environmental protection agency · u.s. environmental protection agency (epa). action: final rule....

TuesdayJuly 24, 1990

Part VII

EnvironmentalProtection Agency40 CFR Parts 302 and 355Reporting Continuous Releases ofHazardous Substances, Final Rule

Federal Register / Vol. 55, No. 142 / Tuesday, July 24, 1990 / Rules and Regulations

ENVIRONMENTAL PROTECTIONAGENCY

40 CFR Parts 302 and 355

[FRL 3635-3]

Reporting Continuous Releases ofHazardous Substances

AGENCY. U.S. Environmental ProtectionAgency (EPA).ACTION: Final rule.

SUMMARY: Section 103(a) of theComprehensive EnvironmentalResponse, Compensation, and LiabilityAct of 1980 (CERCLA), as amended,requires that the person in charge of avessel or facility from which ahazardous substance has been releasedin a quantity that is equal to or greaterthan its reportable quantity (RQ) shallimmediately notify the NationalResponse Center (NRC) of the release.Section 102(b) establishes an RQ of onepound for hazardous substances, exceptthose substances for which RQs havebeen established at other levelspursuant to section 311(b)(4) of theClean Water Act. Section 102(a)authorizes the U.S. EnvironmentalProtection Agency (EPA) to adjust RQsfor hazardous substances and todesignate as hazardous substancesthose substances that, when releasedInto the environment, may presentsubstantial danger to the public healthor welfare or the environment. Inaddition to the reporting requirementsunder CERCLA. section 304 of theEmergency Planning and CommunityRight-to-Know Act (EPCRA) or Title IHof the Superfund Amendments andReauthorization Act of 1986 (SARA)requires that releases of hazardoussubstances in quantities equal to orgreater than their RQs (or one pound if areporting trigger is not established byregulation) be reported to State andlocal authorities.

Section 103(f)(2) of CERCIA providesrelief from the reporting requirements ofsection 103(a) for a release of ahazardous substance that is continuous,stable in quantity and rate, and either isa release from a facility for whichnotification has been given undersection 103(c) or is a release for whichnotification has been given undersection 103(a) for a period sufficient toestablish the continuity, quantity, andregularity of the release. Section103(f)(2) provides further that in suchcases, notification shall be givenannually or at such time as there is anystatistically significant increase in thequantity released of any hazardoussubstance. Relief from reporting undersection 103 also applies to notification

required under section 304 of SARATitle m. This final rule presents theAgency's interpretation of the section103(f)(2) reporting requirements.EFFECTIVE DATE: September 24, 1990.

The information collectionrequirements contained in 40 CFR 302.8and 40 CFR 355.40 have been approvedby the Office of Management andBudget (OMB) and have been assigned

'the control numbers 2050-0086 and2050-0092.ADDRESSES: The toll-free telephonenumber of the National Response Centeris 800/424-8802; in the Washington, DCmetropolitan area, the number is 202/267-2675.

The record supporting this rulemakingis available for public inspection at theU.S. Environmental Protection Agency,Superfund Docket-Room 2427, 401 MStreet, SW., (OS-240, Washington, DC20460 (Docket Number 103(f)CR). Thedocket may be inspected between 9 a.m.and 4 p.m. Monday through Friday,excluding Federal holidays. To reviewdocket materials, you may make anappointment by calling 202/382-3040.The public may copy a maximum of 50pages from any regulatory docket at nocost. Additional copies cost $.20 perpage.FOR FURTHER INFORMATION CONTACT:Mr. Hubert Watters, Project Officer,Response Standards and CriteriaBranch, Emergency Response Division(OS-210, U.S. Environmental ProtectionAgency, 401 M Street SW., Washington,DC 20460, 202/382-2463; or the RCRA/Superfund Hotline, 800/424-9346; inWashington, DC, 202/382-3000. TheTelecommunications Device for the Deaf(TDD) Hotline numbers are toll-free 800/553-7672 or 202/475-9652 in theWashington, DC metropolitan area.

To request a copy of the informationpacket available on this regulation,including further explanations of thereporting requirements and an IBM-compatible computer disk that may beused to complete the written reportsrequired under today's final rule, contactthe RCRA/Superfund Hotline or theTelecommunications Device for the Deaf(TDD) Hotline at the numbers listedabove.SUPPLEMENTARY INFORMATION: Thecontents of today's preamble are listedin the following outline:

1. IntroductionA. Statutory AuthorityB. Background of this RulemakingC. Organization of the Final Rule

I. Continuous Release ReportingRequirements

A. General Requirements OverviewB. Key Concepts Included in the Final Rule

1. Continuous Releases

2. Stable in Quantity and Rate3. Reporting Requirements4. Statistically Significant Increases

C. Relationship to Reporting Under SARATitle III

D. Multiple Concurrent ReleasesE. Adlministrative Reporting Exemptions

Ill Comments on the Federally PermittedRelease Rule

IV. Regulatory CostsV. Summary of Supporting Analyses:

A. Executive Order No. 12291B. Regulatory Flexibility ActC. Paperwork Reduction Act

List of Subjects

L Introduction

A. Statutory Authority

The Comprehensive EnvironmentalResponse, Compensation, and LiabilityAct of 1980 (CERCLA) (Pub. L 96-510),42 U.S.C. 9601 et seq., as amended bythe Superfund Amendments andReauthorization Act of 1986 (SARA)(Pub. L. 99-499), establishes broadFederal authority to respond to releasesor threats of releases of hazardoussubstances from vessels and facilities.Section 101(14) of CERCLA defines theterm "hazardous substance" byreference to other environmentalstatutes with authority further grantedto the Administrator of the U.S.Environmental Protection Agency (EPA)to designate additional hazardoussubstances under CERCLA section102(a). The CERCLA list currentlycontains 724 hazardous substances, plus1500 radionuclides.

Section 102(b) of CERCLA establishesRQs at one pound for releases ofhazardous substances except for thosesubstances for which RQs wereestablished at a different level pursuantto section 311(b)(4) of the Clean WaterAct (CWA). Section 102(a) of CERCLAauthorizes the EPA Administrator toadjust all of these RQs by regulation(See 40 CFR 302.4). Sections 103(a) and(b) of CERCLA require that, as soon asthe person in charge of a vessel orfacility has knowledge of a release of ahazardous substance from such vesselor facility-in a quantity equal to orgreater than the RQ for that substancethat person shall notify the NationalResponse Center (NRC). Thisnotification informs the government of arelease so that government personnelcan evaluate the need for a fieldresponse and undertake any necessaryresponse action in a timely fashion.Under section 104 of CERCLA. theFederal government may respondwhenever there is a release or asubstantial threat of a release of ahazardous substance into theenvironment. Response activities are tobe taken, to the greatest extent possible,

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in accordance with the National Oil andHazardous Substances PollutionContingency Plan (NCP) (40 CFR part300), which was developed originallyunder the CWA and which has beenrevised to reflect the responsibilities andauthority created by CERCLA.

Section 104(e(ZJ(BJ of CERCIA givesthe Agency the authority to requirepersons who have or may have relevantinformation to furnish information ordocuments upon reasonable noticerelating to the nature or extent of arelease or threatened release of ahazardous substance, or pollutant orcontaminant at or from a facility orvessel. If consent is not grantedregarding any refuest for information ordocuments made under section104(el 2(B), the Agency may issue acompliance order under section104(eR5l.

Section 103(fK21 ofCERCLA modifiesthe general notification requirements ofsection 103[a). for certain releases.Releases may be reported lessfrequently than otherwise would berequired, if they are "continuous" and"stable in quantity and rate." and ifnotification has been given undersection WOtaJ "for a period sufficient toestablish the continuity, quantity, andregularity" of the release.' Section103(f)(2) pertains only to releases thatare continuous and stable in quantityand rate, and requires that reports bemade "annually, or at such a time asthere is any statistically significantincrease" in the quantity of thehazardous substance released'abovethat previously reported or occurring.

In addition to reporting requirementsestablished by CERCLA. section 304 ofthe Emergency Planning and CommunityRight-to-Know Act (EPCRAI or Title BYof the Superfund Amendments andReauthorization Act of 1986 (SARAJrequires the owner or operator of certainfacilities to report releases of extremelyhazardous substances (EHSs) andCERCLA hazardous substances to Stateand local entities. SARA Title III section304 notification must be givenimmediately after a release of an RQ ormore (one pound or more if a reportingtrigger is not established by regulationJ.The notification is to be given to thecommunity emergency coordinator foreach local emergency planningcommittee (LEPCI for any area likely tobe affected by the release, and to the

& Section 103L(2). also allows releases to bereported less often if notification has been givenunder section 103(c}, which requires notification to,the Federal gvernm ant of the existence of cartainfacilities that are or have been used for storasge.treatment, or disposal of hazardous substances butdo not have Resource Conservatfon and RecoveryAct (RCRA} interim status ore RCRA permit.

state emergency response, commission(SERC) of any State likely to be affectedby the release. SARA Title BY section304 notification requirements apply onlyto releases of EHSs and CERCLAhazardous substances (defined at 40CFR part 355 Appendices A and B and§ 302.4, respectivelyl. that have thepotential for off-site exposure.

Section 10g of CERCLA and section325 of SARA Title Iff authorize EPA toassess civil penalties for failure to reportreleases of hazardous substances thatequal or exceed their RQs. Section103(b) of CERCLA, as amendedauthorizes EPA to seek criminalpenalties for-failuire to report releases ofhazardous substances and forsubmitting false or misleadinginformation in a notification madepursuant to CERCLA section.103, andestablishes the maximum penalties andyears of imprisonment for violation ofthe CERCLA section 103 reportingrequirements.

B. Rackg ound of ti& Ridwrtxkirrg

On May 25.1983, EPA published aNotice of Proposed Rulemaking (NPRMl(48 FR 235521 to clarify procedures forreporting releases and to adjust RQs for387CERCLA hazardous substances. Inthe preamble to the May 25,, 1983 NPRM.the Agency discussed the reportingrequirements for continuous releasesand specifically requested comments ona number ofissues, seeking informationthat would enable, EPA to develop asystem that imposed a minimal burden.on both the regulated community andthe government, while achieving the.underlying statutory objectives. Thereporting, requirements for continuousreleases-were discussed again in thepreamble to a final rule adjusting RQs,published on April 4, 1985 (50 FR 13456J.EPA noted that due to the complexity ofthe issues, the Agency would study thecontinuous release reportingrequirements further and would notpromulgate, at that time, a regulationrelated to continuous releases.

On April 19, 1988, EPA published aproposed rule (53 FR 128681 presentingthe Agency's interpretation of section103(f(2) and responding to commentsmade in. response to the May 25, 1983NPRM. The official public commentperiod for the April 19, 1988 proposedrule ended on June 20, 1988. EPAreceived a total of 29 comment letters,including three letters received after theclose of the official comment period. Thecomments received together with theAgency's responses, are contained in thedocument, "Responses to Comments onthe April 19, 198 Notice of ProposedRulemaking on Reporting Continuous

Releases of Hazardous Substances'(Responsea to Comments), which isavailable for inspection at the US.Environmental Protection Agency.Superfund Docket-Room 2427. 401 MStreet., SW., Washington, DC 20460(Docket Number 13(f)CRJ.

Today, the Agency is promulgating thefinal rule on reporting of continuousreleases. In. preparing this rule, EPAconsidered all of the public commentssubmitted on the April 19,1988 proposedrule. These comments are addressed insections II- V of this preamble. SectionV provides a summary, of the analysessupporting today's rule.

EPA notes that although releasesclaimed to be continuous may qualifyfor reduced reporting under section103(f }, such releases are not permittednor are they necessarily risk-free- (Seethe Notice of Proposed Rulemaking onReporting Exemptions for FederallyPermitted Releases of HazardousSubstances (53 FR 27268; July 1l9 198W)f.Als other provisions of the Act mayapply even where CERCLA does notrequire notification. For example aparty responsible for releasing aCERCLA hazardous substance that isnot a federally permitted release isliable for the costs of cleaning up, thatrelease and for any natural resourcedamages, even if the release is notsubject to the notification requirementsof CERC . Similarly, proper reportingof a release in accordance with section103(a) or section 103(f)(2) does notpreclude liability for cleanup costs. Thefact thata release of a hazardoussubstance, is reported properly or, that itis not subject to the notificationrequirements of CERCIA will notpreclude: EPA or other governmentagencies from seeking reimbursementunder section 107 for, the cost of cleanupfrom parties responsible. for the: release,or from pursuing an enforcement actionagainst those parties pursuant to section106.

This. rulemaking, therefore, should notbe interpreted as reflecting Agencypolicy or the applicable law with respectto other provisions of the Act.Furthermore, all releases of CERCLAhazardous substances, includingfederally permitted releases, are subjectto liability provisions of State statutes,common law, and Federal statutes otherthan CERCLA.2

C. Organization of the Final Rule

Today's final rule amends 40 CFR byadding § 302.8. Section 302.8(al providesthat no notificatlion is required for

2 CERCLA section 114(a); see Senate Report No.96-848 (1980), p. 48.

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releases that qualify as continuous andthat are stable in quantity and rate,except as provided in j 302.8(c). Section302.8(b) provides definitions of termsrelevant to continuous release reporting.Section 302.8(c) lists all of thenotification requirements for continuousreleases. Section 302.8(d) requires theperson in charge of a facility or vessel toestablish the continuity and stability ofthe release and to notify the NRC bytelephone to alert governmentauthorities that the release will bereported as a continuous release underCERCLA section 103(f)(2). Section302.8(e) requires the submission of aninitial written notification to theappropriate regional EPA office to reportbaseline release information. Section302.8(f) requires that a one-time follow-up report 3 be submitted on the firstanniversary of the initial written report.Subsequent reports, under § 302.8(g) and(h) are required only when there is achange in the release, and at such timesas there is an increase in the releasethat is statistically significant as definedin § 302.8(b). Initial written notificationand the subsequent one-time follow-upnotification are to be made under§ 302.8(e) and (f) to the appropriateRegional EPA office for the geographicalarea where the releasing facility orvessel is located.

Section 302.8(e) and (f) also lists theinformation that must be submitted inthe initial written report and the follow-up report, respectively, for eachsubstance that is claimed to qualify forcontinuous release reduced reporting.Section 302.8(j) provides that a copy ofthe SARA Title III section 313 ToxicRelease Inventory form may besubmitted in lieu of an initial writtenreport or follow-up report and lists theadditional information that must beincluded with the form. Section302.8(g)(1) explains that if there is anychange in the source or composition of arelease, the release is considered a&,new" release for reporting purposesand requires the submission of initialtelephone and written notifications.Section 302.8(g)(2) and (3) describes thenotification required if there is a changein any of the other informationsubmitted in the initial writtennotification and/or follow-upnotification, other than a change insource or composition. Section 302.8(h)requires that notice of a statistically

3 The one-time follow-up report required underCERCLA section 103(f)(2) for releases claimed to becontinuous does not take the place of. and shouldnot be confused with, the written notice that isrequired under SARA section 304(c) to provideSERCs and LEPCs with additional information onepisodic releases reported under SARA section304(b).

significant increase be made to the NRCand the release be identified as astatistically significant increase in acontinuous release. Section 302.8(k)explains that the person in charge mayrely on engineering estimates, theoperating history of the facility orvessel, or any currently availablerelease data to support the notifications,required in.§ 302.8(c), and provides thatdocumentation supporting thecontinuous release determination andall notifications and evaluations shall bekept on file for one year at the facilityor, in the case of a vessel, at an office inthe United States in a port of call orplace of regular berthing. Thedocumentation must be made availableto EPA upon request to enforce therequirements of § 302.8. Section 302.8(1)

* explains the reporting requirements formultiple concurrent releases undertoday's rule.

Today's rule also amends 40 CFR part355 to identify the SERC and LEPC asthe recipients of the initial continuousrelease reports, reports of statisticallysignificant increases, and reports ofchanges in the source, composition, ornormal range of the release, and toindicate that continuous releases areotherwise exempt from SARA Title IIIsection 304 embrgency releasenotification. 40 CFR part 355 alsoprovides references to today's changesto 40 CFR part 302. (For furtherexplanation of the relationship of SARATitle III section 304 notification toCERCLA section 103 reporting, seesection II.C of today's preamble.)

