13456 Federal Register / Vol. 50, No. 65 / Thursday, April 4, 1985 / Rules and Regulations ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 117 and 302 [SW H-FRL 2665-6(b)] Notification Requirements; Reportable Quantity Adjustments AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: Sections 103(a) and 103(b) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA") require that persons in charge of vessels or facilities from which hazardous substances have been released in quantities that are equal to or greater than the reportable quantities immediately notify the Nati6nal Response Center of the release. Section 102(b) sets a reportable quantity of one pound for hazardous substances, except those for which reportable quantities have been established pursuant to section 311(b)(4) of the Clean Water Act ("CWA"). Section 102(a) authorizes the Environmental Protection Agency ("EPA") to adjust reportable quantities for hazardous substances and to designate as hazardous substances, substances which when released into the environment may present .substontial danger to the public health or welfare or the environment. This final rule adjusts many of the reportable quantities established in section 102(b). These reportable quantity adjustments are intended to reduce the burdens of reporting on the regulated community, allow EPA to focus its resources on the most serious releases, and protect public health and welfare and the environment more effectively. This rule also designates, under section 102(a) all substances listed under the various statutory provisions referenced in section 101(14) of CERCLA. This rule also revises reportable quantities established pursuant to section 311(b)(4) of the Clean Water Act for discharges of hazardous substances into navigable waters, so that the CWA section 311 reportable quantities will be identical to and therefore consistent with those promulgated under CERCLA. To help implement these changes, today's rule clarifies requirements for notifying the National Response Center of a release of a hazardous substance in a quantity equal to or greater than its reportable quantity. The toll-free telephone number of the National Response Center is listed under "ADDRESSES." EFFECTIVE DATE: July 3, 1985. CERCLA section 305 provides for a legislative veto of regulations promulgated under CERCLA. Although INS v. Chadha, 462 U.S. 919, 103 S. Ct. 2764 (1983), cast doubt on the validity of the legislative veto, EPA has transmitted a copy of this regulation to the Secretary of the Senate and the Clerk of the House of Representatives. If any action by Congress calls the effective date of this regulation into question, the Agency will publish a notice of clarification in the Federal Register. ADDRESSES: The toll-free telephone number of the National Response Center is (800) 424-8802; in the Washington, D.C. metropolitan area (202) 426-2675. The record supporting this rulemaking is available for public inspection at Room S-325, U.S. Environmental Protection Agency, 401 M Street SW, Washington, D.C. 20460 (Docket Number 102RQ). The docket may be inspected between 8:00 a.m. and 4:00 p.m. Monday through Friday. As provided in 40 CFR Part 2, a reasonable fee may be charged for copying services. FOR FURTHER INFORMATION CONTACT. Dr. K. Jack Kooyoomjian, Response Standards and Criteria Branch, Emergency Response Division (WH- 548B), U.S. Environmental Protection Agency, 401 M Street, SW, Washington D.C. 20460, or the RCRA/Superfund Hotline (800) 424- 9346, in Washington, D.C., (202) 382- 3000. SUPPLEMENTARY INFORMATION: The contents of today's preamble are listed in the following outline: I. Introduction A. Statutory Authority B* Background of this Rulemaking C. Organization of the Final Rule II. Summary of Changes From the Proposed Rule III. Issues Addressed in the Notice of Proposed Rulemaking But Not Resolved in This Rule A. Continuous Releases B. Federally Permitted Releases C. Radionuclide RQs D. Carcinogen RQs IV. Notification A. Introduction B. Purposes and Mechanics of Notification C. Persons Covered by This Rule D. Releases Covered by This Rule E. Exemptions From the CERCLA Notification Requirements F. Duplicate Reporting G. Regulatory Consistency H. Penalties V. Reportable Quantity Adjustments A. Introduction B. Number of Reportable Quanity Levels and Their Values C. Methodology Used To Adjust Reportable Quantities D. Criteria Used To Adjust Reportable Quantities E. Future RQ Adjustments F. Application of the Methodology and Criteria G. Summary of RQ Changes From the May 25, 1983 NPRM H. Retention of Statutory RQ for Methyl Isocyanate I. Table 302.4 VI. Reportable Quantity Adjustments Under Section 311 of the Clean Water Act VII. Summary of Supporting Analyses A. Classification and Regulatory Impact Analysis B. Regulatory Flexibility Analysis C. Information Impact Analysis I. Introduction A. Statutory Authority The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 [Pub. L. 96-510], 42 U.S.C. 9601 et seq., enacted on December 11, 1980, establishes broad federal authority to deal with releases or threats of releases of hazardous substances from vessels and facilities. The Act defines a set of "hazardous substances" by reference to other environmental statutes (section 101(14)); this list currently contains 698 substances. The Environmental Protection Agency ("EPA") may designate additional hazardous substances (section 102). The Act requires the person in charge of a vessel or facility to notify the National Response Center ("NRC") immediately when there is a release of a designated hazardous substance in an amount equal to or greater than the reportable quantity ("RQ") for that substance (sections 103(a) and (b)). Section 102(b) of CERCLA establishes RQs for releases of designated hazardous substances at one pound, unless other reportable quantities were assigned under section 311 of the Federal Water Pollution Control Act ("Clean Water Act" or "CWA"). Section 102 authorizes EPA to adjust all of these reportable quantities. A major purpose of the section 103(a) and (b) notification requirements is to alert the appropriate government officials to releases of hazardous substances that may require rapid response to protect public health and welfare and the environment. Under the Act, the federal government may respond whenever there is a release or a substantial threat of a release into the environment of a hazardous substance or of other pollutants or contaminants which may present an imminent and
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13456 Federal Register / Vol. 50, No. 65 / Thursday, April 4, 1985 / Rules and Regulations
AGENCY: Environmental ProtectionAgency (EPA).ACTION: Final rule.
SUMMARY: Sections 103(a) and 103(b) ofthe Comprehensive EnvironmentalResponse, Compensation, and LiabilityAct of 1980 ("CERCLA") require thatpersons in charge of vessels or facilitiesfrom which hazardous substances havebeen released in quantities that areequal to or greater than the reportablequantities immediately notify theNati6nal Response Center of the release.Section 102(b) sets a reportable quantityof one pound for hazardous substances,except those for which reportablequantities have been establishedpursuant to section 311(b)(4) of theClean Water Act ("CWA").
Section 102(a) authorizes theEnvironmental Protection Agency("EPA") to adjust reportable quantitiesfor hazardous substances and todesignate as hazardous substances,substances which when released intothe environment may present.substontial danger to the public healthor welfare or the environment. This finalrule adjusts many of the reportablequantities established in section 102(b).These reportable quantity adjustmentsare intended to reduce the burdens ofreporting on the regulated community,allow EPA to focus its resources on themost serious releases, and protect publichealth and welfare and the environmentmore effectively. This rule alsodesignates, under section 102(a) allsubstances listed under the variousstatutory provisions referenced insection 101(14) of CERCLA. This rulealso revises reportable quantitiesestablished pursuant to section 311(b)(4)of the Clean Water Act for discharges ofhazardous substances into navigablewaters, so that the CWA section 311reportable quantities will be identical toand therefore consistent with thosepromulgated under CERCLA.
To help implement these changes,today's rule clarifies requirements fornotifying the National Response Centerof a release of a hazardous substance ina quantity equal to or greater than itsreportable quantity. The toll-freetelephone number of the NationalResponse Center is listed under"ADDRESSES."
EFFECTIVE DATE: July 3, 1985.CERCLA section 305 provides for a
legislative veto of regulationspromulgated under CERCLA. AlthoughINS v. Chadha, 462 U.S. 919, 103 S. Ct.2764 (1983), cast doubt on the validity ofthe legislative veto, EPA has transmitteda copy of this regulation to the Secretaryof the Senate and the Clerk of the Houseof Representatives. If any action byCongress calls the effective date of thisregulation into question, the Agency willpublish a notice of clarification in theFederal Register.
ADDRESSES: The toll-free telephonenumber of the National Response Centeris (800) 424-8802; in the Washington,D.C. metropolitan area (202) 426-2675.
The record supporting this rulemakingis available for public inspection atRoom S-325, U.S. EnvironmentalProtection Agency, 401 M Street SW,Washington, D.C. 20460 (Docket Number102RQ). The docket may be inspectedbetween 8:00 a.m. and 4:00 p.m. Mondaythrough Friday. As provided in 40 CFRPart 2, a reasonable fee may be chargedfor copying services.
FOR FURTHER INFORMATION CONTACT.Dr. K. Jack Kooyoomjian, Response
Standards and Criteria Branch,Emergency Response Division (WH-548B), U.S. Environmental ProtectionAgency, 401 M Street, SW,Washington D.C. 20460,
or theRCRA/Superfund Hotline (800) 424-
9346, in Washington, D.C., (202) 382-3000.
SUPPLEMENTARY INFORMATION: Thecontents of today's preamble are listedin the following outline:
I. IntroductionA. Statutory AuthorityB* Background of this RulemakingC. Organization of the Final Rule
II. Summary of Changes From the ProposedRule
III. Issues Addressed in the Notice ofProposed Rulemaking But Not Resolvedin This Rule
A. Continuous ReleasesB. Federally Permitted ReleasesC. Radionuclide RQsD. Carcinogen RQs
IV. NotificationA. IntroductionB. Purposes and Mechanics of NotificationC. Persons Covered by This RuleD. Releases Covered by This RuleE. Exemptions From the CERCLA
B. Number of Reportable Quanity Levelsand Their Values
C. Methodology Used To Adjust ReportableQuantities
D. Criteria Used To Adjust ReportableQuantities
E. Future RQ AdjustmentsF. Application of the Methodology and
CriteriaG. Summary of RQ Changes From the May
25, 1983 NPRMH. Retention of Statutory RQ for MethylIsocyanate
I. Table 302.4VI. Reportable Quantity Adjustments Under
Section 311 of the Clean Water ActVII. Summary of Supporting Analyses
A. Classification and Regulatory ImpactAnalysis
B. Regulatory Flexibility AnalysisC. Information Impact Analysis
I. Introduction
A. Statutory Authority
The Comprehensive EnvironmentalResponse, Compensation, and LiabilityAct of 1980 [Pub. L. 96-510], 42 U.S.C.9601 et seq., enacted on December 11,1980, establishes broad federal authorityto deal with releases or threats ofreleases of hazardous substances fromvessels and facilities. The Act defines aset of "hazardous substances" byreference to other environmentalstatutes (section 101(14)); this listcurrently contains 698 substances. TheEnvironmental Protection Agency("EPA") may designate additionalhazardous substances (section 102).
The Act requires the person in chargeof a vessel or facility to notify theNational Response Center ("NRC")immediately when there is a release of adesignated hazardous substance in anamount equal to or greater than thereportable quantity ("RQ") for thatsubstance (sections 103(a) and (b)).Section 102(b) of CERCLA establishesRQs for releases of designatedhazardous substances at one pound,unless other reportable quantities wereassigned under section 311 of theFederal Water Pollution Control Act("Clean Water Act" or "CWA"). Section102 authorizes EPA to adjust all of thesereportable quantities.
A major purpose of the section 103(a)and (b) notification requirements is toalert the appropriate governmentofficials to releases of hazardoussubstances that may require rapidresponse to protect public health andwelfare and the environment. Under theAct, the federal government mayrespond whenever there is a release or asubstantial threat of a release into theenvironment of a hazardous substanceor of other pollutants or contaminantswhich may present an imminent and
Federal Register / Vol. 50, No. 65 / Thursday, April 4, 1985 / Rules and Regulations
substantial danger to public health orwelfare (section 104). Responseactivities are to be taken, to the extentpossible, in accordance with theNational Contingency Plan (40 CFR Part300), which was originally developedunder the CWA and which has beenrevised to reflect the responsibilities andauthority created by CERCLA. EPAemphasizes that notification based onreportable quantities is merely a triggerfor informing the government of arelease so that the appropriate federalpersonnel can evaluate the need for afederal response action and undertakeany necessary response (removal orremedial action) in a timely fashion.Reportable quantities serve no otherpurpose; for example, a reportablequantity need not be released before aclaim for damages or cleanup costs maybe filed against the HazardousSubstance Response Trust Fund. Federalpersonnel will evaluate all reportedreleases, but will not necessarily initiatea removal or remedial action inresponse to all reported releases,because the'release of a reportablequantity will not necessarily pose ahazard to public health or welfare or theenvironment. Government personnelwill assess each release on a case-by-case basis.
B. Background of This Rulemaking
On May 25,'1983, EPA proposed a rule(48 FR 23552) to clarify procedures forreporting releases and to adjustreportable quantities for 387 of the 698CERCLA hazardous substances. ThatNotice of Proposed Rulemaking (NPRM)also listed, for the first time, the"hazardous substances" designated bysection 101(14) of CERCLA. The NPRMdiscussed in detail the CERCLAnotification provisions (including thepersons required to notify the NRC of arelease, the substances for whichnotification is required, the types ofreleases subject to the notificaticnrequirements, and the exemptions fromthese requirements), the methodologyand criteria used to adjust thereportable quantity levels, and the RQadjustments proposed under section 102of CERCLA and under section 311 of theCWA. That same day, EPA alsopublished an Advance Notice ofProposed Rulemaking (ANPRM)concerning the designation of hazardoussubstances in addition to those specifiedin section 101(14) of the Act (48 FR23602). In response to requests, and toincrease the public's opportunity toexpress its opinion on the NPRM andANPRM, the original 60-day commentperiod for both notices was extended by30 days, so that the comment periodclosed on August 25, 1983. EPA received
136 comment letters totalling over 1,000pages; these comments represent thefirst formal statements of public opinionon the methodology developed foradjusting RQs, the actual RQadjustments proposed, and variousissues relating to notification. Asummary of the comments received,together with the Agency's responses, iscontained in the Responses toComments on the Notice of ProposedRulemaking on the Adjustment ofReportable Quantities ["Responses toComments"], which is available forinspection at Room S-325, U.S.Environmental Protection Agency, 401 MStreet, SW, Washington, D.C. 20460.
Today, the Agency is promulgatingRQ adjustments and clarifications ofreporting procedures. The RQs of 340CERCLA hazardous substances(including 21 hazardous waste streams)are adjusted in this final rule. Today'sFederal Register also contains an NPRMproposing RQ adjustments for 105 of theremaining 358 hazardous substances. Allof these adjustments apply not only toCERCLA RQs, but to RQs establishedpursuant to section 311(b)(4) of theCWA. In preparing the final rule, EPAhas carefully considered all of the publiccomments submitted on the proposalsmade in the May 25, 1983 NPRM.
Section II of this preamble notes thesignificant differences between today'srule and the NPRM and refers the readerto the detailed discussion of eachchange elsewhere in the preamble.Section III presents issues raised in theNPRM that are not resolved in today'srule. Sections IV, V, and VI discuss theoperation of the rule, major publiccomments, and the Agency's responsesto these comments. Section VII providesa summary of the analyses supportingthe rule.
As was stated in the preamble to theproposed rule, other provisions of theAct may be applicable even wherenotification is not required. Therefore,nothing in this preamble or final ruleshould be interpreted as reflectingAgency policy or the applicable lawwith respect to other provisions of theAct. For example, a party responsiblefor a release is liable for the costs ofcleaning up that release and for anynatural resource damages, even if therelease is not subject to the notificationrequirements of sections 103 (a) and (b).Similarly, claims may be filed againstthe Hazardous Substance ResponseTrust Fund for cleanup costs anddamages even if less than a reportablequantity has been released. Moreover,proper reporting of a release inaccordance with sections 103 (a) and (b)does not preclude liability for cleanup
costs. The fact that a release of ahazardous substance is properlyreported or that it is not subject to thenotification requirements of sections 103(a) and (b) will not prevent EPA or othergovernmental agencies from takingresponse actions under section 104,seeking reimbursement from responsibleparties under section 107, or pursuing anenforcement action against responsibleparties. Note also that this rule does notaffect hazardous substance reportingrequirements imposed by certain otherregulations and statutes. (See, e.g., thediscussion of MARPOL 73/78 and TSCAsection 8(e) in section IV.G. below.)
This final rule formally designatesthose substances which are listed underthe statutes referred to in section101(14). Substances listed under theSolid Waste Disposal Act, commonlyknown as the Resource Conservationand Recovery Act ("RCRA"), will nowbe "hazardous substances" underCERCLA, regardless of whether they arehazardous wastes under RCRA. Thisfinal rule does not otherwise address thedesignation of hazardous substanceswhich are not already designated underthe statutes listed in CERCLA section101(14). The Agency has conductedseveral preliminary economic andtechnical analyses on this subject (see48 FR 23603), and the May 25, 1983ANPRM invited public comment. EPAhas carefully reviewed the commentsreceived and is in the process of furtherdeveloping its designation policy. TheAgency's designation policy will be thesubject of a separate rulemaking.
C. Organization of the Final Rule
Today's final rule amends 40 CFR byadding Part 302. Section 302.1 describesthe fourfold purpose of the newregulation, including (1) listing thosesubstances designated as hazardousunder section 101(14) of CERCLA; (2]identifying reportable quantities forthese substances; (3) describing thenotification requirements for releases ofthese substances; and (4) identifyingreportable quantities for hazardoussubstances that were previouslyassigned RQs under section 311(b)(4) ofthe Clean Water Act.
Section 302.2 explains theabbreviations used in the rule. Section302.3 defines the following terms:
which lists the substances designated ashazardous under section 101(14) (andnow section 102).of CERCLA togetherwith the RQ established for eachsubstance. Section 302.4 also denotesthe conditions whereby a solid wastenot specifically listed as a hazardoussubstance can still be a hazardoussubstance if it exhibits any of certaincharacteristics. Section 302.5 providesthat each quantity listed as the "FinalRQ" in Table 302.4 is the reportablequantity for that listed hazardoussubstance. Section 302.5 also presentsthe RQs for unlisted hazardous wastes.Section 3C2.6 incorporates the statutoryrequirement that any person in charge ofa vessel or facility must immediatelynotify the NRC whenever he or she hasknowledge of any release of ahazardous substance from the vessel orfacility in a quantity equal to or greaterthan the RQ; it also provides rules fordetermining when notification isrequired for releases of (1) mixtures orsolutions that contain hazardoussubstances, and (2) releases of massiveforms of metals. Section 302.7incorporates by reference the statutorypenalties for failure to notify the NRC ofhazardous substance releases that equalor exceed the RQs. Today's rule also hasan appendix that lists each hazardoussubstance in Chemical AbstractsService Registry Number (CASRN)order,
Finally, this rule revises 40 CFR 117.3to make the CWA RQs equal to thoseshown in Table 302.4 of 40 CFR 302.4,
11. Summary of Changes From theProposed Rule
EPA has made the following changesfrom the proposed rule. Each change isdiscussed in detail in the preamblesection noted.
1. Wastes classified as hazardousunder RCRA that are properly delisted,deleted, or exempted by a statepursuant to an approved state programshall not be considered hazardoussubstances for purposes of CERCLAnotification requirements so long as theydo not contain any other listed CERCLAsubstances (see section IV.D.1.b.).
2. A supplement to Table 302.4 thatlists CERCLA hazardous substances inCASRN order has been added as anappendix to today's rule to help usersidentify hazardous substances (seesection IV.D.1.d.).
3. The exemption from notificationrequirements of releases of metal wherethe diameter of the particles of metalequals or exceeds 100 micrometers(0.004 inches] now appears both as afootnote to Table 302.4 and as part of 40CFR 302.6 (see section IV.D.1.f.).
4. Proper disposal of hazardoussubstances in interim status facilities orfacilities with final permits under RCRAneed not be reported under CERCLA(see section IV.D.2.a.).
5. The rule for determining whennotification is required for releases ofmixtures and solutions containinghazardous substances is now stated in40 CFR 302.6 (see section IV.D.3.b.).
6. "[Nlormal application of pesticides"is no longer defined in 40 CFR 302.3;instead, the preamble interprets thestatutory phrase "application ofpesticides" (see section IV.E.).
7. The specific penalties imposed byCERCLA Section 103(b) no longerappear in 40 CFR 302.7(a); instead, thesection incorporates the statutorypenalties by reference (see sectionIV.H.).
8. Language has been added to the 40CFR 302.5(b) discussion of "UnlistedHazardous Substances" to emphasize:(1) that the 100-pound RQ for unlistedhazardous wastes applies only tosubstances which are wastes prior totheir initial release; and (2) that the RQgiven in Table 302.4 for unlisted wastesthat exhibit EP toxicity applies to thewaste itself, not merely to the toxiccontaminant (see sections IV.D.1. andV.F.4.).
9. Various RQ changes have beenmade (see section V.G.).
10. Retention of statutory RQ formethyl isocyanate (see section V.H.).
11. Various other changes have beenmade in Table 302.4 (see sections V.G.through V.I.).
III. Issues Addressed in the NPRM ButNot Resolved in This Rule
A. Continuous Roleases
Section 103(f)(2) of CERCLA exemptscertain releases from the generalnotification requirements of CERCLA ifthey are "continuous," "stable inquantity and rate," and notification hasbeen given either under sections 103(a)and (b) "for a period sufficient toestablish the continuity, quantity, andregularity" of the release or undersection 103(c) (which relates tonotification of the existence of certainfacilities that are or have been used forstorage, treatment, or disposal ofhazardous wastes). Notification ofcontinuous releases must be given"annually, or at such time as there isany statistically significant increase" in
the quantity of the hazardous substancebeing released.. In the May 25, 1983 NPRM, EPArequested comment on the types ofreleases that could qualify for thesection 103(f)(2) exemption and onpossible notification systems for suchreleases, Many comments on theseissues were received. Due to thecomplexity of the issues involved, theAgency has decided to study thecontinuous release exemption further;today's rule does not resolve continuousrelease issues.
