P.1 

PICK-UPDATE: 3/8/2007 

BOX 10 OF 10 

Step 2: FOR ASRC INTERNAL USE 

ONLY 

(PART A of B) 

EPA DOCKET ID: 102RQ-RN 

1) INDEX 

3) 102RQ-RN-1-2 

5) 102RQ-RN-1-4 

7) 102RQ-RN-1-6 

9) 102RQ-RN-3-1 

11) 102RQ-RN-3-3 

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29) 102RQ-RN-2-4-10 

31) 102RQ-RN-4-2 

33) 102RQ-RN-4-4 

35) 102RQ-RN-4-6 

37) 102RQ-RN-4-8 

39) 102RQ-RN-5-1 

Step 3: FOR ASRC INTERNAL USE 

ONLY 

CD: 

OA: / 

2) 102RQ-RN-1-1 

4) 102RQ-RN-1-3 

6) Ci02RQ^RN-l-^> 

8) 102RQ-RN-1-7 

10) 102RQ-RN-3-2 

12) 102RQ-RN-2-1-1 

14) 102RQ-RN-2-1-3 

16) 102RQ-RN-2-1-5 

18) 102RQ-RN-2-2-2 

20) 102RQ-RN-2-4-1 

22) 102RQ-RN-2-4-3 

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26) 102RQ-RN-2-4-7 

28) 102RQ-RN-2-4-9 

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32) 102RQ-RN-4-3 

34) 102RQ-RN-4-5 

36) 102RQ-RN-4-7 

38) 102RQ-RN-4-9 

40) 102RQ-RN-5-2 

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Internal SFUND Box Number 35 OF 283 

Initials/Date: LDS_/ 3-8-2007 
P.2 

mST 

\oxm-Mi-i-s 

Tuesday 

April 19, 1988 

Part II 

Environmental 

Protection Agency 

40 CFR Parts 302 and 355 

Reporting Continuous Releases of 

Hazardous Substances; Proposed Rule 
P.3 

12868 ...Federal Register. J/ Vol. 53, No.v^.^ T / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 302 and 355 

[FRL-3207-4] 

Reporting Continuous Releases of 

Hazardous Substances 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: Section 103(a) of the 

Comprehensive Environmental 

Response, Compensation, and Liability. 

Act of 1980 (CERCLA), as amended, 

requires that the person in charge of a 

vessel or facility from which a 

hazardous substance has been released 

in a quantity that is equal to or greater 

than its reportable quantity (RQ) shall 

immediately notify the National 

Response Center of the release. Section 

102(b) sets an RQ of one pound for 

hazardous substances, except those for 

which RQs have been established 

pursuant to section 311(b)(4) ofthe 

Clean Water Act. Section 102(a) 

authorizes the U.S. Environmental 

Protection Agency (EPA) to adjust RQs 

for hazardous substances and to 

designate as hazardous substances 

those substances that, when released 

into the environment, may present 

substantial danger to the public health 

or welfare or the environment. 

Section 103(f)(2) of CERCLA provides 

relief from the reporting requirements of 

section 103(a) for a release of a 

hazardous substance that is continuous, 

stable in quantity and rate, and either is 

a release from a facility for which 

notification has been given under 

section 103(c) or is a release for which 

notification has been given under 

section 103(a) for a period sufficient to 

establish the continuity, quantity, and 

regularity of such release. Section 

103(f)(2) provides further that in such 

cases, notification shall be given 

annually or at such time as there is any 

statistically significafit increase in the 

quantity released of any hazardous 

substance. This rule presents the 

Agency's proposed interpretation of the 

section 103(f)(2) reduced reporting 

requirements. 

DATES: Comments must be submitted on 

or before June 20,1988. 

ADDRESSES: The toll-free telephone 

number of the National Response Center 

is 1-800/424-8802; in the Washington, 

DC metropolitan area, the number is 1-

202/425-2675. 

Comments: Comments should be 

submitted in triplicate to: Emergency 

Response Division, Superfund Docket 

Clerk, Attention: Docket Number 103(f) 

CR, Room LG-100, U.S. Environmental . 

Protection Agency, 401 M Street SW,, 

Washington, DC 20460. 

Docket: Copies of materials relevant 

to this rulemaking are kept in Room LG100, at the above address. The docket is 

available for inspection between 9:00 ' 

a.m. and 4:00 p.m. Monday through 

Friday, excluding Federal holidays. 

Appointments to review the docket can . 

be made by calling 202/382-3046. As 

provided in 40 GFR Part'2, a reasonable 

fee (the first 50 pages are free and each 

additional page costs $.20) may be 

charged for copying services. ' 

FOR FURTHER INFORMATION CONTACT:. 

Mr. Hubert Watters, Project Officer, 

Response Standards and Criteria 

Branch, Emergency Response Division 

(WH-548B), U.S. Environmental 

Protection Agency, 401 M Street SW*, 

Washington, DC 20460; 

or the 

RCRA/Superfund Hotline, 1-800/424-

9346; in Washington, DC, 1-202/382-

3000. 

SUPPLEMENTARY INFORMATION: the 

contents of today's preamble are listed 

in the following outline: 

I. Introduction 

' A. Background 

B. Relationship to Reporting Under Title III 

C. Current Requirements 

II. The Continuous Release Reduced 

Reporting Requirement 

A. EPA's General Approach 

B. Key Concepts Included in the Proposed 

Rule 

1. "Continuous" 

2. "Stable in Quantity and Rate" 

3. "For a Period Sufficient to Establish the 

Continuity, Quantity, and Regularity of 

the Release" 

- 4. "Statistically Significant Increase" 

5. Annual and Statistically Significant 

Increase Reporting 

III. Regulatory Analyses 

A. Executive Order No. 12291 

B. Regulatory Flexibility Act 

C. Paperwork Reduction Act 

I. Introduction 

A. Background 

The Comprehensive Environmental' 

Response, Compensation, and Liability 

Act of 1980 (Pub. L. 96-510), 42 U.S.C. 

9601 et seq. (CERCLA or the Act), 

enacted on December 11,1980, and 

amended by the Superfund Amendments 

and Reauthorization Act of 1986 (SARA) 

(Pub. L. 99-499), establishes broad 

Federal authority to respond to releases 

or threats of releases of hazardous 

substances from vessels and facilities. 

Section 101(14) of the Act defines the 

term "hazardous substances" by 

reference to other environmental 

statutes with authority further granted 

to the U.S. Environmental Protection 

Agency-(EPA) to designate additional 

hazardous substances under CERCLA . 

section 102(a). The CERCLA list 

currently contains 721 hazardous 

substances. 

.' Section 103(a) of the Act requires that, 

as soon as the person in charge of a 

vessel or facility has knowledge of a . 

release of a hazardous substance from 

such vessel or facility in a quantity 

equal to or greater than the reportable 

quantity (RQ) for that substance.that 

person shall notify the National . 

Response Center immediately. Section 

102(b) of CERCLA establishes RQs for " 

releases of hazardous substances at one 

, pound, except for those substances for 

which RQs were established pursuant to 

section 311(b)(4) of the Clean Water Act 

(CWA). Section 102(a) of CERCLA 

authorizes EPA to adjust all of these 

RQs. (See 40 CFR 302.4), 

Section 103(b) authorizes penalties, 

including criminal sanctions, for persons 

in charge of vessels or facilities who fail 

to report releases of hazardous 

substances that equal or exceed RQs. 

Section 109 of SARA amends section 

103(b) of CERCLA, increasing the 

maximum penalties.and years of" 

imprisonment. Any person who, as soon 

as that person has' knowledge of a 

reportable release, fails to report the 

release immediately pursuant to section 

103(a) or who submits any information 

that he or she knows to be false or 

misleading, shall, upon conviction, be 

fined in accordance with the applicable 

provisions of Title 18, United States 

Code (not more than $250,000 or . 

$500,000, depending upon whether the 

violator is an individual or an 

organization), or imprisoned for not 

more than three years (or not more than 

five years for second and subsequent 

convictions), or both. Notifications 

received under section 103(a) or 

information obtained by exploitation of . 

such notifications cannot be used 

against any reporting person in any 

criminal case, except a prosecution for 

perjury or for giving a false statement.; 

Section 109 of SARA also provides for a 

system of administrative penalties for' 

violations of CERCLA section 103(a), 

enforceable through civil proceedings. 

