[Federal Register Volume 71, Number 192 (Wednesday, October 4, 2006)]
[Rules and Regulations]
[Pages 58525-58533]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-16379]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 302 and 355

[EPA-HQ-SFUND-2003-0022; FRL-8227-7]
RIN 2050-AF02


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency is issuing a final rule 
that will reduce reporting burdens 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.
    In this rule, EPA broadens the existing reporting exemptions for 
releases that are the result of combustion of less than 1,000 pounds of 
nitrogen oxide and less than 1,000 pounds of nitrogen dioxide to the 
air in 24 hours. These may also include emissions from detonation or 
processes that include both combustion and non-combustion operations, 
such as nitric acid production. This administrative reporting exemption 
is protective of human health and the environment and consistent with 
the Agency's goal to reduce unnecessary reports given that the levels 
for which the Clean Air Act regulates nitrogen oxides are considerably 
higher than 10 pounds. In addition, the Agency believes that the 
information gained through submission of the reports for those exempted 
releases would not contribute significantly to the data that are 
already available through the permitting process to the government and 
the public.

DATES: This final rule is effective on November 3, 2006.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-SFUND-2003-0022. All documents in the docket are listed on 
the www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically through 
www.regulations.gov 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.


    Note: The EPA Docket Center suffered damage due to flooding 
during the last week of June 2006. The Docket Center is continuing 
to operate. However, during the cleanup, there will be temporary 
changes to Docket Center telephone numbers, addresses, and hours of 
operation for people who wish to visit the Public Reading Room to 
view documents. Consult EPA's Federal Register notice at 71 FR 38147 
(July 5, 2006) or the EPA Web site at www.epa.gov/epahome/
dockets.htm for current information on docket status, locations and 
telephone numbers.


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:

A. Does This Action Apply to Me?

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        Type of entity               Examples of affected entities
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Industry.....................  Application of this rule should result in
                                a reduction to your reporting burden--
                                persons in charge of vessels or
                                facilities that may release nitrogen
                                oxide (NO) or nitrogen dioxide (NO2) or
                                both (NOX) to the air that is the result
                                of combustion and combustion-related
                                activities.
State, Local, or Tribal        State and Tribal Emergency Response
 Governments.                   Commissions, and Local Emergency
                                Planning Committees.
Federal Government...........  National Response Center and any Federal
                                agency that may release NOX.
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    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 I.C of this final rule preamble and the 
applicability criteria in Sec.  302.6 of title 40 of the Code of 
Federal Regulations. If you have questions regarding the applicability 
of this action to a particular entity, consult the person listed in the 
preceding FOR FURTHER INFORMATION CONTACT section.

B. Outline of This Preamble

    The contents of this preamble are listed in the following outline:
I. Introduction
    A. What is the Statutory Authority for this Rulemaking?
    B. What is the Background For this Rulemaking?
    C. Which NO and NO2 Releases Are Administratively 
Exempt From the Reporting Requirements?
    D. What Are the Changes From the Proposed Rule?
II. Response to Comments
    A. Support for Proposed Reporting Exemptions
    B. Support for Expanding Continuous Release Reporting in 
Addition to Proposed Exemption
    1. Simplify Continuous Release Initial Release Notification
    2. Clarify Continuous Release Reporting Requirements
    C. Support to Increase Level of the Exemption
    1. Support a Number Larger than 1,000 Pounds
    2. Increase RQ for Combustion-Related Exemption to 5,000 Pounds
    3. Raise or Eliminate the 1,000 Pound Reporting Threshold for 
all Combustion-Related Releases
    D. Request That the Administrative Reporting Exemption Not 
Include the Qualifier ``Accidents and Malfunctions''
    1. Accidents and Malfunctions

[[Page 58526]]

    2. Also Include in Exemptions--Start-ups, Shut-downs, and Up-
sets
    3. Clarify that Flares are Control Devices--Not Considered 
Accidents and Malfunctions
    E. Requests That the Administrative Reporting Exemption Include 
Combustion and Non-Combustion Processes
    F. Interpretation of CERCLA Provisions
    1. Proposed Exemption only Applies to Emissions Not Considered 
Federally Permitted
    2. Clarify that NOX Represents NO and NO2 
Interchangeably
    G. Issues Related to Rulemaking Procedure
III. Regulatory Analysis
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Risks and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution or Use
    I. National Technology Transfer and Advancement Act of 1995
    J. Congressional Review Act

