[Federal Register Volume 64, Number 51 (Wednesday, March 17, 1999)]
[Rules and Regulations]
[Pages 13113-13115]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-6512]



[[Page 13113]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 302 and 355

[FRL-6309-3a]


Administrative Reporting Exemptions for Certain Radionuclide 
Releases

AGENCY: Environmental Protection Agency (EPA).

ACTION: Technical amendment of final rule.

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SUMMARY: The Environmental Protection Agency today is issuing amended 
language to a final rule published on March 19, 1998, (63 FR 13460) 
that granted exemptions from certain reporting requirements under the 
Comprehensive Environmental Response, Compensation, and Liability Act 
and the Emergency Planning and Community Right-to-Know Act.
    Among other reporting exemptions, the March 19, 1998, final rule 
exempted from certain reporting requirements releases of naturally 
occurring radionuclides associated with land disturbance incidental to 
extraction activities, except that which occurs at uranium, phosphate, 
tin, zircon, hafnium, vanadium, and rare earth mines. Today's technical 
amendment will clarify that land disturbance incidental to extraction 
includes replacing in mined-out areas coal ash, earthen materials from 
farming and construction, or overburden or other raw materials 
generated from the exempted mining activities. The clarification is 
intended to remove misunderstanding as to which radionuclide releases 
are subject to the final reporting exemptions.

EFFECTIVE DATE: March 17, 1999.

ADDRESSES:
    Release Notification: The toll-free telephone number of the 
National Response Center is 800/424-8802; in the Washington, DC 
metropolitan area, the number is 202/267-2675. The facsimile number for 
the National Response Center is 202/267-2165 and the telex number is 
892427.
    Docket: Copies of materials relevant to the March 19, 1998, 
rulemaking are contained in the U.S. EPA CERCLA Docket Office, Crystal 
Gateway #1, 1st Floor, 1235 Jefferson Davis Highway, Arlington, VA 
22202 [Docket Number 102RQ3-RN-2]. The docket is available for 
inspection, by appointment only, between the hours of 9:00 a.m. and 
4:00 p.m., Monday through Friday, excluding Federal holidays. 
Appointments to review the docket can be made by calling 703/603-9232. 
The public may copy a maximum of 266 pages from any regulatory docket 
at no cost. If the number of pages copied exceeds 266, however, an 
administrative fee of $25 and a charge of $0.15 per page for each page 
after page 266 will be incurred. The Docket Office will mail copies of 
materials to requestors who are outside the Washington, DC metropolitan 
area. The docket for the March 19, 1998, rulemaking will be kept in 
paper form.

FOR FURTHER INFORMATION CONTACT: The RCRA/UST, Superfund, and EPCRA 
Hotline at 800/424-9346 (in the Washington, DC metropolitan area, 
contact 703/412-9810). The Telecommunications Device for the Deaf (TDD) 
Hotline number is 800/553-7672 (in the Washington, DC metropolitan 
area, contact 703/486-3323); or the Office of Emergency and Remedial 
Response (5202G), U.S. Environmental Protection Agency, 401 M Street, 
SW, Washington, DC 20460 (contact Elizabeth Zeller 703/603-8744).

SUPPLEMENTARY INFORMATION:

Potentially Affected Entities

    Entities that may be affected by this technical amendment include: 
(1) persons in charge of vessels or facilities that may have naturally 
occurring radionuclide releases into the environment that are among 
those granted an administrative reporting exemption by the March 19, 
1998, final rule; and (2) entities that plan for or respond to such 
releases.
    The table below lists potentially affected entities. This table is 
not intended to be exhaustive, but rather provides a guide for readers 
regarding entities likely to be affected by this action. Other entities 
not listed in the table could also be affected. To determine whether 
your organization is affected by this action, carefully examine the 
changes to 40 CFR parts 302 and 355. If you have questions regarding 
the applicability of this action to a particular entity, consult the 
contact names and phone numbers listed in the preceding FOR FURTHER 
INFORMATION CONTACT section of this preamble.