Section 103(f)(2) of CERCLA modifies 

the general notification requirements of 

section 103 for certain releases. Releases 

may be reported less frequently than 

otherwise wou|d be required, if they are-

"continuous" and "stable in quantity 

and rate," and notification has been 

given: (1) Under section 103(a) "for a 

period sufficient to establish the 

continuity, quantity, and regularity" of 
P.4 

Federal Register / /Vol,,53, No. 75,7 Tuesday, April 19, 1988 /Propose d Rules 12869 

the release or (2) under section 103(c), 

which requires notification to the 

Federal government of the existence of 

certain facilities that are or have been 

used for storage, treatment, or disposal 

of hazardous wastes but do not have 

Resource Conservation and Recovery 

Act (RCRA) interim status or a permit. 

Section 103(f)(2) pertains only to 

releases that are continuous and stable 

in quantity and rate, and requires that 

notification be given "annually, or at 

such a time as there is any statistically 

significant increase" in the quantity of 

the hazardous substance released. 

The primary function of CERCLA's 

notification requirements is to alert 

, government officials to the existence of 

a situation that may require, a ,.,. 

government response, to protect public 

health or welfare or the environment. 

The National Response Center, upon 

receiving notification of a release, 

immediately alerts the appropriate onscene coordinator (OSC) who then 

evaluates the need for a Federal 

. response, Because episodic releases are 

almost always unanticipated from a 

response perspective, they must be . 

reported as they occur. Continuous: 

releases, on the other hand, are -

predictable. 

Thus, instead of reporting every 

release as it occurs, the person in charge 

of a vessel or facility is allowed to 

report certain continuous releases less 

often under section 103(f)(2). The . 

purpose of this section Is to reduce 

unnecessary release reporting/When a 

release occurs regularly and iii relatively 

stable amounts, Federal response 

officials do not haye to be notified each 

time such a release occurs to have the 

information needed to decide whether a 

response to the release is necessary. 

However, Federal response authorities 

will continue to need some notification •• 

of these releases. Section 103(f)(2) 

provides that notification of continuous 

releases shall be given: (1) In an annual 

report, and (2) at such times as there is a 

statistically significant increase in the 

quantity released. Such notification 

must be given by: (1) The owner or 

operator of a facility for which initial 

notification of the release was provided 

under section 103(c), or (2) the person in 

charge of a vessel or facility who has 

provided notification of the release 

under section 103(a) for a period 

sufficient to establish the continuity and 

quantity and regularity of the release. 

The person in charge of a vessel or 

facility, of course, always retains the 

option of continuing to report these 

releases as they occur under section 

103(a). 

On May 25,1983, EPA published a 

Notice of Proposed Rulemaking (NPRM) 

(48 FR 23552) to clarify procedures for 

reporting releases and to adjust RQs for 

some CERCLA hazardous substances. In 

the preamble to the May 25,1983 

proposed rule, the Agency discussed the 

reduced reporting requirements for 

continuous releases and set forth a 

number of ideas that were under 

consideration. EPA specificially 

requested comments on the most 

feasible approach for continuous release 

notification, the information to be 

required, the criteria for identifying a 

statistically significant increase in the 

release, and any other relevant issues. . 

The Agency stated at that time that such 

• information would enable it to develop a 

system that imposed a minimal burden 

on both the regulated community and 

the government, while achieving the 

underlying statutory objectives. EPA 

received 45 letters with comments on 

the reduced reporting requirement for 

continuous releases. Those comments 

are addressed in Section II of this 

preamble. The reduced reporting 

requirement for continuous releases was 

discussed again in the preamble to a''" 

final rule adjusting RQs, published oh 

April 4,1985 (50 FR 13456). EPA noted 

that due to the complexity of the issues, 

involved, the Agency would study the 

continuous release reduced reporting 

requirement further and would not 

promulgate, at that time, a regulation 

related to continuous releases. 

It should be noted that other 

provisions of the Act may apply even 

where CERCLA does not require 

notification or provide for reduced 

notification requirements. For example, 

a party responsible for a release of a 

CERCLA hazardous substance that is 

not a federally permitted release is 

liable for the costs of cleaning up that 

release and for any natural resource 

damages, even if the release is not 

subject to the notification requirements 

of CERCLA. Similarly, proper reporting 

of a release in accordance with section 

103(a) or section 103(f)(2) does not 

preclude liability for cleanup costs. The 

fact that a release of a hazardous 

substance is reported properly or that it 

is not subject to the notification 

requirements of CERCLA will not 

prevent EPA or other government 

agencies from seeking reimbursement 

for cleanup from responsible parties 

under section 107, or pursuing an 

enforcement action against responsible 

parties pursuant to section 106. 

Therefore, this rulemaking should not be 

interpreted as reflecting Agency policy 

or the applicable law with respect to 

other provisions of the Act.1 

B. Relationship to Reporting Under Title 

HI 

Title III of SARA (sections 301-329) 

addresses emergency planning and 

community right-to-know and provides, 

among other things, emergency and 

annual notification requirements in 

addition to those included in section 103 

of CERCLA. EPA has provided (52 FR 

13377, April 22,1987; 52 FR 38345, 

October 15,1987; and 53 FR 4503, 

February 15,1988) and will continue to 

provide regulations and guidance on the 

Title III requirements as necessary and 

appropriate. 

With respect to emergency 

notification requirements, section 304 of 

SARA provides release reporting 

requirements that parallel the 

requirements of section 103(a) but are 

intended to make release information 

immediately available to State and local 

emergency officials as well as Federal 

response officials notified under 

CERCLA section 103. In addition, 

section 304(a) requires reporting of: (1) 

Releases for which notification is 

required under section 103(a) of 

CERCLA, and (2) releases of "extremely 

hazardous substances" that are not 

hazardous substances under CERCLA 

but that "occur in a manner which 

would require notification under section 

103(a)" of CERCLA, Thus, continuous 

releases that require annual reporting 

under CERCLA section 103(f)(2) rather 

than immediate reporting under , 

CERCLA section 103(a), are not 

reportable under section 304 of SARA 

(see 52 FR 13384). "Statistically . 

significant.increases" must, however, be 

reported under SARA Section 304. To 

clarify the type of releases that are 

defined as continuous releases, and • 

thereby exempt from SARA section 304 

reporting, today's rule proposes to revise 

the applicability section of the 

regulations implementing section 304 (40 

CFR 355.40(a)) to: (1) Add the definitions 

of "continuous" and "statistically 

significant increase" provided in this 

rule, and (2) provide references to 

today's proposed changes to 40 CFR Part 

302.2 Thus, the interpretation of 

1

 Moreover, all releases of CERCLA hazardous 

substances, including federally permitted releases, 

are subject to liability provisions of Federal statutes 

other than CERCLA, State statutes, and common 

law (see Senate Rpport No. 96-848 (1980), p. 46). 

a

 Today's rule also proposes to add language to 40 

CFR 355.40(a)(2) that was deleted inadvertently in 

publishing the final rule (52 FR 13396. April 22. 

1987). The proposal adds paragraph (a)(2)(iv) and 

provides that releases exempt from CERCLA 

section 103(a) reporting under section 103(e) (which 

Continued 
P.5 

12870 Federal Register / Vol. 53, No. 75 / Tuesday, April 19, 1988 / Proposed Rules 

,', j . 111 , .,..,,,•.-.!••• . . . i , I. . .'II-...I' . ' . 1 I . MU, I. . 1.IX. 

.,-w-,a'.:.''l>.-';*o - •--,. J.t>----- s.rl *••>,•!, 

continuous release proposed in today's 

rule will define clearly the scope of the 

releases reportable under SARA section 

304. 

