[Federal Register Volume 83, Number 220 (Wednesday, November 14, 2018)]
[Proposed Rules]
[Pages 56791-56797]
[FR Doc No: 2018-24821]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 355

[EPA-HQ-OLEM-2018-0318; FRL-9986-40-OLEM]
RIN 2050-AH00

Emergency Release Notification Regulations on Reporting Exemption
for Air Emissions From Animal Waste at Farms; Emergency Planning and
Community Right-to-Know Act

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
proposing to amend the release notification regulations under the
Emergency Planning and Community Right-to-Know Act (EPCRA) to add the
reporting exemption for air emissions from animal waste at farms
provided in section 103(e) of the Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA). In addition, EPA is proposing
to add definitions of ``animal waste'' and ``farm'' to the EPCRA
regulations to delineate the scope of this reporting exemption. This
proposed rulemaking maintains consistency between the emergency release
notification requirements of EPCRA and CERCLA in accordance with the
statutory text, framework and legislative history of EPCRA, and is
consistent with the Agency's prior regulatory actions.

DATES: Comments must be received on or before December 14, 2018.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OLEM-2018-0318, at https://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. The EPA may publish any
comment received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e., on the web, cloud, or other
file sharing system). For additional submission methods, the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Sicy Jacob, United States
Environmental Protection Agency, Office of Land and Emergency
Management, 1200 Pennsylvania Ave. NW (Mail Code 5104A), Washington, DC
20460; telephone number:<PHONE_NUMBER>; email address:
[email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    A list of entities that could be affected by this final rule
include, but are not necessarily limited to:

------------------------------------------------------------------------
             Type of entity               Examples of affected entities
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Industry...............................  NAICS code 111--Crop
                                          production.
                                         NAICS code 112--Animal
                                          production.
States and/or Local Governments........  NAICS code 999200--State
                                          Government, excluding schools
                                          and hospitals.
                                         NAICS code 999300--Local
                                          Government, excluding schools
                                          and hospitals.
                                         State Emergency Response
                                          Commissions, Tribal Emergency
                                          Response Commissions, Tribal
                                          Emergency Planning Committees
                                          and Local Emergency Planning
                                          Committees.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provide a
guide for readers regarding the types of entities that EPA is aware
could be involved in the activities affected by this action. However,
other types of entities not listed in this table could be affected by
this proposed rulemaking. To determine whether your entity is affected
by this action, you should carefully examine the applicability criteria
found in Sec.  355.30 of title 40 of the Code of Federal Regulations
(CFR). If you have questions regarding the applicability of this action
to a particular entity, consult the person listed in the FOR FURTHER
INFORMATION CONTACT section.

B. What action is the Agency taking?

    The EPA is proposing to amend the EPCRA emergency release
notification regulations to include the reporting exemption for air
emissions from animal waste at farms provided in CERCLA section 103(e).
In addition, EPA is proposing to add definitions of ``animal waste''
and ``farm'' to the EPCRA regulations to delineate the scope of this
reporting exemption.

C. What is the Agency's authority for taking this action?

    This proposed rulemaking is being issued under EPCRA, which was
enacted as Title III of the Superfund Amendments and Reauthorization
Act (SARA) of 1986 (Pub. L. 99-499). EPA proposes this rulemaking under
the

authority of EPCRA section 304 (42 U.S.C. 11004) and the Agency's
general rulemaking authority under EPCRA section 328 (42 U.S.C. 11048).

II. Background of the Proposed Rule

A. Overview

    Section 103 of CERCLA requires the person in charge of a vessel or
facility to immediately notify the National Response Center (NRC) when
there is a release of a hazardous substance, as defined under CERCLA
section 101(14), in an amount equal to or greater than the reportable
quantity for that substance within a 24-hour period. In addition to
these CERCLA reporting requirements, EPCRA section 304 requires owners
or operators of certain facilities to immediately notify state and
local authorities when there is a release of an extremely hazardous
substance (EHS), as defined under EPCRA section 302, or of a CERCLA
hazardous substance in an amount equal to or greater than the
reportable quantity for that substance within a 24-hour period.
    EPCRA and CERCLA are two separate but interrelated environmental
laws that work together to provide emergency release notifications to
Federal, state and local officials. Notice given to the NRC under
CERCLA serves to inform the Federal government of a release so that
Federal personnel can evaluate the need for a response in accordance
with the National Oil and Hazardous Substances Contingency Plan
(NCP),\1\ the Federal government's framework for responding to both oil
discharges and hazardous substance releases. Relatedly, notice under
EPCRA is given to the State Emergency Response Commission (SERC) for
any state likely to be affected by the release and to the community
emergency coordinator for the Local Emergency Planning Committee (LEPC)
for any area likely to be affected by the release so that state and
local authorities have information to help protect the community.
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    \1\ 40 CFR part 300.
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    Release reporting under EPCRA depends, in part, on whether
reporting is required under CERCLA.\2\ Specifically, EPCRA section
304(a) provides for reporting under the following three release
scenarios:
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    \2\ In this document, emergency release notification and release
reporting are used interchangeably.
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     EPCRA section 304(a)(1) requires notification if a release
of an EPCRA EHS occurs from a facility at which a hazardous chemical is
produced, used or stored, and such release requires a notification
under CERCLA section 103(a).
     EPCRA section 304(a)(2) requires notification if a release
of an EPCRA EHS occurs from a facility at which a hazardous chemical is
produced, used or stored, and such release is not subject to the
notification requirements under CERCLA section 103(a), but only if the
release:
    [cir] Is not a federally permitted release as defined in CERCLA
section 101(10),
    [cir] Is in an amount in excess of the reportable quantity as
determined by EPA, and
    [cir] Occurs in a manner that would require notification under
CERCLA section 103(a).
     EPCRA section 304(a)(3) requires notification if a release
of a substance not designated as an EPCRA EHS occurs from a facility at
which a hazardous chemical is produced, used or stored, and such
release requires a notification under CERCLA section 103(a).