I. Introduction

A. 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.\1\ 
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,\2\ exclusive of 
Radionuclides, F-, K-, and Unlisted Characteristic Hazardous Wastes.
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    \1\ Other Federal environmental statutes include: Federal Water 
Pollution Control Act (sections 1321(b)(2)(A), 1317(a)), Solid Waste 
Disposal Act (section 6921), Clean Air Act (section 7412), and Toxic 
Substances Control Act (section 2606).
    \2\ This total includes the P- and U-listed wastes under 
Subtitle C of the hazardous waste regulations.
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    Under CERCLA section 103(a), the person in charge of a vessel or 
facility from which a CERCLA hazardous substance has been released in a 
quantity that equals or exceeds its reportable quantity (RQ) must 
immediately notify the National Response Center (NRC) of the release. A 
release is reportable if an RQ or more is released within a 24-hour 
period (see 40 CFR 302.6). This reporting requirement, among other 
things, serves as a trigger for informing the Federal 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 (see 63 FR 13459) 
that broadened the 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 that pose 
little or no risk or to which a Federal response is infeasible or 
inappropriate (see 63 FR 13461).
    In addition to the reporting requirements established pursuant to 
CERCLA section 103, section 304 of the Emergency Planning and Community 
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 \3\ to State and local authorities (see 40 CFR 355.40).
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    \3\ Extremely hazardous substances are those listed in Appendix 
A and B of 40 CFR part 355. EPCRA section 11002(a)(2) required the 
Agency to publish a list of extremely hazardous substances that is 
the same list as the list of substances published in November 1985 
by EPA in Appendix A of the ``Chemical Emergency Preparedness 
Program Interim Guidance.''
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    This rule that applies to CERCLA section 103 notification 
requirements also applies 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.

B. What Is the Background for This Rulemaking?

    On December 21, 1999, EPA published interim guidance on the 
Federally permitted release exemption to section 103 of CERCLA and 
section 304 of EPCRA (see 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. 
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.'' (See 67 FR 18904.) When the Agency 
published that final Guidance, it also extended and expanded an on-
going enforcement discretion (Appendix B to that Notice) policy \4\ 
with regard to owners, operators or persons in charge of facilities or 
vessels 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. (See 67 FR 18904.)
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    \4\ The enforcement discretion policy was initially announced in 
a memorandum to EPA Regional Counsels and Division Directors for 
EPCRA section 304/CERCLA section 103 from Steven A. Herman, 
Assistant Administrator, Office of Enforcement and Compliance 
Assurance, dated February 15, 2000.

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[[Page 58527]]

    Since the publication of the Guidance, there has been significant 
interest and inquiry by industry for the Agency to address the 
reporting obligations for NOX releases to air under CERCLA 
and EPCRA. Most recently, the Office of Management and Budget (OMB) 
asked the public for their suggested reforms to rules, guidance 
documents, or paperwork requirements that would reduce unnecessary 
costs, increase effectiveness, reduce uncertainty, and increase 
flexibility. In OMB's report to Congress on the costs and benefits to 
Federal regulation (the ``Thompson Report''), one of the nominated 
reforms meriting priority consideration by EPA was to grant some form 
of reporting relief for certain releases of NOX to air. As a 
result, on October 4, 2005, EPA published a proposed rule (see 70 FR 
57813) that provided notice of, and requested comments, including any 
relevant data, on a proposed new administrative reporting exemption 
from certain notification requirements under CERCLA and EPCRA. The 
Agency also sought public comment on human health risk assessment data 
or other relevant data that related to the proposal. The proposed 
administrative reporting exemption pertained to releases of less than 
1,000 pounds of nitrogen oxide and nitrogen dioxide (or collectively 
referred to as ``NOX'' for the proposed rule) to the air in 
24 hours that is the result of combustion activities, unless such 
release is the result of an accident or malfunction. The proposed rule 
included a requirement that 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 Agency also 
sought comment on two other options to address the high frequency of 
release notifications. Those options involved more efficient use of 
Continuous Release reporting and a complete exemption from the 
notification requirements under CERCLA and EPCRA.
    Twenty-seven comment letters, totaling more than 150 pages, were 
received on the proposed rule. Of the 27 comment letters, 14 were 
received from trade organizations, five from power corporations, five 
from chemical companies, two from organizations representing chemical 
companies, and one from a not-for-profit organization. This final rule 
was developed following careful consideration of all issues and 
concerns raised in public comments. Upon the effective date of this 
final rule, the Agency is withdrawing the existing enforcement 
discretion policy, described above, 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.

