[Federal Register Volume 79, Number 189 (Tuesday, September 30, 2014)]
[Rules and Regulations]
[Pages 58686-58693]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-23255]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 372

[EPA-HQ-TRI-2012-0110; FRL-9915-59-OEI]
RIN 2025-AA34


Addition of Nonylphenol Category; Community Right-To-Know Toxic 
Chemical Release Reporting

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is adding a 
nonylphenol category to the list of toxic chemicals subject to 
reporting under section 313 of the Emergency Planning and Community 
Right-to-Know Act (EPCRA) of 1986 and section 6607 of the Pollution 
Prevention Act (PPA) of 1990. EPA is adding this chemical category to 
the EPCRA section 313 list pursuant to its authority to add chemicals 
and chemical categories because EPA has determined that this category 
meets the EPCRA section 313(d)(2)(C) toxicity criterion.

DATES: This final rule is effective on September 30, 2014, and shall 
apply for the reporting year beginning January 1, 2015 (reports due 
July 1, 2016).

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-TRI-2012-0110. All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the OEI Docket, EPA/DC, EPA 
West, Room 3334, 1301 Constitution Ave. NW., Washington, DC. This 
Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the OEI 
Docket is (202) 566-1752.

FOR FURTHER INFORMATION CONTACT: Daniel R. Bushman, Environmental 
Analysis Division, Office of Information Analysis and Access (2842T), 
Environmental Protection Agency, 1200 Pennsylvania Ave. NW., 
Washington, DC 20460; telephone number: 202-566-0743; fax number: 202-
566-0677; email: bushman.daniel@epa.gov, for specific information on 
this notice. For general information on EPCRA section 313, contact the 
Emergency Planning and Community Right-to-Know Hotline, toll free at 
(800) 424-9346 (select menu option 3) or (703) 412-9810 in Virginia and 
Alaska or toll free, TDD (800) 553-7672, http://www.epa.gov/superfund/contacts/infocenter/.

SUPPLEMENTARY INFORMATION: 

[[Page 58687]]

I. General Information

A. Does this notice apply to me?

    You may be potentially affected by this action if you manufacture, 
process, or otherwise use nonylphenol. Potentially affected categories 
and entities may include, but are not limited to:

------------------------------------------------------------------------
                                        Examples of potentially affected
               Category                             entities
------------------------------------------------------------------------
Industry.............................  Facilities included in the
                                        following NAICS manufacturing
                                        codes (corresponding to SIC
                                        codes 20 through 39): 311*,
                                        312*, 313*, 314*, 315*, 316,
                                        321, 322, 323*, 324, 325*, 326*,
                                        327, 331, 332, 333, 334*, 335*,
                                        336, 337*, 339*, 111998*,
                                        211112*, 212324*, 212325*,
                                        212393*, 212399*, 488390*,
                                        511110, 511120, 511130, 511140*,
                                        511191, 511199, 512220, 512230*,
                                        519130*, 541712*, or 811490*.
                                       *Exceptions and/or limitations
                                        exist for these NAICS codes.
                                       Facilities included in the
                                        following NAICS codes
                                        (corresponding to SIC codes
                                        other than SIC codes 20 through
                                        39): 212111, 212112, 212113
                                        (correspond to SIC 12, Coal
                                        Mining (except 1241)); or
                                        212221, 212222, 212231, 212234,
                                        212299 (correspond to SIC 10,
                                        Metal Mining (except 1011, 1081,
                                        and 1094)); or 221111, 221112,
                                        221113, 221119, 221121, 221122,
                                        221330 (Limited to facilities
                                        that combust coal and/or oil for
                                        the purpose of generating power
                                        for distribution in commerce)
                                        (corresponds to SIC 4911, 4931,
                                        and 4939, Electric Utilities);
                                        or 424690, 425110, 425120
                                        (Limited to facilities
                                        previously classified in SIC
                                        5169, Chemicals and Allied
                                        Products, Not Elsewhere
                                        Classified); or 424710
                                        (corresponds to SIC 5171,
                                        Petroleum Bulk Terminals and
                                        Plants); or 562112 (Limited to
                                        facilities primarily engaged in
                                        solvent recovery services on a
                                        contract or fee basis
                                        (previously classified under SIC
                                        7389, Business Services, NEC));
                                        or 562211, 562212, 562213,
                                        562219, 562920 (Limited to
                                        facilities regulated under the
                                        Resource Conservation and
                                        Recovery Act, subtitle C, 42
                                        U.S.C. 6921 et seq.)
                                        (corresponds to SIC 4953, Refuse
                                        Systems).
Federal Government...................  Federal facilities.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be affected by this 
action. Some of the entities listed in the table have exemptions and/or 
limitations regarding coverage, and other types of entities not listed 
in the table could also be affected. To determine whether your facility 
would be affected by this action, you should carefully examine the 
applicability criteria in part 372 subpart B of Title 40 of the Code of 
Federal Regulations. If you have questions regarding the applicability 
of this action to a particular entity, consult the person listed in the 
preceding FOR FURTHER INFORMATION CONTACT section.