II Continuous Release ReportingRequirementsA, General Requirements Overview

CERCIA notification provisionscreate a reporting process that informsgovernment officials of releases thatrequire immediate evaluation todetermine the need for response action.The RQ reporting triggers are not inthemselves assessments of the riskassociated with releases of hazardoussubstances. The actual hazards willvary with the circumstances of theparticular release, and many factorsother than the size of the release couldinfluence the government's response.

Accordingly, the primary purpose ofCERCIA's notification requirements isto alert government officials to releasesthat may require timely and properresponse action in order to prevent ormitigate damage to public health orwelfare or the environment. The purposeof section 103(f)(2) is to reduceunnecessary release notifications.Section 103(f)(2) contemplates that, ingeneral, if a release is continuous and

stable in quantity and rate, Federalofficials should not have to be notifiedeach time the release occurs to decidewhether a response is needed. Thus,instead of reporting every release thatequals or exceeds the RQ as it occurs,the person in charge of a vessel orfacility is allowed to report less often forcontinuous and stable releases.

Nevertheless, governmentresponseauthorities will continue to need somenotification of hazardous substance.releases that equal or exceed their RQson a continuous basis. Today's rule,therefore, requires four kinds ofnotification of a continuous release: (1]Initial telephone and writtennotifications; (2) a written follow-upreport to the appropriate EPA RegionalOffice on the first anniversary of theinitial written notification; (3)notification of changes in the source orcomposition of the release or othersubmitted information; and (4)immediate reports of any statisticallysignificant increase (SSI) in the release.Under today's rule, an SSI is defined asa release, within a 24-hour period, thatexceeds the upper bound of thepreviously reported normal range of therelease. The normal range is defined asthe range of releases (in pounds orkilograms) reported or occurring overany 24-hour period under normaloperating conditions during the previousyear. An SSI in the release must bereported to the NRC, SERC, and LEPC assoon as the person in'charge hasknowledge that the release hasoccurred.

An annual evaluation of eachhazardous substance release beingreported under the provisions of today'sfinal rule must be made within 30 daysof the anniversary date of the initialwritten notification. The annualevaluation must consider and verify theinformation concerning the releaseduring the period since the submissionof the follow-up report or previousannual evaluation. No further reportingis required, however, unless a changehas occurred in the composition orsource(s) of the release or in othersubmitted information. The type ofnotification required when a change inthe release occurs varies according tothe nature of the change. (Reportingrequirements for changed releases under40 CFR 302.8(h) are described in sectionII.B.3.of today's preamble.)

Notification must be made by: (1) Theowner or operator of a facility for whichinitial notification of the release hasbeen provided under section 103(c), or(2) the current person in charge'of thevessel or facility for which the initialnotification was made under section

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103(a) and for which the initial writtenreport was made establishing thecontinuity, stability, and regularity ofthe release. The person in charge of thevessel or facility, of course, always hasthe option of reporting continuousreleases under CERCLA section 103(a)and SARA Title III section 304 as theyoccur.

Reporting under section 304 of SARATitle I is closely tied to reporting underCERCLA section 103. All releases ofCERCLA hazardous substances,including EHSs that are also CERCLAhazardous substances, that must bereported under CERCLA section 103(a)must also be reported to SERCs andLEPCs under the provisions of SARATitle III section 304, if the releases havea potential for off-site exposure.Releases of other EHSs, that are notCERCLA hazardous substances, must bereported to SERCs and LEPCs if theyoccur in a manner that would requirenotification under CERCLA section103(a). Similarly, releases exempt fromreporting under CERCLA section 103(a),such as federally permitted releases, orreleases subject to reduced reportingrequirements under CERCLA section103(f)(2), are not subject to SARA TitleIII section 304 reporting.

Owners and operators of facilitiessubject to the notification requirementsof SARA Title III section 304 mustqualify releases as continuous andstable under today's definitions bysubmitting initial telephone and initialwritten notifications to SERCs andLEPCs. The CERCLA section 103(fj(2)one-time follow-up report does not applyto facilities subject to the provisions ofSARA Title II section 304 and,therefore, the owners and operators ofsuch facilities are not required to submitthis follow-up report on continuousreleases to the SERC or LEPC. EPA,however, will make the information inthe continuous release follow-up reportsavailable to the SERCs and LEPCs,should they wish to receive it.

B. Key Concepts Included in the FinalRule

1. Continuous ReleasesUnder today's final rule, EPA defines

..continuous" as a release that occurswithout interruption or abatement orthat is routine, anticipated, andintermittent during normal operations ortreatment processes.

In the April 19, 1988 proposed rule,EPA proposed to define "continuous" asa release that is (1) continuous withoutinterruption or abatement; (2)continuous during operating hours; or (3)continuous during regularly-occurringbatch processes. The period over which

releases were to be evaluated was 24hours.

EPA Indicated In the April 19, 1988NPRM. however, that it was aware ofsituations In which certain routine,anticipated, intermittent releases arepredictable and stable with respect toquantity, rate, and time of occurrence.EPA listed as examples releases that arestable in quantity and rate and thatresult from (1) production of a batch of asubstance at the same time every week;(2) startup of a machine every workdaymorning and its shutdown everyworkday evening; and (3) use of ahazardous substance at a facility everyday or at the same time every week. TheAgency stated that it believed that per-occurrence reporting of such releaseswould not enhance the ability of the Oiland Hazardous Substances Coordinator(on-scene coordinator or OSC) todetermine whether a field response isnecessary. Consequently, EPA indicatedin the April 19, 1988 proposed rule that itwould consider allowing these routine,anticipated, intermittent releases to bedeemed "continuous" releases and thussubject to the reduced reportingrequirements of section 103(f)(2).

The Agency described and solicitedcomments on two options under whichroutine, anticipated, intermittentreleases that are predictable and stablein quantity, rate, and time of occurrencewould qualify for the reduced reportingrequirements under section 103(f)(2).Under the first option, the Agencyproposed to grant an administrativeexemption from section 103(a) reportingfor such releases on the basis thatresponse officials would not needinformation about routine, anticipated,intermittent releases on a per-occurrence basis. Thus, such releaseswould not be defined as "continuous"releases, but would be subject toanalogous requirements pursuant toEPA's general rulemaking authorityunder CERCLA. Under the secondoption, EPA proposed to define"continuous" to include these routinereleases. The effect of both optionswould be the same: Routine, anticipated,intermittent releases that arepredictable and stable in quantity andrate would be subject to reducedreporting requirements.

EPA received twenty letterscontaining comments on the proposeddefinition of "continuous." All of thecommenters stated that routine,anticipated, intermittent releases thatare incidental to normal plantoperatiofis should be considered"continuous" releases. The commentersstated that, based upon the operatinghistory of a plant, a number of routinereleases from various kinds of normal

plant operations and processes areanticipated in the normal course ofoperations and are predictable in termsof quantity, quality, nature, andfrequency of occurrence. Examplesprovided by commenters includereleases associated with: batchprocesses; shutdowns for scheduledmaintenance; catalyst changeouts;loading and unloading, decompressionof pressure vessels; drawing off of liquidat regular intervals during a productionprocess; venting that occurs each time astorage tank is filled; removal of fly ashor dust from pollution control devices;and cyclical operations at productionfacilities. Most of these commentersurged the Agency to define "continuous"to include such releases rather thancreating an administrative exemption.

EPA agrees with the commenters thatroutine, anticipated, intermittentreleases incidental to normal plantoperations or treatment processes couldhave a high degree of regularity andpredictability associated with them.Routine, anticipated, intermittentreleases that are also stable in quantityand rate do not require per-occurrencereporting to the NRC. Expanding thedefinition of continuous to include suchreleases is consistent With thefundamental purpose of CERCLAsection 103(a) reporting requirements,which is to alert government responseofficials to releases that requireimmediate evaluation to determinewhether a field response may benecessary. A release that occurs in thecourse of normal operations ortreatment processes and is predictableand regular in terms of frequency,quantity, and rate does not requireimmediate evaluation. The initialnotifications and the follow-up report,combined with immediate notification ofSSIs will provide response authoritiessufficient information to evaluate andrespond to the release, if necessary.Moreover, EPA interprets the term"continuous" as used in section 103(f)(2)as distinguishing releases that areroutine and regular from releases thatare episodic and variable. Thus, theterm "continuous" encompasses -releases thai are routine, anticipated,intermittent releases, as well as releasesthat are uninterrupted. In the final rule,therefore, the Agency has defined"continuous" to include such releases.Also, EPA believes that releases that arecontinuous during operating hours orregularly-occurring batch processes areroutine, anticipated, intermittentreleases and, therefore, It is notnecessary to list these two types ofreleases as separate parts of thedefinition of continuous; Accordingly,

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the definition in today's final rule doesnot include the descriptions of thesereleases.

Episodic releases, such as thoseassociated with accidents, emergencyshutdowns, or pipe ruptures, however,are not routine or regular and do notcome within the definition ofcontinuous. Such releases in an RQ ormore must be reported to the NRC,SERC, and LEPC as soon as the personin charge is aware that they haveoccurred.

Many commenters objected to whatthey perceived as a focus in theproposal on the time of the occurrenceof an intermittent release rather than thetiming of the release. Commenters notedthat certain batch processes occur at thesame point In a predictable sequence,but do not occur necessarily at the sametime of day or on the same day of theweek. One commenter cited the exampleof pharmaceutical manufacturingprocesses that may occur once every 32hours, rather than at an exact timewithin a 24-hour or week-long period.Other batch operations, according to thecommenter, vary in duration, dependingon the specific characteristics of theproduct and the size of the order.Releases from these kinds .of processes,the commenters concluded, althoughpredictable in terms of timing ratherthan time, are the kinds of routine,anticipated releases that should comewithin the definition of continuous.

EPA agrees with the comment that itis not necessary for a release thatotherwise satisfies the definition ofcontinuous to always occur at the sametime. Under today's final rule, a releasethat is predictable with respect to timingis a release that recurs either at aspecified time, or at a specific interval,or in association with an anticipatedevent. In order to qualify a release as"continuous" under today's final rule,therefore, the person In charge mustdescribe in the Initial written report andone-time follow-up report the pattern ofcontinuity, including a description of thetiming of the release in terms of thefrequency of the release and the fractionof the release from each release sourceand the period during which it occurs.Under today's final rule, for example, ahazardous substance release may becontinuous if it occurs during a processthat is run infrequently but atanticipated intervals that depend on themarket demand for a product. Thus, thefinal rule is sufficiently flexible toencompass emissions, such as thosefrom batch processes described above,that are predictable in terms of timing,but do not necessarily occur at the sametime of week or month.

2. Stable in Quantity and RateIn order for a release to qualify for

reporting under CERCLA section103(f)(2), the person in charge of afacility or vessel must not onlydemonstrate that the release comeswithin the definition of continuous, butalso that the release is stable in quantityand rate. In the April 19. 1988 proposedrule, EPA discussed quantitative andqualitative indicators for determiningthat releases are "stable in quantity andrate." Because of the many differenttypes of releases, and the variation inthe types of facilities that may bereleasing hazardous substances in amanner that could be defined ascontinuous, EPA determined thatquantitative measures for complyingwith this statutory requirement, such asa predetermined percentage variationfrom the mean, would be difficult toestablish and insufficiently flexible.Accordingly, in the April 19, 1988 NPRM,the Agency proposed and solicitedcomments on a qualitative measureunder which a qualifying release wouldhave a "predictable quantity and rateduring normal operations" and wouldnot be "the result of malfunction orupset conditions." The Agency alsosolicited comments and supporting dataon other qualitative and quantitativemeasures that might be appropriate.Commenters, on the whole, endorsedEPA's qualitative approach to the"stable in quantity and rate"requiremenL EPA has maintained aqualitative approach in today's finalrule, and is defining "stable" as"predictable and regular."

Among other things, today's ruleallows the person in charge of a facilityor vessel to develop the basis forclaiming that a release is continuousand stable in quantity and rate. A briefstatement of the basis must be providedin the initial written and follow-upreports, and should include such factorsas the pattern of the release (e.g.,whether the release is uninterrupted oris an intermittent release, and whetherthe release results from an operatingprocedure, a batch process, or otheroperating activity). The statementshould also describe the source of theextreme values of the normal range ofreleases. For example, during the year,the minimum quantity of a release of ahazardous substance may be the resultof one batch process, whereas themaximum quantity of a release resultsfrom another process.

A commenter supported EPA'sproposal to allow the person in chargeto develop the basis for assertingcontinuity and stability, but stated thatif EPA determines that the basis is

inadequate, the Agency should mitigatepenalties for failure to notify undersection 103(a) in consideration of thegood faith effort on behalf of the personin charge. The Agency acknowledgesthat the non-quantitative definitions ofcontinuous and stable in quantity andrate rely on the professional judgment ofthe person in charge ofa facility orvessel to make and support the initialdetermination that a release iscontinuous and stable in quantity andrate. Nonetheless, information submittedto the NRC, the EPA Region, SERC, andLEPC is subject to review andverification and the Agency mayrequire modification, clarification, oradditions. Penalties for failure to notify,if appropriate, will be imposed takinginto account all factors related to theissue. The Agency agrees, however, thatif a good faith effort is made by theperson in charge to act in accordancewith the definitions of continuous andstable in quantity and rate, and if theperson in charge has also complied withthe other requirements of the continuousrelease reporting regulation and otherpertinent regulations, that these factsmay be considered when determiningany potential penalties.

Some commenters urged EPA not toequate stability with uniformity, or aconstant rate of release. Thesecommenters stated that predictabilityshould be the primary criterion fordetermining whether a release is stablein quantity and rate. One commenternoted that there are many predictablereleases that follow a decreasing rate ofrelease over time. The commenter citedthe example of the rate of release from apressurized batch reactor where the rateis likely to be greatest at the beginningof the process, when the pressure ishighest, and then to decline as thepressure decreases, until the system isstabilized. This commenter observedthat, although the rate of such fugitiveemissions is not strictly uniform, it ispredictable in the sense that the rateand amount of release vary.in basicallythe same manner each time thedecompression occurs or the process isoperated.

-Another commenter provided theexample of fugitive emissions fromvalves that occur at different rates overthe course of a production cycle as thepressure inside the system changes.These emissions can be calculated on astatistically sound basis, the commenterstated, because the owner or operatorknows that historically a given numberof valves will release a given amount ofa hazardous substance over the courseof a year.


The Agency agrees that releases neednot be uniform in quantity and rate ofemission in order to be consideredstable. Predictability and regularity arethe criteria set forth in 40 CFR 302.8(b)that define the "stable in quantity andrate" requirement. Thus, emissions suchas the releases described by thecommenters, if they are predictable andregular, may qualify for reporting underCERCLA section 103(f)(2).

Several commenters stated thatreleases from malfunctions shouldqualify for reduced reporting undersection 103(f)(2) because malfunctionssuch as leaking valves are continuousduring certain processes and occur witha certain statistical regularity. Othercommenters disagreed, stating thatmalfunctions are abnormal releases thatare not routine .or anticipated undernormal operating conditions. TheAgency believes that it is not possible todefine releases from malfunctions withsufficient precision to determine, bydefinition alone, whether they qualifyfor reporting under section 103(f)(2).Some. such releases may qualify,whereas others may indicate a problemat the facility or vessel. Thedeterminative question is whether suchreleases are both continuous and stablein quantity and rate under thedefinitions in today's final rule. Toascertain whether the release, includinga "malfunction," Is "continuous," theperson in charge must determinewhether, under the regulatory definition,it (1) occurs without interruption orabatement, or (2) is routine, anticipated,intermittent, and incidental to normalplant operations or treatment processes.If the release falls within the regulatorydefinitions of continuous, the person Incharge must make a further.determination that the release is stablein quantity and rate, i.e., predictable andregular in amount and rate of emission.For example, fugitive emissions orreleases from valves or pump seals mayqualify for reporting under section103(f)(2) if they come within thedefinitions of continuous, and areregular and predictable in the amountand rate of emissions. Determinationsabout specific releases must be basedon professional judgment andknowledge of the operating history ofthe facility or vessel.

In the initial written report and thefollow-up report, the person in chargemust include the frequency of suchreleases from each release source andthe period ovqr which they occur. Forexample, the reports may include astatement that a release from a valveoccurs every 32nd hour, i.e., whenever acertain batch process is. run, or that a

release occurs four times a year, allduring the month of May, or that arelease occurs throughout the year on amonthly basis, whenever a certainactivity occurs.

