.

		(3)	The electronic submission of data through the more direct approach
described in option 1 (Internet) could include certification through the
appropriate application of a Personal Identification Number.  There are
also several other issues which require resolution prior to
implementation, such as date of receipt, integrity of transmission,
point of transfer, and confidential business information security. [106]

State and local agencies should be able to require their own versions of
the Tier I and II forms, as long as the minimum information required by
EPCRA is included.  We are also in agreement that electronic versions of
the Tier I and II should be acceptable, as long as these forms meet the
minimum standards established by EPCRA. [118]

We accept electronic submissions of Tier II data on computer disk (using
the Tier II for Windows software) at this time.  We require that
facilities submit their computer disks along with a signed cover sheet
form that contains a certification statement, but we do not allow
submission of this information via the Internet because we lack the
resources for this option.  However, we would like to pursue such
options in future, so any guidance that would allow electronic
“signatures” would be desirable to allow flexibility in the future
of our program. [118]

We strongly support the development and use of sound electronic
reporting that places minimum burdens on facilities, fire departments,
LEPCs, and the SERC.  We support electronic reporting, minimization of
impact on facilities, etc.  We have been far less concerned with the
certification requirements than the information provided on the reports.
 We strongly support EPA’s resolution to overcome this apparent block
to include exploring the use of electronic signatures over Internet
secured lines. [122]

We support EPA’s proposed guidance to allow electronic submission of
MSDS and Tier II reports to reduce the paperwork burdens under EPCRA
section 311-312.  We suggest that EPA allow electronic reporting to the
SERCs, giving the SERCs the responsibility of making the reports
available to LEPCs and fire departments. [137]

We strongly support electronic submittal of the reports required.  We
currently use electronic submittal via the EPA provided software,
Tier2Win, in North and South Carolina.  All our submittals are via
diskette with a letter containing a written certification and signature.
[139]

Electronic submittal for EPCRA section 311 and 312 information is a good
idea that will assist SERCs and LEPCs in more timely processing of
annual inventory reports and allow for the automated accessibility of
chemical specific data during emergency operations.  Electronic
submittal will also increase the GIS capabilities of many jurisdictions
tasked with the management of EPCRA information.  However, EPA needs to
take the lead on this process to insure compatibility of the systems
used across state and local jurisdictional boundaries.  Also, most of
the states do not accept electronic or magnetic media submissions at
this time and have no source of funding to acquire the necessary
equipment and software for this capability. [147]

We strongly support any initiatives to streamline EPCRA sections 311 and
312 reporting.  In particular, we support the concept of allowing
facilities to submit joint reports to satisfy the requirement to file
reports with the SERC, LEPC, and local fire department.  We support
efforts to allow electronic reporting of sections 311 and 312 data,
whether on disk or by electronic submission. [153]

We support EPA’s proposals to streamline submission of information
under EPCRA sections 311 and 312.  Electronic submission of information
would reduce the burdens of reporting and facilitate prompt reporting. 
In the case of many SERCs, LEPCs, and fire departments, it is likely
that electronic submission would facilitate prompt and ready access to
the information. [L05]

Support with reservations/suggestions

We support moving forward with electronic submittals as long as SERCs
and LEPCs have the capability of downloading the information. [062, 133]

EPA indicates in its proposal that it is considering the development of
guidance on electronic submittal to satisfy EPCRA section 311-312
reporting.  Specifically, EPA is considering allowing the submittal of
this information via the Internet.  In general, we support the
flexibility of allowing electronic submission in addition to other more
traditional means.  For example, we support submitting data on disks as
a method of reporting.  We have some general concerns about electronic
submission of data via the Internet.  We support EPA’s statement that
it is not considering receiving trade secret information electronically;
this is appropriate given the very nature of the information (i.e.,
secret) and the very nature of the Internet (i.e., insecure).  Moreover,
we have some general concerns about use of the Internet as a mechanism
to submit required reporting without some protections that the e-mail
submissions actually were received.  Unfortunately, the reality today is
that some e-mail is never received; it gets lost somewhere out there in
cyberspace.  A facility can take little comfort that their submittal has
been received so that they are then in compliance if such submittals are
forever lost in a cyber black hole.  We recognize that indeed this could
also be an issue in using U.S. Mail for the delivery of required
submittals.  However, many facilities protect themselves by using the
“Return Receipt Requested” service which allows for some comfort
that the required submittal has reached its appropriate destination. 
EPA might want to consider a similar mechanism for Internet submittals
such as an electronic receipt of information.  In addition, EPA should
still allow facilities to comply the old-fashioned way (U.S. Mail) or
some other electronic form (i.e., disks) in addition to the submitting
via the Internet should the Agency finalize this aspect of the
rulemaking. [113]

We are generally supportive of electronic submittal.  Again, this is a
three-party agreement, and one party may need a paper record. [129]

We commend EPA’s efforts to develop guidance on electronic submittal
for sections 311 and 312 reporting.  However, to provide burden
reduction EPA needs to improve electronic data transfer and reduce or
eliminate the need to mail diskettes, hard copies, and certification
statements. [133]

We generally believe that electronic submittal of information would
improve the accuracy and timeliness of data collection and submittal,
but would not necessarily result in any significant reduction in
reporting burden upon regulated facilities.  The facility would need to
complete the form via a computer, then either forward it electronically
or copy it to a disk, complete a hard copy certification, and mail this
entire package.  Additionally, the number of SERCs, LEPCs, and local
fire departments that have the capability to receive an electronic
submission is probably very small, at least at this time.  EPA’s
partnership program discussed in the preamble could stimulate progress
on the part of these entities in enhancing electronic data transfer.

Electronic filing of EPCRA information would best be facilitated by an
EPA-sponsored program that provided a standard data interface for an
Internet Web site.  The development cost would be minimal, data
collection would meet EPA requirements, and localities could decide to
participate if they had the hardware available to set up a Web site.
[167, 180]

We are in favor of EPA developing guidelines on the electronic submittal
of diskettes to satisfy EPCRA sections 311 and 312 reporting.  Our LEPC
does have the capability for receiving and processing electronically
submitted data (diskettes), however, some of the issues faced by our
LEPC include 1) Tier II information not being compatible with our
current software and 2) securing the integrity of our information system
(corruption).

Submission through the Internet, while still requiring mailing of the
certification, seems to defeat the purpose.  One possible way for
electronic certification would be to develop software that would need
the owner or designated to approve the submission by assigning it a
Personal Identification Number (PIN) that was preregistered with the
appropriate agencies. [174]

Although not currently in place, we welcome the opportunity to receive
electronically submitted forms for all three entities (SERC, LEPC, and
fire departments).  The only challenge would be how to forward the
information to those organizations that do not have electronic
capabilities at this time and the establishment of a secure network
where all of the entities would have access. [L03]

Oppose

For our LEPC, computer-generated Tier II forms are accepted if written
inventory amounts in pounds or gallons and written storage information
are provided on the form.  Companies and government agencies have no
problem with adding this information with computers.  I believe total
electronic submittal is about five years away.  I can’t support this
proposal. [006]

In regards to electronic submissions of section 311 and 312 information,
I think that there are LEPCs who feel that they cannot handle this type
of submission.  Remember that LEPC members are volunteers and most are
older individuals not accustomed to computers.  Our office is
computer-driven, but even I have some problem in getting information to
download into CAMEO. [007]

Again, you are being lobbied by large, affluent companies who want
reporting done electronically.  You must remember that exceedingly few
LEPCs and fire stations have the capability of receiving electronic
reports.  Your proposal to have a common reporting station and
disbursement of information to SERCs, fire departments, and LEPCs
absolutely will not function.  As an example, none of the fourteen fire
departments in this county have the capability to accept electronic
reports.

Further, the companies lobbying for electronic reporting should remember
that prior to making an electronic report, it is necessary to have the
information on paper.  That paper report can easily be disbursed to the
appropriate departments. [010]

We are NOT in favor of electronic submission of section 311 and 312
reports. [112]

Until LEPCs and fire departments, especially the more rural volunteer
fire departments and smaller local government fire departments have the
equipment and training to receive, file, and retrieve such information,
it would be best to require hard copy reports. [165]

There are large numbers of local fire departments and LEPCs that are not
able to support electronic filing of data.  They don’t have the
computer hardware, software, or personnel.  For those looking at
enforcement actions, the certification issue becomes critical.  What
happens if a virus is included that corrupts an entire database? It
could happen.  For those not able to accept electronic filing, an
alternative method must be available.

There also are large numbers of facilities which are not able to support
electronic filing of data. They don’t have the computer hardware,
software, or personnel.  An alternative method must be available.

Maine considers the virus issue to be very important.  Also, for those
states with state forms, financial assistance and technical support
would be needed to implement a diskette submission system.  The
certification issue mentioned above might be resolved by diskette
submission with accompanying certification.

The issue of confidential location information would have to be
addressed and resolved.

The proposal may simplify reporting for some, but it will not for
others.  There will be no impact on preserving public health and safety
benefits.  The proposal may reduce costs somewhat to individuals,
businesses and government.  There will be no impact on EPCRA’s
environmental goals.  Flexible options need to be available.  This is
not a proposal that one size fits all.  The language is not the issue,
so a rewrite in plain English to reduce regulatory burden and improve
compliance is not the issue. [177]

The electronic submission of reports will cause great and considerable
damage to fire departments and LEPCs because most fire departments and
LEPCs do not have the funds for electronic acceptance of any submission.
 If electronic submission is required, then section 311-312 reports
should be totally scrapped; those reports will not be available to
protect the public.  In Richland County, none of the 14 fire departments
have the capability to accept section 311-312 reports electronically. 
Unless it is the intent of EPA to provide the appropriate equipment to
those entities, either scrap the idea or the entire reporting plan,
which is supposed to protect the residents of the counties.  The section
311-312 reports, if reported electronically, would first have to be set
down on paper and then submitted electronically, and would cause
additional work for all persons. [OC-4]

I do have a problem with electronic submittal; until the rules are
changed, there is no way the mom and pop operations can ever comply with
having to submit the information electronically. [OC-7]

Agency Response

		The Agency understands the concerns raised by the commenters on
electronic reporting.  Prior to the proposed rule, EPA received request
from many States and local agencies that the Agency should develop an
electronic reporting system so that the burden of information management
at the State and local level will be reduced.  These State and local
agencies also requested EPA to provide flexibility to manage the EPCRA
program, which includes allowing States to develop their own electronic
reporting format.  This is the reason that EPA provided draft guidance
in the preamble to the proposed rule.  In that preamble, EPA advised
States and local agencies to choose any options provided that the
statutory and regulatory requirements are met.  As per EPA’s
suggestions, many States have created their own electronic reporting
format or use EPA’s electronic reporting format, Tier2 Submit.  EPA is
aware that some States now require on-line reporting or submission via
diskettes.  Only few States accept paper submissions of Tier II reports.
 EPA encourages States to accommodate those facilities that do not have
the capabilities to submit Tier II electronically by allowing these
facilities to submit paper copies of section 312 report.  