II. Introduction

A. What is the statutory authority for this final rule?

    This rule is issued under EPCRA section 313(d) and section 328, 42 
U.S.C. 11023 et seq.. EPCRA is also referred to as Title III of the 
Superfund Amendments and Reauthorization Act of 1986.

B. What is the background for this action?

    Section 313 of EPCRA, 42 U.S.C. 11023, requires certain facilities 
that manufacture, process, or otherwise use listed toxic chemicals in 
amounts above reporting threshold levels to report their environmental 
releases and other waste management quantities of such chemicals 
annually. These facilities must also report pollution prevention and 
recycling data for such chemicals, pursuant to section 6607 of the PPA, 
42 U.S.C. 13106. Congress established an initial list of toxic 
chemicals that comprised more than 300 chemicals and 20 chemical 
categories.
    EPCRA section 313(d) authorizes EPA to add or delete chemicals from 
the list and sets criteria for these actions. EPCRA section 313(d)(2) 
states that EPA may add a chemical to the list if any of the listing 
criteria in Section 313(d)(2) are met. Therefore, to add a chemical, 
EPA must demonstrate that at least one criterion is met, but need not 
determine whether any other criterion is met. Conversely, to remove a 
chemical from the list, EPCRA section 313(d)(3) dictates that EPA must 
demonstrate that none of the listing criteria in Section 313(d)(2)(A)-
(C) are met. The EPCRA section 313(d)(2)(A)-(C) criteria are:
     The chemical is known to cause or can reasonably be 
anticipated to cause significant adverse acute human health effects at 
concentration levels that are reasonably likely to exist beyond 
facility site boundaries as a result of continuous, or frequently 
recurring, releases.
     The chemical is known to cause or can reasonably be 
anticipated to cause in humans:
    [cir] cancer or teratogenic effects, or
    [cir] serious or irreversible--
    [ssquf] reproductive dysfunctions,
    [ssquf] neurological disorders,
    [ssquf] heritable genetic mutations, or
    [ssquf] other chronic health effects.
     The chemical is known to cause or can be reasonably 
anticipated to cause, because of:
    [cir] its toxicity,
    [cir] its toxicity and persistence in the environment, or
    [cir] its toxicity and tendency to bioaccumulate in the 
environment, a significant adverse effect on the environment of 
sufficient seriousness, in the judgment of the Administrator, to 
warrant reporting under this section.
    EPA often refers to the section 313(d)(2)(A) criterion as the 
``acute human health effects criterion;'' the section 313(d)(2)(B) 
criterion as the ``chronic human health effects criterion;'' and the 
section 313(d)(2)(C) criterion as the ``environmental effects 
criterion.''
    EPA published in the Federal Register of November 30, 1994 (59 FR 
61432), a statement clarifying its interpretation of the section 
313(d)(2) and (d)(3) criteria for modifying the section 313 list of 
toxic chemicals.

III. Summary of Proposed Rule

A. What chemical did EPA propose to add to the EPCRA section 313 list 
of toxic chemicals?

    EPA proposed to add a nonylphenol category to the EPCRA section 313 
list of toxic chemicals. As discussed in the proposed rule (78 FR 
37176, June 20, 2013) because there is no one Chemical Abstract Service 
Registry Number (CASRN) that adequately captures what is referred to as 
nonylphenol and because of the apparent confusion that has resulted 
from the use of multiple CASRNs, EPA proposed to add nonylphenol as a 
category defined by a structure. EPA proposed to define the

[[Page 58688]]

nonylphenol category using the structure and text presented below.
BILLING CODE 6560-50-P
[GRAPHIC] [TIFF OMITTED] TR30SE14.000

BILLING CODE 6560-50-C

B. What was EPA's rationale for proposing to list nonylphenol?

    As EPA stated in the proposed rule (78 FR 37176, June 20, 2013), 
nonylphenol is highly toxic to numerous species of aquatic organisms. 
EPA's technical evaluation of nonylphenol showed that it can reasonably 
be anticipated to cause, because of its toxicity, significant adverse 
effects in aquatic organisms. The observed effects from nonylphenol 
exposure occur at very low concentrations demonstrating that 
nonylphenol is highly toxic to aquatic organisms. Data summarized in 
the proposed rule included acute toxicity values for freshwater 
organisms ranging from 21 micrograms per liter ([mu]g/L) for a 
detritivorous amphipod to 774 [mu]g/L for an algal grazing snail. Acute 
toxicity values for freshwater fish ranged from 110 [mu]g/L for the 
fountain darter to 128 to 360 [mu]g/L for the fathead minnow. Acute 
toxicity values for saltwater organisms ranged from 17 [mu]g/L for the 
winter flounder to 310 [mu]g/L for the sheepshead minnow. The proposed 
rule also cited chronic toxicity values for several aquatic species 
ranging from 5 [mu]g/L for growth effects in mysid shrimp to 377 [mu]g/
L for survival effects in water fleas. Chronic toxicity values for 
rainbow trout ranged from 8 [mu]g/L for effects on growth to 53 [mu]g/L 
for abnormal development. Reproductive, developmental, and estrogenic 
effects on aquatic organisms have also been reported for nonylphenol 
with some effects observed at concentrations of 4 [mu]g/L or less. In 
the proposed rule EPA stated it believes that the evidence is 
sufficient for listing the nonylphenol category on the EPCRA section 
313 toxic chemical list pursuant to EPCRA section 313(d)(2)(C) based on 
the available ecological toxicity data.

