Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. RESPONSES TO COMMENTS RESPONSES TO COMMENTS ON THE OCTOBER 4, 2005 NOTICE OF PROPOSED RULEMAKING ON ADMINISTRATIVE REPORTING EXEMPTIONS FOR CERTAIN AIR RELEASES OF NOx ( NO AND NO2)

Office of Emergency Management Office of Solid Waste and Emergency Response U. S. Environmental Protection Agency September 1, 2006 Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. ii TABLE OF CONTENTS INTRODUCTION .......................................................................................................... 1 Statutory Authority...................................................................................................... 1 Background of this Rulemaking .................................................................................. 2 Comments Received.................................................................................................... 3 Organization of the Comment Response Document ..................................................... 3 Commenter Background Information .......................................................................... 8 INDEX OF ISSUES ON THE ADMINISTRATIVE REPORTING EXEMPTION FOR CERTAIN AIR RELEASES OF NOx ( NO and NO2).................................................... 19 I. SUPPORT FOR PROPOSED REPORTING EXEMPTION....................................... 25 II. SUPPORT FOR ALTERNATIVE   EXPANDING CONTINUOUS RELEASE REPORTING IN ADDITION TO PROPOSED EXEMPTION..................................... 39 A. Simplify Continuous Release Initial Release Notification ..................................... 40 B. Simplify and Clarify Continuous Release Reporting Requirements ....................... 44 C. Clarify Continuous Release Reporting Requirements ............................................ 47 III. OPPOSITION FOR ALTERNATIVE   EXPANDING CONTINUOUS RELEASE REPORTING................................................................................................................ 49 A. Should Not be Used In Lieu of Proposed Exemption ............................................ 50 B. Does not Afford Practical Relief ........................................................................... 55 IV. SUPPORT FOR ALTERNATIVE   INCREASE LEVEL OF THE EXEMPTION. 57 A. Support a Number Larger than 1,000 Pounds........................................................ 58 B. Increase RQ for Combustion Related Exemption to 5,000 Pounds ........................ 64 V. REQUESTS FOR BROADER EXEMPTIONS TO INCLUDE ACCIDENTS AND MALFUNCTIONS ....................................................................................................... 76 A. Accidents and Malfunctions.................................................................................. 78 B. Also Include in Exemptions  Start ups, Shut downs, and Up Sets........................ 99 C. Clarify that Flares are Control Devices  Not Considered Accidents and Malfunctions ........................................................................................................... 103 VI. REQUESTS FOR BROADER EXEMPTIONS TO INCLUDE COMBUSTION AND NON COMBUSTION PROCESSES .......................................................................... 108 VII. INTERPRETATION OF CERCLA PROVISIONS.............................................. 115 A. Legal Authority to Include NO and NO2 Resulting from Chemical Reaction....... 116 B. Legal Emissions of NOx are " Federally Permitted"............................................. 127 C. Proposed Exemption only Applies to Emissions not Considered Federally Permitted ................................................................................................................................ 128 D. Provide a Definition of " Excess Emissions" for Reporting NOx ......................... 130 E. Provide Guidance on Calculating When Releases from Minor Sources Exceed a Reporting Threshold................................................................................................ 131 F. Apply Exemption to Both CERCLA and EPCRA Reporting ............................... 134 G. Clarify that NOx represents NO and NO2 Interchangeably.................................. 136 VIII. ISSUES RELATED TO RULEMAKING PROCEDURE................................... 137 IX. REQUEST TO RAISE RQ.................................................................................... 139 Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 1 INTRODUCTION Statutory Authority The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( CERCLA), 42 U. S. C. 9601 et seq., as amended by the Superfund Amendments and Reauthorization Act of 1986, gives the Federal government broad authority to respond to releases or threats of releases of hazardous substances from vessels and facilities. The term " hazardous substance" is defined in section 101( 14) of CERCLA primarily by reference to other Federal environmental statutes. 1 Section 102 of CERCLA gives the U. S. Environmental Protection Agency ( EPA) authority to designate additional hazardous substances. Currently there are 764 CERCLA hazardous substances, 2 exclusive of Radionuclides, F, K, and Unlisted Characteristic Hazardous Wastes.

Under CERCLA section 103( a), the person in charge of a vessel or facility from which a CERCLA hazardous substance has been released in a quantity that equals or exceeds its reportable quantity ( RQ) must immediately notify the National Response Center ( NRC) of the release. A release is reportable if an RQ or more is released within a 24 hour period ( see 40 CFR 302.6). This reporting requirement, among other things, serves as a trigger for informing the government of a release so that Federal personnel can evaluate the need for a Federal removal or remedial action and undertake any necessary action in a timely fashion.

On March 19, 1998, the Agency issued a final rule ( 63 FR 13459) that broadened existing reporting exemptions for releases of naturally occurring radionuclides. The Agency relied on CERCLA sections 102( a), 103, and 115 ( the general rulemaking authority under CERCLA) as authority to issue regulations governing section 103 reporting requirements, as well as administrative reporting exemptions. These exemptions were granted for releases of hazardous substances which pose little or no risk or to which a Federal response is infeasible or inappropriate ( 63 FR 13461).

In addition to the reporting requirements established pursuant to CERCLA section 103, section 304 of the Emergency Planning and Community Right to Know Act of 1986 ( EPCRA), 42 U. S. C. 11001 et seq., requires the owner or operator of certain facilities to immediately report releases of CERCLA hazardous substances or any extremely hazardous substances3 to State and local authorities ( see 40 CFR 355.40). Any proposed 1 Other Federal environmental statutes include: Federal Water Pollution Control Act ( § § 1321( b)( 2)( A), 1317( a)), Solid Waste Disposal Act ( § 6921), Clean Air Act ( § 7412), and Toxic Substances Control Act ( § 2606). 2 This total includes P and U wastes. 3 Extremely hazardous substances are those listed in Appendix A and B of 40 CFR 355. EPCRA § 11002( a)( 2) required the Agency to publish a list of extremely hazardous substances that is the same list as the list of substances published in November 1985 by EPA in Appendix A of the " Chemical Emergency Preparedness Program Interim Guidance." Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 2 burden reduction measure that applies to CERCLA section 103 notification requirements would also apply to EPCRA section 304 notification requirements. In part, EPCRA's reporting requirement is designed to effectuate a statutory purpose of informing communities and the public generally about releases from nearby facilities. Notification is to be given to the community emergency coordinator for each Local Emergency Planning Committee ( LEPC) for any area likely to be affected by the release, and the State Emergency Response Commission ( SERC) of any State likely to be affected by the release. Through this notification, State and local officials can assess whether a response to the release is appropriate, regardless of whether the Federal government intends to respond. EPCRA section 304 notification requirements apply only to releases that have the potential for off site exposure and that are from facilities that produce, use, or store a " hazardous chemical," as defined by regulations promulgated under the Occupational Safety and Health Act of 1970 ( 29 CFR 1910.1200( c)) and by section 311 of EPCRA.

Background of this Rulemaking On December 21, 1999, EPA published interim guidance on the federally permitted release exemption to section 103 of CERCLA and section 304 of EPCRA ( 64 FR 71614). The interim guidance discussed EPA's interpretation of the federally permitted release exemption as it applies to some air emissions and solicited public comment. The public comment period closed after several extensions on April 10, 2000. The Agency received many comments on the interim guidance, including specific questions regarding EPA's interpretation of the federally permitted release exemption as it applies to NOx releases. 4 NOx releases to air are somewhat unique in that, in most cases, federally enforceable permits ( including State issued through delegated programs) are not issued to facilities that release NOx below a certain threshold. NOx emissions from these sources are minimal and may not pose a hazard to health or the environment. In its final Guidance on the CERCLA Section 101( 10)( H) Federally Permitted Release Definition for Certain Air Emissions ( 67 FR 18899, April 17, 2002), EPA responded to the concern that many small facilities do not have federally enforceable permits by stating in that Federal Register notice that it recognized, " that certain uncontrolled air emissions of nitrogen oxide ( NO) and nitrogen dioxide ( NO2) equal to or greater than the ten pound RQ may rarely require a government response." ( 67 FR 18904). When the Agency published that final Guidance, it also extended and expanded an on going enforcement discretion ( Appendix B to that Notice) policy5 with regard to owners, operators or persons in charge of facilities or vessels for failure to report air releases of NO and NO2 that would otherwise trigger a reporting obligation under CERCLA section 4 Some of those comment letters received are available in the Docket ( SFUND 2003 0022) for this rule. All comments are available in the Docket for the Interim Guidance ( EG G 1999 029). 5 The enforcement discretion policy was initially announced in a memorandum to EPA Regional Counsels and Division Directors for EPCRA § 304/ CERCLA § 103 from Steven A. Herman, Assistant Administrator, Office of Enforcement and Compliance Assurance, dated February 15, 2000. A copy of the Federal Register notice and Memoranda from the AA OECA to Regional Counsels is included in the Docket ( SFUND 2003 0022) to this rule Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 3 103 and EPCRA section 304, unless such releases are the result of an accident or malfunction. ( 67 FR 18904).

Comments Received EPA received 27 comment letters on or before December 5, 2005, the end of the public comment period for the October 4, 2005 Notice of Proposed Rulemaking ( NPRM). Several of the comment letters were sent to the Agency by more than one delivery ( i. e., email, fax, US Mail). Therefore, it may appear ( www. regulations. gov , EPA HQSFUND 2003 0022) that there were more than 27 comment letters submitted. For example, one commenter ( American Electric Power) submitted a letter via the Online Submittal and via U. S. Mail. Both submissions received their own Docket identifier, EPA HQ SFUND 2003 0022 0097, EPA HQ SFUND 2003 0022 0097.1 ( email and submission), and EPA HQ SFUND 2003 0022 0112.

Of the 27 comment letters, 14 were received from trade organizations, 5 from power corporations, 5 from chemical companies, 2 from organizations representing chemical companies, and 1 from a not for profit organization.

Organization of the Comment Response Document Upon receipt and examination of the comment letters, the Agency determined that the topics addressed by the commenters could be divided into 9 main issues. Five ( 5) of these issues are further broken down into specific subtopics. A complete list of all issues and subtopics appears in the Table of Contents to this document.

Commenter numbers assigned to each comment letter reflect the chronological order in which the letters were received and subsequently incorporated into the Superfund Docket. The first part of each commenter number, EPA HQ SFUND 2003 0022, represents the Docket Number for the October 4, 2005, NPRM. The last two numbers ( e. g., 0085, 0093.1, 00101.1) indicate the order in which letters were received and assigned a number by the Superfund Docket. Some commenters submitted their comments in two parts, cover letter and attachment. The attachment( s) received a ". 1" or ". 2" identifier as appropriate. Some commenters submitted their comments in multiple forms ( i. e., hard copy, electronic copy) and thus received more than one docket number.

Two indices immediately follow this introduction. The first index is organized by commenter name, allowing each commenter to quickly locate the section( s) in which their comments appear and the response number( s) assigned to each comment. The second index is organized by issue ( including subtopics, where applicable), identifying the names of each commenter that submitted comments on a particular issue.

Comments are not summarized; rather, the Agency has made every effort to extract and reproduce comments from the original comment letters submitted on the Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 4 October 4, 2005, NPRM. Commenter Background Information, beginning on page 7 of this document was extracted from the original comment letters. However, footnotes to the comment letter or attachment were not included in this document.

Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 5 INDEX OF COMMENTERS ON THE ADMINISTRATIVE REPORTING EXEMPTION FOR CERTAIN AIR RELEASES OF NOx ( NO and NO2)

Commenter Name Commenter Abbreviation ( Commenter Type) Public Docket Number/ Comment Letter Section/ Response Number American Chemistry Council ACC ( OC) EPA HQ SFUND 2003 0022 0082 EPA HQ SFUND 2003 0022 0082.1 IV. B/ 8 V. A/ 2 V. C/ 22 American Electric Power AEP ( CP) EPA HQ SFUND 2003 0022 0097 EPA HQ SFUND 2003 0022 0097.1 EPA HQ SFUND 2003 0022 0112 III. A/ 2 IV. A/ 1 V. B/ 19 American Forest & Paper Association AF& PA ( OT) EPA HQ SFUND 2003 0022 0101 EPA HQ SFUND 2003 0022 0101.1 II. A/ 1 IV. A/ 3 V. A/ 13 VIII/ 1 American Gas Association AGA ( OT) EPA HQ SFUND 2003 0022 0107 EPA HQ SFUND 2003 0022 0107.1 EPA HQ SFUND 2003 0022 0107.2 I/ 9 III. A/ 3 IV. B/ 14 VII. B/ 2 American Iron and Steel Institute AISI ( OT) EPA HQ SFUND 2003 0022 0095 EPA HQ SFUND 2003 0022 0095.1 IV. B/ 10 V. A/ 10 VI/ 3 American Petroleum Institute API ( OT) EPA HQ SFUND 2003 0022 0113 EPA HQ SFUND 2003 0022 0113.1 I/ 10 III. B/ 4 IV. B/ 15 V. A/ 1 V. C/ 25 Council of Industrial Boiler Owners CIBO ( OT) EPA HQ SFUND 2003 0022 0099 EPA HQ SFUND 2003 0022 0099.1 II. B/ 6 IV. C/ 17 V. A/ 12 VII. C/ 3 Dayton Power and Light DP& L ( CP) EPA HQ SFUND 2003 0022 0093 EPA HQ SFUND 2003 I/ 1 Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 6 Commenter Name Commenter Abbreviation ( Commenter Type) Public Docket Number/ Comment Letter Section/ Response Number 0022 0093.1 Dominion Dominion ( CP) EPA HQ SFUND 2003 0022 0102 EPA HQ SFUND 2003 0022 0102.1 EPA HQ SFUND 2003 0022 0110 IV. B/ 12 IX/ 3 Dow Chemical Company Dow ( C) EPA HQ SFUND 2003 0022 0091 EPA HQ SFUND 2003 0022 0091.1 IV. B/ 7 V. B/ 18 V. C/ 24 Eastman Chemical Company Eastman ( C) EPA HQ SFUND 2003 0022 0081 EPA HQ SFUND 2003 0022 0081.1 IV. B/ 6 V. A/ 6 V. C/ 21 Fertilizer Institute, The TFI ( OT) EPA HQ SFUND 2003 0022 0094 EPA HQ SFUND 2003 0022 0094.1 I/ 3 V. A/ 9 VI/ 1 Huntsman Polymers Huntsman ( C) EPA HQ SFUND 2003 0022 0088 EPA HQ SFUND 2003 0022 0088.1 V. A/ 7 Invista INVISTA ( C) EPA HQ SFUND 2003 0022 0109 II. A/ 4 V. B/ 20 VI/ 2 VII. E/ 6 IX/ 4 Koch Mineral Services, LLC KMS ( OC) EPA HQ SFUND 2003 0022 0090 EPA HQ SFUND 2003 0022 0090.1 II. A/ 3 V. A/ 16 V. B/ 17 VII. E/ 5 VII. F/ 7 IX/ 1 MeadWestvaco MeadWestvaco ( C) EPA HQ SFUND 2003 0022 0098 EPA HQ SFUND 2003 0022 0098.1 II. B/ 2 V. A/ 11 VII. G/ 8 National Council for NCASI ( ONP) EPA HQ SFUND 2003 IV. A/ 5 Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 7 Commenter Name Commenter Abbreviation ( Commenter Type) Public Docket Number/ Comment Letter Section/ Response Number Air and Stream Improvement, Inc. 0022 0083 EPA HQ SFUND 2003 0022 0083.1 V. A/ 3 National Environmental Development Association's Clean Air Project NEDA/ CAP ( OT) EPA HQ SFUND 2003 0022 0087 EPA HQ SFUND 2003 0022 0087.1 I/ 5 I/ 6 II. A/ 5 V. A/ 5 VII. D/ 4 National Lime Association NLA ( OT) EPA HQ SFUND 2003 0022 0108 EPA HQ SFUND 2003 0022 0108.1 IV. A/ 4 National Mining Association NMA ( OT) EPA HQ SFUND 2003 0022 0096 EPA HQ SFUND 2003 0022 0096.1 I/ 2 IV. B/ 11 IX/ 2 National Petrochemical & Refiners Association NPRA ( OT) EPA HQ SFUND 2003 0022 0086 EPA HQ SFUND 2003 0022 0086.1 IV. B/ 9 V. A/ 4 V. C/ 23 National Stone, Sand & Gravel Association NSSGA ( OT) EPA HQ SFUND 2003 0022 0085 VII. A/ 1 Northeast Utilities Service Company NUSCO ( CP) EPA HQ SFUND 2003 0022 0084 II. C/ 7 IV. C/ 16 Oglethorpe Power Corporation OglethorpePower ( CP) EPA HQ SFUND 2003 0022 0103 EPA HQ SFUND 2003 0022 0103.1 EPA HQ SFUND 2003 0022 0105 EPA HQ SFUND 2003 0022 0105.1 EPA HQ SFUND 2003 0022 0111 I/ 7 IV. C/ 18 V. A/ 15 Portland Cement Association PCA ( OT) EPA HQ SFUND 2003 0022 0092 EPA HQ SFUND 2003 0022 0092.1 IV. A/ 2 Synthetic Organic SOCMA ( OT) EPA HQ SFUND 2003 I/ 4 Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 8 Commenter Name Commenter Abbreviation ( Commenter Type) Public Docket Number/ Comment Letter Section/ Response Number Chemical Manufacturers Association 0022 0089 EPA HQ SFUND 2003 0022 0089.1 III. A/ 1 V. A/ 8 Utility Air Regulatory Group UARG ( OT) EPA HQ SFUND 2003 0022 0104 EPA HQ SFUND 2003 0022 0104.1 I/ 8 IV. B/ 13 V. A/ 14 C = Chemical or Manufacturing Corporation; CP = Power Company; OC = Organization representing chemical companies; ONP = Organization, not for profit; OT = Trade Organization Commenter Background Information American Chemistry Council ( ACC) The American Chemistry Council ( ACC) represents the leading companies engaged in the business of chemistry. Our members have combustion sources located at their facilities nationwide and are therefore directly impacted by EPA's proposed administrative exemption from certain notification requirements under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( CERCLA) and the Emergency Planning and Community Right to Know Act ( EPCRA) or Title III of the Superfund Amendments.

ACC supports EPA's decision to propose an exemption for NOx releases resulting from combustion activities. Further, we agree that current regulations requiring immediate notifications of non federally permitted NOx releases exceeding the reportable quantity ( RQ) of 10 pounds overburdens the CERCLA & EPCRA notification systems and is a waste of resources, as neither federal, state, or local agencies are likely to respond to small releases. Finally, the Agency's proposal exemplifies the Government's ability to better focus its resources while not jeopardizing the protection of human health and the environment. ACC offers the below comments on this proposed rulemaking. We also endorse the American Petroleum Institute's ( API) comments on this issue.

American Electric Power ( AEP) AEP Texas North Company, AEP Texas Central Company, Appalachian Power Company, Columbus Southern Power Company, Indiana Michigan Power Company, Kentucky Power Company, Ohio Power Company, Public Service Company of Oklahoma, and Southwestern Electric Power Company, the operating companies of the American Electric Power system ( collectively referred to herein as " AEP"), appreciate Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 9 the opportunity to comment on EPA's proposed rulemaking that would provide an administrative exemption from certain notification requirements under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended ( CERCLA) and the Emergency Planning and Community Right to Know Act, also known as Title III of the Superfund Amendments and Reauthorization Act ( EPCRA). AEP believes that the proposed administrative exemption would relieve significant burdens currently imposed on small sources of emissions of nitrogen oxides that pose no threat to human health or the environment, and could eliminate an administrative burden for the National Response Center, the State Emergency Planning Commissions, and the Local Emergency Planning Commissions, allowing them to focus their limited resources on releases that need to be evaluated to determine whether and when additional response actions are necessary. AEP believes that an important additional exception should be analyzed by EPA, to see if it could provide additional relief, without diminishing the quantity or quality of information available to the responsible agencies and the public.

American Forest & Paper Association ( AF& PA) The American Forest & Paper Association (" AF& PA") is the national trade association of the forest, paper and wood products industry. AF& PA represents more than 200 companies and related associations that engage in or represent the manufacture of pulp, paper, paperboard and wood products. The forest products industry accounts for approximately seven percent of total U. S. manufacturing output, employs 1.1 million people, and ranks among the top ten manufacturing employers in 42 states. AF& PA member companies own and operate hundreds of facilities covered by Clean Air Act ( CAA) permits, or other regulatory requirements, which release NOx to the atmosphere. AF& PA and its members have, therefore, a direct interest in this rulemaking.

Although we support the proposed administrative exemption, we believe it should be extended to cover additional nitrogen oxides ( NOx) releases to air, as we detail in subsequent sections of this submittal.

EPA has proposed to exempt nitrogen oxide and nitrogen dioxide (" NOx") releases from combustion activities from CERCLA/ EPCRA reporting requirements if those activities release less than 1,000 pounds of either material per 24 hours and are not the result of accidents or malfunctions. EPA bases this proposal on several grounds. First, EPA notes that it received numerous public comments on previous Federal Register notices that the existing ten pound reporting threshold results in numerous notifications about releases of very small amounts of NOx. EPA observes that, for such small quantity releases, no Agency response is either necessary or feasible. Responding to such releases, EPA concluded, would overburden the CERCLA/ EPCRA notification system and consume limited government resources that are better used to address more serious releases. AF& PA agrees with this analysis. We do not, however, agree with the 1000 pound limit on the exemption or the exclusion of accidental or malfunction based releases from the exemption. Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 10 American Gas Association ( AGA) AGA represents 195 local energy utility companies that deliver natural gas to more than 56 million homes, businesses and industries throughout the United States. AGA member companies account for roughly 83 percent of all natural gas delivered by local natural gas distribution companies in the U. S. AGA is an advocate for local natural gas utility companies and provides a broad range of programs and services for member natural gas pipelines, marketers, gatherers, international gas companies and industry associates. Natural gas meets one fourth of the United States' energy needs.

American Iron and Steel Institute ( AISI) AISI is the principal trade association for the North American steel industry and represents companies accounting for about 70% of the U. S. steelmaking capacity. All iron and steelmaking companies operate facilities that emit nitrogen oxides (" NOx") from combustion operations and therefore have a direct interest in any proposed regulations regarding NOx reporting requirements. AISI supports government emergency response activities and the community's right to be informed of chemical releases, and AISI members strive to minimize waste and releases.

AISI members strongly support the exemption of combustion releases of nitrogen oxide (" NO") and nitrogen dioxide (" NO2") from notification requirements under the Emergency Planning and Community Right to Know Act (" EPCRA") and the Comprehensive Environmental Response, Compensation, and Liability Act (" CERCLA" or " Superfund"). However, while the proposed exemption for releases of less than 1,000 pounds of NOx per 24 hour period for combustion related emissions not related to accidents or malfunctions is a step in the right direction, it falls short of providing meaningful burden reduction, and we urge EPA to expand the NOx reporting exemption.

American Petroleum Institute ( API) API is the primary trade association of America's oil and natural gas industry, and represents more than 400 member companies involved in all aspects of the industry. Many API members file reports of releases of oil and hazardous substances, and nonhazardous emissions of nitrogen oxides, and thus have a direct interest in any actions pertaining to these reporting requirements. API supports government emergency response activities and the community's right to know about chemical releases, and our members actively work to minimize waste and releases.

API strongly supports an administrative reporting exemption for combustion releases of NOx. Such an exemption is warranted because these releases have proven to require no government response. Reports of these releases burden the regulated community and receiving officials, for no purpose. Further, an administrative reporting exemption could provide significant burden reduction to industry and the government if properly crafted, without any negative impact on human health and the environment. Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 11 Council of Industrial Boiler Owners ( CIBO) CIBO is a national trade association of industrial boiler owners, architectengineers related equipment manufacturers, and universities representing 20 major industrial sectors. CIBO was formed in 1978 to promote the exchange of information between industry and government relating to energy and environmental policies, laws, and regulations affecting industrial boilers. CIBO membership represents industries as diverse as chemical, paper, cogeneration, steel, automotive, refining, brewing, combustion engineering, and food products. CIBO members also include operators of boiler facilities at several major universities.

On environment issues, CIBO works closely with the EPA, the United States Department of Energy, state regulatory authorities and other governmental bodies to effectuate common sense environmental regulation. We maintain that environmental regulatory programs should provide industry with enough flexibility to effectively  and without penalty  modernize our aging energy infrastructure, since modernization holds the key to cost effective environmental protection.

Dayton Power and Light ( DPL) The Dayton Power and Light Company (" DP& L") and its affiliate DPL Energy, LLC ( hereafter collectively referred to as " DPL") hereby incorporate by reference any comments submitted by the Utility Air Regulatory Group (" UARG"). DPL is a member of this organization.