C. Which NO and NO2 Releases Are Administratively Exempt 
From the Reporting Requirements?

    In this final rule, releases of NO to the air that are the result 
of combustion and combustion-related activities that are less than 
1,000 pounds per 24 hours, and releases of NO2 to the air 
that are the result of combustion and combustion-related activities 
that are less than 1,000 pounds per 24 hours, are administratively 
exempt from the reporting requirements of CERCLA and EPCRA, established 
in 40 CFR 302.6 and 40 CFR 355.40, respectively. Some examples of 
combustion-related activities that are intended to be included in this 
exemption are emissions from blasting or detonation at construction or 
mining sites and those NOX emissions from nitric acid 
plants.
    The existing 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 \5\ to the air. This is especially true when the 
facility processes include combustion and combustion-related 
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.\6\
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    \5\ For shorthand purposes only, we use the convention 
NOX to refer to both NO and NO2 either 
collectively or as individual hazardous substances. However, where 
regulatory clarity is needed, we will specifically refer to each 
hazardous substance.
    \6\ These examples were submitted to the Agency during the 
comment period for the Guidance on the CERCLA Section 101(10)(H) 
Federally Permitted Release Definition for Certain Air Emissions 
(see 67 FR 18899, April 17, 2002) discussed further 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 for today's final rule (SFUND-2003-0022). All of the 
letters received pursuant to the Guidance can be found in that 
Docket (GE-G-1999-029).
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    The exemptions apply only to CERCLA section 103 and EPCRA section 
304 reporting requirements and do not apply to the related response and 
liability provisions. EPA is promulgating the administrative reporting 
exemption at 1,000 pounds for 24-hours, based on our review of the 
comments, for three principal reasons. First, the 1,000 pound level 
represents a 100-fold increase from the regulatory RQ of 10-pounds. 
This level was one of three (100, 1000, and 5000 pounds) levels 
suggested by two organizations representing regulated industries \7\ as 
a level for the Agency to raise the RQ for NO and NO2. 
Second, the Agency sought public comment on human health risk 
assessment data or other relevant data that related to its proposed 
rule, including an alternative for a complete exemption from the 
notification requirements under CERCLA and EPCRA. Although the Agency 
received considerable comment, including two specific examples 
generated from a USEPA screening model that support the desire to (1) 
raise the administrative exemption to 5,000 pounds or higher or (2) 
completely exempt NO and NO2 from CERCLA and EPCRA reporting 
requirements, the Agency did not receive risk assessment data that 
would support a different level for the administrative reporting 
exemption. The Agency also did not receive any human health risk 
assessment data that would oppose the administrative reporting 
exemption at the proposed level. Third, EPA believes that a CERCLA 
response to the release otherwise reportable would be very unlikely and 
possibly infeasible or inappropriate, because (1) the releases are 
generally at levels below those that are regulated under the Clean Air 
Act (CAA), and (2) the Agency has generally not responded to such 
releases. As a result, the administrative reporting exemptions are 
intended to allow EPA to focus its resources on the more serious 
releases and to protect public health and welfare and the environment 
more effectively and efficiently. At the same time, the exemptions will 
significantly eliminate unnecessary reporting burdens on persons-in-
charge of facilities and vessels that release NOX during 
combustion and combustion-related activities.
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    \7\ The organizations were the National Association of 
Manufacturers (NAM) and the American Chemistry Council (ACC). The 
ACC also provided comment to the proposed rule.
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D. What Are the Changes From the Proposed Rule?

    In response to comments, EPA has made one change and clarified a 
few of the provisions included in the October 4, 2005, proposed rule. 
Specifically, EPA decided to remove the qualifier to the exemption for 
releases that are the ``result of accidents and malfunctions.'' As 
discussed in more detail in Sections

[[Page 58528]]

II. D.1-3 of this preamble, information submitted by public commenters 
and assembled by the Agency in response to comments are sufficient to 
support a finding that the qualifier adds unnecessary confusion that 
may lead to additional burden and unnecessary reporting. This final 
rule includes a better explanation as to what is covered under 
combustion, and clarifies that combustion-related activities (where 
they cannot be realistically separated) are included within the 
administrative reporting exemption and that NOX represents 
NO and NO2 interchangeably. See Section II.E. and Section 
II.F.2, respectively.

