KMS does not see the basis for treating releases from start ups, upsets and malfunctions differently from authorized NOx releases. Again, KMS would expect the effects on human health or an ecosystem to be the same for emissions of less than 1000 pounds in a 24 hour period regardless of the cause of the release. ( p. 4)

KMS seeks clarification that reporting would not be required for NOx emissions during the start up, shutdown or malfunction of a combustion unit. Under the New Source Performance Standards ( NSPS) general provisions, emissions during start up, shutdown and malfunction are not considered to be representative, and therefore an exceedance of an emission limit established in an NSPS subpart during such an event does not constitute a violation of the standard [ CER 60.8( c)]. This has created ambiguity as to whether such start up/ shutdown and malfunction emissions qualify as federally permitted releases. Further, for facilities required to maintain start up, shutdown and malfunction ( SSM) plans under federal or SIP approved rules or permits, emissions of NOx during anticipated SSM events and consistent with the requirements of the SSM plans would generally be construed as federally permitted. KMS seeks clarification that emissions during SSM events from sources subject to NSPS standards or subject to a required SSM plan can qualify as federally permitted releases. In the alternative, KMS seeks clarification that such releases would be eligible for the proposed CERCLA reporting exemption. ( p. 4)

Commenter Number: 0091.1 Response Number: 18 Commenter Name: Bruce J. Alexius, EH& S Regulatory Affairs Expertise Center, The Dow Chemical Company ( DOW)

Discussion: Regardless of whether a release is from normal operations, an upset or a malfunction, the net result to the environment from combustion sources is the same. In general, a release from a combustion source will be from the same stack and at the same velocity as the plume from normal operations. For example, the temporary loss of steam or water injection on a gas turbine would result in elevated emission levels. There is no change in the discharge point or in the flow characteristics of the plume. ( In fact, when designing larger equipment with the potential for higher NOx emissions, the stacks heights and volume flow rates are higher thereby leading to better dispersion of the emissions.) The net effect on ambient concentrations, which will be discussed in the next section addressing a 5000 pound exemption level, does not require immediate reporting and response. ( 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. 100 EPA includes two tables in the proposed rule. Table 1 refers to episodic emission events while Table 2 refers to data from continuous release reports. Table 2 indicates that only 16 continuous release reports were made in 2004, which has declined dramatically as grandfathered sources have become permitted. Table 1, however, shows an increase in episodic reports. The bulk of episodic reports are due to upsets and malfunctions. Therefore, to achieve EPA's goal of burden reduction, upsets and malfunctions should be included in the exemption. ( p. 2)

RQs are designed with episodic events, including upsets and malfunctions, in mind. There is no conflict in exempting these types of events from the 10 pound reporting limit as they do not require immediate response. In an EPA memo dated 08/ 08/ 03 from Maureen F. Orr, MS to Charles Weir, six serious incidents involving NOx were studied. In all cases, there were no adverse health or environmental impacts from combustion related NOx releases. Only 20 of 4,028 events involved persons with any signs or symptoms of injury within 24 hours. The six incidents chosen for study were all found to be due to multiple injuries with no shown connection to combustion releases of NOx. Combustion equipment, such as boilers, gas turbines, and flares, are designed with tall stacks to disperse the combustion products so emissions and hot gases get diluted to prevent human exposure. The reportable NOx release would come out of the same tall stack and likewise be diluted. ( p. 3)

Recommendation: Expand the exemption to include upsets and malfunctions from combustion devices as the points and characteristics of release are the same as in normal operating mode. ( p. 3)

Commenter Number: 0097.1, 0112 Response Number: 19 Commenter Name: John M. McManus, Vice President, Environmental Services, American Electric Power ( AEP)

AEP supports extending the exemption to include excess NOx emissions from all combustion sources, including equipment malfunctions or upsets, if the release is from a permitted source that is otherwise required to report excess NOx emissions. ( p. 3)

AEP also supports an exemption for NOx releases up to the 1,000 pound per 24 hour period threshold that are associated with equipment malfunctions or upsets if the facility's emission sources are otherwise required under their federal/ state air permits to report such NOx releases and are reporting such releases pursuant to their air permit for those NOx emission sources. ( See, e. g., 40 CFR Parts 60 and 70). Since EPA states that its goal is to reduce unnecessary reports while still being protective of human health and the environment, this additional exemption would meet that goal. Otherwise, maintaining the CERCLA/ EPCRA release notification reporting for a facility already reporting excess emissions pursuant to their federal and/ or state air permit during times of malfunction or upset conditions will lead to duplicative reporting, contrary to EPA's goal and without additional protection of human health or the environment. ( 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. 101 Many utility boilers and other sources are regulated by New Source Performance Standards ( NSPS) under various subparts of 40 CFR Part 60. For electric utility steam generating units subject to a NOx standard under the NSPS, continuous emission monitors are generally required, along with quarterly excess emissions reports. See, e. g., 40 CFR § 60.51 Da( b)( 2). These reports provide the same general information required by the CERCLA and EPCRA requirements, and are generally available to federal, state, and local agencies and the public. Currently, in the absence of an administrative exemption, facilities must continuously review information acquired by their continuous emission monitors in an attempt to determine whether, during any 24 hour period, emissions exceeded a federally permitted level by 10 pounds or more. This raises complex issues about the averaging periods associated with emissions limitations, and the causes for minor levels of excess emissions ( including minor operational problems, monitor malfunctions, mis calibrations, and downtime). Resolution of these issues frequently requires detailed investigation and can delay reporting for several hours or even days, which in itself can cause further inquiry by the agencies. ( p. 3 4)

In addition to the NSPS requirements, major sources of emissions are regulated under other provisions of the Clean Air Act, some of which were enacted long after Congress defined " federally permitted releases" for purposes of CERCLA. As noted in EPA's proposal, Congress has not revisited this definition since the late 1980' s. In the 1990 Clean Air Act Amendments, Congress added the Title V operating permits program, which has as its centerpiece the collection of all federally enforceable air emission limitations for a facility into a single permit, along with regular emission reporting requirements. This program applies to all sources with a potential to emit more than 100 tons per year of any regulated pollutant, and more than 10 tons per year of any single hazardous air pollutant or 25 tons per year of any combination of hazardous air pollutants. At least quarterly, each Title V source must submit a " deviation" report to the permitting agency, detailing every deviation from federally enforceable emission limitations, and providing notice of corrective actions taken to prevent recurrence. ( p. 4)

In short, these Clean Air Act reporting requirements substantially duplicate the information otherwise required under EPCRA and CERCLA, so extending the administrative exemption to releases associated with " malfunctions' or " upsets" of process or control equipment that are below the 1,000 pound threshold in any 24 hour period would not diminish the quantity or quality of information available to the agencies or the public, but would eliminate a difficult, duplicative, and time consuming reporting burden for affected facilities and the responsible agencies. ( p. 4)

Therefore, in addition to the exemptions proposed by EPA, AEP respectfully suggests that the following language be added to both 40 CFR § 302.6 ( e), and 40 CFR § 355.40( a)( 2), so as to extend the administrative exemption to excess NOx emissions reported pursuant to other Clean Air Act requirements: ( 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. 102 Excess emissions of nitrogen oxides to the air which are the result of combustion, and which are the result of a malfunction or upset condition, provided that there is an applicable federally enforceable limitation on nitrogen oxide emissions in a permit issued pursuant to the Clean Air Act, the permit requires the submission of excess emission reports for such nitrogen oxide emissions on a regular or periodic basis, and the amount of excess emissions does not exceed 1,000 pounds per 24 hours. ( p. 4)

Commenter Number: 0109 Response Number: 20 Commenter Name: Renu Chhabra, Waste & EPCRA Systems Manager, INVISTA IN VISTA does not see the basis for treating releases from startups, shutdowns, and malfunctions differently from authorized NOx releases. Again, we would expect the effects on human health or an eco system to be the same for emissions of less than 1000 pounds in a 24 hour period regardless of the cause of the release. ( p. 2)

IN VISTA seeks clarification that reporting would not be required for NOx emissions during the start up, shutdown or malfunction of a combustion unit. Under the New Source Performance Standards ( NSPS) general provisions, emissions during startup shutdown and malfunction are not considered to be representative, and therefore an exceedance of an emission limit established in an NSPS subpart during such an event does not constitute a violation of the standard. See 40 CFR 60.8( c). This has created ambiguity as to whether such start up/ shutdown and malfunction emissions qualify as federally permitted releases. Further, for facilities required to maintain start up, shutdown and malfunction ( SSM) plans under federal or SIP approved rules or permits, emissions of NOx during anticipated SSM events and consistent with the requirements of the SSM plans would generally be construed as federally permitted. INVISTA seeks clarification that emissions during SSM events from sources subject to NSPS standards or subject to a required SSM plan can qualify as federally permitted releases. In the alternative, SSM seeks clarification that such releases would be eligible for the proposed CERCLA reporting exemption. ( p. 2 3)

Response EPA acknowledges the commenters' concerns and request for clarification on whether the administrative reporting exemption includes start up, shut down and malfunction emissions. EPA agrees that to the extent that start up and shut down emissions are the result of combustion activities, those emissions would also be included in the administrative 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. 103 C. Clarify that Flares are Control Devices  Not Considered Accidents and Malfunctions Commenter Number: 0081.1 Response Number: 21 Commenter Name: Nancy J Dotson, Environmental Associate, Corporate Health, Safety, Environment and Security Division, Eastman Chemical Company ( Eastman)