DPL Inc. is a diversified, regional energy company. DPL Inc.' s principal subsidiaries include The Dayton Power and Light Company ( DP& L) and DPL Energy. DP& L provides electric services to over 500,000 retail customers in West Central Ohio. DPL Energy markets over 4,600 megawatts of generation capacity throughout the eastern United States. DPL operates three coal fired electric generating stations and numerous gas fired combustion turbines.

DPL appreciates the opportunity to comment on this proposed administrative exemption from certain EPCRA/ CERCLA notifications. In addition to the comments of UARG, DPL has concerns which we will address in these comments.

Dominion Dominion appreciates the opportunity to comment on the above referenced proposed rule. As a fully integrated gas and electric utility, Dominion has operations that will be affected by the proposed rule for Administrative Reporting Exemption for Certain Releases of NOx under the regulations implementing the Comprehensive Environmental Response, Compensation and Liability Act ( CERCLA, " Superfund"). Dominion is a member of the Utility Air Regulatory Group ( UARG) and the American Gas Association ( AGA) and it supports the comments these groups submit.

Dow Chemical Company ( DOW) Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 12 The Dow Chemical Company ( Dow) recognizes and supports the protection of human health and the environment through the reporting of events that may have a negative impact and/ or require response to mitigate possible effect. Dow is also supportive of EPA's philosophy to reduce the burden associated with regulatory requirements that do not enhance protection of human health and the environment. In fact, this burden only serves to dilute the efforts of resources that would be better applied in beneficial endeavors.

EPA proposes to create an administrative exemption for continuous releases of NOx from combustion activities of less than 1000 pounds. Dow compliments EPA on this effective resource allocation effort. Dow, however, believes that this effort can be enhanced by, 1) Expanding the administrative exemption to include upsets and malfunctions of combustion devices, 2) Raising the administrative reporting exemption level to 5000 pounds, and 3) Expanding the administrative exemption to include properly operating safety devices, such as flares.

It should also be noted that exempting these releases from reporting under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, and the Emergency Planning and Community Right to Know Act, also known as Title III of the Superfund Amendments and Reauthorization Act does not relieve a source from reporting as required by other programs such as Title V, annual emission inventory reporting, and state or regional specific reporting.

Dow recommends that these refinements be incorporated into the current exemption rule to maximize the benefits gained from effective resource allocation.

Eastman Chemical Company ( Eastman) Eastman is a major global manufacturer of chemicals, plastics and fibers. Many of our U. S. based facilities have combustion units that release NOx.

It is commendable that EPA is looking for opportunities to reduce burden on both industry and the government, by providing an exemption from filing reports that result in no action on the Agency's part or that of local or state officials. We support such an exemption. Eastman suggests a final rule on this exemption should be expanded and implemented as follows.

The Fertilizer Institute ( TFI) TFI represents the nation's fertilizer industry. Producers, manufacturers, distributors, retailers, trading firms, equipment manufacturers, barge/ vessel operators, railroads, and trucking companies which comprise its membership are served by a fulltime Washington, D. C. staff in various legislative, educational and technical areas as well as with information and public relations programs. Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 13 Several TFI members own and/ or operate nitric acid plants that generate NO and NO2 emissions ( collectively referred to as NOx) that may be subject to the reporting requirements set forth in section 103 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( CERCLA) and section 304 of the Emergency Planning and Community Right to Know Act of 1986 ( EPCRA). In addition, several TFI members operate small combustion sources, which may under certain circumstances approach or exceed the reportable quantity ( RQ). As such, TFI and its members have a substantive interest in EPA's rulemaking.

Huntsman Polymers ( Huntsman) The proposed rule published in the Federal Register of October 4, 2005 does little to address the burden associated with reporting NOx releases in the range from 10 lbs/ 24 hours to 1000 lbs/ 24 hours which are the result of combustion activities. The proposal states that the impacts associated with NOx releases in the 10 to 1000 lbs/ 24 hour range are not likely to result in a federal response to such releases, other than those from accident or malfunction. What the proposal does not address is whether a federal response is likely from combustion based release of NOx in the 10 1000 lbs/ 24 hour ranges which is due to an accident or malfunction AND has no other basis for reporting.

Invista INVISTA operates nylon and polyester fiber, polymer and resin manufacturing and spinning plants in seven US states ( DE, GA, NC, SC, TN, TX, and VA). Many of these sites/ facilities operate combustion equipment and sources that emit or have the potential to emit CERCLA hazardous substances, including nitrogen oxides ( NO and NO2). These sources are at times subject to reporting under the Comprehensive Environmental Response, Compensation and Liability Act ( CERCLA) and the Emergency Planning and Community Right to Know Act ( EPCRA).

INVISTA generally supports the proposed administrative exemption of releases of NOx of less than 1000 pounds per 24 hour period that result from combustion activities and appreciates EPA's efforts to implement CERCLA and EPCRA more efficiently by reducing unnecessary reporting. As EPA states, releases below this level have not necessitated a federal response nor has reporting of them furthered the protection of human health or the environment. Moreover, because the Clean Air Act ( CAA) regulates NOx at levels substantially higher than the current CERCLA Reportable Quantity ( RQ) of 10 pounds, an exemption is appropriate. While the proposed administrative exemption would allow facilities and response agencies to forgo submittal and review of individual release reports for emissions less than 1000 pounds per 24 hour period, it does not change permitting requirements or quantification and reporting of these releases under other regulatory programs such as EPCRA Form R reporting, air emission inventory reporting, Title V deviation reporting, and other similar state programs approved under State Implementation Plans ( SIP). Finally, this proposal would reduce an unnecessary burden on the part of the regulated community, as well as on EPA Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 14 and emergency planners and responders, and would allow resources to be focused on releases that do require a federal response.

The proposed rule requests comments on whether the exemption should apply only to CERCLA reporting, or should apply to both CERCLA and EPCRA reporting. INVISTA believes that the exemption should apply to both CERCLA and EPCRA reporting. Otherwise, unnecessary burdens placed on the regulated community and emergency planners and responders would continue without any benefit to human health or the environment.

However, the proposed rule does not go far enough in reducing the reporting burden. In INVISTA's opinion, the exemption should be extended to NOx releases from non combustion sources and to accident/ malfunction events. Our comments in support of such exemption are given below, along with suggestions on improvements to continuous release reporting ( CRR) requirements and support for raising the overall NOx RQ.

Koch Mineral Services, LLC ( KMS) KMS represents numerous Koch companies in about 15 states. Many of these sites/ facilities operate combustion equipment and sources that emit or have the potential to emit Comprehensive Environmental Response, Compensation and Liability Act ( CERCLA) hazardous substances, including nitrogen oxides ( NO and NO2). These sources are at times subject to reporting under CERCLA and the Emergency Planning and Community Right to Know Act ( EPCRA).

MeadWestvaco MeadWestvaco appreciates this opportunity to comment on the proposed administrative exemption to CERCLA/ EPCRA for NOx releases. MeadWestvaco generally supports the proposed exemption, but believes it should be extended to cover a broader range of releases. We also suggest certain clarifications to the reporting requirements.

National Council for Air and Stream Improvement, Inc.( NCASI) NCASI is a non profit environmental technical studies organization funded by the forest products industry. We conduct investigations and provide technical information to our member companies to assist them in meeting their environmental obligations. We have carried out numerous studies over the last 30 years on NOx emissions from a variety of combustion sources found at manufacturing facilities operated by the forest products industry.

National Environmental Development Association's Clean Air Project ( NEDA/ CAP) NEDA/ CAP, a coalition of manufacturing companies that operate facilities across the country,  . NEDA/ CAP was a party in the judicial challenge to EPA's Dec. 21, 1999 federally permitted release policy, which was resolved by EPA's publication of its 2002 Federally Permitted Release Guidance, 67 Fed. Reg. 18899 ( Apr. 17, 2002), and the Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 15 Agency's agreement that it would undertake the instant rulemaking. All of NEDA/ CAP's members operate combustion sources, and thus our members are directly affected by EPA's interpretation, guidance, and the proposed rule with regard to notification and reporting releases of NOx. Although many of the combustion sources operated by NEDA/ CAP's members are subject to operating permits with NOx emissions limits, some may have equipment grandfathered from controls or units not specifically identified or without NOx control limits stated in their federal operating ( i. e., Title V) permits.

NEDA/ CAP supports the proposed administrative exemption. Our members submit, however, that the administrative exemption becomes overly complicated and of limited utility for industrial, as well as other small institutional and business entities, if EPA engrafts a causation or intent element in the definition that will require the owner/ operator to decide whether the NOx results from normal or abnormal combustion. So long as the NOx release does not exceed 1,000 lbs/ day ( or other threshold EPA determines is reasonable), the emissions should be treated as a " continuous release." It seems important to underscore that the legal basis for the " administrative exemption" from notification and reporting is that the emissions are predictable and stable in quantity and rate. In contrast, EPA is not taking the position as a basis for the proposed action that emissions from upset emissions are " federally permitted."

So long as NOx emission results from combustion, it should not be necessary to determine the type of combustion equipment or how the equipment is operating so long as emissions can be quantified and remain under 1,000 pounds of NOx a day. The emissions from combustion will have the same dispersive effect in the environment and EPA has made a factual determination based on 25 years of experience that no CERCLA response is necessary for such a quantity of emissions.

National Lime Association ( NLA) NLA is the trade association for manufacturers of high calcium quicklime, dolomitic quicklime, and hydrated lime, collectively referred to as " lime." In 2004, 88 commercial and captive lime plants manufactured 20 million metric tons of lime in the U. S. There are 26 commercial lime companies in the United States. Eleven are small businesses.

The National Lime Association ( NLA) appreciates the opportunity to comment on EPA's proposed rule to create an administrative reporting exemption for combustionrelated NOx emissions ( except those from an accident or malfunction). NLA believes the exemption should apply to all combustion sources. By contrast, the Agency's preferred option of limiting the exemption to sources emitting less than 1,000 pounds/ day of NOx is unduly burdensome because information on combustion releases is already readily available to emergency planning officials and the public through other reporting programs.

National Mining Association ( NMA) Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 16 NMA is the industry association representing the producers of most of the nation's coal, metals, and industrial and agricultural minerals; the manufacturers of mining and mineral processing machinery, equipment and supplies; and the engineering and consulting firms, financial institutions and other firms serving the coal and hardrock mining industry.

Many NMA member companies employ internal combustion engines that release NOx; NMA mining company members utilize planned, routine and permitted blasting operations that could result in the release of NOx. These releases fall within the conditions EPA has proposed for a reporting exemption. For these reasons NMA supports the approach taken by the agency in the October 4 proposed rule.

NMA also supports and commends to the agency's attention the comments submitted on this proposed rule by the National Stone, Sand & Gravel Association.

National Petrochemical & Refiners Association ( NPRA) NPRA, the National Petrochemical & Refiners Association, is a national trade association representing more than 450 companies, including virtually all US refiners and petrochemical manufacturers. Our members supply consumers with a wide variety of products and services that are used daily in homes and businesses. These products include gasoline, diesel fuel, home heating oil, jet fuel, asphalt products, and the chemicals that serve as " building blocks" in making plastics, clothing, medicine and computers. Our members have combustion sources located at their facilities and are, therefore, directly affected by the proposed administrative exemption from reporting requirements for certain releases of NOx.

NPRA supports EPA's proposal to exempt certain NOx releases resulting from combustion devices. However, we believe that EPA's effort can be significantly enhanced by expanding the exemption to include upsets and malfunctions and safety devices such as flares, and by raising the exemption threshold to 5000 pounds.

National Stone, Sand & Gravel Association ( NSSGA) NSSGA is the national trade organization representing the many and varied interests of the crushed stone, sand, and gravel mining industry. NSSGA's membership represent over 90% of the annual production of crushed stone in the United Sates and over 75% of the annual production of sand and gravel.

NSSGA does not oppose the exemptions for nitric oxide ( NO) and nitrogen dioxide ( NO2) proposed in 302.6( e)( l) and ( e)( 2). These exemptions clearly minimize the administrative burdens associated with reports for which agency response is neither appropriate nor feasible. However, these exemptions do not solve the fundamental issue concerning the legal authority for including pollutant emissions that result from chemical reactions and/ or combustion processes in the CERCLA and EPCRA response programs. These programs are intended to address only materials released to the environment as bulk chemicals during accidents or equipment malfunctions. Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 17 The listing of NO and NO2 as CERCLA EPCRA hazardous compounds and the selection of RQ values for these compounds is reasonable with respect to the release of these chemicals only as compressed or liquefied gases during shipment and storage. The application of CERCLA EPCRA reporting requirements to NOx air emissions is technically inappropriate.