C.1.	Certification

Most organizations require a signature along with a statement that MSDSs
for reported material are on site and available if requested, so a
letter may have to be sent anyway.  It appears that the signature block
is eliminated, but it may still be required by organizations not
recognizing electronic signatures. [123]

Regarding certification, signing submissions to all three recipients
seems unnecessary.  In most cases, the signature recipient could be
either the SERC or the LEPC.  The organization that would be most likely
to pursue enforcement could be designated by the state to receive the
signature copy.  Signed copies could be submitted once every three years
with electronic copies being submitted in the interim years; unless an
inventory revision was made.  Technically it would be beneficial if the
certified revisions could be a part of the 311 submission as the
SERC/LEPC/fire departments must be notified within ninety days (which is
too long).  By allowing this alternative, the March 1 burden to track
changes would be diffused throughout the year.  This would be a great
benefit to all SERCs and LEPCS.

Regarding confidentiality, initially only Tier II reports that do not
contain confidential information should be allowed.  Those requesting
confidential status should be instructed to continue to submit their
“confidential location forms” as they have in the past.  This would
prevent accidental or hacker access of information which companies wish
to have protected. [129]

EPA is seeking comments on the certification statement related to the
electronic submission.  The need to certify electronic submissions is a
common element associated with other forms of electronic submissions. 
In recent years, the IRS has allowed individuals to submit annual
Federal income tax reports electronically.  The IRS requires the
submission of a signed certification statement (IRS Form 8453-0L).  To
avoid the need for this certification submittal, EPA might consider:

		(1)	Requiring the facility to retain a signed certification at the
facility with other documentation supporting the report.  This
certification statement would be available for review by federal, state,
or local authorities; or alternatively,

		(2)	Deleting the requirement altogether for the certification
statement.  The certification statement appears to be a regulatory
requirement and not specifically required by the statute.  It would
appear to be within EPA’s authority to delete this requirement and
allow the report submitted by the facility to stand on its own.  Lack of
a certification statement would not appear to have an effect upon an
enforcement action taken for failure to provide the required
information. [133]

We endorse the use of a certification letter accompanying disk submittal
of reporting information in that several North Carolina LEPCs and the NC
SERC currently use this method.  The NC SERC is not currently prepared
to receive information via the Internet.  As our program matures,
Internet access will be carefully considered.  While there are needs for
public access, our requests for information from the public have been
moderate over the years, and our Division of Emergency Management is
carefully considering the threat of terrorist activities, which could be
advanced with Internet access to Tier II information. [140]

Connecticut has implemented a program that allows facilities to file
TIER II reports by computer disk utilizing the EPA’s Tier II software.
 The disks must be accompanied by a signed certification sheet and a
site plan.  This program has been very successful. [145]

In the short term, the concept of mailing a signed certification
statement to the reporting authority, either with a report disk or to
follow electronic submission, is appropriate.  In the longer term, we
would invite EPA to consider mechanisms by which reporting could be done
totally electronically without a separate mailing of a certification
statement.  In any case, we request that EPA (or reporting entities)
develop regulations or policies which allow facilities to annually
submit a single certification statement to a central body (such as the
SERC), rather than requiring that a separate certification statement be
sent to each reporting entity. [153]

Submission on a diskette with a signed form is ridiculous.  Handling the
paper is already a burden, adding 700 - 800 diskettes is more
burdensome.  Development of a signed statement that a facility can place
on file with the locality that will remain valid until the authorized
person at the facility changes would be preferable.  Reporting
facilities rarely submit fraudulent information so a signed inventory
form is little proof of completeness.

Tier II confidential location information could continue to be submitted
on paper unless a SERC or LEPC provided a secure Web server to handle
those transactions. [167, 180]

Agency Response

As stated above, although the Agency did not finalize the guidance, many
States have been implementing some of the reporting options provided in
the preamble, including electronic reporting, either on-line or via
diskettes.  EPA is aware that those States that accept the hazardous
chemical inventory form via diskettes are accepting the certification
statement that contains an original signature on paper along with their
diskettes. Several States are in the process of developing on-line
systems for facilities to submit their form under Section 312.  These
systems would allow for facilities to submit all of their information,
including certification, on-line.   

At the time the proposed guidance was published in June 1998, on-line
submittal and certification were not available options for reporting
under Section 312.  In order to continue to provide flexibility to
States in implement EPCRA and reduce information management burden, EPA
is providing guidance to those States that currently require or may want
to implement on-line reporting to establish procedures as necessary for
accepting electronic signature and certification.  For the purposes of
Section 312 reporting, original signature could include “wet”
signatures or electronic certifications.  Thus, States may use any
system for collecting chemical inventory information under Section 312
which continues to ensure the information is true, accurate, and
complete and allows States to effectively and efficiently manage
chemical risks and provide information to the public.  

D.	Incorporation of Previous Submissions into EPCRA Section 312
Reporting

		Under EPCRA section 312, facilities are required to submit Tier II
report or the 

	State equivalent form to the SERC, LEPC and the fire department
annually whether or

	not they have changes in the information submitted in previous year. 
In order to reduce

	burden on facilities that do not have any changes in data from previous
year submission,

	EPA suggested few options in order to meet the requirements under EPCRA

	section 312 without having to re-create the information.  

		One approach suggested in the draft guidance would be for the facility
to simply

	reference and attach a copy of the unchanged information from the
previous year’s

	submittal to the current year’s submission.  This would mean that the
facility would have

	to retain a copy of its previous submission.  A second approach would
be for the facility

	to reference previous submittals already retained by the SERC, LEPC and
local fire

	department.  A third approach would require only if the information
changed.

		

Support 

A number of commenters supported the idea of limiting reporting to
changes and a certification that no change has occurred.

When a facility’s chemical inventory remains the same as the previous
reporting year, we believe that a letter referencing the previous
submittal would be sufficient.  If changes to contacts or owner have
occurred, these could be stated in the letter.  However, if the chemical
inventory changes, that change should require an entirely new Tier I or
II form, not just the changes, to be submitted. [011, 031]

By reporting only changes in information rather than complete new
inventories each year, facilities may be more inclined to comply with
reporting requirements and work with state and local regulatory
agencies.  This also would lessen the impact on those agencies required
to maintain information regarding community right to know and extremely
hazardous substances. [012]

I propose a possible option to save work and paper in annual reporting
for everyone involved in Tier Two reports.  The SERC, LEPC, and fire
departments should keep previous year reports until current Tier Two
forms are submitted, even past the March 1 deadline.  A sticker would be
attached to the previous year Tier II form, signed and dated, if there
are no changes.  The cost of printing stickers, which are similar to
postal stamps (perforated and has backing) should not be prohibitive.
[032]

We support the concept of allowing a facility to incorporate by
reference information from a previous year’s submission if it has not
changed.  Because we retain information received from submissions from
previous years, this provision would not represent an increase in our
record handling. [058]

This proposal is essentially what Wisconsin is now doing with the
preprinted Tier II report form.  Facilities review the most recent
submission, make any changes if necessary, and sign the form.  Although
this could be done without using a preprinted form, experience indicates
that many facilities do not retain records of previous submissions and
would not have these forms available for a later review or comparison. 
This would also complicate EPCRA record keeping in that a record for a
Tier II submission that is many years old may be the current submission.
 Provided that this remains an option, we have no objection to this
certification. [061]

We believe that allowing the incorporation of previously submitted
reports to satisfy certain annual EPCRA requirements will help
streamline the reporting obligations and cut down on the flow of
needless paperwork. [96, 101, 116, L05, OC-7]

We are in favor of allowing facilities to limit their annual Tier II
reports by only submitting that information that has changed from the
previous year.  However, it is critical that EPA’s guidance indicate
that SERCs, LEPCs, and fire departments are authorized to approve or
disapprove such submissions, because this limited information would be
of little value if the receiving entities cannot access the previous
years of information via a computer database.  At this time, we could
not accept such submissions.  However, we have a long-term goal to
develop electronic databases of this information, so such report
submissions could be feasible in the future.  We recommend that
facilities be required to submit some type of documentation of report
even if their inventories do not change from year to year.  This
mechanism would allow SERCs, LEPCs, and fire departments to better track
information. [118]

We agree that allowing owner/operators to submit an original once every
three years would provide relief in unnecessary reporting of duplicate
information.  If there have been no changes to their facility
identification form, on their Tier II report or their site map the
owner/operator should be allowed to check off a “no change from the
last year” box and submit only a newly signed facility ID form. [119]

Regarding the incorporation of previous submissions, we concur that the
burden on LEPCs, fire departments, and SERCs will be reduced.  The
facility should be required to maintain reports that are being
referenced.  In Arizona we maintain forms for three reporting years. 
Would EPA entertain a tri-annual (every three years) reporting cycle?
From a data and program management perspective if there are annual
reports, something should be received from the covered facility to
indicate comprehension of requirements.  This should be either: 1) a new
report is submitted; 2) a letter is submitted indicating “no
change;” or 3) a “changes only” report that follows Tier II
formatting and that must have owner/operator information listed is
submitted. [122]

Ohio’s rules allow owner/operators to submit an original once every
three years.  In the interim, if there have been no changes to their
facility identification form, their Tier II report, or their site map,
they may check off a “no change from the last year” box and submit
only a newly signed facility ID form.  Ohio’s forms may be viewed on
our home page at   HYPERLINK
"http://www.epa.ohio.gov/derr/derrmain.html." 
http://www.epa.ohio.gov/derr/derrmain.html.  [129]

We support EPA’s proposed guidance to allow a reduced reporting
obligation under EPCRA section 312 when a facility’s Tier I and Tier
II reports have remained substantially unchanged from the previous
reporting year.  We support EPA’s second option which would allow a
facility to submit a one-page certification statement that incorporates
by reference the previous year’s submittal, indicating any changes to
the previous year’s report.  This option reduces the reporting
obligation in a more meaningful way than the first option, which would
require facilities to attach a copy of the previous year’s report. 
Submitting substantially the same reports each year imposes an
unnecessary burden on the reporting facility and the regulatory agencies
that receive the reports. [137]

We support the first option, which requires that the facility have on
hand its prior report which facilitates annual review to assure that no
changes have, in fact, occurred. [141]

We encourage EPA to require reporting only changes in information
annually rather than a new Tier II form for every chemical stored or
used each year. [142]

While it is appropriate for a facility to reference previous submittals
retained by the SERC, LEPC, and the local fire department, the facility
making the reference should be required to specifically describe the
document, by date or other appropriate means, so that the SERC, LEPC, or
fire department can easily determine whether or not they are in
possession of the document.  Specific description is also critical to
public use of the information. [152]

Oppose

A number of commenters oppose the proposal to allow reporting only when
changes have occurred with annual certifications.  They stated that this
approach could increase the burden for agencies because previous
years’ file would need to maintained and referenced.  Others said that
facilities probably would forget to report and would consider changes
unimportant.

Speaking from experience, the LEPC may not receive ownership changes,
new site plans if remodeling occurs, tanks are replaced, restaurants
added, etc.  With computers or creative copies, this isn’t a real
problem.  I do not agree with this proposal. [006]

When reviewing the idea of allowing submissions of only changes of
information, rather than submitting section 312 information each year, I
think some facilities would forget to file the information.  Some forget
to file now unless they are reminded.  We need to send letters each year
to about one-third of our filers to remind then that they have forgotten
to file.  So I am almost sure that this would just make matters worse
for LEPCs.  I further think that some facilities will think that some
changes are so small that they don’t report them because then they
have to do all the paper work then.  Unless yearly reporting is
mandatory, most will not make the necessary changes as they happen. 