Section 313 of SARA also requires 

annual release reporting similar to 

annual continuous release reporting 

under CERCLA section 103(f)(2). Under 

SARA section 313, covered facilities 

must submit, on July 1, each year, a 

Toxic Release Inventory form to the 

EPA Administrator and to the State 

official or officials designated by the 

Governor. Annual notification 

requirements under section 313, 

however, are different in scope and 

purpose from CERCLA section 103 

reporting requirements. Section 313 

requirements apply only to facilities in 

the Standard Industrial Classification 

(SIC) Major Groups 20 through 39 

(unless the Administrator exercises his 

discretion granted in sections 

313(b)(1)(B) or 313(b)(2) to add or delete 

SIC groups or individual facilities); 

CERCLA places no such restrictions on 

its applicability. Also, the universe of 

substances covered by CERCLA and 

section 313 notification is not the same, 

that is, some substances subject to 

CERCLA notification requirements are 

not subject to section 313 requirements, 

and certain additional substances not 

subject to the CERCLA notification 

requirements are subject to the section 

313 notification requirements. The 

purpose of the reporting requirements 

differ as well; the purpose ofthe SARA 

section 313 reporting requirement is to 

create a Federal inventory, while the 

purpose of the CERCLA section 103 

reporting requirements is to alert 

Federal response officials of episodic 

releases that may require emergency 

response. Therefore, because of these 

differences between the section 313 

requirements and section 103 reporting, 

the Agency believes it is appropriate to 

proceed with this proposed rule 

regarding section 103 notification 

requirements. 

The Agency recognizes, however, that 

the application ofthe annual report 

provision of the continuous release 

reduced reporting requirement and the 

reporting requirement for the Toxic 

Release Inventory under SARA section 

313 may result in duplicative reporting. 

Some facilities will be subject to the 

reporting requirements of both CERCLA 

section 103(f)(2) and SARA section"313, 

and some of the data and information 

required under both reporting 

requirements are the same. Some of the 

iy••,•l-»-.^•A-•..^-.t--^t.•.:•.-... *-i • 

applies to the application, handling, or storage of a 

pesticide registered under the Federal Insecticide, 

Fungicide, and Rodenticide Act) also are exempt 

from reporting under SARA section 304. 

information required to be submitted by 

section 103(f)(2), however, is not 

required to be submitted under section 

313. The Agency will attempt to deal 

with this potential for overlap of 

reporting in two ways. The Agency will, 

to the extent feasible, indicate in the 

section 103(f)(2) guidance and in the 

section 313 instruction documents where 

answers to certain questions will be 

useful in answering questions for the 

other reporting requirement. In addition, 

the Agency will initiate discussions with 

users of the section 103(f)(2) data to 

determine if the data to be submitted 

under section 313 would be sufficient for 

their needs. If the data would be 

sufficient, the Agency will consider 

allowing persons in charge of facilities 

subject to both section 103(f)(2) and 

section 313 to submit only the section 

313 form for those chemicals appearing 

on both lists. The Agency requests 

comments on these approaches to 

minimize the duplicative reporting 

requirements. 

C. Current Requirements 

. Until this rule is published in final 

form and has become effective, the 

person in charge of a vessel or facility 

must comply with the requirements for 

reporting continuous releases as set 

forth in the statute. The person in charge 

of a facility or vessel from which there is 

a release of a hazardous substance that 

is continuous and stable in quantity and 

rate, who reports in compliance with 

section 103(f)(2)(A) for releases from 

facilities, or section 103(f)(2)(B) for 

releases from vessels or facilities, may 

provide notification under section 

103(f)(2) (i.e., annually and in the event 

of a statistically significant increase), 

instead of under section 103(a). Parties 

subject to the notification provisions of 

section 103 may use this proposed 

rulemaking as guidance for 

interpretation of the statutory 

requirements. All other releases of 

CERCLA hazardous substances must be 

reported in accordance with section 

103(a) whenever such releases equal or 

exceed the RQ. 

II. The Continuous Release Reduced 

Reporting Requirement . 

A. EPA s General Approach 

In developing this proposed rule, EPA 

has been guided by several goals—to 

develop a regulation that is flexible 

enough to cover the variety of possible 

continuous release scenarios that might 

arise, to make the proposal as selfimplementing as possbile, to ensure 

continued notification of releases for 

which a Federal response may be 

necessary, and to minimize the burden 

on both the regulated community and 

the government to the extent possible 

without compromising public health and 

the environment. Specific efforts to 

address these goals will be described in 

Section II.B. of this preamble where 

EPA's approach on the key concepts of 

the proposed regulation is discussed. 

Comments frequently made in 

response to the Agency's May 25,1983 

NPRM, mentioned above, seem to 

confuse the continuous release reduced 

reporting requirement with the federally 

permitted release reporting exemption. 

A number of commenters on the May 25, 

1983 NPRM have urged EPA to rely 

primarily on reporting under existing 

permitting programs and not to impose 

additional reporting requirements for 

continuous releases. Today's proposed 

rule does not impose any additional 

reporting requirements. Further, if a 

release meets the requirements 

necessary to be classified as a federally 

permitted release, the release is exempt 

entirely from reporting under CERCLA 

section 103. Thus, the reduced reporting 

procedure of section 103(f) is not 

applicable to federally permitted • •• 

releases because it only applies to 

releases that must be otherwise reported 

under section 103. 

B. Key Concepts Included in the 

Proposed Rule 

1. "Continuous" 

EPA proposes to define "continuous" 

as a release that is: (1) Continuous 

without interruption or abatement; (2) 

continuous during operating hours; or (3) 

continuous during regularly-occurring 

batch processes. The period over which 

such releases are evaluated is 24 hours. 

One type of release that EPA had 

considered in its May 25,1983 NPRM (48 

FR 23559), which several commenters 

suggested should qualify as continuous,. 

is a routine, anticipated, intermittent 

release that is incidental to normal 

manufacturing or treatment processes or 

operations. EPA has chosen not to 

include such releases within the 

definition'of continuous releases in this 

proposed rule because the Agency 

believes that such a broad definition 

may not be adequately protective of 

human health and the environment and 

because such releases may be 

impossible to define in a meaningful 

way. 

Continuous releases under the 

standard dictionary definition of the 

term "continuous" are releases that 

occur without interruption. Intermittent 

releases are releases that cease and -

recommence in a variable manner and 

thus do not fall clearly within the 
P.6 

Federal Register /'Vol. 53r N6. 75 / Tuesday, April 19, 1988 / Proposed "Rules 12871 

meaning of the term "continuous." In 

addition, because of the variable nature 

of intermittent releases, the degree of 

certainty and predictability associated 

with them (in terms of commencement, 

cessation, and amount released) may be 

considerably lower than it is for. truly 

continuous releases. Further, many if not 

most continuous releases are controlled 

by a plant process or operation. A 

substantial number of intermittent 

releases may not be subject to such 

. controls. Finally, the phrase "routine, 

anticipated, intermittent release" 

appears to be extremely vague and thus 

many episodic releases that may need 

Federal response would not be reported 

under section 103(a) if the definition of 

"continuous release" included such 

intermittent releases. 

The Agency has become aware, 

however, of situations in which certain 

intermittent releases may have a high 

degree of certainty and predictability 

associated with them. Examples of such 

releases include releases that are stable 

in quantity and rate and result from (1) 

production of a batch of a substance at 

the same time every week that, for 

example, is used in the plant production 

process throughout the week; (2) the 

start-up of a machine every workday 

morning and its shutdown every 

workday evening; and (3) the use of a 

hazardous substance at a facility every 

day or at the same time every week. The 

Agency is considering allowing these 

routine, anticipated, intermittent 

releases that are predictable and stable 

with respect to quantity, rate, and time 

of occurrence to be considered 

"continuous" releases and subject to the 

reduced reporting requirements of 

section 103(f)(2). The immediate 

reporting of such releases would not 

enhance the OSCs ability to determine 

if a Federal field response is necessary. . 

The Agency has identified two 

options under which predictable, 

routine, anticipated, intermittent 

releases would be exempted from 

episodic release reporting requirements, 

. Under the first option,'routine, 

anticipated, intermittent releases that 

are predictable and stable in quantity, 

rate, and time of occurrence would be a 

category of releases for which the 

Agency would grant an administrative 

exemption from section 103(a) reporting 

on the basis that response officials 

would not need such information on a 

per-occurrence basis. Thus, such 

releases would not be defined as 

"continuous" releases but would be 

subjected to analogous requirements 

pursuant to EPA's general rulemaking 

authority under CERCLA: Under the 

second option, EPA would redefine 

"continuous" to include these routine 

releases as continuous releases, subject 

to the reduced reporting requirements 

under section 103(f). The effect of both 

options is the same; routine, anticipated, 

intermittent releases that are 

predictable and stable in quantity, rate, 

and time of occurrence would be subject 

to reduced reporting requirements. The 

Agency solicits comments on the 

concept of treating these routine 

releases as "continuous" releases, on 

how "intermittent, routine, anticipated 

releases" could be defined meaningfully, 

and on the options discussed above. 