IV. What comments did EPA receive on the proposed rule and what are 
EPA's responses to those comments?

    EPA received three comments on the proposed rule to add a 
nonylphenol category to the EPCRA section 313 list of toxic chemicals. 
The comments received were from the following groups, the Alkylphenols 
& Ethoxylates Research Council (APERC) (Reference (Ref.) 1), Intel 
Corporation (Ref. 2), and the National Council for Air and Stream 
Improvement (NCASI) (Ref. 3). Summaries of the most significant 
comments and EPA's response are discussed below. The complete set of 
comments and EPA's detailed responses can be found in the response to 
comments document in the docket for this rulemaking (Ref. 4).
    All three commenters requested that EPA define the nonylphenol 
category by chemical name and CASRN rather than by a chemical 
structure. The commenters were concerned that reporting by chemical 
structure would be difficult for some reporters who lacked detailed 
knowledge of the chemicals they use. The commenters felt that using 
chemical names and CASRNs would simplify reporting and be less 
burdensome.
    There are several TRI chemical categories listed based on chemical 
structures or chemical formulas and reporting has not been a 
significant issue for those listings. EPA continues to believe that 
listing nonylphenol as a category defined by structure would be an 
appropriate way to list the category. However, since there are a 
limited number of CASRNs used to identify nonylphenol mixtures, EPA has 
decided to modify the category listing to address the commenter's 
concerns. EPA is listing nonylphenol as a delimited category defined by 
the existing names and CASRNs. The nonylphenol category will be listed 
as:

                               Nonylphenol
       [This category includes only those chemicals listed below]
------------------------------------------------------------------------
               CAS No.                           Chemical name
------------------------------------------------------------------------
104-40-5.............................  4-Nonylphenol.
11066-49-2...........................  Isononylphenol.
25154-52-3...........................  Nonylphenol.
26543-97-5...........................  4-Isononylphenol.
84852-15-3...........................  4-Nonylphenol, branched.
90481-04-2...........................  Nonylphenol, branched.
------------------------------------------------------------------------

    The category includes all of the CASRNs and chemical names that the 
commenters cited as having been used to define nonylphenol. In 
addition, EPA has identified one additional CASRN (26543-52-3) that is 
covered by the category. This limited set of chemical names and CAS 
numbers covers all the chemicals we are aware of that would have been 
in the category as described by chemical structure. At this time, EPA 
does not expect that reports will be filed for any of the identified 
CASRNs other than 84852-15-3 and 25154-52-3, which were used to 
estimate the cost of the proposed nonylphenol category (Ref. 5). 
Nevertheless, the other CASRNs are included in order to cover the 
complete nonylphenol category that has been identified at this time. As 
noted by one commenter, this type of category listing is similar to the 
current listings for diisocyanates, dioxin and dioxin-like compounds, 
and polycyclic aromatic compounds. While listing nonylphenol as a 
chemical structure based category would be appropriate, listing the 
category by name and CASRN should eliminate the potential reporting 
issues the commenters identified with a structure based category.
    APERC stated that EPA proposed to list nonylphenol based on its 
toxicity and tendency to bioaccumulate in the environment under EPCRA 
section (d)(2)(C)(iii). APERC noted that nonylphenol is not persistent 
or

[[Page 58689]]

bioaccumulative and suggested that be recognized in EPA's hazard review 
for determining whether nonylphenol represents a sufficiently serious 
hazard to warrant significant nation-wide reporting under EPCRA section 
313. APERC stated that EPA should rely on definitions for 
``persistence'' and ``bioaccumulative'', which are consistent with 
those established for EPCRA section 313 (64 FR 58666, October 29, 
1999). APERC also stated that nonylphenol was mischaracterized in the 
proposed rule as persistent based on statements previously made in the 
EPA Action Plan (Ref. 6). APERC requested that EPA correct the record 
for the proposed rule and Action Plan to reflect that nonylphenol is 
not persistent or bioaccumulative.
    APERC is mistaken in their understanding of the basis EPA cited to 
support the listing of the nonylphenol category. EPA did not propose to 
list the nonylphenol category under EPCRA section (d)(2)(C)(iii). While 
bioaccumulation data was discussed in the technical section of the 
proposed rule, the rationale that EPA cited for listing the nonylphenol 
category was:

