[Federal Register Volume 86, Number 216 (Friday, November 12, 2021)]
[Rules and Regulations]
[Pages 62736-62737]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-24373]



[[Page 62736]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 302

[EPA-HQ-SFUND-1990-0005; FRL-9115-01-OLEM]


Change of Submissions for CERCLA Section 103 Continuous Release 
Reports to the Appropriate EPA Headquarters Office

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The U.S. Environmental Protection Agency (EPA or the Agency) 
is issuing a technical amendment to modify the submission location for 
Continuous Release Reports. Reports are currently submitted to 
respective EPA regional offices; with this technical amendment, EPA 
will instead require all future such reports to be submitted to the 
appropriate EPA Headquarters (HQ) office. The Agency is also correcting 
a typographical spelling error, correcting citations within the 
section, and amending the listed authority.

DATES: This final rule is effective on November 12, 2021.

FOR FURTHER INFORMATION CONTACT: Mark Douglas, U.S. Environmental 
Protection Agency, Office of Emergency Management, (MC: 5104A), 1200 
Pennsylvania Avenue NW, Washington, DC 20460; 202-564-5572; 
[email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

    Entities that may be affected by this action are those facilities 
subject to Section 103 of the Comprehensive Environmental Response, 
Compensation, and Liability Act (CERCLA) specifically, entities that 
submit written Continuous Release Reports (CRRs) under the requirements 
of 40 CFR 302.8.

II. What does this amendment do?

    This technical amendment is being issued to modify where CRRs are 
submitted. Currently, entities submit CRRs to the EPA regional office 
where the release occurs. This technical amendment will centralize the 
collection of the CRRs.
    The Agency is now directing the regulated entities to submit the 
CRRs, regulated under 40 CFR 302.8(e), (e)(1), (f), (g)(2)(ii), (g)(3), 
and (j), to the appropriate EPA HQ office at 40 CFR 302.8(e), (e)(1), 
(f), (g)(2)(ii), (g)(3), and (j). This action also clarifies that 
follow-up notifications (``first anniversary report''), 40 CFR 
302.8(f), should also be submitted to the appropriate EPA HQ office. 
Mailing address and additional information can be found at the EPA 
website for CERCLA and Emergency Planning and Community Right-to-Know 
Act (EPCRA) continuous release reporting: https://www.epa.gov/epcra/cercla-and-epcra-continuous-release-reporting.
    This technical amendment corrects a typographical error to change 
``considsred'' to ``considered'' at 40 CFR 302.8(l). This action 
corrects citation errors at 40 CFR 302.8(g)(2)(i) and (g)(4). Section 
302.8(g)(2)(i) cites Sec.  302.8(c)(7), and Sec.  302.8(g)(4) cites 
Sec.  302.8(c)(2)(xi), both of which no longer exist. The correct 
citations are section Sec. Sec.  302.8(h) and 302.8(e)(1)(iv)(H), 
respectively. Finally, this action amends the authority for part 302 to 
include CERCLA authority citations of 42 U.S.C. 9601 et. seq., 42 
U.S.C. 9602, and 42 U.S.C. 9603.

III. Rulemaking Procedures and Findings of Good Cause

    Section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 
553(b)(3)(B), provides that, when an agency for good cause finds that 
notice and public procedure are impracticable, unnecessary or contrary 
to the public interest, the agency may issue a final rule without 
providing notice and an opportunity for public comment. EPA has 
determined that there is good cause for making this technical amendment 
final without prior proposal and opportunity for comment, because such 
notice and opportunity for comment is unnecessary for the following two 
reasons. First, this action is merely updating the regulatory text to 
require that CRR submissions be sent to the appropriate EPA HQ office 
instead of the regions. Contents or other requirements of the 
submissions have not changed. Thus, this action is procedural and does 
not affect any substantive requirements. Second, this action includes 
minor, non-substantive technical corrections since it involves 
correcting a typographical error to change the spelling of 
``considsred'' to ``considered'' at 40 CFR 302.8(l), to correct 
citation errors at 40 CFR 302.8(g)(2)(i) and (g)(4), and to amend the 
authority citations for 40 CFR part 302. EPA finds that this 
constitutes good cause under 5 U.S.C. 553(b)(3)(B).

IV. Effective Date

    Section 553(d)(3) of the APA provides that final rules shall not 
become effective until 30 days after publication in the Federal 
Register ``except . . . as otherwise provided by the agency for good 
cause.'' The purpose of this provision is to ``give affected parties a 
reasonable time to adjust their behavior before the final rule takes 
effect.'' Omnipoint Corp. v. Fed. Commc'n Comm'n, 78 F.3d 620, 630 
(D.C. Cir. 1996); see also United States v. Gavrilovic, 551 F.2d 1099, 
1104 (8th Cir. 1977) (quoting legislative history). Thus, in 
determining whether good cause exists to waive the 30-day delay, an 
agency should ``balance the necessity for immediate implementation 
against principles of fundamental fairness which require that all 
affected persons be afforded a reasonable amount of time to prepare for 
the effective date of its ruling.'' Gavrilovic, 551 F.2d at 1105. EPA 
has determined that there is good cause for making this final rule 
effective immediately because it merely changes the address where the 
CRRs are submitted, corrects a spelling error and minor citation 
errors, and amends the 302 authority citation. For this reason, the 
Agency finds that good cause exists under APA section 553(d)(3) to make 
this rule effective immediately upon publication.