We believe that making any changes just sets a precedent for other
industry classifications to make requests and lobby to be eliminated
from reporting.  This will have a detrimental effect on the public’s
ability to know what is in the community, and will leave emergency
responders guessing as to what might and might not be involved in an
emergency. [007]

There are two major concerns under Section 312(a)(1)and (2).  One is
that the facilities can use Tier I form to report their chemicals on the
premises and the other concern is that owner or operator of any facility
will not be required to report yearly their hazardous chemicals under
OSHA inventory requirements.  I do not agree with only using Tier I
forms and the proposed change of eliminating yearly reporting
requirements.  Tier I information has only quantitative physical hazards
characteristics of the chemicals located on the facilities premises;
this is very vague information.  This form does not identify the name of
the chemical nor the characteristics of the chemical, nor the exact
location.

Tier II discloses the pertinent information about the specific chemical,
the location, the quantity, and the type of hazard that the chemical
poses.  If the responders know the name of the chemical, there are
several references they can use to obtain the information needed when
responding to an incident.  The generic information does not identify
the type of protective equipment that the fire fighters should wear, the
method of extinguishing a fire, or other issues that are identified in
the MSDS.  Having the terms “immediate” or “delayed” for health
hazards does not identify what type of health conditions to be aware of
nor what type of medical assistance can be given if exposed to the
chemical.

The other issue is not reporting yearly, after facilities have initial
reported their chemical information.  If the facilities do not have to
report every year on a Tier II form, the pertinent information is not
being reviewed and updated.  Facilities, now, have to take the time to
review their information and report.  This forces them to consciously go
over all of the report and correct the information.  Facilities
experience changes in personnel as well as changes in the quantities of
the chemicals manufactured, used, or stored on the premises.  The
reporting requirements are another check and balance system for the
facilities to determine if they are using less of the chemicals and/or
using chemicals that are not classified as extremely hazardous.  These
are two of the objectives of EPCRA:  to inform the community about the
chemicals in their community and to encourage facilities to manufacture,
use, or store less of the extremely hazardous chemicals or identify
alternative chemicals that are not as hazardous. [013]

This proposal sounds good, but there are some considerations.  How long
can a company go before a revised new listing or report must be
submitted?  A continuous flow of change only information could bog down
the system, and, at some point, the accuracy of facility inventory may
be totally without merit.  Further, if this proposal is adopted, the
responsibility for all information (including content of report,
frequency of report, and accuracy of report) must be the total
responsibility of the facility.  A statement to this effect should be
part of any facility’s inventory listing submitted to meet section 312
requirements. [014]

The LEPC needs comprehensive and immediately accessible information
about each hazardous materials storage site.  Filing a complete Tier II
report each year meets those needs.  Referencing past reports requires
several documents for a complete list and requires unnecessary use of
LEPC time that is saved by filing a complete report each year. [018]

We do not support the proposed change that allows facilities to submit a
section 312 report only when changes in inventory occur.  This policy is
not in the best interest of either the public or the response agencies
involved.  Given human nature and our understanding of the general
nature of organizations, we believe that if the routine, annual
requirement to report is lifted, over time very few reports will ever be
submitted.  This will result in a loss of critical information, so
central in the planning process.  Many of the changes in inventory will
only be discovered after an incident occurs.  Post-incident discovery
does little to contribute to pre-incident planning, and after all,
planning is the central focus of EPCRA. [056]

Kansas has not pursued the option to allow facilities to report only
changes in information on the section 312 report each year.  Our biggest
concern would be that facilities would not report at all and indicate
that there have not been any changes at their facilities since the
previous year. [108]

We are also NOT in favor of reporting only changes in information rather
than submitting a new report, we believe that a new report is more valid
than only changes. [112]

We believe that EPA’s proposed option of only having to report on
those chemicals for which the information has changed does not offer
much relief for the regulated community or for the SERC, LEPC, or fire
departments receiving the information.  Assessing whether any of the
conditions have changed is still required.  Additionally, this option
would require the facility to retain records of all reportable hazardous
chemicals from the time that they were first reported.  It would also
require the SERC, LEPC, and local fire department to maintain an
extensive history on each of the reporting facilities, which may be
beyond the capabilities of organizations with limited budgets and
resources.  The idea of “incorporation by reference” puts additional
burden on the SERC, LEPC, and fire department to track the most current
information for a particular facility.  Unless the entire Tier I or Tier
II report remains exactly the same as the previous year, this practice
could fragment a facility’s inventory data.  EPA should retain the
requirement for the facility to report annually on all of the hazardous
chemicals that exceed the reporting threshold and do not fall within one
or more of the reporting exemptions. [133]

The NC SERC information management system is managed by yearly
submittals of data, and it would be somewhat difficult to have to refer
to previous years’ forms to have the most current data available.  It
would appear that having to prepare required certification that there
were no changes is about as onerous as having to resubmit information,
and we would be reluctant to use this reporting option. [140]

We are opposed to the second option.  The second option would allow a
facility to simply reference previous submittals without attaching the
earlier report.  It is conceivable that a facility could report thusly
for several years.  This would require the SERC, LEPC, and fire
departments to maintain reports for like number of years to make sense
of the facility’s reference to prior years’ submittals.  The second
option also makes it too easy for a facility to report that no changes
have occurred. [141]

Incorporation of previous submissions into EPCRA section 312 reporting
is a bad idea.  It could be cumbersome to maintain the files needed to
verify the original submission of information incorporated into a new
report.  Questions of certification and records retention would have to
be addressed. [147]

It would be preferable to have reports filed annually so that there is
no mix-up as to what year the data applies.  It would be too tempting to
overlook minor changes.  Also, there would be the question of legal
liability for the LEPC if it assumed because it did not hear from a
facility, the information was the same as last year, when it really
wasn’t.  This concept could also cause fire departments to make
assumptions on outdated information, especially with regard to location
of the various reportable materials. [165]

Annual submissions should be a complete report.  Annual submissions
should not reflect only changes to previous Tier I and Tier II reports. 
This proposal will encourage businesses to report “No Change” to
minimize costs associated with inventory reporting.  Ultimately, this
may place emergency responders in very dangerous situations. [167, 180]

We would fully support accepting correspondence from the designated
representative of a facility referencing that their Tier II submission
has not changed from the previous year.  However, it would be
unrealistic for an LEPC to accept the burden of being responsible to
incorporate changes from one year to the next through any other means
than a Tier II form.  Therefore, it is our opinion that changes from
year to year would require a new Tier II submission.

In regards to the first option of facilities referencing and attaching a
copy of their previous year’s Tier II Submission, we currently have
two large file cabinets and will be in need of another one to
accommodate EPCRA section 311 and 312 submissions next year.  For these
reasons, it cannot support this type of duplication. [174]	

EPA should not burden SERCs, LEPCs, and fire departments with finding
and incorporating the previous years’ reports.  As EPA noted, this
option increases burden on local entities and public data users.  EPA
incorrectly suggests that the public’s ability to request information
from SERCs and LEPCs will preserve its right-to-know.  However, the
public’s right-to-know should not be limited to special requests. 
Effective electronic reporting would enable facilities to easily
incorporate previous submissions into EPCRA electronic reports.  EPA
should promote the development of “intelligent” software that
enables facilities to automatically incorporate and update previously
reported information. [097]

States that use Tier I forms may find this viable.  Tier II form users
will find it less so.  States with state forms that require more
information than either of them would find this option less appealing. 
Less than 5 percent of the forms submitted have virtually no changes. 
Facilities in Maine are encouraged to retain copies of each year’s
submissions to use for reference purposes, but nearly all have changes
which require updating.

A major change occurs each year in the name of the person completing and
signing the inventory form(s) from a single facility.  The option of
incorporating by reference data submitted in previous years assumes the
certifier is responsible for the accuracy of prior information they had
no role in developing or knowledge of.

The minimal reporting requirements under EPCRA are not sufficient to
provide information necessary for the development of LEPC emergency
response plans.  LEPCs are expected to seek additional information from
a myriad of sources to accomplish the planning tasks, but they are
volunteer groups often with tenuous leadership and minimal resources. 
As a result, many are non-functioning.  The importance of sufficient
information is vital.  Minimizing the reporting requirements may be
beneficial to businesses, but it weakens the likelihood that LEPCs are
going to effectively accomplish the tasks they are mandated to do.  EPA
needs to ask if some of these proposed changes benefit the intent of
EPCRA for protecting the public by enabling LEPCs to meet their
responsibilities.  Perhaps minimizing reporting requirements to benefit
business is not the appropriate goal.  Business provides the risk to the
public by manufacturing, processing, shipping, storing, and using
hazardous chemicals and extremely hazardous substances.  This reporting
is an important accountability responsibility.  Don’t minimize it.
[177]

When a facility’s chemical inventory remains the same from the
previous reporting year, we believe that a letter referencing the
previous submittal would be sufficient.  If changes to contacts or owner
have occurred, these could be stated in the letter.  However, if the
chemical inventory changes, that should require an entire new Tier II
form, with the changes highlighted, to be submitted.  Be aware that
letters referencing previous submittals would not be compatible with
electronic databases and would require manual updating.  If EPA is
serious about building electronic databases, this issue of referencing
previous submittals by letter might have to be revisited. [057]

The approach EPA is taking on this is favorable, but suggest the
incorporation of this guidance into the regulation.  Legislation was
passed last year in California to allow for certification of past years
inventories.  California OES has included the section of the Health and
Safety Code that allows for certification for EPA’s review:

HSC 25503.3 (c):   “Notwithstanding Section 25509, a business may
comply with the annual inventory reporting requirements of this article
by submitting a certification statement to the administering agency if
both of the following apply:

The business has previously filed the single comprehensive hazardous
material reporting form required by subdivision (a) or the alternative
form designated by the administering agency pursuant to subdivision (b).

The business can attest to the statements set forth in paragraphs (1) to
(4), inclusive, of subdivision (f) of Section 25501.

HSC 25501 (f):   “Certification statement” means a statement signed
by the business owner, operator, or officially designated representative
that attests to all of the following:

The information contained in the annual inventory form most recently
submitted to the administering agency is complete, accurate, and up to
date.

There has been no change in the quantity of any hazardous material as
reported in the most recently submitted annual inventory form.

No hazardous material subject to the inventory requirements of this
chapter are being handled that are not listed on the most recently
submitted annual inventory form.

The most recently submitted annual inventory form contains the
information required by section 11022 of Title 42 of the United States
Code.”

Language similar to California’s should be placed into 40 CFR part 370
to allow for the incorporation of previous years submission into EPCRA
312 reporting. [L15]

The Kentucky SERC retains previous submissions and could accommodate the
proposal to report only changes if the changes are in writing, if
certification by the facility is included, and if the facility submits
in writing that there are no changes.  However, the effect of this
approach on LEPCs may be to create a burden that outweighs the benefits
and we request more research on this point by EPA. [L13]

Agency Response

		At the time of the proposal, States did not have electronic reporting
method in place.  In order to reduce the burden on facilities
re-creating the same information that they submitted previously on
paper, EPA proposed the option for incorporation of previous
submissions.  Now that many States have developed electronic reporting
methods or are using Tier2 Submit developed by EPA, the burden on
facilities re-creating information on paper does not exist for many
facilities.  Facilities can store their Tier II report electronically
and revise as needed for next year.  

