Administrative Reporting Exemption for Certain Air Releases of NOX, 57813-57822 [05-19872]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 70, Number 191 (Tuesday, October 4, 2005)]
[Proposed Rules]
[Pages 57813-57822]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-19872]



[[Page 57813]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 302 and 355

[SFUND-2003-0022; FRL-7980-2]
RIN 2050-AF02


Administrative Reporting Exemption for Certain Air Releases of 
NOX (NO and NO2)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: This notice of proposed rulemaking provides notice of, and 
requests comments, including any relevant data, on a proposed new 
administrative exemption from certain notification requirements under 
the Comprehensive Environmental Response, Compensation, and Liability 
Act of 1980, as amended, and the Emergency Planning and Community 
Right-to-Know Act, also known as Title III of the Superfund Amendments 
and Reauthorization Act. The Agency also seeks public comment on human 
health risk assessment data or other relevant data that relates to this 
proposal. The proposed administrative reporting exemption pertains to 
releases of less than 1,000 pounds of nitrogen oxide and nitrogen 
dioxide (or collectively ``NOX'') to the air in 24 hours 
that is the result of combustion activities, unless such release is the 
result of an accident or malfunction. Notifications must still be made 
for accidents or malfunctions that result in the releases of 
NOX at the final RQ of 10 pounds or more per 24 hours. The 
administrative reporting exemption is protective of human health and 
the environment and consistent with the Agency's goal to reduce 
unnecessary reports considering that levels for which the Clean Air Act 
regulates NOX are considerably higher than 10 pounds. In 
addition, the Agency believes that the submission of these reports for 
the proposed exempted releases would not contribute significantly to 
the data that is already available through the permitting process to 
the government and the public. The Agency is also considering and 
seeking comment on two other options to address the high frequency of 
release notifications. Those options would involve more efficient use 
of Continuous Release reporting and a complete exemption from the 
notification requirements under CERCLA and EPCRA.

DATES: Comments must be received on or before December 5, 2005.

ADDRESSES: Submit your comments, identified by Docket ID No. SFUND-
2003-0022, by one of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     Agency Web site: https://www.epa.gov/edocket. EDOCKET, 
EPA's electronic public docket and comment system, is EPA's preferred 
method for receiving comments. Follow the on-line instructions for 
submitting comments.
     E-mail: superfund.docket@epa.gov.
     Fax: (202) 566-0224.
     Mail: Superfund Docket, Environmental Protection Agency, 
Mailcode: 5202T, 1200 Pennsylvania Ave., NW., Washington, DC 20460. In 
addition, please mail a copy of your comments on the information 
collection provisions to the Office of Information and Regulatory 
Affairs, Office of Management and Budget (OMB), Attn: Desk Officer for 
EPA, 725 17th St., NW., Washington, DC 20503.
     Hand Delivery: Superfund Docket in the EPA Docket Center, 
(EPA/DC) EPA West, Room B102, 1301 Constitution Ave., NW., Washington, 
DC. Such deliveries are only accepted during the Docket's normal hours 
of operation and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. SFUND-2003-
0022. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available online at 
https://www.epa.gov/edocket, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through EDOCKET, 
regulations.gov, or e-mail. The EPA EDOCKET and the federal 
regulations.gov Web sites are ``anonymous access'' systems, which means 
EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an e-mail comment 
directly to EPA without going through EDOCKET or regulations.gov, your 
e-mail address will be automatically captured and included as part of 
the comment that is placed in the public docket and made available on 
the Internet. If you submit an electronic comment, EPA recommends that 
you include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit EDOCKET on-line or see the 
Federal Register of May 31, 2002 (67 FR 38102). For additional 
instructions on submitting comments, go to Unit I.B. of the 
SUPPLEMENTARY INFORMATION section of this document.
    Docket: All documents in the docket are listed in the EDOCKET index 
at https://www.epa.gov/edocket. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in EDOCKET or in hard 
copy at the Superfund Docket, EPA/DC, EPA West, Room B102, 1301 
Constitution Ave., NW., Washington, DC. The Public Reading Room is open 
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The telephone number for the Public Reading Room is (202) 
566-1744, and the telephone number for the Superfund Docket is (202) 
566-0276.

FOR FURTHER INFORMATION CONTACT: Lynn Beasley, Regulation and Policy 
Development Division, Office of Emergency Management, Office of Solid 
Waste and Emergency Response (5104A), Environmental Protection Agency, 
1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: 
(202) 564-1965; fax number: (202) 564-2625; e-mail address: 
beasley.lynn@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. General Information

A. Does This Action Apply to Me?

[[Page 57814]]



------------------------------------------------------------------------
             Type of entity               Examples of affected entitites
------------------------------------------------------------------------
Industry...............................  Because this proposed rule is
                                          an administrative reporting
                                          exemption for releases of NOX
                                          to the air, application of
                                          this rule should result in a
                                          reduction to your reporting
                                          burden. This proposed rule may
                                          affect the following entities:
                                          persons in charge of vessels
                                          or facilities that may release
                                          nitrogen oxide (NO) or
                                          nitrogen dioxide (NO2) or both
                                          (NOX) to the air.
State, Local, or Tribal Governments....  State and Tribal Emergency
                                          Response Commissions, and
                                          Local Emergency Planning
                                          Committees.
Federal Government.....................  National Response Center and
                                          any Federal agency that may
                                          release NOX.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be regulated by this action. Other types of entities 
not listed in the table could also be regulated. To determine whether 
your facility is regulated by this action, you should carefully examine 
the criteria in Section III.A of this proposed rule and the 
applicability criteria in Sec.  302.6 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.