II. Response to Comments

    EPA's full response to public comments related to this rule are 
contained in ``Responses to Comments on the October 4, 2005 Notice of 
Proposed Rulemaking on Administrative Reporting Exemptions for Certain 
Air Releases of NOX (NO and NO2 )'' (Responses to 
Comments), which is available for inspection at the location described 
in ADDRESSES, above. The following sections provide a summary of the 
major public comments and EPA's responses.

A. Support for Proposed Reporting Exemptions

    All of the 27 comment letters submitted on the October 4, 2005 
proposed rule supported to some extent the Agency's effort to reduce 
reporting burden for releases of NO and NO2 
(NOX). Of those, 10 specifically supported the proposed 
administrative reporting exemption at 1,000 pounds.

B. Support for Expanding Continuous Release Reporting in Addition to 
Proposed Exemption

    Seven commenters supported this alternative that would expand 
continuous release reporting to require that NOX release 
notifications be covered under the continuous release reporting scheme. 
However, those who supported this alternative generally believed that 
it should be in addition to rather than instead of the administrative 
reporting exemption. On the other hand, four commenters opposed this 
alternative primarily because it would be in lieu of the proposed 
exemption, and would not afford practicable relief.
1. Simplify Continuous Release Initial Release Notification
    While commenters both supported and opposed the use of the 
continuous release reporting mechanism, they all expressed the same 
concern--that is, the Agency would promulgate the continuous release 
reporting mechanism in place of the administrative reporting exemption. 
In this final rule, both the administrative reporting exemption and the 
continuous release reporting mechanism, as discussed below, can be used 
to reduce burden.
    For those commenters who expressed support for simplifying the 
continuous release initial release notifications, they argued that EPA 
must broaden its concepts of ``continuous'' and ``stable in quantity 
and rate'' so as to encompass startup and shutdown operations. EPA 
believes that in certain instances startup and shutdown operations may 
meet the definitions of continuous and stable in quantity and rate. The 
definition of continuous under 40 CFR 302.8 says that, ``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.'' The definition of stable in 
quantity and rate under 40 CFR 302.8 says that, ``a release that is 
stable in quantity and rate is a release that is predictable and 
regular in amount and rate of emission.'' The regulation puts the 
burden on the person in charge of a facility or vessel to establish a 
sound basis for qualifying the release for continuous release reporting 
(see 40 CFR 302.8(d)) and allows that establishment to be made using 
release data, engineering estimates, knowledge of operating procedures, 
best professional judgment, or reporting to the NRC for a period 
sufficient to establish the continuity and stability of the release. 
Therefore, we believe that the existing rules already provide, in 
certain instances, for the use of continuous release reporting. To the 
extent that EPA believes it appropriate to broaden the definition of 
``continuous'' and ``stable in quantity and rate,'' we believe such 
revision should apply more broadly to all hazardous substances and 
extremely hazardous substances and would require further rulemaking.
2. Clarify Continuous Release Reporting Requirements
    One of the commenters requested that EPA clarify that the exemption 
also applies to continuous release reporting requirements. The Agency 
agrees that the administrative reporting exemption for releases of NO 
and NO2 would also apply to continuous releases.

C. Support To Increase Level of the Exemption

    Eighteen commenters supported this alternative to increase the 
level of the exemption. In general, five of those commenters supported 
some number larger than 1,000 pounds, ten commenters supported 
increasing the combustion-related exemption to 5,000 pounds, and three 
commenters supported eliminating the 1,000 pound reporting threshold 
altogether for all combustion-related releases.
1. Support a Number Larger than 1,000 Pounds
    Some of the commenters who supported a number larger than 1,000 
pounds also proposed another level. One commenter suggested increasing 
the exemption to a 1,500 pound level arguing that those releases would 
also be below the 250 tons per year (TPY) that EPA cites in the NPRM. 
EPA has adopted the RQ levels of 1, 10, 100, 1000, and 5000 pounds 
originally established pursuant to CWA section 311 (see 40 CFR Part 
117). The Agency adopted the CWA five-level system primarily because 
(1) it has been successfully used pursuant to the CWA, (2) the 
regulated community is already familiar with these five levels, and (3) 
it provides a relatively high degree of discrimination among the 
potential hazards posed by different CERCLA hazardous substances. ( See 
50 FR 13456, 13465, April 4, 1985.) Therefore, the Agency has decided 
not to promulgate an administrative reporting exemption level that is 
inconsistent with its long-established RQ levels.
    One commenter suggested that EPA identify additional sources of 
NOX emissions to further reduce the notification burden. At 
this time, EPA is not considering extending the administrative 
reporting exemption to specific sources. However, EPA wishes to clarify 
that the release of NOX during the activity of explosive 
detonation associated with blasting of hard rock in quarries is, for 
the purposes of this final rule, a release of NOX that is 
the result of combustion and thus, eligible for the administrative 
reporting exemption promulgated today.
2. Increase RQ for Combustion-Related Exemption to 5,000 Pounds
    One of the commenters who supported increasing the combustion-
related exemption to 5,000 pounds also believes that EPA should change 
the basic reportable quantity from 10 pounds. EPA disagrees. Changing 
the basic reportable quantity (RQ) from 10 pounds to a ``reasonable'' 
figure, which the commenter considers to be 5,000 pounds, would be 
contrary to EPA's long established principle of maintaining one RQ that 
applies to all media. The RQ for NO and NO2 was adjusted in 
the final rule published