B. Fair Agricultural Reporting Method Act and Legislative Amendments to
CERCLA

    On March 23, 2018, the President signed into law the Consolidated
Appropriations Act, 2018 (``Omnibus Bill''). Title XI of the Omnibus
Bill is entitled the ``Fair Agricultural Reporting Method Act'' or the
``FARM Act.'' See Fair Agricultural Reporting Method Act, Public Law
115-141, sections 1101-1103 (2018). The FARM Act expressly exempts
reporting of air emissions from animal waste (including decomposing
animal waste) at a farm from CERCLA section 103. The FARM Act also
provides definitions for the terms ``animal waste'' and ``farm.'' On
August 1, 2018, the Agency published a final rule to amend the CERCLA
regulations at 40 CFR part 302 by adding the reporting exemption for
air emissions from animal waste at farms and adding definitions of
``animal waste'' and ``farm'' from the FARM Act.

C. Proposed Revisions to EPCRA Section 304 Release Notification
Regulations

    Based on the criteria for EPCRA section 304 release reporting, EPA
is proposing to amend the EPCRA release notification regulations in 40
CFR 355.31 to include the reporting exemption for air emissions from
animal waste at farms. EPA is also proposing to add definitions of
``animal waste'' and ``farm'' to the definition section of the EPCRA
regulations in 40 CFR 355.61 to delineate the scope of this reporting
exemption. EPA believes these proposed changes appropriately reflect
the relationship between CERCLA and EPCRA release reporting
requirements and are consistent with the statutory text, framework and
legislative history of EPCRA, as well as the Agency's prior regulatory
actions.

III. Legal Rationale for the Proposed Rule

    This proposed rulemaking maintains consistency between the
emergency release notification requirements of EPCRA and CERCLA in
accordance with the statutory text, framework and legislative history
of EPCRA, and is consistent with the Agency's prior regulatory actions.
Specifically, this proposed rulemaking is based on the relationship of
the EPCRA section 304 reporting requirements to the CERCLA section 103
reporting requirements, as recently amended. As previously noted, EPCRA
section 304 reporting depends, in part, on whether reporting is
required under CERCLA section 103. EPCRA's legislative history further
indicates that the EPCRA section 304 reporting requirements are
designed to be consistent with the reporting requirements of CERCLA
section 103. EPA has thus revised the EPCRA emergency release
notification regulations from time to time, as appropriate, to maintain
consistency with the CERCLA reporting requirements.
    Consistent with the Agency's interpretation of EPCRA section 304
and the Agency's prior regulatory actions, EPA now proposes to amend
the EPCRA release notification regulations to explicitly exempt air
emissions from animal waste at farms from reporting under EPCRA section
304.

A. Statutory Text and Framework

    EPCRA section 304 provides for release reporting under three
scenarios, each of which depends in some way on whether the release
requires notice under CERCLA. If a release requires notice under CERCLA
section 103(a), the release may be subject to reporting under EPCRA if
the release meets the requirements of EPCRA section 304(a)(1) or
304(a)(3). If a release is not subject to notification under CERCLA
section 103(a), the release may nonetheless be subject to reporting
under EPCRA if the release meets the requirements of EPCRA section
304(a)(2). Because the FARM Act exempted air emissions from animal
waste at farms from CERCLA reporting, these types of releases no longer
require notice under CERCLA section 103(a) and thus do not fall within
the EPCRA section 304(a)(1) or (a)(3) reporting scenarios. Instead,
these releases fall within the EPCRA section 304(a)(2) reporting
scenario. Pursuant to EPCRA section 304(a)(2), a release of an EPCRA
EHS that is not subject to notification