NSSGA recommends that EPA simply add a clarifying note to Table 302.4 indicating that that these designations and the associated RQ values apply to the release of NO and NO2 during shipment and/ or storage of bulk chemicals and not to NOx air emissions. This approach is entirely consistent with previous EPA rulemakings.

Northeast Utilities Service Company ( NUSCO) Northeast Utilities Service Company ( NUSCO), on behalf of itself, The Connecticut Light and Power Company, Northeast Generation Services Company, Public Service Company of New Hampshire, Western Massachusetts Electric Company, and Yankee Gas Services Company, hereby submits comments on the proposed administrative exemption for emergency release reporting of combustion related nitric oxide ( NO) and nitrogen dioxide ( NO2), under CERCLA and EPCRA.

NUSCO strongly supports and appreciates the proposal by the Environmental Protection Agency ( EPA) to exempt combustion related releases of NO and NO2 from emergency release reporting. This provides greater regulatory certainty than the EPA's present stated reliance on its exercise of enforcement discretion. It also eliminates a potentially huge burden on the regulated community and federal regulatory agencies of dealing with reports of vast numbers of routine and insignificant releases. However, NUSCO has two concerns with the proposal, and offers specific comments, as outlined below.

Oglethorpe Power Corporation ( OglethorpePower) On October 4, 2005, EPA proposed an administrative exemption from reporting releases of nitrogen oxide (" NO") and nitrogen dioxide (" NO2") ( collectively hereafter referred to as " NOx"). These comments are submitted on behalf of Oglethorpe Power Corporation (" Oglethorpe Power" or the " Corporation"). Oglethorpe Power appreciates the opportunity to comment on this proposed rule, which would create an exemption from reporting certain releases of NOx from the types of combustion sources it operates and/ or owns. Therefore, this rulemaking directly and substantially affects the interests of Oglethorpe Power. Its comments to EPA's proposal follow.

Portland Cement Association ( PCA) PCA strongly supports the proposed alternative to exempt all releases of nitrogen oxides ( NOx) from combustion sources that are not the result of an accident or malfunction. Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 18 The Portland Cement Association is a trade association representing cement companies in the United States and Canada. PCA's U. S. membership consists of 45 companies operating 106 plants in 35 states and distribution centers in all 50 states servicing nearly every Congressional district. PCA members account for more than 95 percent of cement making capacity in the United States and 100 percent in Canada.

Synthetic Organic Chemical Manufacturers Association ( SOCMA) The Synthetic Organic Chemical Manufacturers Association (" SOCMA") appreciates the opportunity to submit these comments on EPA's proposed administrative exemption from certain notification requirements under the Comprehensive Environmental Response, Compensation, and Liability Act and the Emergency Planning and Community Right  to Know Act published in the Federal Register on October 4, 2005. Numerous SOCMA members are affected by the NOx reporting requirements, are interested in seeing certainty regarding federally permitted releases, and are consequently interested in changes to the reportable quantities of NO and NO2.

SOCMA is a trade association representing batch and custom chemical manufacturers, a highly innovative, entrepreneurial and customer driven sector of the chemical industry. More than 2,000 batch processing facilities produce 50,000 of the specialty and custom chemicals manufactured in the U. S. at a value of about $ 60 billion annually. SOCMA members are representative of these facilities, which are typically small businesses with fewer than 80 employees and less than $ 100 million in annual sales.

Utility Air Regulatory Group ( UARG) The Utility Air Regulatory Group (" UARG")' offers the following comments on the Environmental Protection Agency's (" EPA" or " Agency") proposed Administrative Reporting Exemption for Certain Air Releases of NOx ( NO and NO2). EPA published the proposed rule in the Federal Register on October 4, 2005, and is seeking comments on an administrative exemption from certain notification requirements under § 103 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, (" CERCLA"), 42 U. S. C. 9601, et seq., and § 304 of the Emergency Planning and Community Right to Know Act (" EPCRA"), 42 U. S. C. 11,001, et seq., also known as Title III of the Superfund Amendments and Reauthorization Act.

UARG supports extending the administrative reporting exemption to include all releases of NOx from combustion sources. If EPA decides not to grant a blanket reporting exemption, UARG supports, at a minimum, a 1,000 pound exemption limit. However, a 5,000 pound exemption limit would be more realistic and practical than a 1,000 pound limit. Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 19 INDEX OF ISSUES ON THE ADMINISTRATIVE REPORTING EXEMPTION FOR CERTAIN AIR RELEASES OF NOx ( NO and NO2)

Section/ Subtopic Commenters Public Docket Number/ Comment Letter I DP& L EPA HQ SFUND 2003 0022 0093 I NMA EPA HQ SFUND 2003 0022 0096 I TFI EPA HQ SFUND 2003 0022 0094 I SOCMA EPA HQ SFUND 2003 0022 0089 I NEDA/ CAP EPA HQ SFUND 2003 0022 0087 I NEDA/ CAP EPA HQ SFUND 2003 0022 0087 I OglethorpePower EPA HQ SFUND 2003 0022 0103 EPA HQ SFUND 2003 0022 0105 EPA HQ SFUND 2003 0022 0111 I UARG EPA HQ SFUND 2003 0022 0104 I AGA EPA HQ SFUND 2003 0022 0107 I API EPA HQ SFUND 2003 0022 0113 II/ Simplify Continuous Release Initial Release Notification AF& PA EPA HQ SFUND 2003 0022 0101 II/ Simplify Continuous Release Initial Release Notification MeadWestvaco EPA HQ SFUND 2003 0022 0098 II/ Simplify Continuous Release Initial Release Notification KMS EPA HQ SFUND 2003 0022 0090 II/ Simplify Continuous Release Initial Release Notification INVISTA EPA HQ SFUND 2003 0022 0109 II/ Simplify Continuous Release Initial Release Notification NEDA/ CAP EPA HQ SFUND 2003 0022 0087 II/ Simplify and Clarify Continuous Release Reporting Requirements CIBO EPA HQ SFUND 2003 0022 0099 II/ Clarify Continuous Release Reporting Requirements NUSCO EPA HQ SFUND 2003 0022 0084 III/ Should Not be Used In Lieu of Proposed Exemption SOCMA EPA HQ SFUND 2003 0022 0089 III/ Should Not be Used In Lieu of Proposed AEP EPA HQ SFUND 2003 0022 0097 EPA HQ SFUND 2003 0022 0112 Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 20 Exemption III/ Should Not be Used In Lieu of Proposed Exemption AGA EPA HQ SFUND 2003 0022 0107 III/ Does Not Afford Practical Relief API EPA HQ SFUND 2003 0022 0113 IV/ Support a Number Larger than 1,000 Pounds AEP EPA HQ SFUND 2003 0022 0097 EPA HQ SFUND 2003 0022 0112 IV/ Support a Number Larger than 1,000 Pounds PCA EPA HQ SFUND 2003 0022 0092 IV/ Support a Number Larger than 1,000 Pounds AF& PA EPA HQ SFUND 2003 0022 0101 IV/ Support a Number Larger than 1,000 Pounds NLA EPA HQ SFUND 2003 0022 0108 IV/ Support a Number Larger than 1,000 Pounds NCASI EPA HQ SFUND 2003 0022 0083 IV/ Increase RQ for Combustion Related Exemption to 5,000 Pounds Eastman EPA HQ SFUND 2003 0022 0081 IV/ Increase RQ for Combustion Related Exemption to 5,000 Pounds Dow EPA HQ SFUND 2003 0022 0091 IV/ Increase RQ for Combustion Related Exemption to 5,000 Pounds ACC EPA HQ SFUND 2003 0022 0082 IV/ Increase RQ for Combustion Related Exemption to 5,000 Pounds NPRA EPA HQ SFUND 2003 0022 0086 IV/ Increase RQ for Combustion Related Exemption to 5,000 Pounds AISI EPA HQ SFUND 2003 0022 0095 IV/ Increase RQ for Combustion Related Exemption to 5,000 Pounds NMA EPA HQ SFUND 2003 0022 0096 IV/ Increase RQ for Combustion Related Exemption to 5,000 Pounds Dominion EPA HQ SFUND 2003 0022 0102 EPA HQ SFUND 2003 0022 0110 IV/ Increase RQ for Combustion Related Exemption to 5,000 Pounds UARG EPA HQ SFUND 2003 0022 0104 IV/ Increase RQ for Combustion Related Exemption to 5,000 Pounds AGA EPA HQ SFUND 2003 0022 0107 Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 21 IV/ Increase RQ for Combustion Related Exemption to 5,000 Pounds API EPA HQ SFUND 2003 0022 0113 IV/ Raise or Eliminate the 1,000 Pound Reporting Threshold for all Combustion Related Releases NUSCO EPA HQ SFUND 2003 0022 0084 IV/ Raise or Eliminate the 1,000 Pound Reporting Threshold for all Combustion Related Releases CIBO EPA HQ SFUND 2003 0022 0099 IV/ Raise or Eliminate the 1,000 Pound Reporting Threshold for all Combustion Related Releases OglethorpePower EPA HQ SFUND 2003 0022 0103 EPA HQ SFUND 2003 0022 0105 EPA HQ SFUND 2003 0022 0111 V/ Accidents and Malfunctions API EPA HQ SFUND 2003 0022 0113 V/ Accidents and Malfunctions ACC EPA HQ SFUND 2003 0022 0082 V/ Accidents and Malfunctions NCASI EPA HQ SFUND 2003 0022 0083 V/ Accidents and Malfunctions NPRA EPA HQ SFUND 2003 0022 0086 V/ Accidents and Malfunctions NEDA/ CAP EPA HQ SFUND 2003 0022 0087 V/ Accidents and Malfunctions Eastman EPA HQ SFUND 2003 0022 0081 V/ Accidents and Malfunctions Huntsman EPA HQ SFUND 2003 0022 0088 V/ Accidents and Malfunctions SOCMA EPA HQ SFUND 2003 0022 0089 V/ Accidents and Malfunctions TFI EPA HQ SFUND 2003 0022 0094 V/ Accidents and Malfunctions AISI EPA HQ SFUND 2003 0022 0095 V/ Accidents and Malfunctions MeadWestvaco EPA HQ SFUND 2003 0022 0098 V/ Accidents and Malfunctions CIBO EPA HQ SFUND 2003 0022 0099 V/ Accidents and AF& PA EPA HQ SFUND 2003 0022 0101 Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 22 Malfunctions V/ Accidents and Malfunctions UARG EPA HQ SFUND 2003 0022 0104 V/ Accidents and Malfunctions OglethorpePower EPA HQ SFUND 2003 0022 0103 EPA HQ SFUND 2003 0022 0105 EPA HQ SFUND 2003 0022 0111 V/ Accidents and Malfunctions KMS EPA HQ SFUND 2003 0022 0090 V/ Also Include in Exemptions   Start ups, Shut downs, and Up Sets KMS EPA HQ SFUND 2003 0022 0090 V/ Also Include in Exemptions   Start ups, Shut downs, and Up Sets Dow EPA HQ SFUND 2003 0022 0091 V/ Also Include in Exemptions   Start ups, Shut downs, and Up Sets AEP EPA HQ SFUND 2003 0022 0097 EPA HQ SFUND 2003 0022 0112 V/ Also Include in Exemptions   Start ups, Shut downs, and Up Sets INVISTA EPA HQ SFUND 2003 0022 0109 V/ Clarify that Flares are Control Devices   Not Considered Accidents and Malfunctions Eastman EPA HQ SFUND 2003 0022 0081 V/ Clarify that Flares are Control Devices   Not Considered Accidents and Malfunctions ACC EPA HQ SFUND 2003 0022 0082 V/ Clarify that Flares are Control Devices   Not Considered Accidents and Malfunctions NPRA EPA HQ SFUND 2003 0022 0086 V/ Clarify that Flares are Control Devices   Not Considered Accidents and Malfunctions Dow EPA HQ SFUND 2003 0022 0091 V/ Clarify that Flares are Control Devices   Not Considered Accidents and Malfunctions API EPA HQ SFUND 2003 0022 0113 VI TFI EPA HQ SFUND 2003 0022 0094 VI INVISTA EPA HQ SFUND 2003 0022 0109 VI AISI EPA HQ SFUND 2003 0022 0095 Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 23 VII/ Legal Authority to Include NO and NO2 Resulting from Chemical Reaction NSSGA EPA HQ SFUND 2003 0022 0085 VII/ Legal Emissions of NOx are " Federally Permitted" AGA EPA HQ SFUND 2003 0022 0107 VII/ Proposed Exemption only Applies to Emissions not Considered Federally Permitted CIBO EPA HQ SFUND 2003 0022 0099 VII/ Provide a Definition of " Excess Emissions" for Reporting NOx NEDA/ CAP EPA HQ SFUND 2003 0022 0087 VII/ Provide Guidance on Calculating When Releases from Minor Sources Exceed a Reporting Threshold KMS EPA HQ SFUND 2003 0022 0090 VII/ Provide Guidance on Calculating When Releases from Minor Sources Exceed a Reporting Threshold INVISTA EPA HQ SFUND 2003 0022 0109 VII/ Apply Exemption to Both CERCLA and EPCRA Reporting KMS EPA HQ SFUND 2003 0022 0090 VII/ Clarify that NOx represents NO and NO2 Interchangeably MeadWestvaco EPA HQ SFUND 2003 0022 0098 VIII AF& PA EPA HQ SFUND 2003 0022 0101 IX KMS EPA HQ SFUND 2003 0022 0090 IX NMA EPA HQ SFUND 2003 0022 0096 IX Dominion EPA HQ SFUND 2003 0022 0102 EPA HQ SFUND 2003 0022 0110 IX INVISTA EPA HQ SFUND 2003 0022 0109 Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 24 This page intentionally left blank. Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 25 I. SUPPORT FOR PROPOSED REPORTING EXEMPTION Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 26 Commenter Number: 0093.1 Response Number: 1 Commenter Name: Gary M. Bramble, P. E., Environmental Management, Dayton Power and Light Company ( DPL)