Releases that are unanticipated,episodic events, such as spills, piperuptures, equipment failures, emergencyshutdowns, or accidents would notqualify for the reduced reportingrequirements of section 103(f)(2).Although some of these releases mayoccur with some statistical frequency,episodic events are not incidental tonormal operations and, by definition,are not continuous or anticipated, andare not sufficiently-predictable orregular to be stable, and therefore donot satisfy the statutory requirements ofsection 103(f)(2). Such releases,.therefore, must be reported on a per-occurrence basis under section 103(a).

One commenter stated that theproposed definition was too narrow andsuggested that EPA should define"stable in quantity and rate" solely byreference to the definition of'statistically significant increase.". Inthis commenter's opinion, any releasethat is not an SSI should be considered"stable in quantity and rate," whether itresults from a malfunction or fromnornial operations.

The Agency does not agree. A releasemust be established as "continuous".and "stable in quantity and rate" beforeit may be reported under section103(f)(2). To qualify a hazardoussubstance release for reduced reportingunder today's final rule, the person incharge must establish the continuity andstability of the release and must submitinitial telephone and writtennotifications to the NRC, the EPARegion, the SERC, and the LEPC, Afterinitial notifications have been made, theperson in charge of the facility or vesselcan limit reporting to the follow-upreport and reports of SSIs.

In addition, although somemalfunctions. incidental to normaloperations may qualify as continuousand stable in quantity and rate underthe definitions in today's final rule,others are unanticipated, episodicreleases, such as pipe ruptures oremergency shutdowns. Although theamount of the hazardous substance:released may be less than the upperbound of the reported normal range,these releases are outside the scope ofthe continuous release reporting,regulation and must be reported on aper-occurrence basis under CERCLA-section 103(a) and SARA Title IIIsection 304. For these reasons, EPA doesnot agree that a release that.is "stable in,

quantity and rate" can be defined asany release that is not an SSI.

3. Reporting Requirements

Congress intended, in CERCLAsection 103(f)(2), to reduce otherwiseapplicable reporting requirements forcontinuous releases, but did not intend.to eliminate them entirely. Accordingly,today's final rule requires an initialtelephone and written notification, aone-time follow-up report on the firstanniversary of the submission of theinitial written notification, and reportsof SSIs in continuous releases. Also,changes in information submitted in theinitial notifications or the follow-upreport may require notification to theappropriate authorities.

Initial telephone notification under theauthority of CERCLA section 103(f)(2)and SARA Title III section 304(b)notifies government authorities of theintent of the person in charge of thefacility or vessel to establish the releaseas continuous and stable in quantity andrate under the definitions in today'sfinal rule' The initial telephonenotification consists of (1) a minimum ofone telephone report to the NRC, theSERC of any State likely to be affectedby the release, and the LEPC for anylocal area likely to be affected by therelease; and (2). within 30 days of theinitial telephone notification, submissionof an initial written notification to theappropriate EPA Regional Office for thegeographical region in which the facilityor vessel is located, and the appropriateSERC and LEPC.

Within 30 days of the first anniversarydate of the initial written notification,the person in charge must evaluate thareported releases and submit a one-timewritten follow-up report to theappropriate EPA Regional Office. (Nofollow-up report need be submitted tothe SERC or LEPC). The follow-up reportmust contain information concerning therelease during the period since thesubmission of the initial written report.Following the submission of the follow-up report, the person in charge mustevaluate each hazardous substancerelease annually and must documenteach annual evaluation. The-annualevaluation must take into account allinformation concerning each releaseduring the period since the submissionof the follow-up report or prior annualevaluation. EPA need not be notified ofthe annual evaluation, however, unlessthere is a change in the informationsubmitted previously.

An SSI in a release must bereported-to the NRC, SERC, and LEPC wheneverthe person in charge knows that a.release has exceeded the upper bound-

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of the previously reported normal rangeof the release within a 24-hour period.Under today's final rule, the normalrange is defined to include all releases(in pounds or kilograms) of a hazardoussubstance reported or occurring duringany 24-hour period under normaloperating conditions during thepreceding year.

If there is no change in a release afterinitial or follow-up notifications havebeen made, no additional reports arerequired. The notification that must bemade when a change in a release occursvaries with the nature of the change.

If there is any change in thecomposition or source(s) of a release,the release is considered a new release.The new release must be reported to theNRC on a per-occurrence basis untilthere is a sufficient basis to establish itscontinuity and stability under thedefinitions in today's rule. When thebasis is established, the person incharge must notify governmentauthorities of the intent to report undersection 103(f)(2) by making an initialtelephone call to the NRC, SERC, andLEPC and, within 30 days, submittinginitial written reports to the appropriateEPA Region, SERC, and LEPC.

If a change in a release results in anincrease in quantity of a release abovethe normal range, the release must bereported to the NRC, SERC, and LEPC asan SSI as soon as the person in chargeknows that the release exceeded theupper bound of the reported normalrange. If a change results (or will result)in a number of releases that exceed thereported normal range, the person incharge may continue to report thereleases as SSIs, or modify the normalrange to reflect the change. To modifythe normal range, the person. in chargemust report at least one release as anSSI by telephone, but may at the sametime inform the NRC, SERC, and LEPCthat the normal range of the release haschanged. Within 30 days from thetelephone notification, the person incharge of the facility or vessel mustsubmit a letter to the appropriate EPARegion describing the new normal range,the reason for the change, and the basisfor asserting that the release iscontinuous and stable at the increasedquantity. For all other changes in theinformation submitted in the initialwritten or follow-up notification, theperson in charge must notify theappropriate EPA Region by letter within30 days of determining that theinformation submitted previously is nolonger valid.

Information used to develop andsupport the initial written notificationand follow-up report, and to documentannual evaluations, as well as

information relevant to SSIs,establishment of the normal range, andthe continuity and stability ofcontinuous ieleases should not be sentto EPA. This information should besufficient to substantiate the normalrange of releases over the year and tosupport the other information includedin the initial written report, the follow-up report, or the most recent annualevaluation. Supporting informationshould be kept on file at the facility, orin the case of a vessel, at an officewithin the United States, in either a portof call. a place of regular berthing, or atthe headquarters of the business thatoperates the vessel. EPA may requestthat the person in charge of a facility orvessel submit such information as isnecessary to enforce the reportingrequirements under section 103[f)[2).

In summary, the reportingrequirements for continuous reieaseshave four basic components: Initialtelephone and written notifications, aone-time written follow-up report on thefirst anniversary of the initial writtennotification, notification of changes, and'immediate reporting of SSIs.

Written initial notification reports,follow-up reports, and notification ofchanges in a release should besubmitted to the appropriate EPARegional Office in the geographic areawhere the facility or vessel is located.Written initial notifications to SERCeand LEPCs should be submitted with theSARA Title III section 304(c) follow-upnotice in the manner required by SARATitle III section 304. Addresses of theappropriate EPA Regional Offices are:EPA. Region 1, Oil and Hazardous Materials

Section, 60 Westview Street, New EnglandRegional Laboratory, Lexington, MA 02173

EPA, Region Ml1 (3-HW-20}, EmergencyResponse Section, 841 Chestnut Street,Philadelphia. PA 19107

EPA, Region V, Emergency & RemedialResponse Section, 230 South DearbornStreet, Chicago, IL 60604

EPA, Region VII, Emergency Response andSpill Branch, 25 Funston Road, KansasCity, KS 66115 -

EPA, Region IX (T-4-9), Emergency ResponseSection. 215 Fremont Street, San Francisco,CA 94105

EPA, Region I-Building 209, EmergencyResponse Branch, Woodbridge Avenue,Edison, NJ 08837

EPA, Region IV, Emergency & RemedialResponse Section, 345 Courtland Street NEiAtlanta, CA 30365

EPA, Region VI, Emergency Response Branch,1445 Ross Avenue, 9th Floor, Dallas, TX75202

EPA, Region VIII, Emergency ResponseBranch. One Denver Place, 999 18th Street(8HWN-ER), Denver, CO 80202-2413

EPA, Region X, Superfund Response andInvestigation Section, 1200 6th Avenue,Seattle. WA 98101

a. Initial Notification (Establishingthe Release Baseline). In addition torequiring that a release be establishedas continuous and stable in quantity andrate. CERCLA section 103[f)(2) requiresthat notification of the release be madeunder CERCLA section 103(a) for aperiod sufficient to establish thecontinuity, quantity, and regularity ofthe release. In the April 19, 1988 NPRM,EPA proposed a flexible approach,allowing the person in charge todetermine the period sufficient toestablish the continuity, quantity, andregularity of a specific release in orderto qualify for reporting under CERCLAsection 103(f)(2).

One commenter was concerned that if,a number of reports were submitted tothe NRC under CERCLA section 103(a)to establish that a release is continuousand stable in quantity and rate, therepeated reports would trigger EPA'sAccidental Release Information Program{ARIP) 4 questionnaires. The Agencyagrees that notification to qualify forcontinuous release reporting should notautomatically require completion of anARIP questionnaire. So long as theperson in charge has a sufficient basisfor establishing the continuity andstability of a release, multiple reportsover a period of time are not necessary.The person in charge may rely onrelease data, engineering estimates,knowledge of the plant's operations andrelease history, and professionaljudgment to establish the basis forreporting under section 103[f)(2).Today's final rule, therefore, requires aminimum of one telephone call to theNRC under CERCLA section 103(a), andto the SERC and LEPC under SARATitle Ill section 304, and, within 30 daysof the telephone notification, an initialwritten notification to the EPA Region,SERC, and LEPC. The initial telephonenotification will alert appropriateauthorities to the intent of the person incharge to report the release as acontinuous release, will enaL' C ilie EPARegional Office to establish a recordand file of the release report, and willpartially satisfy the statutoryrequirement that the person in chargereport the release under section 103(a)for a period sufficient to establish thecontinuity and stability of the release 5 ;

4 Reports to the NRC of certain releases, such asrepeated releases and releases that cause injury ordeath, trigger an ARIP questionnaire that requestsinformation pursuant to CERCLA section 104, RCRAsection 3007. section 114 of the Clean Air Act, andsection 308 of the Clean Water Act.

'The Agency has determined that one call to theNRC. SERC, and LEPC. in combination with theinitial written notification, will satisfy the statutory

Continued

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the initial written notification willprovide information on the profile of therelease during the previous year. Duringthe initial telephone notification to theNRC, SERC, and LEPC, the person incharge of the facility must identify therelease as "continuous" and must informthe government of the intention to reportthe release under section 103(f)[2). Thecontinuous release reports will be somarked and will be given a casenumber. This initial notification,therefore, will not automatically triggeran ARIP questionnaire. The Agency maysend an ARIP questionnaire to theperson in charge of a facility, however,if it deems it appropriate based on theinformation in the initial notificationsand follow-up report.

If the person in charge of the facilityor vessel does not have a sufficientbasis for establishing a release ascontinuous and stable, as defined bytoday's rule, and the release equals orexceeds the RQ and is not otherwiseexempt from CERCIA-notificationprovisions, the release must be reportedon a per-occurrence basis to the NRC,SERC, and LEPC under the provisions ofCERCLA section 103(a) and SARA TitleIII section 304.6 Until such time as theperson In charge develops a sufficientbasis for establishing the continuity andstability of the release, these releasereports may trigger an ARIPquestionnaire.

Initial Telephone Notification. Tosatisfy initial telephone notificationrequirements, the person in charge mustidentify the release in the telephone callto the NRC; SERC, and LEPC as a reportunder section 103(f)(2) of a continuousrelease above the RQ, and must providethe following information for eachrelease:

(1) The name and location of thefacility or vessel: and

(2) The name(s) and identityfies) ofthe hazardous substance(s) beingreleased.

Initial Written Report. Initial writtennotification of a continuous release mustbe made to the appropriate EPA

requirement of CERCLA section 103[f {2J(B) that arelease be reported for a period sufficient toestablish its continuity and stability, If the person incharge doek not have a basis supported by existingdata, engineering estimates, operating history andexperience, or professional judgment sufficient toqualify for reporting under section 103(f){2), therelease must be reported under section 103(a) forthe length of time necessary to establish It ascontinuous and stable under the definitions intoday's rule.

6 In general, EPA does not expect that multiplereports will be necessary to establish the continuityand stability of a release. The Agency believes thatmost facilities already have a sufficient basis toqualify a release for reporting under section 103(f)(Z)and, therefore, only one telephone call to the NRC,SERQ and LEIC would be necessary.

Regional Office, SERC, and LEPC within30 days of the initial telephone call tothe NRC, SERC, and LEPC, notifying thegovernment of the intention of theperson in charge of the facility or vesselto report under the requirements ofsection 103(f)(2). Under today's rule, theinitial written report must include thefollowing information:

(1) The name of the facility or vessel;the location, including the longitude andlatitude; the case number assigned bythe NRC or EPA; the Dun and Bradstreetnumber of a facility, if available; theport of registration of the vessel; thename and telephone number of theperson in charge of the facility or vesseL

(2) The population density within aone-mile radius of the facility or vessel,described in terms of the followingranges: 0-50 persons, 51-100 persons,101-5o persons, 501-1,000 persons,more than 1,000 persons.

(3).The identity and location ofsensitive populations and ecosystemswithin a one-mile radius of the facilityor vessel (e.g., elementary schools,hospitals, retirement communities, orwetlands).

In addition to the preceding generalinformation, the following substance-specific information must be suppliedfor each hazardous substance releaseclaimed to qualify for reporting undersection 103(f)(2):

(4) The name/identity of thehazardous substance; the ChemicalAbstracts Service Registry Number forthe substance (if available). If therelease is a mixture, the components ofthe mixture and their approximateconcentrations and quantities, byweight.

(5) The upper and lower bounds of thenormal range of the release (in poundsor kilograms) over the previous year.

(6) The source(s) of the release (e.g.,valves, pump seals, storage tank vents,stacks). If the source is a stack, the stackheight (in feet or meters) must be ,provided. (If the release is attributableto a malfunction, the source must beidentified as such.)

(7) The frequency of the release andthe fraction of the release from eachrelease source and the specific periodover which it occurs.

(8) A brief statement describing thebasis for stating that the release iscontinuous and stable in quantity andrate.

(9) An estimate of the total annualamount of the hazardous substancereleased in the previous year (in poundsor kilograms).

(10) The environmental medium(a)affected by the release:

If surface water, the name of thesurface water body,

If a stream, the stream order oraverage flowrate (in cubic feet/second)and designated use;

If a lake, the surface area (in acres)and average depth (in feet or meters);

If on or under ground, the location ofpublic water supply wells within twomiles.

(11) A signed statement that thehazardous substance release(s)described is continuous and stable inquantity and rate under the definitionsin 40 CFR 302.8(b) and that all reportedinformation Is accurate and current tothe best knowledge of the person incharge.

In today's final rule, EPA requires,under the authority of section 104(e),that specific information about thesource(s) of the release, the medium(a)affected, and certain ecological andpopulation-density information beincluded in the Initial writtennotification and follow-up reports. If thesubstance released is a mixture, theperson in charge is required to identifyand estimate the components of themixture and their approximateconcentrations and quantities. TheAgency believes that this information isnecessary to determine the need for agovernment response action.

To ensure that persons in charge cansupply the information required in theinitial written report and follow-upreport without monitoring or measuringreleases, the Agency has deleted theproposed provisions requiringinformation about the dates andnumbers of times the release exceededthe RQ in a 24-hour period, the amountof the mean release, and the largestsingle release. Under today's rule,persons in charge may estimate thenormal range and frequency of therelease and the total annual amountreleased; these estimates, however, musthave a sound technical basis. Variousfactors can be used to arrive at theestimates, including the operatinghistory ofthe facility or vessel,knowledge of the operating processesany currently available data, and theprofessional judgment of the person incharge.

A brief statement describing the basisfor stating that the release is continuousand stable in quantity and rate must beincluded as part of the initial writtennotification to the EPA Region, SERC,and LFAC however, the substantiatinginformation should not be submittedwith the report. The substantiatinginformation must be kept on file at thefacility or, in the case of a vessel, at anoffice within the United States in either

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a port of call, a place of regular berthing,or at the headquarters of the businessthat operates the vessel, EPA, the SERC,or LEPC may request and/or inspect thisinformation, as necessary, to ensurecompliance with the requirements oftoday's rule.