		After reviewing the comments, EPA realizes that the option on
incorporation of previous submissions may be no longer necessary since
it may place burden on States and local agencies.  Also, since
electronic reporting is required in many States, the burden on
facilities to re-create the information on paper every year is reduced.

		Those States that still require Tier II or State equivalent form in
paper, may want to consider this option of incorporation of previous
submissions.  This method may reduce handling hundreds of papers.  As
stated in the preamble to the proposed rule, States may or may not
choose any option that is provided to implement the program.  

Other comments 

A few commenters provided other comments on incorporating previous
year’s forms by reference.  Several commenters raised questions about
the length of time forms must be retained.

We pride ourselves for being available to facilities requiring
assistance when filing under this program.  All reports received are
reviewed for accuracy and the designated facility emergency coordinator
is contacted when any discrepancy is detected.  Under this program, a
facility that has no changes to emergency contacts or chemical inventory
can simply submit the Facility Identification Form with ‘No Changes’
indicated in lieu of submitting a report in its entirety.  There is no
substantial reporting burden under this program.  Your whole approach is
patterned to ‘provide relief rather than look out for the best
interests of emergency responders, emergency planners, and the general
public.  I appear to have misunderstood EPA’s role ... or have you?
[017]

By eliminating the Dun & Bradstreet number, inventory codes, storage
codes, and initiating a sticker for No Change, a more “user
friendly” Tier II form would make it easier for everyone to prepare
and use. 

Since EPA is soliciting comments, I will offer proposals for changes
that I believe are beneficial to all who use the Tier II forms.  The
emergency responders using the forms at an incident shouldn’t have to
search for information or calculate codes, even if they have Tables I,
II and III as a guide.  After all, the responders use the Tier II
information on incidents, LEPCs must check for accuracy, and the others
just file them. [032]

While it is appropriate for a facility to reference previous submittals
retained by the SERC, LEPC, and the local fire department, the facility
making the reference should be required to specifically describe the
document, by date or other appropriate means, so that the SERC, LEPC, or
fire department can easily determine whether they are in possession of
the document.  A specific description is also critical to public use of
the information. [100]

We agree with the EPA guidance to clarify this option is available for
implementation by State and local organizations.  It will probably not
be an effective option.  Both options suffer from the same basic
problem.  Incorporating individual pages or parts of pages from previous
reports could prove very confusing to both the designated recipients of
the data and the public when reviewing the submittals.  After several
years of updates only, determining a complete set of current information
for a facility could even become confusing to the facility itself.  
Realistically, a complete submittal would still be necessary on a set
schedule to ensure accuracy of the information.

The most significant problem is the lack of specific record keeping
requirements.  Under section 313, facilities are required to maintain
records for a period of 3 years.  It would be extremely beneficial if
record keeping requirements were specified for other sections of EPCRA. 
Within the rulemaking, EPA implies that aside from reporting facilities,
even SERCS, LEPCs, and fire departments are required to retain reports
from prior years.  If no one is required to maintain records of
submissions, how can compliance be evaluated?  This also raises another
issue.  Are public requests only valid for the most recent reporting
year?  If no one is required to maintain copies of reports, it would not
be possible to fill public inquiries for any year other than the most
recent reporting year?  We strongly recommend that EPA address this
issue.  For consistency purposes, record keeping requirements similar to
those outlined for section 313 should be considered.

If recordkeeping requirements were established, option 1 would be
relatively easy to implement. Based on our experience, most facilities
are maintaining copies of section 312 submittals anyway.  On an annual
basis, it is evident that many submittals are simply photocopies of
previous submittals with any necessary changes made and new signatures
applied.

As more and more facilities move toward electronic reporting, this will
become less and less of an issue.  When reporting electronically for the
first time, facilities must enter all information into the system.  For
subsequent years, however, the process is simplified.  All that is
required is updating the previous year data already in the computer and
downloading a new submission to diskette. [104]

The issue of how long each party needs to retain the various EPCRA
reports needs to be addressed.  CERCLA calls for records generated by a
facility concerning the release of a hazardous substance to be kept for
50 years.  OSHA requires that records regarding employees health be kept
for thirty years.  At a minimum facility Tier II reports and any written
reports generated under section 304 should be subject to the same length
of record retention as OSHA.  This will greatly aid those of us who are
subject to title search requests.  However, fire departments should not
be required to retain the reports for longer than two years.  The method
of record storage should be open and allow those who wish to store the
reports on microfilm or electronically to do so. [129]

Regarding reporting only changes in information rather than submitting a
new section 312 inventory form each year, we propose to add the
following: “In every ten (10) years (U.S. census years may be good
years, e.g., 2000, 2010, 2020, etc.), a new full section 312 inventory
form is required.”  This requirement will “force” or remind
reporters to compile a refreshed inventory, which will help them
maintain accurate and comprehensive data and help regulatory agencies
and communities access to accurate and current data.  Requiring only
changes year after year indefinitely will create a tendency, in the long
run, to neglect the comprehensiveness or accuracy of the information.
[132, OC-3]

When a facility’s chemical inventory remains the same from the
previous reporting year, a letter referencing the previous submittal
would be sufficient.  If changes to contacts or owner have occurred,
these could be stated in the letter.  However, if the chemical inventory
changes, that should require an entire new Tier II form, with the
changes highlighted, to be submitted. [164]

The Florida SERC retains previously submitted section 312 reporting
information so both suggested options could be implemented at the SERC
level.  We support the annual submission of information, either a full
report or a certification of no change.  Our experience with EPCRA
section 302 facilities that qualify for section 312 reporting exemptions
indicates that it is very difficult to maintain current and accurate
facility information without an annual review, validation, and
submission by the facility. [178]

Agency Response

For the reasons stated in the previous section, the Agency believes that
the option on incorporation of previous year’s submission by reference
is not necessary since most States have adopted electronic reporting. 
Facilities can store the data electronically and revise as necessary.  

In regards to the comments on recordkeeping, the Agency may look into
revising the regulations in 40 CFR part 370 to include recordkeeping
requirements after notice and comment in a separate rulemaking.

E.	Electronic Access to Facilities’ Databases of MSDSs

		For those facilities that maintain an electronic database of MSDSs,
EPA requested comments if the Agency should allow a facility to meet the
requirement under EPCRA section 311 for submitting MSDSs by giving the
SERC, LEPC and local fire department electronic access to the
facility’s database of MSDSs instead of actually submitting the MSDSs
to each of the three entities.  EPA sought comments on the feasibility
of this option.  

A few commenters supported providing access to a facility’s database
of MSDSs; some of these commenters asked for a central database that
includes all facilities MSDSs.  Other commenter opposed the approach. 
They noted that many LEPCs and fire departments do not have capability
to access databases electronically.  Others stated that access would
need to be assured even when power outages occur.  One commenter stated
that this approach would not meet the requirements of the law.  Some
commenters said that the issue raises concerns about the security of a
company’s computer systems.

Support

DEP supports this concept, but feels that the facility should also be
required to submit to the SERC a copy of its computer file on diskette
or compact disk as a backup in the event that a company’s system
becomes unavailable. [058]

We support electronic access to facility MSDSs. These proposals are much
needed advancements to streamline the reporting process and eliminate
confusion. [096]

We also support EPA’s proposed “guidance” that would allow a
regulated facility to submit information to a single database that could
be accessed by the SERC, the LEPC, and the fire department.  This step
would reduce unnecessary regulatory burdens and would be consistent with
EPA’s desire to reinvent environmental regulation. [116]

Concur in concept; however, rules and procedures MUST be in place (e.g.,
lock boxes) to ensure access to information in an emergency and/or when
there are power disruptions. [122]

SCJ conceptually supports the agency’s exploration of allowing
facilities to meet Section 311 MSDS submittal requirements by allowing
SERCs, LEPCs, and local fire departments electronic access to a
facility’s MSDS database.  SCJ understands that there are a number of
issues that need to be further evaluated to ultimately determine the
feasibility of this approach.  From the facility owners’ perspective,
security and confidentiality issues need to be closely examined. 
However, at this point, we believe the idea deserves further
consideration. [138]

The Oakland County LEPC currently has the capability to access MSDSs
through the Internet and would fully support allowing facilities to
maintain electronic databases of MSDSs instead of forwarding them to the
LEPC.  As stated above, the continued resources needed for maintaining
hard data are astronomical. [174]

We support this option at the SERC and LEPC level, but caution that all
local fire departments may not have electronic access capabilities.
[178]

Oppose

MSDSs from companies are not the best sources of information about a
chemical and how to deal with the chemical in an emergency situation
because some of the information is not correct.  The Association of
American Railroads has put together a two volume set of MSDSs for the
most common chemicals encountered.  This information was pulled together
from many sources and these MSDSs can be used with confidence.  The
transporters of hazardous chemicals also pay a service group called
CHEMTREC, which has MSDSs on file and can connect emergency response to
the manufacturer for more information.  There is yet another company
called 3E Emergency Response Center that has MSDSs on demand.  The
Department of Health and Human Services has a group of medical
professionals (ATSDR) that are always “on call” for chemical medical
emergencies.  With all of these sources involved in MSDS information,
does EPA need to duplicate this effort?  If EPCRA’s concern is
discovery of new information that may be addressed under the TSCA
reporting requirements.

The only information we really want to see from the regulated community
is the Tier II report. MSDSs and Tier I reporting are pertinent to the
immediate workplace and not necessary to plan emergency response.  We
count on labeling and placards to provide the immediate information
needed at each specific sight when emergency response is required.  We
don’t really care that there is one pound of mercury somewhere at the
facility and we don’t really care that this information is in a huge
database. [018]

We oppose this option in lieu of proactive reporting required by law. 
It does not constitute a submission of information as required by law. 
It prevents the establishment of databases that allow crosscutting
analysis and the comparison of data from one facility to another.  It
could interfere with emergency responders’ ability to access data
during power outages caused by hurricanes, earthquakes, year 2000
computer problems, etc.  And it prevents EPA and states from developing
databases that would help them measure their effectiveness (under GPRA,
etc.). [097]

Providing access to a SERC, LEPC, or local fire department to a
facility’s database for MSDSs is unlikely to streamline reporting by
the facility. [105] 

While we do not oppose the Agency providing reporting options to the
regulated community, we are concerned that such an option is a first
step in the development of a future mandate that all facilities provide
electronic access to their MSDS database.  Such access would be an
unwarranted intrusion into the confidential electronic resources of the
facility and it potentially could lead to significant abuse of and
tampering with complex systems that obviously contain sensitive business
information.  Therefore, we are strongly opposed to any regulatory
language that could lead to national or local mandates that would
provide outside individuals with unfettered access to a facility’s
confidential environmental, health and safety database. [117a, 117b,
117c, 117d, 117e]

We oppose the option of allowing commissions or the public access to our
electronic MSDS or inventory databases.  Special programming would be
required to maintain system security if access to non-employees is
allowed.  This could be very expensive and potentially compromise the
security of our data systems. [117]

We recommend that EPA consider an alternate solution of establishing a
national EPCRA chemical inventory database into which all companies may
enter their data, either by submitting an electronic file, or by
entering directly via the Internet or other dial-in mechanism.  Once
inventories are entered into the national database, SERCs, LEPCs, fire
departments, the public, or any interested organization will be able to
view and print the reports.  This will ensure consistency across the
nation, speed up processing of the information, and make it available to
anyone who needs it.  This will allow commissions to extract, sort, and
report the information to meet their specific needs and format.