[[Page 58529]]

April 4, 1985. (See 50 FR 13456.) The RQ for both hazardous substances 
was adjusted from their statutory RQ to the current 10 pound RQ for 
each.
3. Raise or Eliminate the 1,000 Pound Reporting Threshold for all 
Combustion-Related Releases
    Three commenters expressly supported eliminating the 1,000 pound 
reporting threshold for all combustion-related releases. While the 
Agency acknowledges the commenters' position, we did not receive 
adequate information (for example, human health and ecological risk 
assessment) to support extending the administrative reporting exemption 
beyond the proposed 1,000 pound level.
    One commenter \8\ used a USEPA air dispersion model to illustrate 
the impact of an incremental 5,000 pounds of emissions from actual 
boiler and gas turbine operations to support the position that the 
administrative reporting exemption should be raised to 5,000 pounds. 
The commenter provided two examples of NO2 emissions (NO 
quickly reacts to NO2 after release from a combustion stack) 
and the resulting hourly concentrations (micrograms/meter 3) 
that illustrate concentration levels that are much less than the 
California acute reference exposure level (REL) for NO2.\9\ 
EPA does not consider the risk information addressing these two 
examples to be sufficient for the requested human health and ecological 
risk assessments because, (1) commenters were informed in the proposed 
rule where to obtain guidance on conducting human health and ecological 
risk assessments,\10\ including addressing all current complete site-
specific exposure pathways for all affected media, future land use 
potential, potential exposure pathways, and toxicity information and 
(2) the example emission scenarios are too narrow given the broader 
potential release scenarios that this administrative reporting 
exemption is seeking to include. In addition, releases of 
NOX to the environment cause a wide variety of health and 
environmental impacts that is not addressed by the California REL. For 
example, ground-level ozone is formed when NOX and volatile 
organic compounds (VOCs) react in the presence of sunlight; acid rain 
is formed when NOX and sulfur dioxide react with other 
substances in the air to form acids; and NOX reacts readily 
with common organic compounds to form a wide variety of toxic products. 
Therefore, the Agency believes that the information provided, while 
informative, is not sufficient to further increase the administrative 
reporting exemption.
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    \8\ This commenter's position was endorsed and supported by 
reference in several other comment letters.
    \9\ The NO2 REL of 470 micrograms per cubic meter is 
a one-hour risk-based number based on respiratory/asthma problems.
    \10\ See, 70 FR 57819, October 4, 2005. Guidance can be found 
at: http://www.epa.gov/oswer/riskassessment/superfund_toxicity.htm.
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D. Request That the Administrative Reporting Exemption Not Include the 
Qualifier ``Accidents and Malfunctions''