                      Potentially Affected Entities
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        Type of entity               Examples of affected entities
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Industry.....................  Mines and entities that backfill mined-
                                out areas.
State, Local, or Tribal        State Emergency Response Commissions,
 Governments.                   Local Emergency Planning Committees.
Federal Government...........  National Response Center, and any Federal
                                agency that may have radionuclide
                                releases granted a reporting exemption.
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Reasons for Today's Amendment

    The March 19, 1998, final rule broadened exemptions from the CERCLA 
section 103 and EPCRA section 304 release reporting requirements to 
include releases of naturally occurring radionuclides from land 
disturbance incidental to extraction activities at all mines except 
certain categories of mines that are likely to handle raw materials 
with elevated radionuclide concentrations. The final rule also 
broadened the reporting exemptions to include releases of naturally 
occurring radionuclides to and from coal and coal ash piles at all 
sites. EPA granted these exemptions to eliminate needless reporting 
burdens on persons responsible for certain mine sites and coal and coal 
ash piles. The reporting exemptions also allow the government to better 
focus its resources on the most serious releases, resulting in more 
effective protection of public health and welfare and the environment.
    Sections 302.6(c)(2) and 355.40(a)(2)(vi)(B) of the final rule 
stated that land disturbance incidental to extraction includes: land 
clearing; overburden removal and stockpiling; excavating, handling, 
transporting, and storing ores and other raw materials; and replacing 
materials in mined-out areas so long as such materials have not been 
beneficiated or processed and do not contain elevated radionuclide 
concentrations (defined as greater than 7.6 picocuries per gram or pCi/
g of Uranium-238, 6.8 pCi/g of Thorium-232, or 8.4 pCi/g of Radium-226, 
which equal two times the upper end of the concentration range reported 
in the literature for typical surface soil). One person involved with a 
mining operation has since commented that this language can be read to 
suggest that mines subject to the reporting exemption would have to 
test their raw materials or any other materials they use to backfill 
mined-out areas to determine

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whether they are below the stated concentration thresholds. If so, such 
a requirement would in fact impose a new burden on those categories of 
mines that were supposed to be granted regulatory relief.
    EPA did not intend for the reporting exemptions to be contingent on 
new measurements of radionuclide concentrations in materials handled at 
mines. Instead, the final rule itself distinguished between the exempt 
mines and those mines handling ores likely to have elevated 
radionuclide concentrations. The final rule granted the exemption for 
radionuclide releases from land disturbance incidental to extraction 
based on the Agency's review of available data showing that overburden 
and raw (not beneficiated or processed) ore generated at most types of 
mines have radionuclide concentrations that are at or near background. 
EPA intended to exempt all land disturbance in the exempt mines, 
including replacement, so long as the replacement materials originated 
from an exempt activity. Therefore, mines subject to the exemption do 
not need to test their raw materials when backfilling mined-out areas.
    In summary, mines subject to the exemption do not need to report 
releases associated with the placement of raw materials that they 
generate into mined-out areas. Moreover, mines subject to the exemption 
do not need to report radionuclide releases associated with the 
placement of coal ash or earthen materials from farming or construction 
into mined-out areas, because these materials have also been found to 
have radionuclide concentrations that are at or near background. 
Today's technical amendment to the final regulatory language clarifies 
these points and removes confusing language from the regulation.
    Today's notice does not create any new or any different regulatory 
requirement; rather, it clarifies which activities are covered by the 
administrative exemptions promulgated on March 19, 1998. For this 
reason, EPA finds that this rule falls under the good cause exemption 
in section 553(b) of the Administrative Procedure Act (APA), allowing 
the Agency to forego prior notice and opportunity for public comment 
before issuing this final rule. For the same reason, EPA finds that 
good cause exists to provide for an immediate effective date under 
section 553(d) of the APA.

Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and is therefore not 
subject to review by the Office of Management and Budget. In addition, 
this action does not impose any enforceable duty, contain any unfunded 
mandate, or impose any significant or unique impact on small 
governments as described in the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4). This rule also does not require prior consultation 
with State, local, and tribal government officials as specified by 
Executive Order 12875 (58 FR 58093, October 28, 1993) or Executive 
Order 13084 (63 FR 27655 (May 10, 1998), or involve special 
consideration of environmental justice related issues as required by 
Executive Order 12898 (59 FR 7629, February 16, 1994). Because this 
action is not subject to notice-and-comment requirements under the 
Administrative Procedure Act or any other statute, it is not subject to 
the regulatory flexibility provisions of the Regulatory Flexibility Act 
(5 U.S.C. 601 et seq.). This rule also is not subject to Executive 
Order 13045 (62 F.R. 19885, April 23, 1997) because EPA interprets E.O. 
13045 as applying only to those regulatory actions that are based on 
health or safety risks, such that the analysis required under section 
5-501 of the Order has the potential to influence the regulation. This 
rule is not subject to E.O. 13045 because it does not establish an 
environmental standard intended to mitigate health or safety risks. 
EPA's compliance with these statutes and Executive Orders for the 
underlying rule is discussed in the March 19, 1998 Federal Register 
notice.

Submission to Congress and the General Accounting Office

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of Congress and to the Comptroller General of the United 
States. Section 808 allows the issuing agency to make a rule effective 
sooner than otherwise provided by the CRA if the agency makes a good 
cause finding that notice and public procedure is impracticable, 
unnecessary or contrary to the public interest. This determination must 
be supported by a brief statement. 5. U.S.C. Sec. 808(2). As stated 
previously, EPA has made such a good cause finding, including the 
reasons therefor, and established an effective date of March 17, 1999. 
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. This rule is not a ``major rule'' as 
defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Parts 302 and 355

    Environmental protection, Air pollution control, Chemicals, 
Hazardous materials, Hazardous wastes, Reporting and recordkeeping 
requirements, Superfund, Water pollution control, Water supply.

    Dated: February 19, 1999.
Timothy Fields, Jr.,
Acting Assistant Administrator.

    For the reasons set out above, title 40, chapter I of the Code of 
Federal Regulations 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.

    2. Section 302.6 is amended by revising paragraph (c)(2) to read as 
follows:


Sec. 302.6  Notification requirements.

* * * * *
    (c) * * *
    (2) Releases of naturally occurring radionuclides from land 
disturbance activities, including farming, construction, and land 
disturbance incidental to extraction during mining activities, except 
that which occurs at uranium, phosphate, tin, zircon, hafnium, 
vanadium, monazite, and rare earth mines. Land disturbance incidental 
to extraction includes: land clearing; overburden removal and 
stockpiling; excavating, handling, transporting, and storing ores and 
other raw (not beneficiated or processed) materials; and replacing in 
mined-out areas coal ash, earthen materials from farming or 
construction, or overburden or other raw materials generated from the 
exempted mining activities.
* * * * *

PART 355--EMERGENCY PLANNING AND NOTIFICATION

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

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

    4. Section 355.40 is amended by revising paragraph (a)(2)(vi)(B) to 
read as follows:

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Sec. 355.40  Emergency release notification.

    (a) * * *
    (2) * * *
    (vi) * * *
    (B) Naturally from land disturbance activities, including farming, 
construction, and land disturbance incidental to extraction during 
mining activities, except that which occurs at uranium, phosphate, tin, 
zircon, hafnium, vanadium, monazite, and rare earth mines. Land 
disturbance incidental to extraction includes: land clearing; 
overburden removal and stockpiling; excavating, handling, transporting, 
and storing ores and other raw (not beneficiated or processed) 
materials; and replacing in mined-out areas coal ash, earthen materials 
from farming or construction, or overburden or other raw materials 
generated from the exempted mining activities.
* * * * *
[FR Doc. 99-6512 Filed 3-16-99; 8:45 am]
BILLING CODE 6560-50-P