° Clarify that releases from control devices such as flares are not considered accidents and malfunctions. Such releases commonly occur but not on the basis required for continuous release reporting. NOx is emitted from a flare subsequent to the combustion of hydrocarbons and heated combustion air and such emissions are normal and intended functions of the flare. NOx is not emitted from a flare because of a malfunction of the flare nor is it an accidental release from the flare. Rather, the flare is operating as intended. ( p. 2)

° Industry can use the continuous release exemption for certain routine and predictable releases, and can also use the federally permitted release exemption for others. But there are " grandfathered" combustion units that do not have federally enforceable permit levels, and there are flares that release greater than 10 pounds of NOx per episode that do not qualify for federally permitted or continuous release exemptions. By promulgating an exemption for all combustion related NOx releases including accidents and malfunctions up to 5,000 pounds, none of which apparently elicit emergency response actions, EPA will minimize the paperwork burden for industry and for the Federal response system without losing any information that might incur a government response. ( p. 3)

Commenter Number: 0082.1 Response Number: 22 Commenter Name: T. Ted Cromwell, Managing Director   Environmental, American Chemistry Council ( ACC)

Flares Should be Considered Safety Devices and Receive the Administrative Exemption ( p. 2)

Flares are safety devices to control emissions from an episodic event. When properly operated, flares control emissions by safely containing releases from a stack and help mitigate a potential hazard to the surrounding area. In instances when a flare is used, the NOx portion of the emission is of little or no concern to the surrounding area and does not necessitate immediate notification to federal, state, and local agencies. ACC recommends that EPA include flares as control devices and include the NOx release portion from these devices in the Administrative Exemption. If EPA does not extend the combustion NOx exemption to cover accidents/ malfunctions, at a minimum EPA should clarify the RQ exemption does not cover flaring ( that flaring is not considered an accident/ malfunction). ( 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. 104 Commenter Number: 0086.1 Response Number: 23 Commenter Name: Norbert Dee, Ph. D., Director, Environment & Safety, National Petrochemical & Refiners Association ( NPFA)

Flares are safety devices and should be included in the Administrative Exemption ( p. 3)

The purpose of a flare is to act as a safety device to control emissions from an episodic event. A properly operating flare controls emissions by safely dispersing releases from the stack and therefore mitigates potential impacts to the surrounding area. The NOx generated by the flare is of little or no concern to the surrounding area and does not require the immediate notification of regulatory agencies. ( p. 3)

If an accidental release of hydrocarbon, due to an upset or malfunction at a process unit, is flared, the release consists of constituent( s) other than NOx. The resulting NOx release is derived from " treating" or controlling the accidental release in the flare. So NOx is not accidentally released from the flare; it is the deliberate result of treating an accidental release from some upstream source in a control device that is operating in normal design mode. ( p. 3)

NPRA strongly recommends that EPA include the NOx emissions attributed to flares as control devices in the Administrative Exemption. ( p. 3)

Commenter Number: 0091.1 Response Number: 24 Commenter Name: Bruce J. Alexius, EH& S Regulatory Affairs Expertise Center, The Dow Chemical Company ( DOW)

The administrative exemption should be expanded to include properly operating safety devices, such as flares. ( p. 4)

Discussion: The discussions above can be further expanded into the operation of safety devices, such as flares, to control emissions from episodic events. Flares are designed to safely destroy releases and prevent them from becoming a hazard to the surrounding population or environment. Properly operated, these safety devices contain and safely mitigate a release. In these instances, NOx is of little or no concern from a public health and safety standpoint and should not confuse possible response actions with its inclusion in required reporting. Reporting of other compounds, such as hazardous air pollutants, still occurs, taking into account destruction efficiency and remaining emissions relative to RQ. ( p. 4)

For example, a flaring event may result in a 10 pound benzene release after destruction has taken place. In this scenario, the incident would be reported as an exceedance of the 10 pound benzene RQ. Reporting NOx emissions from this controlled scenario only confuses the issue. Benzene is a carcinogen and a hazardous air pollutant for which reporting has merit. The NOx poses no threat requiring immediate reporting or 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. 105 response nor does it need evaluation in this scenario. The benzene can be evaluated due to its hazardous nature. This illustrates another interesting point. Benzene has a status that demands tighter scrutiny. Combustion NOx does not have the same concerns and should not carry the same RQ. ( p. 4)

During a flare event the 10 pound ( lb) NOx RQ can be eclipsed in a variety of ways. For example, just 4,000 lbs. of additional ethylene vented to a flare will yield NOx emissions of 11 pounds. This calculation uses a NOx factor of 0.138 lb/ MMBTU obtained from Texas Commission on Environmental Quality ( TCEQ) technical guidance for flares and vapor oxidizers. In addition, the definition of " Facility" in 40 CFR 355 means all buildings, equipment, structure, and other stationary items that are located on a single site or on contiguous or adjacent sites and which are owned or operated by the same person etc. Therefore, one can easily conclude that multiple small releases of NOx from sources, such as flares, across a given site must be aggregated over a 24 hour period and compared against the 10 lb. RQ for NOx. This leads to a complicated internal accounting system where releases even in the 1 to 2 lb. category must be considered and aggregated over a 24 hour period. ( p. 4)

Again, due to the design characteristics and proper operation of a flare, there will be negligible health impacts from the amount of NOx released. Typically, flares have a high release point so that ambient concentrations from the release of NOx are well dispersed. There is no need to burden response personnel with information that does not pose an immediate threat to health or the environment. ( p. 5)

Recommendation: Specifically eliminate flares and other safety devices from NOx reporting requirements if the flare is operating properly. ( p. 5)

Commenter Number: 0113.1 Response Number: 25 Commenter Name: Howard J. Feldman, Director, Regulatory Analysis and Scientific Affairs, American Petroleum Institute ( API)

The Exemption Requires Clarity Regarding the Operation of Control Devices such as Flares ( p. 22)

If EPA does not extend the combustion NOx exemption to cover accidents and malfunctions, at a minimum, the Agency should clarify that flares ( and other control devices) are control devices and should be covered by the proposed administrative reporting exemption. Gas combusted in flares is often the result of or related to an accident or malfunction, however the flare is intentionally operated to control the potential health, safety and environmental impacts of the gas. NOx is generated by the combustion of the gas in the flare, not the event that sent the gas to the control device. Since flaring burns valuable natural gas, it is not done unless necessary to ensure safe and environmentally protective operations. ( p. 22 23) 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. 106 The compounds directly resulting from the accident or malfunction are the accident and malfunction emissions  not the compounds generated by the downstream control device. To illustrate, NOx emitted from flaring is subsequent to the combustion of hydrocarbons and heated combustion air. The NOx is being emitted as a natural consequence of normal and intended operation of the flare and is not due to the malfunction of the flare. If the flare were to fail, there would be no NOx emissions from the flare. This is consistent with the definitions of malfunction that EPA refers to in the notice of proposed rulemaking, which state that a malfunction occurs when there is a failure of air pollution control equipment. ( p. 23)

API's analysis of NOx releases reported to the NRC between 1994 and 2004 indicates that about 12,300 of the 15,800 records searched ( almost 80 percent) included flare or flaring in the incident description. This is probably a low estimate because incident descriptions might omit the terms, even if flaring was involved. If flares and other control devices were not covered by the proposed administrative reporting exemption, the exemption would do very little to reduce the number of NOx reports and the associated reporting burden; they would continue to number in the many thousands per year. Simply put, if the Agency were to exclude accidents and malfunctions from the exemption and not articulate in the final rule that emissions from control devices including flares are not considered the result of an accident or malfunction of equipment, then when the current enforcement discretion is rescinded ( once the proposal is finalized), the reporting burden will become considerably higher than at present. Thus, it is essential that the exemption clearly and unambiguously covers flares and other control devices. ( p. 23 24)

As discussed in section III B above, the rule as currently proposed creates potential confusion because of the exclusion of accidents and malfunctions from the exemption. Although operation of flares and other control devices are not accidents and malfunctions, flaring incidents are often related to an accident or malfunction, i. e., the flare is operated intentionally in response to an accident, malfunction, or other operational irregularity. This highlights the definitional problems that would be created by attempting to carve out releases resulting from accidents and malfunctions from the administrative reporting exemption. If accidents and malfunctions do not have the exemption, it will be necessary for EPA to clearly define accident and malfunction and the limits of the definitions. Crafting and clearly implementing these definitions would not be easy tasks, particularly because there would be issues of consistency with other programs ( e. g., the air program, in which flaring is often granted an exemption from the permitting requirements if it is being operated as a result of a malfunction). ( p. 24)

In order to provide consistency with other programs that may have their own exemptions relating to the use of control devices such as flares, EPA should provide clarifying language in the rule that makes this clear, such as: " As long as a safety or control device ( e. g., a flare) is operated as designed, releases of combustion NOx from the safety or control device qualify for the exemption." However, as stated above, in Section III of these comments, including accidents and malfunctions within 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. 107 exemption is the most straightforward and practical approach to addressing this issue, and we urge EPA to take this approach. ( p. 24)

Response EPA acknowledges the commenters' concerns and request to clarify that releases from control devices such as flares are not considered accidents and malfunctions. EPA agrees that this administrative exemption for NOx releases to air that are a result of combustion activities should not include the qualifier, " unless such release is the result of an accident or malfunction." EPA also believes that exclusion of the qualifier should eliminate the need for EPA to specifically identify " flaring" as a control device under CERCLA and EPCRA. 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. 108 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. 109 VI. REQUESTS FOR BROADER EXEMPTIONS TO INCLUDE COMBUSTION AND NON COMBUSTION PROCESSES 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. 110 Commenter Number: 0094.1 Response Number: 1 Commenter Name: William C. Herz, Director Scientific Programs, The Fertilizer Institute ( TFI)