under section 103(a) of CERCLA need only be reported under EPCRA if the
release:
     Is not a federally permitted release as defined in section
101(10) of CERCLA,
     Is in an amount in excess of the reportable quantity as
determined by EPA, and
     Occurs in a manner that would require notification under
section 103(a) of CERCLA.
    A release that is not subject to CERCLA section 103(a) reporting
must meet all three criteria in EPCRA section 304(a)(2) to be subject
to EPCRA reporting. Here, air emissions from animal waste at farms
could meet the first two criteria because such releases are generally
not federally permitted and may exceed the applicable reportable
quantity. Yet these types of releases do not ``occur[] in a manner''
that would require notification under CERCLA section 103(a) and thus do
not meet the third criterion of EPCRA section 304(a)(2). Because air
emissions from animal waste at farms do not meet all three criteria
under EPCRA section 304(a)(2), and do not fall within the EPCRA section
304(a)(1) or (a)(3) reporting scenarios, these types of releases are
not subject to EPCRA reporting. As such, EPA is proposing to amend
EPCRA's emergency release notification regulations to clarify reporting
exemptions for certain types of releases under EPCRA section 304.
    Air emissions from animal waste at farms no longer ``occur[] in a
manner'' that would require notification under CERCLA section 103(a)
because the recent amendment exempted these types of releases from
CERCLA reporting. Importantly, the CERCLA reporting exemption is
specifically tied to the nature or manner of these releases rather than
to a specific substance. For example, the recent amendment does not
exempt specific substances typically associated with animal waste (such
as ammonia and hydrogen sulfide) from reporting; rather, it exempts
from reporting releases of any substance from animal waste at a farm
into the air. Because air emissions from animal waste do not ``occur[]
in a manner'' that would require notification under CERCLA section
103(a), these types of releases do not meet the third criterion of
EPCRA section 304(a)(2) and are thus not subject to EPCRA reporting.
    EPCRA section 304(a)(2) promotes consistency between the reporting
requirements of EPCRA and CERCLA by ensuring that only releases that
``occur[ ] in a manner'' that would require CERCLA notification be
reported under EPCRA. Yet, the provision also contemplates scenarios
where releases not subject to reporting under CERCLA may still need to
be reported under EPCRA, such as releases of substances designated as
EHSs under EPCRA but not as hazardous substances under CERCLA. For
example, trimethylchlorosilane (Chemical Abstract Service No. 75-77-4)
is designated as an EPCRA EHS but not as a CERCLA hazardous substance.
Since trimethylchlorosilane is not a CERCLA hazardous substance, its
releases are not subject to notification under CERCLA section 103(a)
and need only be reported under EPCRA if such releases meet the
criteria of EPCRA section 304(a)(2). A trimethylchlorosilane release
that (1) is not a federally permitted release as defined in CERCLA
section 101(10); (2) exceeds the applicable reportable quantity; and
(3) ``occurs in a manner'' that would require notification under CERCLA
section 103(a) would still be subject to EPCRA reporting. In this
example, a release of trimethylchlorosilane ``occurs in a manner'' that
would require notification under CERCLA section 103(a) where, for
example, the release is ``into the environment'' as defined in CERCLA
section 101(22), and is not one of the excluded or exempted types of
releases described in CERCLA sections 101(22), 103(e), or 103(f). (See
section C of this preamble, for further explanation of these
exemptions.) Therefore, the release of trimethylchlorosilane would be
similar to other releases that require notification under CERCLA
section 103(a).\3\
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    \3\ See, e.g., 48 FR 23552, 23555 (May 25, 1983) (describing the
nature of releases subject to CERCLA notification requirements); 52
FR 13378, 13383 (April 22, 1987) (explaining that the method used to
determine whether a release meets or exceeds the applicable RQ under
CERCLA ``should be equally applicable to releases under [EPCRA]
section 304 due to similarity to section 103 of CERCLA'').
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    As another example, petroleum (including crude oil or any fraction
thereof) is expressly excluded from the definition of ``hazardous
substance'' in CERCLA section 101(14). Because of this ``petroleum
exclusion,'' releases of petroleum are not subject to notification
under CERCLA section 103(a) and so need to be reported under EPCRA only
if such releases meet the criteria of EPCRA section 304(a)(2). Where a
petroleum release meets the first two criteria of EPCRA section
304(a)(2), the question becomes whether the release ``occurs in a
manner'' that would require notification under CERCLA section 103(a).
Notably, unlike air emissions from animal waste at farms, Congress did
not exempt petroleum releases from CERCLA reporting based on the manner
or nature of these releases. Instead, Congress exempted these types of
releases from CERCLA reporting by excluding petroleum (including crude
oil or any fraction thereof) from the definition of ``hazardous
substance.'' See 42 U.S.C. 9601(14). As such, these types of releases
still ``occur[ ] in a manner'' that would require notification under
CERCLA section 103(a) and could thus be subject to reporting under
EPCRA section 304(a)(2) where the petroleum release contains an EHS.
See 52 FR 13378, 13385 (April 22, 1987). In sum, where a CERCLA
reporting exemption or the reason a release is not subject to CERCLA
reporting is unrelated to the manner in which such releases occur,
EPCRA section 304(a)(2) may compel reporting of such releases.
    In addition to the statutory text of EPCRA section 304(a)(2), the
statutory framework of EPCRA's reporting requirements indicates a
desire to maintain consistency between the EPCRA and CERCLA reporting
requirements. Indeed, ``[i]n drafting the EPCRA reporting requirements,
Congress expressly tied them to CERCLA's'' such that ``all of EPCRA's
reporting mandates are piggybacked on the CERCLA mandates in one form
or another.'' Waterkeeper Alliance v. EPA, 853 F.3d 527, 532 (D.C. Cir.
2017). Under EPCRA sections 304(a)(1) and (a)(3), EPCRA reporting
depends on whether a release requires notification under CERCLA section
103(a), and under EPCRA section 304(a)(2), EPCRA reporting depends on
whether a release ``occurs in a manner'' that would require
notification under CERCLA section 103(a). Therefore, EPCRA requires
reporting only for releases that require notification under CERCLA or
occur in a manner that would require notification under CERCLA. Under
CERCLA section 103 as amended, air emissions from animal waste at farms
do not require notification under CERCLA section 103(a) and do not
occur in a manner that would require such notification. As a result,
these types of releases are not subject to reporting under EPCRA
section 304(a)(1), (a)(2) or (a)(3). Thus, to clarify that these types
of releases are not subject to reporting under EPCRA section 304, EPA
is proposing to amend the EPCRA release notification regulations to
exempt air emissions from animal waste at farms from reporting under
section 304. In doing so, EPA seeks to avoid inconsistent regulation of
these types of releases under EPCRA and CERCLA, in

furtherance of the underlying purpose of this statutory framework.

B. Legislative History

    EPA's understanding of EPCRA section 304(a)(2) is informed by the
legislative history of EPCRA itself. In 1986, Congress passed EPCRA
pursuant to Title III of the Superfund Amendments and Reauthorization
Act (SARA). In the committee conference report addressing EPCRA,
Congress discussed the three scenarios requiring release reporting
under EPCRA section 304. With respect to EPCRA section 304(a)(2), the
report states: ``This requires notification where there is a release of
an extremely hazardous substance that would require notice under
section 103(a) of CERCLA but for the fact that the substance is not
specifically listed under CERCLA as requiring such notice.'' See 99
Cong. Conf. Report H. Rep. 962, October 3, 1986; SARA Leg. Hist. 38
(Section 304 Emergency Notification).
    Congress thus expressed its intent that state and local authorities
be notified of a qualifying release under EPCRA, even if the substance
released is not identified as a hazardous substance under CERCLA, when
the release occurs in a manner as the types of releases that require
notification under CERCLA section 103(a). Conversely, if the release
occurs in a manner that Congress determines does not require
notification under CERCLA section 103(a)--such as air emissions from
animal waste at farms--then no reporting is required under EPCRA
section 304(a)(2) (i.e., the third criterion of EPCRA section 304(a)(2)
has not been met).
    The legislative history also reveals that Congress intended EPCRA
section 304(a)(2) to operate to exclude continuous releases from
EPCRA's immediate notification requirements because such releases do
not occur in a manner that requires reporting under CERCLA section
103(a).\4\ The committee conference report explains: ``[R]eleases which
are continuous or frequently recurring and do not require reporting
under CERCLA are not required to be reported under [EPCRA section
304].'' Rather, continuous releases are subject to reduced reporting
requirements pursuant to CERCLA section 103(f). As explained in section
C.3. of this preamble, EPA incorporated an alternative for continuous
releases into EPCRA and promulgated regulations that allow continuous
releases to be reported in a manner consistent with CERCLA's continuous
release reporting requirements.
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    \4\ CERCLA section 103(a) requires the person in charge of a
vessel or facility to ``immediately notify'' the NRC when there is a
release of a hazardous substance in an amount equal to or greater
than the reportable quantity for that substance within a 24-hour
period. In contrast, releases that are continuous and stable in
quantity and rate may qualify for reduced, ``continuous release''
reporting under CERCLA section 103(f)(2). Similarly, EPCRA section
304 requires owners or operators of certain facilities to
``immediately'' notify state and local authorities of qualifying
releases, and EPA has promulgated regulations that allow continuous
releases to be reported under EPCRA in a manner consistent with
CERCLA's continuous release reporting requirements.
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    Congress's intent in adopting the three scenarios in EPCRA section
304(a)(1)-(3) was to ensure that when Federal authorities receive
notice of a release under CERCLA section 103(a), state and local
authorities receive similar notice under EPCRA. Note that CERCLA
notification applies to the list of hazardous substances (located in 40
CFR 302.4), while EPCRA notification applies to the lists of both
CERCLA hazardous substances and EPCRA EHSs (located in 40 CFR part 355
Apps. A and B). When a substance is not a listed CERCLA hazardous
substance, but is on the EPCRA EHSs list, EPCRA section 304(a)(2)
provides for notification only if the release of such substance occurs
in a manner as the types of releases that require notification under
CERCLA section 103(a). On the other hand, if Congress determines that a
release occurs in a manner that does not require notification under
CERCLA section 103(a), EPCRA section 304(a)(2) works to logically
exclude that release from EPCRA reporting.