EPA's receipt of the initial writtenreport without comment should not beinterpreted to indicate approval of thereport or the information it contains.There is no requirement for review ofthe reports submitted under sections103(a) and 103(f)(2) of CERCLA, orsection 304 of SARA Title m within atime limit. EPA. the SERC, or LEPC mayre-evaluate the information submitted inthe initial written report upon receipt ofthe follow-up report from the facility orvessel, receipt of information about anSSI, receipt of notification of changes inthe release, or at any other time, andmay contact the person in charge of thefacility or vessel to review the basis forreporting under section 103(f)(2). EPAmay also take other enforcement action,as appropriate.

One commenter asked EPA to allow a60- to 90-day delay between the date ofpromulgation and the effective date oftoday's rule so that facilities couldimplement activities to establishreleases as continuous and stable inquantity and rate. EPA agrees. Theeffective date of today's final rule isdelayed 60 days to better enablepersons in charge of facilities andvessels to comply effectively with thecontinuous release reportingrequirements. In particular, the delay inthe effective date will allow facilitiessufficient time to call the RCRA/Superfund Hotline to request theguidance material that will fully explaintoday's requirements and to obtain acopy of the computer disk that willfacilitate completion and evaluation ofthe written reports required undertoday's rule.

Several commenters requested aclarification about whether EPA expectsa facility to perform monitoring beyondthat which is currently performed todetermine the continuity and quantity ofreleases. One commenter stated that ifextensive additional monitoring isrequired, facilities may be unwilling orunable to expend the resources todemonstrate their qualification forreduced reporting. The commenterconcluded that only available datashould be required to establish thecontinuity and stability of releases.

EPA agrees that, to comply with therequirements of today's rule, persons incharge may use readily availableinformation. EPA does not expect afacility or vessel to perform additionalmonitoring in order to comply with

today's rule. Neither the identification ofSSIs nor the other reportingrequirements in today's final rulenecessitates monitoring or measuring ofreleases to acquire empirical data. EPAhas limited the information required inthe initial and follow-up reports to datathat can be calculated or estimated. Forexample, the Agency has eliminated theproposed requirements that the personin charge report the number of times theamount of the release during any 24-hour period exceeded the RQ, the meanrelease, and the single largest release.

Although no monitoring or measuringof releases is required, estimatesprovided in the reports, such as the totalannual amount of the release and thenormal range, must have a soundtechnical basis. This basis can beprovided by engineering estimates, massbalance analysis, or other estimatingtechniques used by the person in chargeof the facility or vessel, as well as byany data available from monitoring thatis being performed currently. Forexample, in the case of a facility with acoal-fired boiler, the person in chargecan estimate the hazardous substancereleases from the boiler by consideringsuch factors as the hazardousconstituents in the particular type(s) ofcoal used, the volume of coal used, theefficiency of the boiler, and the amountof energy produced.

One commenter suggested thatindustry and Federal resources wouldbe used effectively if the baselinedetermination was documented solely inthe annual report rather thanestablished by a series of reports duringan initial reporting period. EPAdisagrees. The Agency believes aminimum of one telephone call isnecessary to alert governmentauthorities to the intent of the person incharge of a facility or vessel to report arelease as a continuous release.Accordingly, if there is a sufficient basisto establish the continuity and stabilityof the release under the definitions intoday's rule, the person in charge needonly make an initial one-time telephonenotification to the NRC, SERC, andLEPC and, within 30 days, submit aninitial written report to the EPA Region,SERC, and LEPC to establish thebaseline information for a release. Theinitial written report must cover a periodof time sufficient to satisfy therequirement of section 103(f)(2)(B) thatnotification establish the continuity,quantity, and regularity of the release. If,however, the person in charge of afacility or vessel does not have a basisfor qualifying a release for reportingunder section 103(f)(2), the release mustbe reported on a per-occurrence basisfor a period sufficient to establish its

continuity and stability. When the basisis established, the person in charge canbegin reporting under section 103(f)(2)by notifying the NRC, SERC, and LEPCand then, within 30 days, submitting theinitial written notification. The initialwritten notification to the EPA Region,SERC, and LEPC will allow responseofficials to assess potential threats topublic health and welfare and theenvironment from the release inquestion.

b. Follow-up Report. The April 19,1988 NPRM required the submission ofannual reports on continuous releases.Under section 103(f)(2)(B) thatauthorizes annual reports of continuousreleases, the final rule requires that,within 30 days of the first anniversarydate of the initial written notification,the person in charge must evaluate thereported releases and submit a one-timefollow-up report to the EPA Region forthe geographical area where thereleasing facility or vessel is located.The purpose of the one-time follow-upreport is to verify or update theinformation submitted in the initialwritten report. Although follow-upreports need not be submitted to SERCsor LEPCs, EPA will make the submittedinformation available to them.

After the submission of the follow-upreport, the person in charge mustannually reevaluate each reportedhazardous substance release within 30days of the anniversary date of theinitial written notification to determinewhether there have been changes in therelease that require modification of theinformation previously submitted. Eachannual evaluation must be documented,but ho annual report or notification ofthe annual evaluation is required.Notification subsequent to the follow-upreport must be made only if there is achange in any of the informationsubmitted previously. Nevertheless, ifEPA determines that annual evaluationis not occurring or submittedinformation is not being properlyupdated, the Agency may reconsiderrequiring more frequent reporting. Inaddition, under the authority ofCERCLA section 104(e)(4), the Agencyintends to make periodic inspectionsand targeted audits of facilities reportingunder section 103(f)(2) to ensure that thehazardous substances released do notpose a hazard to public health orwelfare or the environment and thatproper reporting and recordkeeping hasoccurred.

One commenter stated that althoughthe requirement to submit annualreports to the EPA Region seemedpractical, it contradicted the language ofthe statute which, in section 103(f)(2)(B),

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requires that"* * notification [shallbe given) in accordance withsubsections (a) and (b) of this paragraph* ". The commenter stated thatnotification "in accordance with section103(a)" means notification to the NRCand not to the EPA Region.

EPA believes that it is moreappropriate to require that the follow-upreport and subsequent notifications ofchanges in previously submittedinformation be directed to the EPARegion rather than to the NRC. The NRCis set up to receive immediate telephonenotifications of hazardous substancereleases for which a response may benecessary. The required initial writtennotification and follow-up report are notimmediate release reports and areunlikely to trigger immediate fieldresponses. EPA Regions are betterequipped than the NRC to review suchreports. Releases that are SSIs, however,must be reported to the NRC as theyoccur.7

Several commenters stated that thestatutory language gives EPA theauthority to require annual reporting orSSI reporting, but not both. Thesecommenters also stated that the personin charge should be allowed to choosewhich report to submit. Although EPAbelieves that the statute does notpreclude requiring both annual reportingand SSI reporting, EPA has decided notto require annual reports, but instead torequire an initial written notification, aone-time follow-up report, and reports ofchanges in previously submittedinformation, in addition to reports ofSSIs.

As noted by the Agency in the April19, 1988 NPRM, the primary function ofCERCLA's notification requirements isto alert government officials to theexistence of a situation that may requirea government response to protect publichealth or welfare or the environment.Section 103(f)(2) reduces the notificationrequirements for releases that arecontinuous and stable in quantity andrate, but does not eliminate them.Notification of such releases, therefore,must be sufficient to enable officials todetermine if a field response isnecessary.

SSI reports and initial writtennotification and follow-up reports arecomplementary reports that servedifferent purposes but are equallyimportant SSIs must be reportedimmediately to the NRC, SERC, and

'The Federal government has exercised itsdiscretion In previous rulemaldngs to allow, incertain limited circumstances, immediatenotification to the EPA or Coast Guard OSC, ratherthan to the NRC. (See 40 CFR 300.03(b) and 33 CFR153.203.)

LEPC because such releases areepisodic releases that must be reportedunder CERCLA section 103(a) andSARA Title I section 304(b). Undertoday's rule, SSIs are defined asreleases that exceed the upper bound ofthe reported normal range, where thenormal range is defined to include allreleases (in pounds or kilograms) of ahazardous substance reported oroccurring over any 24-hour period undernormal operating conditions during theprevious year. The initial written reportand follow-up reports are the vehiclesfor establishing and confirming thenormal range of a release and willprovide the baseline against which toevaluate SSI reports.

As noted above, SSls are episodicreleases that must be reported underCERCLA section 103(a) and SARA TitleIII section 304(b). Other episodicreleases are one-time releases at orabove the RQ resulting from occurrencessuch as emergency shutdowns or piperuptures. Such occurrences are not partof the continuous release reportingregime. They must be reported ifreleased in an RQ or more as soon asthe person in charge knows they haveoccurred, whether or not they exceedthe upper bound of the reported normalrange of releases. Because, by definition.an SSI is a release above the reportednormal range, it has not been previouslyreported or evaluated and may pose asubstantial threat to human health orthe environment. Such releases shouldbe evaluated on the basis of reasonablycurrent and accurate information. TheAgency has concluded, therefore, thatrequiring SSI reports, initial written andfollow-up reports, and reports ofchanges in previously submittedinformation best fulfills the intent of thestatute and its underlying purpose.

The requirements for the informationthat must be submitted in the follow-upreport are the same as those for theinitial written report, If the informationsubmitted in the initial or follow-upreports raises concern about thepotential threat posed by the release,EPA has broad authority under CERCLAsection 104(e) to procure additionalinformation and under section 104(a) totake any action necessary to prevent ormitigate damage to public health orwelfare or the environment. Forexample, if EPA determines that theupper bound of the reported normalrange for a given release is high enoughto raise concern about the potentialthreat posed by the release, the Agencymay require the person in charge of thefacility or vessel to report all releases ator above some specified level within thereported normal range. (See section

ILBA., below, for a complete discussionof the normal range approach.)

If EPA determines that the reportedbasis is inadequate for establishing thatthe release is continuous and stable inquantity and rate, or other informationis insufficient or unclear, the Agencymay request additional information,clarification, or modifications. EPA mayalso ask to review the materials on fileat the facility or vessel that supportinformation submitted in the report.

Upon review, if EPA determines thatthe documentation does not adequatelysupport the information in the initialwritten or follow-up report, the Agencymay require that the person in chargeamend the report to reflect supportinginformation. If EPA determines that therelease does not qualify for reportingunder section 103(f)(2), the person incharge must resume reporting therelease under section 103(a) until asufficient basis for reporting undersection 103(f(2) is developed andreported.

Several commenters requested thatState-permitted emissions reports beaccepted as substitutes for annualreports under CERCIA section 103(f)(2).Since the proposal, EPA has determinedthat it will require a one-time follow-upreport rather than annual reports.Nonetheless, the Agency does notbelieve that a State report can be usedin lieu of the follow-up report. Reportssubmitted under State programs varywidely in format and information andmight not include the informationrequired in the follow-up report. Also,under today's rule follow-up reportsneed be submitted only once, unlessthere is a change in previouslysubmitted information. Therefore,follow-up reports should not be undulyburdensome to persons in charge offacilities or vessels that also mustsubmit reports under State programs.

c Reports of Changes in PreviouslySubmitted Information. After initialnotification reports have been submittedfor a release and reporting under section103(f)(21 has commenced, a change inthe composition or source of the releasemay make it necsssary for the person incharge to requalify the changed or"new" release under section 103(f)(2]. Inthe April 19,1988 NPILM, EPA proposedthat the person in charge requalify sucha release under section 103(f)(2] whenthere is a "substantial" change in thecomposition or character of the release.The Agency is today defining asubstantial change to be any change inthe composition or source(s) of therelease. A change in the composition orsource(s) of release may be caused byfactors such as equipment modifications

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or process changes. The changed or"new" release may pose a hazardwarranting notification and evaluationand must be qualified anew forreporting under section 103(f)(2). Toqualify the new release for reportingunder section 103(0(2), the person incharge must establish the new releaseas continuous and stable in quantity andrate by reporting to the NRC, SERC, andLEPC on a per-occurrence basis. Whenthe basis has been established, theperson in charge must submit initialtelephone notifications to the NRC,SERC, and LEPC and initial writtenreports to the appropriate EPA Region,SERC, and LEPC 8 within 30 days of theinitial telephone notification.

If a change at a facility or vesselresults in an increase in the quantity ofa release above the reported normalrange although other reportedcharacteristics of the release remainunchanged, the release must be reportedimmediately to the NRC, SERC, andLEPC as an SSI as soon as the person incharge knows that the release hasexceeded the upper bound of thereported normal range. If a changeresults (or will result) in a number ofreleases that exceed the normal rangeand the person in charge wishes tomodify the normal range to reflect thechange, the person In charge must reportat least one release as an SSI, but mayat the same time inform the NRC, SERC,and LEPC that the normal range of therelease is being modified. Within 30days from the telephone notification,-theperson in charge of the facility or vesselmust submit a letter to the EPA Regiondescribing the new normal range, thereason for the change, and the basis forstating that the release Is continuousand stable at the increased quantity.Persons in charge of facilities or vesselsthat must report releases of CERCLAhazardous substances and EHSs underSARA Title III section 304(b) mustinclude this information with the writtennotice that is required under SARA TitleIll section 304(c).

For all other changes in theinformation submitted in the initial orfollow-up notification, the person incharge must notify the EPA Region inwriting within 30 days of determiningthat the information submittedpreviously is no longer valid. (Suchnotification to SERCs and LEPCs is notrequired.) For example, if there is achange in the person in charge of afacility or vessel, the new person in

8 In all communications with the NRC, EPARegion. SERC, and LEPC the person in charge of thefacility or vessel should Include the NRC/EPA-assigned case number to properly idefttify therelease in question.

charge must notify the EPA Region ofthe change. Notifications of changes in arelease or in other submittedinformation must include the NRC/EPA-assigned case number and a signedcertification statement that the releaseis continuous and stable in quantity andrate and that all the reportedinformation is accurate and correct tothe best knowledge of the person incharge.

One commenter stated that, ratherthan requiring a new justification forreporting under section 103(f)(2), EPAshould allow persons in charge to reportchanges in the frequency of a release byamending the annual report. As anexample, the commenter cited morefrequent startups and shutdowns ofunits under normal conditions andargued that, although there would be anincrease in the annual total amountreleased, the change in frequency wouldnot result in any greater impact onpublic health and the environment or inany greater need for repetitiveimmediate reports than do startups andshutdowns of batch operations.

The Agency agrees that for changes infrequency it is not necessary to submit acompletely new written report undersection 103(f)(2). A change in thefrequency of a release under normalconditions may not result in any greaterImpact on public health or theenvironment; however, that may not bethe case in all situations. Under today'sfinal rule, therefore, a change in thefrequency is among the changes that theperson in charge must report to the EPARegion In writing within 30 days. Anexplanation for the change in the releasefrequency must be included in the letterto the EPA Region. A new initial writtenreport is not required.

d. Statistically Significant IncreaseReports. Reports of SSIs must-be madeby notifying the NRC by telephone as isrequired in 40 CFR 302.6 for notificationsof episodic releases of hazardoussubstances that equal or exceed an RQ(50 FR 13456; April 4, 1985), and to theSERC and LEPC in the manner set forthin 40 CFR 355.40(b). Callers shouldidentify the releases as SSIs and includethe case number assigned by the NRC orEPA when initial telephone notificationof the release was made, to ensure thatthe information is recorded correctly.EPA will immediately evaluate suchreleases to determine the need for aresponse action. In determining whether.an SSI has occurred and must bereported, the person in charge of thefacility or vessel should use a 24-hourperiod for measuring the quantityreleased.

One commenter suggested that reportsof SSIs should be made in amendmentsto the annual report as soon aspracticable rather than by notifying theNRC by telephone. The Agency does notagree that an SSI in a release should bereported by inclusion in or amendmentto a written report. EPA Interprets theprovisions of section 103(f)(2] to requirean SSI, like any other episodic release,to be reported to the NRC under section103(a) as soon as the person in charge isaware of its occurrence. Notification tothe NRC is appropriate because an SSIis an episodic release; it is a releaseabove the RQ that has not beenreviewed or evaluated previously. Thus,like episodic releases of hazardoussubstances, an SSI must be evaluatedpromptly to determine whether agovernment response is necessary. Itwould not be sufficient to report SSIs tothe EPA Region when the person incharge decides to amend the previouslysubmitted written report. Today's finalrule, therefore, requires that notificationbe given when an increase in thequantity of the hazardous substancebeing released during any 24-hourperiod exceeds the upper bound of thereported normal range of the release (40CFR 302.8(c)(5), 40 CFR355.40(a)(2)(iii)(B)).