B. What Should I Consider as I Prepare My Comments for EPA?

    In order to implement CERCLA and EPCRA more efficiently, while not 
presenting a threat to human health, welfare and the environment, EPA 
is considering granting an administrative exemption from the release 
notification requirements of CERCLA and EPCRA for certain releases of 
NOX under certain circumstances and which are less than 
1,000 pounds per 24 hours. Based on historical information, it is in 
the Agency's best judgment that a federal response to such releases, 
other than those from an accident or malfunction, is unlikely. Through 
CAA permitting programs, the government and the public have information 
regarding releases of NOX at comparatively higher amounts 
than what is required by CERCLA and EPCRA reporting; however exempting 
releases that are not permitted from CERCLA and EPCRA notification 
requirements would create a gap in that information. EPA seeks data and 
other supporting information in order to determine whether requiring 
reports of NOX releases that are a result of combustion and 
below 1,000 pounds per 24 hours, serve a useful purpose.
    In the alternative, and based on data and other information 
received pursuant to this proposed rule, the Agency may decide that it 
is more efficient and appropriate to pursue other options to address 
the high frequency of NOX release notifications mentioned in 
the Summary section of this proposed rule and further explained in 
section D. below. The Agency seeks to effectively target those 
notifications to best achieve Federal and public information needs.
    When submitting comments, remember to:
    1. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    2. Follow directions--The Agency may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
    3. Keep your comments relevant--Comments outside the specific 
parameters or scope of this rulemaking (see Section III.A., below) will 
be considered non-responsive to this request for comments and will not 
receive a response by the Agency in the final rulemaking package or the 
Response to Comments Document.
    4. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    5. Describe any assumptions and provide any technical information 
and/or data that you used.
    6. If you estimate potential costs, burdens or savings, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    7. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    8. Explain your views as clearly as possible.
    9. Make sure to submit your comments by the comment period deadline 
identified.

C. What Is the Statutory Authority for This Rulemaking?

    The Comprehensive Environmental Response, Compensation, and 
Liability Act of 1980 (CERCLA), 42 U.S.C. 9601 et seq., as amended by 
the Superfund Amendments and Reauthorization Act of 1986, gives the 
Federal Government broad authority to respond to releases or threats of 
releases of hazardous substances from vessels and facilities. The term 
``hazardous substance'' is defined in section 101(14) of CERCLA 
primarily by reference to other Federal environmental statutes. Section 
102 of CERCLA gives the U.S. Environmental Protection Agency (EPA) 
authority to designate additional hazardous substances. Currently there 
are 764 CERCLA hazardous substances,\1\ exclusive of Radionuclides, F-, 
K-, and Unlisted Characteristic Hazardous Wastes.
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    \1\ This total includes P- and U- wastes.
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    Under CERCLA section 103(a), the person in charge of a vessel or 
facility from which a CERCLA hazardous substance has been released in a 
quantity that equals or exceeds its reportable quantity (RQ) must 
immediately notify the National Response Center (NRC) of the release. A 
release is reportable if an RQ or more is released within a 24-hour 
period (see 40 CFR 302.6). This reporting requirement, among other 
things, serves as a trigger for informing the government of a release 
so that Federal personnel can evaluate the need for a Federal removal 
or remedial action and undertake any necessary action in a timely 
fashion.
    On March 19, 1998, the Agency issued a final rule (63 FR 13459) 
that broadened existing reporting exemptions for releases of naturally 
occurring radionuclides. The Agency relied on CERCLA sections 102(a), 
103, and 115 (the general rulemaking authority under CERCLA) as 
authority to issue regulations governing section 103 reporting 
requirements, as well as administrative reporting exemptions. These 
exemptions were granted for releases of hazardous substances which pose 
little or no risk or to which a Federal response is infeasible or 
inappropriate (63 FR 13461).
    In addition to the reporting requirements established pursuant to 
CERCLA section 103, section 304 of the Emergency Planning and Community

[[Page 57815]]

Right-to-Know Act of 1986 (EPCRA), 42 U.S.C. 11001 et seq., requires 
the owner or operator of certain facilities to immediately report 
releases of CERCLA hazardous substances or any extremely hazardous 
substances to State and local authorities (see 40 CFR 355.40). Any 
proposed burden reduction measure that applies to CERCLA section 103 
notification requirements would also apply to EPCRA section 304 
notification requirements. In part, EPCRA's reporting requirement is 
designed to effectuate a statutory purpose of informing communities and 
the public generally about releases from nearby facilities. 
Notification is to be given to the community emergency coordinator for 
each local emergency planning committee (LEPC) for any area likely to 
be affected by the release, and the State emergency response commission 
(SERC) of any State likely to be affected by the release. Through this 
notification, State and local officials can assess whether a response 
to the release is appropriate, regardless of whether the Federal 
Government intends to respond. EPCRA section 304 notification 
requirements apply only to releases that have the potential for off-
site exposure and that are from facilities that produce, use, or store 
a ``hazardous chemical,'' as defined by regulations promulgated under 
the Occupational Safety and Health Act of 1970 (29 CFR 1910.1200(c)) 
and by section 311 of EPCRA.