2. "Stable in Quantity and Rate" 

EPA considered both quantitative and 

qualitative indicators as possible 

standards by which to judge compliance 

with this statutory requirement. 

Quantitative measures, such as a 

predetermined percentage variation 

from the mean, are more difficult for 

EPA to establish because of the large 

number of different types of industries 

that may be releasing hazardous 

substances on a continuous basis and 

because of the different types of 

releases (i.e, amounts, frequency, 

location in the process, etc.). A 

qualitative measure, on the other hand, 

seems to be more appropriate because it 

provides greater flexibility to the 

regulated community without reducing 

the protection of human health and the . 

environment. 

, EPA has selected a qualitative 

measure that describes a release that is 

stable in quantity and rate as one that 

has a predictable quantity and rate 

during normal operations and is not the , 

result of malfunction or upset 

conditions. The Agency solicits 

comments and supporting data on this 

approach to "stable in quantity and 

rate" and on whether there are other 

qualitative and quantitative measures 

that might be appropriate. 

3. "For a Period Sufficient To Establish 

the Continuity, Quantity, and Regularity 

Of the Release" 

A number of commenters on the May 

25,1983 NPRM were in favor of letting 

the releaser determine this element of 

the continuous release provision. One 

argument offered was that the 

statistically significant increase 

provision would serve as an incentive to 

quantify releases accurately. Other 

commenters supported the 

establishment of a single time period for 

release reporting that would be the 

"period sufficiefit," while Still others 

preferred a specified number of release 

reports to establish the period sufficient 

for determining Whether a release was 

continuous and stable in quantity and 

rate. 

The Agency has attempted to be 

flexible on this point. Because the 

definition of "continuous" encompasses 

different types of releases, the time 

frame and nature of the documentation 

necessary to show continuity, quantity, 

and regularity may differ as well. 

EPA proposes to allow the person in 

charge to make the determination of the 

period appropriate to the particular 

release at issue. The Agency has not 

defined an acceptable time frame for the 

appropriate period because the quantity 

of data will vary greatly; for example, a 

frequent release will result in the 

generation of enough data to establish 

the predictability of the release in a 

short time while an infrequent release 

will slowly produce enough data to 

establish predictability. Both examples, 

however, may be continuous releases 

subject to the section 103(f)(2) reduced 

reporting requirement. Because 

notifications under section 103(a) 

(codified at 40 CFR 302.6) may not 

provide sufficient information to 

establish the continuity and 

predictability of a release, the person in 

charge may supplement the notifications 

made under 40 CFR 302.6 with recent 

release data, and any other relevant, 

information. However this ... . 

determination is made, it must include, 

at a minimum, the basis for. continuity , 

and the basis for asserting stability of 

quantity and rate. The Agency has 

further decided that the information 

forming the basis of the determination 

should not be sent to EPA at the time 

this determination is made, although the 

basis for asserting continuity and 

stability of quantity and rate is to be 

included as part of the annual report. 

This information must be kept oh file at 

the facility or, in the case of a vessel, at 

an office within the United States in 

either a port of call or place of regular 

berthing. EPA will request or inspect 

this information as necessary tp enforce 

the requirements of this section. 

If a release is continuous and stable in 

quantity and rate within the meaning of 

this regulation, but there is a substantial 

change in the composition or character 

of the release (other than in the amount) 

due to some process change or Other 

factors, the changed release is •• 

considered a different release, and 

qualification for the continuous-release 

reduced reporting requirement must be 

reestablished. • ""•• 

4. "Statistically Significant Increase" 

In the preamble to the May 25,1983 

proposed rule, EPA indicated that three • 

alternative!) Were under consideration

 : 
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128.72 Feder^ .Register /.Vol.?53i:Na 75;/;.-Tuesday,' Aptikt9.1-1988 /Proposed Rules 

for defining statistically significant 

increase: 

• Requiring reporting whenever a 

release falls outside some expected 

range based on statistical tests, such as 

the "Student t" test; 

• Requiring reporting whenever the 

amount released exceeds the amount . 

ordinarily released by some preestablished factor, such as 2, 5, or 10 

times the daily average; or 

• Letting the releaser determine what 

is a statistically significant increase. 

Commenters.bn these options 

expressed varying opinions as to which 

was the most appropriate approach. 

EPA has evaluated a number of 

approaches and has decided to remain 

flexible. The Agency proposes to allow 

the person in charge of the vessel'or 

facility to select the appropriate 

statistical test for identifying 

statistically significant increases in 

releases. For purposes of comparison in 

the statistical tests, releases refer, to the 

total amount released (at or above the 

RQ) over a 24 hour period. The Agency 

is defining statistically significant 

increases as increases that would occur 

less than five percent of the time under 

normal conditions (i.e., conditions that 

prevail during the period establishing 

the continuity, quantity, and regularity 

of the release). EPA has selected the five 

percent significance level for the Type I 

error rate;

 a this level allows EPA to 

fulfill its mandate to protect the public 

health and the environment. The Agency 

believes that requiring reporting under 

section 103(f)(2) for only those releases 

falling at or above the five percent 

significance level strikes an appropriate 

balance between reducing reporting 

requirements and its responsibility to 

protect the public health and the 

environment. EPA is interested in 

obtaining comments on this approach 

and solicits suggestions from interested 

parties with data supporting a Type I 

error rate other than that employed in 

this proposal. 

^The Agency believes that the 

nonparametric statistical test using an 

estimate of the 95th percentile (as 

described below and in Appendix C to 

§ 302.8 of the proposed regulation) 

should be applicable to all release 

situations. Statistically significant 

increases would be defined as those 

increases that fall at or above the 

estimate of the 95th percentile. This 

concept of a statistically significant 

increase in a release is consistent with 

CERCLA section 103(f)(2) that requires 

reporting of an "increase in the quantity 

* * * above that previously reported or 

occurring." Under certain circumstances 

where the underlying distribution is 

known (e.g., if there is a normal 

distribution and extensive existing 

release data), the control chart test, 

Student t test, or some other method 

may be more appropriate. The control 

chart test and Student t test are used 

commonly by industry where sufficient 

data exist to justify the underlying 

parametric assumptions. See Appendix 

C and the Background Document in 

Support of the Proposed Continuous 

Release Reporting Requirements under 

section 103(f)(2) of CERCLA 

(Background Document) for further 

information on the nonparametric, 

control chart, and Student t tests. 

Under today's proposal, use of a test 

other than the described nonparametric 

test requires a demonstration of the 

test's appropriateness with respect to 

the particular release. A parametric test 

may be preferred by a facility or vessel 

because the test may be used commonly 

for some other purpose or because a 

parametric test designed for a specific 

distribution may be more sensitive than 

the described nonparametric test 

applied to the same distribution. For the 

control chart or Student t test, the 

person in charge must demonstrate that 

the test is appropriate for the facility's 

or vessel's underlying release 

distribution. For any other alternative 

statistical methodology (including any 

alternative parametric or nonparametric 

test), the person in charge must 

demonstrate that the test is: (1) Sensitive 

enough to identify accurately at lease 60 

percent of the releases in the top five 

percent of all releases,4 or (2) at least 

equivalent in sensitivity to the most 

sensitive test among the nonparametric 

test, the control chart test, or the 

Student t test described in Appendix C. 

Sensitivity is defined to be the number 

of releases identified by the test that are 

actually in the top five percent divided 

by the total number of releases in the 

top five percent (see Appendix C). 

Requiring an alternative test to be at 

least as sensitive as the most sensitive 

test evaluated by the Agency is 

expected to result in releasers using the 

most sensitive statistical test available. 

The Agency expects all 

demonstrations to be updated annually 

:

' Type I error is (he probability of falsely 

a-muming a difference. In this instance, the Agency 

has set that probability at five percent. 