NOx Emitted by Nitric Acid Plants Should Qualify for the Exemption Although Produced by Both Combustion and Non Combustion Processes ( p. 2)

EPA expressly limits the proposed NOx Reporting Exemption to releases that " are the result of combustion activities." 70 Fed. Reg. at 57,815. Many TFI members operate nitric acid plants in the production of fertilizer, which produce NOx. Although the NOx produced in such plants is originally formed as a product of combustion, some NOx emissions are the result of non combustion processes. It is impossible to identify NOx emissions from nitric acid plants that result from combustion as opposed to noncombustion processes. TFI believes, however, that all NOx emissions from nitric acid plants should qualify for the proposed exemption as releases that are the result of combustion activities because all NOx at such plants originates as a product of combustion. ( p. 2)

The process of NOx emissions from nitric acid plants begins with mixing ammonia with air which is combusted across a platinum/ rhodium catalyst creating a hot NOx gas, primarily NO. The hot NOx gas is cooled through a series of heat exchangers and most of the NO reacts with the excess oxygen to form NO2. The NOx gas is then introduced into an absorber, where it interacts with a weak nitric acid solution and fresh water, resulting in a series of over 38 chemical reactions. Generally, NO2 is absorbed into the aqueous phase and nitric acid is formed. As a result, however, NO and a much smaller fraction of the NO2 are released back into the gas phase. Since NO is produced in each reaction that makes nitric acid, extra air is introduced into the absorber to convert the NO back to NO2. The NO2 is reabsorbed and the cycle repeats itself. Since NO does not appreciably absorb into the aqueous phase, some NO ultimately exits the top of the column. A smaller fraction of NO2 also exits the column due to the kinetics and equilibrium of the reactions. The gas exiting the absorption column is called tail gas. At this point, most of the gas is again NO. The tail gas is heated and directed through an air pollution control device to control NOx emissions to the atmosphere. The hot, pressurized tail gas is then sent through an expander to generate power for the air compressor, and finally exits out the stack. ( p. 2)

In summary, the NOx released from nitric acid plants is originally formed as a product of NH3 combustion. However, nitric acid plants also produce NOx from N2O4 in an aqueous reaction. It is impossible to determine which NOx emissions result from combustion as opposed to non combustion processes. Nonetheless, all NOx emissions from nitric acid plants should qualify for EPA's proposed NOx reporting exemption as releases from combustion activities because all NOx released from nitric acid plants originates from combustion activities. ( 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. 111 EPA Should Expand the Exemption to Include NOx Emissions From Non Combustion Processes ( p. 3)

Even if EPA believes that all NOx emissions from nitric acid plants do not qualify for the exemption as products of combustion activities, the NOx reporting exemption should be expanded to include NOx emissions from non combustion processes. Arbitrarily limiting the exemption to NOx emissions from combustion processes undermines the original purpose of the exemption, which is to eliminate unnecessary reporting of small amounts of NOx that most likely will not result in a federal response. There is no logical distinction between NOx emissions resulting from combustion processes as opposed to non combustion processes on this point. NOx emissions from non combustion activities are just as unlikely as those produced by combustion activities to result in a federal response. Limiting the application of the exemption to combustion processes merely prevents EPA from fulfilling the original purpose of the exemption. ( p. 3)

EPA recognized as early as 2002 that emissions of NOx equal to or greater than the ten pound reportable quantity " rarely require a government response." 67 Fed. Reg. 18,900. As a result, EPA stated that it " supports the proposal of an administrative reporting exemption for certain NO and NO2 air releases which could result in these releases not being required to be reported under CERCLA section 103 and EPCRA section 304." 67 Fed. Reg. 18,900. In recognizing the need for an administrative exemption, EPA did not draw a distinction between combustion processes and any other process that may generate NOx. Rather, EPA noted that low level NOx emissions, regardless of their origin, " rarely require a government response" and that an administrative exemption was needed to eliminate unnecessary reporting. Indeed, the need for a government response is not determined by the process that generated the NOx, but by the size of the NOx release, atmospheric conditions, and the proximity of the release to the public and sensitive ecosystems. Thus, limiting the proposed exemption to NOx released by combustion activities is unnecessarily restrictive. ( p. 3)

EPA supports the narrow application of the exemption by stressing that the " RQ is easily met by those facilities that release NOx to the air ... especially ... when the facility processes include combustion activities." 70 Fed. Reg. 57,815. The RQ is just as easily met when the facility processes include non combustion activities. There is no logical distinction between the releases, except the process by which they originate. They are equally benign and should be treated equally under the Exemption. In addition, the EPA risk analysis that supports the exemption should equally apply to releases of a similar magnitude that cannot be attributed without doubt to combustion related activities. ( p. 3)

EPA's observation that none of the NOx release notifications previously submitted from any source resulted in a response action being taken, " unless it was a result of an accident or malfunction," further supports this position. 70 Fed. Reg. 57,818. 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. 112 This fact shows that NOx from non combustion sources are equally unlikely to result in a Federal response. In fact, EPA makes clear that it chose an exemption level of 1,000 pounds per 24 hour period because " this level is below the level at which permits are required under the CAA for NOx, such that it appears ` infeasible' that any response would be undertaken." 70 Fed. Reg. 57,818. This statement clearly shows that EPA is primarily concerned with the amount rather than the source of the release. Expanding the exemption to include NOx released from non combustion sources more fully resolves EPA's concerns regarding unnecessary reporting. Circumscribing the scope of the exemption to releases from combustion activities, therefore, is arbitrary and serves no clear purpose. In fact, EPA explains that the goal of the proposed NOx Reporting exemption is to achieve the " same outcome" as raising the RQ for NOx without actually raising the RQ. 70 Fed. Reg. 57,818. EPA failed in this respect, however, to the extent the exemption is inapplicable to NOx generated by non combustion processes. ( p. 3 4)

Commenter Number: 0109 Response Number: 2 Commenter Name: Renu Chhabra, Waste & EPCRA Systems Manager, INVISTA INVISTA requests that this exemption be broadened to releases of NOx from non combustion sources. Potential for NOx RQ releases from non combustion sources exists from INVISTA's nitric acid plant process equipment, storage tanks, and NOx abatement control device, and from Adipic Acid plant manufacturing areas where nitric acid is used. NO and NO2 are present in nitric acid, and a release of nitric acid results in NOx emissions also. ( p. 2)

IN VISTA agrees that the need and likelihood of a federal response to a release of NOx below 1000 pounds in 24 hours is negligible and therefore, serves no useful purpose. However, we do not see how the need or likelihood of a response would be different for a NOx release of less than 1000 pounds in 24 hours from a combustion source versus another source. We would expect the effects on human health or an eco system to be the same regardless of the source of the release. ( p. 2)

By specifying that only emissions from combustion sources that are not due to accidents or malfunctions qualify for the administrative exemption, the proposal has the unintended consequence of making reporting needlessly complicated. The time needed to evaluate reporting would be increased by raising questions about the ultimate source of the release, whether the unit was experiencing an accident, or malfunction, whether the release was federally permitted and then whether it was episodic or continuous. To further the intent of EPCRA and CERCLA to provide emergency planners and responders with timely information in order to protect the public and the environment, release reporting should not be unduly complicated. Delays associated with defining small releases would be eliminated if all releases of NOx, irrespective of the source, were treated equally. ( 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. 113 INVISTA understands that EPA is interested in reducing the reporting burden of minor NOx emissions. We request clarification of EPA's intentions to limit the exemption to emission from combustion sources. In particular, it is not clear if EPA is proposing to exempt NOx emissions from control devices occurring as a result of a malfunction in an upstream process, and exclude from the exemption malfunctions occurring at a control device. Where a facility experiences unanticipated problems in the process unit, such as a nitric acid plant or in the Adipic Acid manufacturing process, the process unit may route emissions to a control device that is functioning properly. These emissions do not come from an upset or malfunction of the control device and should be covered by the exemption from notification if less than 1000 pounds over 24 hours. Again, the effects on human health or an eco system would be expected to be the same regardless of the source of the release. INVISTA requests that EPA clarify that emissions from properly functioning control devices are exempt under the proposed rule, including when there has been an upstream upset or malfunction in the process unit. ( p. 2)

Commenter Number: 0095.1 Response Number: 3 Commenter Name: James D. Schultz, Vice President, Environment & Energy, American Iron and Steel Institute ( AISI)

Finally, we encourage EPA to consider exempting all NOx emissions from EPCRA and CERCLA reporting. Nitrogen oxides are criteria air pollutants that do not have short term acute or hazardous effects that warrant emergency response or notification within the intent of EPCRA or CERCLA. NOx emission sources are regulated under numerous provisions of the Clean Air Act. As such, most facilities with the potential to emit NOx have Title V operating permits with NOx limits and are subject to start up, shutdown and malfunction provisions, excess emission reporting, and other monitoring, testing, and reporting obligations. Additional reporting of NOx emissions under EPCRA and CERCLA is redundant and represents an unnecessary burden. For this reason, we believe that NOx emissions should be exempted altogether from reporting requirements under EPCRA or CERCLA. If there is demonstrable evidence of environmental harm or a risk based justification for not exempting NOx releases that are not combustion related, EPA should present information to support that conclusion, but in any event the Agency should at least extend the exemption to all combustion related releases. ( p. 2 3)

Response EPA acknowledges TFI and INVISTA's requests for broader exemptions to include all NOx emissions from nitric acid plants regardless of whether they were a direct result of combustion activities and from Adipic Acid plant manufacturing areas where nitric acid is used.

