Federal Register / Vol. 70, No. 191 / Tuesday, October 4, 2005 / Proposed Rules 57813 

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. 

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: http:// 

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

• Agency Web site: http:// 

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 http:// 

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 email 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 

http://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? 

57814 Federal Register / Vol. 70, No. 191 / Tuesday, October 4, 2005 / Proposed Rules 

1This total includes P– and U– wastes. 

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 § 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. 

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 

Federal Register / Vol. 70, No. 191 / Tuesday, October 4, 2005 / Proposed Rules 57815 

2For this proposed rule, we use the shorthand 

convention NOX to refer to both NO and NO2 either 

collectively or as individual hazardous substances. 3These 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). 

4This data collection activity is approved under 

OMB No. 2050–0046. EPA Form Number 1049.10. 

5This data collection activity is approved under 

OMB No. 2050–0086. EPA Form Number 1445.06. 

6The 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. 

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

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. 

SUMMARY TABLE 1.—NOX (REPORTED AS NOX, NO, NO2) RELEASE NOTIFICATIONS (TO AIR)—ERNS NOTIFICATIONS

Year 

Total number NOX notifications Reported 

unknown 

amt 

Less than 

10 pounds 

10–99 

pounds 

100–999 

pounds 

1000–5000 

pounds 

Above 5000 

pounds 

Percent of 

total 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

57816 Federal Register / Vol. 70, No. 191 / Tuesday, October 4, 2005 / Proposed Rules 

SUMMARY TABLE 2.—NOX (REPORTED AS NOX, NO, NO2) RELEASE NOTIFICATIONS (TO AIR)—CR–ERNS INITIAL

REPORTS

Year 

Total number NOX notifications Reported as 

unknown 

amt 

Less than 

10 pounds 

10–99 

pounds 100–999 1000–5000 pounds 

Above 5000 

pounds 

Percent of 

total 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 

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. 

What it does Control NOX? Additional information 

CAA § 111 

New Source Performance Standards—EPA to 

evaluate and control emissions from new stationary sources in areas that meet and do 

meet National Ambient Air Quality Standards 

for criteria pollutants (incl. NOX). Developed 

and promulgated separately for various categories of sources. 

NSPS controlling NOX promulgated for: ..........

—municipal waste combustors ........................

—hospital, medical, infectious waste incinerators.

—fossil fuel-fired steam generators .................

—electric utility steam generating units ...........

—industrial, commercial, institutional steam 

generating units.

—stationary gas turbines .................................

NSPS include exemptions based on source 

size or capacity. NSPS are developed 

based on the degree of emission limitation 

achievable through application of the best 

technological system, taking into consideration cost, health impacts, and energy requirements. Waivers may be granted to extend compliance schedules or allow the use 

of alternative control technologies. 

CAA § 112 

Requires the evaluation and control of emissions of hazardous air pollutants (HAPs). 

Control of HAP emissions is achieved 

through National Emission Standards for 

HAPs or NESHAPs.

NOX is not a HAP, but NOX emissions may 

be incidentally reduced through co-control 

of some HAP source categories (MACT—

maximum achievable control technology).

NESHAPs set emission limits, equipment 

standards, and/or work practice standards 

for categories of stationary sources 

CAA Title I Part C 

PSD—Prevention of Significant Deterioration 

requirements may apply to a single source or 

multiple sources within a facility, if the 

source:.

—belongs to one of 28 listed source categories 

and has the potential to emit 100TPY or 

more of NOX (or other listed pollutants).

PSD requirements affect construction or modification of large NOX sources in NAAQS attainment areas. Affected sources must use 

the best available control technology.

NOX PSD requirements apply everywhere 

since NO2 NAAQS has been attained everywhere. 

—is any new major source (>250TPY) of NOX

—is subject of a planned modification that 

would increase NOX emissions by at least 

40TPY.

Emissions subject to PSD requirements must 

be controlled with best available control 

technology. 

Federal Register / Vol. 70, No. 191 / Tuesday, October 4, 2005 / Proposed Rules 57817 

7Some 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). 

8A 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. 

9See 40 CFR 60.2 Definitions and 40 CFR 63.2 

Definitions for Clean Air Act regulatory definition 

of malfunction. 

10See 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. 

What it does Control NOX? Additional information 

CAA Title I Part D 

Nonattainment NSR requirements for new 

major sources and major modifications.

—applies primarily to new sources in ozone 

nonattainment areas.

—based on 10–100TPY of NOX for major 

sources.

Emission control requirements are based on 

the lowest achievable emission reduction—

more stringent than BACT. 

Must also offset emission increases. 

Because Part D applies to sources in nonattainment areas, compliance and reporting 

requirements are more stringent than those 

for PSD sources. Also 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 § 110 

Requires each state to submit to EPA a SIP 

that provides for attainment, maintenance, 

and enforcement of the NAAQS within the 

state.