D. Which NOX Releases Are Proposed for Administrative 
Exemption From the Reporting Requirements?

    EPA proposes to administratively exempt certain releases of NO and 
NO2 to air from the reporting requirements of CERCLA and 
EPCRA, established in 40 CFR 302.6 and 40 CFR 355.40, respectively, 
that are the result of combustion activities, of less than 1,000 pounds 
per 24 hours and not the result of an accident or other malfunction. 
Notifications must still be made for accidents or malfunctions that 
result in the releases of NOX at the final RQ of 10 pounds 
or more per 24 hours.
    Currently, the reportable quantity (RQ) for both NO and 
NO2 is 10 pounds in any 24 hour period. This RQ is easily 
met by those facilities that release NOX \2\ to the air. 
This is especially true when the facility processes include combustion 
activities. For example, an 80 million BTU/hr natural gas boiler will 
exceed the RQ for NOX after 2.5 hours of operation. A 120 
million BTU/hr coal boiler will exceed the RQ for NO2 in 
less than 3 hours of operation and the RQ for NO in less than 2 hours 
of operation. Small engines also trigger the 10 pound threshold--an 18 
horsepower engine running 24 hours will exceed the RQ for 
NOX and a 100 horsepower engine will exceed the RQ for 
NOX in five hours. Even turning on bakery ovens could 
trigger the RQ for NOX when turned on for daily 
operations.\3\
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    \2\ For this proposed rule, we use the shorthand convention 
NOX to refer to both NO and NO2 either 
collectively or as individual hazardous substances.
    \3\ These examples were submitted to the Agency during the 
comment period for the Guidance on the CERCLA Section 101A(10)(H) 
Federally Permitted Release Definition for Certain Air Emissions (67 
FR 18899, April 17, 2002) discussed furhter in the Background 
section of this preamble. A sample of the letters received related 
to NOX and its 10 pound RQ are provided in the Docket 
(SFUND-2003-0022) for this rule. All of the letters received 
pursuant tot he Guidance can be found in that Docket (GE-G-1999-
029).
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    The notification data provided in the two tables below is from the 
National Response Center. Summary Table 1 contains data from the 
Emergency Release Notification System (ERNS) \4\ for the notification 
of episodic releases of oil and hazardous substances. Summary Table 2 
contains data from the Continuous Release--Emergency Release 
Notification System (CR-ERNS) \5\ for the continuous release reporting 
requirement.
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    \4\ This data collection activity is approved under OMB No. 
2050-0046. EPA Form Number 1049.10.
    \5\ This data collection activity is approved under OMB No. 
2050-0086. EPA Form Number 1445.06.

                           Summary Table 1.--NOX (reported as NOX, NO, NO2) Release Notifications (to Air)--ERNS Notifications
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                 Total number                                                                                 Percent of
                     Year                            NOX         Reported    Less than      10-99       100-999     1000-5000    Above 5000     total
                                                notifications  unknown amt   10 pounds      pounds       pounds       pounds       pounds      reports
--------------------------------------------------------------------------------------------------------------------------------------------------------
1994..........................................            99            36            6           33           20            4  ...........           .3
1995..........................................           214           139            8           48           16            3  ...........           .6
1996..........................................           209           119            3           66           15            6  ...........           .7
1997..........................................           245           131            2           86           22            4  ...........           .8
1998..........................................           370           164           17          131           48            7            3          1.2
1999..........................................           661           285           18          235           76           44            3          2.2
2000..........................................          1103           252           11          518          254           43           25          3.4
2001..........................................          1905           513           42         1034          257           53            6          5.5
2002..........................................          2425           466           29         1379          462           73           16          7.5
2003..........................................          2774           488          144         1562          504           63           13          8.6
2004..........................................          3064           576           95         1708          568          103           14          9.0
--------------------------------------------------------------------------------------------------------------------------------------------------------

    In the recent years, 2001-2004, a significant number of 
NOX release reports to ERNS occur below 1,000 pounds. See 
Summary Table 1, above. However, this data may not accurately reflect 
actual NOX releases based on several factors, including the 
apparent misunderstanding by industry in general of the requirement to 
report NOX releases and the Agency's exercise of enforcement 
discretion for the release of NOX that has been in effect 
since 2000.\6\
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    \6\ The enforcement discretion memorandum that reaches this 
conclusion, as well as those memoranda that extend the enforcement 
discretion, is provided in the Docket for this rule.

[[Page 57816]]