4

 EPA selected BO percent as the appropriate 

sensitivity level based upon a simulation involving 

1.000 different sets of 30 data points applied to the 

Student t and nonparametric statistical tests. Each 

observation was simulated for normal, log-normal, 

uniform, and randomly generated distribution. The 

results showed the tests were capable of identifying 

releases (in thp top five percent) at least 60 percent 

ofthe time. EPA believes, therefore, that any 

alternative statistical methodology should 

demonstrate at least equivalent sensitivity 

to verify the appropriateness of the test 

for the particular release. The 

demonstration should not be submitted 

to EPA when performed, although the 

results of the latest demonstration are to 

be included in the annual report 

required by the statute. The 

demonstration must be kept on file by 

the person in charge and made available 

for review by EPA as necessary. 

Use of the three statistical tests 

specifically mentioned above is 

discussed in detail in Appendix C to this 

proposed rule. Only a brief description 

of each is included here. The 

Background Document in support of this 

rulemaking discusses other statistical 

options evaluated by EPA. 

The Agency is interested in receiving 

comments on the specific statistical 

tests described herein, as well as other 

tests that might be appropriate to 

identify statistically significant 

increases. 

Briefly, the nonparametric test 

evaluated by EPA and included in this 

rule requires all releases to be recorded 

by the person in charge. A release at or 

above the RQ will be a statistically 

significant increase (and therefore must 

be reported to the National Response 

Center) if it is greater than the largest of 

the nineteen most recent releases. If 

fewer than nineteen releases have 

occurred, then the release would need to 

be reported to the National Response 

Center if it exceeds the largest release to 

date. Because the person in charge 

always is comparing the latest release to 

the last nineteen, the largest five percent 

of the releases generally will be 

reported, regardless of the underlying 

distribution. 

The Agency is aware that if two large, 

releases occur within a short period of 

time, with the first release being larger 

than the second release, the 

nonparametric test will identify only the 

first release as a statistically significant 

increase. The Agency acknowledges 

that the nonparametric test would not 

identify as a statistically significant 

increase large releases in circumstances 

such as these, and the National 

Response Center will not be notified 

immediately of the second large release. 

However, the OSC would have been 

notified immediately of the first large 

release, would have received, at least, 

the initial annual report from the 

facility, and will receive an annual 

report reflecting the second large 

release; thus the OSC would be able 

generally to evaluate the need for a 

Federal response. In addition, the 

nonparametric test has the advantage of 

being simple and straightforward, not 

requiring expensive and sophisticated 
P.8 

Federal Register 7.tydl-i.53jJN<fc TSJ/tTmsHay, April/19, 1988 / t^p^^d^FtltitifJs 12873 

statistical analysis. It will identify 

successfully situations where conditions 

at a facility are deteriorating; other tests 

might not identify as statistically 

significant increases releases that are 

gradually getting larger over time. The 

Agency requests comments regarding 

. the inability of the proposed test to 

identify the second of two large releases 

and seeks suggestions for refining the 

test to account for this gap. 

The control chart test is generally 

very effective in cases of 30 or more 

release data points. For a normal 

distribution, it triggers a report when an 

observation exceeds a certain number of 

standard deviations above the mean.5 If 

the new recorded release is less than 

this number of standard deviations 

above the mean, the release is not 

considered a statistically significant 

increase, and the release data point is 

added to the release history and a new 

mean and standard deviation are . 

calculated. This control chart test will 

identify dependably releases in the top 

five percent only when the underlying 

distribution is normal. Control chart 

tests for different known distributions 

also can be developed and would be 

accepted provided they meet the criteria 

specified in § 302.8(d)(3) of the proposed 

rule. 

The Student t test involves the 

calculation of a test statistic and a 

comparison of this test statistic with the 

t statistic for the upper five percent 

significance level. The test statistic is 

calculated by subtracting the mean of all 

releases (excluding the newest release) 

from the newest release, and dividing 

this difference by the standard 

deviation. The test statistic obtained is 

then compared to a table of reporting 

triggers, and if it equals or exceeds the 

relevant reporting trigger, the release is 

a statistically significant increase. 

EPA realizes that by using the tests 

described above for releases that are 

declining consistently over time, no 

statistically significant increase would 

be reported. In such situations, however, 

the Federal OSC will have information 

concerning previous reports received by 

the National Response Center. In 

addition, the OSC will receive the -

annual report from the facility or vessel 

(as described below), and will be able to 

evaluate the need for any Federal 

response based on the information 

contained in the annual report In the 

situation described above, because 

8

 EPA has defined this "certain-number" to be 

1.8485. which takes into account the asymptotic 

reduction in estimated mean and variance caused 

by excluding all values deemed reportable when in 

reality only Ave percent should be correctly 

regarded as reportable. 

releases of hazardous substances are 

declining steadily, it is anticipated that 

relatively few Federal responses would 

be necessary. The Agency solicits 

comments on this proposed approach 

that may result in delayed responses. 

5. Annual and Statistically Significant 

Increase Reporting 

While Congress intended to reduce 

the otherwise applicable reporting 

requirements for continuous releases (as 

compared to episodic releases), it did 

not intend to eliminate them entirely. 

Annual and statistically significant 

increase reporting are required by 

sectionl03(f)(2) and are necessary to 

meet the underlying objective of this 

provision. Annual reports are necessary 

to keep Federal response officials 

alerted to frequent, anticipated but 

potentially worrisome releases. 

Statistically significant increases must 

be reported immediately to the National 

Response Center because such releases • 

are not distinguishable from other 

episodic releases. Thus, the Agency 

cannot agree with the several' 

commenters who found the concept of 

annual reporting to be "unnecessary" 

and "burdensome" and requested it's 

elimination. EPA has attempted to 

interpret this statutory requirement with 

the same flexibility as other' 

requirements of section 103(f)(2) so as to 

minimize the burden associated with 

recording or calculating any 

unnecessary or marginally useful 

information and data, and still remain 

consistent with statutory objectives. 

The proposed rule requires that 

annual notification be made in writing 

to the OSC predesignated under the 

National Contingency Plan for the 

geographical area where the releasing 

facility or vessel is located. EPA 

bqlieveS it more appropriate that these 

reports be provided directly to the 

OSCs, rather than to the National 

Response Center, because this is not an 

immediate release notification and no 

emergency response generally will be 

required with respect to continuous 

releases (except statistically significant 

increases as discussed below). Rather, 

the OSCs in the Regions should be kept 

aware of releasers who are exceeding 

RQs on a continuous basis. 

Additionally, the annual report will 

enhance the OSCs ability to evaluate 

whether a response action is necessary 

to address a statistically significant 

increase. 

Submission of the annual report does 

not require or imply any EPA approval 

of the report or the information 

contained therein. Materials used to 

support the infonnation contained in the 

annual report, as well as other materials 

relevant to statistically significant 

increases, alternative statistical 

methodologies, and the continuity and 

stability of the release, need not be sent 

to EPA but instead should be kept on 

file at the facility, or in the case of a 

vessel, at an office within the United 

States, in either a port of call or a place 

of regular berthing. EPA may request 

such information as necessary to 

enforce the reporting requirements for 

continuous releases. 

The proposed regulation lists the 

following items for inclusion in the 

annual report for each substance: 

• The name/identity of the hazardous 

substance, the Chemical Abstract Service 

Registry Number (CASRN) for the substance 

(if available), the media affected, and the 

annual total pounds or kilograms released: 

• A short statement of the basis for 

asserting continuity and stability of quantity 

and rate; 

• The inclusive dates and the number of 

times the amount of the release during any 

24-hour period exceeded the reportable 

quantity; 

• The number of times statistically 

significant increases occurred and were 

reported to the National Response Center; 

• The amount in pounds or kilograms of 

the mean release and the single largest 

release: and 

• The type bf statistical test used to 

determine statistically significant increases 

and the results of the sensitivity analysis (if 

required) as set forth in Appendix C. 

Reporting of statistically significant 

increases should be made to the 

National Response Center in the manner 

set forth in 40 CFR 302.6 for all other 

notifications of hazardous substance 

releases that equal or exceed an RQ (50 

FR 1345B, April 4,1985). Such releases 

represent situations that will need to be 

evaluated immediately to determine the 

necessity for a response action. In 

determining whether a statistically 

significant increase has occurred and 

needs to be reported, the person in 

charge should use a 24-hour period for 

measuring the quantity released. 

III. Regulatory Analyses 

A. Executive Order No. 12291 

Rulemaking protocol under Executive 

Order (E.O.) 12291 requires that 

proposed regulations be classified as 

major or nonmajor for purposes of 

review by the Office of Management 

and Budget (OMB). According to E.O. 