V. Do any of the statutory and Executive Order reviews apply to this 
action?

    Under Executive Order 12866 (58 FR 51735, October 4, 1993) and 
Executive Order 13563 (76 FR 3821, January 21, 2011), this action is 
not a ``significant regulatory action'' and is therefore not subject to 
the Office of Management and Budget (OMB) review. Additionally, this 
action is not an Executive Order 13771 regulatory action because this 
action is not significant under Executive Order 12866. 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 Act (5 U.S.C. 601 et seq.) or Sections 202 
and 205 of the Unfunded Mandates Reform Act (2 U.S.C. 1531-1538). In 
addition, this action does not significantly or uniquely affect small 
governments. This action does not create new binding legal requirements 
that substantially and directly affect tribes under Executive Order 
13175 (65 FR 67249, November 9, 2000). This action does not have 
significant Federalism implications under Executive Order 13132 (64 FR 
43255, August 10, 1999). Because this final rule is not subject to 
review under Executive Order 12866, this final rule is not subject to 
Executive Order 13211, entitled Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, 
May 22, 2001) or Executive Order 13045,

[[Page 62737]]

entitled Protection of Children from Environmental Health Risks and 
Safety Risks (62 FR 19885, April 23, 1997). Continuous release 
reporting is covered under OMB Control Number 2050-0086. This final 
rule does not contain any changes to the information collections 
subject to OMB approval under the Paperwork Reduction Act (PRA), 44 
U.S.C. 3501 et seq., nor does it require any special considerations 
under Executive Order 12898, entitled Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations (59 FR 7629, February 16, 1994). This action does not 
involve technical standards; thus, the requirements of Section 12(d) of 
the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 
272 note) do not apply.
    This action is subject to the Congressional Review Act (CRA), and 
the EPA will submit a rule report to each House of Congress and to the 
Comptroller General of the United States. The CRA 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 comment 
rulemaking procedures are impracticable, unnecessary, or contrary to 
the public interest (5 U.S.C. 808(2)). The EPA has made a good cause 
finding for this rule as discussed in Section III of the preamble, 
including the basis for that finding.

List of Subjects in 40 CFR Part 302

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

    Dated: November 2, 2021.
Barry N. Breen,
Acting Assistant Administrator, Office of Land and Emergency 
Management.

    For the reasons stated in the preamble, the EPA amends title 40, 
chapter I of the Code of Federal Regulations as follows:

PART 302--DESIGNATION, REPORTABLE QUANTITIES, AND NOTIFICATION

0
1. The authority citation for part 302 is revised to read as follows:

    Authority:  33 U.S.C. 1251 et. seq., 42 U.S.C. 9601 et. seq., 42 
U.S.C. 9602, 42 U.S.C. 9603.


0
2. Section 302.8 is amended by revising paragraphs (e) introductory 
text, (e)(1) introductory text, (f) introductory text, (g)(2)(i) and 
(ii), (g)(3) and (4), (j) introductory text, and (l) to read as 
follows:


Sec.  302.8  Continuous releases.

* * * * *
    (e) Initial written notification. Initial written notification of a 
continuous release shall be made to the appropriate EPA HQ office. 
(Note: In addition to the requirements of this part, releases of CERCLA 
hazardous substances are also subject to the provisions of SARA Title 
III, also known as the Emergency Planning and Community Right-to-Know 
Act (EPCRA), section 304, and EPA's implementing regulations codified 
at 40 CFR part 355, which require initial telephone and written 
notifications of continuous releases to be submitted to the appropriate 
State emergency response commission and local emergency planning 
committee.)
    (1) Initial written notification to the appropriate EPA HQ office 
shall occur within 30 days of the initial telephone notification to the 
National Response Center, and shall include, for each release for which 
reduced reporting as a continuous release is claimed, the following 
information:
* * * * *
    (f) Follow-up notification. Within 30 days of the first anniversary 
date of the initial written notification, the person in charge of the 
facility or vessel shall evaluate each hazardous substance release 
reported to verify and update the information submitted in the initial 
written notification. The follow-up written notification shall be 
submitted to the appropriate EPA HQ office. The follow-up notification 
shall include the following information:
* * * * *
    (g) * * *
    (2) * * *
    (i) Reporting at least one statistically significant increase 
report as required under paragraph (h) 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 Headquarters 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 
appropriate EPA HQ office, 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) Certificate of changes. 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 (e)(1)(iv)(H) of this section.
* * * * *
    (j) Use of the SARA Title III (EPCRA) 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 (EPCRA) 
section 313 may submit to the appropriate EPA HQ office, a copy of the 
Toxic Release Inventory form submitted under SARA Title III (EPCRA) 
section 313 the previous July 1, provided that the following 
information is added:
* * * * *
    (l) Multiple 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 considered 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.
* * * * *
[FR Doc. 2021-24373 Filed 11-10-21; 8:45 am]
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