EPA agrees that all NOx emissions from nitric acid plants should qualify for the NOx administrative reporting exemption because all NOx released from nitric acid plants 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. 114 originates from combustion activities. In addition, similar to differentiating between accidental and malfunction releases of NOx during combustion, determining where in the production process ( combustion or non combustion phase) of nitric acid that NOx is released would present an unnecessary burden and may result in protective, overreporting

Similarly, where nitric acid is used in the Adipic Acid manufacturing process, there may be releases of NOx from control devices in an upstream process. To the extent that those control devices are functioning properly and operate as combustion devices, the resulting NO and NO2 emissions would be covered under this administrative reporting exemption.

EPA acknowledges AISI's request that the Agency extend the exemption to all combustion related releases. EPA agrees that the Administrative Reporting Exemption should be extended to include all combustion related releases of NOx ( NO and NO2). 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. 115 VII. INTERPRETATION OF CERCLA PROVISIONS 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. 116 A. Legal Authority to Include NO and NO2 Resulting from Chemical Reaction Commenter Number: 0085 Response Number: 1 Commenter Name: John S. Hayden, PD, REM, Vice President, Environmental Services, National Stone, Sand & Gravel Association ( NSSGA)

COMMENT: Concerning Proposed 40 CFR Part 302, Section 302.6, the CERCLA and EPCRA Requirements for NO and NO2 are appropriate only for the release of these compounds during shipment and storage and entirely inappropriate when applied to NOx air emissions from chemical reactions and/ or combustion processes. ( p. 2)

NSSGA does not oppose the exemptions for nitric oxide ( NO) and nitrogen dioxide ( NO2) proposed in 302 .6( e)( 1) 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. ( p. 2)

The fundamental purpose of the CERCLA and EPCRA response programs was clearly stated in the preamble to the December 21, 1999 Federal Register Notice concerning the CERCLA Section 101( 10)( H) Federally Permitted Release Definition.

" The immediate and continuous release notifications provide important information for numerous activities. They help government agencies and regulated industries to:

1. Respond to releases; 2. Assess future risks and cumulative effects; 3. Identify chronic problems; 4. Develop pollution prevention and pollution reduction plans; and 5. Educate local communities and the public." December 21, 1999 Federal Register Notice ( p. 2)

The application of CERLA and EPCRA requirements to the release of NO and NO2 as high concentration bulk chemicals during shipment and storage is reasonable. The inclusion of NOx air emissions formed in chemical reactions and/ or combustion processes in the CERCLA and EPCRA programs is not technically justifiable or consistent with EPA rulemaking. ( p. 2 3)

NSSGA has determined that the specific basis used by EPA in 1985 to promulgate Reportable Quantity ( RQ) values of 10 pounds per day for nitric oxide ( NO) 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. 117 and nitrogen dioxide ( NO2) was based strictly on the oxidizing ( reactive ignitable) characteristics of compressed and/ or liquefied forms of NO and NO2 released during shipment or storage" This was clearly indicated in the EPA Technical Support Documents supporting the proposed and promulgated RQ values included in EPA Docket 102RQ. These documents also demonstrated that in listing these compounds and selecting the specific RQs, EPA had previously concluded that NO and NO2 have the following characteristics during releases. ( p. 3)

  They enter the environment during releases as spills of high concentration compressed gases or compressed liquids.   They have a localized impact at the specific site of the release.   They are ignitable and reactive compounds that accelerate the combustion of materials in the immediate vicinity of the release. ( p. 3)

The proposed and promulgated RQ requirements and the supporting Technical Support Documents prepared under EPA sponsorship are entirely silent regarding air emissions of NOx. This is appropriate because it was clearly the intent of these regulations to regulate NOx air emissions. ( p. 3)

If applied to NOx air emissions, the rationale in selecting NO and NO2 for inclusion in Table 302.4 and in setting the RQ levels for these compounds is technically inappropriate. The three attributes listed above do not, in any way, apply to NO and NO2 released as NOx air emissions from combustion processes or other types of NOx air emission sources. Specifically, NOx air emissions have the following characteristics that are quite different from those listed above. ( p. 3)

  NOx air emissions consist primarily of a mixture of NO and NO2.   The NO and NO2 in NOx air emissions can be converted from one form to the other due to in stack, in plume, or atmospheric reactions.   All NOx compounds react rapidly in the atmosphere to form other chemical compounds.   NOx air emissions are present at low concentrations ( i. e. less than 0.1 volume percent) and do not accelerate the oxidation of the solids or liquids near the point of release.   NOx air emissions have a negligible impact near the site of release and, in fact, are regulated under the Clean Air Act primarily because they impact the formation of secondary pollutants such as ozone that forms over periods of hoursto days as air masses move hundreds to thousands of miles. ( p. 3)

CERCLA superfund programs and EPCRA right to know requirements are not intended to address the emissions of NOx air emissions that result from chemical reactions and/ or combustion processes. There is no logical reason to require the reporting of the " releases of NOx when it is both unnecessary and impossible to respond to these " releases." Furthermore, EPA's regulatory impact analysis and economic impact analysis 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. 118 are relevant only to the spills of NO and NO2 shipped or stored as compressed gas and/ or liquids. ( p. 3)

If EPA decides to require CERCLA EPCRA reporting of NOx air emissions, EPA will expand these programs well beyond the intent of Congress and cause the reporting of a minimum of 250,000 to 500,000 " releases." These reporting requirements will suddenly apply to a large population of farmers operating irrigation pumps, state and local agencies operating small boilers, operators of small commercial buildings operating small boilers or incinerators, operators of small industrial facilities with small generators and/ or boilers, construction sites blasting for road building and building foundations, mine sites, as well as numerous other sources. The quantity of NOx addressed by the improperly applied CERCLA and EPCRA requirements will include less than 1% of the total NOx emissions. It is unclear how the National Response Center ( NRC) will handle the reporting load. It is equally unclear how local public health authorities will use the information provided by this avalanche of reports. There is little sense in reporting a " release" for which no public health agency or authority needs to respond or could respond. ( p. 4)

It is unclear how the National Response Center ( NRC) will handle the reporting load. It is equally unclear how local public health authorities will use the information provided by this avalanche of reports. There is little sense in reporting a " release" for which no public health agency or authority needs to respond or could respond. ( p. 4)

The solution to this potential problem is simple and straightforward. EPA has previously listed NO and NO2 as hazardous compounds in Table 302.4 and has promulgated RQs for these compounds. EPA should simply provide a clarification note in this table that these listings for NO and NO2 apply to the release of these compounds during shipment and/ or storage of compressed gas or compressed liquefied chemicals. This clarification note should state that the reporting requirements do not apply to NOx air emissions. A clarification note stating the inapplicability of reporting requirements to emissions of NO and NO2 would function in a similar manner to the proposed exemptions; however, the clarification is more consistent with the legal authority underlying the CERCLA and EPCRA programs. ( p. 4)

RECOMMENDATION: EPA should regulate NO and NO2 under the CERCLA and EPCRA programs only with regard to their possible release as high concentration compressed gases or compressed liquids during shipment or storage. EPA should clarify the CERCLA and EPCRA requirements by stating that these reporting requirements do not apply to NOx air emissions resulting from chemical reactions and/ or combustion processes. ( p. 4)

The Original Listing of NO and NO2 and the Associated RQ Levels are Appropriate Only for the Release of High Concentration Chemicals During Shipment or Storage. ( p. 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. 119 NSSGA contends that the EPA's 1983 proposed regulation, 1985 promulgated regulation, and the associated technical support documents are clear that the listing of NO and NO2 applied only to releases of high concentration chemicals, not the air emission of NO and NO2 present as NOx from air sources. EPA has not completed adequate rulemaking to expand the NO and NO2 related requirements from the CERCLA and EPCRA programs to include NOx air emissions resulting from chemical reactions and/ or combustion processes. ( p. 5)

The following sections of the NSSGA Technical Comments describes the significant differences between these two types of emissions. ( p. 5)

1) Origins of the Table 302.4 NO and NO2 Designation and of the Associated RQ Levels ( p. 5)

In 1983, EPA proposed a set of hazardous chemicals selected from a list of candidate compounds. NO and NO2 were included in this list, and the proposed RQ values were 10 pounds per day. EPA documents indicated that they relied on the following six primary criteria and three secondary criteria in determining the RQ levels for NO, NO and the numerous other compounds reviewed. ( p. 5)

Primary Criteria ° Aquatic toxicity ° Acute Mammilian toxicty ° Chronic toxicity ° Ignitability ° Reactivity ° Potential carcinogenicity Secondary Criteria ° Photolysis ° Hydrolysis ° Biodegradation It is apparent from the 1982 Technical Support Document that EPA selected RQ values for NO and NO2 due to " Ignitability and Reactivity". The 1985 Technical Support Document written in support of the 1985 promulgated requirements also specified " Ignitability and Reactivity" as the basis for the 10 pound per day RQs for both compounds. In fact, the 1985 Technical Support Document included the following statement regarding nitrogen dioxide. ( p. 5)

" The final RQ level of Category A ( 10 pounds) is based on the fact that this hazardous substance is a strong oxidizer and can readily cause fires." ( p. 5)

As defined in the Technical Support Document a strong oxidizer is a " compound that cause fuel materials to ignite, and support combustion once they are ignited ( page 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. 120 9)." This same document provided the following statement as further background concerning the origin of this rating category. ( p. 5)

" The starting point for the rating scales for RQ selection based on the parameters of ignitability and reactivity have their origin in work done by the U. S. National Academy of Sciences for the U. S. Coast Guard in 1974 ( USCG D 113 74, System for Evaluation of the Hazards of Bulk Water Transportation of Industrial Chemicals; a Report to the Department of Transportation, U. S. Coast Guard.)" ( p. 5)