SIPs must be at least as stringent as federal 

requirements. Vary widely because ambient 

air quality issues vary from state to state, 

and from region to region within a state. For 

example, NOX-emitting sources in metropolitan or heavily industrialized areas generally face more stringent requirements 

than in rural areas that are not classified as 

sensitive air quality regions.

SIPs must be updated to incorporate newly 

promulgated state or federal rules. SIP requirements must be incorporated into Title 

V permits, including PSD/NSR. NOXRACT 

is required in certain ozone nonattainment 

areas and in the Ozone Transport Region. 

SIPs must prevent significant contribution to 

nonattainment in downwind states. 

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 ongoing 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

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. 

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 

57818 Federal Register / Vol. 70, No. 191 / Tuesday, October 4, 2005 / Proposed Rules 

11An 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. 

12Available in the Docket (SFUND–2003–0022). 

13This 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. 

14CERCLA 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. 

focus its resources on more serious 

releases. 

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. 

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. 

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. 

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 § 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. 

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 

Federal Register / Vol. 70, No. 191 / Tuesday, October 4, 2005 / Proposed Rules 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: http://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 http://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 

57820 Federal Register / Vol. 70, No. 191 / Tuesday, October 4, 2005 / Proposed Rules 

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 

Federal Register / Vol. 70, No. 191 / Tuesday, October 4, 2005 / Proposed Rules 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 costeffective, 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 intergovernmental mandates, 

and informing, educating, and advising 

small governments on compliance with 

the regulatory requirements. 

Today’s rule contains no Federal 

mandates (under the regulatory 

provisions of Title II or the UMRA) for 

State, local, or tribal governments or the 

private sector. The rule imposes no 

enforceable duty on any State, local or 

tribal governments or the private sector; 

promulgation of this rule will result in 

a burden reduction in the receipt of 

notifications of the release of NOX. EPA 

has determined that this rule does not 

include a Federal mandate that may 

result in expenditures of $100 million or 

more for State, local, or tribal 

governments, in the aggregate, or the 

private sector in any one year. This is 

because this proposed rule imposes no 

enforceable duty on any State, local, or 

tribal governments. EPA also has 

determined that this rule contains no 

regulatory requirements that might 

significantly or uniquely affect small 

governments. In addition, as discussed 

above, the private sector is not expected 

to incur costs exceeding $100 million. 

Thus, today’s proposed rule is not 

subject to the requirements of Sections 

202 and 205 of UMRA. 

E. Executive Order 13132: Federalism 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’

This proposed rule does not have 

federalism implications. It will not have 

substantial direct effects on the States, 

on the relationship between the 

National Government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. There are no 

State and local government bodies that 

incur direct compliance costs by this 

rulemaking. Thus, Executive Order 

13132 does not apply to this rule. 

In the spirit of Executive Order 13132, 

and consistent with EPA policy to 

promote communications between EPA 

and State and local governments, EPA 

specifically solicits comment on this 

proposed rule from State and local 

officials. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ This proposed rule does 

not have tribal implications, as specified 

in Executive Order 13175. Today’s rule 

does not significantly or uniquely affect 

the communities of Indian tribal 

governments, nor would it impose 

substantial direct compliance costs on 

them. Thus, Executive Order 13175 does 

not apply to this rule. 

G. Executive Order 13045: Protection of 

Children From Environmental Risks and 

Safety Risks 

The Executive Order 13045, entitled 

‘‘Protection of Children from 

Environmental Health Risks and Safety 

Risks (62 FR 19885, April 23, 1997) 

applies to any rule that: (1) Is 

determined ‘‘economically significant’’

as defined under Executive Order 

12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

the Agency must evaluate the 

environmental health or safety effects of 

the planned rule on children, and 

explain why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by the Agency. 

EPA interprets Executive Order 13045 

as applying only to those regulatory 

actions that are based on health or safety 

risks, such that the analysis required 

under section 5–501 of the Order has 

the potential to influence the regulation. 

This proposed rule is not subject to 

Executive Order 13045 because it does 

not establish an environmental standard 

intended to mitigate health or safety 

risks. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution or Use 

This proposed rule is not subject to 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355 (May 

22, 2001)) because it is not a significant 

regulatory action under Executive Order 

12866. 

I. National Technology Transfer and 

Advancement Act of 1995 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law No. 

104–113, 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

57822 Federal Register / Vol. 70, No. 191 / Tuesday, October 4, 2005 / Proposed Rules 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. The NTTAA directs EPA to 

provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. 

This proposed rulemaking does not 

involve technical standards. Therefore, 

EPA is not considering the use of any 

voluntary consensus standards. 

List of Subjects 

40 CFR Part 302 

Air pollution control, Chemicals, 

Emergency Planning and Community 

Right-to-Know Act, Extremely 

hazardous substances, Hazardous 

chemicals, Hazardous materials, 

Hazardous materials transportation, 

Hazardous substances, Hazardous 

wastes, Intergovernmental relations, 

Natural resources, Reporting and 

recordkeeping requirements, Superfund, 

Waste treatment and disposal. 

