[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
[[Page 13114]]
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