    ``EPA's technical evaluation of nonylphenol shows that it can 
reasonably be anticipated to cause, because of its toxicity, 
significant adverse effects in aquatic organisms. Toxicity values 
for nonylphenol are available for numerous species of aquatic 
organisms. The observed effects from nonylphenol exposure occur at 
very low concentrations demonstrating that nonylphenol is highly 
toxic to aquatic organisms. Data summarized in this document include 
acute toxicity values for freshwater organisms ranging from 21 
[micro]g/L for a detritivorous amphipod to 774 [micro]g/L for an 
algal grazing snail. Acute toxicity values for freshwater fish 
ranged from 110 [micro]g/L for the fountain darter to 128 to 360 
[micro]g/L for the fathead minnow. Acute toxicity values for 
saltwater organisms ranged from 17 [micro]g/L for the winter 
flounder to 310 [micro]g/L for the sheepshead minnow. Chronic 
toxicity values are also available for several aquatic species 
ranging from 5 [micro]g/L for growth effects in mysid shrimp to 377 
[micro]g/L for survival effects in water fleas. Chronic toxicity 
values for rainbow trout ranged from 8 [micro]g/L for effects on 
growth to 53 [micro]g/L for abnormal development. Reproductive, 
developmental, and estrogenic effects on aquatic organisms have also 
been reported for nonylphenol with some effects observed at 
concentrations of 4 [micro]g/L or less. Therefore, EPA believes that 
the evidence is sufficient for listing the nonylphenol category on 
the EPCRA section 313 toxic chemical list pursuant to EPCRA section 
313(d)(2)(C) based on the available ecological toxicity data.'' (78 
FR 37176, June 20, 2013)

The above rationale discussed only the toxicity data for nonylphenol, 
not the bioaccumulation data. EPA's stated rationale for listing is 
based on the toxicity data for nonylphenol not a combination of 
toxicity and bioaccumulation. Nonylphenol is highly toxic to aquatic 
organisms and is sufficiently toxic as to meet the EPCRA section 
313(d)(2)(C) criteria without consideration of bioaccumulation 
potential.

    With regards to persistence and bioaccumulation, these are not 
properties that a chemical is required to have in order to meet the 
EPCRA section 313(d)(2)(C) listing criteria. As noted in Unit II, the 
EPCRA section 313(d)(2)(C) listing criteria is comprised of three 
separate parts:
     The chemical is known to cause or can be reasonably 
anticipated to cause, because of:
    [cir] its toxicity,
    [cir] its toxicity and persistence in the environment, or
    [cir] its toxicity and tendency to bioaccumulate in the 
environment, a significant adverse effect on the environment of 
sufficient seriousness, in the judgment of the Administrator, to 
warrant reporting under this section.

Under EPCRA section 313(d)(2)(C), a chemical may be added based on its 
toxicity, its toxicity and persistence in the environment, or its 
toxicity and tendency to bioaccumulate in the environment. A chemical 
only needs to meet one of these three criteria to be added.

    Regarding the general use of the terms persistence and 
bioaccumulative, these terms are not absolutes. Chemicals that have 
persistence or bioaccumulation values below criteria established by EPA 
or some other organization for categorizing chemicals as Persistent, 
Bioaccumulative, and Toxic (PBT) chemicals does not mean that the 
chemicals are not persistent or bioaccumulative. For example, a 
chemical with a bioconcentration factor (BCF) of 500 bioaccumulates, 
just not to the extent that a chemical with a BCF of 1,000 does. 
Similarly, a chemical that persists in the environment with a half-life 
of 40 days is persistent just not as persistent as a chemical with a 
half-life of 60 days. As noted in the proposed rule, some of the 
nonylphenol BCF values for fish range from 203 to 344 with a BCF value 
of 2,168 for the blue mussel. As discussed in the Water Quality 
Criteria (WQC) document (Ref. 7), many studies have shown that 
nonylphenol is present in the environment, which indicates some level 
of persistence. EPA cited language from EPA's Action Plan for 
nonylphenol and nonylphenol ethoxylates that described nonylphenol as 
persistent and moderately bioaccumulative (Ref. 6). Given the available 
data, those characterizations were correct. EPA did not address the 
issue of whether the persistence and bioaccumulation data were 
sufficient to classify nonylphenol as a PBT chemical under EPA's 
established EPCRA section 313 PBT criteria since EPA was not attempting 
to classify nonylphenol as a PBT chemical.
    APERC also stated that in the proposed rule EPA proposed listing 
nonylphenol based on the following reasoning:

    ``Nonylphenol is toxic to aquatic organisms and has been found 
in ambient waters. Because of nonylphenol's toxicity, chemical 
properties, and widespread use as a chemical intermediate, concerns 
have been raised over the potential risks to aquatic organisms from 
exposure to nonylphenol. All of the hazard information presented 
here has been adapted from EPA's 2005 Criteria document for 
nonylphenol, which was previously peer reviewed (Ref. 3). Water 
Quality'' (78 FR 37176, June 20, 2013).

APERC stated that there is no discussion of the numeric WQC developed 
for nonylphenol and that EPA does not consider whether concentrations 
in U.S. waters represent a risk based on those WQC. APERC stated that 
this approach provides that best method to assess whether a compound 
can be reasonably anticipated to cause significant adverse effects in 
aquatic organisms.

