[Federal Register Volume 63, Number 240 (Tuesday, December 15, 1998)]
[Rules and Regulations]
[Pages 69166-69168]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-33213]



[[Page 69165]]

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Part III





Environmental Protection Agency





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40 CFR Part 302



Reportable Quantities: Removal of Caprolactam From the List of CERCLA 
Hazardous Substances; Rule and Proposed Rule

  Federal Register / Vol. 63, No. 240 / Tuesday, December 15, 1998 / 
Rules and Regulations  

[[Page 69166]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 302

[FRL-6202-4]
RIN 2050-AE48


Reportable Quantities: Removal of Caprolactam From the List of 
CERCLA Hazardous Substances

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is amending 
regulations under the Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980, as amended, to remove 
caprolactam (CAS No. 105-60-2) from the list of CERCLA hazardous 
substances. CERCLA section 101(14) defines the term hazardous substance 
by referring to those substances listed under several other 
environmental statutes, including section 112(b) of the Clean Air Act 
(CAA), as well as substances designated by EPA as hazardous under 
CERCLA section 102(a). Today's action follows the removal of 
caprolactam from the list of hazardous air pollutants under section 
112(b)(1) of the Clean Air Act Amendments of 1990. The effect of 
today's action is that caprolactam is no longer a CERCLA hazardous 
substance. Persons in charge of vessels or facilities from which 
caprolactam is released are no longer required to immediately notify 
the National Response Center of the release under CERCLA section 103, 
and are not subject to the liability provisions under CERCLA section 
107. Unless EPA receives adverse written comments during the review and 
comment period provided in this direct final rule, the decision to 
remove caprolactam from the list of CERCLA hazardous substances will 
take effect without further notice as provided in the Dates section of 
this Federal Register. If EPA receives adverse comment, EPA will 
withdraw this rule before its effective date by publishing a document 
in the Federal Register informing the public that the rule will not 
take effect.

DATES: This final rule is effective on February 16, 1999 unless the 
Agency receives adverse comments by January 14, 1999. Should the Agency 
receive such comments, it will publish a timely withdrawal informing 
the public that this rule will not take effect.

ADDRESSES: Mail written comments referring to Docket Number (102RQ-CAP) 
to Lynn Beasley, Office of Emergency and Remedial Response (5204G), 
U.S. Environmental Protection Agency, 401 M Street, SW, Washington, DC 
20460, Phone: (703) 603-9086. You can examine copies of public comments 
and other materials supporting EPA's decision to remove caprolactam 
from the Clean Air Act and CERCLA lists of hazardous substances at the 
U.S. Environmental Protection Agency Superfund Docket and Document 
Center, 1235 Jefferson Davis Highway (1st floor), Arlington, Virginia 
22202. Docket hours are 9:00 a.m. to 4:00 p.m., Monday through Friday. 
Please call (703) 603-9232 for an appointment. The public may copy a 
maximum of 100 pages from any regulatory docket at no charge; 
additional copies cost $0.15 per page.

FOR FURTHER INFORMATION CONTACT: For information on specific aspects of 
this final rule, contact Lynn Beasley by mail at Office of Emergency 
and Remedial Response (5204G), U.S. Environmental Protection Agency, 
401 M Street, SW, Washington, DC 20460, by phone at (703) 603-9086, or 
by Internet e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

Outline of Today's Rule

I. Authority
II. Background
III. Administrative Requirements
    A. Executive Order 12866
    B. Executive Order 12875
    C. Executive Order 13084
    D. Executive Order 13045
    E. Regulatory Flexibility Act
    F. Paperwork Reduction Act
    G. Unfunded Mandates Reform Act
    H. National Technology Transfer and Advancement Act
    I. Congressional Review Act
IV. List of Subjects

I. Authority

    This document is issued under the authority of section 102 of the 
Comprehensive Environmental Response, Compensation, and Liability Act 
of 1980, 42 U.S.C. 9602.

II. Background

    Section 101(14) of CERCLA defines the term hazardous substance as 
those substances listed under several other environmental statutes and 
those substances designated by EPA as hazardous under CERCLA section 
102(a). In particular, CERCLA section 101(14)(E) incorporates by 
reference the list of hazardous air pollutants listed in section 
112(b)(1) of the Clean Air Act. CERCLA section 102(a) authorizes EPA to 
designate as hazardous those substances that, when released into the 
environment, may present substantial danger to the public health or 
welfare or the environment, and to establish the reportable quantity 
for all CERCLA hazardous substances. A list of CERCLA hazardous 
substances with their corresponding reportable quantities is provided 
in Table 302.4 at 40 CFR part 302. CERCLA section 103 requires any 
person who releases a CERCLA hazardous substance in an amount equal to 
or greater than its reportable quantity to report the release 
immediately to the Federal government.
    In 1990, amendments to section 112(b)(1) of the Clean Air Act added 
the substance caprolactam (CAS No. 105-60-2) to the list of hazardous 
air pollutants. Because the CERCLA definition of hazardous substance 
includes CAA hazardous air pollutants, caprolactam immediately became a 
CERCLA hazardous substance. On June 12, 1995, EPA updated Table 302.4 
to include caprolactam and established a reportable quantity of 5,000 
pounds for the substance (see 60 FR 30926). In July 1993, EPA received 
a petition to remove caprolactam from CAA section 112(b)(1). Following 
a review of the petition, EPA determined that there was adequate data 
on the health and environmental effects of caprolactam to indicate that 
emissions, ambient concentrations, bioaccumulation, or deposition of 
the substance would not cause adverse human health or environmental 
effects. Based on this determination, the Agency proposed to remove 
caprolactam from the list of CAA hazardous air pollutants at section 
112(b)(1), and after taking comment, removed caprolactam from the list 
on June 18, 1996 (see 61 FR 30816). Parties had an opportunity to 
comment on the effect of removing caprolactam as a hazardous air 
pollutant prior to that final rule.
    Today, the Agency is taking action to remove caprolactam from the 
list of CERCLA hazardous substances. The Agency does not have 
independent basis upon which to retain caprolactam as a CERCLA 
hazardous substance. The Agency's designation of caprolactam under 
section 102(a) was based solely upon its inclusion as a hazardous 
substance under section 101(14)(E) of CERCLA.
    This rule will be effective February 16, 1999 without further 
notice unless the Agency receives adverse comments by January 14, 1999. 
If EPA receives adverse comments, the Agency will publish a notice 
informing the public that the rule will not take effect prior to the 
effective date. A companion rule is in the Proposed Rule section of 
today's Federal Register. Should the Agency receive any adverse 
comments, this final