One commenter stated that "the 24-hour time period over which releasesmust be aggregated" seemed excessiveand urged that it be shortenedconsiderably, perhaps to one hour. EPAdoes not agree that the time period fordetermining an SSI in a release shouldbe shortened. The Agency believes that24 hours is an appropriate length of timein which to determine whether SSIshave occurred because it is the length oftime used to determine whether othertypes of episodic releases equal orexceed the RQ and must be reportedunder section 103(a) (50 FR 13456; April4, 1985). The regulated community isalso familiar with the 24-hour period asit was established under regulationsimplementing section 311 of the CleanWater Act, the predecessor of CERCLA.In addition, the Agency is concernedthat releases that may pose threats topublic health or welfare or theenvironment may not be brought to theattention of government authorities ifthe 24-hour period is shortened. Forexample, if the period were shortened toone hour from the onset of the release asthe commenter suggests, a release thatcontinues for more than one hour maynot reach the full rate of emission withinthe shortened time period. As a result,the threat posed by the release would beinaccurately evaluated. Within 24 hours,however, most releases should have

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reached their full emission rate. Inaddition, the Agency believes 24 hoursis an appropriate length of time forreleases that occur during batchprocesses or certain other operating.procedures.

One commenter suggested that EPAallow the person in charge to use anyroutine 24-hour reporting periodemployed, such as a period from 7 a.m.of one day to 7 a.m. of the next day,rather than a calendar day. EPA agreeswith this suggestion. The Agency doesnot intend that the person in charge berequired to use a calendar day as the 24-hour period for measuring releases. If arelease is continuous withoutinterruption or abatement, the 24-hourperiod for determining whether an SSI inthe release has occurred can be anyroutine, continuous 24-hour operatingperiod that reasonably reflects thequantity typically released over thatlength of time. If the release iscontinuous during operating hours, orduring regularly-occurring batchprocesses, or follows some otherpattern, but is a routine, anticipated,intermittent release, the 24-hour periodfor determining the total amount of therelease should begin at the onset of therelease.

Several commenters stated that-thereleased quantity of a hazardoussubstance frequently cannot bedetermined accurately on a 24-hour ordaily basis. One commenter stated thatin large, continuous processes with,many pieces of equipment and storage.tanks, any estimate of releases issubject to inventory errors so large thatonly annual data give a good measure ofaverage loss per day. The commentercited the example of losses from tankopenings, pump seals, and otherconnections as not being generallyknown or measured. -

EPA realizes that for some facilities orvessels, the persons in charge way notbe able to-quantify releases on a dailyor a 24-hour basis. In such instances,persons in, charge can use theirknowledge of the processes, equipmentiand operating history of the facility orvessel and the approximate amount ofannual total releases to estimate orcalculate the normal range of suchreleases. The same knowledge and.judgment can also be employed toestimate the amount released within a24-hour period and to determinewhether it exceeds the upper bound ofthe reported normal range and must bereported to the NRC.

If a release is continuous withoutinterruption or abatement, the person incharge.can estimate the amountreleased over.a 24-hour period by,dividing the estimate of the total amount

released by the number of 24-hourperiods over which the release extends.If the release is continuous duringoperating hours, or during regularly-occurring batch processes, or followssome other pattern, but is a routine,anticipated, intermittent release, theperiod for determining an SSI begins atthe onset of the release and continuesfor 24 hours. Releases of the samehazardous substance from the samefacility must be aggregated for the 24-hour period to determine if an SSI hasoccurred. This does-not mean that theperson in charge should postponenotifying the NRC, SERC, and LEPCuntil the 24-period has ended. The NRC,SERC, and LEPC must be notified assoon as the person in charge knows thatthe quantity of a release within the 24-hour period exceeds the upper bound ofthe reported normal range.

4. Statistically Significant IncreasesIn today's final rule, the Agency

defines an SSI as any release of ahazardous substance that exceeds theupper bound of the reported normalrange. The normal range is defined toinclude all the releases (in pounds orkilograms) of a hazardous substancereported or occu rring over any 24-hourperiod under normal operatingconditions (i e., normal conditions thatprevail during the period establilhingthe continuity, quantity, and regularityof the release) during the precedingyear. The definition reflects commentsreceived on the NPRM definition of anSSI and is based upon the language ofCERCLA section 103(f){2)(B) thatrequires'that notification shall be given.* * at such time as there is anystatistically significant increase in thequantity of any hazardous substance orconstituent thereof released, above thatpreviously reported or occurring." Thedefinition of SSI, therefore, does notinclude releases within the reportednormal range of the release. The Agencyconsiders any release that exceeds thereported normal range to-be statisticallysignificant because the normal range is,established based on a set of historicaldata representing all releases reportedor occurring during normal operationsover the previous year.

In the proposed rule, EPA hadselected as the definition of SSI the fivepercent significance level for the Type Ierror rate, but solicited suggestions frominterested parties with data supporting aType I error rate other than five percent(Type I error is the probability of falselyassuming a difference) Severalcommenters objected to EPA's choice ofthe five percent significance level asbeing too stringent. One commenterstated that the Agency might be

overburdened with reports to such anextent that releases requiring responsescould be obscured. Another commentersuggested that EPA change theconfidence level from 95 to 99 percent toreduce the frequency of unnecessary'reporting and reduce the burden on thefacilities and vessels, the NRC, SERCs,and LEPCs.

The Agency agrees with-thecommenters that the five percentsignificance level might burden facilitiesand vessels, and the NRC, SERCs, andLEPCs with a large number of SSIreports without providing acommensurate benefit in protection ofhuman health and welfare and theenvironment. At a five percent,significance level, the NRC wouldreceive approximately 18 reports peryear for each hazardous substancereleased in'a manner that is continuouswithout interruption or abatement (i.e., 5percent of 365 days). Given the numberof facilities and vessels that couldqualify for reporting under section103(f){2), the NRC could beoverburdened by reports at the fivepercent significance level. Also, if a -continuous release is sufficiently stableto qualify for reduced reporting, theAgency believes that the number ofreports required at the five percentsignificance level is unnecessary toprotect public health and welfare andthe environment, and might result in thegovernment's inability to evaluate orrespond to the most hazardous releases.

In the April 19, 1988 NPRM, theAgency proposed to allow the person incharge of a facility or vessel to select theappropriate statistical test foridentifying SSIs at the five percentsignificance level. EPA included anonparametric test and two parametricstatistical tests: A control chart test andthe Student-test. The Agency alsoproposed to allow the person In chargeof a facility to use other statistical tests,.provided that-a demonstration is madeto show that the test used is appropriategiven the underlying releasedistribution. A number of commentersstated that quantification of releases toprovide data for statistical tests is notpossible for certain facilities. Some

.,commenters objected to the use of thestatistical tests because of the expenseand burden of collecting the necessarydata. Other commenters stated thatreleases from many facilities are"calculated" or "estimated" and,therefore, use of the statistical tests"does not make sense" for suchfacilities. Several commenters statedthat CERCLA does not requiremonitoring for purposes of reportingunder CERCLA section 103(a) and,

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therefore, many facilities would nothave the data necessary to use the tests.These commenters suggested that ratherthan using a statistical test to identifySSIs, persons in charge of facilitiescould establish a normal range forreleases from those facilities and SSIswould be defined as those releasesoutside the normal range.

One commenter noted that thelanguage of section 103(f)(2) requiresreporting of "any statistically significantincrease in the quantity of anyhazardous substance or constituentthereof released, above that previouslyreported or occurring." Notification atthe five percent significance level, thecommenter stated, would not onlyrequire reporting of releases above therange of releases previously reported oroccurring, but also would require reportsof the largest five percent of releaseswithin that range. Such reporting wouldbe redundant and contrary to the intentof the statute.

The Agency agrees that the use ofstatistical tests may require empiricalrelease data that are unavailable forsome facilities or vessels whose releasescould otherwise qualify for reportingunder section 103(f)[2), and that theestablishment of a normal range ofreleases provides an acceptableapproach to identifying SSIs. TheAgency also agrees that, in order to beconsistent with the language of section103f)(2), the normal range; properlyidentified, will include all releases undernormal operating conditions reported oroccurring over the previous year. Thus.the definition of statistically significantwill not include releases within thatreported range. An SSI in an otherwisecontinuous and stable release is definedas any release greater than the upperbound of the reported normal range ofthe release.

Specification of the normal range mustbe made in the initial writtennotification report to the EPA Region,SERC, and LEPC. Identification of thenormal range of a release should bebased on professional judgment, theoperating history of the facility orvessel, experience with the operatingequipment and processes, and anyexisting data. Releases included in thenormal range are to be evaluated over a24-hour period. The Agency believesthat persons in charge, in most cases,would have adequate informationavailable to provide reasonableestimates or approximations of thenormal range of a release, withoutmeasuring or monitoring. To establish anormal range, for example, historicaldata or engineering estimates of releasesand operations under varying conditions

could provide a reasonable indication ofthe nature, frequency, and sourcefs) of anormal range of releases that arepredictable in quantity and rate ofemission.

Justification of the normal range mustbe kept on file at the facility, or in thecase of a vessel, at an office within theUnited States in either a port of call.place of regular berthing, or at theheadquarters of the business thatoperates the vessel. Only those releasesthat are both continuous and stable inquantity and rate may be included in thenormal range. Any release outside theupper limit of the reported normal rangewould be an SSI that would require animmediate report to the NRC, the SERC,and the LEPC. In allowing persona incharge to use this normal rangeapproach, the Agency is not suggestingthat releases within the normal rangeare federally permitted or risk-free.Generally, the Agency believes that thenormal range approach promulgatedtoday will result in reports of releasesthat may pose a hazard to human health.welfare, or the environment, withoutoverburdening the resources of facilitiesor vessels, or the government. For somereleases, however, reporting only thosereleases above the reported normalrange as SSis may not be sufficientlyprotective of human health, welfare, andthe environment. EPA, therefore, mayreview initial written notificationreports and follow-up reports todetermine if the release poses apotential hazard, taking intoconsideration the characteristics of thesubstance being released, the quantityand frequency of the release, thesensitivity of the location of the release,and any other relevant factors. If EPAdetermines, based on such factors, thatthe release poses a threat or potentialthreat to human health or welfare or theenvironment, EPA may take anyauthorized action necessary to preventor mitigate the danger, includingrequiring the person in charge to reportreleases at or above some specifiedlevel below the upper bound of thereported normal range on a per-occurrence basis. Receipt of an initial orfollow-up report without commentshould not be interpreted as anindication of EPA approval of thenormal range or of the other informationthe report contains.

One commenter suggested that an SSIshould be defined with reference tosome significant change in plantoperations, such as an increase incapacity, a major equipmentmodification, or some unusual releasethat occurs as a result of a malfunctionor upset condition. EPA does not agree

with this comment. An SSI may or maynot be the result of a malfunction orunusual occurrence. Some releases thatresult from malfunctions are episodicreleases that are not continuous andstable in quantity and rate and,therefore, do not qualify for reducedreporting under section 103[f)(2). Suchreleases from malfunctions, althoughthey may not exceed the upper bound ofthe reported normal range of thecontinuous release, must be reported ona per-occurrence basis under section1031a). Also, changes in plant operationsmay not result in an SSI, but in a changein the source or composition of therelease. Any change in source orcomposition is considered a "new"release for purposes of reporting undersection 103[f{)(2). Such changes must bere-evaluated in a timely manner, basedon the full scope of information requiredin the initial written report, which mustinclude a statement that the release iscontinuous and stable in quantity andrate under the changed conditions. EPA.therefore, does not agree that SSIs inreleases can be defined as thecommenter suggests.

Another commenter stated that actualdaily release quantities are known foronly a few sources of a few substancesand that release quantities are oftendetermined by using engineeringcalculations, emission factors, andoperating experience. The commentersuggested that release estimates.because they are not actual dailyrelease figures. should be rounded totwo significant digits of accuracy and anSSI should be defined as a release that,when the increased release is roundedto two significant digits, results in anincrease of at least one in the lesssignificant digit.

EPA does not agree that an SSI shouldbe defined as a numeric increase inestimated release figures because, giventhe variety of release sources, any suchfigure would be arbitrary andpotentially inappropriate for somereleases. The Agency believes,therefore, that for releases that only canbe estimated by calculations, operatingexperience, and professional judgment,it is more appropriate that persons incharge estimate the normal range of therelease to include the releasespreviously reported or occurring undernormal operating conditions, and toreport, as SSIs, those releases thatexceed the upper bound of the reportednormal range. The normal rangeapproach can much more readily beadapted to the many different sources ofreleases.

Several commenters questionedwhether monitoring is required to obtain

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data for reporting SSIs. One commenterstated that because no monitoring isrequired for purposes of reporting undersection 103(a), many facility owners andoperators may decide that section 103(a]reporting is less difficult and expensivethan qualifying for reduced reportingunder section 103(f)(2). If owners oroperators opted to report continuousreleases under section 103(a), thecommenter believed the NRC could beoverwhelmed.by unnecessary reports.

As has been noted at section II.B.3 ofthis preamble, the Agency does notintend that monitoring systems beinstalled in facilities or. vessels in orderto collect empirical data to qualifyreleases for reduced reporting. TheAgency believes the normal rangemethod for identifying SSIs in releasesestablished in today's rule is sufficientlyflexible to permit persons in charge offacilities or vessels to qualify releasesfor reduced reporting under section103(f)(2) without installing monitoringdevices or incurring other excessive

regulatory burden or expense; By usingengineering estimates, knowledge of theoperating history of the facility orvessel, experience with operatingprocesses, and professional judgment,the person in charge can establish a.normal range of releases on a soundtechnical basis. SSIs above this normalrange can be estimated in the samefashion without monitoring orImeasurin4g

C, Relationship to Reporting Under"ARA Title Ill'

SARA Title III (sections 301-323),addresses emergency planning andcomimunity right-to-know and requires,among other things, emergency andannual notification to State and localgovernments in addition to thenotification requirements of section 103of CERCLA.

Section 304 Reporting

To clarify the types of releasesexempt from section 304 notification, th(April 19, 1988 NPRM proposed revisingthe applicability section of the.regulations implementing section 304 toadd definitions of "continuous" and"statistically significant increase."Several commenters misinterpreted theproposed rule language as incorporatingCERCLA section103(f)(2) continuousrelease annual report requirementsunder section 304.

Section 304 of SARA Title III provides.release reporting requirements that•parallel the requirements of section103(a) of CERCLA, but ire ntended.tomake release information available',immediately to the SERC of any Statelikely to be affected by the orelease and

emergency response coordinator for theLEPC.for any area likely to be affectedby the release. In general, a release ofan EHS or a CERCLA hazardoussubstance must be reported immediatelyto a SERC and LEPC if it (1) is in anamount equal to or in excess of the RQ(or one pound if an alternative quantityhas not been established by regulation),and (2) occurs from a facility at which ahazardous chemical is produced, used,or stored and in a manner that wouldrequire notice under CERCLA section103(a). 9 The addition of the definitionsin today's final rule clarify the meaningof the statutory phrase, "occurs in amanner which would require noticeunder CERCLA section 103(a)."

To the extent that releases arecontinuous and stable in quantity and,,rate as defined by CERCLA section403(f)(2) and today's final rule, they donot occur in a manner that requiresnotification under CERCLA section103(a). Accordingly, when persons incharge of facilities or vessels releasingEHSs or CERCLA hazardous substancessubmit the initial n9tification reports(including the initial written reports,which should be submitted with thefollow-up report required by SARA TitleI! section 304(c)) to the appropriateSERC and LEPC, identifying releases ofFTHSs and CERCLA hazardoussubstances as continuous and stable inquantity and rate under the definitionsin today's final rule, they need niotreport again to the SERC and LEPC,except for reports of SSIs. No CERCLAsection 103(f)(2) follow-up reports arerequired under SARA Title III section304.