                        Summary Table 2.--NOX (reported as NOX, NO, NO2) Release Notifications (to Air)--CR-ERNS Initial Reports
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                                                Total number                                                                                 Percent of
                     Year                           NOX       Reported as   Less than      10-99       100-999     1000-5000    Above 5000      total
                                               notifications  unknown amt   10 pounds      pounds                    pounds       pounds       reports
--------------------------------------------------------------------------------------------------------------------------------------------------------
1994.........................................            29   ...........  ...........  ...........  ...........  ...........  ...........           .09
1995.........................................            42   ...........  ...........  ...........  ...........  ...........  ...........           .1
1196.........................................            31   ...........  ...........  ...........  ...........  ...........  ...........           .1
1997.........................................            47   ...........  ...........  ...........  ...........  ...........  ...........           .2
1998.........................................           248   ...........  ...........  ...........  ...........  ...........  ...........           .8
1999.........................................           264   ...........  ...........  ...........            1            1  ...........           .9
2000.........................................           770           401            5          170          125           34           35          2.4
2001.........................................           120            14            3           32           40           16           15           .3
2002.........................................           209            82            1           22           27           28           49           .6
2003.........................................            68            24            2           15           10           10            7           .2
2004.........................................            16             1            0            3            8            2            2           .04
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    Prior to December 1999, the National Response Center did not record 
the amount of hazardous substance released for the initial continuous 
release reports. That information would be captured later in written 
reports to the EPA Regional offices and the State and local planning 
committees. The data in Summary Table 2 is also subject to the caveat 
described above, regarding industry's misunderstanding to notify and 
the Agency's exercise of enforcement discretion.
    CERCLA 101(10)(H) defines a ``federally permitted release,'' to 
include, ``any emission into the air subject to a permit or control 
regulation under section 111 [42 U.S.C.A. 7411], section 112 [42 
U.S.C.A. 7412], Title I part C [42 U.S.C.A. 7470 et seq.], Title I part 
D [42 U.S.C.A. 7501 et seq.], or State implementation plans submitted 
in accordance with section 110 of the Clean Air Act [42 U.S.C.A. 7410] 
(and not disapproved by the Administrator of the Environmental 
Protection Agency), including any schedule or waiver granted, 
promulgated, or approved under these sections, * * *'' The following 
table is a summary of the CAA provisions identified in CERCLA 
101(10)(H) that briefly describes how NOX emissions are 
controlled through the CAA.

------------------------------------------------------------------------
                                                         Additional
        What it does              Control NOX?           information
------------------------------------------------------------------------
                             CAA Sec.   111
------------------------------------------------------------------------
New Source Performance        NSPS controlling NOX  NSPS include
 Standards--EPA to evaluate    promulgated for:.     exemptions based on
 and control emissions from   --municipal waste      source size or
 new stationary sources in     combustors.           capacity. NSPS are
 areas that meet and do meet  --hospital, medical,   developed based on
 National Ambient Air          infectious waste      the degree of
 Quality Standards for         incinerators.         emission limitation
 criteria pollutants (incl.   --fossil fuel-fired    achievable through
 NOX). Developed and           steam generators.     application of the
 promulgated separately for   --electric utility     best technological
 various categories of         steam generating      system, taking into
 sources.                      units.                consideration cost,
                              --industrial,          health impacts, and
                               commercial,           energy
                               institutional steam   requirements.
                               generating units.     Waivers may be
                              --stationary gas       granted to extend
                               turbines.             compliance
                                                     schedules or allow
                                                     the use of
                                                     alternative control
                                                     technologies.
-----------------------------
                             CAA Sec.   112
------------------------------------------------------------------------
Requires the evaluation and   NOX is not a HAP,     NESHAPs set emission
 control of emissions of       but NOX emissions     limits, equipment
 hazardous air pollutants      may be incidentally   standards, and/or
 (HAPs). Control of HAP        reduced through co-   work practice
 emissions is achieved         control of some HAP   standards for
 through National Emission     source categories     categories of
 Standards for HAPs or         (MACT--maximum        stationary sources
 NESHAPs.                      achievable control
                               technology).
-----------------------------
                           CAA Title I Part C
------------------------------------------------------------------------
PSD--Prevention of            PSD requirements      NOX PSD requirements
 Significant Deterioration     affect construction   apply everywhere
 requirements may apply to a   or modification of    since NO2 NAAQS has
 single source or multiple     large NOX sources     been attained
 sources within a facility,    in NAAQS attainment   everywhere.
 if the source:.               areas. Affected
--belongs to one of 28         sources must use
 listed source categories      the best available
 and has the potential to      control technology.
 emit 100TPY or more of NOX
 (or other listed
 pollutants).
--is any new major source     Emissions subject to  ....................
 (>250TPY) of NOX              PSD requirements
--is subject of a planned      must be controlled
 modification that would       with best available
 increase NOX emissions by     control technology.
 at least 40TPY.
-----------------------------

[[Page 57817]]


                           CAA Title I Part D
------------------------------------------------------------------------
Nonattainment NSR             Emission control      Because Part D
 requirements for new major    requirements are      applies to sources
 sources and major             based on the lowest   in nonattainment
 modifications.                achievable emission   areas, compliance
--applies primarily to new     reduction--more       and reporting
 sources in ozone              stringent than        requirements are
 nonattainment areas.          BACT.                 more stringent than
--based on 10-100TPY of NOX   ....................   those for PSD
 for major sources.           Must also offset       sources. Also
                               emission increases..  applies in the
                                                     Ozone Transport
                                                     Region; may apply
                                                     in some PM
                                                     nonattainment areas
                                                     where NOX is a PM
                                                     precursor. Waivers
                                                     may be granted in
                                                     certain ozone
                                                     nonattainment
                                                     areas.
-----------------------------
                             CAA Sec.   110
------------------------------------------------------------------------
Requires each state to        SIPs must be at       SIPs must be updated
 submit to EPA a SIP that      least as stringent    to incorporate
 provides for attainment,      as federal            newly promulgated
 maintenance, and              requirements. Vary    state or federal
 enforcement of the NAAQS      widely because        rules. SIP
 within the state.             ambient air quality   requirements must
                               issues vary from      be incorporated
                               state to state, and   into Title V
                               from region to        permits, including
                               region within a       PSD/NSR. NOXRACT is
                               state. For example,   required in certain
                               NOX-emitting          ozone nonattainment
                               sources in            areas and in the
                               metropolitan or       Ozone Transport
                               heavily               Region. SIPs must
                               industrialized        prevent significant
                               areas generally       contribution to
                               face more stringent   nonattainment in
                               requirements than     downwind states.
                               in rural areas that
                               are not classified
                               as sensitive air
                               quality regions.
------------------------------------------------------------------------
 There are several CAA programs that affect NOX emissions that have been
  developed since Congress defined federally permitted releases under
  CERCLA. The new programs include direct control of NOX emissions from
  stationary and mobile sources, and co-control of NOX emissions by
  requirements for sulfur dioxide, ozone, and particulate matter
  emissions. Congress did not amend CERCLA 101(10)(H) to include the new
  programs.