C. Prior Regulatory Actions

    As noted, CERCLA release notification was established to alert
Federal authorities to a release so that the need for a response can be
evaluated and any necessary response undertaken in a timely fashion.
EPCRA release notification supplements CERCLA release notification by
similarly preparing the community at the state and local level. Based
on the criteria for EPCRA section 304 release reporting, and to promote
consistency between CERCLA and EPCRA release notification requirements,
the Agency has incorporated many of CERCLA's release notification
exemptions into the EPCRA release notification regulations through
prior rulemakings. Each of these prior regulatory actions are
summarized below.
1. Exemptions From the Definition of ``Release'' Under CERCLA and EPCRA
    Both CERCLA and EPCRA define the term ``release.'' Under CERCLA
section 101(22), the term ``release'' generally means ``any spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, or disposing into the environment
(including the abandonment or discarding of barrels, containers, and
other closed receptacles containing any hazardous substance or
pollutant or contaminant),'' but also includes specific exclusions for
workplace releases, vehicle emissions, nuclear material releases and
fertilizer application. Similar to the CERCLA workplace exposure
exclusion, EPCRA section 304(a)(4) exempts from reporting any release
which results in exposure to persons solely within the site or sites on
which a facility is located. Though the definition of ``release'' under
EPCRA section 329 mirrors the CERCLA definition, it does not contain
three exclusions provided in the CERCLA section 101(22) definition of
``release'': (1) Emissions from the engine exhaust of a motor vehicle,
rolling stock, aircraft, vessel or pipeline pumping station engine; (2)
releases of source, byproduct or special nuclear material from a
nuclear incident; and (3) the normal application of fertilizer.
However, because the types of releases excluded from CERCLA's
definition of ``release'' do not occur in a manner that would be
reportable under CERCLA section 103(a), these types of releases do not
meet the reporting requirements under EPCRA section 304. See 52 FR
13381, 13384-85 (April 22, 1987) and related Response to Comments
document, April 1987, Docket Number 300PQ. Thus, EPA adopted these
statutory CERCLA exclusions into the EPCRA regulations codified at 40
CFR 355.31.\5\
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    \5\ The 1987 rule codified these exemptions at 40 CFR
355.40(a)(2), which was later reorganized into 40 CFR 355.31. See 73
FR 65451 (November 3, 2008).
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2. Exemptions From Immediate Notification Requirements
    There are four types of statutory exemptions from the immediate
notification requirements for releases of hazardous substances provided
in CERCLA sections 101(10) and 103(e) and (f). Specifically, these
statutory exemptions include: (1) Federally permitted releases, as
defined in section 101(10); (2) releases from the application of a
pesticide product registered under the Federal Insecticide, Fungicide
and Rodenticide Act or from the handling and storage of such a
pesticide product by an agricultural producer (section 103(e)); (3)
certain releases of hazardous wastes that are required to be reported
under the provisions of the Resource Conservation and Recovery Act and
that are reported to the NRC (section 103(f)(1)); and (4)