DPL is very supportive of the direction of EPA proposal. ( p. 2)

DPL agrees that requiring reports of NO and NO2 releases that are a result of combustion and are below 1000 pounds per 24 hours serves no useful purpose. DPL also encourages, for reasons stated below, that EPA extend this approach to a blanket exemption for all releases of NO and NO2 from permitted combustion sources. The science of NOx emissions is very well understood. ( p. 2)

EPA and state environmental agencies have understood for decades that all combustion sources emit moderate levels of NOx compounds including NO and NO2. AP 42 contains well developed emission factors for all combustion sources. EPCRA/ CERCLA reporting can add nothing to the technical understanding that the combustion of fuel results in some NO and NO2 emissions. The monitoring of NOx and ozone is extensive. ( p. 2)

The U. S. has a broad network of NOx monitors. Although there still remain some ozone non attainment areas, the NAAQS for NOx is readily attained in Ohio and throughout most or all of the U. S. EPCRA/ CERCLA reporting of NO and NO2 provides no beneficial purpose relative to attaining the NAAQS of these compounds. ( p. 2)

The regulatory approach to NOx control and reductions at the state and Federal level is extensive. ( p. 2)

Ohio EPA and most other states have issued construction permits and operating permits for virtually all combustion sources greater than de minimus size. Annual Fee Emission reports are submitted to provide state agencies with data on all NOx emissions exceeding one ton per year. EDR reports are sent quarterly to the EPA from utilities providing hour by hour information from CEMS relative to NOx emissions from large utility combustions sources. Ohio EPA visits many of these combustion sources annually. The current NOx SIPs address these pollutants. The CAIR rule will further reduce these emissions. EPCRA/ CERCLA reporting of NO and NO2 provides no beneficial purpose relative to understanding the quantity or level of these emissions. ( p. 2)

Commenter Number: 0096.1 Response Number: 2 Commenter Name: Roderick T. Dwyer, Deputy General Counsel, National Mining Association ( NMA)

A Reporting Exemption Is Necessary and Fully Justified ( p. 2) Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 27 The proposed reporting exemption is intended to apply only to NOx releases for which reporting would serve little or no useful purpose. Looking to the purposes of CERCLA § 103 and EPCRA § 304, it is quickly apparent from the statutory language and the overall statutory context that these two specific reporting requirements are intended to facilitate governmental response to releases that could pose threats to health and the environment. CERCLA § 103 and EPCRA § 304 are not mere data gathering provisions; rather, they require notification of releases so that federal, state, or local authorities may evaluate and determine appropriate responses to the releases. ( p. 2)

Yet, where NOx emissions are routine, anticipated and relatively low in amounts no government response is necessary or possible. Indeed, the rulemaking record amply demonstrates that EPA regions have not responded to these kinds of releases. In fact, there is no indication in the record that the EPA regions are aware of a single government response to non accidental NOx releases. ( p. 2)

As the preamble to the proposed rule points out, the Clean Air Act ( CAA) has established a number of control mechanisms for NOx releases. NOx triggers these CAA controls at levels far greater than any to which the proposed rule might accord a reporting exemption. The preamble declares that under the current CERCLA § 103 and EPCRA § 304 NOx reporting requirements: ( p. 2)

The likelihood of a Federal response to the release of NOx below this level [ pounds in a 24 hour period] is highly unlikely and... these releases are sources for which reporting may serve no useful purpose under either CERCLA or EPCRA... Thus, such submissions [ reports] particularly those at levels below 1,000 pounds per 24 hours, have not furthered the protection of human health and the environment. 70 FR 57818 ( emphasis added) ( p. 2)

NMA suggests that, far from furthering the protection of human health and the environment, the requirement to report such NOx releases actually increases the risks to human health and the environment. Federal, state or local authorities must spend limited resources of time, money and manpower evaluating low level releases for which a governmental response is unnecessary if not impossible. The resources spent in making such evaluations would be much better spent were they to be focused on NOx releases in much higher amounts resulting from accidents or malfunctions. ( p. 2)

The preamble offers examples of the types of NOx releases that would be exempted under the proposed rule. These examples include   but are not limited to   various gas and coal boilers, internal combustion engines as small as 18 horsepower, and even bakery ovens. All of these pieces of equipment can, under normal, routine and anticipated modes of operation, trigger current NOx reporting requirements. On its face it is absurd to continue requiring such reporting and the agency is acting reasonably to move to strike such requirements. ( p. 3) Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 28 The proposed rule's preamble and regulatory language make it clear that the proposed rule applies to NOx releases from all forms of combustion, not merely the specific examples cited in the preamble. The proposed regulatory language places no restrictions on the types of combustion included in the proposed exemption. NMA strongly supports the inclusion of all forms of combustion within the proposed exemption. ( p. 3)

NMA suggests, however, that the final preamble language be even more explicit in its application of the exemption to all forms of combustion. This could be accomplished by the addition of one other example in the preamble: NOx releases from anticipated, routine blasting of the type that occurs at mines. Such blasting is an essential part of a mine's normal operating practices. It must be done to allow access to and recovery of the desired mineral( s). Just as a mine's operating permit( s) is unlikely to include NOx releases from internal combustion engines, it also is very unlikely that such a state or federal permit would include NOx releases from routine blasting practices at the mine site. NOx releases due to blasting at mine sites are not the kinds of releases that warrant government response actions. A review of the rulemaking record failed to reveal a single government response action due to NOx releases due to routine, anticipated blasting at mine sites. ( p. 3)

Commenter Number: 0094.1 Response Number: 3 Commenter Name: William C. Herz, Director Scientific Programs, The Fertilizer Institute ( TFI)

TFI Supports an Administrative Reporting Exemption for Air Releases of NOx of Less than 1,000 Pounds. ( p. 2)

In the proposed NOx reporting exemption, EPA concludes that reporting NOx releases to air that result in releases of less than 1,000 pounds per 24 hours serves no useful purpose because a federal response to the release of NOx below this level is " highly unlikely." 70 Fed. Reg. at 57,818. TFI supports this conclusion and agrees with EPA than an adequately crafted administrative exemption for the reporting of certain low level NOx releases will enable the government to focus its resources on more serious releases. ( p. 2)

Commenter Number: 0089.1 Response Number: 4 Commenter Name: Eric Clark, Synthetic Organic Chemical Manufacturers Association ( SOCMA)

SOCMA Supports EPA's Proposed Exemption of 1,000 lbs/ 24 Hours. ( p. 1)

SOCMA is pleased to see that EPA is moving to address this gap in its current federally permitted release policy. SOCMA supports EPA's proposal to enact an administrative exemption which would raise the reportable quantity of NOx from 10 lbs per 24 hours up Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 29 to 1,000 pounds per 24 hours during instances of startup and shutdown. EPA very astutely points out that the current reportable quantity of 10 pounds per 24 hours results in an increasing number of reports to the Emergency Release Notification System that EPA does not consider actionable. If routine releases of NOx below 1,000 pounds per 24 hours are not deemed to require Federal action, then there is little need to require the antecedent report. As we stated in previous comments, reducing regulatory burden, where it can be accomplished without causing additional harm to human health or the environment, is essential to SOCMA members. In this particular case, where reports below 1,000 pounds per 24 hours do not generate a federal response, then the need for reporting the release under the current requirements is unnecessary and burdensome. ( p. 1 2)

Commenter Number: 0087.1 Response Number: 5 Commenter Name: Leslie S. Ritts, Counsel to NEDA/ CAP, The National Environmental Development Association's Clean Air Project ( NEDA/ CAP)

Legal Basis for Administrative Exemption ( p. 2)

NEDA/ CAP believes that EPA can use its authority under CERCLA § 103 to exempt NOx emissions from combustion units from CERCLA notification and reporting. In particular, it is valuable to note that in its 1990 Continuous Release rule, the agency explained that releases, even if they are intermittent, may qualify for less frequent reporting requirements if they are " continuous" and " stable in quantity and rate." EPA defined " continuous" as a release that occurs without interruption or one that is routine, anticipated, intermittent and incidental to normal operations or treatment processes." 55 Fed. Reg. 30166 ( July 24, 1990). Examples included in that notice were batch processes, loading and unloading, and decompression of pressure vessels. Thus, residential or institutional boilers, or even industrial emergency generators or small engines and space heaters, which may be operated periodically or seasonally, would be authorized continuous releases because their emissions are stable and expected from the combustion source. The Agency also stated that emissions could be considered " stable in quantity and rate" so long as the emissions were predictable in the sense that the rate and amount of pollutants vary in the same manner each time the process is operated. Id. In 1997 Agency guidance, EPA directed " You may establish the pattern of the release by relying on past release data, engineering estimates, your knowledge of the facility's operations and release history, or your best professional judgment." OSWER, Reporting Requirements for Continuous Releases of Hazardous Substances: A Guide for Facilities on Compliance, 5 ( EPA 540 R 97 047, Dec. 1997). Thus, to the extent NOx emissions are known to occur from combustion sources during upset, they also can be treated as " predictable and stable in quantity and rate," consistent with prior Agency interpretation. ( p. 2 4)

Commenter Number: 0087.1 Response Number: 6 Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 30 Commenter Name: Leslie S. Ritts, Counsel to NEDA/ CAP, The National Environmental Development Association's Clean Air Project ( NEDA/ CAP)

1,000 Pound NOx Reportable Quantity Threshold ( p. 5)

EPA has proposed an exemption for NOx emissions of up to 1,000 pounds per 24 hours based on the Agency's finding that such a volume of NOx is neither a threat to public health nor the environment that warrants a response action. We support these conclusions. It is a principle of administrative law that an agency need not identify a specific basis for a number so long as the use of its discretion in identifying such a threshold quantity is based on reasonable considerations under the statute. Thus, while it may be permissible for EPA to choose another NOx continuous release threshold under CERCLA, its choice of 1,000 pounds of NOx is not arbitrary or capricious if it is in the " zone of reasonableness." The courts have ruled with regard to similar thresholds, " We do not demand certainty where there is none. There may be no strong reason for choosing [ numerical standard] rather than a somewhat higher or lower number. If so, we will uphold the Agency's choice of a numerical standard if it is within a zone of reasonableness." Small Refiners Lead Phase Down Task Force v. EPA 705 F. 2d 506, at 525 ( D. C. Cir. 1983). ( p. 5)

In this notice, EPA has arrayed valuable information about the type and quantity of air emissions from sources that should be exempt from CERCLA reporting and made a finding that the justification for notifying and reporting National, State and Local Response Centers is outweighed by the administrative burden to these authorities as well as public and private institutions to notify and file reports and likelihood that such releases would ever require any CERCLA response. 70 Fed. Reg. 57815 16. This finding meets the standard for reasonableness in applying the law's notification and reporting requirements. Again, it seems important to emphasize in this regard that the Agency is not proposing that such emissions are " federally permitted releases." Rather, the Agency has set forth a reasonable basis for exempting such emissions from CERCLA notification and reporting, because the Agency has determined based on two and a half decades of experience that such emissions rarely, if ever, warrant local, state or federal response actions. Also, in most instances, these emissions would still be reported by sources and/ or states under Clean Air Act permit fee and state inventory reporting, as well as local, state and federal notification reporting requirements exist in the event that startups, shutdowns or malfunctions exceed applicable local, state, and/ or federal limits. ( p. 5 6)