EPA must also consider the time needed to modify computer systems to
implement any changes in the final rule.  We will need at least two
years from final ruling to modify computer systems to be in compliance
with the recommended changes or to identify, purchase and implement a
completely new system to replace our current database. [139]

Bad idea because it would require constant contact electronically and
could be costly to maintain. Even with the Internet, maintaining a
24-hour open line between the facility and regulatory agencies can be
expensive.  Few regulatory agencies would be willing to acquire the
burden, even fewer facilities will be willing.  Also concerns of
database security and virus protection.  Facilities might also have a
problem with an outside agency having access to their internal data
files.  This option is something to be considered when other basic
questions of data management have been addressed. [147]

This may be acceptable for those with data retrieval capabilities.  Few
fire departments in Maine have it.  Less than the LEPC’s would have
it.  Submission of lists of available MSDSs is very acceptable. 
Consideration would need to be given to accessibility in situations like
fire and power outages.

Using the lists option is more appropriate to reduce reporting burdens. 
In an emergency situation, accessing data electronically may not be
effective or efficient and may not serve to preserve public health and
safety benefits.  The proposal would have no impact on the achievement
of EPCRA’s environmental goals.  Flexible options are necessary for
entities without electronic access capabilities.  Rewriting the
regulations in plain English to reduce regulatory burden and improve
compliance is not an issue. [177]

Agency Response

		Submission of MSDSs for hazardous chemicals present at a facility to
the SERC, LEPC and the fire department is a statutory requirement.  EPA
is only codifying this requirement in 40 CFR part 370.  The Agency
proposed the option of submission of MSDSs electronically or providing
access to facilities databases of MSDSs assuming that this will reduce
burden on regulated community.  The Agency also realized that this may
increase cost for SERCs, LEPCs, and the fire departments since some of
these agencies do not have access to computers.  After reviewing the
comments, the Agency has decided not to require facilities to provide
access to their MSDSs databases.  As raised by the commenters, the
Agency believes that during an emergency situation, a power failure may
occur which will prevent access to computer databases.  The Agency also
understands that there is concern about security, unauthorized personnel
gaining access into the company’s internal computer system.

Other comments 

If electronic access to MSDSs is considered, the information must be
completely accessible to Fire Departments, LEPCs, and SERCs.  Under
present circumstances, a majority of local groups would not have the
time, equipment, or training to be completely accessible to an
electronic database. [009, 11, 31, 57, 164]

In the industry I work for I have MSDSs written into Word Perfect and I
have a special version of each of the MSDS that can be faxed because the
WinFax Pro software messes up the layout of the MSDS.  For our
subsidiaries to access our MSDSs they also must have Word Perfect to
display the MSDS correctly and they must have a LaserJet printer to
print the MSDS correctly.  I would think that some common software would
be required to have electronic access.  As stated earlier, MSDSs for
chemicals is not a focus of this LEPC.  Again, we do not want to spend
time accessing data and need the burden to be placed on the reporting
entity. [018]

Allowing the facility to open its electronic MSDS database in place of
submitting hard copies should be left to the discretion of the LEPC, NOT
mandated. [048]

This would only be feasible if the SERC, LEPC, and local fire department
all have electronic access to the facility database of MSDSs.  Many
LEPCs and fire departments do not yet have internet capability.  This
would also create a record keeping problem unless the agency downloaded
the MSDS information for their files, and this in turn would shift the
reporting burden from the facility to the SERC, LEPC, and fire
department.  It is also not clear how a facility would determine which
substances exceeded the reporting thresholds and identify this
information on the MSDS database.  Many facilities have a very large
number of MSDSs and it would be confusing and burdensome if all MSDSs
were to be considered the facility 311 submission.  This would also
leave in question how a facility would identify when the section 311
submission was updated. [061]

One of the key issues associated with this option would be the method
for notification of updates. Access to a facility’s database of MSDSs
alone would not appear to fulfill the 311 updating requirements.  Unless
SERCs, LEPCs, and fire departments were notified that a new chemical was
on site above the threshold and a new MSDS was added to the system, they
would not know the new chemical was present unless they periodically
reviewed the facility’s MSDS system.  It would appear submission of a
notification would still be required by the facility.  This notification
by itself would probably satisfy the requirement to update a 311 list. 
As such, all of the facility’s effort to allow on-line access to MSDSs
would essentially be above and beyond the legal requirements and thus
would not necessarily be a burden reduction.  Access to facility
databases of MSDSs would be beneficial for emergency planning and
response organizations.  However, it’s questionable whether it would
be an effective burden reduction. [104]

Several of our field sites supported this reporting option, but some
expressed concern that providing public access to facilities databases
is beyond the scope of the regulatory requirements and may pose
confidentiality/security concerns.  Many of those who do have the
capability may not be willing to provide access for fear of unauthorized
personnel circumventing the firewall and gaining access into the
company’s internal computer system.

Some of our sites believe that this might be an acceptable means of
complying with the Section 311 reporting requirement.  MSDSs could be
maintained on an external web page with built-in firewalls, preventing
access into other company files, databases, etc.  But, there are
probably not a large number of facilities with this capability. 
Additionally, if this arrangement is intended to satisfy the Section 311
reporting requirements, there should be uninterrupted 24-hour per day
access to the information.  If there were an emergency at the facility
(e.g., a fire), the emergency itself could result in a lack of access to
the database, possibly at a time when access is most needed.

We believe that it could be extremely burdensome for SERCs, LEPCs, and
fire departments to access multiple systems to get needed information. 
In addition, a facility’s MSDS database could potentially include
MSDSs for materials no longer present at the facility and would not
necessarily identify which chemicals are present above minimum threshold
levels. [133]

EPA’s centrally controlling one universal database of uniform MSDSs is
most desirable, as is developing a system that looks at MSDSs relative
to “real risk.” [140]

Any proposal for electronic submittal of reporting information via
diskette or compact disk must consider format - possibly a standard
software program readily available and affordable to all jurisdictions. 
All pertinent information must be included.  Information accessible
through the Internet presents equipment and personnel problems requiring
additional staff time and budget dollars. [151]

Electronic access to an MSDS database instead of submission of the paper
forms is a useful alternative.  Full time access to the database, even
under emergency conditions, is a potential stumbling block.  Submission
of all facility MSDSs on CD-ROM or disk in a commonly accepted format
may be more useful and would provide full time availability.  While most
facilities now have computers equipped with floppy disk drives, not all
facilities may have CD recordable or rewritable drives. [167, 180]

Agency Response

		

		None of the options provided in the draft guidance of the June 1998
preamble will be required.  EPA stated in the preamble that States may
choose to adopt any or all of the options provided, but is not required
to do so.  EPA understands the concerns raised by commenters about
security and the inability to get access to computers during an
emergency situation, such as power failures.  

		EPA stated in the preamble to the proposed rule that the Agency is not
requiring this option at this time but only seeking comments whether
this option is feasible.  The Agency also sought comments whether
providing access to facilities’ database would satisfy the requirement
under section 311(a)(1), which is submission of MSDSs to the SERC, LEPC
and the fire department. 

The Agency suggested electronic submission of MSDSs or providing access
to a facility’s MSDS database to reduce the burden on the regulated
community and reduce the information management burden on implementing
agencies.  However, such an approach does raise a number of issues,
including whether it would meet the statutory requirements under EPCRA
section 311.  Therefore, the Agency is no longer recommending such an
approach in place of the submission of the MSDS forms for hazardous
chemicals at the facility to the SERC, LEPC and fire departments.  

	

F.	EPCRA Section 312 Reporting to Fulfill Reporting Requirements under
Section 311 

		EPA proposed another option to reduce reporting requirements for
facilities.  The Agency sought comments whether section 312 reporting
can fulfill section 311 reporting requirements provided that the
reporting conforms to the required time frame and that Tier II
information is reported.  

		Section 311 of EPCRA and its implementing regulations require
submission of MSDSs or a list of chemicals to SERC, LEPC, and the fire
department, within three months after becoming subject to the reporting
requirements, or within three months after discovery of significant new
information concerning a hazardous chemical that has already been
reported, or within 30 days of a request from the SERC, LEPC or the fire
department.  Section 312 of EPCRA requires a submission of Tier I (or
Tier II) to these three entities.  Tier I contains general information
about hazardous chemicals at the facility.  Tier II contains specific
information about each chemical similar to what is required in an MSDS. 
Since section 312 submission is due on March 1, normally, a facility may
submit Tier I/II between January 1 and March 1 of the following year.  
Section 312 could be used to meet section 311 reporting for only those
facilities that become subject to reporting under section 311, or
discover significant new information concerning a hazardous chemical
between October 1 and December 31 of any given calendar year.  

		Since reporting under both section 311 and 312 are to the SERC, LEPC
and the fire department, EPA believes that this proposed guidance would
not pose any additional burden to these entities.  EPA sought comments
from these entities and the regulated community regarding the usefulness
of this option.

		

All but one commenter who addressed this issue supported EPA’s
proposal.  Many states indicated that they already use this approach and
find that it works well.  One commenter objected because it would
require reprogramming of company systems.

Currently, many states require Tier II reporting in lieu of Tier I
reporting.  We feel industrial establishments, upon receipt of an above
threshold limit chemical substance, contact the SERC, LEPC, and local
fire department to notify pursuant to section 311 reporting
requirements.  In this notification questions are raised that are
equivalent to Tier II reporting requirements, we have found it more
economical to proceed with additional Tier II reporting in lieu of
section 311.  We believe this is commonplace and voice support for Tier
II reporting to satisfy section 311 reporting. [001]

We agree that the Tier II information should fulfill section 311
reporting requirements.  This change would substantially reduce the
paper burden of both the SERC and LEPC. [009, 011, 018, 031, 057, 99,
137, 140, 145, 147, 164, 167, 177, 178, 180, L05]

We support this change, as it has been found that information received
under section 311 is rarely used, so allowing section 312 to be used
instead of section 311 in certain cases would allow the agency to
utilize its resources in a more efficient manner. [058]

Wisconsin currently allows the use of Tier II reporting forms to meet
the requirements of section 311.  In Wisconsin, facilities using Tier II
report forms to meet section 311 requirements are asked to indicate this
on the form.  The Tier II forms can be used solely for this purpose and
can be submitted any time of the year.  Wisconsin Emergency Management
has developed sufficient guidance to administer this reporting option.
[061]

Since we cannot accept MSDSs in lieu of Tier II reports, access to such
databases would not satisfy our state law requirements.  However, we are
aware in fact many facilities track their chemical inventory through
electronic databases and this information is used to develop Tier II
reports.  Nevertheless, the Branch recommends against allowing such
databases to substitute for submission of the Tier II report because
requiring such access could greatly increase the burden on the SERCs,
LEPCs, and fire departments. [118]