II. Background

    On December 21, 1999, EPA published interim guidance on the 
federally permitted release exemption to section 103 of CERCLA and 
section 304 of EPCRA (64 FR 71614). The interim guidance discussed 
EPA's interpretation of the federally permitted release exemption as it 
applies to some air emissions and solicited public comment. The public 
comment period closed after several extensions on April 10, 2000. The 
Agency received many comments on the interim guidance, including 
specific questions regarding EPA's interpretation of the federally 
permitted release exemption as it applies to NOX 
releases.\7\ NOX releases to air are somewhat unique in 
that, in most cases, federally enforceable permits (including State 
issued through delegated programs) are not issued to facilities that 
release NOX below a certain threshold. NOX 
emissions from these sources are minimal and may not pose a hazard to 
health or the environment. In its final Guidance on the CERCLA Section 
101(10)(H) Federally Permitted Release Definition for Certain Air 
Emissions (67 FR 18899, April 17, 2002), EPA responded to the concern 
that many small facilities do not have federally enforceable permits by 
stating in that Federal Register notice that it recognized, ``that 
certain uncontrolled air emissions of nitrogen oxide (NO) and nitrogen 
dioxide (NO2) equal to or greater than the ten pound RQ may 
rarely require a government response.'' (67 FR 18904). When the Agency 
published that final Guidance, it also extended and expanded an on-
going enforcement discretion (Appendix B to that Notice) with regard to 
owners, operators or persons in charge to include, for failure to 
report air releases of NO and NO2 that would otherwise 
trigger a reporting obligation under CERCLA section 103 and EPCRA 
section 304, unless such releases are the result of an accident or 
malfunction. (67 FR 18904). The Agency intends to continue to exercise 
its enforcement discretion until EPA completes action on this 
rulemaking.\8\
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    \7\ Some of those comment letters received are available in the 
Docket (SFUND-2003-0022) for this rule. All comments are available 
in the Docket for the Interim Guidance (EG-G-1999-029).
    \8\ A copy of the Federal Register notice and Memoranda from the 
AA OECA to Regional Counsels which addresses the on-going 
enforcement discretion is included in the Docket (SFUND-2003-0022) 
to today's proposed rule.
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III. Summary of Today's Action

A. What Is the Scope of Today's Proposed Rule?

    Today's proposed rule is limited to addressing the level of 
reporting associated with NOX. Specifically, the Agency is 
considering, either an administrative exemption from CERCLA and EPCRA 
reporting requirements found in 40 CFR 302.6 and 40 CFR 355.40, 
respectively, for the release of less than 1,000 pounds per 24 hours of 
NOX to air that is the result of combustion activities, or 
other alternatives described in section D. below. The Agency will 
consider comments from the public as to whether such releases of 
NOX to air resulting from combustion activities are 
appropriate for this limited administrative reporting exemption or 
alternative resolution. Any exemption or alternative resolution would 
not apply to releases of NOX that are the result of an 
accident or malfunction \9\ of equipment. In addition the Agency is not 
considering an exemption for the release of any other hazardous 
substance in this proposed rule. Comments regarding other hazardous 
substances will not be considered relevant to this proposed rule.
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    \9\ See 40 CFR 60.2 Definitions and 40 CFR 63.2 Definitions for 
Clean Air Act regulatory definition of malfunction.
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B. What Is EPA's Rationale for This Administrative Reporting Exemption?

    As described in the background section of this proposed rule, the 
Agency published final federally permitted release guidance on April 
17, 2002. During the period for public comment on the Agency's interim 
guidance (December 21, 1999 through April 10, 2000), EPA received 
numerous comments \10\ that the ten pound NOX RQ could 
result in a large number of notifications triggered by very small 
releases which could overburden the CERCLA notification system and 
impede the government's ability to

[[Page 57818]]