NSSGA does not challenge this RQ level as applied to bulk quantities of NO and NO2 released as high concentration compressed gases or compressed liquids even though EPA's documentation of the oxidizing capability of these compounds is limited and is not entirely consistent with the main hazard classification for these compounds under the DOT regulations of 49 CFR Parts 172 and 173. ( p. 6)

In the case of gaseous releases of NO and NO2 the oxidizer category does NOT make technical sense. NSSGA is not aware of any literature whatsoever that indicates that the emission of NO and NO2 as NOx in the concentration range of 0.01 to more than 0.2 volume percent ( 100 to 2000 ppm ( v/ v)) will accelerate the combustion of solid and/ or liquid materials. The " oxidizer" property applies only when the material is spilled as a compressed gas or liquefied chemical and enters the environment at concentrations more than 100 times the concentrations present in NOx air emissions. ( p. 6)

The EPA regulatory impact analyses performed in 1985 are sufficient only if applied to the release of bulk quantities of NO and NO2 during shipment or storage. ( p. 6)

EPA has included regulatory impact analyses and economic analyses pertaining to reporting of hazardous chemicals included in Table 302.4. It is clear from the documents included in Docket 102RQ that EPA based these analyses on the assumption that the number of reports filed per year would total less than 60,000. It is also clear that EPA believed that the total number of releases that would be reported would be related to the quantities of bulk chemicals produced. ( p. 6)

These regulatory impact analyses and economic impact analyses did not take into account the large number of air sources such as ( 1) stationary small boilers, ( 2) boilers on vessels, ( 3) stationary IC engines, ( 4) diesel engines, ( 5) irrigation pumps, ( 6) agricultural controlled burning and ( 7) blasting at construction or mining sites. EPA documents prepared during the 1980 to 1985 time frame indicate that there are a minimum of 250,000 and probably more than 500,000 of these sources that would have NOx air emissions above the RQ levels. But remaining silent on this large population of potentially affected sources in these documents, EPA has clearly demonstrated that the NOx air emissions were not being addressed as a designed hazardous compound. ( 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. 121 2. Regulation of Releases of Low Concentrations of NO and NO2 as NOx Emissions to the Atmosphere Are Not Appropriate Under CERCLA and EPCRA ( p. 6)

NSSGA contends that there are compelling technical reasons why NOx emissions WERE NOT and SHOULD NOT be regulated under CERCLA and EPCRA. ( p. 6) NO and NO2 are Emitted as Co pollutants From Combustion Processes and Other Traditional Air Emission Sources ( p. 6)

NO and NO2 form in a variety of chemical reactions and combustion processes due to the combined effect of thermal and fuel NOx formation mechanisms. Air emission measurements have established that the emissions at the stack generally consist of approximately 95% NO and 5% NO2 However, there can be variability in the relative quantities of each compound in the NOx emissions from different types of sources and from specific facilities. This variability in relative quantities of NO and NO2 is due, in part, to on going reactions that continue to convert NO to NO2 as the effluent gas stream exits the stack and disperses into the atmosphere. NOx emissions cannot be accurately subdivided into the portions that are NO and NO2 upon release to the atmosphere. ( p. 6)

Continuous emission monitors used to measure NOx emissions do not, in the majority of cases, speciate emissions. Considering that approximately 95% of the NOx is often in the NO form, it would be reasonable to presume that a CEM measurement that indicated a release of more than 10 pounds of NOx would generally indicate that there has been a reportable release of NO. However, NO2 is present as a minor ( and highly variable) constituent of NOx, and operators would have significant difficulty in determining the level of NO2 release that is associated with a release of more than 10 pounds per day of NOx. ( p. 6 7)

Rapid Atmospheric Conversion of NO to NO2 Occurs in the Atmosphere. ( p. 7)

There is clear evidence that air emissions of NO to the atmosphere rapidly convert to NO2 and other reaction products. This is acknowledged in EPA's recent summary document concerning NOx behavior and environmental impact. ( p. 7)

" Within a time of tens to hundreds of seconds, a substantial portion of NO has reacted with atmospheric 03 to produce NO2." ( p. 7)

This fact has been repeatedly demonstrated in studies of NO concentration profiles during morning rush hours in urban areas and in numerous smog chamber ( laboratory scale) studies of urban atmospheric reactions. These reactions are caused by a complex set of photochemically initiated free radical reactions that also involve organic compounds and carbon monoxide. ( p. 7) 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. 122 Even in the absence of light, NO reacts rapidly as part of the following third order reaction. This reaction can rapidly convert NO to NO2 in the initial portions of plumes from air emission sources. ( p. 7)

2N0 + 02 < > 2N02 EPA has long ago taken the position that due to atmospheric conversion, all NO emissions should be treated as NO2 for the purposes of calculating NOx mass emissions. It is extremely difficult for an operator of a combustion sources to determine if a release should be classified as NO, the dominant form at the stack discharge point, or as NO2 the dominant form in air masses dispersed several miles from the stack. ( p. 7)

Reactions of NO2 Occur During Multi Day Movement of Air Masses Over Large Regional Areas. ( p. 7)

NO2 and its reaction products continue to react during the long range transport of air masses over long distances. As a result of these conversions, the ambient levels of NO and NO2 remain at levels that are well below the NO2 NAAQS. In fact, these reactions are the reason that EPA has devoted considerable resources to the regulation of NOx emissions to attain the ozone standards. Furthermore, NOx control is being actively considered for the control of fine particulate ( PM2.5) and regional haze. ( p. 7)

If EPA were to take the technical position that NOx air emissions do have a local impact and are, therefore, subject to local agency response, this position would substantially undercut the technical basis EPA has claimed with regard to the control of NOx to achieve the ozone NAAQS, PM NAAQS, and the regional haze requirements. ( p. 7)

NO is Insoluble. ( p. 7)

Solubility data for NO presented in various chemical properties texts clearly indicate the NO is essentially insoluble in water. The insolubility of NO in water is further demonstrated by one simple fact: NO concentrations in boiler gas streams are essentially unaffected by the passage through the wet scrubber systems used for sulfur dioxide control. ( p. 7)

The insolubility of NO in water is important because it demonstrates that it is difficult for NO emitted as NOx air emissions to enter the environment by dissolution or water. Gaseous emissions of NO as part of NOx remain in the atmosphere until they react to form NO2. The only way for NO to cause aquatic toxicity, ignitability, and reactivity problems is to enter the environment as a compressed gas or compressed liquid released during shipment or storage. ( p. 8) 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. 123 NO and NO2 Emissions Potentially Regulated Under CERCLA and EPCRA Represent an Extremely Large Number of Extremely Small Sources. ( p. 8)

If applied to NOx air emissions from chemical reactions and/ or combustion processes, the NO and NO2 RQ levels create a situation where a very large number of very small NOx sources would have to file Continuous Release Reports. To put the total NOx emissions in perspective, it has been necessary to compare the magnitude of the small sources with the well recognized major sources of NOx. In preparing this comparison, NSSGA has relied on the NOx emission inventory data in the document titled, " Nitrogen Oxides: Impacts on Public Health and the Environment", EPA 452R 97 002, dated August 1997) Similar emissions data are also available in the 1998 EPA compilation of emissions available on the web based EPA Chief database This report summarizes the NOx emissions for all of the major stationary and mobile sources. There are also data for natural biogenic and geogenic ( i. e., lightning, volcanoes) sources. NSSGA has added to the EPA NOx inventory by estimating the NOx emissions in the U. S. from sources that would be subject to the CRR reports if NOx air emissions are included. This estimate is based on the following assumptions. ( p. 8)

  250,000 additional facilities required under CERCLA EPCRA to report NOx air emissions   50 individual NOx air " releases" per facility per year ( average for all 250,000 facilities)   25 pounds ( 2.5 times RQ level) of NO and/ or NO2 per " release" ( p. 8)

The 250,000 additional facilities subject to reporting requirements due to the inappropriate inclusion of NOx air emissions are based on a very conservative estimate of the number of sources such as small boilers, small irrigation pumps, diesel generators, farms using controlled burning, national park prescribed burns, and vessels with small boilers. The actual number of facilities required to file NOx air related reports might substantially exceed 500,000. ( p. 8)

Based on the conservative estimate of 250,000 facilities with small NOx air emissions, the total NOx emissions from CRR subject sources is approximately 156,000 tons per year. As indicated in Table 1, this value is approximately 0.6% of the total U. S. NOx emissions. It will be inherently difficult for a public health agency to evaluate the impact of a multitude of widely scattered small sources contributing a total of 0.6% of the NOx from the remaining large and relatively ubiquitous sources of the remaining 99.4% of the NOx. ( p. 8)

Table 1. NOx Emission Inventory   [ see table in original public comment]

To put these estimated NO and NO2 emission values in perspective, it is helpful to use a graph. As shown in Figure 1, the quantity of NO and NO2 as NOx that will be 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. 124 regulated by CERCLA and EPCRA if there are 250,000 facilities ( i. e. industrial firms, state or local office buildings, farms, vessels) amounts to an extremely small portion of the total NOx emissions. ( p. 9)

It is unclear how a local agency responsible for responding to the release reports would be able to differentiate between the small amount of NO and NO2 emitted in the air from the " release" and the much larger amount emitted from permitted sources. It is equally unclear why EPA would want the National Response Center and agencies responsible for public health on a local level to handle hundreds of thousands of release reports for which response is neither necessary nor possible. ( p. 9)