This approach has been an EPA policy in the EPCRA Questions and Answers
document for several years.  We agree with this policy and have been
following it without problem. The more significant question with respect
to a section 312 submittal fulfilling the section 311 requirement
entails facilities that have neglected a section 311 requirement, but
have subsequently submitted a section 312 submittal for the substance. 
At that point, has the facility then “returned to compliance?” 
Obviously, the facility could be subject to penalties for having
violated the section 311 requirement for not submitting the notice
within the 3 month time frame required.  However, would the facility
still be expected to submit a section 311 notice even if the substance
has been subsequently reported on a section 312 submittal? [104]

We are strongly in favor of allowing this substitution of information.
The Texas Community Right-to-Know Acts (TCRAs) require a Tier II report
for compliance with both sections 311 and 312, but we allow facility
owners and operators to submit a streamlined list that meets section 311
requirements, if the report is being submitted for the first time or as
an update after March 1.  One consistent format such as the Tier II form
should be adopted for reporting all information to ensure consistency of
information for emergency planners and responders.  Guidance from EPA
would help to ensure that facilities submitted forms that would meet the
requirements of the TCRAs. [118]

We support this proposal, as long as the reports are submitted within
the 90 day period, or sooner if possible. [119, 129]

The AZ SERC, LEPCs, and fire departments have already adopted the
acceptance of Tier II reports to meet 311 requirements providing the
timing of submission is correct. [122]

We support EPA guidance on this subject.  The preamble mentions that
because of the 3 month reporting window under section 311, the section
312 report can only suffice for those facilities that become subject to
reporting under section 311 or discover significant new information
concerning a hazardous chemical between October 1 and December 31.
However, the time frame is probably much shorter than this since it is
unlikely that most facilities will submit their section 312 report on
January 1 of the following year.  Those facilities that submit their
section 312 report closer to the March 1 deadline will find this option
providing little relief from having to submit a separate section 311
report.  However, where the reporting time frames do overlap, facilities
should be able to make use of the section 312 report to reduce the
reporting burden. [133]

If our company chose to use this method, it would require programming
changes to reference additional product information on the Tier II
report so that a specific MSDS could be identified by either our MSDS
number or the manufacturer.  Again, this entails significant programming
costs.  We oppose this proposed change, which comes too late in the
EPCRA program and provides too little benefit. [139]

Facilities should have the option of continuing to submit a full
inventory report each year, if such an approach would be more efficient
under their existing data management systems.  We note, however, that
these proposals are addressed as draft guidance in the preamble but are
not fully addressed in the proposed regulatory text.  Not all of our
members, particularly smaller companies, have ready access to preamble
language.  Accordingly, we urge EPA to address these issues in the
regulatory text of the final rule. [L05]

Agency Response

After reviewing all the comments, the Agency realizes that most States
are already implementing this reporting option.  In the preamble to the
1998 proposed rule, the Agency stated that even if the guidance is not
finalized, the States may implement any or all of the reporting options
suggested in the preamble. EPA encourages those States that have not
implemented this option but wish to do so should provide flexibility to
the facilities that may want still want to submit MSDSs or list of
chemicals to all three entities as stated in the regulations in 40 CFR
part 370.

States that choose to implement or are already implementing this
reporting option will need to require facilities to submit a section 312
report three months after acquiring a new chemical in order to be in
compliance with the section 311 reporting requirements.

G.	Hazardous Chemical Exemption for Solids Under EPCRA Section 311(e)(2)

Commenters endorsed EPA’s proposal on the hazardous chemical exemption
for solids.

Revising the solids report would be a good idea, but for emergency
planning it might be important to include the aspect of how much molten
metal might be involved in a fire.  We did have this very situation
occur with smelted zinc and did not have any Class D fire extinguishing
equipment to use on the fire.  Had we known that the smelting operation
existed we would have geared up to handle a metal fire.

We agree that no reporting needs to occur if it is improbable that a
large enough volume of particles could be generated to cause an IDLH
condition outside the business.  We also agree that no reporting be
required for a continuous release of particles if the concentration is
not enough to cause acute and/or chronic health affects on the
community.  It would seem that most operations that generated fume or
dust on the manufacturing floor would not be a concern to the community.
[018]

DEP supports requiring facilities to consider only the fume or dust
given off by a piece of metal for threshold determination.  Previously,
in cases where the metals were handled in a way that would lead to
potential exposure, such as welding, EPA required that the entire weight
of the metal be considered for threshold determination.  DEP agrees that
this method has led to reporting of information that is unnecessary for
planning and community right-to-know purposes. [058]

This clarification is consistent with the interpretation of the law
under which Wisconsin Emergency Management has been operating. [061]

Regarding the changes for the interpretation of the hazardous chemical
exemption for solids, we believe that these changes involve some good
“common sense.”  We do, however, have a question regarding how
flammable solids would be classified.  Certainly, it would seem that
these types of materials would still need to be reported. [098]

We support this interpretation of the article exemption.  The purpose of
the article exemption is to exclude from EPCRA reporting those
substances which do not pose a risk of adverse health effects because
“articles” pose little or no risk of human exposure to the hazardous
substances incorporated in them.  When a piece of metal is being
modified such that it releases fume or dust, only the fume or dust poses
a health risk.  The piece of metal that remains intact continues to
retain the characteristics of an article.  Therefore, the fact that part
of the metal has been released in the form of fume or dust does not
warrant counting all the hazardous substances in the remaining intact
piece of metal toward the threshold calculation. [099]

We agree with this EPA proposed guidance.  In addition, we recommend
that EPA include clarification on this exemption within the regulations.
 Clarification of this exemption is an excellent example of relief from
routine reporting for substances posing minimal hazards and risk using a
consistent, centralized approach.  This is preferred over the local
case-by-case assessment method proposed by EPA within the rulemaking.
[104]

We support the proposed interpretation of the exemption. EPA’s current
interpretation of this exemption has been that portions of metal stock
that are modified such that exposure to a hazardous chemical can occur
should be counted to determine the quantity present for threshold
purposes.  It appears that these EPA interpretations are inconsistent
with current interpretation for threshold determinations for toxic
release inventory reporting under EPCRA section 313.  Therefore, for the
purposes of consistency, it is recommended that EPA also modify the
requirements for reporting under 40 CFR part 372 to be consistent with
the proposed interpretation. [106]

We strongly support EPA’s proposed reinterpretation of the “solids
exclusion” and urge the Agency to extend this interpretation to EPCRA
Section 313.  We would very much appreciate the opportunity to meet with
the appropriate EPA officials to discuss the adoption of this
interpretation under EPCRA section 313.

We believe there is no emergency planning or emergency response benefit
from reporting based on chemicals in inert solid metal objects. Because
of its safe inert qualities, steel is used to construct thousands of
articles which people, including children, use on a daily basis.  Steel
is not flammable, it is not reactive, it is not a corrosive agent, and
will not emit toxic fumes.  Steel is not subject to explode, suddenly
release toxic chemicals, or otherwise threaten local communities or
emergency response teams.  Nor is steel processing a risk-producing
event.  According to the American Institute of Steel Construction, even
the largest metal fabricators that annually cut 200,000 linear feet of
1-inch steel plate using an oxyacetylene torch would only “release”
about a pound of total listed metals in the form of “fumes.”  Any
releases from the steel during welding operations would be even smaller.
 This is because most welding operations do not produce sufficiently hot
temperatures to result in fumes being released from the welded steel. 
Metalworking fumes quickly condense into metal dust within the
facility’s boundaries.  Because metalworking operations typically
occur inside buildings (often with emission control systems), there is
virtually no potential exposure of the de minimis quantities of
“released” metals to emergency response teams or to local residents.
In fact, any daily “releases” at the facility boundary would be
undetectable.

Worker exposure to de minimis “releases” from “processing” steel
are adequately addressed through OSHA regulations that set permissible
exposure levels and require MSDS notifications.  The filing of an EPCRA
section 311 notification or an EPCRA section 312 inventory for steel
working operations neither advances the goals of community
right-to-know, nor assists local emergency planners or officials. 
Instead, a substantial regulatory reporting burden is imposed without
any benefit.  Accordingly, EPA should finalize its proposed
interpretations of the “solids exclusion.”

We believe EPA should extend its new interpretation of the solids
exclusion to EPCRA section 313.  Metals that remain as solids (not fume
or dust) cannot be spilled, ignited, or otherwise be “released” in
any way that is potentially harmful to the community.  In the proposed
rule to amend sections 311 and 312, EPA recognizes that threshold-based
reporting for solids metals) requires the reporting of “unnecessary
information” because the community is never exposed to the entire
metal stock.  The existing threshold quantities for “manufacturing,
processing, or otherwise using” solid metals under section 313 of
EPCRA similarly results in over-reporting without any benefit.  Section
313 assumes that facilities that “manufacture, process, or otherwise
use” listed substances above certain “activity” thresholds could
“release” those chemicals at concentrations that pose dangerous
exposures to neighboring communities. Congress established
“activity” levels expressed as 25,000 pounds for “manufacturing
and processing” and 10,000 pounds for “otherwise use,” regardless
of the substance.  In establishing these activity thresholds, Congress
explicitly recognized that EPA may revise thresholds for individual
substances or classes of substances (such as metals in the form of
solids).  See 42 U.S.C.  11023(e)(2).

On promulgating the final regulations implementing section 313, EPA
recognized that experience would play a vital role in possibly changing
reporting thresholds in the future.  After “several years” of data
collection, the Agency contemplated future threshold modifications after
considering exposure factors, such as population density, the distance
of population from covered facilities, the types of releases, and the
“potency” of the listed substance or class of substances.  EPA now
has a decade of experience on which it can rely.  For the reasons set
forth above, EPA should apply the proposed, expanded interpretation of
the “solids exclusion” to section 313 reporting as well as the
sections 311 and 312 programs. [117a, 117b, 117c, 117d, 117e]

We agree that the current interpretation of this exemption creates an
unnecessary burden of reporting for certain industries.  EPA’s
proposal to require reporting of only threshold amounts of the dust or
fume given off a piece of a manufactured solid appears to be reasonable.
[118, 119, 129, 122]

We agree with the proposed interpretation of the hazardous chemical
exemption for solids under EPCRA section 311(e)(2) as drafted.  In this
case, if a model had been applied, we believe the proposed exemption
would be supported by showing no off-site or emergency responder
exposure potential. [119, 129]

EPA’s current interpretation of EPCRA section 311 is that all
chemicals in an entire solid manufactured item must be counted toward
the threshold even if only a small part of the solid manufactured item
is processed such that exposure could occur.  We strongly agree with
EPA’s determination that this interpretation requires reporting of
information that is not necessary for protection of human health and the
environment, and believe that it is not useful to the emergency planning
agencies to which it is provided.  Beyond our endorsement of the
proposed change for purposes of section 311(e)(2), however, we earnestly
request that EPA extend the reasoning of the draft guideline to section
313 reporting. [130]

We support the proposed modification on the interpretation of the
exemption for solids so that only the amount of fume or dust given off a
piece of metal or other manufactured solid that is being modified be
subject to EPCRA section 311 and 312.  The change could result in a
reduction in reporting for some facilities. [133]