focus its resources on more serious releases.
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    \10\ See Docket EG-G-1999-029 for complete record of comment 
letters or SFUND-2003-0022 for a sample of comment letters relevant 
to this proposed rule.
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    When evaluated solely in conjunction with Clean Air Act (CAA) 
permitting programs that include sources that have the potential to 
emit up to 250 tons per year (CAA Title I, Part C, see table above) of 
NOX, the Agency believes it is appropriate to promulgate an 
administrative reporting exemption for NOX releases to air 
that are the result of combustion, and result in releases less than 
1,000 pounds per 24 hours, considering that the likelihood of a Federal 
response to the release of NOX below this level is highly 
unlikely \11\ and that these releases are sources for which reporting 
may serve no useful purpose under either CERCLA or EPCRA. In fact, in 
selecting an exemption level of 1,000 pounds per 24 hour period, the 
Agency notes that this level is below the level at which permits are 
required under the CAA for NOX, such that it appears 
``infeasible'' that any response would be undertaken. However, the 
Agency requests comment on whether a higher level, 5,000 pounds per 24 
hour period or lower level, 100 pounds, is appropriate. In submitting 
comments on a different level, we request that commenters provide what 
an appropriate level might be, as well as the justification for that 
level.
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    \11\ An RQ merely establishes a trigger for informing the 
government of a release so that, among other things, the appropriate 
government personnel can evaluate the need for a response action and 
can undertake any necessary response action in a timely fashion.
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    Some commenters have suggested \12\ raising the RQ to 100 pounds, 
1000 pounds or 5000 pounds. Under this approach, the Agency would need 
to revise the methodology for establishing the RQ for NOX, 
which would likely take a number of years to develop and promulgate 
through rulemaking. We believe that an administrative reporting 
exemption would likely provide the same outcome in less time.
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    \12\ Available in the Docket (SFUND-2003-0022).
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    EPA is interested in data that may relate to the usefulness of the 
notifications under CERCLA that would result from maintaining the 10 
pound reportable quantity without any exemption. In addition, the 
Agency also requests comment as to whether reporting under EPCRA should 
be maintained. If those commenting believe that such reporting should 
be maintained, they should describe why and particularly what purposes 
this reporting would serve.
    Today's proposed exemptions are from CERCLA section 103 and EPCRA 
section 304 reporting requirements only; they will have no bearing on 
CERCLA liability or any other applicable reporting requirements under 
other laws.

C. How Is This Proposed Administrative Reporting Exemption Consistent 
With EPA's Mission To Protect Human Health and the Environment?

    The administrative reporting exemption proposed in today's 
rulemaking would not prevent EPA from carrying out its mission to 
protect human health and the environment. First, we are not aware that 
any of the NOX release notifications that were previously 
submitted has resulted in a response action being taken, unless it was 
a result of an accident or malfunction. Thus, such submissions 
particularly those at levels below 1,000 pounds per 24 hours, have not 
furthered the protection of human health and the environment. As a 
result of today's proposal industry and the Federal Government would be 
better able to focus their resources. As an example, in the Summary 
Tables which provide data on the number of NOX release 
notifications submitted between 1994 and 2004, we estimate that the 
private sector and Federal Government spent about 3.7 man-months \13\ 
to prepare and process these notifications.
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    \13\ This estimate was calculated using the burden hours 
described in the Information Collection Requests 1049.10 and 1445.06 
and the total notifications received by the NRC for ERNS and CR-
ERNS. Summary calculations are available in the Docket (SFUND-2003-
0022) for further review.
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    This proposal would also result in no longer requiring the 
submission of such notifications below 1,000 pounds per 24 hours to the 
State Emergency Response Commissions and Local Emergency Planning 
Committees as required by EPCRA. EPCRA serves the purposes of community 
information and emergency planning and prevention, as well as emergency 
response. Release notification can assist in emergency response 
planning and preparedness regardless of whether there is any Federal, 
State or local emergency response to the release. By removing this 
reporting exemption under EPCRA, it would also allow the state and 
local planning committees to better focus their resources. See also 
discussion under, III.B. What is EPA's Rationale for this 
Administrative Reporting Exemption.
    Nevertheless, the Agency seeks information related to the level of 
risk associated with such releases, the appropriateness and feasibility 
of a Federal response, and the usefulness of the reports to Federal, 
State and local governments, as well as the public at large and 
communities near facilities that emit NOX.

D. What Alternative Options Is EPA Considering To Address the CERCLA 
Section 103 and EPCRA Section 304 Reporting Requirements of Certain 
Unpermitted Releases of NOX to Air?

    EPA is also seeking data or additional information to help us 
consider the appropriateness of alternative options to address the 
CERCLA section 103 and EPCRA section 304 Reporting Requirements of 
Certain Unpermitted Releases of NOX to the air. Those 
options include; (a) more efficient use of Continuous Release 
reporting, and (b) extending the administrative reporting exemption to 
include all releases of NOX from combustion sources that are 
not the result of an accident or malfunction.
    (a) Continuous Release reporting refers to the provisions under 
CERCLA section 103(f)(2) which allows the qualified exemption of 
notification requirements under CERCLA section 103 (a) and (b) for any 
release of a hazardous substance which is a continuous release, stable 
in quantity and rate.\14\ The Agency published a final rule on July 24, 
1990 (55 FR 30165) that amended 40 CFR by adding Sec.  302.8 and part 
355. Section 302.8 sets forth the notification requirements for 
continuous release reporting under CERCLA. Part 355 identifies the 
State Emergency Response Commission (SERC) and Local Emergency Planning 
Committee (LEPC) as the recipients of the continuous release reports as 
set forth under EPCRA and indicates that continuous releases are 
otherwise exempt from SARA Title III section 304 emergency response 
notification.
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    \14\ CERCLA section 103(f)(2)--No notification shall be required 
under subsection (a) or (b) of this section for any release of a 
hazardous substance, * * * (2) which is a continuous release, stable 
in quantity and rate, and is (A) from a facility for which 
notification has been given under subsection (c) of this section, or 
(B) a release of which notification has been given under subsections 
(a) and (b) of this section for a period sufficient to establish the 
continuity, quantity, and regularity of such release: Provided, That 
notification in accordance with subsections (a) and (b) of this 
paragraph shall be given for releases subject to this paragraph 
annually, or at such time as there is any statistically significant 
increase in the quantity of any hazardous substance or constituent 
thereof released, above that previously reported or occurring.
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    A continuous release is a release that occurs without interruption 
or abatement or that is routine, anticipated, and intermittent and 
incidental to normal operations or treatment processes. There are four 
steps in the continuous release notification process: (1) Initial 
telephone notification (to the