certain releases that are determined to be continuous under the
provisions of section 103(f)(2).
    In the final rulemaking on April 22, 1987 (52 FR 13378) for
emergency planning and release notification requirements under EPCRA,
the Agency adopted exemptions from CERCLA section 103(a) reporting
``based on the language in EPCRA section 304(a) which requires that
releases reportable under that Section occur in a manner which would
require notification under section 103(a) of CERCLA.'' 52 FR 13378,
13381 (April 22, 1987).
    Although EPA stated in the April 1987 rulemaking that it was
incorporating CERCLA reporting exemptions into the EPCRA regulations
based on the criteria for EPCRA section 304 release reporting, the
Agency inadvertently omitted the exclusion for the ``application of a
pesticide product registered under the Federal Insecticide, Fungicide,
and Rodenticide Act or to the handling and storage of such a pesticide
product by an agricultural producer'' from the EPCRA section 304
regulations at that time. Thus, in a technical amendment published on
May 24, 1989 (54 FR 22543), EPA added a provision to the EPCRA
regulations in 40 CFR 355.40(a)(2)(iv) (currently codified at 40 CFR
355.31(c)) providing that releases exempted from CERCLA section 103(a)
reporting by CERCLA section 103(e) are also exempt from reporting under
EPCRA section 304. In addition, the May 1989 technical amendment
clarified the language in paragraph (a)(2)(v) of 40 CFR 355.40
(currently codified at 40 CFR 355.31(d)), explaining that this section
exempts from EPCRA section 304 reporting ``any occurrence not meeting
the definition of release under section 101(22) of CERCLA,'' as
``[s]uch occurrences are also exempt from reporting under CERCLA
section 103(a).'' See 54 FR 22543, 22543 (May 24, 1989).
3. Continuous Release Reporting
    CERCLA section 103(f) provides relief from the immediate
notification requirements of CERCLA section 103(a) for a release of a
hazardous substance that is continuous and stable in quantity and rate.
Instead, continuous releases are subject to a significantly reduced
reporting requirement under regulations promulgated pursuant to CERCLA
section 103(f). In adopting the implementing regulations for EPCRA in
40 CFR part 355, EPA relied on EPCRA section 304(a)(2) to likewise
exclude continuous releases from the immediate notification requirement
of EPCRA section 304, reasoning: ``Because such releases do not `occur
in a manner' which requires immediate release reporting under section
103(a) of CERCLA, they are also not reportable under section 304 of
[EPCRA].'' See 52 FR 13381, 13384 (April 22, 1987). EPA later
promulgated continuous release reporting regulations for EPCRA that
cross-reference and follow the CERCLA continuous release reporting
regulations, finding that EPCRA release reporting is ``closely tied''
and ``parallel'' to CERCLA release reporting. See 55 FR 30169, 30179
(July 24, 1990). At that time, the Agency also reiterated that ``[t]o
the extent that releases are continuous and stable in quantity and rate
as defined by CERCLA section 103(f)(2) . . . , they do not occur in a
manner that requires notification under CERCLA section 103(a)'' and are
thus not subject to the EPCRA section 304 immediate notification
requirements. Id. (emphasis added).

IV. Scope of Proposed Rule

    The scope of this proposed rulemaking is limited to air emissions
from animal waste (including decomposing animal waste) at a farm. The
Agency proposes to add this reporting exemption to the EPCRA section
304 emergency release notification regulations as implemented in 40 CFR
part 355, subpart C, entitled ``Emergency Release Notification.'' The
scope of the proposed rulemaking stems from existing requirements under
EPCRA section 304(a)(2) and under CERCLA section 103(e), as amended,
and is tied to the nature or manner of these releases rather than to a
specific substance. In other words, the Agency is not proposing to
exempt substances typically associated with animal waste (such as
ammonia or hydrogen sulfide) from reporting. Rather, this proposal
codifies EPA's interpretation that air emissions from animal waste at
farms are not subject to EPCRA section 304 release reporting by
explicitly exempting releases from animal waste into the air at farms
from reporting. Thus, the Agency is proposing to exclude all releases
to the air from animal waste at a farm from reporting under EPCRA
section 304.
    The proposed rulemaking does not apply to releases of substances
from animal waste into non-air environmental media, nor to releases
into the air from sources other than animal waste or decomposing animal
waste at a farm. For example, a release from animal waste into water
(e.g., a lagoon breach) or a release from an anhydrous ammonia storage
tank into the air might trigger reporting requirements if the release
exceeds the applicable reportable quantities.
    This proposed exemption would be added to those currently listed in
the EPCRA regulations codified at 40 CFR 355.31, entitled ``What types
of releases are exempt from the emergency release notification
requirements of this subpart?'' To delineate the scope of this proposed
exemption, EPA is also proposing to amend the definition section of the
EPCRA regulations at 40 CFR 355.61 to add definitions of ``animal
waste'' and ``farm'' that are consistent with CERCLA section 103(e). By
proposing to add a reporting exemption for air releases from animal
waste at farms to the EPCRA emergency release notification regulations,
EPA is not reopening or proposing revisions to the existing reporting
exemptions codified in 40 CFR 355.31, nor will EPA consider or respond
to comments related to the existing reporting exemptions. Comments
received on the existing reporting exemptions will be outside the scope
of this proposed action.

V. Relationship of Waterkeeper Alliance v. EPA to This Proposed Rule

    In 2008, EPA issued an administrative reporting exemption for air
releases from animal waste at farms (73 FR 76948, December 18, 2008).
Specifically, the rule exempted all farms from CERCLA's reporting
requirements for air releases of any hazardous substance from animal
waste. Under EPCRA, the 2008 rule exempted reporting of such releases
if the farm had fewer animals than a large concentrated animal feeding
operation, as defined by the Clean Water Act. The 2008 administrative
reporting exemption was ultimately vacated by the U.S. Court of Appeals
for the District of Columbia Circuit in Waterkeeper Alliance v. EPA,
853 F.3d 527 (D.C. Cir. 2017). In vacating the rule, the court found
that the Agency could not rely on general rulemaking authority or a de
minimis exception to issue an administrative reporting exemption for
this category of releases, particularly where the Agency had failed to
identify any statutory ambiguity as the basis for its interpretation of
the reporting requirements.
    This proposal to amend the EPCRA section 304 release notification
regulations to exempt air emissions from animal waste at farms is not
constrained by the D.C. Circuit's decision in Waterkeeper. In contrast
to the 2008 rule, this proposed rulemaking is not an administrative
reporting exemption stemming from EPA's general rulemaking authority.
This proposal is instead rooted in EPCRA section 304 and its
relationship with CERCLA section 103 and as informed by

EPCRA section 304's statutory text, framework and legislative history.

VI. Proposed Revisions to 40 CFR Part 355

A. Exemption for Air Emissions From Animal Waste at Farms

    For the reasons stated throughout this preamble, EPA is proposing
to amend the EPCRA section 304 release notification regulations to
exempt air emissions from animal waste (including decomposing animal
waste) at a farm from reporting. Currently, the regulations at 40 CFR
355.31 list the releases that are exempt from reporting under EPCRA
section 304, including the exemptions adopted from CERCLA through prior
rulemakings. The Agency is proposing to amend 40 CFR 355.31 by adding a
reporting exemption for air emissions from animal waste at farms. EPA
seeks comment on this proposed revision.

B. Definitions

    EPA is proposing to add the definitions of ``animal waste'' and
``farm'' applicable to CERCLA section 103(e) to the definition section
of the EPCRA regulations codified at 40 CFR 355.61. EPA requests
comment on adding these definitions to 40 CFR 355.61.