If there is a change in the compositionor source(s) of a release, however, thereleaseis considered a new release and'mustcbe qualified for reporting as acontinuous release; Accordingly, thenew release must be reported to theNRC, SERC, and LEPC on a per-occurrence basis for a period sufficientto establish its continuity and stability.When the basis is established, theowner or operator must make an initialtelephone report to notify the NRC,SERC, and LEPC of 'the intent to reportthe release as a continuous release and,within 30 days, submit initial writtennotifications to the EPA Region, SERC,and LEPC. No other changes in releasesmust be reported to the SERC or LEPC,-unless there is an increase in thequantity of the release, and the owner or

'Section:304 of Title ml excludes releases thatresult in exposure only to persons within the facilityboundaries, releases that are federally permitted.releases of pesticide products exempt from CERCLA-section 103(a) reporting under CERCLA section103(e), and releases that do not come within thedefinition of release in CERCLAsection 101(22),

operator wants to modify the reportednormal range of the release to redefineSSIs. To modify the reported normalrange, the owner or operator mustsubmit at least one, SSI report to theNRC, SERC, and LEPC and, within 30days, submit a letter to the EPA Regiondescribing the new normal range, thereason for the change, and the basis forstating that the release in the increasedamount Is continuous and stable inquantity and rate under definitions intoday's rule. Information on the changein the normal range should also besubmitted to the SERC and.LEPC, alongwith the SARA Title III section 304(c)follow-up report, in order to redefineSSIs under section 304.

EPA intends to maintain theinformation submitted on continuousreleases in its computerized EmergencyResponse Notification System database. The Agency will make thisinformation available to EPA program-offices, and, upon request, will sharewith SERCs and LEPCs information notsubmitted directly to them. Continuousrelease information, together with theinformation collected under othersections of SARA Title II, will providethe SERCs and LEPCs with acomprehensive picture of chemicalhazards in a particular community. EPAbelieves this information can be used by'facilities, as well as by othergovernment'authorities.'to furtherpollution and accident prevention goalsand objectives.* Initial'telephone notification to the

SERC and LEPC required'under today'srule must include the same informationas is contained in the initialtelephonenotification to the NRC under 40 CFR302.8(d)(3). To satisfy the requirementsunder today's rule and the requirements'for a follow-up notice under SARA TitleIII section 304(c), the initial writtennotification to the 'SERC and LEPC mustidentify the facility or vessel, the personin charge, the hazardous substancebeing released (and whether it is anextremely hazardous substance under 40CFR part 355, appendix A), the source(s)of the release and the medium(a) it mayaffect, its frequency, the basis for statingthat the release continuous and stable inquantity and rate, the normal range ofthe release, an estimate of the totalannual amount released, the populationdensity within a one-mile radius of thefacility, the identity and location ofsensitive populations and ecosystemswithin that area, if any, and any knownor anticipated acute or chronic healthrisks associated with the release, andproper precautions, including medicalattention, that should be taken as aresultof the release. Information from

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initial reports will establish the releaseas continuous, assist State and localofficials in emergency planning, andprovide a basis for the SERC or LEPC toevaluate reports of SSIs.Commenters on section 304requirements should note that theAgency has proposed to designate 232EHSs as CERCLA hazardous substances(54 FR 3388; January 23, 1989). Whenthat proposed rule becomes final andeffective, continuous releases of EHSsthat are newly designated as CERCLAhazardous substances will be subject toall the requirements applicable toreleases of CERCLA hazardoussubstances, including submission offollow-up reports to the appropriate EPARegional office under CERCLA section103(fl{2).

Section 313 Reporting

A number of commenters urged EPAto allow substitution of the ToxicRelease Inventory [TRI) report requiredunder SARA Title III section 313 for theannual reports required under the April19, 1988 NPRM. In today's final rule theAgency is not requiring annual reportsbut only an initial written notification-and a one-time follow-up report.Nevertheless, to provide flexibility, theAgency is allowing persons in charge tosubmit a copy of the TRI report in lieu ofthe CERCLA section 103(f)(2) initialwritten and follow-up reports, providedthat certain supplemental continuousrelease information is submitted withthe TRI report.

Under SARA Title III section 313,covered facilities must submit, on orbefore July 1 of each year, a TRI form tothe EPA Administrator and to the Stateofficial or officials designated by theGovernor of the State in which thefacility is located. Annual notificationrequirements under section 313,however, are different in scope andpurpose from CERCLA section 103reporting requirements. SARA Title IIIsection 313 requirements apply only tofacilities in the Standard IndustrialClassification (SIC) Major Groups 20through 39 (unless the Administratorexercises the discretion granted insections 313(b)(1) or 313(b)(2) to add ordelete SIC groups or individualfacilities) that have inventories of listedchemicals greater than specifiedthreshold amounts. There are no suchrestrictions on the applicability ofCERCLA notification requirements.Also, the universe of substancescovered by CERCIA section 103 is notthe same as'the universe covered bySARA Title Ill section 313 requirements;some substances subject to CERCLAnotification requirements are not subjectto section 313. and other substances not

subject to CERCLA notificationrequirements are subject to section 313notification requirements.

The purpose of the reportingrequirements differs as well. Thepurpose of the SARA Title III section313 reporting requirements is to providethe public with information concerningthe release of toxic chemicals into theenvironment, whereas the purpose of,CERCLA notification requirements is toalert response officials to releases thatmay require a government response toprotect public health and welfare andthe environment.

In accordance with its statement inthe preamble to the April 19, 1988proposed rule to resolve, if possible, theconcern about duplicate reporting, theAgency initiated discussions with EPARegional personnel to determinewhether the data submitted undersection 313 would be adequate for theirneeds. On the basis of these discussions,EPA determined that the use of theSARA Title III section 313 report tosatisfy the initial written and follow-upreporting requirements of CERCLAsection 103(f)[2) is feasible so long ascertain additional continuous releaseinformation is included with the section313 report. The additions will provideEPA Regions with information that isnot requested for purposes of the SARATitle Ill section 313 report, but isrequired in the continuous release initialwritten notification or follow-up report.

If the TRI report 10 is submitted in lieuof the initial written or follow-up report.the following continuous releaseinformation must be submitted with acopy of the TRI report:

(1) The population density within aone-mile radius of the facility or vessel,described in terms of the followingranges: 0-50 persons, 51-100 persons,101-500 persons, 501-1000 persons, morethan 1,000 persons.

(2) The identity and location of anysensitive populations or ecosystemswithin a one-mile radius of the facilityor vessel (e.g., elementary schools,hospitals, retirement communities, orwetlands). In addition, the followinginformation must be supplied for eachhazardous substance release claimed toqualify for reporting under section103(f)(2).

20 EPA acknowledges that the informationrequired In the CERCLA section 103(f)[2) initialwritten report and follow-up report under today'sfinal rule Is not identical to the information requiredin the SARA section 313 report, plus the addendum.The Agency. however, believes that therequirements are comparable and, regardless of thereporting option exercised, it will be able to derivethe information necessary to evaluate the release.

(3) The upper and lower bounds of thenormal range of the release (in poundsor kilograms) over the previous year.

(4) The frequency of the release andthe fraction of the release from eachrelease source and the specific periodover which it occurs.

(5) A brief statement describing thebasis for stating that the release iscontinuous and stable in quantity andrate.

Also, the person in charge mustinclude in the report the case numberassigned by the NRC or EPA and asigned statement that the hazardoussubstance release(s) described in thenotification is continuous and stable inquantity and rate under the definitionsin 40 CFR 302.8, and that all the reportedinformation is accurate and current tothe best of his or her knowledge.

This additional information must besubmitted to the appropriate EPARegional Office, along with a copy of themost recent SARA Title III section 313annual report, within 30 days of theinitial telephone notification to the NRC.A subsequent TRI report plus addendummust also be submitted within 30 daysof the first anniversary date of the initialwritten submission. The additionalinformation required for purposes ofsatisfying the requirements of today'srule should not. however, be submittedby an owner or operator whensubmitting the Form R report underSARA Title III section 313 to the ToxicRelease Inventory data base. Rather, acopy of Form R should be submittedwith the additional information to theEPA Region. (The addresses ofappropriate EPA Regional Offices arelisted in section ILB.3 of this preamble.)Owners and operators that do notchoose to substitute the section 313report must submit the CERCLA section103(f)(2) initial written report within 30days of the initial telephone notificationand a follow-up report on or before theanniversary date of the initial writtenreport.

RQ Adjustments

One commenter stated that althoughthe proposed rule does not addressmodification of RQs, it highlights theneed for EPA to modify the RQs for non-CERCLA EHSs. The commenter noted,for example, that the RQ for sulfurdioxide was set by SARA Title IIIsection 304 at one pound, but thatemission levels far above 200 poundsper day are permitted for power plantsburning fossil fuels.

EPA has proposed a rule to designate232 EHSs as CERCLA hazardoussubstances (54 FR 3388; January 23,1989). On August 30, 1989, the Agency

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proposed adjustments to the RQs forthese and other EHSs (54 FR 35988).When the Agency promulgates the finalrule, it will simultaneously adjust theRQs for these substances. Also, thecommenter should note that releases incompliance with permits under otherFederal programs may be exempt fromCERCLA notification requirementsunder the federally permitted releaseexemption. (See CERCLA section101(10), CERCLA section 103(a), andSARA Title 1.1 section 304(a)).

D. Multiple Concurrent Releases

In § 302.8(e) of the April 19. 1988proposed rule 153 FR 12868 at 12889),EPA stated that multiple concurrentreleases of the same substanceoccurring at various locations fromcontiguous plants or installations oncontiguous property that are undercommon ownership or control shall beadded together to determine whethersuch releases constitute a continuousrelease or an SSI. Several commentersfound the multiple concurrent releasesection of the proposed rule confusingand inconsistent with the CERCLAdefinition of facility. These commentersinferred that the proposed rule adoptedthe SARA Title III definition of "facility"for purposes of the continuous -releaserule. The commenters stated that theaggregation of release data fromdifferent facilities on contiguous groundsunder common ownership would beinconsistent with the definition of"facility" under CERCLA, and would bedifficult because there are oftendifferent persons in charge of thevarious facilities.

The Agency did not intend to adoptthe SARA Title III definition of facilityfor the purposes of the continuousrelease rule. In today's final rule,therefore, § 302.801 allows the person incharge to aggregate release data fromseparate, contiguous, adjacent facilitiesor to consider each facility separately.Persons in charge, however, mustaggregate multiple concurrent releasesof the same substance from a particularfacility, to determine if an RQ has beenequaled or exceeded (See 50 FR 13458 at13459; April 4,1985 and CERCLA section101(9)). For the purpose of determiningwhether a release is continuous andstable in quantity and rate, and for thepurpose of identifying SSIs, however,the aggregation of release data fromseparate facilities is optional. Theperson in charge may either consider thereleases separately or in the aggregate,provided that whichever approach iselected is used for both purposes. Thisoption should eliminate any difficulty orconfusion that persons in charge ofdifferent facilities at one plant or

company might otherwise haveexperienced.

E. Administrative Reporting Exemptions

One commenter on the April 19, 1988.proposed rule maintained that emissionsthat are considered de minimis, or thatare exempt from regulation under otherFederal or State statutes or regulationsbecause their impact is insignificant, donot warrant reporting to the NRC. Thecommenter cited the example ofemissions from small internalcombustion engines used in the field.According to the commenter, releasesfrom these engines easily could equal orexceed the 10-pound RQ for oxides ofnitrogen, yet could be significantlybelow the annual emission level thatwould trigger a permitting requirementOther examples the commentermentioned were emissions from flares attank batteries and gas processing plants,venting of small amounts of sour gas(gas containing hydrogen sulfide), andfugitive emissions. The commenterstated that these emissions have beenidentified to other authorities and areclearly normal, routine emissions thatshould be exempt from CERCLA section103(a) reporting requirements.

The EPA would consider granting anadministrative reporting exemption ifEPA or another appropriate Federalagency determines that certain releasespose a hazard only rarely and that thegovernment would rarely, if ever,respond to such releases, or if theAgency concludes that it is technicallyor administratively infeasible orinappropriate to respond to suchreleases. The commenter has notprovided sufficient data or analysis forthe Agency to determine whether thereleases mentioned are actually deminimis and thus would rarely pose ahazard or that government authoritieswould rarely, if ever, want to respond toreports of such releases. The Agency,therefore, is not granting anyadministrative exemptions from section103(a) or section 103(f)(2) notificationrequirements in today's final rule. Underthe definitions of continuous and stablein quantity and rate promulgated intoday's rule. however, releases such asthe ones cited by the commenter mayqualify for reporting under section103(f)(2).

Another commenter proposed thatEPA exempt from all continuous releasenotification requirements. air releasesfrom electric utility fossil fuel-firedsteam/electric generating units becausesome emissions from such facilitiescannot be measured to any reasonabledegree of accuracy, and becausereporting the facility emissions that aremeasurable or monitorable would

duplicate reporting associated withother Federal and State regulatory andpermit requirements.

The Agency is aware that somereleases are not measured or monitoredand that persons in charge of facilitiesor vessels emitting such releases willnot be able to provide empirical dataabout such releases. Consequently, forthis type of release, the Agency isallowing persons In charge to makereasonable estimates or calculations ofthe information necessary to complywith section 103(f)(2) requirements onthe basis of experience with operatingprocesses and equipment, professionaljudgment, and any available data.

Also, certain releases are consideredfederally permitted releases underCERCLA section 101(10) and are exemptfrom CERCLA and SARA Title []notification and liability provisions.Congress was explicit in listing thetypes of releases that are exempt fromnotification and liability provisions.Releases that do not come within theprovisions of section 101(10), however,are subject to CERCIA notification andliability provisions, regardless of anypermits or licenses that may controlthese releases. [For further clarification,see the proposed rule on federallypermitted releases (53 FR 27268; July 19,1988)).

IlL Comments on the FederallyPermitted Release Rule

A number of commenters stated that itwould not be possible to assess the fullimpact of the continuous release ruleuntil the federally permitted release rulewas proposed. One commentersuggested that the two rules becombined for final promulgation.

The Agency understands that theprovisions of today's rule and thefederally permitted release rule have arelated effect on CERCIA notificationrequirements for many facilities andvessels. Some releases that do notqualify as federally permitted releasesunder one of the Federal actsenumerated in CERCLA section 101{10)may nevertheless qualify for reducedreporting as continuous releases underCERCLA section 103[f)[2). Accordingly.the Agency has examined all commentsreceived on the federally permittedrelease proposal that address reportingrequirements for continuous releases.Those comments raised no significantissues regarding continuous releasesthat had not already been raised in thecomments on the continuous releaseproposal.

Moreover. the Agency believes thatpersons in charge of facilities andvessels have had ample opportunity to

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assess the impact of the rules on thebasis of the proposals published in theFederal Register. The federallypermitted release rule was proposed onJuly 19, 1988 (53 FR 27268) and thecomment period was extended toOctober 19, 1988 to accommodatecomments. The federally permittedrelease rule is a complex rulemakinginvolving the provisions of a number ofstatutes in addition to CERCLA section101(10). The Agency believes It would beinappropriate to delay promulgation oftoday's final rule until the promulgationof the federally permitted release rule,which is not expected until the Spring of1991, By promulgating the continuousrelease rule today, the Agency willenable industry to begin reportingimmediately under its provisions.

IV. Regulatory Costs

In the economic analysis supportingthe April 19, 1988 NPRM, EPA assumedas a baseline the costs that the regulatedcommunity incurs when fully complyingwith section 103(a) reportingrequirements. One commenter suggestedthat in so doing EPA assumed an'extremely costly base situation that didnot reflect reality, resultingn very largeand unrealistic cost savings attributableto the continuous release reporting rule.The commenter also stated thatcontinuous releases are not currentlybeing reported because the Agency hadstated, in a 1981 draft document, entitled"Interim Implementation Policy" that itdid not wish to receive notification ofroutine, continuous, or anticipatedintermittent releases.. The draft Interim ImplementationPolicy document did not suggest thatfacilities or vessels were permanentlyexempt from reporting continuousreleases, but rather that, at that time,EPA did not intend to'enfbrce strictlythe notification requirements forcontinuous releases. In its first final ruleon notification requirements andreportable quantity adjustments forhazardous substances, the Agency made-it quite clear that, although It was not ,promulgating a continuous release rule,at that time, "[n]otification of releasesmust be given 'annually, or' at such timeas there is any statistically significantincrease' in the quantity of thehazardous substance being released" (50FR 13458; April 4, 1985). ,

EPA does not agree with the commentthat the baseline used in the economicanalysis supporting the proposed rulewas inappropriate. The purpose of aneconomic baseline is, to provide a .measure of the estimated costs that theaffected community, governmentagencies, and other parties, such as thdgeneral public, would incur if a

regulation were not promulgated.Estimates of the post-regulation costscan be determined once the baseline isestablished. The difference between thepost-regulation costs and the baselinecosts is the incremental cost (or costsavings) attributable to the finalregulation.