Figure 1. Relative Quantities of Permitted NOx Emissions and NOx Emissions Potentially Subject to CERCLA and EPCRA ( Based on EPA NOx Inventory Data 1 997 and Estimated Number of CERCLA/ EPCRA " Release" Source) [ see table in original public comment] ( p. 10)

Another way of adding perspective to this rule is to compare the emissions of a single " release" reporting site with that of other NOx air emission sources that are also close to sensitive populations such as schools, hospitals, and nursing homes. ( p. 10)

  The assembly of more than 500 people driving approximately 10 miles to attend worship services   Any agricultural controlled burning involving more than one acre   Any irrigation pump with a rating of more than 18 horsepower using diesel fuel and operated for more than 18 hours   Any small boiler in a school, prison, hospital, state or federal office building, nursing home, commercial office, farm, oil and gas field, small business, or industrial firm   Any small boiler used on a vessel   Any prescribed burning in a national forest   Blasting using ammonium nitrate and fuel oil at construction or mining sites ( p. 10)

There are a large number of other sources that might emit more than the present RQ levels. If EPA chooses to enforce these very low RQ levels, they might be forced to evaluate some of these other sources: ( p. 10)

  Burning of construction debris   The emissions from a single charcoal broiling restaurant over twelve hours   Welding torches used in major construction projects   Release of nitrogen oxides during continuous emission monitoring instrument calibration 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. 125   Release of nitrogen oxides from laboratories conducting routine sample analyses   Crematoriums   Asphalt plants   Hot air balloons ( p. 10 11)

The large number of reports resulting from the inclusion of NOx air emissions would result in a substantial burden on the regulated community, the NRC, and state and local public health agencies. ( p. 11)

These EPA analyses clearly did not anticipate the expected submission of reports from the hundreds of thousands of organizations operating small boilers, farmers operating irrigation pumps, industrial facilities operating small stationary IC engines or diesel generators, or the numerous other potentially affected organizations and citizens. Because there are a large number of these sources and because their air emission rates of NOx were well known in the 1982 to 1985 time frame when the regulations were being developed, NSSGA believes the lack of anticipation of these reports is simply due to the fact that EPA did not intend for these requirements to apply to air emissions of NOx. ( p. 11)

3. Small NO and NO2 Sources Should Not be Subject to Reporting Requirements. ( p. 11)

The lack of adequate NOx emission factors and the impracticality of emission tests for very small sources make reporting of emissions technically infeasible. ( p. 11)

For example, according to the Georgia Environmental Protection Division's Guidelines for Modeling of Crushed Stone Operations dated September 21, 1999 ( page 4), emissions from blasting will not be considered in either air quality permit reviews or modeling due to a current lack of acceptable emission factors or evaluation techniques. ( p. 11)

COMMENT: Without a clarification of inapplicability, or at the very least the proposed exemptions, the Required Reporting of NO and NO2 from small sources is Flawed by the Lack of Adequate Emissions Data. ( p. 4)

EPA' s policy of requiring reporting of emissions that are otherwise classified as exempt or deminimis under federally enforceable State and local regulations is inherently unreasonable. There can be significant unit to unit variability in emissions from small equipment such as pumps. The application of the very limited emission factors for such equipment might incorrectly indicate compliance or noncompliance. Separate emission tests are unreasonable because the associated testing cost would be a significant fraction of the cost of the emitting unit itself. Accordingly, an operator is entirely dependent on an extremely limited emission factor database. This is not an adequate means for determining if a " release" has occurred. ( 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. 126 Response EPA acknowledges NSSGA's position that CERCLA and EPCRA were intended to address only materials released to the environment as bulk chemicals during accidents or equipment malfunctions. While EPA does not agree that CERCLA and EPCRA had such a narrow intent, the Agency will investigate further the contention that the specific basis used by EPA in 1985 to promulgate RQ values of 10 pounds per day of NO and NO2 was the oxidizing characteristics of compressed and/ or liquefied forms of NO and NO2 released during shipment or storage and therefore should not apply to the mixture of NO and NO2 ( aka NOx) that is released during combustion activities or other types of NOx air emission sources.

EPA also acknowledges NSSGA's concern that emissions that are otherwise classified as exempt or deminimis under federally enforceable State and local regulations are reportable under CERCLA and EPCRA notification requirements. The term " release" found in CERCLA section 101( 22), excludes under paragraph ( B) emissions from the engine exhaust of a motor vehicle, rolling stock, aircraft, vessel, or pipeline pumping station engine. Small equipment such as pumps would be included in this administrative reporting exemption if the pumps operated by combustion. 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. 127 B. Legal Emissions of NOx are " Federally Permitted"

Commenter Number: 0107, 0107.1 Response Number: 2 Commenter Name: Pamela A. Lacey, Senior Managing Counsel, American Gas Association ( AGA)

As AGA and other stakeholders commented in April 2000, operators of " minor source" natural gas fired engines, turbines, boilers, and residential furnaces that are legally permitted to emit nitrogen oxides at levels below " major source" levels under the federal Clean Air Act should not be required to report their NOx emissions under CERCLA § 103 of or EPCRA § 304. These minor sources of NOx should qualify for the " federally permitted release" exemption from Superfund reporting. AGA's Comments dated April 7, 2000 on the " Interim Guidance on the ... Federally Permitted Release Definition" are attached to and incorporated in our comments today. ( p. 1 2)

Combustion sources typically operate under minor state operating air permits or Title V air permits. Through the permitting process, the permitting agency reviews emissions information to assure that the emissions are not a threat to human health or the environment. Often times a specific pollutant, such as NOx, is not limited in the permit because the pollutant's potential to emit is below regulatory thresholds under the Clean Air Act and because the permitting authority has determined that the emissions are not a threat to human health or the environment. Thus a permit may not explicitly spell out a pollutant specific emissions limit, but it is nevertheless clear that the emissions unit is legally permitted to emit up to the unit's potential to emit. ( p. 2)

Natural gas engines and other combustion equipment can have long useful lives. Some of this equipment was installed prior to state permitting or PSD/ NANSR permitting requirements. However, they can still be evaluated under state operating and Title V permit programs. These emissions have been reviewed by the state and/ or federal permitting agency and are also legally permitted to be released. ( p. 2)

If emissions are permitted by federal statute or regulation, they should be considered " federally permitted." ( p. 2)

Response EPA acknowledges AGA's concern that EPA should consider emissions permitted by federal statute or regulation as " federally permitted." EPA directs the commenter to its " Guidance on the CERCLA Section 101( 10)( H) Federally Permitted Release Definition for Certain Air Emissions," ( 67 FR 18899) for further clarification. 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. 128 C. Proposed Exemption only Applies to Emissions not Considered Federally Permitted Commenter Number: 0099.1 Response Number: 3 Commenter Name: Robert D. Bessette, President, Council of Industrial Boiler Owners ( CIBO)

CIBO supports EPA's proposed 1,000 lb/ 24 hour NOx exemption for combustion, but suggests clarification of the exemption. The proposal is justified under applicable law and will protect public health and the environment. ( p. 2)

EPA should clarify in the regulation that federally permitted releases are already exempt from reporting under CERCLA § 101( 10)( H) and that the 1,000 lb limit applies only to emissions that are not considered federally permitted releases. Because the existing CERCLA § 101( 10) exemption is not cited in the existing or proposed CERCLA regulatory exemptions, sources could erroneously conclude that they need to add permitted or controlled emissions to any non permitted NOx emissions for purposes of calculating whether they meet the proposed reporting threshold. This could lead to unnecessary filing of reports and inappropriate use of emergency response resources. As EPA points out, numerous permitted and/ or controlled sources emit more than 1,000 lb per day of NOx. Clarification could prevent unnecessary reporting by sources less familiar with the CERCLA federally permitted release exemption. ( p. 2)

Under CERCLA § 101 ( 10) ( H), a federally permitted release under the Clean Air Act ( CAA) is:

any emission into the air subject to a permit or control regulation under § 111[ ], § 112 [ ], Title I Part C [ ], Title I Part D [ ], or State implementation plans submitted in accordance with § 110 of the Clean Air Act [ ] ( and not disapproved by the Administrator of the Environmental Protection Agency), including any schedule or waiver granted, promulgated, or approved under these sections... ( p. 2)

In addition, EPA Guidances of April 17, 2002 and April 23, 2002 on federally permitted releases under the CAA, further clarify when reporting under CERCLA is not required for releases subject to permit limits or control requirements. ( p. 2)

CIBO members operate many combustion sources including boilers, turbines and other devices that emit significant quantities of NOx. The CERCLA definition of federally permitted release and EPA's 2002 Guidances make clear that sources subject to federal permits or SIP requirements, such as the NOx SIP call, are federally permitted releases and are not required to report normal process emissions of NOx under CERCLA. In addition, many combustors such as turbines controlled by steam injection and Selective Catalytic Reduction ( SCR), emit higher amounts of NOx during start up and shut down operations when steam is not yet available. In many cases, SIP rules and/ or permit conditions recognize the design limitations of these systems and set short term 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. 129 limits for normal operation but allow periods of higher emissions for start ups and shutdowns For example, even though permits may contain no short term limits during the start up or shut down periods, EPA already accounted for those emissions in the permit and SIP development process and they are federally permitted. ( p. 2 3)

In addition to this scenario, in some cases permits and SIPS may not address emissions from start ups and shut downs and in other cases emission limits have been set for normal operations and emissions during start ups may exceed permit limits. In some of these cases, the 2002 Guidance may not clearly address such routine increases in NOx emissions from start ups and shut downs. The proposed administrative exemption should clearly cover these emissions, otherwise many unnecessary reports would need to be filed. While the 1,000 lb exemption may be sufficient to address the start up and shutdown excess emissions for many of these operations, the 1,000 lb exemption would be inadequate if sources were expected to include permitted emissions from combustion sources to these excess emissions from start ups. ( p. 3)