VII. Statutory and Executive Orders Reviews

    Additional information about these statutes and Executive Orders
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review

    This action is a significant regulatory action that was submitted
to the Office of Management and Budget (OMB) for review. Any changes
made in response to OMB recommendations have been documented in the
docket.

B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs

    This action is not an Executive Order 13771 regulatory action
because the proposed rule would not result in additional costs.

C. Paperwork Reduction Act (PRA)

    This action does not impose any new information collection burden
under the PRA. The Agency is proposing to codify a provision exempting
farms from reporting air releases from animal waste under EPCRA section
304 release notification regulations.

D. Regulatory Flexibility Act (RFA)

    I certify that this action would not have a significant economic
impact on a substantial number of small entities under the RFA. In
making this determination, the impact of concern is any significant
adverse economic impact on small entities. An agency may certify that a
rule will not have a significant economic impact on a substantial
number of small entities if the rule relieves regulatory burden, has no
net burden or otherwise has a positive economic effect on the small
entities subject to the rule. Consistent with the Agency's
interpretation that air emissions from animal waste at farms are not
subject to EPCRA section 304 release reporting, the proposed rule
explicitly exempts these types of releases from EPCRA reporting and
would not result in additional costs.

E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any state,
local or tribal governments or the private sector. The Agency is
proposing to amend the EPCRA section 304 release notification
regulations to add the reporting exemption for air emissions from
animal waste at farms provided in CERCLA section 103(e), as amended.

F. Executive Order 13132: Federalism

    This action does not have federalism implications. It would not
have substantial direct effects on the states, on the relationship
between the national government and the states, or on the distribution
of power and responsibilities among the various levels of government.

G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    This action does not have tribal implications as specified in
Executive Order 13175. The EPA is proposing to amend the EPCRA section
304 release notification regulations to add the reporting exemption for
air emissions from animal waste at farms provided in CERCLA section
103(e), as amended. Thus, Executive Order 13175 does not apply to this
action.

H. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of covered regulatory action in section 2-
202 of the Executive Order. This action is not subject to Executive
Order 13045 because it does not pose an environmental health risk or
safety risk. This proposed rule is intended to maintain consistency
between EPCRA section 304 and CERCLA section 103(a) emergency release
notification requirements by exempting reporting of air emissions from
animal waste at farms.

I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use

    This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution or use of energy. The EPA is proposing to amend the EPCRA
section 304 release notification regulations to add the reporting
exemption for air emissions from animal waste at farms provided in
CERCLA section 103(e), as amended.

J. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    The EPA believes that this action is not subject to Executive Order
12898 (59 FR 7629, February 16, 1994) because it does not establish an
environmental health or safety standard. This proposed rule is intended
to maintain consistency between EPCRA section 304 and CERCLA section
103(a) emergency release notification requirements by exempting
reporting of air emissions from animal waste at farms under EPCRA.

List of Subjects in 40 CFR Part 355

    Environmental protection, Chemicals, Disaster assistance, Hazardous
substances, Hazardous waste, Natural resources, Penalties, Reporting
and recordkeeping requirements, Superfund.

    Dated: October 30, 2018.
Andrew R. Wheeler,
Acting Administrator

    For the reasons set forth in the preamble, EPA proposes to amend 40
CFR part 355 as follows:

PART 355--EMERGENCY PLANNING AND NOTIFICATION

0
1. The authority citation for part 355 continues to read as follows:

    Authority: Sections 302, 303, 304, 325, 327, 328, and 329 of the
Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA)
(42 U.S.C. 11002, 11003, 11004, 11045, 11047, 11048, and 11049).

0
2. Amend Sec.  355.31 by adding paragraph (g) to read as follows:

Sec.  355.31  What types of releases are exempt from the emergency
release notification requirements of this subpart?

* * * * *
    (g) Air emissions from animal waste (including decomposing animal
waste) at a farm.
0
3. Amend Sec.  355.61 by adding in alphabetical order the definitions
``Animal waste'' and ``Farm'' to read as follows:

Sec.  355.61  How are key words in this part defined?

    Animal waste means feces, urine, or other excrement, digestive
emission, urea, or similar substances emitted by animals (including any
form of livestock, poultry, or fish). This term includes animal waste
that is mixed or commingled with bedding, compost, feed, soil, or any
other material typically found with such waste.
* * * * *
    Farm means a site or area (including associated structures) that--
    (1) Is used for--
    (i) The production of a crop; or
    (ii) The raising or selling of animals (including any form of
livestock, poultry, or fish); and
    (2) Under normal conditions, produces during a farm year any
agricultural products with a total value equal to not less than $1,000.
* * * * *
[FR Doc. 2018-24821 Filed 11-13-18; 8:45 am]
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[Federal Register Volume 76, Number 35 (Tuesday, February 22, 2011)]
[Notices]
[Pages 9772-9774]
[FR Doc No: 2011-3866]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-R09-RCRA-2011-0103; FRL-9269-3]

Adequacy of Arizona Municipal Solid Waste Landfill Permit Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of Tentative Determination of Adequacy and Opportunity
to Comment.

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SUMMARY: The Environmental Protection Agency Region IX is proposing to
approve a modification to Arizona's municipal solid waste landfill
(MSWLF) permit program to allow the State to issue research,
development, and demonstration (RD&D) permits for new and existing
MSWLF units and lateral expansions. The modification will allow the
Director of the approved State program to provide a variance from
certain MSWLF criteria, provided that the MSWLF owner/operator
demonstrates that compliance with the RD&D permit will not increase
risk to human health and the environment. The Director may provide a
variance from existing requirements of MSWLF criteria for run-on
control systems, liquids restrictions, and final cover. EPA is seeking
public comment on its tentative determination of adequacy of Arizona's
RD&D modification to its MSWLF permit program.