Today's continuous release reportingregulation clarifies the reduced reportingrequirements for facilities that releaseCERCLA hazardous substances at levelsthat equal or exceed an RQ on acontinuous basis. As such, it isderegulatory in nature and results Incost savings to affected facilities andvessels relative to the costs that wouldbe incurred were they to report on a per-occurrence basis under CERCLA section103(a). The economic analysissupporting the NPRM used as itsbaseline the reporting requirements thatwould prevail without section 103(f)(2).That is, the economic baseline assumedthat all facilities and vessels wouldreport releases under CERCIA section

.103(a). EPA believes that this is anappropriate approach, butacknowledges that many facilities andvessels with continuous releases ofhazardous substances are not reportingunder section 103(a) and have Iinterpreted the.statutory, provisions ofsection 103(f)(2) as not requiring anyreports of releases that are continuousand stable in quantity and rate.

Under the final rule, the person incharge of any facility or vessel thatreleases a CERCLA hazardoussubstance in a quantity equal to orexceeding'the RQ in a manner that iscontinuous and stable in quantity andratemay submit initial and follow-upnotifications, reports of SSIs in therelease, and reports of changes inpreviously submitted.information,instead of reporting such releases on aper-occurrence basis. Because of thenumerous facilities that have interpretedthe provisions.of section 103(f){2) not torequire any reports, and have, to date,submitted no reports to the Agency, in,the economic analysis supportingtoday's final rule, the baselineassumptions have been-modified torepresent the situation in which noreporting has occurred. As a result, the$5.9 million cost estimate for the finalrule represents annual costs assumingthat the facilities and vessels thatrelease hazardous substances in acontinuous manner are not currentlycomplying with section 103(a) or section.103(f)(2) notification requirements. That.is, it represents.costs incurred to submitinitial and follow-up notifications. SSI -

reports, and reports of changes inpreviously submitted information, as

required by the continuous releasereduced reporting regulation, withouttaking credit for the cost savingsassociated with daily notifications thatare no longer required. The burden isexpressed as a cost rather than a costsavings In order to reflect moreaccurately the reality of the reportingsituation for these facilities. Therefore,the Agency believes it has respondedfully to the commenter's concerns byestimating the potential costs of the finalregulation assuming no prior compliancewith CERCLA reporting requirements.The economic impact analysis (EIA)clearly shows that today's final rule isnonmajor, generating costs well below$100 million.

The same commenter stated that EPAfailed to comply with the PaperworkReduction Act requirement to ensurethat it has taken every reasonable stepto ensure that the collection of.-information is the least burdensome -alternative necessary for the properperformance of the Agency's functionsand to comply with legal and programobjectives. The Agency does not agreethat it failed to comply withrequirements of the PaperworkReduction Act in the publication of theproposed rule.

The Agency considered severalalternative definitions of "continuous,"."stable in quantity and rate," and."statistically significant increase." In theNPRM, as wellas in today's final rule,EPA selected definitions that providethe-person in.charge of a facility orvessel the greatest flexibility inevaluating individual release situations.In particular, "continuous" was definedin the NPRM as "continuous withoutinterruption or abatement, or continuosduring operating-hours, or continuousduring.regularly-occurring batchprocesses." The Agency stated,however, that it-acknowledged thatcertain routine, anticipated, intermittentreleases should also be reportable undersection 103(f)(2). The Agency alsoproposed to allow persons in charge todetermine whether a release is stable inquantity and rate. Similarly, the NPRMprovided that the person In charge coulduse any appropriate statistical test-to-identify SSIs. Today's final rule provideseven-greater flexibility. By allowing theperson in charge to determine thenormal range of the release. and tothereby identify SSIs, the Agency has.selected the least burdensome and leastexpensive option .thatconforms withlegal and.program objectives.

The economic analysis supporting-today's final rule considers threeoptions: (1) Use of a broad definition of..continuous to include routine,-

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anticipated, and intermittent releases, a "continuous" as without interruption or under Option 1; $48.7 million underdefinition of SSIs as releases above the abatement, and a definition of SSI as Option 2; and $873.9 million undernormal range, and a definition of the any release in the top 5 percent of all Option 3, per-occurrence reporting undernormal range to include all releases releases occurring under normal section 103(a).under normal operating conditions operating conditions; and [3) per- The following table summarizes thereported or occurring during the occurrence reporting. Annualized total estimated costs of the analyzed options:preceding year; (2) use of the more costs to industry and government ofrestrictive NPRM definition of these three options are: $5.9 million

ESTIMATEo COSTS OF CONTINUOUS RELEASE REPORTING OPTIONS

EstFiated Et d First year total Annualized Annualizednumber of number costs 88 total costs (88 cost perfacilities SSIs annually (llio(iw dollars)

Option I ........................................................... .... .. . . . . . 10,200 1,510 $11.0, $5.9 $510Option 2.. ...................................... 10.200 143,200 53.9 48.7 3,490Option . . ............................................ 10,200 2,864,200 8741 873.9 62,190

Costs to industry and government areincurred in preparing and processingnotifications of hazardous substancereleases, recordkeeping, and respondingto releases. The substantial difference inestimated total annualized costs amongthe three options results largely fromdifferences in the number of releasesthat must be reported as SSIs. UnderOption 2, about 1,500 SSIs are expectedto be reported, whereas the estimatednumber of SSIs, under Option 2 is about143,200. Under Option 3, all 2,864,000releases of hazardous substancesestimated to occur each year in acontinuous and stable manner must bereported to government authorities. Theestimated cost to industry of reportingSSIs is approximately $215 per releasefor releases of CERCLA hazardoussubstances, and $205 per release forreleases of noii-CEPCLA EHSs. 11 Thecorresponding government costs forprocessing and evaluating an SSI reportIs estimated at about $85 per report forCERCLA hazardous substances and $55per report for non-CERCLA EHSs.

The average cost per facility tocomply ,with the reporting requirementsunder each option, based on'anestimated universe of 10,200 affectedfacilities, is approximately $510annually under Option 1, $3,490annually under Option 2, and $62,190annually for per-occurrence reportingunder section 103(a). The cost savings ofreporting under the final rule areconsiderable, therefore, as comparedwith costs that persons in charge offacilities or vessels would incur If theyreported on a per-occurrence basis. Inselecting the first option in the final rule,EPA believes it has provided persons in

'fThe cost difference between reporting a releaseof a CERCLA hazardous substance and reporting arelease of a in-CRCIA EHS reflects the fact thatreleases ofnoi-CERCLA EK% need not be reportedto the NRC.

charge of facilities and vessels with theleast burdensome, most flexibleapproach to reporting under section103(f)[2) and has fully complied with therequirements of the PaperworkReduction Act.

One commenter suggested that EPAshould use the actual number ofemergency release reports to the NRC asthe basis for estimating the number offacilities that will report under section103(f)(2) and actual estimates for timespent by industry in the past to prepareannual reports. The Agency does notagree. The number of episodic releasesreported annually to the NRC is notrepresentative of the number of facilitiesor vessels that are likely to report underCERCLA section 103[f)[2). Based oninformation In the Toxic ReleaseInventory data base, the New JerseyCommunity Right-to-Know data base.and the Philadelphia Air ManagementServices data base, the Agencyestimates that approximately 10.200facilities are likely to release hazardoussubstances in a continuous and stablemanner at reportable levels. Thisestimate exceeds the'4.900 reports ofhazardous substance releases reportedto the NRC in 1988.

The Agency believes that persons incharge of many facilities and vesselshave interpreted the provisions ofsection 1031)[2) not to require anyreports, and currently are not reportingcontinuous releases to the NRC. TheAgency believes, therefore, that thenumber of episodic release reports tothe NRC cannot be used as a basis forestimating the number of facilities andvessels potentially affected by today'sfinal rule.

Similarly, the Agency does not believethat annual reports submitted byindustry to date. can be used to estimatecosts of compliance with today's rule.Annual reports submitted to date do not

include the information required in theinitial written notification or the follow-up report promulgated in today's rule. Infact, many of the annual reportssubmitted to date tend simply to identifythe facility and the release, and toprovide little additional information.Cost estimates based on such reportscould underestimate reporting costs.

Several commenters stated that EPAsubstantially understated the cost ofimplementing the proposed rule by notincluding the costs of installing andoperating special systems to monitorreleases of hazardous substances. EPAdoes not agree that monitoring costsshould be included in the cost estimatesattributable to the continuous releasereporting rule. Neither the identificationof SSIs nor compliance with thereporting requirements in today's finalrule requires monitoring or measuring ofreleases to acquire empirical data. Useof the normal range to identify SSIs,rather than the use of statistical tests,has eliminated any need for monitoringequipment. The normal range approachrequires only that estimates be made ofthe quantity of each release relative tothe reported normal range. Thisestimation can be based on professionaljudgment; a precise determination of thequantity of the release is not necessary.Also, EPA has limited the informationrequired in the initial and follow-upreports to data that do not requiremonitoring. Therefore, because theprovisions of today's final rule do notrequire or necessitate additionalmonitoring, EPA does not believe it isappropriate to include monitoring costsin the calculations of the estimated totalcosts of today's regulation.-,

One commenter stated that theAgency had underestimated costs byinappropriately assuming that a facilityor vessel would release ,only onehazardous substance subject to the

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continuous release reportingrequirements and, consequently,underestimated the costs to facilities orvessels reporting more than onehazardous substance release. Thecommenter suggested use of thePhiladelphia Air Management Servicesdata to derive an estimate of the numberof facilities or vessels releasing multiplehazardous substances at levels thatequal or exceed the RQ. The Agencyperformed the analysis suggested by thecomnnenter, as well as analyzing datasubmitted under SARA Title III section313. On the basis of these analyses, theAgency determined that, on averageduring a given year, facilities tend tomanufacture, use, or storeapproximately five CERCLA hazardoussubstances and EHSs, and releaseapproximately four substances. Thisestimate, of course, varies considerablyby industry category.

Not all of the hazardous substancereleases equal or exceed the RQ. Basedon the Philadelphia data, less than 6percent (approximately one in 18releases) of releases equaled orexceeded the RQ and would bereportable under CERCLA. Thus, onaverage, across all facilities, it isassumed that approximately one of 18releases will occur at a reportable level.If releases are not independent, then itmay be more likely that a facility willhave multiple releases at reportablelevels. It is not clear, however, whetherthese multiple releases would occursimultaneously from the same source(i.e.,in a mixture) or whether theywould occur as independent releasesfrom different sources. Mixtures arereportable as one release and thus costswould not increase proportionately withthe number of multiple, simultaneousreleases, Releases of differenthazardous substances from differentsources, in contrast, must be reportedseparately.

The economic analysis supportingtoday's final rule, therefore, assumesthat affected facilities releasingCERCLA hazardous substances releaseat most two hazardous substances in acontinuous and stable manner at levelsthat equal or exceed an RQ, and thatfacilities that release non-CERCLAEHSs release one EHS at a reportablelevel. The analysis, however, alsoincludes a sensitivity analysis showingthat, if a facility or vessel has multiplecontinuous releases of hazardoussubstances occurring in an unrelatedmanner at levels that equal or exceedthe RQ regulatory costs for thatparticular facility or vessel couldincrease roughly in proportion to the

number of hazardous substancesreleased at or above the RQ.

One commenter stated that EPAshould revise its estimates of thenumber of facilities affected by theregulations to account for the possibilitythat some facilities that release federallypermitted air emissions also may bereleasing hazardous substances that arenot federally permitted as defined InCERCLA section 101(10) and theproposed regulation clarifying thefederally permitted release exemption.EPA agrees that some of these facilitiesthat have Federal permits also may bereleasing substances that are notconsidered federally permitted underCERCLA section 101(10). The Agency,therefore, has modified its estimates ofthe universe of facilities potentiallyaffected by today's final rule to Includesome facilities that have Federal permitsbut may not be entirely exempted undersection 101(10) from CERCLA reporting.The Agency estimates thatapproximately 10,200 facilities releaseCERCLA hazardous substances andnon-CERCLA EHSs in a manner that iscontinuous and stable In quantity andrate, and at levels that equal or exceedthe RQ. This estimate includes facilities-that have Federal permits, but alsorelease other hazardous substances notcovered by permit limitations.

The information used for the costestimates supporting the April 19, 1988NPRM was based upon the dataavailable at that time. In support of thefinal rule, however, the Agency usedmore recent and accurate data onfacilities that release hazardoussubstances. The Agency used two newdata bases generated as a result ofSARA Title III requirements to estimatethe number of facilities potentiallyaffected by the reporting requirementsunder CERCLA section 103(f)(2). TheNew Jersey Right-to-Know data, base isused to estimate the total number offacilities that manufacture, process, oruse CERCLA hazardous substances andnon-CERCLA El-ISs in the State of NewJersey and the nation as a whole: theSARA Title III section 313 Toxic ReleaseInventory data base is used to estimatethe relationship between the number offacilities that release CERCLAhazardous substances and non-CERCIAEHSs and the number of facilities thatmanufacture, process, or use thesubstances. The Agency believes thatthese data bases provide the bestcurrently available data for estimatingthe number of facilities that will beaffected by the-CERCLA section103(f)(2) requirements. (See EconomicImpact Analysis Supporting the FinalContinuous Release Reporting

Regulation under section 103(f)(2) ofCERCIA, available in the SuperfundDocket, for details on these data basesand the methodology used to estimatethe costs attributable to today's finalrule.)

The 10,200 facilities estimated to beeligible to report releases under section103(f)(2) are estimated to releaseapproximately 13,660 CERCLAhazardous substances and 1,475 non-CERCLA EHSs in a continuous andstable manner. Under Options I and 2,facilities are 'assumed to provide initialnotification for these hazardoussubstance releases in the first year ofimplementation at a unit cost of $360 forCERCLA hazardous substances and$350 for non-CERCLA EHSs. In additionto the costs of providing initialnotification, persons in charge will incurcosts for providing information orclarification at the request ofgovernment authorities, for providingnotification of changes in submittedinformation, for recordkeeping, and forreporting SSIs. Option 3, reporting undersection 103(a), does not have any initial

•or annual reporting requirements; rather,facilities must report releasesimmediately as they occur.

One commenter stated that EPAshould include, in the estimate of theoverall cost of the regulation, the cost ofreporting to State and local authoritiesunder SARA Title III section 304. EPA,agrees with the commenter and hasprovided an estimate of these costs inthe economic analysis supporting thefinal rule. Of the total annual costestimate of $5.9 million for reporting andprocessing reports under the continuousrelease reporting regulation, theannualized cost of all reporting underSARA Title I11304, including SSI reports,is estimated at $0.8 million.

One commenter argued that thecontinuous release reporting rule is amajor rule because it will impose costson society of over $100 million annually,and that even if it is not, it is likely tocause a major increase-in costs orprices. The Agency does not agree thatthe continuous release rule is a majorrule. Even assuming a baseline of noreporting under section 103[a), theannual cost to facilities and vessels ofcomplying with CERCLA section103(f)(2) requirements is estimated to be$5.18 million; the cost to the governmentof processing reports is estimated to be'$0.76 million. This is well below the $100million cost of a major rule and the ruledoes not meet the other criteria for amajor rule. (Criteria for a irajor rule arelisted In the summary of supportinganalyses in section V, below.)

"" ' ' "= ' I II I t I ....... .. . .. -- ] II P I I

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V. Summary of Supporting Analyses

A. Executive Order No. 12291Executive Order (E.O.) No. 12291

requires that regulations be classified asmajor or nonmajor for purposes ofreview by the Office of Managementand Budget (0MB). Under E.O. No.12291, major rules are regulations thatare 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.