    The text quoted by APERC is from the introduction to the unit in 
the proposed rule entitled ``IV. What Is EPA's evaluation of the 
environmental toxicity of nonylphenol?'' and is not the basis for the 
addition of nonylphenol. The quoted text simply states why EPA has 
developed concerns for potential releases of nonlyphenol. The basis for 
the addition of nonylphenol was discussed under ``Unit V. Rationale for 
Listing,'' which summarized the extensive aquatic toxicity data for 
nonylphenol (see previous comment response).
    With regards to the use of EPA's 2005 WQC document for nonylphenol 
(Ref. 7), EPA relied on the hazard information contained in the WQC 
document and not the numeric WQC values developed for nonylphenol. The 
numeric WQC values are not toxicity values; they are concentrations 
that, if not exceeded, should not unacceptably affect aquatic organisms 
and their uses. For nonylphenol, the numeric WQC values are:

``9.1. Freshwater

    The procedures described in the ``Guidelines for Deriving 
Numerical National Water Quality Criteria for the Protection of 
Aquatic Organisms and Their Uses'' (Stephan et al. 1985) indicate 
that, except possibly where a locally important species is very

[[Page 58690]]

sensitive, freshwater aquatic organisms and their uses should not be 
affected unacceptably if the one-hour average concentration of 
nonylphenol does not exceed 28 [micro]g/L more than once every three 
years on the average and if the four-day average concentration of 
nonylphenol does not exceed 6.6 [micro]g/L more than once every 
three years on the average.

9.2. Saltwater

    The procedures described in the ``Guidelines for Deriving 
Numerical National Water Quality Criteria for the Protection of 
Aquatic Organisms and Their Uses'' (Stephan et al. 1985) indicate 
that, except possibly where a locally important species is very 
sensitive, [saltwater] aquatic organisms and their uses should not 
be affected unacceptably if the one-hour average concentration of 
nonylphenol does not exceed 7.0 [micro]g/L more than once every 
three years on the average and if the four-day average concentration 
of nonylphenol does not exceed 1.7 [micro]g/L more than once every 
three years on the average.'' (Page 34, Ref. 7)

Since, as discussed in other responses, EPA is not required to consider 
exposure or risk in the listing of chemicals that are highly ecotoxic, 
there was no need to discuss the numeric WQC values in the proposed 
rule. However, EPA notes that the numeric WQC values are very low for 
nonylphenol, ranging from just 1.7 to 28 [micro]g/L, which indicates a 
very high level of concern for this chemical.

    With regards to the criteria language ``a significant adverse 
effect on the environment of sufficient seriousness, in the judgment of 
the Administrator, to warrant reporting under this section'' chemicals 
that are highly ecotoxic meet this determination. Chemicals that are 
highly ecotoxic are considered to meet all the listing requirements of 
EPCRA section 313(d)(2)(C) since they can cause significant adverse 
effects at very low concentrations.
    APERC contends that a probabilistic risk assessment of the 
extensive monitoring of nonylphenol in U.S. waters indicates a low 
likelihood that this compound will exceed EPA's WQC. APERC stated that 
there are extensive monitoring data on the occurrence and 
concentrations of nonylphenol in U.S. surface water, much of it 
conducted by EPA and the United States Geological Survey. APERC 
contends that based on available data the likelihood that 
concentrations of nonylphenol and other metabolites of nonylphenol 
ethoxylates in United States surface waters will exceed EPA's chronic 
WQC (6.6 [mu]g/L) for nonylphenol is low.
    EPA does not consider potential exposures or risks under the EPCRA 
section 313(d)(2)(C) criteria when adding a chemical that is highly 
toxic to aquatic organisms. With regard to the use of exposure or risk 
assessments in the listing of chemicals under the EPCRA section 
313(d)(2) criteria, EPA has stated its policy:

    ``The Agency believes that exposure considerations are not 
appropriate in making determinations (1) under section 313(d)(2)(B) 
for chemicals that exhibit moderately high to high human toxicity 
(These terms, which do not directly correlate to the numerical 
screening values reflected in the Draft Hazard Assessment 
Guidelines, are defined in unit II.) based on a hazard assessment, 
and (2) under section 313(d)(2)(C) for chemicals that are highly 
ecotoxic or induce well-established adverse environmental effects. 
For chemicals which induce well-established serious adverse effects, 
e.g., chlorofluorocarbons, which cause stratospheric ozone 
depletion, EPA believes that an exposure assessment is unnecessary. 
EPA believes that these chemicals typically do not affect solely one 
or two species but rather cause changes across a whole ecosystem. 
EPA believes that these effects are sufficiently serious because of 
the scope of their impact and the well documented evidence 
supporting the adverse effects. EPA, however, disagrees with those 
commenters who suggest that EPA must include a risk assessment 
component to EPCRA section 313 determinations. Specifically, EPA 
does not agree with the commenters about the extent to which 
exposure must be considered in making determinations under sections 
313(d)(2)(B) and (C). This is primarily because EPA does not agree 
with the commenters' understanding of EPCRA section 313. Risk 
assessment may be pertinent and appropriate for use under statutes 
that control the manufacture, use, and/or disposal of a chemical, 
such as the Clean Air Act or the Toxic Substances Control Act. 
However, EPCRA section 313 is an information collection provision 
that is fundamentally different from other environmental statutes 
that control or restrict chemical activities. EPCRA section 313 
charges EPA with collecting and disseminating information on 
releases, among other waste management data, so that communities can 
estimate local exposure and local risks; risks which can be 
significantly different than those which would be assessed using 
generic exposure considerations. The intent of EPCRA section 313 is 
to move the determination of what risks are acceptable from EPA to 
the communities in which the releases occur. This basic local 
empowerment is a cornerstone of the right-to-know program.'' (59 FR 
61432, November 30, 1994)