DATES: Comments must be received on or before April 25, 2011. If
sufficient public interest is expressed, EPA will hold a public hearing
on April 25, 2011 at 4 p.m. in Room 145, Arizona Department of
Environmental Quality, 1110 West Washington Street, Phoenix, Arizona.
If by April 11, 2011, EPA does not receive sufficient public interest
for a public hearing, EPA may cancel the public hearing with no further
notice. If

you are interested in attending the public hearing, contact Karen Ueno
at<PHONE_NUMBER> to verify that a hearing will be held.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
RCRA-2011-0103 by one of the following methods:
     http://www.regulations.gov: Follow the on-line
instructions for submitting comments.
     E-mail<EMAIL_ADDRESS>     Fax:<PHONE_NUMBER>.
     Mail: Karen Ueno (WST-7), Environmental Protection Agency
Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901.
     Hand Delivery: Environmental Protection Agency Region IX,
75 Hawthorne Street, San Francisco, CA 94105-3901. Such deliveries are
only accepted during the Docket's normal hours of operation, and
special arrangements should be made for deliveries of boxed
information.
    Instructions: Direct your comments to Docket ID No. EPA-R09-RCRA-
2011-0103. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other materials,
such as the State's prior applications for MSWLF permit program
approval, are available only in hard copy. Publicly available docket
materials are available either electronically in http://www.regulations.gov or in hard copy at the Environmental Protection
Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901.
This Docket facility is open from 9 a.m. to 4 p.m., Monday through
Friday, excluding legal holidays. It is located in a secured building.
To review docket materials at the Docket facility, it is recommended
that the public make an appointment by calling the Docket facility at
(415) 947-4406 during normal business hours.

FOR FURTHER INFORMATION CONTACT: Karen Ueno, Waste Management Division,
WST-7, Environmental Protection Agency Region IX, 75 Hawthorne Street,
San Francisco, CA 94105-3901; telephone number:<PHONE_NUMBER>; fax
number:<PHONE_NUMBER>; e-mail address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. General Information

A. Background

    On March 22, 2004, EPA issued a final rule amending the municipal
solid waste landfill criteria at 40 CFR 258.4 to allow for RD&D
permits. (69 FR 13242). This rule allows for variances from specified
criteria for a limited period of time. Specifically, the rule allows
the Director of an approved State to issue a time-limited RD&D permit
for a new MSWLF unit, existing MSWLF unit, or lateral expansion, for
which the owner or operator proposes to use innovative and new methods
which vary from either or both of the following: (1) The run-on control
systems at 40 CFR 258.26, and/or (2) the liquids restrictions at 40 CFR
258.28(a), provided that the MSWLF unit has a leachate collection
system designed and constructed to maintain less than a 30-cm depth of
leachate on the liner. The rule also allows the Director of an approved
State to issue a time-limited RD&D permit for which the owner or
operator proposes to use innovative and new methods that vary from the
final cover criteria at 40 CFR 258.60(a)(1) and (2), and (b)(1),
provided that the owner or operator demonstrates that the alternative
cover system will not contaminate groundwater or surface water, or
cause leachate depth on the liner to exceed 30 cm. An RD&D permit
cannot exceed three years and a renewal of an RD&D permit cannot exceed
three years. Although multiple renewals of an RD&D permit can be
issued, the total term for an RD&D permit including renewals cannot
exceed twelve years.
    RD&D permits are only available in States with approved MSWLF
permit programs that have been modified to incorporate the RD&D permit
authority. Although a State is not required to seek approval for the
RD&D permit provision, a State must obtain EPA approval before it may
issue such a permit. Requirements for State program determination of
adequacy and approval procedures are contained in 40 CFR Part 239.
    In 1994, EPA Region IX approved the State of Arizona's municipal
solid waste landfill (MSWLF) permit program pursuant to Subtitle D of
the Federal Resource Conservation and Recovery Act (RCRA). With its
application, dated June 28, 2010, as updated on January 26, 2011, the
State of Arizona is seeking EPA approval for a modification to the
State's existing MSWLF permit program to include RD&D permits.

II. EPA's Action

A. Tentative Determination

    After completing a thorough review, EPA is proposing to tentatively
approve Arizona's RD&D permit program modification. Arizona has
lawfully promulgated and fully enacted regulations for the RD&D permit
program, and these regulations are adequate to ensure compliance with
the Federal criteria at 40 CFR 258.4. In conformance with the Federal
regulations, and in addition to Arizona-specific requirements, an owner
or operator is required to maintain less than a 30-cm depth of leachate
on liner and demonstrate that compliance with the RD&D permit will not
increase risk to human heath and the environment over compliance with a
standard MSWLF permit.
    Following the close of the public comment period and in
consideration of comments received, EPA will issue a final
determination. If approved, Arizona will be able to issue variances for
run-on control systems, liquid restrictions, and final cover criteria
to allow for innovative and new methods, such as bioreactor landfills.

B. Submitting Comments on EPA's Tentative Determination

    Tips for Preparing Your Comments. When submitting comments,
remember to:
     Identify the rulemaking by docket number and other
identifying

information (subject heading, Federal Register date and page number).
     Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
     Describe any assumptions and provide any technical
information and/or data that you used.
     If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
     Provide specific examples to illustrate your concerns, and
suggest alternatives.
     Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
     Make sure to submit your comments by the comment period
deadline identified.
    Submitting Confidential Business Information (CBI). Do not submit
this information to EPA through http://www.regulations.gov or e-mail.
Clearly mark the part or all of the information that you claim to be
CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark
the outside of the disk or CD-ROM as CBI and then identify
electronically within the disk or CD-ROM the specific information that
is claimed as CBI. In addition to one complete version of the comment
that includes information claimed as CBI, a copy of the comment that
does not contain the information claimed as CBI must be submitted for
inclusion in the public docket. Information so marked will not be
disclosed except in accordance with procedures set forth in 40 CFR Part
2.
    Docket Copying Costs. Copying arrangements will be made through the
Docket facility and billed directly to the recipient. Copying costs may
be waived depending on the total number of pages copied.

    Authority: Sections 2002, 4005, and 4010(c) of the Solid Waste
Disposal Act, as amended, 42 U.S.C. 6912, 6945, and 6949(a).
Delegation 8-46. State/Tribal Permit Programs for Municipal Solid
Waste Landfills.