B. Federally Permitted Releases
One of the exemptions from section103 reporting requirements is for"federally permitted releases." Thedefinition of "federally permittedrelease" in CERCLA section 101(10)specifically identifies releases permittedunder other environmental statutes.
In the NPRM, EPA explained theAgency's interpretation of each of thetypes of releases exempted by thedefinition of "federally permittedrelease." EPA received many commentson various aspects of the federallypermitted release exemption, most ofwhich urged a broader interpretation ofone or more of the federally permittedreleases. Due to the complexity of theissues involved, the Agency has decidedto study the scope of this exemptionfurther; today's rule does not resolve the"federally permitted release" issue.
C. Radionuclide RQsRadionuclides are hazardous
substances under CERCLA because theyare designated as hazardous airpollutants under section 112 of the CleanAir Act. The NPRM noted that EPA isconsidering several issues for futureadjustments to radionuclide RQs. Twomajor related issues are:
(1) The units the Agency should use tomeasure RQs; and
(2) Whether one RQ should be set forall radionuclides or whether differentRQs for specific radionuclides should beused.EPA received many comments on theseissues. Today's final rule does not adjustthe RQ for radionuclides; the issue isbeing evaluated for action in a futurerulemaking. Until then, the one-pound(0.454 kilogram) RQ is applicable. Asnoted in the NPRM, the Agencyrecognizes that the pound or kilogram isnot a suitable unit on which to base anotification requirement forradionuclides, because releases muchsmaller than one pound may pose asignificant threat to public health orwelfare or the environment. The Agencyencourages releasers to report
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radionuclide releases of less than onepound.
D. Carcinogen RQsThe May 25, 1983 NPRM noted that
the Agency has been collecting andevaluating data on the relative activityof substances as potential carcinogens.The methodology for adjusting RQs onthe basis of potential carcinogenicitywill be presented for public comment ina future rulemaking, and adjusted RQsfor potentially carcinogenic substanceswill be proposed at that time. Until thesesubstances receive final adjusted RQs,their statutory RQs will apply.
The NPRM published elsewhere intoday's Federal Register proposesadjusted RQs for 12 substances thatwere evaluated as potential carcinogensbut for which EPA's CarcinogenAssessment Group (CAG) did not findany sound evidence of potentialcarcinogenicity.
IV. Notification
A. IntroductionCERCLA sections 103 (a) and (b)
require any person in charge of anoffshore or onshore facility or a vesselto report to the National ResponseCenter as soon as he or she hasknowledge of any release of ahazardous substance that is equal to orgreater than the reportable quantity. Inthe preamble to the May 25, 1983 NPRM,EPA elaborated on the notificationrequirements established by CERCLA,addressing such issues as the mechanicsof notification, the persons required tonotify the NRC of a release, thesubstances for which notification isrequired, the types of releases subject tothe notification requirements, theexemptions from these requirements,and duplicate reporting. The followingsections discuss comments received onthese and other notification issues.
B. Purposes and Mechanics ofNotification
Notification based on RQs serves as atrigger for informing the government of arelease so that the need for responsecan be evaluated and any necessaryresponse undertaken in a timely fashion.Federal personnel will evaluate allreported releases, although thegovernment will not necessarily respondto all reported releases with a removalor remedial action. The reportablequantities do not themselves representany determination that releases of aparticular quantity are actually harmfulto public health or welfare or theenvironment.
Reporting of releases pursuant toCERCLA sections 103 (a) and (b) is to be
made by telephone to the NationalResponse Center. The toll-free numberof the NRC is (800) 424-8802; in theWashington, D.C. metropolitan area thenumber is (202) 426-2675. Pursuant tothe National Contingency Plan (NCP) (40CFR Part 300), the duty officer at theNRC will record pertinent informationabout the release and relay this releaseinformation directly to an On-SceneCoordinator ("OSC") at either therelevant EPA regional office or therelevant U.S. Coast Guard district office.The OSC will then evaluate thecircumstances of the release, givepertinent information to appropriatestate and local officials, and decidewhether and in what manner the federalgovernment should respond to therelease.
A few commenters stated that it is amisuse of time and money to reportreleases which do not result in a federalremoval or remedial action; they arguedthat the probability of a federalresponse action should be an importantconsideration in designing thenotification system. EPA disagrees. Thegovernment is not obligated to respond,to every releage to which it hasauthority to respond and thereforeshould not design a notification systemon such a basis. Reportable quantitieshave been established so that theAgency is alerted promptly to situationsthat may warrant a governmentresponse. While EPA will not initiate aremoval or remedial action for everyrelease that is reported, EPA mustobtain the information it needs todetermine who has response authority,to assess whether there is a need for afederal response action, and to checkthat action is properly taken by otherswhere appropriate.
C. Persons Covered by This Rule
The NPRM preamble considered theissue of which persons are required tonotify the NRC of a release. In so doing,definitions of the key terms of theCERCLA notification requirements werepresented. Responses to the majorcomments received are provided below.
1. Facility
Several commenters discussed theAgency's statement that "for notificationpurposes, EPA will consider the entirecontiguous plant or installation andcontiguous grounds under commonownership to be the reporting facilityrather than each vent, pipe, or piece ofequipment at such a plant" (48 FR23553]. Some of the commentersappeared to misinterpret EPA'sintentions.
The Agency intended the statement toreflect its belief that numerous
concurrent releases (releases occurringwithin the same 24-hour period) of thesame hazardous substance from onecontiguous plant or installation need notbe reported individually, but should bereported in a single notification. Thispolicy will avoid unnecessary andburdensome calls where a plant isexperiencing more than one reportablerelease, because it allows the regulatedcommunity to consider multipleconcurrent releases of the samesubstance as one release for reportingpurposes.
The comments received favored thispolicy, although a few commenterssuggested that EPA expand thedefinition of facility to include outdoorareas within the boundary of a plant. Inaddition, some commenters questionedwhether a releaser must aggregate thetotal volume of concurrent releases inorder to determine if a reportablequantity has been met or exceeded.
The "facility" from which a releasehas entered or may enter into theenvironment does not include outdoorareas. Rather, the definition of"environment" includes all outdoor (i.e.,not completely enclosed) areassurrounding and within a given facility.All concurrent releases of the samesubstance from a particular facility intothe environment must be aggregated todetermine if an RQ has been exceeded.Releases from separate facilities,however, need not be aggregated. EPAintends for multiple concurrent releasesof the same substance from a singlefacility to be reported in a singlenotification as a single release. Wheremultiple concurrent RQ releases areoccurring at various parts of acontiguous plant or installation oncontiguous grounds under commonownership (e.g., at a chemicalmanufacturing plant or an oil refinery),the person in charge should also reportthese multiple concurrent releases in asingle notification. The policy ofconsolidating notifications also appliesto concurrent releases from separatestorage facilities, so long as the releasesare at the same location, i.e., located oncontiguous grounds under commonownership.
2. Person In Charge
The NPRM preamble discussion of"person in charge" stated that EPAwould not seek to designate the specificindividuals or positions within businessentities who would be responsible forreporting hazardous substance releases.The Agency indicated that suchdecisions are better made by themanagement of the affectedorganization. Two commenters argued
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that the lack of a clear definition of"person in charge" would result inresponsible individuals being unawareof their duty to report releases andwould lead to delayed reporting orfailure to report. EPA was urged todefine explicitly the term "person incharge."
EPA disagrees with thesecommenters. The proper assignment ofreporting responsibilities depends on thespecific operation involved,management structure, and other case-specific considerations. It would beunnecessary and unwise for thegovernment to try to determine "personsin charge" at all entities affected by-CERCLA.
D. Releases Covered by This RuleThe NPRM addressed the substances
for which notification is required, thetypes of releases subject to thenotification requirements, and thedetermination of when a reportablequantity has been released. Manycomments were received on varioustopics under each of these issues.
1. Hazardous Substances Subject to ThisRule
a. ICRE Substances. Any hazardouswaste having the characteristicsidentified or listed pursuant to Section3001 of the Solid Waste Disposal Act(commonly known as the ResourceConservation and Recovery Act, or"RCRA"}, but not including any wastethe regulation of which has beensuspended by Act of Congress, isconsidered a hazardous substance undersection 101(14)(C) of CERCLA. Thesecharacteristics are commonly known asICRE: ignitability, corrosivity, reactivity,and extraction procedure toxicity (see40 CFR 261.21-261.24).
The obligation to report releases tothe environment of substancesexhibiting the characteristics ofignitability, corrosivity, or reactivity hasbeen the subject of some confusion.'Under section 103(a) of CERCLA,persons in charge of a vessel or facilitymust notify the NRC of the release of a"hazardous substance." The term"hazardous substance" includes allsubstances designated in § 302.4 oftoday's rule as well as wastes exhibitingthe ICR characteristics under RCRA.Therefore, the release of a non-designated substance exhibiting an ICRcharacteristic is the release of ahazardous substance only if the
' Substances exhibiting the characteristic ofextraction procedure (EP) toxicity are not at issuehere, because the chemicals at which the EP toxicitytest is aimed are all specifically designated ashazardous under Section 302.4 of today's regulation.
substance is a waste. If a non-designated ICR substance is spilled andimmediately cleaned up for repackaging,reprocessing, recycling, or reuse, it is nota waste and the spill need not bereported (see 45 FR 78540, Nov. 25, 1980).However, if the substance is not cleanedup, or is cleaned up for eventualdisposal, it is then a waste (and thus ahazardous substance) which has beenreleased to the environment and must bereported if it exceeds the RQ.
The Agency acknowledges that theproposed rulemaking may not have beenclear on this point. Accordingly, we arepublishing elsewhere in today's FederalRegister a proposal to set the RQ at 100pounds for non-designated substanceswhich are not wastes prior to theirinitial release but which exhibit an ICRcharacteristic.
Pending completion of finalrulemaking on that proposal, noticegiven to the NRC pursuant to 49 CFR171.15, if required under that section, ofthe release of a non-designatedsubstance that is not a waste prior to itsinitial release, will be deemed to satisfythe reporting requirements of section103(a) of CERCLA. Note that this policydoes not apply to the release of non-designated substances which exhibit anICR characteristic and which are wastesprior to their initial release. Suchreleases must be reported if they areequal to or in excess of the 100-poundRQ. Section 302.5(b) of today's final rulehas been clarified to show thedistinction between substances that arewastes prior to their initial release andsubstances that become wastes aftertheir initial release.
b. State Delisting under RCRA.Several commenters disagreed withEPA's statement in the NPRM thatreporting is required even for releases ofhazardous waste which the state hasproperly delisted, deleted, or exemptedfrom the state's RCRA program pursuantto authority granted by EPA. Uponfurther review of the RCRA regulationsgoverning "delisting" of RCRAhazardous wastes, EPA has decided toalter its policy. Under 40 CFR 260.22, aperson may petition for a regulatoryamendment to exclude a waste at aparticular generating facility from thelists of hazardous wastes in § § 261.30-261.33. The petitioner must demonstratethat the waste produced by theparticular facility does not meet any ofthe criteria under which the waste typewas listed or characterized as ahazardous waste. Moreover, if granted,the exclusion applies only to the wastegenerated at the individual facilitycovered by the petitioner'sdemonstration. State RCRA regulations
must be substantially equivalent tothese federal regulations to obtain EPAapproval of the state program.
Once a specific waste from aparticular facility has been shown not tocontain constituents or exhibitcharacteristics that are consideredhazardous under RCRA, there appearsto be no reason to require notificationunder CERCLA of a release of theexempted waste. By definition,exempted wastes lack the hazardousconstituents or characteristics for whichthe waste type was listed as hazardous.Therefore, so long as a state-exemptedwaste does not contain any other listedCERCLA substances, EPA will notconsider the exempted waste subject toCERCLA notification requirements.
c. Petroleum Exclusion. As defined inCERCLA section 101(14), the term"hazardous substance" under CERCLAdoes not includepetroleum, including crude oil or any fractionthereof which is not otherwise specificallylisted or designated as a hazardoussubstance under subparagraphs (A) through(F) of this paragraph, and the term does notinclude natural gas, natural gas liquids,liquefied natural gas, or synthetic gas usablefor fuel (or mixtures of natural gas and suchsynthetic gas).Some commenters raised questionsabout the limits of the exclusion ofpetroleum from the definition ofhazardous substance. EPA interprets thepetroleum exclusion to apply tomaterials such as crude oil, petroleumfeedstocks, and refined petroleumproducts, even if a specifically listed ordesignated hazardous substance ispresent in such products. However, EPAdoes not consider materials such aswaste oil to which listed CERCLAsubstances have been added to bewithin the petroleum exclusion.Similarly, pesticides are not within thepetroleum exclusion, even though theactive ingredients of the pesticide maybe contained in a petroleum distillate;when an RQ of a listed pesticide isreleased, the release must be reported.
d. Nomenclature. The May 25, 1983NPRM requested comments on severaloptions for a nomenclature system thatwould be most useful for thepromulgated list of CERCLA hazardoussubstances. The first option was thatactually employed in Table 302.4 as itappeared in the NPRM, i.e., the names ofthe substances as they appear in theenvironmental statutes (andimplementing regulations) that areincorporated in the CERCLA definitionof a hazardous substance. A secondalternative presented was to use onlythe Chemical Abstracts Collective IndexSystem name, and a third was to list the
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major synonyms for~each hazardoussubstance.
Five commenters recommended use ofthe names provided by the ChemicalAbstracts Service (CAS) in the ChemicalAbstracts Collective Index System.Although use of the Collective Indexnames would avoid much of theconfusion involved with using synonymsand would serve as positiveidentification of the material, many ofthe individuals who may need to reportreleases will not have easy access toCollective Index names for thesubstances under their control. Evenamong professional chemits, CASCollective Index names are not yetwidely used. For example, the term"chloroform" remains widely preferredover the Collective Index name"methane, trichloro-."
Several commenters recommendedlisting the "major" synonyms for eachsubstance, pointing out that mostindividuals who must report releases arenot chemists and therefore are familiarwith the substance only by the nameprovided by the supplier. Thecommenters stated that the potentialreleaser cannot be expected todetermine whether the substance he isdealing with is a CERCLA hazardoussubstance unless the name provided isalso on the CERCLA list.
The Agency recognizes that listingmajor synonyms would, in somerespects, simplify determining whether aparticular named chemical is ahazardous substance. However, asseveral commenters pointed out, thedifficulties involved in making such alist would be great. For some of thesubstances, more than 80 synonymsmight be necessary, making Table 302.4very unwieldy. The length of the tablewould be increased by a factor of atleast five, increasing the difficulty offinding a named material on the list.Moreover, the choice of synonyms to beincluded would still be subjective, andconstant updates would be needed asomitted names were found.
The names of the CERCLA hazardoussubstances that appeared in Table 302.4are those that are already familiar to theregulated community under otherstatutes. The Agency has thereforedetermined that, in today's final rule,Table 302.4 will contain the same namesas were listed in the NPRM, plus anyother names not previously discoveredby which a substance is identified in theother statutes listed in section 101(14)and their implementing regulations.Several commenters suggested that inaddition to the list of names in Table302.4, a supplementary list in CASRegistry Number order be provided.EPA has adopted this suggestion. The
CAS Registry Number, when available,uniquely identifies the designatedhazardous substance. Such a listappears as an appendix to the rule as aconvenience to the regulatedcommunity.
e. Generic Classes of Organic andMetallic Compounds. EPA decided notto establish RQs for the many broadgeneric classes of organic and metalliccompounds designated as toxicpollutants under section 307(a) of theClean Water Act, such as "chlorinatedphenols," "phthalate esters,""polynuclear aromatic hydrocarbons,"and "zinc and compounds." Themajority of the commenters whoaddressed this issue understood andsupported this decision. It wasrecognized that to establish a single RQfor broad classes of hazardoussubstances would be inappropriate formany of the compounds within eachclass. Many of the generic classes ofcompounds encompass hundreds oreven thousands of specific compounds.It would be virtually impossible for theAgency to develop a reportable quantityfor a generic class of compounds thatwould take into account the varyingcharacteristics of all of the specificcompounds in the class. To establishreportable quantities for generic groupsof chemicals would conflict withexisting knowledge of individualchemicals and their properties.
Several commenters were unsure ofthe Agency's position on reporting andliability for generic classes. Thesecommenters believed that if no other RQis established for a generic class, thenthey must still use the statutory onepound RQ established under CERCLAsection 102(b). EPA has determined thatthe notification requirements need applyonly to those specific compounds forwhich RQs are listed in Table 302.4,rather than to the generic classes ofcompounds. However, as the Agencyindicated in the NPRM preamble, thisdoes not preclude liability with respectto releases of specific compounds whichare within one of these generic listingsbut which are not listed in Table 302.4.In other words, a releaser is liable forthe cleanup of releases of hazardoussubstances which fall under any of thebroad, generic classes, but doe's nothave to report such releases when thespecific compounds, and hence the RQs,are not listed in Table 302.4.
f. Massive Forms of Metals. EPAproposed that it would not requirenotification of releases of massive formsof the twelve solid metals originallylisted under CWA section 307(a) whenthe diameter of the pieces of metalreleased equals or exceeds 100micrometers (0.004 inches). Eleven of
fourteen commenters supported thisapproach, while three commenterssuggested a smaller cutoff level. One ofthese commenters suggested that thecutoff be set at 10 micrometers ratherthan 100 micrometers, consistent withstandards developed pursuant to theOccupational Safety and Health Act.
The cutoff size was deliberately setten times larger than the maximum sizeconsidered by EPA to be respirable dustto ensvre that releases containing smallparticles of metals would result innotification to the NRC. The Agency hasdetermined that the 100-micrometercutoff is sufficiently small to be theparticle size below which notification ofrelease of an RQ is required. Theprimary purpose of notification is toensure that releasers notify thegovernment so that the government,pursuant to the NCP, can assess theneed to respond to the release. Althoughit is extremely unlikely that a release ofsolid metal particles of 100 micrometersor larger would require a response, theAgency wants to be notified of releasesof smaller particles because, under somecircumstances, releases of metalparticles in the 10- to 100-micrometerrange may require a response.
One of the eleven commenterssupporting the 100-micrometer cutofflevel suggested that this policy be moreprominently displayed in the wording ofthe final rule. (In the NPRM, the 100-micrometer limitation appeared only asa footnote to Table 302.4.) 40 CFR 302.6now states:
Notification of the release of an RQ of solidparticles of antimony, arsenic, beryllium,cadmium, chromium, copper, lead, nickel,selenium, silver, thallium, or zinc is notrequired if the mean diameter of the particlesreleased is larger than 100 micrometers (0.004inches).
A particle larger than 100 micrometersin diameter will not pass through anAmerican Society for Testing andMaterials standard 140-mesh sieve.
2. Definition of Releases Subject to ThisRule
a. Disposal of Hazardous Substancesin RCRA Facilities. The May 25, 1983NPRM discussion of the term "release"did not specify whether the termincluded or excluded the proper disposalof hazardous substances at a disposalfacility that has been accorded interimstatus or that has received a final permitunder RCRA. Some commenterssuggested clarification of the meaning ofthe term in this regard.
EPA agrees that disposal of hazardoussubstances at a disposal facility inaccordance with EPA regulations is notsubject to CERCLA notification
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provisions. Where the disposal ofwastes into permitted or interim statusfacilities is properly documentedthrough the RCRA manifest system andRCRA regulations are followed,notification under CERCLA does notprovide a significant additional benefit,so long as the facility is in substantialcompliance with all applicableregulations and permit conditions.Where the disposer knows that thefacility is not in substantial compliance,disposal of an RQ of a hazardoussubstance must be reported to the NRC.Of course, spills and accidents occurringduring disposal that result in releases ofreportable quantities of hazardoussubstances must also be reported to theNRC.
b. Releases "Into the Environment." Akey element of the definition of"release" is the phrase "into theenvironment." As defined in CERCLAsection 101(22), a hazardous substancemust be released "into the environment"in a reportable quantity beforenotification of the release is requiredunder CERCLA. Thus, the distinctionbetween the "facility" (or "vessel") fromwhich a substance is released and the"environment" into which a substancepasses is the determining factor inrequiring notification.
Hazardous substances may bereleased "into the environment" even ifthey remain on plant or installationgrounds. Examples of such releases arespills from tanks or valves onto concretepads or into lined ditches open to theoutside air, releases from pipes intoopen lagoons or ponds, or any otherdischarges that are not wholly containedwithin buildings or structures. Such arelease, if it occurs in a reportablequantity (e.g., evaporation of an RQ intothe air from a dike or concrete pad),must be reported under CERCLA. On theother hand, hazardous substances maybe spilled at a plant or installation butnot enter the environment, e.g., when thesubstance spills onto the concrete floorof an enclosed manufacturing plant.Such a spill would need to be reportedonly if the substance were in some wayto leave the building or structure in areportable quantity. (Note, however,that the federal government may stillrespond and recover costs where thereis a threatened release into theenvironment.)