EPA went on to state that:

    ``Therefore, to meet its obligation under section 313(d)(2)(C), 
in cases where a chemical is low or moderately ecotoxic, EPA may 
look at certain exposure factors (including pollution controls, the 
volume and pattern of production, use, and release, environmental 
fate, as well as other chemical specific factors, and the use of 
estimated releases and modeling techniques) to determine if listing 
is reasonable, i.e., could the chemical ever be present at high 
enough concentrations to cause a significant adverse effect upon the 
environment to warrant listing under section 313(d)(2)(C). Of the 
chemicals being added in today's action pursuant to section 
313(d)(2)(C), all but one are highly ecotoxic. These highly ecotoxic 
chemicals are being added to the EPCRA section 313 list pursuant to 
section 313(d)(2)(C) based on their hazard. The other chemical, 
which is moderately ecotoxic, is being added to the EPCRA section 
313 list pursuant to section 313(d)(2)(C) based on both its hazard 
and an exposure assessment for this chemical.'' (59 FR 61432, 
November 30, 1994)

EPA also noted that its established exposure policy is consistent with 
the legislative history of ECRCA section 313:

    ``EPA believes that its position regarding the use of hazard; 
exposure, and risk in listing decisions is consistent with the 
purpose and legislative history of EPCRA section 313, as illustrated 
in the following passage from the Conference report:
    The Administrator, in determining to list a chemical under any 
of the above criteria, may, but is not required to conduct new 
studies or risk assessments or perform site specific analyses to 
establish actual ambient concentrations or to document adverse 
effects at any particular location. (H. Rep. 99-962, 99th Cong., 2nd 
Sess., p. 295 (Oct. 3, 1986)).
    This passage indicates Congress did not intend to require EPA to 
conduct new studies, such as exposure studies, or perform risk 
assessments, and therefore did not consider these activities to be 
mandatory components of all section 313 decisions. EPA believes that 
this statement combined with the plain language of the statutory 
criteria clearly indicate that Congress intended that the decision 
of whether and how to consider exposure under EPCRA section 
313(d)(2)(B) and (C) should be left to the Agency's discretion. EPA 
has carefully considered when and how to use exposure to fully 
implement the right-to-know provisions of EPCRA. The Agency believes 
that in this final rule, EPA has appropriately used the discretion 
provided to it to assure the addition of chemicals that meet the 
right-to-know objectives of EPCRA section 313 while not unduly 
burdening the regulated community.'' (59 FR 61441, November 30, 
1994)

More recently, EPA again explained its policy on the use of exposure in 
a Federal Register notice on the lifting of the reporting stay for 
hydrogen sulfide:

    ``Hydrogen sulfide has also been determined to cause ecotoxicity 
at relatively low concentrations, and thus is considered to have 
high ecotoxicity. EPA believes that chemicals that induce death or 
serious adverse effects in aquatic organisms at relatively low 
concentrations (i.e., they have high ecotoxicity) have the potential 
to cause significant changes in the population of fish and other 
aquatic organisms, and can therefore reasonably be anticipated to 
cause a significant adverse effect on the environment of sufficient 
seriousness to

[[Page 58691]]

warrant reporting. EPA does not believe that it is required to 
consider exposure for chemicals that have high ecotoxicity based on 
a hazard assessment when determining if a chemical can be listed for 
effects pursuant to EPCRA section 313(d)(2)(C) (see 59 FR 61432, 
61433, 61440-61442).'' (75 FR 8889, February. 26, 2010)

Additional discussion of EPA's use of exposure in chemical listing 
actions can be found in the final notice that lifted the reporting stay 
for hydrogen sulfide (76 FR 64022, October 17, 2011). Nonylphenol is 
one of the most ecotoxic chemicals that EPA has proposed to add to the 
EPCRA section 313 chemical list. EPA did not consider exposure or risk 
in its assessment of nonylphenol since it is toxic to numerous aquatic 
organisms at very low concentrations and thus is considered to be 
highly toxic to aquatic organisms.