Commenter Number: 0103.1, 0105, 0105.1, 0111 Response Number: 7 Commenter Name: Douglas J. Fulle, Director, Environmental & Regulatory Affairs, Oglethorpe Power Corporation ( OglethorpePower)

A 10 Pound Reporting Threshold For NOx Is Unnecessary, Given the Stringent Regulation of NOx Emissions From Power Plants. ( p. 4) Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 31 NOx emissions from power plants are highly regulated. Stringent NOx controls are increasingly being required of utility combustion sources, along with exacting monitoring requirements. As EPA notes, the 10 pound RQ for NOx is easily met by power plants of any reasonable size in a much briefer span than 24 hours. Stringent emissions limits in permits can be exceeded very quickly. This is especially true where such facilities are subject to very tight short term limits for NOx and are monitoring NOx emissions on a continuous basis, using, for example, a continuous emissions monitoring system (" CEMS") that meets the requirements of 40 C. F. R. Part 75. For example, consider a combined cycle combustion turbine power plant that has a 3.0 ppm limit for NOx with a 3 hour averaging time. A Part 75 CEMS monitors NOx emissions continuously. If a malfunction occurs in the selective catalytic reduction system (" SCR"), restricting the injection of ammonia, for example, a 10 pound RQ for NOx above the short term limit can be exceeded in a very short amount of time, given the short averaging time for NOx hourly values and the resulting spike in NOx emissions occurring due to the failure of the SCR. Based on the Corporation's experience, such releases have never approached the 1,000 pound threshold, yet they are reported under the current regulatory scheme, because they exceed the 10 pound reporting ceiling. Federal and state authorities are disinterested when such releases are reported, which is no surprise given the fact that response actions are deemed unnecessary. Such reports serve no legitimate purpose. ( p. 4 5)

The reporting of such releases wastes the valuable resources of utilities and regulatory response personnel, with no corresponding benefit to human health or the environment. In fact, there may even be a disbenefit. For example, the notification to some LEPCs requires that a call be placed to a 911 operator. While this line ( and operator) is tied up, another call regarding a legitimate emergency may go unanswered, potentially resulting in a very real adverse effect on human health. An exemption level of 1,000 pounds for all releases of NOx, including those resulting from an accident or malfunction, would avoid wasting such scarce resources, instead allowing all to focus on those releases of legitimate concern. ( p. 5)

In addition to the Clean Air Act programs that currently control NOx emissions listed in the proposal, we also note that the recently promulgated Clean Air Interstate Rule (" CAIR") will result in even more control and tighter monitoring of NOx emissions from power plants in the very near future. Although Georgia has not yet finalized its CAIR SIP, there is no doubt that the Corporation's power plants will be subject to stringent caps on NOx emissions, so as to aid certain areas in downwind states in attaining the national ambient air quality standards for PM2.5. ( p. 5)

Given this, the need for a 10 pound RQ for NOx on combustion sources appears unnecessary to further any of the statutory goals of CERCLA or EPCRA. The protection of human health and the environment is not enhanced. Response actions are not taken, because they are unnecessary. A plethora of reports for such small releases leaves Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 32 regulatory officials unable to focus on releases of importance. Regulatory and private sector resources are wasted with no consequent benefits to the environment or society. ( p. 5)

Commenter Number: 0104.1 Response Number: 8 Commenter Name: Lee B. Zeugin, Normal W. Fichthorn, David G. Scott II, Junton & Williams, LLP, Counsel for the Utility Air Regulatory Group ( UARG)

For Electric Generating Combustion Sources, the 10 Pound RQ Is Unnecessarily Low and Diverts Limited Response Resources from Significant Risks. ( p. 5)

The 10 pound RQ is unrealistically low for large combustion sources such as power plants. EPA's CAA regulations, which were developed to protect public health, allow much higher quantities of NOx emissions from these sources. In fact, the largest utility units in the United States, many with stringent NOx emission controls in place to meet demanding CAA control regulations, are likely to emit hundreds of tons or more of NOx per year. Since many of these NOx controls are designed to meet regulatory requirements that protect human health, the current 10 pound reporting threshold represents but a very small fraction of the levels deemed necessary to protect human health from these sources' emissions. ( p. 5 6)

Indeed, the current requirement to submit CERCLA and EPCRA reports for very small NOx releases is contrary to the goal of protecting the public health because it diverts limited response and other governmental resources from efforts to identify and respond to chemical releases that may actually pose risks to public health. ( p. 6) The Proposed Reporting Exemption Will Decrease Unnecessary Reporting. ( p. 6)

The 10 pound RQ can easily be exceeded by the normal operation of a typical utility unit in any 24 hour period. The proposed rule includes a number of examples where normal operation will result in emissions well above the RQ. UARG believes that many coal fired electric generating units, and some gas fired electric generating units, are likely to exceed the NOx RQ. ( p. 6)

Despite the fact that normal operation of a power plant may result in emissions that exceed the NOx RQ, EPA states in the proposed rule that no response action has historically been taken for reports below 1,000 pounds in 24 hours unless a given release is the result of an accident or malfunction. Thus, this proposed rule would simply codify existing policy. ( p. 6)

EPA also notes that, even though no action is currently taken in response to release notifications below 1,000 pounds in a 24 hour period, EPA estimates that the private sector and the federal government spent " 3.7 man months" to prepare and process Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 33 these notifications between 1994 and 2004. This is wasted time that could be used more productively. ( p. 7)

If the proposed administrative exemption is implemented, the Agency estimates an annual overall reporting cost reduction for industry of $ 377,155 with a corresponding reduction in the hour burden of 6,318 hours. Further, the Agency estimates a decrease in the number of respondents by 1,465. For the reasons explained above, implementation of the administrative reporting exemption will achieve these reporting related cost savings with no risk to public health. ( p. 7)

The Paperwork Reduction Act, 44 U. S. C. 3501 et seq., and its implementing regulations require federal agencies to review their own programs to ensure that the information they collect is necessary and useful. Under the statute, EPA must certify that any collection of information is necessary for the proper performance of the functions of the agency, including that the information has practical utility. Given that the reports filed for NOx releases from combustion sources of less than 1,000 pounds are essentially ignored and plainly do not require any response action, it is apparent that the current reporting requirement for these sources is not necessary for the proper functioning of the programs and does not provide any information that has practical utility. UARG is submitting these comments to OMB as well as to EPA because the existing reporting requirement is inconsistent with the requirements of the Paperwork Reduction Act. Adopting the proposed reporting exemption will decrease unnecessary reporting. ( p. 7 8)

Commenter Number: 0107, 0107.1 Response Number: 9 Commenter Name: Pamela A. Lacey, Senior Managing Counsel, American Gas Association ( AGA)

AGA Supports the Proposed Administrative Exemption for Combustion ( p. 2)

Although we think these sources logically should be covered by the exemption for federally permitted sources, we applaud EPA's alternative proposal to exempt combustion sources of less than 1,000 pounds per 24 hours from the reporting requirements. This would effectively prevent unnecessary reporting for small sources such as natural gas fired residential furnaces, commercial bakery ovens, and many boilers, engines and turbines. Otherwise, due to the absurdly low reportable quantity ( RQ) threshold of 10 pounds, millions of these small sources could otherwise be required to report   and overwhelm the emergency response system. ( p. 2 3)

It serves no useful purpose to report NOx emissions below 1,000 pounds from combustion sources. In the Federal Register notice, EPA indicates that it received over 13,000 NOx release notifications from 1994 through 2004, most measuring between 10 and 1,000 pounds, and EPA is not aware that any of these notifications prompted a response action, unless the release was the result of an accident or malfunction. Thus, over a decade of experience demonstrates that it serves no useful purpose to report NOx Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 34 releases from combustion processes that are below 1,000 pounds per 24 hours and that do not result from accidents or malfunctions. Combustion is already highly regulated, and other programs generally already have made determinations of impact from NOx releases. Emergency reporting is simply the wrong place to capture information about releases from otherwise permitted combustion sources that are operating under normal conditions. ( p. 3)

Commenter Number: 0113.1 Response Number: 10 Commenter Name: Howard J. Feldman, Director, Regulatory Analysis and Scientific Affairs, American Petroleum Institute ( API)

API Supports an Administrative Reporting Exemption for NOx Releases ( p. 5)

API strongly supports an administrative reporting exemption from notification requirements under section 304 of EPCRA and section 103 of CERLCA for combustion releases of NOx. As EPA stated in its most recent Regulatory Plan, exempting combustion NOx releases to air from reporting requirements " would eliminate reports from facilities emitting NOx where the Agency has determined that the release poses little or no risk or to which a Federal response is infeasible or inappropriate. Requiring reports of such releases would serve little or no useful purpose and would, instead, impose a significant burden on the Federal response system and on the persons responsible for notifying the Federal government of the release." The reporting requirements of CERCLA section 103 and EPRCA section 304 have a single purpose, i. e., to enable emergency response authorities to determine if a response action is necessary. Other separate provisions of EPCRA are aimed at facilitating response planning and community right to know. Thus, EPA was correct when it said, in connection with the administrative reporting exemption for certain radionuclide releases, that: ( p. 5 6)

With respect to the availability of public information regarding the sources and doses of radiation exposure in local communities, the purpose of the CERCLA section 103 and EPCRA section 304 reporting requirements is to notify government personnel of releases of hazardous substances so that a timely decision can be made regarding the need for a response action to protect public health or welfare or the environment. These reporting programs are not intended to serve as a source of public information on radiation sources and exposures. The community right to know reporting requirements, toxic release inventory requirements, and related provisions under EPCRA sections 311, 312, and 313 remain in effect. Therefore, the reporting exemptions will not significantly impact a community's ability and right to know about hazardous substances. ( p. 6) Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 35 CERCLA sections 102( a), 103, and 115 together provide EPA with authority to promulgate administrative reporting exemptions. Moreover, the legislative history of CERCLA reveals that Congress anticipated that EPA would promulgate appropriate exemptions where necessary to avoid unreasonable burdens on the response system. During Senate debate on S. 1480 ( CERCLA's predecessor bill), the Chairman of the Environment and Public Works Committee noted that EPA would have to develop rules to implement section 103, and EPA could exempt certain " classes of persons, substances, or vessels and facilities" in order to avoid creating " an undue administrative burden on the [ NRC]. Similarly, the Senate report on 5. 1480 said that EPA could revise reportable quantities ( RQs) if over reporting or under reporting is occurring and that " Administrative feasibility and practicality should be primary factors" in setting RQs. ( p. 6)

Through a reporting exemption for NOx releases to air from combustion, the response system will be able to more efficiently implement CERCLA and EPCRA and more effectively focus on reports of releases that are more likely to pose a risk to human health and the environment or potentially require government response. ( p. 6 7)

There is a strong rationale for exempting NOx releases from combustion sources, based on protection of human health and the environment and no need for government response ( p. 7)

An administrative reporting exemption, if properly crafted, would provide significant burden reduction to industry and government. However, more importantly, the exemption has a risk based justification. Given the specific nature of NOx releases from combustion, one would not reasonably anticipate that any response to such releases would be necessary. And, in fact, ample experience with these release reports has proven that NOx combustion releases pose little or no risk and have not required government response. Experience also shows that reporting NOx releases from combustion unnecessarily burdens the release notification system. An administrative exemption will remove this burden from the system and thus, result in more effective protection of public health and the environment, in part by focusing response activities on those events more likely to require a possible response. ( p. 7)

As discussed above, the CERCLA and EPCRA reporting requirements are intended to facilitate federal, state, and local emergency responses. The main concern with the current requirement for reporting NOx based on a 10 pound RQ is that emergency responders are overwhelmed with reports of combustion NOx releases, yet these releases do not require any emergency response. NOx is a natural by product of combustion activities and is thus very common, not only in industry, but also in many familiar residential activities such as driving a riding lawn mower or running an outboard motor. Most industrial combustion emissions have significantly lower NOx concentrations than these residential sources. In the industrial setting, the current 10 pound RQ for NOx results in an unreasonably large number of notifications which Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 36 require no response, placing a significant unnecessary burden on the CERCLA/ EPCRA notification systems. ( p. 7 8)