Most of the comn~enters on this issueagreed with EPA's position that thedistinction between "facility" and"environment" is central to determiningwhen notificatiorl is required and that arelease "into the environment" is areportable event, but they disagreedwith EPA on when a release reaches the
environment. The most commonsuggestion was to exclude from thedefinition of "environment" all of thegrounds surrounding a facility that arecontrolled by the facility's owners oroperators. Several commenterssuggested that reporting should not berequired as long as the facility operatorsare in control of released substancesand initiate swift and adequate responseefforts to prevent the environment frombeing endangered, consistent withprudent management practices. It wasalso suggested that so long as a releaseremains on facility property it would beinaccessible to the public and thuswould not be a public hazard.
While EPA recognizes andappreciates the caution exercised by themajority of handlers of hazardoussubstances, accepting this redefinitionof "environment" would be inconsistentboth with the broad definition ofenvironment in CERCLA section 101(8)and with the purpose of reporting. Aprimary function of CERCLA is toensure that the government is madeaware of any potentially serious releaseof a hazardous substance, so that thegovernment has the opportunity todetermine whether and how it needs toact. To exclude releases occurring nearhandling and storage facilities fromCERCLA notification requirenlentswould keep the federal governmentunaware of a very common form ofrelease that may require governmentaction. Releases onto the groundssurrounding a plant can migrate off-sitethrough ground water or through releaseinto the air. Defining "environment" tobegin at the property line of amanufacturing plant or other installationis thus unacceptable to the Agency.
Following this same reasoning,defining environment in terms of publicaccess, as several commenterssuggested, is also unacceptable. Lack ofpublic access to the site of a release
,does not preclude adverse effects onpublic health or welfare or theenvironment from the release. Thevolatilization of substances or theirmigration via ground water are obviousexamples of how releases can travel off-site and threaten adjacent areas. EPAdoes not believe a reinterpretation ofwhen a release enters the environmentis necessary. A release into theenvironment will be reportable whetheror not it remains on the grounds of afacility site.
One commenter requested that EPAclarify the meaning of the term "ambientair" in the definition of "environment"provided in 40 CFR Section 302.3. Forthe purposes of CERCLA, "ambient air"shall refer to the air that is not
completely enclosed in a building orstructure and that is over and aroundthe grounds of a facility. 2 A release intothe air of a building or structure thatdoes not reach the ambient air (eitherdirectly or via a ventilation system) isnot a reportable event under CERCLA.
c. "Workplace Exposure" Exclusion.CERCLA section 101(22) excludes fromthe definition of release "any releasewhich results in exposure to personssolely within a workplace, with respectto a claim which such persons mayassert against the employer of suchpersons." In the May 25, 1983 NPRMpreamble, EPA stated that theworkplace exclusion was apparentlyintended to restrict the potential scopeof third-party actions for personalinjuries under the Act and that thelimitation of hazardous substanceexposure to persons within a workplaceis not relevant in determining whethernotification is appropriate.
Several commenters argued that theworkplace exposure exclusion should beapplied to workplace releases forpurposes of CERCLA notificationrequirements. EPA disagrees. By itsterms, the exclusion applies only toclaims compensable through workers'compensation. The availability ofworkers' compensation does not appearto have any relation to the need forreporting of hazardous substancereleases that threaten public health orwelfare or the environment. WhileCongress intended to bar payment ofSuperfund monies to persons covered byworkers' compensation systems, thelegislative history clearly indicates thatCongress did not intend to exclude allworkplace releases of hazardoussubstances from CERCLA reportingrequirements and response authorities."For example, if a release occurringsolely within a workplace created ahazard of damage to human life or to theenvironment, it is contemplated that theFund would have the authority torespond with all of its authorities exceptfor compensating workers whoseemployers are liable for their injuriesunder worker's compensation law" (S.Rep. 848, 96th Cong., 2d Sess. 94 (1980)).Thus, the need for notification must bedetermined by whether or not a releasefrom a CERCLA "facility" or "vessel"
2 The Agency's interpretation of "ambient air" forCERCLA reporting purposes differs from thedefinition of ambient air in the regulationspromulgated pursuant to the Clean Air Act (CAA).These regulations define ambient air with referenceto public access (see 40 CFR 50.l(e)). EPA believesthat tha CAA definition is inappropriate forCERCLA purposes, because the point of release forsome potentially serious releases may beinaccessible to the general public, e.g., on privateproperty.
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enters "into the environment." If arelease does not remain whollycontained within a building or structure,then it is a release into the environmentfor CERCLA purposes, whether or not itoccurs within a workplace.
3. Determination of When a ReportableQuantity Has Been Released
Once it has been determined that ahazardous substance release is coveredby CERCLA, the releaser mustdetermine if the release is in a quantityequal to or greater than the reportablequantity of that substance. Two criticalissues in making this determination arethe period of release and the applicationof RQs to mixtures and solutions. Thissection discusses EPA's positions onthese issues and responds to commentsreceived on the NPRM.
a. Period of Release. EPA proposed touse a 24-hour period for measuringwhether the reportable quantity of asubstance has been released, noting thatthe 24-hour period has been usedsuccessfully under regulationsimplementing the CWA section 311. Assoon as the person in charge knows thatthe amount of a release within thatperiod equals or exceeds the applicablereportable quantity, the NRC must benotified. Eleven commenters concurredwith the Agency's decision to use the 24-hour period, citing the consistency of thedecision with the CWA section 311regulations.
Three commenters misinterpreted thepurpose of the 24-hour period as thetime a person has in which to establishthe knowledge that a release hasoccurred. EPA wants to clarify thatwhen the amount of a CERCLAhazardous substance release equals orexceeds the reportable quantity, theperson in charge, once he or she knowsof the release, must immediately notifythe National Response Center. The 24-hour period refers to the period withinwhich a reportable quantity of a 'hazardous substance must be releasedfor the release to be consideredreportable; it does not refer to the timeavailable for a person to report arelease. Such reporting must occurimmediately.
b. Mixtures of Hazardous Substances.When determining if notification isrequired for releases of mixtures andsolutions containing hazardoussubstances, the Agency intends to applythe mixture rule developed inconnection with the CWA section 311regulations. This rule provides that"[d]ischarges of mixtures and solutionsare subject to these regulations onlywhere a component hazardoussubstance of the mixture or solution isdischarged in a quantity equal to or
greater than its RQ" (44 FR 50767,August 29, 1979). RQs of differentsubstances are not additive under themixture rule, so that spilling a mixturecontaining half an RQ of one hazardoussubstance and half an RQ of anotherhazardous substance does not require areport.
Most commenters supported using theCWA mixture rule. These commentersagreed with EPA that it is generallytechnically appropriate to consider theRQs of component hazardoussubstances of a mixture individuallywhen determining if a report is required.They also note that applying the CWAmixture rule to CERCLA hazardoussubstances would allow the regulatedcommunity to continue with existingmonitoring and notification procedures.
One commenter opposed use of theCWA mixture rule, arguing that EPA hasno data to support the implicitassumption that toxic effects are notadditive or synergistic. The commenterstated that additive or synergistic effectsoften occur.
EPA recognizes that the toxic effectsof chemical mixtures may in someinstances be additive, synergistic, oreven antagonistic. Unfortunately, onlylimited data exist on the extent of sucheffects. Moreover, trying to incorporatesuch data into the mixture rule forCERCLA notification purposes wouldmake the determination of whether anRQ had been released much morecomplex and confusing. The RQ wouldvary with each mixture, depending onwhether the components of the mixturehad additive, synergistic, or antagonisticeffects. Thus, a different RQ would haveto be determined for each potentialrelease situation, a highly complexapproach that EPA has consistentlytried to avoid (see section V.C.2. below).To be effective, the CERCLA notificationsystem must be simple to administerand apply. For this reason, the Agencywill apply the CWA mixture rule-contained in § 302.6 of today's rule-toreleases subject to CERCLA reportingrequirements.
Several commenters were uncertainwhen to apply the mixture rule to thevarious RCRA regulated wastes (F andK lists) and to the unlisted ICRE wastes.The Agency emphasizes that, forCERCLA purposes, the CWA mixturerule applies to ICRE wastes and to theRCRA F and K waste streams (all ofwhich tend to be mixtures), if theconcentrations. of all the hazardoussubstances in the waste are known. Ifthe concentrations of the substances areunknown, the RQ of the waste stream orunlisted waste applies. In addition, if theperson in charge knows that an RQ of ahazardous constituent of a waste has
been released before the RQ for thewaste stream or unlisted waste has beenexceeded, he orshe must report therelease. However, CERCLA does notitself impose any testing reqirements.
Some commenters objected toapplication of the CWA mixture rule towaste streams, arguing that under-reporting could result if the componentsof the waste were incorrectly identified.The Agency, however, maintains that ifthe concentrations of the hazardoussubstances contained in the mixture areknown, waste streams should be treatedlike any other mixture. If the releaserdoes not know the composition of thelisted waste stream, EPA agrees thatapplying the RQ of the entire wastestream is the only reasonablyconservative alternative.
For example, a mixture of spent (used)cresols and nitrobenzene is identified inthe RCRA regulations (40 CFR 261.31) asa hazardous waste from a non-specificsource, F004. F004 has an RQ of 100pounds, because the RQ for cresols is100 pounds, the RQ for nitrobenzene is1000 pounds, and the lowest RQ for anyof the hazardous substances in themixture applies. If the person in chargeknows only that a waste materialcontains unspecified amounts of cresolsand nitrobenzene, then he or she wouldhave to report if 100 pounds or more ofthe waste were released. The person incharge may, however, if sufficient dataare available, apply the CWA mixturerule. If he or she knows that the F004waste contains 50 percent cresols and 50percent nitrobenzene, the releaserwould have to report only when thetotal release equalled or exceeded 200pounds, because at that point the 100-pound RQ of the cresol componentwould be equalled or exceeded. Becausethe concentrations of the hazardoussubstances in the waste stream areknown, there is no reason to restrict thereleaser to the F004 waste RQ of 100pounds. In this case, for notificationpurposes, the waste stream is nodifferent than a known mixture of puresubstances.
A few commenters questionedwhether the mixture rule applies toproducts where the active chemicalingredient for which it is named ispresent in less than 100 percentconcentration. While the NPRMdiscussion of the mixture rule did notexplicitly mention "formulations of lessthan 100 percent strength," suchformulations are indeed mixtures orsolutions and are covered by themixture rule. Two commenters wantedEPA to waive the CERCLA notificationrequirements for mixtures containingvery low concentrations of hazardous
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substances. These commenterssuggested assigning a concentrationvalue to each hazardous substancebelow which notification would not berequired. This approach would, in effect,result in two rules for each substance,making application of the mixture rulecumbersome for the regulatedcommunity. Moreover, determining eachconcentration value would require theuse of specific release scenarios, amethodology that EPA has rejected (see48 FR 23569 and Section V.C.3. of thispreamble). For these reasons, EPA isretaining the mixture rule for allmixtures containing any concentrationof a hazardous substance, no matterhow low the concentration.
E. Exemptions From the CERCLANotification Requirements
CERCLA provides four types ofexemptions from the notificationrequirements applicable to releases ofhazardous substances in reportablequantities. Each type of exemption wasdiscussed in the May 25. 1983 NPRMpreamble. Responses to majorcomments received on the exemption forthe application of pesticide productsregistered under the Federal Insecticide,Fungicide, and Rodenticide Act (FIFRA)are provided below. Issues relating tothe limited exemption for continuousreleases and exemptions for "federallypermitted releases" are not resolved intoday's rule.
Scction 103(e) of CERCLA exemptsfrom the notification provisions of theAct "the application of a pesticideproduct registered under the FederalInsecticide, Fungicide, and RodenticideAct (FIFRA) [and] the handling andstorage of such a pesticide product byan agricultural producer." In theproposed rule, EPA interpreted theapplication of pesticides as the normalapplication of registered pesticides (andpesticides used in accordance withFIFRA section 5 experimental usepermits or FIFRA section 18 emergencyexemptions) in ways that are consistentwith the labeling instructions.
Commenters objected to severalaspects of EPA's pesticide exemptionpolicy as stated in the NPRM. The firstcategory of objections concerned thewording of the policy. Some commenterssuggested that the phrase "pursuant tothe label directions" as used in thedefinition of "normal application ofpesticides" applies more to consumergoods than to industrial chemicals,because the label directions of the lattermay not include complete applicationpractices. Other commenters objected tothe use of the term "normal" in thedefinition of "normal application ofpesticides," because the term does not
appear in CERCLA section 103(e) andconstitutes a potentially unnecessaryrestriction on the exemption.
EPA agrees that the definition of"normal application of pesticides" isunnecessary, and the definition does notappear in today's final rule. Thelegislative history of CERCLA suggeststhat Congress intended that thepesticide exemption apply to theapplication of a pesticide generally inaccordance wih its purpose. S. Rep. No.848, 96th Cong., 2d Sess. 45 (July 13,1980). While strict compliance withlabeling direction is not a prerequisitefor the exemption, the extent ofcompliance will be a critical factor indetermining whether the applicationwas generally in accordance with thepesticide's purpose. EPA does notconsider a spill of a pesticide to beeither an "application" of the pesticideor in accordance with the pesticide'spurpose. Consequently, such spills mustbe reported. Note, moreover, that use ofa pesticide inconsistent with its labelingis a violation of FIFRA that ispotentially subject to both civI andcriminal penalties.
F Duplicate Reporting
1. General
EPA is seeking to minimizeunnecessary duplication betweenCERCLA reporting requirements and thereporting requirements of otherenvironmental statutes. However, somecommenters complained of theduplicative reporting burden created byCERCLA and of a lack of coordinationamong federal, state, and local agencies.Eight of these commenters suggestedthat one report to the NRC shouldsuffice for all government agencies.Currently, one call to the NRC fulfills therequirement to report releases ofhazardous substances under CERCLAand several other regulatory programs,including the Clean Water Act, theResource Conservation and RecoveryAct, and the Hazardouq MaterialsTransportation Act, which isadministered by the Department ofTransportation. The May 25, 1983 NPRMpreamble discussed the equivalence ofcompliance with certain RCRA reportingrequirements and CERCLA notificationrequirements. Section 103(f)(1) ofCERCLA exempts from the notificationrequirements of sections 103 (a) and (b)releases that are subject to reportingrequirements (or specifically exemptedfrom such reporting) under Subtitle C ofRCRA and have been reported to theNational Response Center. The Agencyhas reviewed all other areas of duplicatereporting created by CERCLA and hasfound that the burden imposed by
CERCLA notification requirements isnot great. At most, the duplication thatexists may require that more than onetelephone call concerning a release bemade by the releaser and recorded bygovernment agencies.
Today's final rule does not affecthazardous substance reportingrequirements imposed by certain otherregulations and statutes, as discussed insection IV.G. below.
2. Newspaper Notification Requirement
CERCLA section 111(g) requires thatowners or operators of any vessel orfacility "provide reasonable notice topotential injured parties by publicationin local newspapers serving the affectedarea" of any release of a hazardoussubstance. One commenter askedwhether RQ notification requirementsrevoke section 111(8). The newspapernotification requirement established bysection 111(g) of CERCLA is not affectedby any of the notification requirementsin today's rule.
G. Regulatory Consistency
EPA has always made every effort tocoordinate its regulations of hazardoussubstances with other governmentagencies. For example, EPA and theDepartment of Transportation (DOT)(which includes the U.S. Coast Guard)have cooperated over the years in aseries of regulatory actions, includingthe establishment of the centralized toll-free telephone number for reportingspills of hazardous substances to theNRC. EPA recognizes that cooperationwith other agencies is vital to thedevelopment of clear and consistentregulatory policies in areas ofcomplementary or shared responsibility.The Agency has carefully reviewedcomments from other governmentagencies on the NPRM and does notbelieve that the CERCLA RQs ornotification requirements createregulatory inconsistencies.
Many commenters questioned theextent of EPA-DOT coordinationconcerning CERCLA RQ regulations andregulations pursuant to the HazardousMaterials Transportation Act (HMTA).EPA recognizes the need for consistencybetween the RQ regulations and DOT'sHazardous Material Regulations (HMR).The Agency believes that thecooperative efforts of EPA and DOT willresult in an RQ adjustment regulatoryapproach that Will be consistent withany related regulations promulgated byDOT. EPA has promoted and willcontinue to promote coordinationbetween the RQ adjustment regulationand the HMR. EPA wishes to clarify,however, that while it strongly supports
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cooperation between EPA and DOT, ithas no authority to revise the HMR. Anychanges must be made by DOT.
The International Convention for thePrevention of Pollution from Ships(MARPOL 73/78), as implementedthrough the Act to Prevent Pollutionfrom Ships (33 U.S.C. 1901 et seq.),currently imposes reportingrequirements concerning releases ofharmful substances from U.S. shipswherever located and from foreign shipswithin the navigable waters of theUnited States. Under 33 U.S.C. 1906, assoon as a person in charge of a ship hasknowledge of an event involving theactual or probable release into the seaof a harmful substance (broadlydefined), he or she must report theincident to the Secretary of thedepartment in which the Coast Guard isoperating (currently DOT). Noreportable quantities are specified.Thus, MARPOL 73/78, as implementedby 33 U.S.C. § 1906, may requirereporting even where CERCLA does not.
Annex 1I of MARPOL 73/78 prohibitsdischarges of noxious liquid substanceswithin 12 miles from shore. Beyond 12miles, discharges are either prohibitedor limited, depending on the nature ofthe cargo and compliance with severalcriteria. Annex II, scheduled to takeeffect in October 1986, applies to allships carrying noxious liquid substancesin bulk and limits operational dischargesof these substances by setting minimumor maximum numerical values fordistance from shore, depth of water,ship speed, concentration of substancein ship's wake, and maximum quantityof cargo residues that may bedischarged. To improve regulatoryconsistency and enhance coordinationwith the U.S. Coast Guard, EPA intendsto investigate the scope and intent ofMARPOL 73/78 Annex II regulations(including a Coast Guard ANPRM (48 FR1519-1521, Jan. 13, 1983) dealing withcertain types of hazardous substancesthat are intended to be regulated inaccord with MARPOL) and to examineregulatory and technical concernsarising from coordination betweenCERCLA and MARPOL.
Section 8(e) of the Toxic SubstancesControl Act (TSCA) may also requirereporting where CERCLA does not.Pursuant to a Statement ofInterpretation published March 16, 1978,43 FR 11110, all emergency incidents ofenvironmental contamination thatpresent a "substantial risk of injury tohealth or the environment" must bereported to EPA under TSCA section8(e). Section 8(e) could requirenotification even where no CERCLAhazardous substances or RQs have been
released. Persons subject to thenotification requirement include bothnatural persons and business entitiesengaged in the manufacturing,processing, or commercial distributionof chemical substances or mixtures. Nonotification is required if themanufacturer, processor, or distributorknows that EPA has been informed ofthe risk presented by the incident. Forhazardous substance releases subject toCERCLA, a single notification to theNRC will satisfy both CERCLA andTSCA section 8(e) reportingrequirements; the Agency will ensurethat section 8(e) reports are passed tothe proper authorities.
H. Penalties
Section 302.7(a) of the proposed ruleset forth the penalties imposed byCERCLA Section 103(b) for failure tonotify the NRC of a reportable release.Section 302.7(a) of today's final ruledoes not specify the penaltiesestablished by CERCLA section 103(b);rather, the rule incorporates thestatutory penalties by reference. Theregulation still informs responsibleparties of the statutory sanctions forfailure to notify, but the change willavoid the need to amend 40 CFR 302.7should CERCLA section 103(b) beamended. Currently, CERCLA section103(b) provides that any person incharge of a facility or vessel from whicha hazardous substance is released, otherthan a federally permitted release, in aquantity equal to or greater than thereportable quantity, who fails to notifythe appropriate federal agency as soonas he has knowledge of the release, shallupon conviction be fined not more than$10,000 or imprisoned for not more thanone year, or both. Notifications receivedunder sections 103(a) or 103(b) orinformation obtained by such noticecahnot be used against any reportingperson in any criminal case, except aprosecution for perjury or for giving afalse statement.
V. Reportable Quantity Adjustments
A. Introduction
The primary purpose of the CERCLAnotification requirements, discussedabove in section IV, is to ensure thatreleasers notify the government so thatthe need for a federal response can beevaluated and any necessary responseundertaken in a timely fashion.
With this purpose in mind, EPAproposed adjustments to the statutoryRQs of CERCLA hazardous substancesbased on specific scientific andtechnical criteria that relate to thepossibility of harm from the release of ahazardous substance in a reportable
quantity. The adjusted RQs do notreflect a determination that a release ofa substance will be hazardous at the RQlevel and not hazardous below thatlevel. EPA has not attempted to make'such a determination because the actualhazard will vary with the uniquecircumstances of the release, andextensive data and analysis would benecessary to determine the hazardpresented by each substance in anumber of possible circumstances.Instead, the RQs reflect the Agency'sjudgment of which releases shouldtrigger mandatory notification to thefederal government so that thegovernment may assess to what extent,if any, a federal removal or remedialaction may be necessary.