V. Summary of Final Rule

    EPA is finalizing the addition of a nonylphenol category to the 
EPCRA section 313 list of toxic chemicals. EPA has determined that 
nonylphenol meets the listing criteria under EPCRA section 313(d)(2)(C) 
based on the available ecological toxicity data. However, based on the 
comments received on the propose rule, the nonylphenol category will be 
defined by a list of chemical names and CASRNs rather than by a 
chemical structure. The category definition will be:

                               Nonylphenol
       [This category includes only those chemicals listed below]
------------------------------------------------------------------------
 
------------------------------------------------------------------------
104-40-5.............................  4-Nonylphenol.
11066-49-2...........................  Isononylphenol.
25154-52-3...........................  Nonylphenol.
26543-97-5...........................  4-Isononylphenol.
84852-15-3...........................  4-Nonylphenol, branched.
90481-04-2...........................  Nonylphenol, branched.
------------------------------------------------------------------------

VI. References

    EPA has established an official public docket for this action under 
Docket ID No. EPA-HQ-TRI-2012-0110. The public docket includes 
information considered by EPA in developing this action, including the 
documents listed below, which are electronically or physically located 
in the docket. In addition, interested parties should consult documents 
that are referenced in the documents that EPA has placed in the docket, 
regardless of whether these referenced documents are electronically or 
physically located in the docket. For assistance in locating documents 
that are referenced in documents that EPA has placed in the docket, but 
that are not electronically or physically located in the docket, please 
consult the person listed in the above FOR FURTHER INFORMATION CONTACT 
section.

1. Alkylphenols & Ethoxylates Research Council. Comments on US EPA 
Proposed Rule for Addition of Nonylphenol Category To Community 
Right-to-Know Toxic Chemical Release Reporting under Section 313 of 
the Emergency Planning and Community Right-to-Know Act. Docket ID 
No. EPA-HQ-TRI-2012-0110. August 19, 2013.
2. Intel Corporation. Comments on the Proposed Addition of 
Nonylphenol Category; Community Right[hyphen]to[hyphen]Know Toxic 
Chemical Release Reporting (78 FR 37176[hyphen]37186; June 20, 
2013). July 9, 2013.
3. National Council for Air and Stream Improvement. RE: Docket ID 
No. EPA-HQ-TRI-2012-0110, Addition of Nonylphenol Category; 
Community Right-to-Know Toxic Chemical Release Reporting (78 Federal 
Register 37176, June 20, 2013). August 19, 2013.
4. USEPA, OEI, Response to Comments Received on the June 20, 2013 
Proposed Rule (78 FR 37176): Addition of Nonylphenol Category; 
Community Right-to-Know Toxic Chemical Release Reporting. U.S. 
Environmental Protection Agency, Office of Environmental 
Information, Office of Information Analysis and Access. May 14, 
2014.
5. USEPA, OEI. Economic Analysis of the Final Rule to add 
Nonylphenol to the EPCRA Section 313 List of Toxic Chemicals. May 7, 
2014.
6. USEPA. 2010. Nonylphenol (NP) and Nonylphenol Ethoxylates (NPEs) 
Action Plan (RIN 2070-ZA09). United States Environmental Protection 
Agency, Washington, DC. August 18, 2010.
7. USEPA. 2005. Aquatic Life Ambient Water Quality Criteria--
Nonylphenol Final. United States Environmental Protection Agency, 
Washington, DC. Office of Water. EPA-822-R-05-005. December 2005.

VII. What are the statutory and Executive Order reviews associated with 
this action?

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under Executive Orders 12866 and 13563 
(76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

    This final rule does not contain any new information collection 
requirements that require additional approval by the Office of 
Management and Budget (OMB) under the Paperwork Reduction Act (PRA), 44 
U.S.C. 3501 et. seq. Currently, the facilities subject to the reporting 
requirements under EPCRA 313 and PPA 6607 may use either the EPA Toxic 
Chemicals Release Inventory Form R (EPA Form 1B9350-1), or the EPA 
Toxic Chemicals Release Inventory Form A (EPA Form 1B9350-2). The Form 
R must be completed if a facility manufactures, processes, or otherwise 
uses any listed chemical above threshold quantities and meets certain 
other criteria. For the Form A, EPA established an alternative 
threshold for facilities with low annual reportable amounts of a listed 
toxic chemical. A facility that meets the appropriate reporting 
thresholds, but estimates that the total annual reportable amount of 
the chemical does not exceed 500 pounds per year, can take advantage of 
an alternative manufacture, process, or otherwise use threshold of 1 
million pounds per year of the chemical, provided that certain 
conditions are met, and submit the Form A instead of the Form R. In 
addition, respondents may designate the specific chemical identity of a 
substance as a trade secret pursuant to EPCRA section 322 42 U.S.C. 
11042: 40 CFR part 350.
    OMB has approved the reporting and recordkeeping requirements 
related to Forms A and R, supplier notification, and petitions under 
OMB Control number 2025-0009 (EPA Information Collection Request (ICR) 
No. 1363) and those related to trade secret designations under OMB 
Control 2050-0078 (EPA ICR No. 1428). As provided in 5 CFR 1320.5(b) 
and 1320.6(a), an Agency may not conduct or sponsor, and a person is 
not required to respond to, a collection of information unless it 
displays a currently valid OMB control number. The OMB control numbers 
relevant to EPA's regulations are listed in 40 CFR part 9, 48 CFR 
chapter 15, and displayed on the information collection instruments 
(e.g., forms, instructions).