    Twenty-five commenters requested that the administrative reporting 
exemption not include the qualifier for ``accidents and malfunctions.'' 
Of those 25 commenters, 16 commented specifically on accidents and 
malfunctions, three commenters requested that EPA also include start-
ups, shut-downs, and up-sets, and five sought clarification that flares 
are control devices and therefore not considered the result of 
accidents and malfunctions.
1. Accidents and Malfunctions
    The Agency received considerable support for either extending the 
administrative reporting exemption to releases resulting from accidents 
and malfunctions or limiting the scope of the administrative reporting 
exemption to combustion devices (eliminating the need to identify 
accidents and malfunctions), or both. Several commenters were correct 
in pointing out that no NOX releases from combustion 
devices--including many related to accidents and malfunctions-has 
required any Federal response. In fact, the NOX release 
notifications that have required response actions have only been in the 
category of releases not related to combustion devices, such as in 
situations where NOX was released incidental to the actual 
reason for the response (i.e., fires and explosions). Some commenters 
argued that the ``accidents and malfunctions'' qualifier would result 
in minimal burden reduction, if not an increase in burden. The 
historical data that the Agency used to predict future releases is 
populated with release information that was not covered by the 
enforcement discretion in place since February 15, 2000, essentially 
releases that were due to ``accidents and malfunctions.'' If the 
administrative reporting exemption retains the ``accident and 
malfunction'' qualifier, then the Agency could receive notification of 
releases at 1,000 pounds and above that were not reported due to the 
enforcement discretion in addition to the notifications anticipated 
based on the historical notification data. This would be inconsistent 
with the intent of the rulemaking to offer burden reduction.
    CERCLA section 103 and EPCRA section 304 notification requirements 
require the person in charge of the facility or vessel that released 
the hazardous substance to make the notification to Federal, State, and 
local authorities. Neither statute nor their implementing regulations 
differentiate the cause of the release (i.e., whether the release was 
the result of an accident or malfunction). EPA agrees with the 
commenters that to require a separate assessment as to whether the 
release was the result of an accident or malfunction, particularly with 
respect to releases that result from combustion, may be overly 
burdensome and not consistent with the intention of either statute, nor 
the Agency's goal of reducing burden. If a response is not necessary 
for a release of NOX from a facility due to normal 
operations, that assessment should apply even if an accident or 
malfunction somehow generated the release. EPA also agrees that, 
particularly with respect to certain combustion activities, it may be a 
challenge, if not impossible, to determine whether the combustion 
activities were caused by an accident or malfunction. Thus, protective, 
over-reporting could result.
    A few of the commenters pointed out that EPA has not defined the 
terms, ``accident'' and ``malfunction'' and insist that EPA will need 
to ensure that any interpretation of what is considered within an 
``accident'' or ``malfunction'' event is consistent with 
interpretations in other EPA programs (e.g., air permitting). EPA 
agrees that inconsistency with other EPA programs has the potential to 
create unnecessary confusion. Therefore, the definition and 
interpretation of those terms should remain within the EPA programs 
where they have a direct regulatory application. The Agency is also not 
providing a definition of ``excess emissions'' because it is no longer 
necessary without the ``accident and malfunction'' qualifier.
    Therefore, EPA will not include the qualifier, ``unless such 
release is the result of an accident or malfunction'' to the 
administrative reporting exemption for releases of NO or 
NO2, or both, to air that are the result of combustion or 
combustion-related activities.
2. Also Include in Exemptions--Start-ups, Shut-downs, and Up-sets
    Three commenters requested that the Agency expand the exemption to 
include additional emissions from combustion sources, such as start-
ups,

[[Page 58530]]

shut-downs, and upsets. For the reasons described in Section II.D.1 
above, EPA will not include the qualifier, ``unless such release is the 
result of an accident or malfunction'' to the administrative reporting 
exemption for releases of NO or NO2, or both, to air that 
are the result of combustion or combustion-related activities. To the 
extent that start-up, shut-down, and up-sets are part of a combustion 
or combustion-related activity, they are eligible for the 
administrative reporting exemption, provided such releases are below 
the 1,000 pound level per 24-hours.
3. Clarify That Flares Are Control Devices--Not Considered Accidents 
and Malfunctions
    Five commenters requested that the Agency clarify that flares are 
control devices and not considered the result of an accident or 
malfunction. For the reasons described in Section II.D.1 above, EPA 
will not include the qualifier, ``unless such release is the result of 
an accident or malfunction'' to the administrative reporting exemption 
for releases of NO or NO2, or both, to air that are the 
result of combustion or combustion-related activities. To the extent 
that flaring is combustion or a combustion-related activity, it is 
considered within this administrative reporting exemption, provided 
such releases are below the 1,000 pound level per 24-hours.