Over forty commenters supportedboth the methodology EPA used indetermining RQs and the results of thismethodology. These commenters agreedthat the RQ adjustments will:
(1) Increase the efficiency andcertainty of the Superfund program;
(2) Reduce burdens on the regulatedcommunity; and
(3) Improve EPA's ability toconcentrate its attention and resourceson the releases that are potentially mostthreatening to public health or welfareor the environment.
In addition, EPA received manycomments on various specific topicsrelating to the RQ adjustments that werediscussed in the NPRM. Somecommenters also discussed issues thatwere not explicitly addressed in theproposed rule. Responses to both typesof comments are presented below.
B. Number of Reportable QuantityLevels and Their Values
1. Five RQ Levels
For purposes of making RQadjustments under CERCLA, EPA hasadopted the five RQ levels of 1, 10, 100,1000, and 5000 pounds originallyestablished pursuant to CWA section311 (see 40 CFR Part 117). The Agencyadopted the CWA five-level systemprimarily because (1) it has beensuccessfully used pursuant to the CWA,(2) the regulated community is alreadyfamiliar with these five levels, and (3) itprovides a relatively high degree ofdiscrimination among the potentialhazards posed by different CERCLAhazardous substances. Manycommenters voiced general support ofthe five-level system; however, as thenext section discusses, somecommente,7s criticized the use of onepound as the lowest RQ level.
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2. One-Pound RQsSeveral comments were received on
the one-pound RQ level. A fewcommenters argued that a one-poundRQ is too small for reporting purposes.They reasoned that a one-pound releaseof a hazardous substance would have aninconsequential impact on public healthand welfare and the environment andthat federal agencies would not respondto such small releases.
The one-pound RQ is consistent withprior regulation under the Clean WaterAct (see 40 CFR Part 117). One poundwas selected under the Clean Water Actas the lowest reporting level becauseone pound is typically the smallestcontainer size used in commerce fortransporting moderately or extremelyhazardous substances 40 FR 59989,December 30, 1975. Moreover, theAgency interviewed a large cross-section of field response personnel, andall of those interviewed indicated thatthey want to be notified of mostreleases, even at the one-pound level. Inthe interviews, the field responsepersonnel recognized that thegovernment may not institute removal orremedial actions for many one-poundreleases, but they emphasized thatnotification was a prerequisite for..determining (1) the need for a responseunder the circumstances, (2) theadequacy of any cleanup efforts, and (3)the degree to which post-releasemonitoring may be required.Furthermore, many releases tend to beescalating events, and early notificationhelps ensure an effective response.
Six commenters criticized the one-pound RQ level for posing anunreasonable burden on the regulatedcommunity. One commenter indicatedthat the adoption of one-pound RQs willrequire many companies to do extensivetesting of raw materials in order toassure compliance with this regulation.CERCLA does not require any testing,and EPA does not intend to require anyfurther testing beyond that which isalready required by other statutes andtheir implementing regulations.
C. Methodology Used To AdjustReportable Quantities
1. The Methodology ChosenThe selected strategy for adjusting
RQs begins with an evaluation of theintrinsic physical, chemical, andtoxicological properties of eachdesignated hazardous substance. Theintrinsic properties examined-called"primary criteria"-are aquatic toxicity,mammalian toxicity (oral, dermal, andinhalation), ignitability, reactivity, andchronic toxicity. (For the purposes ofthis rule, chronic toxicity-referred to as
"other toxic effects" in the May 25, 1983NPRM-is defined as toxicity resultingfrom repeated or continuous exposure toeither a single release or multiplereleases of a hazardous substance.) Inaddition, substances that wereidentified as potential carcinogens havebeen evaluated for their relative activityas potential carcinogens; the RQs forthese substances will be proposed in aseparate rulemaking, and the -methodology for adjusting RQs on thebasis of potential carcinogenicity will atthat time be presented for publiccomment.
The Agency ranks each intrinsicproperty on a five-tier scale, associatinga specified range of values on each scalewith a particular RQ value. Thus, eachsubstance receives several tentative RQvalues based on its particularproperties.3 The lowest of all of thetentative RQs becomes the "primarycriteria RQ" for that substance. (SeeSection V.D.1. below for further detail.)
After the primary criteria RQs areassigned, substances are furtherevaluated for their susceptibility tocertain extrinsic degradation processes.These extrinsic processes (referred to as"secondary criteria" in the May 25, 1983NPRM) are biodegradation, hydrolysis,and photolysis, or "BHP." If the analysisindicates that a substance degradesrelatively rapidly to a less harmfulcompound through one or more of theseprocesses when it is released into theenvironment, the primary criteria RQ israised one level. (See section V.D.2.below for further detail.) The single RQassigned to each substance on the basisof the primary criteria and BHP becomesthe adjusted RQ for that substance.
2. Multiple RQs and Media-Specific RQsMany commenters objected to the
Agency's proposal to establish a singleRQ for each hazardous substance. Itwas suggested that either (1) the Agencyshould develop several RQs for eachhazardous substance, for example, oneRQ for each of the variousenvironmental media (air, water, soil)into which a release might occur, or (2)the Agency should base the adjusted RQfor each substance on the most likelymedium of release rather than on themost sensitive environmental trigger (asis currently done).
Several of the objecting commentersbelieved that the RQs would bearbitrary if they did not reflect the
I If available evidence shows that a substancehydrolyzes into a reaction product that is morehazardous than the original substance, the primarycriteria are applied to the reaction product ratherthan to the original substance to determine theprimary criteria RQ values for the originalsubstance.
varying degrees of risk presented byreleases into different environmentalmedia. For similar reasons, they arguedthat the RQs should vary depending onthe form of the substance released (i.e.,whether it is a solid, a liquid, or a gas)and its ability to dissipate into theenvironment. The objecting commentersbelieved that if the RQs were to reflectmore accurately the hazards of givenreleases, the overall reporting burdenwould be reduced, because reportswould not have to be made in situationswhere the government would be unlikelyto respond.
As has been stated, the RQs are notintended to represent judgments by theAgency as to the specific degree ofhazard associated with certain releases.The actual hazard will vary with thecircumstances of the particular release,and many factors other than the size ofthe release will influence thegovernment's response. The single RQapproach was adopted to provide arelatively simple reporting system thatdoes not unduly burden either EPA orthe regulated community. Since releasesinto more than one medium often occur,the single RQ approach will preventconfusion. Section 102(a) of CERCLAexpressly authorizes the Administratorto set a single quantity for eachhazardous substance, and the legislativehistory emphasizes the virtues ofsimplicity and administrativeconvenience (see Sen. Rep. 848, 96thCong., 2d Sess. 29 (1980)). Moreover, theAgency simply does not have theresources to obtain the vast quantity oftechnical data required to develop RQsthat, on the one hand, are tailored to fitevery release situation, and that, on theother hand, are consistent, equitable,and adequately protective of publichealth and welfare and the environment.
EPA will be able to refine the single-RQ approach over time as moreinformation becomes available, withouthaving to expend substantial resources
* to develop a massive technical database and undertake other burdensomerulemaking support. Radionuclides,because of their unique characteristics,are the one category of substances forWhich the Agency is consideringdeviation from the single RQ approach.As noted in section III.C. of thispreamble, radionuclide RQs will beaddressed in a separate rulemaking.
A number of commenters expressedthe opinion that the RQ adjustmentcriteria should take particular releasecircumstances into consideration. Thesuggested circumstances includedrelease into a sewer system, releasenear a public drinking water supply,release near a residential area, and air
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emissions from elevated sources (tallstacks). One commenter even statedthat "determinations of actual harm"should be made for all substances withone- and ten-pound RQs by examiningrelease potential, release history, thedegree of hazard or risk of particularreleases in various environmentalmedia, and the likelihood that suchreleases would require federal action.The Agency position is that particularcircumstances should not affect the RQ.level; instead, they may influence thegovernment's decisions concerningwhether and how it should respond to aparticular release.
Many commenters focused on theappropriateness of a single RQgoverning emissions into the air as wellas releases into other media. Theyargued as follows:
Because the government cannotrespond to most air emissions bycontaining or cleaning up the emissions,and because other governmentresponses (e.g., evacuation of the nearbypopulace] are required onlyinfrequently, requiring routine reportingof air emissions under a single-RQapproach would be wasteful andburdensome.
e The impacts of emissions intoambient air are substantially less thanreleases of similar size to water or soil,and the photolysis and degradation ofmany air emissions tend to be relativelyrapid.
• Relatively few substances would beeligible for separate air release RQs, andEPA would not have to devote asubstantial amount of effort andresources to make the appropriateadjustments.
The Agency believes that anexception to the single-RQ approach forair releases could not be restricted to airreleases alone under the abovereasoning. Several other types ofreleases exhibit certain of thecharacteristics of air releases, such asreleases into large bodies of rapidlymoving water. If the circumstances ofparticular releases were taken intoaccount in setting RQs, the entireprocess would place an intolerableburden on Agency resources. Theprocess would also become potentiallyinconsistent, inequitable, and subject to
delay. Moreover, the resultingcomplexity in RQs would be likely toengender both confusion and furthercharges of arbitrariness.
One commenter believed that, for themost part, releases that would beaffected by a separate air release RQ.would be those which are "continuous"and released from facilities subject toClean Air Act regulations. If an airrelease falls within the exemptionsprovided by CERCLA for "continuous"or "federally permitted" releases, ofcourse, no notification is necessary(except as required for continuousreleases); if many air releases areexempt, a separate air release RQ wouldprovide very few benefits.
3. Alternative MethodologiesConsidered
In the May 25, 1983 NPRM, EPAdescribed and solicited comments onthree alternative methodologies foradjusting RQs: Hazard Index, Scenarios,and Fate and Effects. Most commentersagreed with the Agency that thesemethodologies would be impractical toimplement and would introduceunnecessary complexities into the RQadjustment process, although severalcommenters encouraged furtherresearch into the Hazard Indexapproach. No new data to facilitate amore complete evaluation of thesemethodologies have been submitted.Because these methodologies arecomplex and require much data that areunavailable at this time, EPA is notcurrently pursuing these'methodologiesfurther for RQ adjustment purposes.
D. Criteria Used To Adjust ReportableQuantities
1. Primary Criteria
a. Aquatic Toxicity. In adjusting RQs,EPA used the categories of aquatictoxicity that were established pursuantto section 311 of the CWA. As Exhibit 1shows, each category is linked to one ofthe five RQ levels. The RQ value basedon aquatic toxicity is identical to the RQpromulgated under the CWA section 311except where the use of updated aquatictoxicity data has resulted in a differentRQ (see section V.F.2. below).
EXHIBIT 1.-CATEGORIES FOR REPORTABLEQUANTITY ASSIGNMENTS PURSUANT TO CWASECTION 311
I "LC." refers to that concentration of material which islethal to one-half of the test population of aquatic animalsupon continuous exposure for 96 hours. (See 40 CFR116.14).
Source: 43 FR 10492. March 13, 1978.
One commenter questioned therationale for assigning one-pound RQsto substances in the highest aquatictoxicity category. The commenterindicated that an RQ of 10 pounds, oreven 100 pounds, could be assigned justas easily. The five-level reportablequantity scale for aquatic toxicity wastaken directly from section 311 of theClean Water Act. The CWA section 311reporting categories are being retainedfor CERCLA reporting purposes in orderto ensure consistency between the twoclosely related acts. The aquatic toxicityRQ scale has been used successfully inimplementing the Clean Water Act, andthe regulated community is familiar withit. Moreover, as noted above in thesection on one-pound RQs, manyreleases tend to be escalating eventsrequiring prompt attention.
b. Mammalian Toxicity. EPAseparately evaluated oral, dermal, andinhalation toxicity for the mammaliantoxicity criterion. A five-level scale wasdevised for each type of toxicity. Thesescales are shown in Exhibit 2. The RQchosen for mammalian toxicityrepresents the lowest of the valuesderived from the three scales. Thesescales were discussed in detail in theNPRM (48 FR 23562-23563).
One commenter believed that theAgency's mammalian toxicity scalesassign RQs which are too high for somepoisonous substances. The commentertherefore proposed new scales based onmammalian toxicity that would assignmany more one-pound RQs than theAgency's scales. The Agency believesthat the scales suggested by thecommenter are overly broad and couldlead to unnecessary reporting.
EXHIBIT 2.-CATEGORIES FOR REPORTABLE QUANTITY ADJUSTMENTS BASED ON MAMMALIAN TOXICITY I
For a detailed explanation of the derivation of these categories, see Technical Background Document to Support Rulomaking Pursuant to CERCLA Section 102."LL, refers to that dose of a substance expected to cause the death of 50 percent of a defined experimental mammalian population."LC.." refers to that concentration of a substance in the air that is expected to cause the death of 50 percent of a defined experimental mammalian population.
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c. Ignitability and Reactivity. TheAgency used a five-level scale to assignRQs based on ignitability. The NPRMdiscussed this scale in detail (48 FR23563). Exhibit 3 shows the scale used.The Agency did not assign one-poundRQs based on ignitability because smallreleases of a flammable substancewould generally be consumed so quicklythat any federal government responseaction would be infeasible.
EXHIBIT 3.-CATEGORIES FOR REPORTABLEQUANTITY ADJUSTMENTS BASED ON
IGNITABILITY'
RO(pounds) Ignitability (fire)
I .............. No 1-pound R0s on the basis of ignitability.10 ............ Pyrophoric or self-ignitable.100 .......... FPb. <100"F, BPc <lO'F.1000 . FP, <100'F, BP >100.500 . FP. 100'F-140F.
For a dl-il d explanition of the derivation of thesectegores, sce Technical Background Document to SupportRulemalng Pursuant to CERCLA Section 102.b "FP." refers to the ilash point, the temperature at which
a substance forms an ign;table mixture wilh the air at thesurface of the substance, measured using the closed cuptest.
"BP" refers to the boiling point, the temperature at whicha liquid boils.
The Agency also used five-levelscales for assigning RQs based on twotypes of reactivity: reactivity with waterand self-reaction. For reactivity, as forignitability, no one-pound RQs wereassigned. The NPRM discussed thereactivity scales and their development.Exhibit 4 shows the scales used.
One commenter requested that theminimum RQ level for the ignitabilityand reactivity RQ scales be set at 100pounds instead of 10 pounds. TheAgency has decided to retain the 10-pound minimum RQ level. As a result ofinterviews with federal government fieldresponse personnel, the Agency decidedto remove the one-pound RQ level fromthe ignitability and reactivity RQ scales.Government response personnelindicated that releases of less than 10pounds of ignitable and reactivesubstances normally would beadequately handled by appropriate localor state response personnel, and theyconcurred with the Agency's proposal toraise to 10 pounds the minimumreporting level for the ignitability andreactivity RQ scales. Governmentresponse personnel, however, objectedto raising the minimum reporting levelany further. They believed that reportinglevels should be kept low to ensuretimely reporting of releases and timelygovernment response, if necessary.
EXHIBIT 4-CATEGORIES FOR REPORTABLEQUANTITY ADJUSTMENTS BASED ON
REACTIVITYa
RO Reactivityb(pounds) With water Self-reaction
.............. No I-pound Ros on No 1-pound ROs onthe basis of reactivity, the basis of reactivity
10 ........... Inflames (e.g., Na, Extreme self-reaction;CaC2). may cause explosion
or detonation.100 ......... Extreme reaction (e.g., High; may polymerize;
SO3). requires stabilizer.1000 . High reaction (e.g., Moderate;
5000 . Moderate reaction (e.g., Slight; may polymerizeNHJ-. with low heat
release.
-For a detailed explanation of the derivation of thesecategories, see Technical Background Document to SupportRulemaking Pursuant to CERCLA section 102.
Based on heat release.
d. Chronic Toxicity. The Agency useddata on chronic toxicity (referred to as"other toxic effects" in the May 25, 1983NPRM) to adjust the statutory RQs forsome hazardous substances. For otherhazardous substances, data on chronictoxicity were still being evaluated at thetime of the May 25, 1983 NPRM. RQswere not adjusted for those substancesundergoing evaluation; thus, thestatutory RQ applies. In addition, thereare a few substances for which an RQwas proposed in the NPRM but forwhich EPA subsequently determinedthat further evaluation was necessary.The statutory RQ applies for thesesubstances until a final RQ ispromulgated (see section V.F.2. below).
When analyzed for chronic toxicity,substances are assigned scores based onboth the minimum effective dose (MED)levels for repeated exposures and theseverity of the effects caused byrepeated or continuous exposure. Thescores are then used to assign RQs. TheNPRM described the methodology used(48 FR 23564); Exhibit 5 shows the RQlevels based on chronic toxicity.
EXHIBIT 5.-CATEGORIES FOR REPORTABLEQUANTITY ADJUSItMENTS BASED ON CHRON-IC ToxICITY
For a detailed explanation of the derivation of thesecategorio, see technical Background Document to SupportRulemakng Pursuant to CERCLA Section 102.
A number of commenters suggestedthat chronic toxicity should not be usedto determine RQs or should be used only
with additional restrictions. Thesecommenters believed that chronictoxicity, which is a function ofprolonged exposure, should not beconsidered because the purpose of theRQ program is to monitor episodicreleases. The Agency decided to usechronic toxicity as a criterion in settingRQs because episodic releases whichare not rapidly and completely cleanedup may result in repeated or continuousexposure to a toxic substance.Moreover, CERCLA reportingrequirements cover both episodic andcontinuous releases. Continuousreleases may also lead to repeated orcontinuous exposure to toxicsubstances.
e. Potential Carcinogenicity. Today'srule does not use any measure ofpotential carcinogenicity to adjust RQs.EPA is in the process of developingadjusted RQs for substances which havebeen identified as potential carcinogens.The statutory RQs for these substancesapply while they are being consideredfor RQ adjustment. Table 302.4 notesthose substances which are beingevaluated for their relative activity aspotential carcinogens (but which may ormay not be potential carcinogens).
2. Other Criteria Used to Adjust RQs(BHP)
a. Use of BHP Criteria. Twentycommenters supported the use of thenatural degradation processes ofbiodegradation, hydrolysis, and.photolysis ("BHP") as additional criteriafor adjusting RQs. The BIHP criteria areused, where appropriate, to raise RQvalues one level from that suggested bythe primary criteria analysis. Fourcommenters opposed the use of BHP toadjust RQs.
The supporting commenters agreedthat the above degradation processestend to reduce the relative potential forharm to public health and welfare andthe environment of certain harzardoussubstance releases. It was seen thattaking the environmental fatecharacteristics of particular substancesinto account in setting RQ levels was anappropriate method to reduce theoverall reporting burden while stilladequately protecting public health andwelfare and the environment. However,one commenter emphasized that theBHP criteria are a useful RQ adjustmenttool only where the associated analysisis not overly complex, expensive, ortime-consuming.
Several commenters requestedclarification of the methodology used in
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applying BHP. The TechnicalBackground Document supporting thisrulemaking sets forth in detail therelatively simple, yet scientificallyconservative methodology used to applythese criteria. First, several eliminationcriteria are used to limit the number ofsubstances eligible for the one-levelincrease based on BHP. The eliminationcriteria include the following: tendencyto bioaccumulate, environmentalpersistence, the presence of unusualhazards (e.g., high reactivity), theexistence of hazardous degradation ortransformation products, or a primarycriteria RQ already at the maximumassignable level of 5000 pounds. Theremaining substances are evaluated fortheir susceptibility to biodegradation,hydrolysis, and photolysis. As discussedbelow, the Agency uses ranges ofdegradation rates sufficient to ensurethat the substances selected for the one-level increase in RQ (27 in today's finalrule) are in fact relatively degradable.
Two commenters believed that theAgency's evaluation pursuant to theBHP criteria should lead to a downwardadjustment if the risk posed by therelease of a hazardous substance isincreased as a result of biodegradation,hydrolysis, or photolysis (i.e.,. if thenatural degradation processes producematerials in the environment that aremore hazardous than the originalsubstance released). The Agency agreesthat consideration must be given to thetoxicity of the degradation products.Where reaction products morehazardous than the original substanceare readily known and identified, theAgency has based the primary criteriaRQ of the original substance on thecharacteristics of the more hazardousreaction products, effectively resultingin a "downward adjustment."
Application of the primary criteria tothe reaction products rather.than to theoriginal substances occurred in tencases for the substances assigned finaladjusted RQs in this rule. For example,substances known to generate hydrogensulfide or phosphine upon hydrolysishave been assigned primary criteria RQson the basis of these reaction products.
The few commenters opposing the useof BHP felt that biodegradation,hydrolysis, and photolysis should beconsidered by the On-SceneCoordinator in determining thegovernment's response after a releasehas been reported, but that EPA shouldnot use such processes to alter the initialreporting level suggested by the primarycriteria. For the reasons given below, theAgency disagrees.