40 CFR Part 355 

Air pollution control, Chemical 

accident prevention, Chemical 

emergency preparedness, Chemicals, 

Community emergency response plan, 

Community right-to-know, Contingency 

planning, Disaster assistance, 

Emergency Planning and Community 

Right-to-Know Act, Extremely 

hazardous substances, Hazardous 

substances, Intergovernmental relations, 

Natural resources, Penalties, Reportable 

quantity, Reporting and recordkeeping 

requirements, Superfund Amendments 

and Reauthorization Act, Threshold 

planning quantity. 

Dated: September 27, 2005. 

Stephen L. Johnson, 

Administrator. 

For the reasons set out in the 

preamble, it is proposed to amend title 

40, chapter I of the Code of Federal 

Regulations as follows: 

PART 302—DESIGNATION, 

REPORTABLE QUANTITIES, AND 

NOTIFICATION 

1. The authority citation for part 302 

continues to read as follows: 

Authority: 42 U.S.C. 9602, 9603, 9604; 33 

U.S.C. 1321 and 1361. 

2. Section 302.6 is amended by 

adding paragraph (e) to read as follows: 

§ 302.6 Notification requirements. 

* * * * * 

(e) The following releases are exempt 

from the notification requirements of 

this section: 

(1) Releases in amounts less than 

1,000 pounds per 24 hours of nitrogen 

oxide to the air which are the result of 

combustion and not the result of an 

accident or malfunction of equipment. 

(2) Releases in amounts less than 

1,000 pounds per 24 hours of nitrogen 

dioxide to the air which are the result 

of combustion and not the result of an 

accident or malfunction of equipment. 

PART 355—EMERGENCY PLANNING 

AND NOTIFICATION 

1. The authority citation for part 355 

continues to read as follows: 

Authority: 42 U.S.C. 11002, 11004, and 

11048. 

2. Section 355.40 is amended by 

adding paragraph (a)(2)(vii) to read as 

follows: 

§ 355.40 Emergency release notification. 

(a) * * * 

(2) * * * 

(vii) Any release in amounts less than 

1,000 pounds per 24 hours of nitrogen 

oxide or nitrogen dioxide to the air that 

is the result of combustion and not the 

result of an accident or malfunction of 

equipment. 

* * * * * 

[FR Doc. 05–19872 Filed 10–3–05; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 372 

[TRI–2005–0073; FRL–7532–8] 

RIN 2025–AA14 

Toxics Release Inventory Burden 

Reduction Proposed Rule 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: Under section 313 of the 

Emergency Planning and Community 

Right-to-Know Act (EPCRA), the 

Environmental Protection Agency (EPA) 

proposes to revise certain requirements 

for the Toxics Release Inventory (TRI). 

The purpose of these revisions is to 

reduce reporting burden associated with 

the TRI reporting requirements while 

continuing to provide valuable 

information to the public that fulfills the 

purposes of the TRI program. ‘‘Burden’’

is the total time, effort, or financial 

resources expended by persons to 

generate, maintain, retain, disclose, or 

provide information to or for a Federal 

agency. The Agency will continue to 

provide valuable information to the 

public pursuant to section 313 of 

EPCRA and section 6607 of the 

Pollution Prevention Act (PPA) 

regarding toxic chemical releases and 

other waste management activities. 

If adopted, today’s proposed action 

would increase eligibility for the Form 

A Certification Statement for nonPersistent Bioaccumulative and Toxic 

(PBT) chemicals by raising the 

eligibility threshold to 5000 pounds for 

the ‘‘annual reportable amount’’ of a 

toxic chemical. It would also, for the 

first time, allow limited use of Form A 

for PBT chemicals where total releases 

are zero and the PBT annual reportable 

amount does not exceed 500 pounds. 

Dioxin and dioxin-like compounds are 

excluded from consideration for 

expanded Form A eligibility. Today’s 

proposal applies to the reporting of 

individual chemicals and is not 

intended to apply automatically to all 

reports that a facility may be required to 

file. 

For non-PBTs under the current 

regulations, the annual reportable 

amount is the combined total quantity 

released at the facility, treated at the 

facility, recovered at the facility as a 

result of recycle operations, combusted 

for the purpose of energy recovery at the 

facility, and amounts transferred from 

the facility to off-site locations for the 

purpose of recycling, energy recovery, 

treatment, and/or disposal. This 

combined total corresponds to the 

quantity of the toxic chemical in 

production—related waste, i.e., the sum 

of Sections 8.1 through and including 

Section 8.7 of the Form R. Today’s 

proposal would define a PBT annual 

reportable amount that would also 

include amounts managed and reported 

under Section 8.8 of the Form R. Greater 

detail on how reporters can qualify for 

increased Form A eligibility is provided 

later in today’s proposal under Section 

III. 

DATES: Comments, identified by the 

Docket ID No. TRI–2005–0073, must be 

received on or before December 5, 2005. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. TRI–2005–

0073, by one of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

• Agency Web site: http:// 

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: oei.docket@epa.gov 

• Fax: 202–566–0741. 

• Mail: Office of Environmental 

Information (OEI) Docket,