We support the proposed interpretation of the article exemption.  The
purpose of the article exemption is to exclude from EPCRA reporting
those substances which do not pose a risk of adverse health effects
because “articles” pose little or no risk of human exposure to the
hazardous substances incorporated in them.  When a piece of metal is
being modified such that it releases fume or dust, only the fume or dust
poses a health risk.  The piece of metal that remains intact continues
to retain the characteristics of an article.  Therefore, the fact that
part of the metal has been released in the form of fume or dust does not
warrant counting all the hazardous substances in the remaining intact
piece of metal toward the threshold calculation. [137]

We support the EPA interpretation of the article exemption for solids.
Only the amount of fume or dust given off a metal or other solid, as it
is modified, should be subject to threshold determinations under EPCRA
section 311-312.  The purpose of the article exemption is to exclude
from EPCRA reporting those substances that do not pose a risk of adverse
health effects. The public and emergency responders are generally
familiar with the hazards associated with intact metals. [139]

We endorse the concept that certain solids should not be reported
unless, during modification, a fume or dust results and exceeds a
threshold.  This will relieve the system of information that is of
little value to emergency responders and is of questionable value to the
public. [140]

We have no opinion, although this might represent more of a burden to
industry to determine the amount of material that is dust or fume as
opposed to the total amount of a solid present at the facility at a
given time. [147]

We support the consideration for EPA interpreting the exemption of
hazardous chemicals at EPCRA section 311(e)(2) so that only the amount
of dust or fume given off from a piece of metal (or other manufactured
solid) be applied toward threshold determination.  From our perspective,
it makes no sense to have 10,000 pounds of steel undergoing a welding
process to count toward threshold determination while the only
“release” is welding fumes. From the public perspective, this
interpretation will give the public more consistent and meaningful
information. [148]

We concur with EPA’s recommendation regarding the interpretation of
the hazardous chemical exemption for solids under EPCRA section
311(e)(2). [167, 180]

We support the proposed interpretation of the hazardous chemical
exemption for solids under EPCRA section 311(e)(2).  This will reduce
reporting burden.  However, the proposal will have no impact on the
preservation of public health and safety benefits and the achievement of
EPCRA’s environmental goals.  Regarding the rewrite in plain English
to reduce regulatory burden and improve compliance, the explanation
needs to be clear. [177]

We agree with EPA that chemicals present in solid substances present a
minimal risk to the community and support the proposed interpretation
that only fumes or dust given off a piece of metal (or other
manufactured solid) be subject to EPCRA section 311 and 312 and applied
to threshold determinations. [L01]

Agency Response

As expected, commenters supported the new interpretation for this
exemption. Facilities would only have to count the amount of fume or
dust given off a piece of metal that is being modified toward the
threshold determination.  In addition, as stated in the preamble to the
proposed rule, EPA would like to re-state that stamping a piece of metal
doesn’t negate the exemption for that piece of metal; the piece of
metal would still qualify for the exemption.  EPA believes that the
stamping of sheet metal does not present exposure to a hazardous
chemical.  

This new interpretation would also apply to a brick that undergoes a
modification process (for example cutting).  Facilities would only need
to count the amount of fume or dust released during the modification of
a brick toward threshold determination.  

H.	Emergency Planning Notification

		Prior to the June 1998 proposed rule, some SERCs and LEPCs have
requested EPA to define the term “promptly” in the regulations in 40
CFRR part 355 in reference to providing changes relevant to emergency
planning.  These entities have requested a time frame, that is, 10, 20,
30 days.  EPA requested comments whether EPA should provide this
guidance.  

Some commenters supported EPA’s proposed use of “promptly” and
guidance that 10 to 20 days would qualify.  Other commenters proposed
different time periods, from 7 to 90 days.  A number of commenters noted
that each section uses different time periods and sought consistency.  A
few commenters objected to “promptly” because it is vague.

The LEPC does not have any regulatory authority to force compliance so
we proceed at a reasonable pace.  I have included a letter to show you
what we consider reasonable and can report that this company has still
not made any attempt to file Tier II reports.  To define “promptly”
is probably a moot point. [018]

Notification that a facility is subject to emergency planning
requirements and the name of the facility emergency coordinator should
be provided to the LEPC.  Because the LEPC is charged with writing the
emergency plan, they should not have to rely on the SERC for information
about which facilities should be included in the plan. [057]

We reviewed the intended definition “promptly” for emergency
planning notification.  We agree that the EPA’s belief that 10 to 20
working days is generally a reasonable amount of time to provide such
notice. [98]

First, we recommend that EPA consider including this information within
the regulations to provide clearer guidance to facilities.  In addition,
consideration should also be given to clarifying the obvious question
concerning at what point enforcement action could be taken against a
facility that fails to report “promptly.”

Second, there seems to be inconsistency among the various notification
and updating requirements. Under the emergency planning requirements, a
facility must provide notification within 60 days after the facility
first becomes subject to the requirement.  Under section 311, a facility
has 3 months to provide notification after an EHS is brought on site
above the threshold, or first exceeds the threshold.  Under this newly
proposed EPA guidance, facilities would be required to provide
notification of changes impacting emergency planning within l0 to 20
working days.  We recommend that EPA consider the relationships and
overlap among these reporting obligations and attempt to establish
consistency among the required time frames for reporting. [104]

EPA is proposing to add the term “promptly” to the requirement that
facility owners or operators inform the LEPC of any changes occurring at
the facility which may be relevant to emergency planning.  We oppose the
addition of this term, as it is ambiguous.  It is recommended that the
EPA provide a 90 day time period for notification. [106]

EPA has proposed that 10 to 20 working days is generally a reasonable
amount of time to provide notice, as required under § 355.30 of the
existing regulations (§ 355.20 in proposed regulations).  This language
is being considered as guidance for the term “promptly” in this
section. We oppose the addition of the term “promptly,” as it is
ambiguous and do not find the suggested 10 to 20 day interpretation of
“promptly” to be reasonable.  It is suggested that the EPA codify a
90-day time period for notification, consistent with past guidance on
this requirement. [106]

Support EPA’s efforts to clarify the term “promptly” for purposes
of updating information that reflects changes relevant to emergency
planning and any information requested by the LEPC that is necessary for
developing or implementing the local emergency plan.  API believes,
however, that 20 to 30 working days is generally a reasonable amount of
time to provide such notice, rather than the 10 to 20 working days
suggested by EPA in the proposal.  As the Agency establishes its
standard for “promptly,” API urges the Agency to ensure that the
standard is consistent with use of that term in the context of Risk
Management Programs (RMPS) under the Clean Air Act. [116]  

With regard to emergency planning information, we recommend that EPA use
10 working days as an interpretation of promptly supplying requested
information to the SERC and LEPCs. [118]

A time limit is better than an open-ended guideline.  The 10-20 day time
frame in the suggested guidance may be inconsistent with the 30 days
provided under section 311 for responding to requests for copies of
MSDSs to fulfill public requests. [119, 129]

With regard to emergency planning notification, pre-notification of EHSs
should be required.  Any response for requests and/or changes should be
done within a 7 calendar day period. [122]

The presence of EHSs at a facility requires notification by the facility
to the SERC and LEPC in the form of a Tier II form with the EHS box
checked.  EPCRA Section 304 notification is redundant.  If a facility
has an EHS chemical above TPQs, the appropriate box on the Tier II is
marked.  We recommend eliminating that superfluous section.  Emergency
contact numbers are also listed. [123]

While we agree that the guidance being suggested by EPA to define
“promptly” (as 10-20 days) is reasonable, we believe that defining
“promptly” as 30 days would make it consistent with the other 30-day
notifications in the table proposed in § 355.20. Because this is an
important definition, this particular definition should be codified in
the regulations.  It would also be consistent with the proposed 30-day
guidance to define “as soon as practicable” for the written release
follow-up notification.  Notifications of some changes relevant to a
facility’s emergency planning (e.g., naming of a new facility
emergency coordinator) would be relatively straightforward and
notification could be expected within 10-20 days, while other
notifications might take longer.  This could especially be the case in
responding to a request for information from an LEPC where the
information is not readily available in a content and/or format suitable
for the response.Additionally, we suggest that EPA clarify that the
10-20 days are intended to be “working days” not “calendar
days.” [133]

We support 20 working days as being sufficiently prompt. [139]

We endorse guidance on facilities “promptly” providing notice on
their coverage under EPCRA section 302 and believe a 10 to 20
working-day period is appropriate.  EPA may want to consider
consistency, however, in that the term “working day” is different
from any other reporting period (usually “day” or “month”)
prescribed in EPCRA. [140]

We agree that 10 - 20 working days satisfies the requirement for prompt
reporting. [167, 180]

The term “promptly” needs to be clarified. A facility might consider
6 months to be “prompt.”  Clarification is needed to for the rewrite
in plain English to reduce regulatory burden and improve compliance.
[177]

In reviewing this proposal, we presume that EPA is intentionally making
a distinction between the phrases “promptly” and “as soon as
practicable” by proposing a 10-20-day standard for the emergency
planning notification and a 30-day standard for the emergency release
notification. The emergency planning notification appears to reflect the
guidance in EPA’s Enforcement Response Policy for Emergency
Preparedness/Right-To-Know Violations; however, the emergency release
notification timeline conflicts with the enforcement policy’s
application for Section 304 Written Follow-Up Reports (Level 3 - Report
provided more than seven calendar days, but less than or equal to 14
calendar days).  We urge EPA to offer guidance consistent with its
enforcement policies. [178]

EPA requests comment on the meaning of “promptly” under § 355.30,
which requires notice of any changes relevant to emergency planning, and
any information requested by the LEPC that is necessary for developing
or implementing the local emergency plan.  The preamble to the proposed
rule states that “EPA believes that 10 to 20 working days is generally
a reasonable amount of time...”  Instead, EPA guidance should state
that 30 days generally would be acceptable.  This would allow regulated
entities, particularly small companies, adequate time to evaluate the
issues and prepare a submission, and would be consistent with the time
otherwise established in the regulations for submission of Tier I
information. [L05]

Agency Response

		As EPA made some revisions recently to the emergency planning
notification and some other revisions in 40 CFR part 355.  EPA decided
to define the term “promptly” as 30 days in 40 CFR 355.20.  See the
final rule published on November 3, 2008 (73 FR65452).

 

I.	Emergency Release Notification

A written follow-up is to be provided “as soon as practicable” after
a release.  EPA requested comments if EPA should define the term “as
soon as practicable”.  EPA sought comments whether 30 days should be
allowed to provide written follow-up notice.  

Commenters generally supported defining “as soon as practicable,”
but differed on whether 30 days was a reasonable period.  Some stated
that the period should be shorter (7 or 14 days) or longer (45 to 90
days); others supported the 30-day period. A few commenters noted that
30 days was inconsistent with EPA’s guidance on enforcement actions.