First, the commenters asserted thatbiodegradation, hydrolysis, andphotolysis should not be applied in the
setting of RQs because these processesmay not affect the immediate hazardposed by a given release and insteadmay only reduce the potential long-termdangers of the release. However, EPAhas used degradation measures thataddress both short- and long-termpotential hazards. The RQ of asubstance is not raised unless (1) thereported biological oxygen demand ofthe substance over a five-day period at20 degrees Celsius is at least fiftypercent of the theoretical oxygendemand (the stoichiometric quantity ofoxygen needed to oxidize a substancecompletely to carbon dioxide andwater), or (2) when subjected tohydrolysis, photolysis, or either processin conjunction with biodegradation, theestimated half-life of the substance isequal to or less than five days.
The primary criteria RQs of foursubstances (allyl chloride, butylamine,diazinon, and ethyl acrylate) wereadjusted upwards in the May 25, 1983NPRM on the basis of degradation datainvolving periods greater than five days,because data for shorter periods wereunavailable. The Agency has sincedecided to adjust RQs according to thecriteria stated above (i.e., evidence ofdegradation within five days), to ensurethat all substances selected for the one-level increase will tend to degraderapidly once they are released.Therefore, allyl chloride, butylamine,diazinon, and ethyl acrylate areassigned their primary criteria RQs intoday's final rule.
The second major argument raised bythe commenters opposed to the use ofBHP was that the methods for measuringthe occurrence and rate ofbiodegradation, hydrolysis, andphotolysis do not take into account theentire range of environmental conditionsthat could potentially affect eachprocess. The Agency acknowledges thislimitation in its analysis. RQs cannot bedesigned to account for everyenvironmental condition of each releaseof a hazardous substance. Instead, each.RQ level represents the Agency's bestjudgment concerning the threshold atwhich the NRC should be notified.
Although environmental conditionsare not considered in the RQ adjustmentprocess, EPA has taken into accountcertain physical characteristics ofsubstances in adjusting RQs on thebasis of biodegradability. The test forbiodegradability is performed using aclosed container, which may providemisleading data for highly volatilesubstances that are unlikely to remain inmicrobe-bearing soil or water. TheAgency has therefore elected not toapply the biodegradation criterion toany highly volatile substance (i.e., with
a boiling point less than 100 degreesFahrenheit) unless that substance is alsohighly water soluble. Highly watersoluble substances will tend to beretained in water or in soil (by soilmoisture). The primary criteria RQ ofacetaldehyde was raised one levelunder these circumstances; even thoughthe boiling point of acetaldehyde is lessthan 100 degrees Fahrenheit, thesubstance is also highly water soluble.
b. Other Criteria Considered andRejected. In the NPRM preamble, EPAnoted that it had considered usingvolatilization (the process by which asubstance vaporizes into the air) as anadditional criterion for adjusting RQs,but had rejected it because the hazardposed by a release of a hazardousubstance does not necessarily decreasewhen the substance moves from soil orwater into the air. One commenterdisagreed with the Agency's decisionnot to use volatilization, arguing thatwhere a compound is particularlyvolatile, no response action may befeasible. EPA maintains its earlierposition that the movement of asubstance between environmentalmedia (from the soil or water into theair) does not necessarily affect thepotential hazard. The feasibility of aresponse is a decision for the On-SceneCoordinator.
c. Broadening the Scope of the BHPCriteria. The NPRM noted, withoutdiscussion, that the criteria ofbiodegradation, hydrolysis, andphotolysis were not used to raise RQsbased on chronic toxicity, and it did notmention the application of BHP tosubstances being evaluated for potentialcarcinogenicity. Several commentersexpressed the opinion that BHP shouldbe applied to hazardous substancesevaluated for chronic toxicity and/orpotential carcinogenicity. They notedthat the processes of biodegradation,hydrolysis, and photolysis may, incertain cases, reduce the potentialhazard of such substances. EPA agreesthat BHP should be applied to thosehazardous substances evaluated forchronic toxicity, and the Agency isconsidering whether to apply BHP tosubstances evaluated for potentialcarcinogenicity.
In fact, the Agency has alreadyevaluated BHP with respect to thosesubstances that were analyzed forchronic toxicity. Two substancesevaluted for chronic toxicity have hadtheir primary criteria RQs increased onelevel on the basis of biodegradability:acetonitrile (1000 to 5000 pounds) andmethyl ethyl ketone (1000 to 5000pounds).
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A number of commenters argued thatRQs should be adjusted more than oneRQ level on the basis of the BHP criteriato reflect the'speed and completenesswith which a substance degrades. In arelated suggestion, several commentersrequested that EPA develop formalranking scales for these criteria.
The lack of extensive data and theuncertainty of much of the existing dataconcerning the environmental fate ofvarious hazardous substances preventadjustments of more than one level toreflect the speed and completeness withwhich a substance degrades. TheAgency believes that an upwardadjustment of one level adequatelylessens the reporting burden on theregulated community regarding releasesof the 27 substances involved andsatisfactorily protects public health andwelfare and the environment.
Similar data gaps hinder developmentof formal ranking scales for the BHPcriteria. Moreover, even if adequatedata were available, the BHP criteriacould not be easily applied through amore formal multi-tier ranking system,for many of the same reasons a hazardindex is currently impractical. Forexample, there is no objective way todetermine the proper numerical weightsfor the different primary and BHPcriteria that would be combined in amore formal ranking system. Therefore,the Agency has determined that moreformal ranking scales for the applicationof BHP are not practical at this time.Further refinement of the use of BHPmay be undertaken in connection with afuture rulemaking.
For a more detailed discussion of theBHP criteria and the problems ofcombining different criteria ranking, seethe discussion of hazard indices in theMay 25,1983 NPRM at 48 FR 23568-23569, and the Technical BackgroundDocument to Support RulemakingPursuant to CERCIA section 102,available for inspection at Room S-325,U.S. Environmental Protection Agency,401 M Street, SW, Washington, D.C.20460.
d. Additional Data Suggested. Somecommenters suggested specific datasources for analysis of BHP. EPA usedone of these sources in making theadjustments proposed in the May 25,1983 NPRM. On the basis of datacontained in the other available sources,the RQs of acetonitrile and furfural haveeach been raised one level to 5000pounds.
3. Additional Criteria Considered butNot Currently Used To Adjust RQs
a. Release History and ReleasePotential. Several comments werereceived on the use of release history
and release potential as criteria foradjusting RQs. EPA agrees with thosecommenters who stated that the mannerin which releases have been handled inthe past under different circumstances isnot directly related to whether aparticular release in the future will posea threat to public health or welfare orthe environment. The potential hazardsof each release must be considered on acase-by-case basis. For this reason, andbecause of the data problems mentionedin the NPRM, the Agency has decidednot to adjust RQs on the basis of releasehistory and release potential at thistime.
b. Corrosivity. Two commenterssupported the use of corrosivity as acriterion for adjusting RQs. A majordifficulty in applying corrosivity as acriterion is developing a scale relatingcorrosivity to RQs that is useful for allCERCLA hazardous substances. None ofthe comments included a scale that theAgency considered adequate, and EPAhas not identified a corrosivity scalethat would be generally practicable.Therefore, corrosivity will not be used atthis time as a criterion for adjustingRQs.
' Future RQ Adjustments
1. Interim RQs
As noted below in section V.G.,adjusted RQs for 358 of the 698 CERCLAhazardous substances do not appear intoday's rule. One dommenter urged EPAto publish proposed RQs for thesesubstances as quickly as possible.Today's Federal Register contains anNPRM proposing RQs for 105 of the 358substances not receiving an adjusted RQin today's rule. EPA will propose RQadjustments for the remainingsubstances as soon as sound technicalevaluations for them are complete.
Another commenter indicated thatpotential delays in performing suchevaluations could result in an unfairreporting burden for many substancesthat will temporarily retain their presentRQs. The commenter thereforerecommended that EPA propose interimRQ adjustments for such substancesbased on existing information andscientific judgments.
EPA disagrees. Proposing newtemporary RQs for hazardoussubstances would be time-consuming initself, and, because the temporary RQswould be based on incomplete analysis,they would be unfair to the regulatedcommunity and the general public.Interim levels would still need to bechanged when RQ evaluations arecompleted. EPA will move expeditiouslyto complete its evaluations of the
remaining CERCLA substances, but willnot establish a set of interim RQs.
2. New Data
One commenter requested thatprovisions be specified for allowing RQchanges when new information relatingto the primary criteria or BHP becomesavailable. This commenter felt that EPAshould acknowledge the role ofinterested parties in effectingappropriate revisions to the final RQsand should clarify procedures for thesubmission of new data.
EPA welcomes the subipissi6n of newdata concerning the primary criteria andBHP at any time. RQs are based on thebest data available at the time ofpromulgation, but they are subject tochange on the basis of new information.The Agency will periodically reviewsubmitted data to ensure that RQs arenot based on superseded information.
F Application of the Methodology andCriteria
1. Introduction
Many commenters voiced generalsupport for EPA's choice of methodologyand the results of the methodology.These commenters stated that theproposed RQ adjustments wouldincrease the efficiency of the Superfundprogram, reduce burdens on theregulated community, and allow EPA toconcentrate its resources on the releaseswhich pose the potentially greatestthreat to public health or welfare or theenvironment.
The remainder of this sectionresponds briefly to comments receivedby the Agency concerning the RQs, ofvarious specific substances anddiscusses in greater detail the commentsreceived concerning PCBs and unlistedhazardous wastes.
2. Comments on RQs of SpecificSubstances
The Agency received comments fromover 100 commenters concerning theRQs of 90 individual substances and 12groups of waste streams. The majority ofthese comments suggested raising theRQs for specific substances.
One commenter recommended severalRQ changes on the basis of aquatictoxicity data recently compiled by theU.S. Department of the Interior. TheAgency has reevaluated the RQs ofseveral hazardous substances in light ofthese new data, and four of thesubstances singled out by thecommenter have received new adjustedRQs. In addition, the new data wereused to alter the proposed adjusted RQsof 12 other substances. Exhibit 6 lists the16 substances which received new
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adjusted RQs on the basis of the newaquatic toxicity data. Statements by thesame commenter contributed to areexamination of the mammaliantoxicity data for phosgene and thelowering of the phosgene RQ from 1000to 10 pounds.
EXHIBIT 6.-SUBSTANCES WHICH RECEIVED
FINAL ADJUSTED RQs DIFFERENT FROM
PROPOSED ADJUSTED RQs ON THE BASIS OFNEW AQUATIC TOXICITY DATA
Some commenters suggested RQchanges for particular substances on thebasis of volatility or particular incidents.Similarly, one commenter proposed newRQs for several waste streams based onthe public impact of past releases ofthese wastes. However, as discussed inprevious sections, neither volatility norrelease history are currently being usedto adjust RQs. The RQs of thesesubstances and waste streams willtherefore not be changed.
Commenters suggested raising theRQs of four substances on the basis ofbiodegradability. Two of thesesubstances-crotonaldehyde andpentachlorophenol-have already beenexamined for biodegradability and beenfound not to meet the criteria for anupward RQ adjustment. EPA hasreexamined the third substance,ammonia, on the basis of both chronictoxicity and BHP (although ammonia isvolatile, it is also highly water soluble)and has proposed for ammonia anadjusted RQ of 100 pounds in the NPRMpublished in today's Federal Register.EPA has adjusted the RQ of the fourthsubstance, methyl ethyl ketone, from1000 pounds to 5000 pounds on the basisof biodegradability.
Several commenters suggested thatthe RQs of metals might be based on themetal compound RQs (for soluble salts)that were assigned under CWA section311. However, solid metal powders donot necessarily have the same effects astheir soluble salts, and, therefore, thesame RQs would not necessarily apply.
Many commenters argued that the RQof ammonia should be raised from itscurrent level of 100 pounds under theCWA; they cited the volatility ofammonia, the fact that most ammoniareleases occur into air, the fact that theaquatic toxicity of the ammonium ion ismuch lower than that of ammonia itself,and the biodegradability of ammonia. Itwas also suggested that the 100-poundRQ would create a burdensomereporting requirement. Ammonia hasundergone reevaluation since the May25, 1983 NPRM; based on thisreevaluation, the NPRM in today'sFederal Register proposes to retain the100-pound RQ for ammonia underCERCLA. The 100-pound RQ establishedunder the CWA applies until a finaladjusted RQ is promulgated.
3. PCBsIn the May 25, 1983 NPRM, the Agency
proposed to lower the RQ for PCBs to'one pound from the original 10-poundlevel set under section 311 of the CleanWater Act. The lower RQ was based onmore recent aquatic toxicity data. TheAgency acknowledged that because ofthe ubiquitous use of PCBs, it wasconcerned about the increasednotification burden that might resultfrom this proposed reduction of the PCBRQ. Comments were requested on theseissues.
All of the comments received on thisissue objected to the Agency's proposalto reduce the PCB RQ to one pound. Themajor concern of the commenters wasthat the one-pound RQ wouldappreciably increase the number ofreportable releases and the burden onthe regulated community whilenegligibly improving the protection ofpublic health or welfare or theenvironment. Most commenters arguedthat restrictions on the location ofequipment containing PCBs, current PCBmanagement regulations under TSCA,and existing industry good housekeepingpractices with regard to PCBs makeexposure to PCBs unlikely.
Several commenters also expressedconcern that significant over-reportingmay dramatically increase thegovernment's administrative costs forthe notification program. Othercommenters.suggested alternativemethods for estimating the number ofPCB releases of different quantities forthe purpose of calculating the economiceffects of changing the PCB RQ.
Several commenters questioned thevalidity of the aquatic toxicity data usedby the Agency and the manner in whichit was employed to set the proposed RQ.Also, two commenters cited dataindicating that PCBs do not pose anyserious threats to human health, even
though the Agency had explained thatthe proposed PCB RQ was based onaquatic toxicity.
After considering the commentsreceived on the PCB RQ, the Agency hasdecided to defer any promulgation of afinal PCB RQ until a future rulemaking.The Agency is currently evaluating PCBsto determine whether the RQ should bebased on the primary criterion ofpotential carcinogenicity. Until a finalRQ is promulgated for PCBs, the existingRQ of 10 pounds (established under theCWA) will remain in effect.
4. Unlisted RCRA Wastes (ICREWastes)
CERCLA section 101(14)(c) includes inthe definition of hazardous substances"any hazardous waste having thecharacteristics identified under or listedpursuant to section 3001 of the SolidWaste Disposal Act ... " Therefore,solid wastes, as defined by RCRA,which exhibit one or more of thecharacteristics of ignitability,corrosivity, reactivity, or extractionprocedure toxicity (ICRE) are -considered CERCLA hazardoussubstances, even though they are notspecifically listed under RCRA. The RQsof ICRE wastes are listed in Table 302.4under "Unlisted Hazardous Wastes."These RQs apply only to substancesthat are wastes prior to being released(see section IV.D.1. above). The RQ forignitable, corrosive, or reactive unlistedwastes is 100 pounds, and unlistedhazardous wastes that exhibitextraction procedure (EP) toxicity havethe reportable quantities listed in Table302.4.
Some commenters suggested changingthe RQ established for ignitable,corrosive, or reactive wastes. Thecomments that suggested raising the RQfor ICR wastes were based mainly onthe assumption that a governmentresponse would seldom be required forreleases of these wastes smaller than1000 pounds. However, each of thesesuggestions assumes some specificscenario and ignores the fact that an RQonly reflects the Agency's judgment thatthe federal government should benotified of releases to which a responsemight be necessary. Especially whenreleases are of unknown mixtures,conservatism is a sensible approach;therefore, the RQ is designed to cover allhazardous substances potentiallypresent. With this in mind, the RQ forICR wastes will remain as proposed at100 pounds.
Two commenters suggested that thereleaser be given the opportunity toreport releases of reactive or ignitablewastes based on the primary criteria RQ
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scales of Exhibits 3 and 4 in the NPRM(48 FR 23563). However, simply testingfor the reactivity or ignitability of thewaste does not further identify thecomposition of the waste; therefore, thewaste is still unlisted. The primarycriteria are designed to apply only tospecific substances. Moreover, theAgency has not determined that listedand unlisted wastes pose similarpotential hazards.
If an unlisted ICRE waste is analyzedand the concentrations of all of itshazardous components are identified.the waste is no longer an unlisted waste,but one characterized by itscomponents. The specific substancespresent will then determine theapplicable RQ in accordance with theClean Water Act mixture rule (seesection IV.D.3.b. above). For example, ifa waste is known to be corrosivebecause of its sulfuric acid content, andno other CERCLA hazardous substancesor other ICRE characteristics arepresent, the RQ of the waste is reachedwhen 1000 pounds of sulfuric acid isreleased. If the aforementioned waste isa 25 percent solution of sulfuric acid inwater, the RQ of the waste is notreached until 4000 pounds of the wasteis released.
Several commenters suggested thatthe RQ for an EP toxic waste slouldapply to the EP toxic constituents of thewaste rather than to the waste itself. Ifthe composition of the waste stream iscompletely known, the waste is nolonger an unlisted waste, and themixture rule will apply. If the hazardousconstituents of the waste and theirconcentrations are not completelyknown, however, it is impossible toapply the mixture rule as thesecommenters suggested. Unlisted wastesthat exhibit EP toxicity have thereportable quantities listed in Table302.4 for the contaminant on which thecharacteristic of EP toxicity is based; theRQ given applies to the waste itself, notmerely to the toxic constituent. Asentence has been added to § 302.5(b] toclarify this point.
G. Summary of RQ Changes From theMay 25, 1983 NPRM
The May 25, 1983 NPRM proposedraising the RQs for 177 CERCLAsubstances (including 15 waste streams)and lowering the RQs for 28 substances,leaving the RQs of 182 substances(including 11 waste streams) at theirprevious levels. On the basis of newaquatic toxicity data located by acommenter, the proposed adjusted RQsof 16 substances have been changed.Exhibit 6 lists these 16 substances.Similarly, new data on BHP has led to aone-level increase in the adjusted RQ of
furfural, and a reevaluation ofmammalian toxicity data has led to adecrease in the phosgene RQ from 1000to 10 pounds. Applying BHP to,substances exhibiting chronic toxicityhas raised the adjusted RQs of twoother substances. The decision not toapply BHP to substances for which five-day degradation rates are insufficient tojustify a one-level increase in RQ hasresulted in a lower RQ for foursubstances. The use of data overlookedat the time of the NPRM has affected theadjusted RQs of four additionalsubstances.
The NPRM proposed adjusted RQs for47 substances (including 8 wastestreams) that were subsequentlyselected for chronic toxicity and/orpotential carcinogenicity assessment;these 47 substances will thereforeremain at their statutory RQ levelspending future RQ adjustments. Of these47 substances, however, 23 (including 6waste streams) already had RQs of onepound on the basis of one or more of theother primary criteria. Furtherevaluation of chronic toxicity orpotential carcinogenicity is unlikely tochange these one-pound RQs, becausethere is no RQ level less than one poundand the analysis of the other primarycriteria indicates that a one-pound RQ isappropriate (although new data on theprimary criteria or on BHP may suggestotherwise).
Table 302.4 in the May 25, 1983 NPRMincorrectly described eighteensubstances as having one-poundstatutory RQs under CERCLA; however,these substances had been assignedRQs under the Clean Water Act (40 CFRParts 116 and 117.31. Exhibit 7 lists theeighteen substances and their correctstatutory and (where appropriate) finalRQs.
In sum, final adjusted RQs nowappear for 319 of 608 specific substancesand 21 of 90 waste streams. StatutoryRQs appear for the remainingsubstances. 4
For further information concerningthese RQ changes, see the TechnicalBackground Document to SupportRulemaking Pursuant to CERCLASection 102, available for inspection atRoom S-325, U.S. EnvironmentalProtection Agency, 401 M Street, SW,Washington, D.C. 20460.
1 Adjustments have been proposed for 105 ofthese substances in an NPRM that appears intoday's Federal Register. These substances arenoted by two number symbols (##) in the "Pounds(Kg)" column of Table 302.4.
H. Retention of Statutory RQ for VethylIsocyoi ote
The December 4, 1984 release ofmethyl socyanate (MIC) in Bhopal,India caused major loss of human life.This event pointed out theextraordinarily serious nature of MIC'sacute toxicity. At this point, EPA iswithdrawing its proposal to amend theRQ for MIC and is requesting furtherdata on its toxicity.
The one-pound statutory reportingrequirement will continue to apply toreleases of this hazardous substanceuntil a rule adjusting its RQ ispromulgated.
EXHIBIT 7.-SUBSTANCES WITH ROs As-SIGNED UNDER THE CLEAN WATER ACT THATTHE MAY 25, 1983 NPRM LISTED AS HAVINGONE-POUND STATUTORY Os UNDER CER-CLA
These substances were selected for evaluation of chronictoxicity andf or potenti carcmoencty 0i xdust ROswill be proposed tor them in a future culeeakig.
. Table 302.4
1. Introduction
Table 302.4 lists all of the CERCLAhazardous substances together withtheir adjusted and statutory RQs. Thefirst part of the table lists the individualhazardous substances regulated underthe statutes cited in CERCLA section101(14). The generic groups of chemicalsdesignated under CWA section 307(a),such as "SILVER AND COMPOUNDS."are printed in capital letters and have noRQ assigned to them. These genericgroups of chemicals could potentiallyencompass hundreds of specificcompounds with varying toxicities; it istherefore not appropriate to establish asingle RQ for each generic group.Although CERCLA notificationrequirements apply only to specificcompounds for which RQs are listed in'Fable 302.4, CERCLA liability may stillattach to releases of specific compoundsthat are within one of the generic
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listings but not specifically listed inTable 302.4.