    Dated: February 11, 2011.
Jared Blumenfeld,
Regional Administrator, Region IX.
[FR Doc. 2011-3866 Filed 2-18-11; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register: September 26, 2006 (Volume 71, Number 186)]
[Notices]
[Page 56143-56144]
[DOCID:fr26se06-67]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

Notice of Application Accepted for Filing and Soliciting Motions
To Intervene, Protests, and Comments

September 19, 2006.
    Take notice that the following hydroelectric application has been
filed with the Commission and is available for public inspection:
    a. Type of Application: Preliminary Permit.
    b. Project No.: 12730-000.
    c. Date filed: August 28, 2006.
    d. Applicant: Natural Currents Energy Services, LLC.
    e. Name of Project: Knik Arm Tidal Power Project.
    f. Location: The project would be located in the Knik Arm west and
north of Cairn Point, and east and north of Port MacKenzie in Anchorage
and the Munatauska-Susitna Borough, Alaska.
    g. Filed Pursuant to: Federal Power Act, 16 U.S.C. Sec. Sec.
791(a)-825(r).
    h. Applicant Contacts: Mr. Roger Bason, Natural Currents Energy
Services, LLC, 24 Roxanne Boulevard, Highland, NY 12528, phone: (845)
691-4008.
    i. FERC Contact: Robert Bell,<PHONE_NUMBER>.
    j. Deadline for filing comments, protests, and motions to
intervene: 60 days from the issuance date of this notice.
    The Commission's Rules of Practice and Procedure require all
intervenors filing documents with the Commission to serve a copy of
that document on each person in the official service list for the
project. Further, if an intervenor files comments or documents with the
Commission relating to the merits of an issue that may affect the
responsibilities of a particular resource agency, they must also serve
a copy of the document on that resource agency.
    k. Description of Project: The proposed project would consist of:
(1) Proposed tidal in-stream energy conversion generating units having,
a total installed capacity 750 kilowatts, and (2) a proposed
transmission line. The proposed project would have an

estimated annual generation of 4,380 megawatt-hours and would be sold
to a local utility.
    l. Locations of Application: A copy of the application is available
for inspection and reproduction at the Commission in the Public
Reference Room, located at 888 First Street, NE., Room 2A, Washington,
DC 20426, or by calling<PHONE_NUMBER>. This filing may also be viewed
on the Commission's Web site at http://www.ferc.gov using the

``eLibrary'' link. Enter the docket number excluding the last three
digits in the docket number field to access the document. For
assistance, call toll-free 1-866-208-3676 or e-mail
<EMAIL_ADDRESS>For TTY, call<PHONE_NUMBER>. A copy is

also available for inspection and reproduction at the address in item h
above.
    m. Individuals desiring to be included on the Commission's mailing
list should so indicate by writing to the Secretary of the Commission.
    n. Competing Preliminary Permit: Anyone desiring to file a
competing application for preliminary permit for a proposed project
must submit the competing application itself, or a notice of intent to
file such an application, to the Commission on or before the specified
comment date for the particular application (see 18 CFR 4.36).
Submission of a timely notice of intent allows an interested person to
file the competing preliminary permit application no later than 30 days
after the specified comment date for the particular application. A
competing preliminary permit application must conform with 18 CFR
4.30(b) and 4.36.
    o. Competing Development Application: Any qualified development
applicant desiring to file a competing development application must
submit to the Commission, on or before a specified comment date for the
particular application, either a competing development application or a
notice of intent to file such an application. Submission of a timely
notice of intent to file a development application allows an interested
person to file the competing application no later than 120 days after
the specified comment date for the particular application. A competing
license application must conform with 18 CFR 4.30(b) and 4.36.
    p. Notice of Intent: A notice of intent must specify the exact
name, business address, and telephone number of the prospective
applicant, and must include an unequivocal statement of intent to
submit, if such an application may be filed, either a preliminary
permit application or a development application (specify which type of
application). A notice of intent must be served on the applicant(s)
named in this public notice.
    q. Proposed Scope of Studies under Permit: A preliminary permit, if
issued, does not authorize construction. The term of the proposed
preliminary permit would be 36 months. The work proposed under the
preliminary permit would include economic analysis, preparation of
preliminary engineering plans, and a study of environmental impacts.
Based on the results of these studies, the Applicant would decide
whether to proceed with the preparation of a development application to
construct and operate the project.
    r. Comments, Protests, or Motions to Intervene: Anyone may submit
comments, a protest, or a motion to intervene in accordance with the
requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211,
.214. In determining the appropriate action to take, the Commission
will consider all protests or other comments filed, but only those who
file a motion to intervene in accordance with the Commission's Rules
may become a party to the proceeding. Any comments, protests, or
motions to intervene must be received on or before the specified
comment date for the particular application.
    Comments, protests and interventions may be filed electronically
via the Internet in lieu of paper; see 18 CFR 385.2001 (a)(1)(iii) and
the instructions on the Commission's Web site under ``e-filing'' link.
The Commission strongly encourages electronic filing.
    s. Filing and Service of Responsive Documents: Any filings must
bear in all capital letters the title ``COMMENTS'', ``RECOMMENDATIONS
FOR TERMS AND CONDITIONS'', ``PROTEST'',``COMPETING APPLICATION'' OR
``MOTION TO INTERVENE'', as applicable, and the Project Number of the
particular application to which the filing refers. Any of the above-
named documents must be filed by providing the original and the number
of copies provided by the Commission's regulations to: The Secretary,
Federal Energy Regulatory Commission, 888 First Street, N.E,
Washington, DC 20426. A copy of any motion to intervene must also be
served upon each representative of the Applicant specified in the
particular application.
    t. Agency Comments: Federal, State, and local agencies are invited
to file comments on the described application. A copy of the
application may be obtained by agencies directly from the Applicant. If
an agency does not file comments within the time specified for filing
comments, it will be presumed to have no comments. One copy of an
agency's comments must also be sent to the Applicant's representatives.

Magalie R. Salas,
Secretary.
[FR Doc. E6-15671 Filed 9-25-06; 8:45 am]

BILLING CODE 6717-01-P