According to EPA's data in the preamble to the proposed rule, since 1994, there have been approximately 15,000 release notifications for NOx releases to air. Yet there has not been any situation in which a release of NOx from combustion devices ( i. e. flares, incinerators, internal combustion engines, turbines, heaters, thermal oxidizers, and boilers) necessitated an emergency response. Note that all 15,000 reports were evaluated by the designated response personnel who determined that responses to combustion device releases were not necessary. Based on an analysis performed by the U. S. Centers for Disease Control ( CDC), the only emergency responses to NOx releases from all of CDC's 1993 2002 data for incidents that involved NOx were for non combustion device releases  either liquid or chemical or because of explosion or fire. To illustrate, below are three examples of such releases extracted from the CDC analysis. ( p. 8)

° Washington ( 1996): While piping nitric hydrofluonc acid from a 3000 gallon holding tank inside a facility to a smaller portable waste treatment tank outside, a gas cloud of NOx increased pressure in the portable tank until a safety value tripped. An estimate of 750 pounds of NOx gas was released into the air. An emergency response was necessary, but the nature of the NOx release was non combustion. ( p. 8 9)

° Harris County, Texas ( 2000): A butadiene tank was off line and believed to be empty. However, residual butadiene and popcorn polymer were present in sufficient quantities to react. The reaction provided enough heat to overpressure the vessel resulting in vessel failure. An explosion and fire followed which took approximately 3 hours to extinguish. NOx was released incidental to the explosion and fire. An emergency response was necessary not to address potential health effects of exposure to NOx emissions from any combustion device, but to address the effects of the explosion and fire. ( p. 9)

° Three Rivers, Texas ( 2001): An explosion at a refinery necessitated an emergency response. The explosion was secondary to a fire that originated in the plant's alkylation unit. Again, the emergency response was necessary not to address potential health effects of exposure to NOx emissions from a combustion device, but to address the effects of the uncontrolled explosion and fire. ( p. 9)

The remaining instances of incidents involving NOx releases in the CDC analysis are similar to those above. All instances which required an emergency response were due to either liquid or chemical NOx releases or because of explosion and fire. In other words, no instances of a release of NOx from combustion devices necessitated an emergency response. No statutory purpose is served in requiring reporting for such releases. Therefore, an administrative reporting exemption is appropriate for all types of NOx releases from combustion devices. ( p. 9) Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 37 A properly crafted exemption would reduce unnecessary burden for both government and the regulated community ( p. 10)

Exempting reporting of combustion NOx releases to air has the potential to reduce needless reports to the National Response Center ( NRC) and state and local responders, and thus decrease demands on emergency response resources. The exemption would also reduce burden on the regulated community, with no reduction in protection of human health and the environment. Thus, the administrative reporting exemption has the potential to be an example of the best form of burden reduction  it would reduce the load on already strained government and business resources, with no sacrifice in health and environmental protection. The system set in place by CERCLA and EPCRA will be improved by the removal of thousands of unnecessary release reports. ( p. 10)

API developed and submitted to the Office of Management and Budget ( OMB) separate comments on EPA's estimates of burden reduction for the proposed rule, which the Agency presented in the form of adjusted Information Collection Requests. We incorporate these earlier comments by reference. In summary, we believe that EPA has seriously overestimated the number of reports that will be avoided by its exemption as proposed, because the Agency has erroneously assumed that none of the current reports are ( or might be interpreted to be) the result of accidents or malfunctions. However, if the Agency fixes the main problem with the current proposal ( exclusion of accidents and malfunctions), then we think that the burden reduction and benefits will be greater than EPA estimates. This is explained further in our comments on the ICRs and later in these comments. Finally, as discussed in section V below, burden reduction will be appropriately maximized, without any impact on human health and the environment, by using an exemption threshold of 5,000 pounds. ( p. 10 11)

The justifications for an administrative reporting exemption for all types of NOx releases from combustion are clear. However, in order for the administrative reporting exemption to actually meet EPA's stated purposes, it must be crafted so as to correctly target the universe of release reports that are not needed. As discussed in the sections below, the current proposal requires changes in several areas to properly target the NOx combustion release reporting that is unnecessary and should be eliminated under the exemption. ( p. 11)

Response EPA acknowledges the commenters' support of the administrative reporting exemptions proposed October 4, 2005.

In particular, the Agency specifically acknowledges:

( 1) DPL's recognition of the extensive Federal and state level regulatory approach to NOx control and reductions; Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 38 ( 2) NAM's support of the inclusion of all forms of combustion not merely the specific examples cited in the preamble; ( 3) NEDA/ CAP's recognition of, " two and a half decades of experience that such emissions rarely, if ever, warrant local, state or federal response actions;" ( 4) UARG's recognition that even though no action is currently taken in response to release notifications below 1,000 pounds in a 24 hour period, EPA estimates that the private sector and the federal government spent " 3.7 man months" to prepare and process these notifications between 1994 and 2004; ( 5) AGA's statement that, " emergency reporting is simply the wrong place to capture information about releases from otherwise permitted combustion sources that are operating under normal conditions;" and finally, ( 6) API's belief that, " EPA has seriously overestimated the number of reports that will be avoided by its exemption as proposed, because the Agency has erroneously assumed that none of the current reports are ( or might be interpreted to be) the result of accidents or malfunctions. However, if the Agency fixes the main problem with the current proposal ( exclusion of accidents and malfunctions), then we think that the burden reduction and benefits will be greater than EPA estimates."

With respect to the DPL's request that EPA extend the Administrative Reporting Exemption to all releases of NO and NO2, to the extent that those releases meet the definition of a Federally Permitted Release under CERCLA § 101( 10), the person in charge of the facility is not required to report the release.

EPA understands the concern of the API with respect to the assumption that none of the current reports are the result of accidents or malfunctions and will take a closer look at its assumptions during the revised burden analysis. Response to and discussion of the comments related to the exclusion for accidents and malfunctions is found in V. Request for Broader Exemptions to Include Accidents and Malfunctions, of this Response to Comment document. Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 39 II. SUPPORT FOR ALTERNATIVE   EXPANDING CONTINUOUS RELEASE REPORTING IN ADDITION TO PROPOSED EXEMPTION Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 40 A. Simplify Continuous Release Initial Release Notification Commenter Number: 0101.1 Response Number: 1 Commenter Name: Timothy G. Hunt, Senior Director, Air Quality Programs, American Forest & Paper Association ( AF& PA)

EPA requested comments on other means of addressing unpermitted releases of NOx to air, including more efficient use of continuous release reporting. AF& PA would support this approach as an additional option to the one proposed, but not as a replacement for it. For the continuous release option to be useful, however, EPA must broaden its concepts of " continuous" and " stable in quantity and rate" so as to encompass startup and shutdown operations. In addition, any rules issued under this option must recognize that NOx emissions from combustion sources are not constant even under steady state operation, such as in the case of boiler load changes. ( p. 3)

Commenter Number: 0098.1 Response Number: 2 Commenter Name: Debra D. Lane, Senior Environmental Consultant, Corporate Safety, Health and Environment, MeadWestvaco EPA also requested comment on alternatives to the exemption, such as simplifying the continuous release reporting requirements. MeadWestvaco supports simplification of the continuous release reporting requirements and recommends that EPA broaden the definition of a continuous release to include releases associated with startup and shutdown. Such releases may exceed those associated with normal operation, but are still predictable. We stress that addressing continuous release reporting should be in addition to the proposed administrative exemption rather than replacing it. ( p. 1)

In addition to the above comments, MeadWestvaco also specifically supports the comments of the American Forest and Paper Association, the American Chemistry Council, and the Council of Industrial Boiler Owners. ( p. 2)

Commenter Number: 0090.1 Response Number: 3 Commenter Name: Stephen B. Ellingson, Ph. D., Environmental Compliance Director, Koch Mineral Services, LLC ( KMS)

The proposed rule requests comments on whether, as an alternative to the administrative exemption, the requirement for notification of releases of NOx from combustion sources should be covered under the continuous release reporting scenario and if so, how the process could be made more efficient. KMS believes that reporting NOx releases from combustion sources of less than 1000 lbs per 24 hour period, either on an incident specific basis or through a continuous release report, does not necessitate an agency response and therefore agrees with EPA's proposal to exempt these releases from both types of notification requirements. ( p. 2) Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 41 KMS does find that, in general, the continuous release reporting scenario as currently implemented poses an undue administrative burden. KMS therefore suggests that the requirement to update the report for administrative changes be limited to changes that would affect EPA's ability to contact or identify the site ( i. e., actual contact telephone numbers or site identification numbers). Other changes, including changes in personnel, should not necessitate an update to the report as long as the basic site telephone contact numbers remain the same. ( p. 2)

Commenter Number: 0109 Response Number: 4 Commenter Name: Renu Chhabra, Waste & EPCRA Systems Manager, INVISTA The proposed rule requests comments on whether, as an alternative to the administrative exemption, the requirement for notification of releases of NOx from combustion sources should be covered under the continuous release reporting ( CRR) scheme and if so, how the process could be made more efficient. INVISTA submits that reporting NOx releases from combustion sources of less than 1000 lbs per 24 hour period, either on an incident specific basis or through a continuous release report does not necessitate an agency response and therefore, agrees with EPA's proposal to exempt these releases from both types of notification requirements. ( p. 3)

INVISTA does find that, in general, the continuous release reporting scheme as currently implemented poses an undue administrative burden. We, therefore, suggest that the requirement to update the report for administrative changes be limited to changes that would affect EPA's ability to contact or identify the site ( i. e., actual contact phone numbers or site identification numbers). Other changes, including changes in personnel should not necessitate an update to the report as long as the basic site telephone contact numbers remain the same. ( p. 3)

Commenter Number: 0087.1 Response Number: 5 Commenter Name: Leslie S. Ritts, Counsel to NEDA/ CAP, The National Environmental Development Association's Clean Air Project ( NEDA/ CAP)

In the NPRM, EPA asks for comment on other alternatives, including modifying 40 CFR § 302.7, applicable to continuous releases, for sources that emit less than 1,000 lbs NOx/ day. If the Agency decides it needs a one time notification for continuous NOx releases from combustion, the initial notification requirement must be greatly simplified, as compared with other continuous releases notifications ( and updates) that are currently required. Such a notification should not be burdensome to small business, requiring a business to hire a professional engineer to calculate emissions. We think it should be sufficient for the name and the address of the owner or the operator of the unit with the general description of the fuel source for the equipment to be provided with a general Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 42 contact telephone number ( e. g., office of the building engineer, office of the principal of a school, Hospital Administration office). It is particularly important that it not be necessary for a " contact person's" name to be modified if another person is employed in this position after the notification is filed. Further, periodic or annual notifications should not be required. This activity could be coordinated through the Small Business Administration, which has worked with the EPA Office of Compliance and Small Business Ombudsman on similar activities. ( p. 4 5)

Response EPA acknowledges the commenters' support of a more efficient use of continuous release reporting in addition to the administrative reporting exemption as proposed October 4, 2005.

AF& PA urges EPA to broaden its concepts of " continuous" and " stable in quantity and rate" so as to encompass startup and shutdown operations, " for the continuous release option to be useful."

The definition of continuous under 40 CFR 302.8 says that, " a continuous release is a release that occurs without interruption or abatement or that is routine, anticipated, and intermittent and incidental to normal operations or treatment processes." The definition of stable in quantity and rate under 40 CFR 302.8 says that, " a release that is stable in quantity and rate is a release that is predictable and regular in amount and rate of emission." The regulation puts the burden on the person in charge of a facility to establish a sound basis for qualifying the release for continuous release reporting ( see 40 CFR 302.8 ( d)) and allows that establishment to be made using release data, engineering estimates, knowledge of operating procedures, best professional judgment, or reporting to the NRC for a period sufficient to establish the continuity and stability of the release. Therefore, EPA believes that in certain instances startup and shutdown operations may meet the definitions of continuous and stable in quantity and rate.

EPA also acknowledges the suggestion of KMS and INVISTA to reduce the burden associated with the continuous release reporting by updating the requirement to update the continuous release report for administrative changes ( 40 CFR 302.8( g)( 3)) to require only those that would affect EPA's ability to contact or identify the site.