E. Requests That the Administrative Reporting Exemption Include 
Combustion and Non-Combustion Processes

    The Agency received three requests to expand the exemption to 
include combustion processes that also include non-combustion 
activities and non-combustion processes. One of those comments 
specifically identified NOX emissions from nitric acid 
plants during the production of fertilizer. The commenter described the 
process of NOX emissions from nitric acid plants. The 
process begins with mixing ammonia with air that is combusted across a 
platinum/rhodium catalyst creating a hot NOX gas, primarily 
NO. The hot NOX gas is cooled through a series of heat 
exchangers and most of the NO reacts with the excess oxygen to form 
NO2. The NOX gas is then introduced into an 
absorber, where it interacts with a weak nitric acid solution and fresh 
water, resulting in a series of over 38 chemical reactions. Generally, 
NO2 is absorbed into the aqueous phase and nitric acid is 
formed. As a result, however, NO and a much smaller fraction of the 
NO2 are released back into the gas phase. Since NO is 
produced in each reaction that makes nitric acid, extra air is 
introduced into the absorber to convert the NO back to NO2. 
The NO2 is reabsorbed and the cycle repeats itself. Since NO 
does not appreciably absorb into the aqueous phase, some NO ultimately 
exits the top of the column. A smaller fraction of NO2 also 
exits the column due to the kinetics and equilibrium of the reactions. 
The gas exiting the absorption column is called tail gas. At this 
point, most of the gas is again NO. The tail gas is heated and directed 
through an air pollution control device to control NOX 
emissions to the atmosphere. The hot, pressurized tail gas is then sent 
through an expander to generate power for the air compressor, and 
finally exits out the stack.
    The NO and NO2, or NOX released from nitric 
acid plants is originally formed as a product of NH3 
combustion. However, nitric acid plants also produce NOX 
from N2O4 in an aqueous reaction. Because it is 
impossible to determine which NOX emissions result from 
combustion as opposed to non-combustion processes, all NOX 
emissions from nitric acid plants qualify for this NO and 
NO2 administrative reporting exemption because all NO and 
NO2 released from nitric acid plants originates from 
combustion activities.
    Similarly, where nitric acid is used in the Adipic Acid 
manufacturing process, there may be releases of NOX from 
control devices in an upstream process. To the extent that those 
control devices are functioning properly and operate as combustion 
devices, the resulting NO and NO2 emissions would be covered 
under this administrative reporting exemption.
    Releases of NO and NO2 from storage tanks are not 
intended to be administratively exempt from CERCLA and EPCRA 
notification requirements because there is a higher likelihood that 
there would be a response to such a release scenario.

F. Interpretation of CERCLA Provisions

    Nine commenters provided comment on the interpretation of certain 
CERCLA provisions.
1. Proposed Exemption Only Applies to Emissions Not Considered 
Federally Permitted
    One commenter requested that EPA clarify that Federally permitted 
releases are already exempt from reporting under CERCLA section 
101(10)(H) and that the 1,000 pound limit applies only to emissions 
that are not considered Federally permitted releases. We agree with the 
commenter that the administrative reporting exemption described in this 
rule applies to those releases that are not otherwise covered by CERCLA 
or EPCRA exemptions, including those covered by Federal permits defined 
under CERCLA section 101(10)(H).
2. Clarify that NOX Represents NO and NO2 
Interchangeably
    One commenter recommended that EPA clarify in the rule that the 
terms NO and NO2 are interchangeable with the term 
NOX. Nitrogen oxide (NO) is a CERCLA hazardous substance 
with an RQ of 10 pounds per 24 hours. Nitrogen dioxide (NO2) 
is also a CERCLA hazardous substance with an RQ of 10 pounds per 24 
hours. During combustion and combustion-related activities, NO will 
quickly form NO2. The term NOX was used in the 
proposed rule and this final rule as short-hand for NO and 
NO2. For the purpose of reporting, and the administrative 
reporting exemption, NO and NO2 are and continue to be 
treated as individual hazardous substances. This final rule clarifies 
that point.

G. Issues Related to Rulemaking Procedure

    One commenter requested that EPA conform the preamble to the rules 
actually proposed to make clear that the administrative reporting 
exemption affords a 1,000 pound exemption to nitrogen oxide and another 
1,000 pound exemption to nitrogen dioxide. The commenter is correct 
that the administrative reporting exemption affords a 1,000 pound 
exemption to nitrogen oxide and another 1,000 pound exemption to 
nitrogen dioxide. The preamble to this final rule has clarified this 
point.

III. Regulatory Analysis

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), 
this action is a ``significant regulatory action.'' 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. Accordingly, EPA submitted this action to the 
Office of Management and Budget (OMB) for review under EPA 12866 and 
any changes made in response to OMB recommendations have been 
documented in the docket for this action. OMB had no comments on this 
action.