[[Page 57819]]

NRC, SERC, and LEPC); (2) initial written notifications to the 
appropriate EPA Regional Office (within 30 days of the initial 
telephone notification); (3) follow-up written reports; and (4) change 
notifications. Details on the information required are found in 40 CFR 
302.8. A general description of the information required follows. For 
more detailed information concerning continuous release reporting 
requirements, see U.S. EPA, Reporting Requirements for Continuous 
Releases of Hazardous Substances: A Guide for Facilities and Vessels on 
Compliance,'' Office of Emergency and Remedial Response, OSWER 
Directive 9360.7-01, October 1990. This publication is available at: 
https://www.epa.gov/superfund/resources/release/faciliti.htm a copy is 
also available in the Docket.
    The person in charge is required to provide the following 
information in the initial telephone notification:
     Statement that this is an initial telephone notification 
of a continuous release;
     Name and location of the facility or vessel responsible 
for the release; and
     Name and identity of each hazardous substance released.
    The initial written notification must include the following types 
of information:
     General information on the facility or vessel, and the 
area surrounding the facility or vessel; and
     Source information, including the identity of each release 
source, the names and quantities of the hazardous substances released 
from each source, the basis for stating that the release qualifies as 
continuous and stable in quantity and rate, the environmental medium 
affected by the release, the normal range of the release from the 
source, and the frequency of the release from each source.
    The information required in the written follow-up report is 
identical to that required in the initial written notification, but it 
is based on release data gathered over the year (i.e., during the 
period since the submission of the initial written report). If there 
are any changes in a continuous release, the EPA Regional Office must 
be notified. If there is a change in the source or composition of a 
continuous release, the release is considered a ``new'' release.
    The Agency believes the definition of ``continuous'' may be 
sufficiently broad so as to cover many of the NOX situations 
in a manner that would be consistent with the fundamental purpose of 
CERCLA section 103(a) reporting requirements, which is to alert 
government response officials to releases that require immediate 
evaluation to determine whether a field response may be necessary. See 
also, 55 FR 30169, July 24, 1990. However, as described above, we 
question whether such notifications for releases of NOX 
below 1,000 pounds per 24 hours need to be submitted. Nevertheless, the 
Agency solicits comment on whether this approach--require that 
NOX release notifications be covered under the continuous 
release reporting scheme--is appropriate and should be adopted. In 
submitting such comments, please describe any changes you believe 
should be made to the existing procedures, if any, and if so, why.
    (b) The option of extending the administrative reporting exemption 
to include NOX releases from all combustion sources, 
excluding accidents and malfunctions. The Agency will review any data 
submitted during the public comment to determine if extending the 
administrative reporting exemption for NOX under certain 
conditions is appropriate. Commenters wishing to support an extension 
of the administrative reporting exemption beyond the proposed amount of 
less than 1,000 pounds per 24 hours will need to submit a human health 
and ecological risk assessment to support extending the administrative 
reporting exemption to include all NOX releases from all 
combustion sources. Guidance on conducting a human health and 
ecological risk assessment can be found at https://www.epa.gov/oswer/
riskassessment/superfund_toxicity.htm. The risk assessment should 
include all current complete site-specific exposure pathways for all 
affected media, future land use potential, potential exposure pathways, 
and toxicity information. The Agency is particularly interested in data 
on reasonably maximum exposed individual for NOX and the 
level of interest in the release notifications by the state and local 
planning commissions.

IV. Statutory and Regulatory Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735 (October 4, 1993)) the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may: (1) Have an annual 
effect on the economy of $100 million or more or adversely affect in a 
material way the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local, or tribal governments or communities; (2) create a serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency; (3) materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs or the rights and 
obligations of recipients thereof; or (4) raise novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the Executive Order.
    Pursuant to the terms of Executive Order 12866, it has been 
determined that this rule is a ``significant regulatory action'' 
because it raises novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order. As such, this action was submitted to OMB for 
review. Changes made in response to OMB suggestions or recommendations 
will be documented in the public record.

B. Paperwork Reduction Act

    The information collection requirements in this proposed rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The 
Information Collection Request (ICR) documents prepared by EPA have 
been assigned EPA ICR numbers 1049.10 and 1445.06.
    EPA ICR number 1049.10 covers collection requirements for the 
notification of episodic release of oil and hazardous substances. EPA 
ICR number 1445.06 covers collection requirements for the continuous 
release reporting requirement. Both of these information collections 
are affected by this proposed rule. However, this proposed rule 
represents a reduction in the burden for both industry and the 
government.
    The information collected for the episodic release of oil and 
hazardous substances is required by section 103(a) of the Comprehensive 
Environmental Response, Compensation, and Liability Act of 1980 
(CERCLA), as amended, and section 311 of the Clean Water Act (CWA), as 
amended. The hazardous substance and oil release information collected 
pursuant to CERCLA section 103(a) and CWA section 311 has a variety of 
different uses. Federal response authorities, such as EPA and the 
United States Coast Guard On-Scene Coordinators (OSCs), use the 
information to evaluate the environmental and human health risks 
attributable to a reported release and to determine if a Federal 
response action is necessary to mitigate or prevent any