Response EPA acknowledges CIBO's concern that EPA should clarify in the regulation that federally permitted releases are already exempt from reporting under CERCLA § 101 ( 10)( H) and that the 1,000 lb limit applies only to emissions that are not considered federally permitted releases. EPA makes that clarification in section II. F. 1 of the final 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. 130 D. Provide a Definition of " Excess Emissions" for Reporting NOx Commenter Number: 0087.1 Response Number: 4 Commenter Name: Leslie S. Ritts, Counsel to NEDA/ CAP, The National Environmental Development Association's Clean Air Project ( NEDA/ CAP)

If EPA does not revise the proposed NOx release notification and reporting continuous exemption reporting to include NOx emissions regardless of their source or causation, the Agency must provide a definition in the final rule of " excess emissions" for reporting NOx that occurs as a result of combustion malfunctions in the final rule. NEDA/ CAP urges the Agency to define the term in most circumstances as those emissions in excess of an applicable emission limit, in excess of the 10 lb NOx RQ, or if no emission standard or permit exists, those emissions in excess of the daily emission rate when the unit is operating correctly and at its maximum design rate. ( p. 7 8)

Response EPA acknowledges NEDA/ CAP's concern that the Agency must provide a definition in the final rule of " excess emissions: for reporting NOx that occurs as a result of combustion malfunctions. EPA will not include the qualifier, " unless such release is the result of an accident or malfunction" to the administrative reporting exemption for releases of NO and NO2, or both, to air that are the result of combustion or combustionrelated activities. Therefore, EPA is not providing a definition of " excess emissions" in the final rule because it is no longer necessary without the " accident and malfunction" qualifier. 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. 131 E. Provide Guidance on Calculating When Releases from Minor Sources Exceed a Reporting Threshold Commenter Number: 0090.1 Response Number: 5 Commenter Name: Stephen B. Ellingson, Ph. D., Environmental Compliance Director, Koch Mineral Services, LLC ( KMS)

Additionally, KMS requests that EPA take this rulemaking opportunity to clarify reporting threshold calculations by addressing the ambiguity created by EPA's Federally Permitted Release Guidance [ Fed. Reg. 18899 ( April 17, 2002)], the current proposed exemption, and the decision in Mobil Oil Corp., S EAD 490, 1994 WL 544260, at 15 ( Sept. 29, 1994). While the guidance, the current proposal, and the court decision provide that releases resulting from accidents and malfunctions do not qualify for the federally permitted release ( FPR) exemption ( except in rare instances), the Mobil decision leads to the conclusion that only releases above the applicable permit limit need to be considered in making EPCRA/ CERCLA reporting determinations. Specifically, KMS requests clarification that a release during an accident or malfunction condition is only subject to EPCRA/ CERCLA reporting if the quantity released is above the reporting threshold as calculated using the source specific federally enforceable limit as a base, such as is in a permit or other regulatory control. That is, KMS seeks clarification that EPA intends for regulated entities to use the permit or other enforceable limit as the floor for beginning an RQ calculation, and for the reporting requirement to be applicable only when an incident involves a release of at least a reportable quantity above the permit or other enforceable limit. ( p. 2 3)

KMS also requests that EPA provide guidance on calculating when releases from minor sources ( which are not required to hold a permit) exceed a reporting threshold. This clarification will help facilities comply with the proposed exemption if it is promulgated. For example, a state's SIP approved permitting program may include a permitting exemption for equipment or facilities with a potential to emit below a threshold ( e. g., 5 tons per year), but may not impose a specific numerical limit ( e. g., 5 pounds per hour) for NOx. Similarly, an issued construction or operating permit may not contain an hourly NOx limit because the permitting authority has determined that emissions below a threshold do not need such limits. In this case, most NOx emissions from the minor source would be exempt as federally permitted releases. However, the facility would be required to report any emissions of NOx above the permit limit and above the reporting threshold. KMS is seeking clarification as to how a facility would calculate whether the reporting threshold has been exceeded. KMS suggests that a reasonable method of calculation would be to: i) compare the release to the state permitting threshold level divided by the number of 24 hour periods in a year; and ii) report the release if it exceeds this calculated value by 1000 pounds per 24 hours, or more. ( p. 3)

Commenter Number: 0109 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. 132 Commenter Name: Renu Chhabra, Waste & EPCRA Systems Manager, INVISTA Additionally, IN VISTA requests that EPA take this rulemaking opportunity to clarify reporting threshold calculations by addressing the ambiguity created by EPA's Federally Permitted Release Guidance, 67 Fed. Reg. 18899 ( April 17, 2002), the current proposed exemption, and the decision in Mobil Oil Corp., 5 EAD 490, 1994 WL 544260, at 15 ( Sept. 29, 1994). While the guidance, the current proposal, and the court decision provide that releases resulting from accidents and malfunctions do not qualify for the federally permitted release ( FPR) exemption ( except in rare instances), the Mobil decision leads to the conclusion that only releases above the applicable permit limit need to be considered in making EPCRA/ CERCLA reporting determinations. Specifically, we request clarification that a release during an accident or malfunction condition is only subject to EPCRA/ CERCLA reporting if the quantity released is above the reporting threshold as calculated using the source specific federally enforceable limit as a base, such as is in a permit or other regulatory control. That is, we seek clarification that EPA intends for regulated entities to use the permit or other enforceable limit as the floor for beginning an RQ calculation, and for the reporting requirement to be applicable only when an incident involves a release of at least a reportable quantity above the permit or other enforceable limit. ( p. 3)

INVISTA also requests that EPA provide guidance on calculating when releases from minor sources which are not required to hold a permit exceed a reporting threshold. This clarification will help facilities comply with the proposed exemption if it is promulgated. For example, a State's SIP approved permitting program may include a permitting exemption for equipment or facilities with a potential to emit below a threshold ( e. g., 5 tons per year), but may not impose a specific numerical limit ( e. g., 5 lbs/ hour) for NOx. Similarly, an issued construction or operating permit may not contain an hourly NOx limit because the permitting authority has determined that emissions below a threshold do not need such limits. In this case, most NOx emissions from the minor source would be exempt as federally permitted releases. However, the facility would be required to report any emissions of NOx above the permit limit and above the reporting threshold. INVISTA is seeking clarification as to how a facility would calculate whether the reporting threshold has been exceeded. INVISTA suggests that a reasonable method of calculation would be to: i) compare the release to the state permitting threshold level divided by the number of 24 hour periods there are in a year, and ii) report the release if it exceeds this calculated value by 1000 pounds per 24 hours, or more. ( p. 3)

Response EPA acknowledges KMS and INVISTA's request that the Agency provide clarification as to how a facility would calculate whether the reporting threshold has been exceeded. 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. 133 The Agency is not providing guidance on calculating when releases from minor sources exceed a reporting threshold in this final rule because to do so would require additional public comment. 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. 134 F. Apply Exemption to Both CERCLA and EPCRA Reporting Commenter Number: 0090.1 Response Number: 7 Commenter Name: Stephen B. Ellingson, Ph. D., Environmental Compliance Director, Koch Mineral Services, LLC ( KMS)

KMS generally supports the proposed administrative exemption from reporting 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 10 pounds the current CERCLA Reportable Quantity ( RQ), 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 and emergency planners and responders, and would allow resources to be focused on releases that do require a federal response. ( p. 1 2)

For example, KMS oversees many smaller facilities that emit NOx at levels below federal and state permitting and control requirements. These facilities are often not required to obtain permits, or if they are, the permits do not contain specific NOx limits. Where these emissions are not considered to be federally permitted releases, the facilities may then be required to submit a continuous release report for their normal process emissions. The proposed administrative exemption would eliminate the need to file many of these continuous release reports and their associated on going maintenance for NOx emissions less than 1000 pounds in a 24 hour period. Larger facilities that may have CAA permits that do not regulate the facilities' NOx emissions will also not need to focus compliance resources on reporting emissions that are minimal and do not pose a hazard to health or the environment. ( p. 2)

The proposed rule requests comments on whether the exemption should apply only to CERCLA reporting or should apply to both CERCLA and EPCRA reporting. KMS 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. ( p. 2)

Response 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. 135 KMS states that, " the proposed rule requests comments on whether the exemption should apply only to CERCLA reporting, or should apply to both CERCLA and EPCRA reporting." EPA believes that there is a misunderstanding in what the Agency is requesting. EPA is requesting comment on the application of this exemption to both CERCLA and EPCRA reporting, not that the exemption only apply to CERCLA 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. 136 G. Clarify that NOx represents NO and NO2 Interchangeably Commenter Number: 0098.1 Response Number: 8 Commenter Name: Debra D. Lane, Senior Environmental Consultant, Corporate Safety, Health and Environment, MeadWestvaco Throughout the proposed rule, EPA uses the term NOx to represent NO and NO2, which are the compounds actually listed under CERCLA. MeadWestvaco recommends that EPA clarify in the rule that the terms are interchangeable. Specifically, EPA should note that, for the purpose of determining whether a release is federally permitted, a limit on NOx emissions can be considered a limit on NO and NO2 emissions, and a regulation/ SIP provision which refers to NOx can also be considered to limit NO and NO2 emissions. This clarification will prevent many needless release reports. ( p. 2)

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)