[[Page 58531]]

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
This rule represents a reduction in the burden for both industry and 
the government by administratively exempting the notification 
requirements for releases of less than 1,000 pounds of NO to the air in 
24-hours and less than 1,000 pounds of NO2 to the air in 24-
hours that are the result of combustion and combustion-related 
activities. However, the Office of Management and Budget (OMB) has 
previously approved the information collection requirements contained 
in the existing regulations 40 CFR 302 and 40 CFR 355 under the 
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and 
has assigned OMB control number 2050-0046, EPA ICR number 1049.10 and 
OMB control number 2050-0086, EPA ICR number 1445.06. A copy of the OMB 
approved Information Collection Requests (ICRs) may be obtained from 
Susan Auby, Collection Strategies Division; U.S. Environmental 
Protection Agency (2822T); 1200 Pennsylvania Ave., NW., Washington, DC 
20460 or by calling (202) 566-1672.
    The proposed rule estimated that the annual reporting and 
recordkeeping burdens associated with the information collected for the 
episodic release of oil and all hazardous substances (1049.10) to be 
reduced by approximately 5,449 hours. This represented 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 episodic release equals one respondent. With respect to 
the information collected for the continuous release reporting 
regulation (1445.06) for all hazardous substances, the Agency estimated 
a reduction of 869 hours, a reduction in the likely number of 
respondents from 3,145 to 3,009, a reduction of 136 respondents. These 
estimates remain the same for this final rule.
    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 is in 40 CFR part 9.

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 
Procedures 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 this 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 that is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of this final 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 
recordkeeping 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 permitted release'' 
exemption for reporting under CERCLA. 40 CFR 302.6. We have therefore 
concluded that this final rule will relieve regulatory burden for all 
affected small entities.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective, or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted.
    Before EPA establishes any regulatory requirements that may 
significantly or uniquely affect small governments, including tribal 
governments, it must have developed under section 203 of the UMRA a 
small government agency plan. The plan must provide for notifying 
potentially affected small governments, enabling officials of affected 
small governments to have meaningful and timely input in the 
development of EPA regulatory proposals with significant Federal 
intergovernmental mandates, and informing, educating, and advising 
small governments on compliance with the regulatory requirements.
    This rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for State, local, or tribal 
governments or the private sector. The rule imposes no enforceable duty 
on any State, local or

[[Page 58532]]

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 
final 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, this final 
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 final 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 solicited comment on the proposed rule 
from State and local officials. No States or local governments 
commented on the proposed rule.

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 final rule does not have 
tribal implications, as specified in Executive Order 13175. This 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 has determined that the final rule is not subject to Executive 
Order 13045 because it is not an ``economically significant'' rule as 
defined by Executive Order 12866. EPA also expects the rule does not 
have a disproportionate effect on children's health.

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

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

J. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, that includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective 30 days after it is published in 
the Federal Register.

List of Subjects

40 CFR Part 302

    Environmental protection, Air pollution control, Chemicals, 
Hazardous substances, Hazardous wastes, Intergovernmental relations, 
Natural resources, Reporting and recordkeeping requirements, Superfund, 
Water pollution control, Water supply.

40 CFR Part 355

    Air pollution control, Chemicals, Disaster assistance, Hazardous 
substances, Hazardous waste, Intergovernmental relations, Natural 
resources, Penalties, Reporting and recordkeeping requirements, 
Superfund, Water pollution control, Water supply.

    Dated: September 28, 2006.
Stephen L. Johnson,
Administrator.

0
For the reasons set out in the preamble, title 40, chapter I of the 
Code of Federal Regulations is amended as follows:

[[Page 58533]]

PART 302--DESIGNATION, REPORTABLE QUANTITIES, AND NOTIFICATION

0
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.


0
2. Section 302.6 is amended by adding paragraph (e) to read as follows:


Sec.  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 
combustion-related activities.
    (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 
combustion-related activities.

PART 355--EMERGENCY PLANNING AND NOTIFICATION

0
3. The authority citation for part 355 continues to read as follows:

    Authority: 42 U.S.C. 11002, 11004, and 11048.

0
4. Section 355.40 is amended by adding paragraph (a)(2)(vii) to read as 
follows:


Sec.  355.40  Emergency release notification.

    (a) * * *
    (1) * * *
    (2) * * *
    (vii) Any release in amounts less than 1,000 pounds per 24 hours 
of:
    (A) Nitrogen oxide (NO) to the air that is the result of combustion 
and combustion-related activities.
    (B) Nitrogen dioxide (NO2) to the air that is the result 
of combustion and combustion-related activities.
* * * * *

[FR Doc. E6-16379 Filed 10-3-06; 8:45 am]
BILLING CODE 6560-50-P