The second part of the table containsthe 90 hazardous waste streafnsdesignated under 40 CFR 261.31 and261.32 (RCRA F and K lists). The Agencydesignated many of these waste streamsas hazardous under RCRA because ofthe presence of specific hazardousconstituents in the waste streams as setforth in Appendix VII of 40 CFR Part261. The Agency is assigning RQs forthese waste streams based on thesehazardous constituents. The primary.criteria and BHP, discussed above, wereapplied to each hazardous constituent inorder to derive an RQ value. If a wastestream in 40 CFR 261.31 and 261.32 hasmore than one hazardous constituent,the RQ assigned to the particular wastestream represents the lowest RQassociated with the hazardousconstituents present in that wastestream.
2. Minor Changes
In addition to the changes in proposedRQs described above in Section G, thefollowing minor changes in Table 302.4ha% e been made:
(1) The listing for Chromium D007, oneof the constituents of the characteristicof EP toxicity under the "UnlistedHazardous Wastes," will now be "totalchromium" (although it may be changedto hexavalent chromium at some time inthe future under proposed amendmentsto RCRA). It was listed incorrectly ashexavalent chromium (VI) in Table 302.4in the NPRM.
(2) The RCRA waste numbers for thecharacteristics of ignitability (Dool),corrosivity (D002), and reactivity (D003)are now included in Table 302.4. Theywere omitted from Table 302.4 in theNPRM. In addition, the wasteidentification numbers for theconstituents of the characteristic of EPtoxicity, and the waste identificationnumbers for wastes Fool through K106,which were also omitted in the NPRM,are now properly included in the columnfor RCRA Waste Numbers in Table302.4.
(3) In response to the suggestion of acommenter, the Table now notes thatthe RQ for asbestos is limited to friableforms of the substance; reporting ofreleases of other forms is not required,although other CERCLA liabilities mayattach.
VI. Reportable Quantity AdjustmentsUnder Section 311 of the Clean WaterAct
In the May 25, 1983 NPRM, EPArequested comments on its proposal tomake RQs adjusted under CERCLA theapplicable RQs for purposes of reporting
discharges of hazardous substancespursuant to section 311 of the CleanWater Act. Making RQs the same forsubstances listed under both statuteswould make the notificationrequirements for the substancesinvolved consistent and less confusingfor the regulated community.
Of nine comments received on theissue of adjusting CWA RQs, five werecompletely in favor of the Agency'sproposal and agreed that it wouldalleviate much confusion. However, fourcomments indicated that suchadjustment should proceed only forthose substances for which CWA RQswould be raised. These commentersclaimed that CWA RQs are based onaquatic toxicity, while CERCLA RQsmust consider releases into other media.Thus, they reasoned, lowering CWARQs based on criteria used to setCERCLA RQs would be unfair.
EPA does not feel that different RQsunder the two statutes would serve anypurpose. Even if the CWA RQs were notlowered, releases of CWA substanceswould still be reportable when releasedat CERCLA RQ levels becauseCERCLA's scope and jurisdiction fullyencompass all hazardous substancedischarges reportable under CWA. Theprimary purpose of equalizing RQsunder CERCLA and the CWA is to makethe task of reporting releases lessconfusing for the regulated community.
VII. Summary of Supporting Analyses
A. Classification and Regulatory ImpactAnalysis
Rulemaking protocol under ExecutiveOrder 12291 requires that proposedregulations be classified as "major" or"non-major" for purposes of review bythe Office of Management and Budget.According to the E.O. 12291, major rulesare regulations that are likely to resultin:
(1) An annual effect on the economyof $100 million or more; or
(2) A major increase in costs or pricesfor consumers, individual industries,federal, state, or local governmentagencies, or geographic regions; or
(3) Significant adverse effects oncompetition, employment, investment,productivity, innovation, or the ability ofUnited States-based enterprises tocompete with foreign-based enterprisesin domestic or export markets.The Regulatory Impact Analysis,available for inspection at Room S-325,U.S. Environmental Protection Agency,401 M Street, SW, Washington, D.C.20460,fhows that today's regulation is"non-major" because it results in a netcost savings of approximately $17million annually, of which about $2.6
million annually will be saved by theregulated community (the remainder tobe saved by the government). 5
B. Regulatory Flexibility Analysis
The Regulatory Flexibility Act of 1980requires that a Regulatory FlexibilityAnalysis be performed for all rules thatare likely to have "significant impact ona substantial number of small entities."Chapter 7 of the Regulatory ImpactAnalysis estimates the potential impactof today's regulation on a model smallchemical firm. The chapter firstestimates an upper-bound total annualcost of compliance by a small firm at$5,604 (in 1983 dollars] and thencompares this figure to other measuresof a small firm's economic status. Evenwith this extremely conservativeestimate, the total cost per year ofcompliance is a negligible percentage ofboth the pre-tax annual cash flow andequity of the model small firm-afraction of one percent for bothmeasures. EPA therefore certifies thatthis regulation will not have asignificant impact on a substantialnumber of small entities, and thus noRegulatory Flexibility Analysis isneeded.
C. Information Impact Analysis
EPA anticipates that RQ adjustmentswill change the paperwork burdenimposed on the regulated community forinformation collection associated withreporting releases. As estimated in theRegulatory Impact Analysis, today'sregulation will reduce the paperworkburden of notification andrecordkeeping on private parties byalmost 50,000 hours.
The information collectionrequirements contained in this rule arecovered by the U.S. Coast Guardsubmission for information collection bythe National Response Center. Therequirements have been approved bythe Office of Management and Budget(OMB) under the provisions of thePaperwork Reduction Act of 1980, 44U.S.C. 3501 et seq., and have beenassigned OMB control number 2115-0137.
List of Subjects in 40 CFR Part 302
Air pollution control, Chemicals,Hazardous materials, Hazardousmaterials fransportation, Hazardoussubstances, Intergovernmental relations,Natural resources, Nuclear materials,Pesticides and pests, Radioactivematerials, Reporting and recordkeeping
5 These figures do not include the costs orbenefits associated with the continuous releaseexemption.
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requirements, Superfund, Wastetreatment and disposal, Water pollutioncontrol.
Dated: February 13,1985.Lee M. Thomas.Administrator.
1. 40 CFR is amended by adding Part302 as follows:
PART 302-DESIGNATION,REPORTABLE QUANTITIES, ANDNOTIFICATION
Sec.302.1 Applicability.302.2 Abbreviations.302.3 Definitions.302.4 Designation of hazardous substances.302.5 Determination of reportable
Authority: Section 102 of theComprehensive Environmental Response,Compensation, and Liability Act of 1980. 42USC 9602; Sections 311 and 501(a) of theFederal Water Pollution Control Act, 33 USC1321 and 1361.
§ 302.1 Applicability.This regulation designates under
section 102(a) of the ComprehensiveEnvironmental Response,Compensation, and Liability Act of 198o("the Act") those substances in thestatutes referred to in section 101(14) ofthe Act, identifies reportable quantitiesfor these substances, and sets forth thenotification requirements for releases ofthese substances. This regulation alsosets forth reportable quantities forhazardous substances designated undersection 311(b)(2](A) of the Clean WaterAct.
§ 302.2 Abbreviations.CASRN = Chemical Abstracts Service
Registry NumberRCRA: Resource Conservation and
Recovery Act of 1976, as amendedlb =poundkg=kilogramRQ= reportable quantity
§ 302.3 Definitions.As used in this part, all terms shall
have the meaning set forth below:"The Act", "CERCLA", or
"Superfund" means the ComprehensiveEnvironmental Response,Compensation, and Liability Act of 1980(Pub. L. 96-510);
"Administrator" means theAdministrator of the United StatesEnvironmental Protection Agency("EPA");
"consumer product" shall have themeaning stated in 15 U.S.C. 2052;
"environment" means (1) thenavigable waters, the waters of thecontiguous zone, and the ocean waters
of which the natural resources are underthe exclusive management authority ofthe United States under the FisheryConservation and Management Act of1976, and (2) any other surface water,ground water, drinking water supply,land surface or subsurface strata, orambient air within the United States orunder the jurisdiction of the UnitedStates;
"facility" means (1) any building,structure, installation, equipment, pipeor pipeline (including any pipe into asewer or publicly owned treatmentworks), well, pit, pond, lagoon,impoundment, ditch, landfill, storagecontainer, motor vehicle, rolling stock,or aircraft, or (2) any site or area wherea hazardous substance has beendeposited, stored, disposed of, or placed,or otherwise come to be located; butdoes not include any consumer productin consumer use or any vessel;
"hazardous substance" means anysubstance designated pursuant to 40CFR 302;
"hazardous waste" shall have themeaning provided in 40 CFR 261.3;
"navigable waters" or "navigablewaters of the United States meanswaters of the United States. includingthe territorial seas;
"offshore facility" means any facilityof any kind located in. on, or under, anyof the navigable waters of the UnitedStates, and any facility of any kindwhich is subject to the jurisdiction of theUnited States and is located in, on, orunder any other waters, other than avessel or a public Vessel;
"onshore facility" means any facility(including, but not limited to, motorvehicles and rolling stock) of any kindlocated in, on, or under, any land or non-navigable waters within the UnitedStates;
..person" means an individual, firm,corporation, association, partnership,consortium, joint venture, commercialentity, United States Government, State,municipality, commission, politicalsubdivision of a State, or any interstatebody;
"release" means any spilling, leaking,pumping, pouring, emitting, emptying,discharging, injecting, escaping,leaching, dumping, or disposing into theenvironment, but excludes (1) anyrelease which results in exposure topersons solely within a workplace, withrespect to a claim which such personsmay assert against the employer of suchpersons, (2) emissions from the engineexhaust of a motor vehicle, rolling stock,aircraft, vessel, or pipeline pumpingstation engine, (3) release of source,byproduct, or special nuclear mfiterialfrom a nuclear incident, as those termsare defined in the Atomic Energy Act of
1954, if such release is subject torequirements with respect to financialprotection established by the NuclearRegulatory Commission under Section170 of such Act, or for the purposes ofSection 104 of the ComprehensiveEnvironmental Response,Compensation, and Liability Act or anyother response action, any release ofsource, byproduct, or special nuclearmaterial from any processing sitedesignated under section 102(a)(1) or302(a) of the Uranium Mill TailingsRadiation Control Act of 1978, and (4)the normil application of fertilizer,
"reportable quantity" means thatquantity, as set forth in this part, therelease of which requires notificationpursuant to this part;
"United States" include the severalStates of the United States, the Districtof Columbia, the Commonwealth ofPuerto Rico, Guam, American Samoa.the United States Virgin Islands, theCommonwealth of the NorthernMarianas, and any other territory orpossession over which the United Stateshas jurisdiction; and
"vessel" means every description ofwatercraft or other artificial contrivanceused, or capable of being used, as ameans of transportation on water.
§ 302.4 Designation of hazardoussubstances.
(a) Listed hazardous substances. Theelements and compounds and hazardouswastes appearing in Table 302.4 aredesignated as hazardous substancesunder section 102(a) of the Act.
(b) Unlisted hazardous substances. Asolid waste, as defined in 40 CFR 261.2,which is not excluded from regulation asa hazardous waste under 40 CFR261.4(b), is a hazardous substance undersection 101(14) of the Act if it exhibitsany of the characteristics identified in 40CFR 261.20 through 261.24.
Table 302.4-List of Hazardous Substancesduld Reportable Quantities
Note-The numbers under the columnheaded "CASRN" are the Chemical AbstractsService Registry Numbers for each hazardoussubstance. Other names by which eachhazardous substance is identified in otherstatutes and their implementing regulationsare provided in the "Regulatory Synonyms"column. The "Statutory RQ'" column lists theRQs for hazardous substances established bysection 102 of CERCLA. The "StatutoryCode" column indicates the statutory sourcefor designating each substance as a CERCLAhazardous substance: "1" indicates that thestatutory source is section 311(b)(4) of theClean Water Act, "2" indicates that thesource is section 307(a) of the Clean WaterAct. "3" indicates that the source is section112 of the Clean Air Act, and "4" indicatesthat the source is RCRA section 3001. The
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"RCRA Waste Number" column provides the letters "X," "A," "B," "C," and "D," which are quantity for each hazardous substance inwaste identification numbers assigned to associated with reportable quantities of 1, 10, pounds and kilograms.various substances by RCRA regulations. The 100, 1000, and 5000 pounds, respectively. Thecolumn headed "Category" lists the code "Pounds [kg)" column provides the reportable
TABLE 302.4 - LIST OF HAZARDOUS SUBSTANCES AND REPORTABLE QUANTITIES
SRu SoStatutory T Final RO
Hazardous Substance CASRN Regulatory Synonyms RCRACano Code I t Wste g. Pounds(Kg)I. Number
I ........................ I ...............................................................
.............................................................. I ...................................................... I .......................................
CHRO M IUM AND CO M POUNDS ........................................... ....................................................................................................................
Coke Oven Em issoions ............................................................. N.A . .....................................................................................................
Copper t t .................................................................................. 7440508 ....................................................................................................
COPPER AND CO M PO UNDS ............................................... .. ................... ...............................................................................................
Cupric ac to rsenit ................c.e............................................ 2002038 ..................................................................................................
U l U CI LI I ................................................................................................................................................................................
Hazardous W astes ........................................................................................................................................................................
Characterstic of Ignitability ......................................................................................................................................................
Chracteristic of Corrosivity ..................................... .
LiMt, Am4U 'UM ViU UN . . ........................................................ L .................... I ...................................................................................................
.,q, I I ............................................................... t .... ............... I .....................................................................................................
100
100
I
1.
5000
5000
1.
1000
1000
1000
1000
I .
5000
I .
1000
1000
1.
1.
1'I t
1000
5000
1000
SOW
1000
5000
10
1000
1000
1000
6000
5000
1000
5000
1000
5000
5000
6000
5000
10
1,4
1,4
4
4
1
1
4
1,4
1,4
2.3,4
1,2,4
4
1,4
4
2
2
1,4
1,4
4
,4
P121
P122
F001
B
X
X
D
C
C
C
D
X
C
C
0
X
0
D
C
D
C
D
A
C
C
C
D
0
C
0
C
D
C
D
D
X
100 (45.4)
100 (45.4)
i# (0.454)
l# (0.454)
5000## (2270)
5000## (2270)
1000 (454)
1000## (454)
1000## (454)
1O00## (454)
5000 (2270)
1# (0.454)
5000# (2270)
100 (45.4)
1OO0 (454)
1000 (454)
5OO (2270)
1## (0.454)
Iooo## (454)
5O00## (2270)
IOO0## (454)
5000## (2270)
1000## (454)
SOOO# # (2270)
10## (4.54)
1000## (454)
1000## (454)
1O00## (454)
5000## (2270)
5000## (2270)
1000## (454)
5000##(2270)
IO00## (44)
5000 (2270)
1000 (454)
5000 (2270)
5000 (2270)
I# (0.454)
13500
P1 19
P, 20
1120
U043
U078
Pool
U239
U200
....................... I ..............................................................................
F006 ........................................................................................ ................... ................................................. ................................................ 006 X 1# (0.454)Wastewater treatment sludges from electroplating
operations except from the foltdwlng processes:(1) sulfuric acid anodizing of aluminum; (2) tinplating on carbon steel; (3) zinc plating(segregated basis) on carbon steel; (4) aluminumor zinc-aluminum plating on carboh steel: (5)cleaning/strippng. associated with tin, zinc andaluminum plating on carbon steel; and (6)chemical etching and milling of aluminum
P07 ..................................................... .............Spent cyanide plating bath solutions from
electroplating operations (except for preciousmetals electroplating spent cyanide plating bathsolutiona)
F006 ........................................................................................ .......................................................................................................................Plating bath sludges from the bottom of plating
baths from electroplating operatkns wherecyanides are used in the process (except forprecious metals electroplating plating bathsludges)
FD 9 .. .. ................... ................ ........ ............... ........................~... ... .... . .........Spent stripping and cieaning bath solutions from
electroplating operations where cyanides areused in the process (except for precious metalselecplating spent stripping and cleaning bathsolutions)
13502 Federal Register / Vol. 50, No. 65 / Thursday, April 4, 1985 / Rules and Regulations
TABLE 302.4 - LIST OF HAZARDOUS SUBSTANCES AND REPORTABLE QUANTITIES-Continued
Statutory Final R0
Hazardous Substance CASRN Regulatory Synonyms 0- ACRA Calego-I O Code I W/aste Pouod6(Kg)
Number
Quenching both sludge from oil baths from metalheat treating operations where cyanides are usedin the process (except for precious metals heat7treating quenching bath sludges)
F0 11 ............................................................................................................... ..................................................................................................... 1. 4 F0 11 A 10 (4 .54)Spent cyanide solutions from salt bath pot cleaning
from metal heat treating operations (except forprecious metals heat treating spent cyanicdosolutions from salt bath pot cleaning)
F0 12 ............................................................................................................... ..................................................................................................... 4 F0 12 A 10 (4.54)Quenching wastewater treatment sludges from
metal heat treating operations where cyanidesare used in the process (except for preciousmetals heat treating quenching wastevvaterteatment sludges)
F019 ....................................................................... .................... ............. ....... ......... . 4 F019 I# (0.454)Wastowater treatment sludges from the chemical
conversion coating of aluminum
F024 ............................................................................................................... ...................................................................................................... I 4 FO '4 XI # (0.454)Wactes, including but not limited to distillation
residues, heavy ends, tars, and reactor cleanoutwastes, from the production of chlorinatedaliphatic hydrocarbons,having carbon contentfrom one to five, utilizing free radical catalyzedprocesses. (This listing does not include lightends, spent fitters and filter aids, spentdessicants(sic), wastewater, wastewatertreatment sludges, spent catalyts,and wasteslisted in Section 261.32.)