With respect to NEDA/ CAP's statement that, " EPA asks for comment on other alternatives, including modifying 40 CFR § 302.7, applicable to continuous releases, for sources that emit less than 1,000 lbs NOx/ day." The correct citation is 40 CFR § 302.8. The Agency is not contemplating a one time notification for continuous NOx releases from combustion; however, the NPRM did seek data or additional information to help us consider the appropriateness of two alternative options. One of those options included a more efficient use of Continuous Release reporting. The Agency does acknowledge NEDA/ CAP's position that the notification requirement must be greatly simplified, as Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 43 compared with other continuous releases notifications ( and updates) that are currently required. Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 44 B. Simplify and Clarify Continuous Release Reporting Requirements Commenter Number: 0099.1 Response Number: 6 Commenter Name: Robert D. Bessette, President, Council of Industrial Boiler Owners ( CIBO)

CIBO believes that a number of changes would be needed to simplify and clarify the continuous release reporting requirements for this to be a viable approach for addressing NOx release reporting from a variety of sources. First, CIBO believes that notification for these sources must be substantially simpler than the present continuous release reporting requirements for it to be a viable for the many small sources that may release over 10 pounds per day of NOx from unpermitted sources. Small businesses should not be required to hire a consultant to estimate emissions from their equipment. Instead the notice should require a description of the size and type of equipment and fuel sufficient for calculation by regulatory agencies. Further, once the initial notification is done, annual updates should not be required. Statistically significant increase reports should not be required. It should be sufficient for owners to update the continuous release report only if a large combustion source is physically modified. Finally, it would be very burdensome to agencies and businesses if all small combustion sources were subject to this notification requirement, so some cut off of at least 20 MMBTU/ hr or so should be considered. ( p. 4 5)

In addition to these burden considerations, in order for this reduced reporting requirement to be used, the release must be " continuous" and " stable in quantity and rate." While EPA has clarified these terms in the July 24, 1990 rulemaking in a manner that they could be applied to many common process scenarios, EPA may need to further refine the applicability of these criteria for them to be utilized. For instance, the term " continuous" is defined to mean a release that occurs without interruption or one that is routine, anticipated, intermittent and incidental to normal operations or treatment processes 40 C. F. R. § 302.8( b). In the July 24, 1990 preamble EPA indicated that releases associated with the following activities or events could be considered routine and regular and therefore " continuous" even though they are intermittent: batch processes, loading and unloading, decompression of pressure vessels, drawing off of liquid at regular intervals during a production process, venting that occurs each time a storage tank is filled, removal of fly ash or dust from pollution control devices and cyclical operations at production facilities. In contrast, EPA explained in the July 24, 1990 preamble that continuous does not include " emergency shut downs or pipe ruptures." If annual release reporting is to be of benefit, it should be able to cover start ups and shut downs including emergency shutdowns of combustion equipment, which might need to occur more quickly than normal to protect people or equipment, or even in the event of severe weather. ( p. 5)

In addition to the continuous criteria, EPA defined " stable in quantity and rate" to mean a release that is predictable and regular in amount and rate of emission. In the July Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 45 24, 1990 preamble, EPA explained that a release need not be uniform in quantity and rate to be stable. For example, as a pressurized batch reactor decompresses, the rate of fugitive emissions will decline. EPA indicated that, the emissions in that example could be considered " stable in quantity and rate" as long as the emissions are predictable in the sense that the rate and amount of release vary in basically the same manner each time the decompression occurs or the process is operated. EPA also noted that malfunctions incidental to normal operations may qualify for reduced reporting if they come within the definitions of " continuous" and " stable" in quantity and rate. ( p. 5)

It is important that if EPA were to use this approach, that the criteria encompass all regular process operations that affect NOx emissions. It is similarly important that EPA further refine the meaning of the terms. A general reading of these terms could lead business owners to believe they could not be applied to many process situations such as start ups or shut downs or even load changes. Yet, given appropriate clarification, many process situations may qualify for this continuous release reporting. In the absence of this clarification, many businesses may believe they need to file daily reports. Again, this would defeat the purpose of the effort to eliminate unnecessary reporting. ( p. 5)

Response EPA acknowledges CIBO's suggested changes to the continuous release reporting requirements to make expanding continuous release reporting a viable approach for addressing NOx release reporting from a variety of sources.

In the July 24, 1990, preamble to its final rule, Reporting Continuous Releases of Hazardous Substances, ( 55 FR 30166, 30174), EPA addressed commenters who requested a clarification about whether EPA expects a facility to perform monitoring beyond that which is currently performed to determine the continuity and quantity of releases. EPA responded, in part, that it does not expect a facility to perform additional monitoring in order to comply with the rule stating that, "[ n] either the identification of SSIs nor the other reporting requirements in today's final rule necessitates monitoring or measuring of releases to acquire empirical data." In addition, the person in charge may use as a basis for reporting continuous releases per occurrence reporting sufficient to establish its continuity and stability.

CIBO suggests that small businesses should not be required to hire a consultant to estimate emissions from their equipment but rather, the reporting requirements only require a description of the size and type of equipment and fuel sufficient for calculation by regulatory agencies.

Current regulations do not require the hiring of consultants to estimate emissions. In addition, EPA believes that it is not appropriate for regulatory agencies to assume the responsibility for calculating the amount of a release based on a description of the size and type of equipment and fuel. It would be inefficient and contrary to the intent of Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 46 CERCLA for a regulatory agency to attempt to make those determinations given all the variables that may apply. Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 47 C. Clarify Continuous Release Reporting Requirements Commenter Number: 0084 Response Number: 7 Commenter Name: Patricia McCullough, Director   Environmental Management, Northeast Utilities System ( NUSCO)

NUSCO requests clarification in the regulatory language that the reporting exemption also applies to continuous releases. Large combustion sources generally tend to operate on a continuous basis. The arguments used in the previous section in support of eliminating the threshold level also apply to continuous releases. Further, emissions data from most large sources are reported to federal and state agencies on a routine basis. Agency databases would not be enhanced by continuous release reporting. ( p. 2)

Response The Agency agrees that the administrative reporting exemption for releases of NO and NO2 would also apply to continuous releases. The notification requirements apply to episodic releases as well as those that meet the requirements of 40 CFR 302.8. That section, 302.8, sets forth the regulatory requirements for CERCLA section 103( f)( 2)   the purpose of which is to reduce release notifications where the releases are " continuous" and " stable in quantity and rate." In general, if a release is " continuous" and " stable in quantity and rate," Federal officials should not have to be notified each time the release occurs to decide whether a response is needed. ( See 55 FR 30166, 30168, July 24, 1990). Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 48 This page is intentionally left blank Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 49 III. OPPOSITION FOR ALTERNATIVE   EXPANDING CONTINUOUS RELEASE REPORTING Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 50 A. Should Not be Used In Lieu of Proposed Exemption Commenter Number: 0089.1 Response Number: 1 Commenter Name: Eric Clark, Synthetic Organic Chemical Manufacturers Association ( SOCMA)

SOCMA Does Not Support EPA's Continuous Release Reporting Alternative. ( p. 2)

One of the alternatives discussed in EPA's proposal is expanding use of the continuous release reporting mechanism. SOCMA has submitted comments in both April and August of 2000, and continues to maintain that continuous release reporting is not a viable option for SOCMA members and other batch processors. Because batch processing involves intermittent processing periods and shifting product lines, the NOx emissions may not be able to be categorized as " continuous" even though the emissions would be low enough to fall below the proposed 1,000 pounds per 24 hours threshold. Because of this, SOCMA requests that EPA pursue the administrative exemption as a more practical mechanism for achieving the stated goal. ( p. 2)

Commenter Number: 0097.1, 0112 Response Number: 2 Commenter Name: John M. McManus, Vice President, Environmental Services, American Electric Power ( AEP)

AEP does not support the expanded use of Continuous Release Reporting in lieu of the proposed administrative exemption. ( p. 2)

Many of the smaller combustion sources that are exempt from Clean Air Act permitting requirements have chosen to submit a " continuous release" report pursuant to 40 CFR § 302.8 for releases that are either continuous or intermittent, but stable in quantity and rate, anticipated, and associated with normal operations. One alternative EPA proposed is to make more efficient use of the continuous release reporting provisions for NOx releases, rather than adopting an administrative exemption for releases below 1,000 pounds in 24 hours. ( p. 2 3)

AEP believes that the definition of " continuous" is broad enough to cover a number of NOx releases from different types of combustion sources   including emergency generators, diesel powered construction and maintenance equipment, and seasonal space heating equipment. Some of these sources may submit reports only when they operate; others may have submitted continuous release reports to cover their emissions during intermittent periods of operation. To the extent such emissions have been reported currently on an " as operated" basis, utilization of the continuous release reporting provision would merely shift the reporting burden, not eliminate it. And while the reporting burden might be somewhat lessened by utilizing the procedures under 40 CFR 302.8, sources would still be required to regularly review their intermittent Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 51 operations to assure that emissions during any 24 hour period do not exceed the high end of the reported range in order to fully comply with these requirements. ( p. 3)

In contrast, administratively exempting all NOx releases associated with combustion sources that are below 1,000 pounds in a 24 hour period would alleviate a significant portion of the burden associated with NOx emissions that have been reported, both for the affected sources and for the receiving agencies. AEP fully supports EPA's proposal, and does not believe that more expansive use of the continuous release reporting option would as effectively address the issues identified by EPA. ( p. 3)

Commenter Number: 0107, 0107.1, 0107.2 Response Number: 3 Commenter Name: Pamela A. Lacey, Senior Managing Counsel, American Gas Association ( AGA)

AGA Opposes the Alternative of Requiring Continuous Release Reporting ( p. 3)

For the reasons AGA gave at pages 3 5 of the attached April 7, 2000 comments, AGA urges EPA to reject the proposed alternative option of requiring continuous release reporting for NOx emissions less than 1,000 pounds per 24 hours. ( p. 3)

From April 7, 2000 comments ( 0107 2):

Over One Million New Reports Would Overwhelm the NRC ( 0107 2, p. 3)

Minor Sources of NOx   Small Engines, Boilers & Turbines ( 0107 2, p. 3)

The primary mission of the National Response Center ( NRC) is to respond to emergency reports of hazardous substance spills that could pose an immediate and significant threat to human health and the environment. This mission could be seriously compromised by the sheer volume of new release reports contemplated by the Interim Guidance. AGA recognizes that many small sources of NOx should qualify for limited reporting because they have " continuous releases" that are " continuous and stable in quantity and rate" within the meaning of 40 C. F. R. § 302.8. However, the Interim Guidance would require possibly over one million small engines, boilers, and furnaces to report their miniscule " releases" of NOx. In the first year, this flood of continuous release reports could seriously overwhelm NRC's resources. In addition, not all small sources have continuous releases   for example irrigation pumps, emergency generators, and space heaters. Those operating intermittently could be forced to file multiple release reports during the year, whenever they operate. ( 0107 2. p. 3)

Nitrogen oxide ( NO) and nitrogen dioxide ( NO2) are listed as CERCLA hazardous substances, each having a reportable quantity of 10 pounds/ 24 hours. 40 C. F. R. § 302.4. Both are products of combusting fossil fuels. Coal and residual oil fired engines and boilers produce significantly more pounds of NOx per million Btu than do Failure to specifically address or respond to any particular commenter or statement made by any commenter should not be construed as an endorsement or acceptance of that commenter's statement. 52 natural gas fired engines, boilers or turbines. In order to determine the approximate size of natural gas fired equipment that could be subject to reporting of releases under the Interim Guidance, an AGA member company constructed the following tables, using emission factors ( EF) from the 5 edition of EPA's AP 42 for NOx. ( 0107 2, p. 3 4)

Unit Uncontrolled AP 42EF lb/ hp hr Horsepower for 10 lbs/ 24 hr Gas Turbine 0.00287 145.2 Engines 2 cycle lean burn 4 cycle lean burn 4 cycle rich burn 0.024 0.026 0.022 17.4 16.0 18.9 Unit lb/ 10 ft Heat Input, MMBtu/ hr Boilers Small Industrial Commercial Residential 140 100 94 3.0 4.2 4.4 Most of these small engines, boilers and residential furnaces are not required to install add on control equipment for NOx emissions. They are legally allowed to operate under their state implementation plan or other Clean Air Act regulations as minor sources and may be only registered with a state agency because of their small size. One can produce a very conservative estimate the number of small engines that would be affected by the Interim Guidance based on an EPA document, " Alternative Control Techniques Document   NOx Emissions from Stationary Reciprocating Internal Combustion Engines", EPA 453/ R 93 032, tables 3 1 to 3 4. This data appears to be for engines operating in the late 1970' s. Undoubtedly, the engines currently in use will have increased in number, but this provides a general sense of how many engines will be subject to the reporting EPA is envisioning. This data presented in an attached table is only for onshore small engines, assumed to be those with an average horsepower of 15 to 400 horsepower in each category. The total number of these engines is 2,026,000. ( 0107 2, p. 4)