As demonstrated by an economicanalysis (Economic Impact AnalysisSupporting the Final Rule on ContinuousRelease Reporting under Section103(f)(2) of CERCLA) performed by theAgency, available for inspection in theSuperfund Docket Room 2427, U.S. EPA,401 M Street SW., Washington, DC20460, this final rule is nonmajor,because the rule will result in estimatedannualized costs of $5.9 million, with$5.18 million incurred by facilities andvessels, and an estimated annualizedcost of $0.76 million incurred by thegovernment. Moreover, the rule will notcause a major increase in costs or pricesmentioned in (2) above or cause any ofthe significant adverse effectsmentioned in (3) above.

OMB completed its review, asrequired by E.O. No. 12291, on March 9,1990 without comment.

B. Regulatory Flexibility ActThe Regulatory Flexibility Act of 1980

requires that a Regulatory FlexibilityAnalysis be performed for all rules thatare likely to have a "significant impacton a substantial number of smallentities." EPA certifies that this finalregulation will not have a significantimpact on a substantial number of smallentities and that a Regulatory FlexibilityAnalysis is not required. See ChapterFive of the Economic Analysissupporting today's final rule, availablein the Superfund Docket

C. Paperwork Reduction ActThe information collection

requirements contained in this rule havebeen approved by the Office ofManagement apd Budget (OMB) underthe provisions of the PaperworkReduction Act of 1980, 44 U.S.C. 3501 etseq. and have been assigned OMB

control numbers 2050-0086 and 2050-0092.

Public reporting burden for thiscollection of information is estimated at9 hours per response for the initialwritten report, at 5 hours per responsefor the follow-up report, and at 2.2 hoursper change notification letter, includingtime for reviewing instructions,searching existing data sources,gathering and maintaining the dataneeded, and completing and reviewingthe collection of information.

Send comments regarding the burdenestimate or any other aspect of thiscollection of information, includingsuggestions for reducing this burden, toChief. Information Policy Branch, PM-223, U.S. Environmental ProtectionAgency, 401 M Street SW., Washington,DC 20460; and to the Office ofInformation and Regulatory Affairs,Office of Management and Budget,Washington, DC 20503, marked"Attention: Desk Officer for EPA."

List of Subjects

40 CFR Part 302Air pollution control, Chemicals,

Hazardous materials transportation,Hazardous substances, Hazardouswastes, Intergovernmental relations,Natural resources, Nuclear materials,Pesticides and pests, Radioactivematerials, Reporting and recordkeepingrequirements, Superfund, Wastetreatment and disposal, Water pollutioncontrol.

40 CFR Part 355Chemical accident prevention,

Chemical emergency preparedness,Chemicals, Community emergencyresponse plan, Community right-to-know, Contingency planning, Extremelyhazardous substances, Hazardoussubstances, Reportable quantity,Reporting and recordkeepingrequirements, Threshold planningquantity. ,

Dated: June 21, 1990.William K. Reilly,Administrator.

For the reasons set out in thepreamble, title 40 of the Code of FederalRegulations is amended as follows:

PART 302-DESIGNATION,REPORTABLE QUANTITIES, ANDNOTIFICATION

1. The authority citation for part 302 isrevised to read as follows:

Authority: 42 U.S.C. 9602,9603, and 9604; 33U.S.C. 1321 and 1361.

2. Part 302 is amended by adding1 302.8 to read as follows:

§ 302.8 Continuous releases.(a) Except as provided in paragraph

(c) of this section, no notification isrequired for any release of a hazardoussubstance that is, pursuant to thedefinitions in paragraph (b) of thissection, continuous and stable inquantity and rate.

(b) Definitions. The following* definitions apply to notification ofcontinuous releases:

Continuous. A continuous release is arelease that occurs without interruptionor abatement or that Is routine,anticipated, and intermittent andincidental to normal operations ortreatment processes..

Normal range. The normal range of arelease is all releases (in pounds orkilograms) of a hazardous substancereported or occurring over any 24-hourperiod under normal operatingconditions during the preceding year.Only releases that are both-continuousand stable in quantity and rate may beincluded in the normal range.

Routine. A routine release is a releasethat occurs during normal operatingprocedures or processes,

Stable in quantity and rate. A releasethat is stable in quantity and rate is arelease that is predictable and regular inamount and rate of emission.

Statistically significant increase. Astatistically significant increase in arelease is an increase in the quantity ofthe hazardous substance released abovethe upper bound of the reported normalrange of the release.

(c) Notification. The followingnotifications shall be given for anyrelease qualifying for reduced reportingunder this section:

(1) Initial telephone notification;(2) Initial written notification within

30 days of the initial telephonenotification;

(3) Follow-up notification within 30days of the first anniversary date of theinitial written notification;

(4) Notification of a change in thecomposition or source(s) of the releaseor in the other information submitted inthe initial written notification of therelease under paragraph (c)(2) of thissection or the follow-up notificationunder paragraph (c)(3) of this section;and

(5) Notification at such times as anincrease in the quantity of thehazardous substance being releasedduring any 24-hour period represents astatistically significant Increase asdefined in paragraph (b) of this section.

(d) Initial telephone notification. Priorto making an initial telephonenotification of a continuous release, theperson in charge of a facility or vessel

Ill

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30186 Federal Register / Vol. 55. No. 142 / Tuesday, July 24, 1990 / Rules and Regulations

must establish a sound basis forqualifying the release for reportingunder CERCLA section 103(f)(2) by:

(1) Using release data, engineeringestimates, knowledge of operatingprocedures, or best professionaljudgment to establish the continuity andstability of the release; or

(2) Reporting the release to theNational Response Center for a periodsufficient to establish the continuity andstability of the release.

(3) When a person in charge of thefacility or vessel believes that a basishas been established to qualify therelease for reduced reporting under thissection, initial notification to theNational Response Center shall be madeby telephone. The person in charge mustidentify the notification as an initialcontinuous release notification reportand provide the following information:

(i) The name and location of thefacility or vessel; and

(iiI The name(s) and identity(ies) ofthe hazardous substance(s) beingreleased.

(e] Initial written notification. Initialwritten notification of a continuousrelease shall be made to the appropriateEPA Regional Office for thegeographical area where the releasingfacility or vessel is located. (Note: Inaddition to the requirements of this part.releases of CERCLA hazardoussubstances are also subject to theprovisions of SARA Title M section 304.and EPA's implementing regulationscodified at 40 CFR part 355, whichrequire initial telephone and writtennotifications of continuous releases tobe submitted to the appropriate Stateemergency response commission andlocal emergency planning committee.)

(1] Initial written notification to theappropriate EPA Regional Office shalloccur within 30 days of the initialtelephone notification to the NationalResponse Center, and shall include, foreach release for which reducedreporting as a continuous release isclaimed, the following information:

(i) The name of the facility or vessel;the location, including the latitude andlongitude; the case number assigned bythe National Response Center or theEnvironmental Protection Agency; theDun and Bradstreet number of thefacility, if available; the port ofregistration of' the vessel; the name andtelephone number of the person incharge of the facility or vessel,

(ii) The population density within a,one-mile radius of the facility or vessel,described in terms of the followingranges: 0-50 persons. 51-100 persons.101-500 persons, 501-1,000 persons,more than 1.000 persons.

.(iii) The identity and location ofsensitive populations and ecosystemswithin a one-mile radius of the facilityor vessel (e.g.. elementary schools,hospitals, retirement communities, orwetlands).

(iv) For each hazardous substancerelease claimed to qualify for reportingunder CERCLA section 103(f)(2, thefollowing information must be supplied:

(A) The name/identity of thehazardous substance; the ChemicalAbstracts Service Registry Number forthe substance (if available); and if thesubstance being released is a mixture,the components of the mixture and theirapproximate concentrations andquantities, by weight.

(B) The upper and lower bounds of thenormal range of the release (in poundsor kilograms) over the previous year.

(C) The source(s) of the release (e.g.,valves, pump seals, storage tank vents,stacks). If the release is from a stack, thestack height (in feet or meters).

(D) The frequency of the release andthe fraction of the release from eachrelease source and the specific periodover which it occurs.

(E) A brief statement describing thebasis for stating that the release iscontinuous and stable in quantity andrate.

(F) An estimate of the total annualamount that was released in theprevious year (in pounds or kilograms).

(G) The environmental medium(a)affected by the release:

(1) If surface water, the name of thesurface water body;

(2) If a stream, the stream order oraverage flowrate (in cubic feet/second)and designated use;

(3] If a lake, the surface area (in acres)and average depth (in feet or meters];

(4) If on or under ground, the locationof public water supply wells within twomiles.

(H) A signed statement that thehazardous substance release(s)described is(are) continuous and stablein quantity and rate under thedefinitions in paragraph (a) of thissection and that all reported informationis accurate and current to the bestknowledge of the person in charge.

(f) Foflow-up notification. Within 30days of the first anniversary date of theinitial written notification, the person incharge of the facility or vessel shallevaluate each hazardous substancerelease reported to verify and updatethe information submitted in the initialwritten notification. The follow-upnotification shall include the followinginformation:

(1) The name of the facility or vessel;the location. including the latitude andlongitude; the case number assigned by

the National Response Center or theEnvironmental Protection Agency; theDun and Bradstreet number of thefacility, if available; the port ofregistration of the vessel; the name andtelephone number of the person incharge of the facility or vessel.

(2) The population density within aone-mile radius of the facility or vessel,described in terms of the followingranges: 0-50 persons, 51-100 persons,101-500 persons. 501-1,000 persons,more than 1,000 persons.

(3) The identity and location ofsensitive populations and ecosystemswithin a one-mile radius of the facilityor vessel (e.g., elementary schools.hospitals, retirement communities, orwetlands).

(4) For each hazardous substancerelease claimed to qualify for reportingunder CERCLA section 103(f)(2), thefollowing information shall be supplied.

(i) The name/identity of thehazardous substance; the ChemicalAbstracts Service Registry Number forthe substance (if available); and If thesubstance being released is a mixture,the components of the mixture and theirapproximate concentrations andquantities, by weight.

(ii) The upper and lower bounds of thenormal range of the release (in poundsor kilograms) over the previous year.

(iii) The source(s) of the release (e.g..valves, pump seals, storage tank vents,stacks). if the release is from a stack, thestack height (in feet or meters).

(iv) The frequency 6f the release andthe fraction of the release from eachrelease source and the specific periodover which it occurs.

(v) A brief statement describing thebasis for stating that the release iscontinuous and stable in quantity andrate.

(vi} An estimate of the total annualamount that was released in theprevious year (in pounds or kilograms).

(vii] The environmental medium(a)affected by the release:

(A) If surface water, the name of thesurface water body;

(B] If a stream, the stream order oraverage flowrate (in cubic feet/second)and designated use;

(C) If a lake, the surface area (inacres) and average depth (in feet ormeters);

(D) If on or under ground, the locationof public water supply wells within twomiles.

(viii) A signed statement that thehazardous substance release(s) is(are)continuous and stable in quantity andrate under the definitions in paragraph(a) of this section and that all reportedinformation is accurate and current to

F ed eral R egister / V ol. 55, N o. 142 / T u esd ay , July 24, 1990 / Rules and R egulations 30187

the best knowledge of the person in charge.

(g) N otification o f changes in the release> If there is a change in the release, notification of the change, not otherwise reported, shall be provided in the following manner:

(1) Change in source or com position.If there is any change in the composition or source(s) of the release, the release is a new release and must be qualified for reporting under this section by the submission of initial telephone notification and initial written notification in accordance with paragraphs (c)(1) and (2) of this section as soon as there is a sufficient basis for asserting that the release is continuous and stable in quantity and rate;

(2) Change in the norm al range. If there is a change in the release such that the quantity of the release exceeds the upper bound of the reported normal range, the release must be reported as a statistically significant increase in the release. If a change will result in a number of releases that exceed the upper bound of the normal range, the person in charge of a facility or vessel may modify the normal range by:

(i) Reporting at least one statistically significant increase report as required under paragraph (c)(7) of this section and, at the same time, informing the National Response Center of the change in the normal range; and

(ii) Submitting, within 30 days of the telephone notification, written notification to the appropriate EPA Regional Office describing the new normal range, the reason for the change, and the basis for stating that the release in the increased amount is continuous and stable in quantity and rate under the definitions in paragraph (b) of this section.

(3) Changes in other reported information. If there is a change in any information submitted in the initial written notification or the follow-up notification other than a change in the source, composition, or quantity of the release, the person in charge of the facility or vessel shall provide written notification of the change to the EPA Region for the geographical area where the facility or vessel is located, within 30 days of determining that the information submitted previously is no longer valid. Notification shall include the reason for the change, and the basis for stating that the release is continuous and stable under the changed conditions.

(4) Notification of changes shall include the case number assigned by the National Response Center or the Environmental Protection Agency and also the signed certification statement required at (c)(2)(xi) of this section.

(h) N otification o f a statistically significant in crease in a release. Notification of a statistically significant increase in a release shall be made to the National Response Center as soon as the person in charge of the facility or vessel has knowledge of the increase. The release must be identified as a statistically significant increase in a continuous release. A determination of whether an increase is a “statistically significant increase” shall be made based upon calculations or estimation procedures that will identify releases that exceed the upper bound of the reported normal range.

(i) Annual evaluation o f releases.Each hazardous substance release shall be evaluated annually to determine if changes have occurred in the information submitted in the initial written notification, the follow-up notification, and/or in a previous change notification.

(j) Use o f the SARA Title III section 313 form . In lieu of an initial written report or a follow-up report, owners or operators of facilities subject to the requirements of SARA Title III section 313 may submit to the appropriate EPA Regional Office for the geographical area where the facility is located, a copy of the Toxic Release Inventory form submitted under SARA Title III section 313 the previous July 1, provided that the following information is added:

(1) The population density within a one-mile radius of the facility or vessel, described in terms of the following ranges: 0-50 persons, 51-100 persons, 101-500 persons, 501-1,000 persons, more than 1,000 persons.

(2) The identity and location of sensitive populations and ecosystems within a one-mile radius of the facility or vessel (e.g., elementary schools, hospitals, retirement communities, or wetlands).

(3) For each hazardous substance release claimed to qualify for reporting under CERCLA section 103(f)(2), the following information must be supplied:

(i) The upper and lower bounds of the normal range of the release (in pounds or kilograms) over the previous year.

(ii) The frequency of the release and the fraction of the release from each release source and the specific period over which it occurs.

(iii) A brief statement describing the basis for stating that the release is continuous and stable in quantity and rate.

(iv) A signed statement that the hazardous substance release(s) is(are) continuous and stable in quantity and rate under the definitions in paragraph (b) of this section and that all reported

information is accurate and current to the best knowledge of the person in charge.

(k) Documentation supporting notification. Where necessary to satisfy the requirements of this section, the person in charge may rely on recent release data, engineering estimates, the operating history of the facility or vessel, or other relevant information to support notification. All supporting documents, materials, and other information shall be kept on file at the facility, or in the case of a vessel, at an office within the United States in either a port of call, a place of regular berthing, or the headquarters of the business operating the vessel. Supporting materials shall be kept on file for a period of one year and shall substantiate the reported normal range of releases, the basis for stating that the release is continuous and stable in quantity and rate, and the other information in the initial written report, the follow-up report, and the annual evaluations required under paragraphs (e), (f), and (i), respectively. Such information shall be made available to EPA upon request as necessary to enforce the requirements of this section.

(l) M ultiple concurrent releases. Multiple concurrent releases of the same substance occurring at various locations with respect to contiguous plants or installations upon contiguous grounds that are under common ownership or control may be considsred separately or added together in determining whether such releases constitute a continuous release or a statistically significant increase under the definitions in paragraph (b) of this section; whichever approach is elected for purposes of determining whether a release is continuous also must be used to determine a statistically significant increase in the release.

(m) Penalties fo r failu re to comply. The reduced reporting requirements provided for under this section shall apply only so long as the person in charge complies fully with all requirements of paragraph (c) of this section. Failure to comply with respect to any release from the facility or vessel shall subject the person in charge to all of the reporting requirements of § 302.6 for each such release, to the penalties under § 302.7, and to any other applicable penalties provided for by law.

(Approved by the Office of Management and

Budget under the control number 2050-0086).

environmental protection agency · u.s. environmental protection agency (epa). action: final rule....

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