K 001 .............................................................................................................. ..................................................................................................... 1- 4 K 001 I J# (0.454)Bottom sediment sludge from the treatment of
wastewaters from wood preserving processesthat use creosote and/or pentachlorophunol
K002 ............................................................................................................... ....................................................................................................Wastewater treatment sludge from the production
of chrome yellow and orange pigments
K003 .......................................................................................... .................... ....................................................................................................Wastewater treatment sludge from the production
of molybdate orange pigments
K004 ............................................................................................................... ....................................................................................................Wastewater treatment sludge from the production
of zinc yellow pigments
K005 .......................................................................................... .................... ....................................................................................................Wastewater treatment sludge from the production
of chrome green pigments
K 006 .......................................................................................... ........................................................................................................................Wastewater treatment sludge from the production
of chrome oxide green pigments (anhydrous andhydrated)
K007 ...................................................................................................................................................................................................................Wastewater treatment sludge from the production
of iron blue pigments
K008 ............................................................... ; ..................................................................................................................................................Oven residue from the production of chrome oxide
green pigments
K009 ................................................................................ ........................................................................................................................Distillation bottoms from the production of
acetaldehyde from ethylene
K 010 .......................................................................................... ........................................................................................................................Distillation side cuts from the production of
acetaldehyde from ethylene
K011 ..................................................................................................................................................................................................................Bottom stream from the westewater stripper in the
production of acryfonitrile
K013 ...................................................................................................................................................................................................................Bottom stream from the acetonitrile column In the
production of acrylonitnle
1 014 ...................................................... ; ....................................................... ....................................................................................................Bottoms from the acetonitrie purification column in
the production of acrylonitrile
1" 4 K002 t 1# (0.454)
1 4 K003 X 1# (0.454)
t 4 K004 X 1# (0.454)
" 4 KOO5 X I# (0.454)
I. 4 K006 X 1# (0.454)
1 4 K007 I# (0.454)
1 4 K008 I # (0.454)
1 4 K009 X 1# (0.454)
1 4 K010 1# (0.454)
1' 4 K011 I 1# (0.454)
1 4 K013 X 1# (0,454)
1 4 K014 D 5000 (2270)
Federal Register / Vol. 50, No. 65 /:Thursday, :April 4, 1985 /:Rules and Regulations 13503
TABLE 302.4. LIST OF HAZARDOUS SUBSTANCES AND REPORTABLE QUANTITIES-Continued
Statutory Final RO
Hazardous Substance CASRN Regulatory SynonymsHRO Code f = Cameg Pounds(Kg)
K015 ........... . ...... .... **- ... ...........................................................Sill bottoms from thedistillation of benzy chloride
K O 16 .. ........................................................................................................ ........................... : ........................... I .............................................Heavy ends or distillation residues from the
productionof carbon tefrachioride
K017........................................................................................... ...............Heavy ends (still bottoms) from the purification
column in the production of epichlorohydrin
K 0 1B ........................................................................................................... .......... .....................................................................................Heavy ends from the fractionation column In ethyl
chloride production
K019 ................................................................................................... ... .. ................. .......................Heavy ends from the distillation of ethylene
dichloride In ethylene dichloride production
K020 ................................................................................................. ......... ......................... .....................Heavy ends from the distillation of vinyl chloride in
vinyl chloride monomer production
K021 ............................................................................................ ............ ....... ...............................................................................................Aqueous spent antimony catalyst waste from
fluoromethanes production
K022 .........................................................................................................................................Distillation bottom tars from the production of
phenol/acetone from cumene
K 023 ........................................................................................ ................... ...................................................................................................Distillation light ends from the production of phthafic
anhydride from naphthalene
K024 ................................................................................Distillation bottoms from the production of phthallc
anhydride from naphthalene
K025 ........... ........................................................................Distillation bottoms from the production of
nitrobenzene by the nitration of benzene
K026 ............................................................................................................................................................................................Stripping still tails from the production of methyl
ethyl pyridines
K027 ................................................................ : ..........................................................................................................................Centrifuge and distillation residues from toluene
diisocyanate production
K028 ............................................................................................................................................................................................Spent catalyst from the hydrochlorinator reactor in
the production of 1.1,1-trichloroothane
K029 .......................................................................................... ................................................................................................Waste from the product steam stripper in the
production of 1,1,1-trichloroethane
K 030 .: ................................................................................................ ..............................................................................................Column bottoms or heavy ends from the combined
production of trichloroathylene andperchloroethylene
K031 ....................................................................................................................................By-product salts generated In the production of
MSMA and cacodylic acid
K032 ....................................................................................................................................Wastewater treatment sludge from the production
of chlordane
K033 .......................................................................................................................................Wastewater and scrub water from the chlorination
of cyclopentadiene in the production of chlordane
K034 ....................................................................................................................... ..............Filter solids from the filtration of
hexachlorocyclopentadiene in the production ofchlordane
K035 ................................................................................ ..................................Wastewater treatment sludges generated in the
13504 Federal Register / Vol. 50, No. 65 / Thursday, April 4, 1985 / Rules and Regulations
TABLE 302.4 - LIST OF HAZARDOUS SUBSTANCES AND REPORTABLE QUANTITIES-Continued
Statutory R Final RO
Hazardous Substance CA Regulatory Synonyms R RCR atego-S Code f Waste l Pounds(Kg)Number y
Still bottoms from toluene reclamation distillation inthe production of disulfoton
K 03 7 ...........................................................................................Wastewater treatment sludges from the production
of disulfoton
K 0 38 ...........................................................................................Wastewater from the washing and stripping of
phorate production
K 03 9 ..........................................................................................Filter cake from the filtration of
diethylphosphorodithioic acid in the production ofphorate
K 04 0 ...........................................................................................Wastewater treatment sludge from the production
of phorate
K 0 4 1 ...........................................................................................Wastewater treatment sludge from the production
of toxaphene
K042 ..................................Heavy ends or dictillation residues from the
distillation of tetrachlorobenzene in the productionof 2,4,5-T
K 0 4 3 ..........................................................................................2,6-Dichlorophenol waste from the production of
2,4-D
K044 ................... ...............Westewater treatment sludges from the
manufccturing and processing of explosives
K 0 4 5 ...........................................................................................Spent carbon from the treatment of wastewater
containing explosives
K 0 46 ...........................................................................................Wastewater treatment sludges from the
manufacturing, formulation and loading of lead-based initiating compounds
K 04 7 ...........................................................................................Pink/red water from TNT operations
K 04 8 ...........................................................................................Dissolved air flotation (DAF) float from the
petroleum refining industry
K 04 9 : ....................................................................................Slop oil emulsion solids from the petroleum refining
industry
kfnn
Heat excharnger bundle cleaning sludge from thepetroleum refining industry
K051 ........................................................................................... .. ........ ...............................................API separator sludge from the petroleum refining
industry
K052 .................................................. ....... ....................................................Tank bottoms (leaded) from the petroleum refining
industry
K O6 ........................................................................................................ . . .......................................................................................Ammonia still lime sludge from coking operations
K 0 6 1 .......................................................................................................... .......................................................................................Emission control dust/sludge from the primary
production of steel in electric furnaces
K 06 2 ...........................................................................................Spent pickle liquor from steel finishing operations
K 0 6 9 .........................................................................................Emission control dust/sludge from secondary lead
smelting
K071..................................Brine purification muds from the mercury cell
process in chlorine production, where separatelyprepurified brine is not used
K073 ....................................................................................................................................................................................................................Chlorinated hydrocarbon waste from the purification
step of the diaphragm cell process using graphiteanodes in chlorine production
K083 .......................................................................................... ..........................................................................................................................Distillation bottoms from aniline extraction
K084 ...................................................................................................................................................................................................................Wastewater treatment sludges generated during the
prodction of veterinary pharmaceuticals fromarsenic or organo-arsenic compounds
K 5085.................................................................................Distillation or fractionation column bottoms from the
production of chlorobenzenes
K086 .......................................................................................... ............................ ...........................................................................................Solvent washes and sludges, caustic washes and
sludges, or water washes and sludges fromcleaning tubs and equipment used in theformulation of ink from pigments, driers. soaps,and stabilizers containing chromium and lead
K087 ......................................................................................... ........................................................................ ................................................Decanter tank tar sludge from coking operations
K093 ............................................................................................................................................................................................................Distillation light ends from the production of phthalic
anhydride from ortho-xylene
1094 ......................................................................................... ..................................................................................... ..................................Distillation bottoms from the production of phthalic
anhydride from ortho-xylone
K095 .......................................................................................................................................................................... .....................Distillation bottoms from the production of 1.1.1-
trichloroethane
K096 ........................................................................................... .Heavy ends from the heavy ends column from the
production of 11.1-trichloroethane
K097 ...................................................................................... ........................................................................................................................Vacuum stripper discharge from the chlordane
chlorinator in the production of chlordane
K098 .............................................................................................................................................................................................................Untreated process wastewater from the production
of toxaphene
K099 ............................................................................................................. .....................................................................................................Untreated wastewater from the production of 2.4-D
K1 00 ........................................................................................... .........................................................................................................................Waste leaching solution from acid teaching of
emission control dust/sludge from secondarylead smelting (Components of this waste areidentical with those of K069).
K1101 *............. ......... ......................................................................................................................................................................Distillation tar residues from the distillation of
aniline-based compounds in the production ofveternary pharmaceuticals from arsenic ororgano-arsenic compounds
K102 .......................................................................................... ................................................................................................... ....................Residue from the use of activated carbon for
decolorization in the production of veterinarypharmaceuticals from arsenic or organo-arseniccompounds
K103 ....................................................................................................................................... : . ..................................... ..................................Process residues from aniline extraction from the
production of aniline
K104 ................................................ ............ ....................... ................................................. ................................Combined wastewater streams generated from
nitrobenzene/aniline chforobenzenes
K105 .................................................................................................................................................................................... ..............................Separated aqueous stream from the reactor product
washing step in the production of chlorobenzenes
K106 ................................................................................................ .......................... . . . . .Wastewater treatment sludge from the mercury cell
process in chlorine production
K083
K084
K085
K086
K087
K093
K094
K095
K096
K097
K098
K099
K100
1(101
K102
K103
K104
K105
K106
1# (0.454)
100 (45.4)
1 # (0.454)
1 # (0.454)
1 # (0.454)
1## (0.454)
5000 (2270)
5000 (2270)
I # (0.454)
1#f (0.454)
1# (0.454)
1 # (0.454)
1 # (0.454)
1# (0.454)
1#.(0.454)
1 # (0.454)
100 (45.4)
1# (0.454)
1# (0.454)
1 (0.454)
See footnotes on following page.
Federal Register / Vol. 50, No. 65 / Thursday, April 4, 1985 / Rules and Regulations
t* indicates the statutory source as defined by 1. 2, 3, or 4 below1 - indicates that the statutory source for designation of this hazardous substance under CERCLA is CWA Section 31 t(b)(4)2 - indicates that the statutory source for designation of this hazardous substance under CERCLA is CWA Section 307(a)3 - indicates that the statutory source for designation of this hazardous substance under CERCLA is CAA Section 1124 - indicates that the statutory source for designation of this hazardous substance under CERCLA Is RCRA Section 3001It - no reporting of releases of this hazardous substance is required if the diameter of the pieces of the solid metal released is equal to or exceeds 100 micrometers (0.004 inches)ttt - the RQ for asbestos is limited to friable forms onlyJ - the Agency may adjust the RO for radionuclides in a future rulemaking; until then the statutory 1-pound RO applies1* - indicates that the 1-pound RD is a CERCLA statutory RQ•* indicates that no RO is being assigned to the generic or broad class# - indicates that the RQ is subject to change when the assessment of potential carcinogenicity and/or chronic toxicity is completed##- indicates that an adjusted RQ is proposed in a separate NPRM in today's Federal Register###. the Agency may adjust the RD for methyl isocyanate in a future rulemaking; until then the statutory 1-pound RD applies
APPENDIX A - SEQUENTIAL CAS REGISTRY APPENDIX A - SEQUENTIAL CAS REGISTRY APPENDIX A - SEQUENTIAL CAS REGISTRYNUMBER LIST OF CERCLA HAZARDOUS NUMBER LIST OF CERCLA HAZARDOUS NUMBER LIST OF CERCLA HAZARDOUSSUBSTANCES SUBSTANCES-Continued SUBSTANCES-Continued
CASRN Hazardous Substance ' CASRN I Hazardous Substance
(a) Listed hazardous substances. Thequantity listed in the column "Final RQ"for each substance in Table 302.4 is thereportable quantity for that substance.
(b) Unlisted hazardous substances.Unlisted hazardous substancesdesignated by 40 CFR 302.4(b), whichsubstances are wastes prior to theirinitial release into the environment,have the reportable quantity of 100pounds, except for those unlisted
hazardous wastes exhibiting thecharacteristic of extraction procedure(EP) toxicity identified in 40 CFR 261.24.Unlisted hazardous wastes whichexhibit EP toxicity have the reportablequantities listed in Table 302.4 for thecontaminant on which the characteristicof EP toxicity is based. The reportablequantity applies to the waste itself, notmerely to the toxic contaminant. If anunlisted hazardous waste exhibits EPtoxicity on the basis of more than onecontaminant, the reportable quantity forthat waste shall be the lowest of thereportable quantities listed in Table302.4 for those contaminants. If anunlisted hazardous waste exhibits thecharacteristic of EP toxicity and one ormore of the other characteristicsreferenced in 40 CFR 302.4(b), thereportable quantity for that waste shallbe the lowest of the applicablereportable quantities.
§ 302.6 Notification requirements.(a) Any person in charge of a vessel or
an offshore or an onshore facility shall,as soon as he has knowledge of anyrelease (other than a federally permittedrelease or application of a pesticide) of ahazardous substance from such vesselor facility in a quantity equal to orexceeding the reportable quantitydetermined by this part in any 24-hourperiod, immediately notify the NationalResponse Center ((800) 424-8802; inWashington, D.C. (202) 426-2675).
(b) Releases of mixtures and solutionsare subject to these notificationrequirements only where a componenthazardous substance of the mixture orsolution is released in a quantity equalto or greater than its reportablequantity.
(c) Notification of the release of anRQ of solid particles of antimony,arsenic, beryllium, cadmium, chromium,copper, lead, nickel, selenium, silver,thallium, or zinc is not required if themean diameter of the particles releasedis larger than 100 micrometers (0.004inches).(Approved by the Office of Management andBudget under the control number 2115--0137)
§ 302.7 Penalties.(a) Any person
(1) In charge of a vessel from which ahazardous substance is released, otherthan a federally permitted release, intoor upon the navigable waters of theUnited States, adjoining shorelines, orinto or upon the waters of thecontiguous zone,
(2) In charge of a vessel from which ahazardous substance is released, otherthan a federally permitted release,which may affect natural resourcesbelonging to, appertaining to, or underthe exclusive management authority ofthe United States (including resourcesunder the Fishery Conservation andManagement Act of 1976), and who isotherwise subject to the jurisdiction ofthe United States at the time of therelease, or
(3) In charge of a facility from which ahazardous substance is released, otherthan a federally permitted release, in aquantity equal to or greater than thatreportable quantity determined underthis part who fails to notify immediatelythe National Response Center as soonas he has knowledge of such releaseshall be subject to all of the sanctions,including criminal penalties, set forth insection 103 of the Act with respect tosuch failure to notify.
(b) Notification received pursuant tothis section or information obtained bythe exploitation of such notificationshall not be used against any suchperson in any criminal case, except aprosecution for perjury or for giving afalse statement.
(c) This section shall not apply to theapplication of a pesticide productregistered under the Federal Insecticide,Fungicide, and Rodenticide Act or to thehandling and storage of such a pesticideproduct by an agricultural producer.
PART 117-{AMENDED]
2. 40 CFR Part 117 is amended byrevising § 117.3 to read as follows:
§ 117.3 Determination of reportablequantities.
Each substance in Table 117.3 that islisted in Table 302.4, 40 CFR Part 302, isassigned the reportable quantity listedin Table 302.4 for that substance.
SUMMARY: Sections 103(a) and 103(b) ofthe Comprehensive EnvironmentalResponse, Compensation, and LiabilityAct of 1980 ("CERCLA") require thatpersons in charge of vessels or facilitiesfrom which hazardous substances havebeen released in quantities that areequal to or greater than the reportablequantities ("RQs") immediately notifythe National Response Center of therelease. Section 102(b) sets a reportablequantity of one pound for hazardoussubstances, except those substances forwhich reportable quantities have beenestablished pursuant to section 311(b)(4)of the Clean Water Act ("CWA").
Section 102(a) authorizes theEnvironmental Protection Agency("EPA") to adjust reportable quantitiesfor hazardous substances and todesignate as hazardous substances,substances which when released intothe environment may presentsubstantial danger to the public healthor welfare or the environment. A finalrule published elsewhere in today'sFederal Register adjusts many of thereportable quantities established insection 102(b). EPA is proposing in thisrulemaking to adjust additionalreportable quantities. These RQadjustments are intended to reduce theburdens of reporting on the regulatedcommunity, allow EPA to focus itsresources on the most serious releases,and protect public health and welfareand the environment more effectively.The RQ adjustments proposed in thisrulemaking will affect both CERCLARQs and corresponding RQs inregulations promulgated pursuant tosection 311(b)(4) of the CWA.
Notification of a release of ahazardous substance in a quantity equalto or greater than its RQ is to be madeby telephone to the National ResponseCenter. The toll-free telephone numberof the National Response Center is listedunder the "Addres'ses".DATES: Comments must be received onor before June 3, 1985.ADDRESSES: The toll-free telephonenumber of the National Response Centeris (800) 424-8802; in the Washington,D.C. metropolitan area (202) 426-2675.
Comments: Comments should besubmitted in triplicate to: EmergencyResponse Division, Docket Clerk,Attention: Docket Number 102RQ, RoomS-325, U.S. Environmental ProtectionAgency, 401 M Street, S.W, Washington,D.C. 20460.
Docket: Copies of materials relevantto this rulemaking are contained inRoom S-325 at the U.S. EnvironmentalProtection Agency, 401 M Street, S.W,Washington, D.C. 20460. The docket isavailable for inspection between thehours of 8:00 a.m. and 4:00 p.m., Mondaythrough Friday. As provided in 40 CFRPart 2, a reasonable fee may be chargedfor copying services.FOR FURTHER INFORMATION CONTACT:Dr. K. Jack Kooyoomjian, ResponseStandards and Criteria Branch,Emergency Response Division (WH-548B), U.S. Environmental ProtectionAgency, 401 M Street, SW, Washington,D.C. 20460, or the RCRA/SuperfundHotline (800) 424-9346, in Washington,D.C., (202) 382-3000.SUPPLEMENTARY INFORMATION: Thecontents of today's preamble are listedin the following outline:
C. Substances for Which Adjusted RQs AreBeing Proposed
D. ICR SubstancesI1. Reportable Quantity Adjustments Under
Section 311 of the Clean Water ActIV. Summary of Supporting Analyses
I. Introduction
The Comprehensive EnvironmentalResponse, Compensation, and Liability
.Act of 1980 [Pub. L. 96-510], 42 U.S.C.9601 et seq. ("Superfund," "CERCLA," or"the Act"), enacted on December 11,1980, establishes broad federal authorityto deal with releases or threats ofreleases of hazardous substances fromvessels and facilities into theenvironment. The Act defines a set of"hazardous substances" by reference toother environmental statutes (section101(14)); this list currently contains 698substances. The EnvironmentalProtection Agency ("EPA") maydesignate additional hazardoussubstances (section 102).
The Act requires the person in chargeof a vessel or facility to notify theNational Response Center ("NRC")immediately when there is a release of adesignated hazardous substance in anamount equal to or greater than thereportable quantity ("RQ") for thatsubstance (sections 103 (a) and (b)).Section 102(b) of CERCLA establishes
RQs for releases of designatedhazardous substances at one pound,unless other reportable quantities wereassigned under section 311 of theFederal Water Pollution Control Act("Clean Water Act" or "CWA"). Section102(a) authorizes EPA to adjust all ofthese reportable quantities.
A major purpose of the section 103(a)and (b) notification requirements is toalert the appropriate governmentofficials to releases of hazardoussubstances that may require a rapidfederal response to protect public healthand welfare and the environment. Underthe Act, the federal government mayrespond whenever there is a release or asubstantial threat of a release into theenvironment of a hazardous substanceor of other pollutants or contaminantswhich may present an imminent andsubstantial danger to public health orwelfare (section 104). Responseactivities are to be taken, to the extentpossible, in accordance with theNational Contingency Plan (40 CFR Part300), which was originally developedunder the CWA and which has beenrevised to reflect the responsibilities andauthority created by CERCLA. EPAemphasizes that notification based onreportable quantities is merely a triggerfor informing the government of arelease so that the need for a federalremoval or remedial action can beevaluated by the appropriate federalpersonnel and any necessary actionundertaken in a timely fashion. Federalpersonnel will evaluate all reportedreleases, but will not necessarily initiatea removal or remedial action inresponse to all reported releases,because the release of a reportablequantity will not necessarily pose ahazard to public health or welfare or theenvironment. Government personnelwill assess each release on a case-by-case basis.
Section 103(b) establishes penalties,including criminal sanctions, for personsin charge of vessels or facilities who failto report releases of hazardoussubstances which equal or exceedreportable quantities. Any person who,as soon as he has knowledge of areportable release, fails to report therelease pursuant to section 103(a) or (b)shall, upon conviction, be fined no morethan $10,000 or imprisoned for not morethan one year, or both. Notificationsreceived under section 103(a) orinformation obtained by such noticecannot be used against any reportingperson in any criminal case, except aprosecution for perjury or for giving afalse statement.
On May 25, 1983, EPA proposed a rule(48 FR 23552) to clarify procedures for
13514
Federal Register / Vol. 50, No. 65 / Thursday, April 4, 1985 / Proposed Rules
reporting releases and to adjustreportable quantities for 387 of the 698CERCLA hazardous substances. ThatNotice of Proposed Rulemaking (NPRM)also listed, for the first time, the"hazardous substances" designated bysection 101(14) of CERCLA. The NPRMdiscussed in detail the CERCLAnotification provisions (including thepersons required to notify the NRC of arelease, the substances for whichnotification is required, the types ofreleases subject to the notificationrequirements, and the exemptions fromthese requirements), the methodologyand criteria used to adjust thereportable quantity levels, and the RQadjustments proposed under section 102of CERCLA and under section 311 of theCWA. Today's Federal Register containsa final rule that clarifies reportingprocedures and promulgates most of thepreviously proposed RQ adjustments.The final rule contains adjusted RQs for319 of the 608 specific substances and 21of the 90 waste streams that aredesignated as hazardous substancesunder CERCLA. In preparing the finalrule, EPA carefully considered all of thepublic comments submitted on theproposals made in the May 25, 1983NPRM.
This NPRM proposes RQ adjustmentsfor 105 additional CERCLA hazardoussubstances (including 7 waste streams)for which the Agency has nowcompleted its analysis. These proposedadjustments would amend Table 302.4 of40 CFR 302.4 and, consistent with 40CFR 117.3 as amended in today's finalrule, would apply not only to CERCLARQs, but also to RQs established undersection 311(b)(4) of the Clean Water Act.Section II of this preamble discusses theproposed RQ adjustments and themethodology used in making theseadjustments. Section III addresses RQadjustments under section 311 of theClean Water Act. Section IV provides asummary of the analyses supporting thisproposed rulemaking.
It should be noted that otherprovisions of the Act may apply evenwhere CERCLA does not requirenotification. Therefore, nothing in thisrulemaking should be interpreted asreflecting Agency policy or theapplicable law with respect to otherprovisions of the Act. For example, aparty responsible for a release is liablefor the costs of cleaning up that releaseand for any natural resource damages,even if the release is not subject to thenotification requirements of sections 103(a) and (b). Similarly, proper reporting ofa release in accordance with sections103(a) and (b) does not preclude liabilityfor cleanup costs. The fact that a release
of a hazardous substance is properlyreported or that it is not subject to thenotification requirements of section 103(a) and (b) will not prevent EPA or othergovernmental agencies from takingresponse actions under section 104,seeking reimbursement from responsibleparties under section 107, or pursuing anenforcement action against responsibleparties. Note also that this rule does notaffect hazardous substance reportingrequirements imposed by otherregulations and statutes (except theCWA-see Section III below).