[[Page 69167]]

rule will be withdrawn and the Agency will proceed with the proposed 
rule. All public comments received will be addressed in a subsequent 
final rule based on the proposed rule. EPA will not institute a second 
comment period on this rule. Parties interested in commenting on this 
rule should do so at this time. If no adverse comments are received, 
the public is advised that this rule will be effective on February 16, 
1999 and no further action will be taken on the proposed rule. In 
general, adverse comments are comments that suggest that the rule 
should not be adopted, that offer contrary facts or that dispute the 
factual basis of the rulemaking. If you are interested in commenting 
you should do so in accordance with the time frame provided in today's 
Federal Register. Provide any written comments on this rule to the 
address indicated in the ADDRESSES section above.
    The Agency is removing caprolactam from the list of hazardous 
substances through direct final rule because it does not expect any 
adverse comments and as stated above, parties had an opportunity to 
coment on the effect of removing caprolactam from the hazardous air 
pollutant list prior to that final rule (61 FR 30816). Because 
regulating caprolactam under CERCLA presents an unnecessary burden to 
industry, EPA believes that the public's interest is best served by 
immediately removing caprolactam from the list of CERCLA hazardous 
substances.

III. Administrative Requirements

A. Executive Order 12866

    Under Executive Order 12866, (58 FR 51735, October 4, 1993) the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to Office of Management and Budget (OMB) review 
and the requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    EPA has determined that this rule is not a ``significant regulatory 
action'' under the terms of E.O. 12866 and is therefore not subject to 
OMB review.

B. Executive Order 12875

    Under Executive Order 12875, EPA may not issue a regulation that is 
not required by statute and that creates a mandate upon a State, local 
or tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments, or EPA consults with those governments. If EPA complies by 
consulting, Executive Order 12875 requires EPA to provide to the Office 
of Management and Budget a description of the extent of EPA's prior 
consultation with representatives of affected State, local and tribal 
governments, the nature of their concerns, copies of any written 
communications from the governments, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 12875 
requires EPA to develop an effective process permitting elected 
officials and other representatives of State, local and tribal 
governments ``to provide meaningful and timely input in the development 
of regulatory proposals containing significant unfunded mandates.'' 
Today's rule does not create a mandate on State, local or tribal 
governments and it does not impose any enforceable duties on these 
entities. Accordingly, the requirements of Executive Order 12875 do not 
apply to this rule.

C. Executive Order 13084

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of Indian tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that significantly or uniquely affect their communities.'' This rule is 
not subject to this Executive Order because it does not impose 
substantial direct compliance cost on tribal communities and it does 
not significantly or uniquely affect those communities.

D. Executive Order 13045

    Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any 
rule that: (1) is determined to be ``economically significant'' as 
defined under E.O. 12866, and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health or safety effects of the 
planned rule on children, and explain why the planned regulation is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency. This rule is not subject to the 
Executive Order because it is not economically significant as defined 
in E.O. 12866, and because it does not involve decisions based on 
environmental health or safety risks.

E. Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996) whenever an agency is required to publish a notice of 
rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small governmental jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities.
    SBREFA amended the Regulatory Flexibility Act to require Federal 
agencies to provide a statement of the factual basis for certifying 
that a rule will not have a significant economic impact on a 
substantial number of small entities. The following discussion explains 
EPA's determination. Because the action being taken by the Agency in 
today's notice reduces regulatory requirements, the Administrator 
certifies pursuant to U.S.C. 605(b) that

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this rule will not have a significant economic impact on a substantial 
number of small entities. This regulation, therefore, does not require 
a regulatory flexibility analysis.

F. Paperwork Reduction Act

    This final rule does not contain any information collection 
requirements subject to OMB review under the Paperwork Reduction Act of 
1980, 44 U.S.C. 3501 et seq.

G. Unfunded Mandates Reform Act

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

H. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless doing so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. The NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards. This action 
does not involve technical standards. Therefore, EPA did not consider 
the use of any voluntary consensus standards.

I. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report which includes a copy of the rule to 
each House of Congress and to the Comptroller General of the United 
States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A Major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective February 16, 1999.

List of Subjects in 40 CFR Part 302

    Environmental protection, Air pollution control, Chemicals, 
Hazardous materials, Hazardous wastes, Intergovernmental relations, 
Natural resources, Reporting and recordkeeping requirements, Superfund, 
Waste treatment and disposal, Water pollution control.

    Dated: December 9, 1998.
Carol Browner,
Administrator.

    40 CFR Part 302 is amended as follows:

PART 302--DESIGNATION, REPORTABLE QUANTITIES, AND NOTIFICATION

    1. The authority citation for Part 302 continues to read as 
follows:

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


Sec. 302.4  [Amended]

    2. Amend Sec. 302.4 by removing the entry for ``Caprolactam'' from 
Table 302.4.

[FR Doc. 98-33213 Filed 12-14-98; 8:45 am]
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