12291, major rules are regulations that 

are likely to result in: 

(1) An annual effect on the economy 

of $100 million or more; or 

(2) A major increase in costs or prices 

for consumers, individual industries, 

Federal, State, or local government 

agencies, or geographic regions: or 
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12874 Federal Register / Vol. 53; No..,75. /- Tuesday ,rApril 19.; 1988 / Proposed Rules 

(3) Significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or on the 

ability of United States-based 

enterprises to compete with foreignbased enterprises in domestic or export 

markets. 

The Background Document shows that 

today's proposed regulation is nonmajor, 

because adoption of the proposed rule 

will result in a cost to government and 

the regulated community of 

approximately $36 million ($35.7 million 

to the regulated community). At the 

same time, this proposal is expected to 

generate cost savings to the government 

and the regulated community of 

approximately $406 million ($328 million 

to the regulated community), yielding a 

net benefit of about $370 million ($292 

million to the regulated community). 

Moreover, the proposed rule will not 

cause a major increase in costs or prices 

mentioned in (2) above or cause any of 

. the significant.adverse affects 

mentioned in (3) above. 

This document has been submitted to 

OMB for review as required by E.O. 

12291. 

B. Regulatory Flexibility Act 

The Regulatory Flexibility Act of 1980 

requires that a Regulatory Flexibility 

Analysis be performed for all rules that 

are likely to have a "significant impact 

on a substantial number of small 

entities." EPA certifies that this 

proposed regulation will not have a 

significant impact on a substantial 

number of small entities and that a 

Regulatory Flexibility Analysis is not 

required. See. Chapter Six of the 

Background Document referenced 

above. 

C. Paperwork Reduction Act ' 

The information collection 

requirements in this proposed rule have 

been submitted to the Office of 

Management and Budget (OMB) under 

the Paperwork Reduction Act of 1980, 44 

U.S.C. 3501 et. seq. Submit comments on 

these requirements to the Office of 

Information and Regulatory Affairs; 

OMB; 726 Jackson Place NW., 

Washington, DC 20503, marked 

"Attention: Desk Officer for EPA." The 

final rule will respond to any OMB or 

public comments On the information 

collection requirements. .. . 

List of Subjects 

40 CFR Part 302 

Air pollution control, Chemicals, 

Hazardous materials transportation, 

Hazardous substances, Hazardous 

wastes, Intergovernmental relations, 

Natural resources. Nuclear materials, 

Pesticides and pests, Radioactive 

materials, Reporting and recordkeeping 

requirements, Superfund, Waste 

treatment and disposal, Water pollution 

control. 

40 CFR Part 355 

Chemical accident prevention, 

Chemical emergency preparedness, 

Chemicals, Community emergency 

response plan, Community right-toknow. Contingency planning, Extremely 

hazardous substances, Hazardous 

substances, Reportable quantity, 

Reporting and recordkeeping 

requirements, Threshold planning 

quantity. 

Dated: April 10,1988. 

Lee M. Thomas, 

Administrator. 

For the reasons set out in the 

preamble, it is proposed to amend Title 

40 of the Code of Federal Regulations as 

follows: 

PART 302—DESIGNATION, 

REPORTABLE QUANTITIES ANO 

NOTIFICATION 

1. The authority citation for Part 302 

continues to read as follows: 

Authority: 42 U.S.C. 9602; 33 U.S.C. 1321 

and 1361. 

2. Part 302 is amended by adding 

§ 302.8 to read as follows: 

§302.8 Continuous releases. 

(a)-Except as provided in paragraph 

(c) of this section, no notification shall 

be required under § 302.6 of this part for 

any release of a hazardous substance 

that has been determined pursuant to 

paragraph (b) of this section to be: 

continuous without interruption or 

abatement, continuous during operating 

hours, or continuous during regularlyoccurring batch processes, and also a 

release that is stable in quantity and . 

rate. A release that is stable in quantity 

and rate means a release that is 

predictable in amount arid rate of 

emission during normal operations and, 

does not result from malfunction or 

upset conditions. 

(b)(1) Except as provided'in'section 

103(f)(2)(A) of CERCLA, the person in 

charge of the facility or.vessel must 

provide notification under § 302.6 for a 

period sufficient to establish the 

requirements of paragraph (a) of this 

section. The period sufficient for a 

particular release shall be determined 

by the person in charge. Where • • • 

necessary to establish the conditions set 

out in paragraph (a) of this section, the 

person in charge may rely on recent 

release data or other relevant 

information to supplement notification 

under § 302.6. 

(2) AH documents, materials, and 

other information used to support: the 

determination that the release meets the 

conditions of paragraph (a) of this 

section, the notifications made under 

paragraph (c) of this section, and the 

demonstration under paragraphs (d)(2)' 

and (d)(3) of this section, shall be kept 

on file at the facility or, in the case of a 

vessel, at an office within the United

 : 

:

 States in either a port of call or a place 

of regular berthing. Such information 

shall be made available to EPA upon ' 

request as necessary.to enforce the 

requirements of this section. 

(c)(1) Notification shall be given for 

any release qualifying for reduced 

reporting under this section: .'••:•* • 

(i) Annually; and 

(ii) At such times as an increase in the 

quantity ofthe hazardous substance 

being released during any 24-hour 

period represents a statistically ' 

significant increase as described in 

paragraph (d) of this section. 

(2) Initial notification of a continuous 

release and subsequent annual. 

notification in accordance with 

paragraph (c)(l)(i) of this section shall 

be made in writingto the Federal OnScene Coordinator designated, pursuant 

to 40 CFR Part 300, for the geographical 

area where the releasing facility or 

vessel is located. Initial notification 

shall occur at the time the person in 

charge of the facility or vessel, claims 

that its releases qualify for reduced 

reporting under this section. Annual 

notification shall occur on a date to be < 

elected by the reporting entity in the 

initial notification. The date elected in 

the initial notification for submittal of ' 

subsequent annual notifications shall be 

no later than one year from the day of 

filing of the initial notification. The 

annual notification shall include for 

each substance for which the continuous 

release reduced reporting requirement is 

claimed the following information 

concerning the release during the 

applicable reporting period: 

, (i) The name/identity of the 

hazardous substance, the Chemical . 

Abstracts Service Registry Number 

(CASRN) for the substance (if 

available), the media affected, and the 

annual total pounds or kilograms 

released; 

(ii) The basis for asserting continuity 

and stability of quantity and rate; 

(iii) The inclusive dates and the 

number of times the amount of the 

release during any 24-hour period 

exceeded the reportable quantity; 

(iv) The number of times statistically 

significant increases occurred and were 
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Federal Register / Vbli S3; No. 75 v/Tuesday, April 19, 1988 / ftoppsfcd. Rules' 12875 

reported to the National Response 

Center; 

(v) The amount in pounds or 

kilograms of the mean release and the 

single largest release; and 

(vi) Pursuant to paragraph (d) of this 

section, the type of statistical test used 

to determine statistically significant 

increases and the results of the 

sensitivity analysis (if required) as set 

forth in Appendix C. 

(3) Notification of a statistically 

significant increase shall be made to the 

National Response Center in the manner 

set forth in § 302.6. 

.(d) For the purposes of this section, 

statistically significant increases are the 

largest five percent of all continuous 

releases. A determination of whether an 

increase is a "statistically significant 

increase" shall be made based upon: 

(1) The nonparametric statistical test 

using a distribution-free estimate of the 

95th percentile as described in 

Appendix C of this section; 

(2) The control chart test or Student t 

test, in accordance with the procedures . 

set forth in Appendix C of this section, if 

it can be demonstrated that the 

underlying release distribution is 

normal; or 

(3) Any other alternative statistical 

methodology that can be demonstrated 

to be: 

(i) Sufficiently sensitive to identify 

accurately the releases in the top five 

percent at least 60 percent of the time; or 

(ii) At least equivalent in sensitivity to 

the most sensitive test among the 

nonparametric test, the control chart 

test, or the Student t test described in 

Appendix C of this section. 

(e) Multiple concurrent releases of the 

same substance occurring at various 

locations with respect to contiguous 

plants or installations upon contiguous 

grounds that are under common 

ownership or control shall be added 

together in determining whether such 

releases constitute a continuous release 

under paragraph (a) of this section or a 

statistically significant increase under 

paragraph (d) of this section. 