C. Regulatory Flexibility Act (RFA), as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et 
seq.

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions. For purposes of assessing the impacts of 
today's rule on small entities, small

[[Page 58692]]

entity is defined as: (1) A business that is classified as a ``small 
business'' by the Small Business Administration at 13 CFR 121.201; (2) 
a small governmental jurisdiction that is a government of a city, 
county, town, school district or special district with a population of 
less than 50,000; and (3) a small organization that is any not-for-
profit enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of today's rule on small 
entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. Of the 54 
entities estimated to be impacted by this rule, 39 are small 
businesses. Of the affected small businesses, all 39 have cost-to-
revenue impacts of less than 1% in both the first and subsequent years 
of the rulemaking. No small businesses are projected to have a cost 
impact in the first year of 1% or greater. Facilities eligible to use 
Form A (those meeting the appropriate activity threshold which have 500 
pounds per year or less of reportable amounts of the chemical) will 
have a lower burden. No small governments or small organizations are 
expected to be affected by this action. Thus, this rule is not expected 
to have a significant adverse economic impact on a substantial number 
of small entities. A more detailed analysis of the impacts on small 
entities is located in EPA's economic analysis support document (Ref. 
5).

D. Unfunded Mandates Reform Act

    This rule does not contain a Federal mandate that may result in 
expenditures of $100 million or more for State, local, and tribal 
governments, in the aggregate, or the private sector in any one year. 
EPA's economic analysis indicates that the total cost of this rule is 
estimated to be $183,953 in the first year of reporting (Ref. 5). Thus, 
this rule is not subject to the requirements of sections 202 or 205 of 
UMRA.
    This rule is also not subject to the requirements of section 203 of 
UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. Small governments 
are not subject to the EPCRA section 313 reporting requirements.

E. Executive Order 13132 (Federalism)

    This action does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. This action relates to toxic 
chemical reporting under EPCRA section 313, which primarily affects 
private sector facilities. Thus, Executive Order 13132 does not apply 
to this action.

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

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). This action 
relates to toxic chemical reporting under EPCRA section 313, which 
primarily affects private sector facilities. Thus, Executive Order 
13175 does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
action is not subject to Executive Order 13045 because it does not 
establish an environmental standard intended to mitigate health or 
safety risks.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This rulemaking does not involve technical standards. Therefore, 
EPA did not consider the use of any voluntary consensus standards.

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

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States. EPA has determined that this final 
rule will not have disproportionately high and adverse human health or 
environmental effects on minority or low-income populations because it 
does not affect the level of protection provided to human health or the 
environment. This rule adds an additional chemical to the EPCRA section 
313 reporting requirements. By adding a chemical to the list of toxic 
chemicals subject to reporting under section 313 of EPCRA, EPA would be 
providing communities across the United States (including minority 
populations and low income populations) with access to data which they 
may use to seek lower exposures and consequently reductions in chemical 
risks for themselves and their children. This information can also be 
used by government agencies and others to identify potential problems, 
set priorities, and take appropriate steps to reduce any potential 
risks to human health and the environment. Therefore, the informational 
benefits of the rule will have a positive impact on the human health 
and environmental impacts of minority populations, low-income 
populations, and children.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United

[[Page 58693]]

States prior to publication of the rule in the Federal Register. A 
Major rule cannot take effect until 60 days after it is published in 
the Federal Register. This action is not a ``major rule'' as defined by 
5 U.S.C. 804(2). This rule will be effective September 30, 2014.

List of Subjects in 40 CFR Part 372

    Environmental protection, Community right-to-know, Reporting and 
recordkeeping requirements, and Toxic chemicals.

    Dated: September 23, 2014.
Gina McCarthy,
Administrator.

    Therefore, 40 CFR part 372 is amended as follows:

PART 372--TOXIC CHEMICAL RELEASE REPORTING: COMMUNITY RIGHT-TO-KNOW

0
1. The authority citation for part 372 continues to read as follows:

    Authority: 42 U.S.C. 11023 and 11048.


0
2. In Sec.  372.65, paragraph (c) is amended by adding in the table the 
entry for ``Nonylphenol'' in alphabetical order to read as follows:


Sec.  372.65  Chemicals and chemical categories to which this part 
applies.

* * * * *
    (c) * * *

------------------------------------------------------------------------
                      Category name                       Effective date
------------------------------------------------------------------------
 
                              * * * * * * *
Nonylphenol (This category includes only those chemicals          1/1/15
 listed below)..........................................
     104-40-5 4-Nonylphenol.
    11066-49-2 Isononylphenol.
    25154-52-3 Nonylphenol.
    26543-97-5 4-Isononylphenol.
    84852-15-3 4-Nonylphenol, branched.
    90481-04-2 Nonylphenol, branched.
 
                              * * * * * * *
------------------------------------------------------------------------

* * * * *
[FR Doc. 2014-23255 Filed 9-29-14; 8:45 am]
BILLING CODE 6560-50-P