Neither this rulemaking nor today'sfinal rule addresses the designation ofhazardous substances which are notdesignated under the statutes listed inCERCLA section 101(14). The Agencyhas conducted several preliminaryeconomic and technical analyses on thissubject (see 48 FR 23603), and anAdvance Notice of ProposedRulemaking (ANPRM), also publishedon May 25, 1983, invited publiccomment. EPA has carefully reviewedthe comments received and is in theprocess of further developing itsdesignation policy. The Agency'sdesignation policy will be the subject ofa separate rulemaking.
II. Reportable Quantity Adjustments
A. Introduction
Section 102(b) establishes areportable quantity of one pound for allhazardous substances other than those.with different RQs established undersection 311 of the Clean Water Act, forthese latter substances, section 102(b)adopts the CWA section 311 RQs.Congress enacted this provision in partto ensure that reporting of releaseswould begin immediately uponenactment of CERCLA, becausereporting is essential for response.
The RQs established by CERCLAwere intended to be temporary pendingEPA review and adjustment of thoseRQs. EPA committed to Congress in late1980 to revise those reportablequantities (126 Cong. Rec. H 11792(December 3, 1980)). This rulemakingproposes adjustments to the statutoryRQs based upon specific scientific andtechnical criteria that relate to thepossibility of harm from the release of asubstance in a reportable quantity.These revised RQs, therefore, enable theAgency to focus its resources on thosereleases which are most likely to posepotential threats to public health andwelfare and the environment. Such RQadjustments will also relieve theregulated community and emergencyresponse personnel from the burden ofmaking and responding to reports of
releases which are unlikely to pose suchthreats.
This NPRM proposes adjusted RQs for98 of the 289 specific substances and 7of the 69 waste streams that are notassigned adjusted RQs by today's finalrule. EPA is proposing to raise the RQsof 34 specific substances, lower the RQsof 31 specific substances, and leave theRQs of 33 specific substances at thelevels originally established by CERCLA(or under CWA section 3111- EPA is alsoproposing to raise the RQs of the 7waste streams. In addition, this NPRMproposes a 100-pound RQ for releases ofnon-designated substances whichexhibit the RCRA characteristics ofignitability, corrosivity, or reactivity butwhich are not "wastes" (and thusCERCLA hazardous substances) untilafter they are released and are notcleaned up for repackaging, recycling, orreuse. Adjusted RQs for the remaining191 specific substances and 62 wastestreams not addressed by this notice ortoday's final rule will be proposed, asappropriate, as soon as the RQadjustment analysis for thesesubstances (now ongoing) is complete.
The primary purpose of notification isto ensure that releasers notify thefederal government so that federalpersonnel can assess the need torespond to the release. The different RQlevels do not reflect a determination thata release of a substance will behazardous at the RQ level and nothazardous below that level. EPA has notattempted to make such adetermination, because the actualhazard will vary with the uniquecircumstances of the release, andextensive scientific data and analysiswould be necessary to determine thehazard presented by each substanceunder a number of possiblecircumstances. Instead, the RQs reflectthe Agency's judgment that the federalgovernment should be notified ofreleases to which a federal responsemight be necessary. The reportablequantities do not represent anydetermination that releases of aparticular size are actually harmful topublic health or welfare or theenvironment.
Many other considerations besidesthe quantity released affect thegovernment's decision concerningwhether and how it should conduct aremoval or remedial action pursuant tothe National Contingency Plan (40 CFRPart 300) with respect to a particularrelease. The location of the release, itsproximity to drinking water supplies orother valuable resources, the likelihoodof exposure or injury to nearbypopulations, and other factors must be
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assessed by the federal On-SceneCoordinator on a case-by-case basis.The reporting requirement enables thegovernment to learn when suchassessments should be made.
Because CERCLA's RQ adjustmentmethodology differs from that usedpursuant to section 311 of the CleanWater Act, some of the RQs beingproposed today are not the same asthose initially promulgated under theCWA. In the final rule publishedelsewhere in today's Federal Register,EPA has amended 40 CFR 117.3 to makeRQs adjusted under CERCLA theapplicable RQs for purposes of CWAsection 311. Thus, when made final,today's proposed RQ adjustments willapply to both CERCLA and CWA RQs,A person in charge need not report arelease into navigable waters twiceunder CERCLA and the CWA; onereport to the NRC suffices.
B. Summary of the MethodologyUnderlying the Reportable QuantityAdjustments
The Agency has wide discretion inadjusting the statutory RQs forhazardous substances under CERCLA.1
Administrative feasibility andconvenience are importantconsiderations. The Agency's selectedstrategy for adjusting RQs begins withan evaluation of the intrinsic physical,chemical, and toxicological properties ofeach designated hazardous substance.The intrinsic properties examined-called "primary criteria"-are aquatictoxicity, mammalian toxicity (oral,dermal, and inhalation), ignitability,reactivity, chronic toxicity, and potentialcarcinogenicity. (For the purposes of thisrule, chronic toxicity-referred to as"other toxic effects" in the May 25, 1983NPRM-is defined as toxicity resultingfrom repeated or continuous exposure toeither a single release or multiplereleases of a hazardous substance.)
The Agency ranks each intrinsicproperty on a five-tier scale, associatinga specific range of values on each scalewith a paiticular RQ value. This five-tierscale uses the five RQ levels of 1, 10,100, 1000, and 5000 pounds originallyestablished pursuant to CWA section311 (see 40 CFR Part 117). Eachsubstance receives several tentative RQvalues based on its particularproperties. 2 The lowest of all of the
I As Senate Report No. 848. 98th Congress,Second Session (1980) notes at page 29: "Indetermining reportable quantities under thisparagraph [section 3(a)(2) of S. 14801, the Presidentmay consider any factors deemed relevant toadministering the reporting requirements or thePresident's other responsibilities under this Act."
2If available evidence shows that a substancehydrolyzes into a reaction product that is more
tentative RQs becomes the "primarycriteria RQ" for that substance.
For a more detailed discussion of theprimary criteria, see the preamble of theMay 25, 1983 NPRM (48 FR 23562-23565),the preamble of today's final ruleadjusting reportable quantities (SectionV.D.1), and the Technical BackgroundDocument to Support RulemakingPursuant to CERCLA Section 102,available for inspection jat Room S-325,U.S. Environmental Protection Agency,401 M Street, SW, Washington, D.C.20460.
After the primary criteria RQs areassigned, substances are furtherevaluated for their susceptibility tocertain extrinsic degradation processes.These extrinsic processes arebiodegradation, hydrolysis, andphotolysis, or "BHP." These processes ofdegradation tend to reduce the relativepotential for harm to public health andwelfare and the environment of manyhazardous substance releases. Ifsubstances have primary criteria RQsalready at the maximum assignablelevel of 5000 pounds or are found to bebioaccumulative, environmentallypersistent, highly reactive (or otherwiseunusually hazardous), or degradable tomore hazardous products, theirsusceptibility to degradation isconsidered only in relation to theprimary criteria analysis (see footnote2), and they are not eligible for a one-level RQ increase on the basis of BHP.On the other hand, if analysis indicatesthat an eligible substance degradesrelatively rapidly to a less harmfulsubstance or compound through one ormore of these processes when it isreleased into the environment, theprimary criteria RQ is raised on thebasis of BHP. The single RQ assigned toeach substance on the basis of theprimary criteria and BHP becomes theadjusted RQ for the substance.
The portion of Table 302.4 (40 CFR302.4) printed in this Notice lists only,those CERCLA hazardous substancesfor which adjusted RQs are beingproposed in this rulemaking. The tableshows both the statutory RQ currentlyin effect and the proposed adjusted RQfor each substance.
For a more detailed discussion of theBHP criteria and their use in
hazardous than the original substance, the primarycriteria are applied to the more hazardous reactionproduct rather than to the original substance todetermine the tentative RQ values for the originalsubstance. For example, substances known togenerate hydrogen sulfide or phosphine uponhydrolysis are assigned primary criteria RQs on thebasis of these degradation products. Application ofthe primary criteria to the reaction products ratherthan to the original substances occurred in fourcases for the substances for which this NPRMproposes adjusted RQs.
combination with the primary criteria.see the preamble of the May 25, 1983NPRM (48 FR 23565), the preamble oftoday's final rule adjusting reportablequantities (Sections V.C.1. and V.D.2.),and the Technical BackgroundDocument to Support RulemakingPursuant to CERCLA section 102,available for inspection at Room S-325,U.S. Environmental Protection Agency,401 M Street, SW, Washington, D.C.20460.
C. Substances for Which Adjusted RQsAre Being Proposed
The 105 substances for which thisNPRM proposes adjusted RQs have allbeen evaluated for potential chronictoxicity and/or potentialcarcinogenicity. This section describesthe process by which EPA selected these105 substances for proposal in thisNPRM.
Prior to the May 25, 1983 NPRM, EPAidentified a number of CERCLAsubstances that potentially exhibitedchronic toxicity or carcinogenicity (orboth). Lists of these substances weresubmitted to EPA's EnvironmentalCriteria and Assessment Office (ECAO)for further chronic toxicity analysis andto EPA's Carcinogen Assessment Group(CAG) for further carcinogenicityanalysis. EPA identified the potentiallychronically toxic substances using avariety of EPA background documents,reports prepared by state agencies, andother sources. EPA identified thepotential carcinogens using theMonographs of the International Agencyfor Research on Cancer and the Firstand Second Annual Reports onCarcinogens of the National ToxicologyProgram, U.S. Department of Health andHuman Services.
For further information concerning theselection of substances for ECAO andCAG review, see the TechnicalBackground Document to SupportRulemaking Pursuant to CERCLASection 102, available for inspection atRoom S-325, U.S. EnvironmentalProtection Agency, 401 M Street, SW,Washington, D.C. 20460.
Because all of the potentialcarcinogens and many of the potentialchronic toxicants (as identified at thattime] were undergoing evaluation whenthe May 1983 NPRM was published,these substances retain their statutoryRQ levels in the final rule published intoday's Federal Register. Analysis isnow completed, however, for thesubstances that were being evaluatedfor chronic toxicity in May 1983. Inaddition, CAG has performed a moredetailed and more critical review ofavailable data than the initial review
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used to place the substances on theCAG list. The CAG assessmentdetermined that there is no soundevidence of potential carcinogenic effectfor a number of the substances on thelist.
The 105 substances in this NPRMconsist of substances that have beenevaluated for chronic toxicity and,where appropriate, assigned a chronictoxicity ranking, and substances forwhich CAG has determined that nosound evidence of potentialcarcinogenicity exists. Becauseassessments under all primary and BHPcriteria have been completed for these105 substances, proposing RQadjustments is appropriate at this time.The portion of Table 302.4 printed in thisNPRM lists only the CERCLAsubstances for which adjusted RQs arebeing proposed in th is rulemaking. Thetable indicates both the RQ leveloriginally established by CERCLA andthe proposed adjusted RQ for eachsubstance. EPA is proposing to raise theRQs of 34 specific substances and 7waste streams, lower the RQs of 31specific substances, and leave the RQsof 33 specific substances at their originallevels.
D. ICR SubstancesAs noted in the preamble to the final
rule on RQs published elsewhere intoday's Federal Register, the obligationto report releases into the environmentof substances exhibiting the RCRAcharacteristics of ignitability,corrosivity, or reactivity ("ICR") (see 40CFR 261.21-261.23) 3 has been thesubject of some confusion. Undersection 103(a) of CERCLA, the person incharge of a vessel or facility must notifythe NRC of the release of a "hazardoussubstance." The term "hazardoussubstance" includes all substancesdesignated in § 302.4 of today's finalrule as well as wastes exhibiting the ICRcharacteristics under RCRA. Therefore,the release of a non-designatedsubstance exhibiting an ICRcharacteristic is the release of ahazardous substance only if thesubstance is a waste. If a non-designated ICR substance is spilled andimmediately cleaned up for repackaging,reprocessing, recycling, or reuse, it is nota waste and the spill need not bereported (see 45 FR 78540, Nov. 25, 1980).However, if the substance is not cleanedup, or is cleaned uplfor eventualdisposal, it is then a waste (and thus a
3 Substances exhibiting the characteristic ofextraction procedure (EP) toxicity are not at issuehere, because the chemicals at which the EP toxicitytest is aimed are all specifically designated ashazardous under section 302.4 of today's final rule.
hazardous substance) which has beenreleased to the environment and must bereported if the release equals or exceedsthe RQ.
The Agency acknowledges that theMay 25, 1983 NPRM may not have beenclear on this point. Accordingly, we arenow proposing to create a separate RQfor releases of non-designatedsubstances which are not wastes priorto their initial release but which exhibitan ICR characteristic. We propose to setan RQ of 100 pounds for such releases.This is the same RQ that has beenestablished for ICR substances that arewastes prior to their initial release, asthe environmental impact of a release ofa substance exhibiting an ICRcharacteristic does not depend onwhether that substance was a wasteprior to its release. We hereby solicitpublic comment on whether a differentRQ is warranted. Of course, if thesubstance is recovered for purposes ofrecycling or use as a product, it neverbecomes a waste (or a hazardoussubstance) and thus is not subject toreporting requirements.
EPA recognizes that transporters maynot be aware that products they arecarrying exhibit ICR characteristics. Weacknowledge that in order for a criminalprosecution to be warranted, the personin charge must have known orreasonably should have known that thesubstance was a hazardous substance.Accordingly, EPA would enforce thereporting requirement for releases bytransporters of non-designatedsubstances exhibiting an ICRcharacteristic only if the substance waslabeled as hazardous under DOT orState regulations or if othercircumstances put the transporter onnotice that a hazardous substance wasreleased. If a product which is solabeled is spilled in excess of thereportable quantity of 100 pounds (orsuch other RQ as may be finallypromulgated) the transporter will beliable for failure to report, if it turns outthat the waste exhibiting an ICRcharacteristic was released to theenvironment in excess of the RQ.
As noted in the preamble to today'sfinal rule, pending completion of finalrulemaking on this proposal, noticegiven to the NRC pursuant to 49 CFR171.15, if required under that section, ofthe release of a non-designatedsubstance that is not a waste prior to itsinitial release, will be deemed to satisfythe reporting requirements of section103(a) of CERCLA. Note that this policydoes not apply to the, release of non-designated substances which exhibit anICR characteristic and which are wastesprior to their initial release. Such
releases must be reported if they areequal to or in excess of the 100-poundRQ. See § 302.5(b) of today's final rule.
III. Reportable Quantity AdjustmentsUnder Section 311 of the Clean WaterAct
The final rule published elsewhere intoday's Federal Register amends 40 CFR§ 117.3 to make reportable quantitiesadjusted under CERCLA the applicablereportable quantities for notification ofdischarges of hazardous substancespursuant to Clean Water Act section311. Thus, when made final, the RQadjustments proposed in this rulemakingwill apply to both CERCLA and CWAsection 311 RQs. Reportable quantitiesunder both statutes are set forth inTable 302.4. A single report of a releaseinto navigable waters to the NationalResponse Center by the person in chargewill satisy the notification requirementsof both statutes. (For a furtherdiscussion of the relationship betweenCERCLA RQs and CWA section 311RQs, see the May 25, 1983 NPRMpreamble at 48 FR 23569.]
IV. Summary of Supporting Analyses
Rulemaking protocol under ExecutiveOrder 12291 requires that proposedregulations be classified as major ornon-major for purposes of review by theOffice of Management and Budget.According to E.O. 12291, major rules areregulations that are likely to result in:
(1) An annual effect on the economyof $100 million or more; or
(2) A major increase in costs or pricesfor consumers, individual industries,federal, state, or local governmentagencies, or geographic regions; or'
(3) Significant adverse effects oncompetition, employment, investment,productivity, innovation, or on theability of United States-basedenterprises to compete with foreign-based enterprises in domestic or exportmarkets.An economic analysis performed by theAgency, available for inspection atRoom S-325, U.S. EnvironmentalProtection Agency, 401 M Street, SW,Washington, D.C. 20460, shows thattoday's proposed regulation is non-major, because adoption of the proposedrule will result in additional net costsavings (beyond those provided bytoday's final rule) of approximately $1.3million annually. Of this amount, about$200,000 annually will be saved by'theregulated community (the remainder tobe saved by government).
The Regulatory Flexibility Act of 1980requires that a Regulatory FlexibilityAnalysis be performed for all rules thatare likely to have a "significant impact
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on a substantial number of smallentities." This NPRM proposes adjustedRQs for substances that have asubstantially lower total productionvolume than the substances receivingadjusted RQs in today's final rule. Theeconomic effects as estimated in EPA'sanalysis are proportional to productionvolume. Thus, the impact of theproposed rule on small entities will besubstantially less than the impact of thefinal rule. The analysis of the final ruledemonstrated that the final rule will nothave a significant impact on smallentities. See the Regulatory ImpactAnalysis 6f Reportable QuantityAdjustments Under sections 102 and 103of CERCLA, available for inspection inRoom S-325, U.S. EnvironmentalProtection Agency, 401 M Street, SW,Washington, D.C. 20460. Therefore, aswith the final rule, EPA certifies that noRegulatory Flexibility Analysis isnecessary for the proposed rule.
The Information Impact Analysisperformed for the final rule indicatedthat the final rule would decrease the-paperwork burden imposed on partiesoutside EPA by about 50,000 hours. Abrief analysis indicates that the RQadjustments proposed by this NPRM
will provide a small additional reductionin the paperwork burden imposed on theregulated community for informationcollection associated with reportingreleases. Because the effect of thisproposed rule on the paperwork burdenis not only minimal, but also a reduction,EPA has determined that no furtherInformation Impact Analysis need beperformed.
The Office of Management and Budget(OMB) has approved the informationcollection requirements contained in thisproposed rule under the provisions ofthe Paperwork Reduction Act of 1980, 44U.S.C. section 3501 et seq., and hasassigned OMB control number 2115-0137. Submit comments on theserequirements to the Office ofInformation and Regulatory Affairs,OMB, 726 Jackson Place, NW,Washington, D.C. 20503, marked"Attention: Desk Officer for EPA." Thefinal rule will respond to any OMB orpublic comments on the informationcollection requirements.
List of Subjects in 40 CFR Part 302
Air pollution control, Chemicals,Hazardous materials, Hazardous
materials transportation, Hazardoussubstances, Intergovernmental relations,Natural resources, Nuclear materials,Pesticides and pests, Radioactivematerials, Reporting and recordkeepingrequirements, Superfund, Wastetreatment and disposal, Water pollutioncontrol.
Dated: February 13, 1985.Lee M. Thomas,Administrator.
PART 302-[AMENDED]
For the reasons ,set out in thepreamble, it is proposed to amend 40CFR Part 302 as follows:
1. The authority citation for Part 302reads as follows:
Authority: Section 102 of theComprehensive Environmental Response,Compensation, and Liability Act of 1980, 42U.S.C. 9602; sections 311 and 501(a) of theFederal Water Pollution Control Act, 33U.S.C. 1321 and 1361.
2. In Part 302, Table 302.4 of § 302.4 isamended by revising certain hazardoussubstance entries to read as follows:
TABLE 302.4 - LIST OF HAZARDOUS SUBSTANCES AND REPORTABLE QUANTITIES
Unlisted Hazaidous W astes ....................................................Characteristic of EP Toxicity ....................................Selenium .....................................................................
F 0 04 ........................................................................................... .......... ... ............................ ...................The following spent non-halogenated solvents and
the still bottoms from the recovery of thesesolvents: (a) Cresols/Cresylic acid (b)Nitrobenzene
FO 5 ...........................................................................................................................................................................The following spent non-hatogenated solvents and
the still bottoms from the recovery of thesesolvents: (a) Toluene (b) Methyl ethyl ketone (c)Carbon disulfide (d) Isobutanol (a) Pyridine
K026 ........................................................................................................................................... .............Stripping still tails from the production of methyl
ethyl pyridinos
K039 ............................................................................................................................ ...............Filter cake from the filtration of
diethylphosphorodithioic acid in the production ofphorate
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Hazardous
TABLE 302.4 - LIST OF HAZARDOUS SUBSTANCES AND REPORTABLE QUANTITIES-Continued
Statutory
Substance CASRN Regulatory Synonyms R C WCRAI0 Code tNWaste
I ________________________________ ____I Number
Proposed R0
Catego.j Pounds(Kg)
Tar* bottoms (loeaded) from the petroleum refiningindustry
K087 ....... ................................................................................. .................... ... ............ .............................. ...................................................... 1 4 K 087 B 100 (45.4)anter tank ar sludge from cong operations ... . ...
t - dcaltes the statutory source as defined by 1.2. 3. or 4 belowtt - no reporting of releases of this hazardous substance is required If the diameter of the pieces of the solid metal released is equal to or exceeds 100 miciometers 10.004 inches)I : Indicates that the Statutory Source for designation of this hazardous substance under CERCLA is CWA Section 311 (b)(4)2 iicates that the statutory source for designation of this hazardous substance under CERCLA is CWA Section 307(a)3 - indictes that the statutory source for designation of this hazardous substance under CERCLA Is CAA Section 1124 Indicates that the statutor source for designation of this hazardous substance under CERCLA Is RCRA Section 30011" indicates that the 1-pound RO Is a CERCLA statutory RO