(f) The reduced reporting 

requirements provided for under this 

section shall apply only so long as the 

person in charge complies fully with all 

requirements of paragraphs (b) and (c) 

of this section. Failure of such 

compliance with respect to any release 

from the facility or vessel shall subject 

the person in charge to all of the 

reporting requirements of § 302.6 for 

each such release and to the penalties 

under § 302.7 for failure to notify, and to 

any other applicable penalties provided 

for by law. 

Appendix C to § 302^—Procedure for 

Determining Statistically Significant 

Increases 

The purpose of this appendix is to describe 

procedures for determining statistically 

significant increases under 40 CFR 302.8(d). 

Statistical tests are to be used to determine 

whether a specific release represents a 

statistically significant increase. EPA has 

defined a statistically significant increase as 

an increase that would occur only less than 

five percent of the time under normal 

conditions. The choice of the appropriate 

statistical test to use depends upon the 

number of data points available to the person 

in charge of the vessel or facility from which 

a release occurs and the underlying release 

distribution. If a parametric test specified in 

the rule is employed, the person in charge 

must maintain on file at the facility a 

demonstration that the particular test used to 

identify statistically significant increases is 

appropriate for the release distribution being 

tested. Use of a statistical methodology not 

specified in the rule requires a demonstration 

that the methodology chosen is at least 60 

percent accurate in identifying statistically 

significant increases or. if not, is at least 

equivalent insensitivity to the most sensitive 

test among the nonparametric test, the 

control chart test, or the Student t test 

described in the rule. 

Section 1 of this appendix describes the 

nonparametric test identified by the Agency; 

Section 2 of this appendix describes the 

parametric tests evaluated by the Agency 

and considered generally acceptable; and 

Section 3 of this appendix discusses the 

demonstration required to show the 

appropriateness of a particular statistical 

methodology. 

The statistical procedures descibed in this 

appendix assume that data used in the 

various tests are collected under the same 

circumstances and in the same manner. That 

is, the data set must be homogeneous. If the 

production process is altered, or if there are 

substantial increases or decreases in 

production levels, the data collection and 

analytical process must begin again. 

1. Nonparametric Statistical Tests 

The Agency evaluated a nonparametric 

test for situations where the person in charge 

of a vessel or facility may not know the 

underlying distribution of the releases. The 

nonparametric test evaluated by EPA is 

appropriate for situations where any number 

of data points are available. The test 

evaluated is a distribution-free statistical 

evaluation based on the estimate of the 95th 

percentile. 

The nonparametric test evaluated by EPA 

requires that a release of an RQ or more be 

reported to the National Response Center if 

the release exceeds the largest of the 19 most 

recently recorded releases. If fewer than 19 

releases have been recorded, then the release 

would need to be reported to the National 

Response Center if it exceeds the largest 

previous release recorded to date. In essence, 

this nonparametric test is always comparing 

the newest release to the immediately 

previous 19 releases and is generally 

identifying the largest five percent of all 

releases as statistically significant increases. 

In the following example, the person in 

charge of a facility releasing a CERCLA 

hazardous substance with an RQ of 10 pounds 

has made reports to the National Response 

Center for a determination period sufficient to 

establish the continuity and stability of the 

release. After such determination is made, the 

person in charge begins to identify those 

releases that are statistically significant 

increases. Releases in the post-determination 

period are compared with releases from the 

determination period. Assume that only five 

releases occurred in the determination period, 

as follows: 

Release A— 40 pounds 

Release B— 45 pounds 

Release C— 30 pounds 

Release D— 40 pounds 

Release E— 20 pounds 

Following written notification to the.OSC, 

reports of statistically significant increases 

would need to be made to the National 

Response Center as noted: 

Release 1—50 pounds; Report 

Release 2—70 pounds; Report 

Release 3—40 pounds; No Report 

Release 4—150 pounds; Report 

Release 5—60 pounds; No Report 

Release 6—70 pounds; No Report 

Release 7—80 pounds; No Report 

Release 8—40 pounds; No Report 

Release 9—70 pounds; No Report 

Release 10—50 pounds; No Report 

Release 11—100 pounds; No Report 

Release 12—50 pounds; No Report 

Release 13-—80 pounds; No Report 

Release 14—30 pounds; No Report 

Release 15—70 pounds; No Report 

Release 16—90 pounds; No Report 

Release 17—40 pounds; No Report 

Release 18—95 pounds; No Report 

Release 19—100 pounds; No Report 

Release 20—50 pounds; No Report 

Release 21—30 pounds; No Report . . 

Release 22—40 pounds; No Report 

Release 23—90 pounds; No Report 

Release 24—60 pounds; No Report 

Release 25—110 pounds; Report 

For each release 1 through 14, a report 

would be made to the National Response 

Center if it exceeds the largest previous 

release. Thus, releases, 1, 2 and 4 would be 

reported. Release 15 is then compared to 

releases A through 14 and is found not to be a 

statistically significant increase. Release 15 is 

then added to the release history and release 

A is deleted. Release 16 would be compared 

to releases B through 15. Because the release 

history contains at least one release that 

exceeds the 90 pounds in release 16, no report 

is needed. Release 16 is added to the release 

history and release B is deleted. For release 

25, the relevant release history includes 

releases 6 through 24 (the most recent 19 

releases). The 110 pounds in release 25 does 

need to be reported to the National Response 

Center because it exceeds the largest of the 

most recent 19 releases (even though release 

4 is larger, it is no longer in the data base for 

purposes of comparison). 
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12876 .„., Z JFideml Register...;/.. Vol. 53, No. 75.,7rTue:sdayi-Aprit.rl9j.4988 /Proposed Rules 

Over time, the nonparametric test will tend 

to identify successfully the largest five 

percent of all releases but it will not identify 

perfectly alloutliers. The nonparametric test 

involves a sequential analysis, allowing for 

updating and modification of the reporting 

trigger. In the example above, the 100 pounds 

in releases 11 and 19 do not need to be 

reported but the 110 pounds in release 25 

does need to be reported. This result occurs 

because the reporting trigger is being'updated 

continually. Given the small amount ofdata 

available for releases A through 14, releases 

of less than 150 pounds do not appear to 

represent statistically significant increases. 

As more data become available, however, the 

test uses the newer data to reevaluate the 

reporting trigger. 

A non parametric test is most appropriate 

in situations where the person in charge of 

the vessel or facility does hot have historical 

data available and is unaware of the 

underlying release distribution. This 

nonparametric test does not require 

sophisticated statistical calculations: it is 

performed by simply comparing each new 

release to the most recent 19 releases. 

2. Parametric Statistical Tests 

EPA has analyzed the following two 

parametric tests for use in identifying a 

statistically significant increase and has 

found that when these tests reflect the 

appropriate underlying release distribution, 

they are sufficiently sensitive in identifying 

the largest five percent of all releases. 

2.1 Student t Test 

The Student t test is designed for use when 

the underlying release distribution is a 

normal distribution. The Student t test 

involves the calculation of a test value and a 

comparison of this test value with the t 

. statistic. The test value is calculated by 

subtracting the mean of all releases 

(excluding the newest release) from the 

newest release! and dividing this difference 

by the standard deviation. 

EXHIBIT 1—STUDENT t TEST REPORTING 

TRIGGERS—Continued 

Student t Test Value = 

X„- X 

where X„ is the most recent release, X is the 

mean or average of all releases excluding the 

newest release, and S is the sample standard 

deviation. X and S are calculated using the 

following formulas: v 

X -

XJ+XJ*. .+x n-1. 

and

 : S -

n-1 M 

CXj-x-^+CKj,-*)2 + .. . + (x^-x) 2 

where n represents the number of releases in EXHIBIT 1—STUDENT t TEST REPORTING 

the data set. 

The newest release is not included in the 

calculation of the mean and standard 

deviation for the Student t test. The test value 

obtained is compared to a table of reporting 

triggers shown in Exhibit 1. If the test value 

equals or exceeds the reporting trigger, the 

release is a statistically significant increase . 

and must be reported to the National 

Response Center. 

The Student t test is designed for use in 

situations when there are 30 or fewer data 

points, although it can be used when more 

than 30 data points are available. After 30 

data points are accumulated, the Control 

Chart test (discussed in Section 2.2 below) 

and the Student t test are essentially 

synonymous because the reporting trigger is 

equivalent to a release of 1.645 standard 

deviations above the mean (see Exhibit 1). 