Response EPA makes the appropriate clarifications in section II. F. 2 of the final 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. 137 VIII. ISSUES RELATED TO RULEMAKING PROCEDURE 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. 138 Commenter Number: 0101.1 Response Number: 1 Commenter Name: Timothy G. Hunt, Senior Director, Air Quality Programs, American Forest & Paper Association ( AF& PA)

The preamble states that the proposed administrative exemption applies " to releases of less than 1,000 pounds of nitrogen oxide and nitrogen dioxide ( or collectively " NOx") ." 70 Fed. Reg. 57,813. Footnote 2 at page 57,815 further states, " for this proposed rule, we use the shorthand convention NOx to refer to both NO and NO2 either collectively or as individual hazardous substances." Neither statement clearly reflects the proposed rules, which establish separate, not combined, 1000 pound exemptions for nitrogen oxide and nitrogen dioxide. See, proposed Sections 302.6( e)( 1) [ covering nitrogen oxide] and 302.6( e)( 2) [ covering nitrogen dioxide], 70 Fed. Reg. 57,822. AF& PA suggests that EPA conform the preamble to the rules actually proposed to make clear that the administrative exemption affords a 1000 pound exemption to nitrogen oxide and another thousand pound exemption to nitrogen dioxide. ( p. 3)

Response EPA acknowledges AF& PA's concern that the Agency makes sure that the administrative exemption affords a 1000 pound exemption to nitrogen oxide and another thousand pound exemption to nitrogen dioxide. EPA makes that clarification in the final rule and in section II. G. of its preamble. 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. 139 IX. REQUEST TO RAISE RQ 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. 140 Commenter Number: 0090.1 Response Number: 1 Commenter Name: Stephen B. Ellingson, Ph. D., Environmental Compliance Director, Koch Mineral Services, LLC ( KMS)

KMS understands EPA rationale for proposing a reporting exemption for releases of NOx below 1000 pounds in a 24 hour period on the basis that this is below the level at which permits are required under the CAA for NOx. With the 2002 Federally Permitted Release guidance EPA demonstrates that its intent is not to expect reporting of these emissions because they are not a threat to human health or ecosystems. EPA asked stakeholders to submit human health and ecological risk assessment with any proposal to extend the exemption beyond 1000 pounds in 24 hours. If EPA has concluded that these assessments are not needed for releases less than 1000 pounds, KMS does not understand why the overall RQ for NOx could not be raised as well. KMS would expect receptors to respond to 1000 pounds per day of NOx in the same way whether or not it is reported to EPA, state or local agencies. ( p. 4 5)

KMS, like many other companies, holds permits that allow emissions of NOx which are greater than the proposed 1000 pounds per day exemption from reporting. The issuance of these permits and the authorized emissions of NOx further indicate to KMS that EPA has acknowledged that NOx emissions even greater than the proposed exemption do not pose a significant health effect. For this reason, while KMS believes that the RQ should be significantly higher than 1000 pounds, KMS requests that action be taken to raise the CERCLA and EPCRA RQ to 1000 pounds per 24 hour period. ( p. 5)

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

NMA supports the approach taken by the agency in the proposed rule, i. e., the granting of an administrative reporting exemption. ( p. 4)

The record evidence noted in the proposed rule's preamble demonstrates clearly that the number of NOx release reports is rapidly increasing. These reports are " across the board," i. e., they are not confined solely to releases of NOx in large quantities but include releases at levels under 5,000 pounds. This in turn means that the number of " no action" NOx release reports also is rapidly increasing. ( p. 4)

Response authorities can continue to evaluate each NOx release and make " no action" determinations. That kind of approach, however, continues to waste limited resources. Indeed, to continue such needless evaluations is to divert response authorities from considering other releases where government response actions might be more likely and more necessary. ( p. 4)

If EPA were to choose to pursue the " changed RQ" approach, there likely would be a protracted rulemaking. It already has taken many years to reach the point 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. 141 proposing an administrative reporting exemption. It is difficult to see the value in an additional, lengthy rulemaking when the risks to human health and the environment are already recognized as minimal ( at most). The agency has correctly stated that these kinds of NOx release reports " have not furthered the protection of human health and the environment." Id. ( p. 4)

For the same reasons, requiring reporting of these NOx releases under the continuous release reporting provisions of CERCLA is not warranted. At first, the routine anticipated nature of the releases might seem to argue for following continuous release reporting procedures. On further consideration, however, using continuous release reporting procedures still contributes to a waste of resources on the part of the authority receiving such reports as well as the reporting facility. EPA has already recognized that these NOx releases are not likely to warrant any response action, and that submitting such release reports adds nothing to the protection of human health and the environment. Where then is the justification for requiring such reports, even under the continuous release reporting provisions? ( p. 4)

Commenter Number: 0102.1, 0110 Response Number: 3 Commenter Name: Pamela F. Faggert, Vice President and Chief Environmental Officer, Dominion Dominion agrees that EPA should proceed with this rulemaking to provide an administrative exemption for NOx releases above 10 pounds per 24 hour period. However, EPA should not abandon the need to revise the NOx reportable quantity ( RQ) under 40 CFR 302.5 of the CERCLA regulations. ( p. 1)

Dominion agrees with EPA that an administrative exemption for NOx releases above 10 pounds per 24 hour period should be finalized. The reporting threshold of 10 pounds of NOx per 24 hour period was set entirely too low and we urge EPA to begin the process of establishing a revised RQ for NOx releases. EPA has concluded that revising the RQ for NOx releases " would likely take a number of years to develop and promulgate through rulemaking. [ EPA] believe[ s] that an administrative reporting exemption would likely provide the same outcome in less time." Nevertheless, we urge EPA to begin the process of revising the RQ for NOx releases along a parallel path with the rulemaking to finalize the administrative exemption that is the subject of this notice. ( p. 1)

Dominion supports EPA's decision to change the current reporting threshold in 40 CFR 355.40 of the CERCLA regulations for NOx releases above 10 pounds per 24 hour period. The threshold is too low, difficult to quantify and creates an unnecessary reporting burden that wastes resources of regulatory agencies and subject facilities. ( p. 1 2)

The 10 pound RQ can be routinely exceeded by many different combustion units including electric utility generating units and natural gas compressor facilities. As EPA has noted in the proposal, " For example, an 80 million BTU/ hr natural gas boiler will 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. 142 exceed the RQ for NOx after 2.5 hours of operation  an 18 horsepower engine running 24 hours will exceed the RQ  a 100 horsepower engine will exceed the RQ for NOx in five hours  even bakery ovens could trigger the RQ " ( p. 2)

Current EPA regulations permit NOx emissions several orders of magnitude higher than the current RQ for NOx. For example, the most recent EPA proposal for NSPS ( New Source Performance Standard) for NOx emissions from large coal fired utility boilers is 0.11 pounds per million Btu of heat input. A 5000 million Btu per hour boiler would emit more than 6 tons per 24 hour period and fully comply with the latest, most stringent proposal for the NSPS. Since the NSPS are designed to protect human health, the 10 pound reporting threshold would appear to have little correlation to protection of human health. ( p. 2)

Existing monitoring systems are designed to measure NOx in terms of mass emissions: pounds per million Btu, tons per day, tons per year. The current state of the art monitoring systems may lack the precision needed to measure such small levels of NOx as 10 pounds over a 24 hour period. ( p. 2)

The existing 10 pound threshold is non productive and wastes public resources at the federal, state, and local levels and the resources of private industry. " As a result of today's proposal industry and the Federal Government would be better able to focus their resources. As an example  NOx release notifications submitted between 1994 and 2004, we estimate that the private sector and Federal Government spent about 3.7 man months to prepare and process these notifications." ( p. 2)

Commenter Number: 0109 Response Number: 4 Commenter Name: Renu Chhabra, Waste & EPCRA Systems Manager, INVISTA INVISTA understands EPA's rationale for proposing a reporting exemption for releases of NOx below 1000 pounds in a 24 hour period on the basis that this is below the level at which permits are required under the CAA for NOx. With the 2002 Federally Permitted Release guidance, EPA demonstrates that its intent is not to expect reporting of these emissions because they are not a threat to human health or ecosystems. EPA asked stakeholders to submit human health and ecological risk assessment with any proposal to extend the exemption beyond 1000 pounds in 24 hours. If EPA has concluded that these assessments are not needed for releases less than 1000 pounds, INVISTA does not understand why the overall RQ for NOx could not be raised as well. One would expect the equivalent impact to receptors if exposed to 1000 pounds per day of NOx in the same way whether it is reported to EPA, state or local agencies or not. ( p. 4)

INVISTA, like many other companies, holds permits at some of its facilities that allow emissions of NOx which are significantly greater than the proposed 1000 pound/ day exemption from reporting. The issuance of these permits and the authorized 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. 143 emissions of NOx further indicate to INVISTA that EPA has acknowledged that NOx emissions even greater than the proposed exemption do not pose a significant health effect. For this reason, while INVISTA believes that the RQ should be significantly higher than 1000 pounds, we request that action be taken to raise the CERCLA and EPCRA RQ to 1000 pounds per 24 hour period. ( p. 4)

Response EPA acknowledges the commenters' desire to raise the CERCLA and EPCRA RQ to 1000 pounds per 24 hour period. EPA has determined that the administrative reporting exemption is the appropriate mechanism for granting relief from notification requirements of CERCLA and EPCRA. The administrative reporting exemption allows the Agency to maintain its long established methodology for assigning one RQ to a hazardous substance regardless of the media affected.

With respect to NMA's question, "[ w] here then is the justification for requiring such reports, even under the continuous release reporting provisions? The justification for requiring the reporting of releases of NO and NO2 are the CERCLA and EPCRA statutes.