[[Page 57820]]

adverse effects associated with the release. The information provided 
is public information; however, the name of the person who makes the 
notification is not available to the public.
    The information collected for the continuous release reporting 
requirement is required by section 103(f)(2) of CERCLA. CERCLA section 
103(f)(2) provides relief from the notification requirements of CERCLA 
section 103(a) for hazardous substances releases that are 
``continuous,'' ``stable in quantity and rate,'' and for which 
notification has been given under CERCLA section 103(a) ``for a period 
sufficient to establish the continuity, quantity, and regularity'' of 
the release. The information collection and management requirements of 
the continuous release reporting regulations are necessary to determine 
if a response action is needed to control or mitigate any potential 
adverse effects associated with a reported hazardous substance release. 
The information provided is public information.
    The estimated projected cost and hour burden represents those 
attributable to NO and NO2 releases to air that are less 
than 1,000 pounds per 24 hours. The Adjusted Information Collection 
Requests for 1049.10 and 1445.06 are available in the Docket for this 
rule. In order to specifically highlight the impact of the proposed 
administrative reporting exemption, the current Information Collection 
Requests were adjusted rather than completely revised. The adjusted 
Information Collection Requests include tables that show projected cost 
and burden as if the releases were not required to be reported. Within 
the documents, the new tables immediately follow the original tables 
and are clearly identified.
    With respect to the information collected for the episodic release 
of oil and all hazardous substances (1049.10), the Agency estimates for 
industry an annual overall reduction of cost from $6,279,539 to 
$5,932,993 a reduction of $346,546 with a corresponding reduction in 
the hour burden from 98,736 to 93,287 a reduction of 5,449 hours. This 
represents a reduction in the likely number of respondents from 24,082 
to 22,753 a reduction of 1,329 reportable releases. For the purpose of 
this burden analysis, each reportable release equals one respondent.
    With respect to the information collected for the continuous 
release reporting regulation (1445.06) for all hazardous substances, 
the Agency estimates for industry an annual overall reduction of cost 
from $10,101,032 to $10,070,423 a reduction of $30,609 with a 
corresponding reduction in the hour burden from 284,154 to 283,285 a 
reduction of 869 hours. This represents a reduction in the likely 
number of respondents from 3,145 to 3,009 a reduction of 136 
respondents.
    Together, the Agency estimates for industry an annual overall 
reduction of cost from $16,380,571 to $16,003,416 an overall reduction 
of $377,155 with a corresponding reduction in the hour burden from 
382,890 to 376,572 a reduction of 6,318 hours. This represents an 
overall reduction in the likely number of respondents from 27,227 to 
25,762 a reduction of 1,465 respondents.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.
    To comment on the Agency's need for this information, the accuracy 
of the provided burden estimates, and any suggested methods for 
minimizing respondent burden, including the use of automated collection 
techniques, EPA has established a public docket for this rule, which 
includes these ICRs, under Docket ID number SFUND-2003-0022. Submit any 
comments related to the ICRs for this proposed rule to EPA and OMB. See 
ADDRESSES section at the beginning of this notice for where to submit 
comments to EPA. Send comments to OMB at the Office of Information and 
Regulatory Affairs, Office of Management and Budget, 725 17th Street, 
NW. Washington, DC 20503, Attention: Desk Office for EPA. Since OMB is 
required to make a decision concerning the ICR between 30 and 60 days 
after October 4, 2005, a comment to OMB is best assured of having its 
full effect if OMB receives it by November 3, 2005. The final rule will 
respond to any OMB or public comments on the information collection 
requirements contained in this proposal.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (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 entity is defined as: (1) A small business as defined 
by the Small Business Administration's (SBA) regulations 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 proposed rule on 
small entities, I hereby certify that this action will not have a 
significant economic impact on a substantial number of small entities. 
In determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the proposed rule on small entities.'' 5 U.S.C. 603 
and 604. Thus, an agency may certify that a rule will not have a 
significant economic impact on a substantial number of small entities 
if the rule relieves regulatory burden, or otherwise has a positive 
economic effect on small entities subject to the rule.
    This rulemaking will relieve regulatory burden because we propose 
to eliminate the reporting requirement for certain releases of 
NOX to the air. We expect the net reporting and record 
keeping burden associated with reporting releases of NOX 
under CERCLA section 103 and EPCRA section 304 to decrease. This 
reduction in burden will be realized mostly by small businesses because 
larger businesses usually operate under federal permits and therefore 
qualify for the ``federally

[[Page 57821]]

permitted release'' exemption for reporting under CERCLA. 40 CFR 302.6. 
We have therefore concluded that today's proposed rule will relieve 
regulatory burden for all affected small entities. We continue to be 
interested in the potential impacts of the proposed rule on small 
entities and welcome comments on issues related to such impacts.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective, or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted.
    Before EPA establishes any regulatory requirements that may 
significantly or uniquely affect small governments, including tribal 
governments, it must have developed under section 203 of the UMRA a 
small government agency plan. The plan must provide for notifying 
potentially affected small governments, enabling officials of affected 
small governments to have meaningful and timely input in the 
development of EPA regulatory proposals with significant Federal 
intergover