TRIGGERS 

Number of observations: 

1 

2 

3 

4...... 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 .", 

15 

Reporting 

trigger at 

95th 

percentile 

level 

6.314 

2.920 

2.353 

2.132 

2015 

1.943 

1.895 

1.860 

1 833 

1.812 

1.796 

1 782 

1,771 

1.761 

1.753 

16 

17 

18 

19 ; 

20 .". 

21 : 

22 

" ' 23 

24 

25 

26 

27 : 

28 

29.. 

int 

Reporting 

trigger at 

95th 

percentile 

level 

1.746 

1.740 

1.734 

1.729 

1.725 

1.721 

1.717 

1.714 

1.711 

1.708 

1.706 

1.703 

1.701 

1.699 

1.645 

2.2 Control Chart Test 

The Control Chart test can only be used 

when at least 30 releases have been 

recorded. The Control Chart test is a dynamic 

test in that uses prior releases to form a data 

set in which the mean and standard deviation 

are calculated. When a new release is 

recorded, its value is compared to the 

reporting trigger. For a normal distribution, 

the reporting trigger is defined to be the mean 

(X) plus 1.8485 times the standard deviation. 

If the newly recorded release is less than |X 

+ (1.8485) (S)|, then the release is not 

considered to be a statistically significant 

increase and does not need to be reported to 

the National Response Center. The release is 

then added to the release history and a new 

mean and standard deviation are calculated. 

If the next new release is greater than |X + 

(1.8485)(S)|, then the release must b(j reported 

to the National Response Center and the 

release is not included in the release history, 

there is no recalculation of the mean and 

standard deviation. 

This Control Chart test will dependably 

identify the top five percent of releases only 

when the underlying distribution is normal, lf 

the underlying distribution is lognormal, for 

example, the Control Chart test as presented 

above will trigger reporting of fewer than five 

percent of the releases. An appropriate 

Control Chart test can be developed for any. 

known distribution for which there is a 

specific mathematical equation for .the 

cumulative distribution, or for which there 

exists a published table of the distribution. 

To use the Control Chart test to identify 

release in the top five percent, it is imperative 

that the underlying distribution be known. 

Example 

Release .1—10 pounds 

Release 2—15 pounds 

Release 3—70 pounds 
P.12 

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Release 4—30,pounds 

Release 5—-60 pounds 

Release 6—50 pounds 

Release 7—40 pounds 

Release 8—80 pounds 

Release 9—70 pounds 

Release 10—70 pounds 

Release 11—30 pounds 

Release 12—40 pounds 

Release 13—50 pounds 

Release 14—90 pounds 

Release 15—-47 pounds 

Release 16—12 pounds 

Release 17—25 pounds 

Release 18—33 pounds 

Release 19—75 pounds 

Release 20—100 pounds 

Release 21—110 pounds 

Release 22—50 pounds 

Release 23—105 pounds 

Release 24—80 pounds 

Release 25—40 pounds 

Release 26—20 pounds 

Release 27—60 pounds 

Release 28—40 pounds 

Release 29—90 pounds 

Release 30—40 pounds 

For the 30 releases shown above, the mean 

is 54.40 and the sample standard deviation is 

28.14 (the general method for calculating a 

mean and standard deviation is described in 

Section 2.1 above). Any release greater than 

106.42 pounds |54.40+ (1.8585)(28.14)] must be 

reported to the National Response Center. If 

release 31 equals 90 pounds, it is less than the 

trigger value of 106.42 pounds and need not 

be reported to the National Response Center. 

This release is added to the data set and a 

new trigger value is calculated. The sample 

standard deviation now equals 28.39, the 

mean equals 55.55, and the trigger value is 

equal to 108.03. If release 32 is equal to 110 

pounds, it must be reported to the National 

Response Center because it is greater than 

the trigger value of 108.03 pounds. The trigger 

value remains the same for the next release 

because the 110 pound release is not added to 

the release history and no new standard 

deviation is calculated. 

3. Demonstration Requirements for 

Alternative Tests 

Persons in charge who want to use a 

statistical test other than the nonparametric 

test discussed above need to demonstrate the 

appropriateness of the test. The 

demonstration must include the following: 

• If the statistical test used is the Student t 

test or the Control Chart test described in 

Section 2 above the demonstration must 

show that the underlying release distribution 

is normal. 

• For any other alternative test, the person 

in charge must present evidence that the 

sensitivity of the alternative test is at least 60 

percent accurate in identifying the true 

outliers or, if not, is at least equivalent in 

sensitivity to the most sensitive test among 

the nonparametic test, the control chart test, 

or the Student! test, described above. The 

demonstration must be made on a data set of 

i-t least 100 data points. The actual outliers 

must first be identified by examining the test 

data base and determining which releases 

are in fact in the top 5 percent of all releases. 

This determination involves a 

straightforward observation of the test data 

base. The alternative test must then be 

applied to this same data set to determine the 

sensitivity bf the test. Sensitivity is defined to 

be the fraction of release identified by the 

test that are actually in the top 5 percent of 

all releases over the total number of releases 

in the top 5 percent. This ratio must be at

 ; 

least 0.6 or the alternative test must be at 

least as sensitive as the three tests mentioned 

above. 

For example, if the test data set contains 

200 releases, the demonstration begins by. 

first identifying the largest 10 releases in the 

data set (the largest 5 percent of all releases). 

The alternative test must then be applied to 

these 200 releases. The sensitivity of the 

alternative test is the number of correctly 

identified statistically significant increases 

over the total number of statistically 

significant increases. If the alternative test 

correctly identifies 7 of the 10 releases in the 

top 5 percent, then the sensitivity of the 

alternative test is 0.7 and the demonstration 

is complete and satisfactory. If the 

alternative test Correctly identifies only 5 of 

the 10 releases in the top 5 percent, then the 

sensitivity of the alternative test is only 0.5. 

Although the sensitivity is less than 0.6, the 

alternative test would still be considered 

acceptable if the nonparametric test, control 

chart test, or Student t test outlined above 

applied to the same data set also are only 

capable of identifying 5 of the 10 releases in 

the top 5 percent. The sensitivity of the 

alternative test would then be equivalent to 

the sensitivity of the three tests described 

above and the demonstration would be 

complete and satisfactory. 

All demonstrations must remain on file at 

the facility (or, in the case of a vessel, at an 

office within the United States in either a port 

of call or place of regular berthing) and must 

be made available to EPA upon request. 

PART 355—EMERGENCY PLANNING 

AND NOTIFICATION 

3. The authority citation for Part 355 is 

revised to read as follows: 

Authority: 42 U.S.C. 11002 and 11048. 

4. Section 355.40 is amended by 

revising paragraphs (a)(1) and (a)(2)(iii), 

adding (a)(2)(iv), and revising (a)(2)(v) 

and the note to paragraph (a) to read as 

follows: 

§ 355.40 Emergency release notification. 

[a) Applicability. (1) The requirements 

of this section apply to any facility: 

(i) At which a hazardous chemical is 

produced, used, or stored; and 

(ii) At which there is a release of a 

reportable quantity of any extremely 

hazardous substance or CERCLA 

hazardous substance. 

(2)* * * 

(iii) Any release that is: 

(A) Continuous without interruption 

or abatement; 

(B) Continuous during operating hours; 

. o r •„• 

(C) Continuous during regularlyoccurring batch processes, and stable in 

quantity and rate, as determined in 

accordance with 40 CFR 302.8 (except 

for "Statistically significant increases" 

defined in 40 CFR 302.8(d) as the largestfive percent of all continuous releases 

and determined in accordance with the 

statistical methodologies described in 

§ 302.8(d)); 

(iv) Any release of a pesticide product 

exempt from CERCLA section 103(a) 

reporting under section 103(e) of 

CERCLA: and 

(v) Any release exempt from CERCLA 

section 103(a) reporting under section 

101(22) of CERCLA. 

Note: Releases of CERCLA hazardous 

substances, are subject to the release 

reporting requirements of CERCLA section 

103, codified at 40 CFR Part 302, in addition 

to the requirements of this part. 

* * # * * .... . 

|FR Doc. 88-8550 Filed 4-18-88; 8:45 am) 

BILLING CODE 6560-50-M