The word “practicable” is an acceptable definition.  The Wyoming
Emergency Management Agency usually takes all spill calls and is
considered to be the agency to which organizations report.  The LEPC
does not have a staff or a phone number to which to call a spill so EMA
has acted in that capacity.  Almost all visible or odiferous releases of
chemicals in the community are not hazardous chemicals, but if the
release causes community concern this LEPC does ask for an explanation. 
We might have the company appear before the committee and explain the
findings of their incident investigation.  To my knowledge, no one has
ever voluntarily provided a written emergency release notification to
this LEPC. [018]

It should be “practicable” to provide the written follow-up
emergency notice within no more than 30 days.  The EPA language should
only be amended to state that the phrase as soon as practicable can
never be more than 30 days, but less time is more appropriate.  As a
practical matter, when has EPA ever enforced this?  Our experience has
been that since there are no real requirements for accuracy and
truthfulness in the written follow-up emergency notice, the intent of
the law has been largely skirted by facilities reporting releases, and
in effect, vacated by EPA. [034]

We would like to encourage EPA to state unequivocally that 30 days
(although depending on the circumstances, more time may be appropriate)
should be considered “as soon as practicable.”  In our experience
“as soon as practicable” is one of several terms in 40 CFR Part 355
that requires a better definition.  EPA’s willingness to state that
the 30 days is a general guideline is appreciated.  It would be further
appreciated if the agency would state in preamble language that this
guidance is intended to supersede the implied guidance in the
EPCRA/CERCLA penalty policy (OSWER DIR. #99841.2, page 12).  The penalty
policy suggests that “as soon as practicable” could be as little as
one week, absent “extenuating circumstances.”  

We would like to encourage the EPA to go further in defining terms used
in 40 CFR part 355.  Specifically EPA would provide a service by giving
some guidance around the term immediately as that term is used to define
the period for the initial EPCRA section 304 notice.  At present, it
seems that term is defined by reference to the penalty policy and/or to
case law, at least for those who have access to the case law. [059]

We agree that in the event of a release, it is practicable to provide a
written follow-up emergency release notification in no more than 30 days
following the release, although, depending on circumstances, more or
less time may be appropriate for the written follow-up notification.
[095]

We reviewed the meaning of “as soon as practicable” for emergency
release notification.  We agree with the EPA’s belief that generally
this means that notice should be provided in no more than 30 days. [98] 

We agree with the proposed guidance that it should be practicable to
provide a written follow-up release notice in no more than 30 days. 
Delaware has a state release reporting regulation that contains a
similar 30-day requirement for submission of written follow-up reports. 
In addition, however, we recommend that EPA consider including this
information within the regulations to provide clearer guidance to
facilities.  Consideration should also be given to clarifying the
obvious question concerning at what point enforcement action could be
taken against a facility that fails to report “as soon as
practicable.” [104]

EPA has proposed that written follow-up notice following a release be
provided in no more than 30 days.  However, EPA states that “depending
on the circumstances, more or less time may be appropriate.”  It is
suggested that the EPA provide a 90-day time period for notification,
consistent with past guidance on this requirement.  A specific,
reasonable time frame avoids confusion on the part of the reporting
entity. [106]

Agree with the provision to provide written notification within 30 days
of an emergency release.  The EPA enforcement and penalty guidance
should be made consistent with the 30 day reporting period. [107] 

We also support EPA’s decision to consider clarifying the term “as
soon as practicable” for purposes of submitting a written follow-up
emergency notice after there has been a release.  Instead of a 30-day
time frame, however, we believe the notice should be submitted within 45
days of the release. [116]

Ohio statute establishes a 30-day submission standard for companies to
submit letters regarding releases.  Currently, we send a reminder letter
to companies.  This has resulted in very few companies not submitting a
response within the allotted time.  Therefore, we support the proposal
to establish a 30-day standard for the release reporting letter.  It
would also be beneficial to state that “new” information after the
thirty day letter should be submitted as soon as possible.  Sometimes
sample data or inventory data is not available within thirty days, but
it is important and should be submitted. [119, 129]

We concur with the proposed timing for emergency release notification;
Arizona also requires notification within seven days as new information
is made available. [122]

We support the 30-day guidance being suggested by EPA.  We believe that
this is a sufficient time for a regulated facility to make the follow-up
release notification. [133 139]

We endorse guidance on the definition of “as soon as practicable”
for facilities providing follow-up information on releases under EPCRA
section 304.  A 30-day period is appropriate, given the flexibility
noted by EPA that under extenuating circumstances a longer period may be
necessary.  Note should be made that by resolution, the NC SERC has
already defined “as soon as practicable” to be 45 days and can
change this resolution if necessary. [140]

We do not agree with the proposed guidance on the meaning of “as soon
as practicable.”  EPA states that it does not intend to “define the
phrase” by proposing a set number of days in guidance. Despite
protestations to the contrary, fixing a number of days in federal
guidance will effectively do so. As stated in the Proposed Rule, while a
30-day reporting period may be appropriate under one set of
circumstances, it may constitute an unjustifiable delay in another. 
Policy considerations would operate against adoption of any fixed number
since, under such a policy, a responsible party could simply wait until
the prescribed day arrives before providing notification. While a
regulatory authority may contest the delay as unjustifiable, industry
will be armed with federal guidance that suggests 30 days is reasonable.
 Finally, a review of the EPA’s Interim Final EPCRA Penalty Policy
(January 8, 1998) indicates that a Level 3 Action may be directed at a
facility that fails to provide written follow-up emergency notice more
than seven calendar days (but less than or equal to 14 calendar days)
following the release. The proposed guidance would suggest more than
four times that period. Currently, the company has the burden to show
that seven calendar days was not practicable within which to produce a
written follow up report. The proposed guidance would likely shift that
burden to a regulatory agency to argue that 30 days was an unreasonable
delay. [141]

Thirty days seems excessive to wait for the follow-up emergency notice
after a release.  This period of time should be brought into line with
that required for emergency planning notification. [151]

Guidance for the timeliness of written release notification should
encourage rapid notification. A range of 10-20 working days would seem
attainable in all but a few extreme releases. [167, 180]

Maine law specifies 14 days. This is consistent with our Department of
Environmental Protection requirements, and the contents of the report
are quite consistent.  The proposal will have no impact on the reduction
of reporting burdens, the preservation of public health and safety
benefits, the achievement of EPCRA’s environmental goals, and the
flexibility of options. [177]

In reviewing this proposal, we presume that EPA is intentionally making
a distinction between the phrases “promptly” and “as soon as
practicable” by proposing a 10-20-day standard for the emergency
planning notification and a 30-day standard for the emergency release
notification. The emergency planning notification appears to reflect the
guidance in EPA’s Enforcement Response Policy for Emergency
Preparedness/Right-To-Know Violations; however, the emergency release
notification timeline conflicts with the enforcement policy’s
application for Section 304 Written Follow-Up Reports (Level 3 - Report
provided more than seven calendar days, but less than or equal to 14
calendar days).  We urge EPA to offer guidance consistent with its
enforcement policies. [178]

We urge EPA to provide appropriate guidance on the timing of reporting
required to be made “promptly.” [L05]

Agency Response

		As suggested by most of the commenters, EPA is defining the meaning of
the phrase “as soon as practicable” to be 30-days.  That means, a
facility should provide the written follow-up notice after a release to
the SERC and the LEPC of any area or any State affected by the release
in no more than 30 days.  List of Commenters Sorted by Organization
Type

Comment #	Business/Industries

		

001		Sara Lee Sock Company

015		Badger Mining Corporation

059		Weyerhaeuser

062		Westinghouse Electric Corporation

099		Duquesne Light

105		Coors Brewing Company

106		General Motors Corporation

107		Air Products and Chemicals, Inc.

109		Chemical Products Corporation

113		Dow Chemical Company

121		Chevron Corporation

126		Bell Atlantic Corporation

138		S.C. Johnson Wax

139		Duke Energy

148		Norfolk Shipbuilding & Drydock Corporation

153		Reynolds Metals Company

166		Unimin Corporation

176		New England Electric System Transmission and Distribution Companies

181		Eli Lilly and Company

		

		

Environmental and Public Interest Groups

034		Don’t Waste Arizona, Inc.

097		Working Group on Community Right-to-Know

Federal Government

	

133		Department of Energy

LEPCs – SERCs – EMAs

		

005		City of Beverly LEPC

006		County of Park – Emergency Management Agency/LEPC

007		La Porte County Emergency Managing Committee

009		Oklahoma County – Local Emergency Planning Committee

010		Richland County Local Emergency Planning Committee

011		Oklahoma Hazardous Materials Emergency Response Commission

012		City of Kent Fire Department

013		City of Romulus Michigan Emergency Coordinator

014		Charlotte-Mecklenburg Emergency Management Office

016		Turner County LEPC

017		County of Columbiana Local Emergency Planning Committee

018		Laramie County of Wyoming

020		Decatur Morgan County LEPC

031		Pottawatomie County Local Emergency Planning Committee

032		County of Park Emergency Management Agency/LEPC

048		Springfield Local Emergency Planning Committee

055		North Central Florida Local Emergency Planning Committee

056		Monroe County Local Emergency Planning Committee

061		State of Wisconsin Emergency Management

096		Harford County Government Local Emergency Planning Committee

098		Portage County Local Emergency Planning Committee

100		Jefferson County Local Emergency Planning Committee 

103		Trumbull County Local Emergency Planning Committee

112		Williams County Local Emergency Planning Committee

122		Arizona State Emergency Response Commission

123		Monroe County Local Emergency Planning Committee

125		Montgomery/Greene County Local Emergency Response Council

129		Ohio State Emergency Response Commission

129a		LEPCs from Stark, Holmes, Wayne, and Carol Counties in Ohio

141		Illinois Emergency Management Agency

143		Honolulu Local Emergency Planning Committee

145		State of Connecticut State Emergency Response Commission

147	State of Maryland Emergency Management Advisory Council Emergency
Response Commission

149		Cuyahoga County LEPC

151		City and County of Denver Office of Emergency Management

152		Arapahoe County Sheriff’s Office

164		Cleveland County Local Emergency Planning Committee

165		Cabell/Wayne Local Emergency Planning Committee

167		Fairfax Joint Local Emergency Planning Committee

174		Oakland County LEPC

L03		Indiana Emergency Response Commission 

L13		Kentucky Emergency Response Commission

L15/OC-6	California Office of Emergency Services

OC-4		Richland County Local Emergency Planning Committee

		

		

State/Local Government

057		Oklahoma Department of Environmental Quality

058		New Jersey Department of Environmental Protection

104		State of Delaware Department of Natural Resources & Environmental
Control

108		Kansas Department of Health and Environment

118		Texas Department of Health

132		Confederated Tribes and Bands of the Yukima Indian Nation

140		North Carolina Department of Crime Control and Public Safety

177		State of Maine Department of Defense, Veterans, and Emergency
Management

178		State of Florida Department of Community Affairs

		

Trade Associations 

095		Chemical Manufacturers Association

101		American Forest & Paper Association

110		Kentucky Fertilizer and Agricultural Chemical Association, Inc.

115		Petroleum Marketers Association of America

116		American Petroleum Institute

117a		Outdoor Power Equipment Institute

117b		Steel Manufacturers Association

117c		Specialty Steel Industry of North America

117d		National Shipbuilding Research Program

117e		Valve Manufacturers Association

119		National Association of SARA Title Three Program Officials

130		American Institute of Steel Construction and Steel Joist Institute

131		American Trucking Association

137		Edison Electric Institute

L01		National Grain and Feed Association

L04		Petroleum Transportation & Storage Association

L05		 Synthetic Organic Chemical Manufacturers Association

		Citizens

OC-2		Radabaugh, Gary L.

OC-3		Jung, Doo

OC-7		VeHauun, M. Jerry

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