Reportable Quantities: Removal of Caprolactam From the List of CERCLA Hazardous Substances

SUMMARY: The Environmental Protection Agency (EPA) is amending

regulations under the Comprehensive Environmental Response,

Compensation, and Liability Act of 1980, as amended, to remove

caprolactam (CAS No. 105-60-2) from the list of CERCLA hazardous

substances. CERCLA section 101(14) defines the term hazardous substance

by referring to those substances listed under several other

environmental statutes, including section 112(b) of the Clean Air Act

(CAA), as well as substances designated by EPA as hazardous under

CERCLA section 102(a). Today's action follows the removal of

caprolactam from the list of hazardous air pollutants under section

112(b)(1) of the Clean Air Act Amendments of 1990. The effect of

today's action is that caprolactam is no longer a CERCLA hazardous

substance. Persons in charge of vessels or facilities from which

caprolactam is released are no longer required to immediately notify

the National Response Center of the release under CERCLA section 103,

and are not subject to the liability provisions under CERCLA section

107. Unless EPA receives adverse written comments during the review and

comment period provided in this direct final rule, the decision to

remove caprolactam from the list of CERCLA hazardous substances will

take effect without further notice as provided in the Dates section of

this Federal Register. If EPA receives adverse comment, EPA will

withdraw this rule before its effective date by publishing a document

in the Federal Register informing the public that the rule will not

take effect.

DATES: This final rule is effective on February 16, 1999 unless the

Agency receives adverse comments by January 14, 1999. Should the Agency

receive such comments, it will publish a timely withdrawal informing

the public that this rule will not take effect.

ADDRESSES: Mail written comments referring to Docket Number (102RQ-CAP)

to Lynn Beasley, Office of Emergency and Remedial Response (5204G),

U.S. Environmental Protection Agency, 401 M Street, SW, Washington, DC

20460, Phone: (703) 603-9086. You can examine copies of public comments

and other materials supporting EPA's decision to remove caprolactam

from the Clean Air Act and CERCLA lists of hazardous substances at the

U.S. Environmental Protection Agency Superfund Docket and Document

Center, 1235 Jefferson Davis Highway (1st floor), Arlington, Virginia

22202. Docket hours are 9:00 a.m. to 4:00 p.m., Monday through Friday.

Please call (703) 603-9232 for an appointment. The public may copy a

maximum of 100 pages from any regulatory docket at no charge;

additional copies cost $0.15 per page.

FOR FURTHER INFORMATION CONTACT: For information on specific aspects of

this final rule, contact Lynn Beasley by mail at Office of Emergency

and Remedial Response (5204G), U.S. Environmental Protection Agency,

401 M Street, SW, Washington, DC 20460, by phone at (703) 603-9086, or

by Internet e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

Outline of Today's Rule

I. Authority

II. Background

III. Administrative Requirements

A. Executive Order 12866

B. Executive Order 12875

C. Executive Order 13084

D. Executive Order 13045

E. Regulatory Flexibility Act

F. Paperwork Reduction Act

G. Unfunded Mandates Reform Act

H. National Technology Transfer and Advancement Act

I. Congressional Review Act

IV. List of Subjects

I. Authority

This document is issued under the authority of section 102 of the

Comprehensive Environmental Response, Compensation, and Liability Act

of 1980, 42 U.S.C. 9602.

II. Background

Section 101(14) of CERCLA defines the term hazardous substance as

those substances listed under several other environmental statutes and

those substances designated by EPA as hazardous under CERCLA section

102(a). In particular, CERCLA section 101(14)(E) incorporates by

reference the list of hazardous air pollutants listed in section

112(b)(1) of the Clean Air Act. CERCLA section 102(a) authorizes EPA to

designate as hazardous those substances that, when released into the

environment, may present substantial danger to the public health or

welfare or the environment, and to establish the reportable quantity

for all CERCLA hazardous substances. A list of CERCLA hazardous

substances with their corresponding reportable quantities is provided

in Table 302.4 at 40 CFR part 302. CERCLA section 103 requires any

person who releases a CERCLA hazardous substance in an amount equal to

or greater than its reportable quantity to report the release

immediately to the Federal government.

In 1990, amendments to section 112(b)(1) of the Clean Air Act added

the substance caprolactam (CAS No. 105-60-2) to the list of hazardous

air pollutants. Because the CERCLA definition of hazardous substance

includes CAA hazardous air pollutants, caprolactam immediately became a

CERCLA hazardous substance. On June 12, 1995, EPA updated Table 302.4

to include caprolactam and established a reportable quantity of 5,000

pounds for the substance (see 60 FR 30926). In July 1993, EPA received

a petition to remove caprolactam from CAA section 112(b)(1). Following

a review of the petition, EPA determined that there was adequate data

on the health and environmental effects of caprolactam to indicate that

emissions, ambient concentrations, bioaccumulation, or deposition of

the substance would not cause adverse human health or environmental

effects. Based on this determination, the Agency proposed to remove

caprolactam from the list of CAA hazardous air pollutants at section

112(b)(1), and after taking comment, removed caprolactam from the list

on June 18, 1996 (see 61 FR 30816). Parties had an opportunity to

comment on the effect of removing caprolactam as a hazardous air

pollutant prior to that final rule.

Today, the Agency is taking action to remove caprolactam from the

list of CERCLA hazardous substances. The Agency does not have

independent basis upon which to retain caprolactam as a CERCLA

hazardous substance. The Agency's designation of caprolactam under

section 102(a) was based solely upon its inclusion as a hazardous

substance under section 101(14)(E) of CERCLA.

This rule will be effective February 16, 1999 without further

notice unless the Agency receives adverse comments by January 14, 1999.

If EPA receives adverse comments, the Agency will publish a notice

informing the public that the rule will not take effect prior to the

effective date. A companion rule is in the Proposed Rule section of

today's Federal Register. Should the Agency receive any adverse

comments, this final

[[Page 69167]]

rule will be withdrawn and the Agency will proceed with the proposed

rule. All public comments received will be addressed in a subsequent

final rule based on the proposed rule. EPA will not institute a second

comment period on this rule. Parties interested in commenting on this

rule should do so at this time. If no adverse comments are received,

the public is advised that this rule will be effective on February 16,

1999 and no further action will be taken on the proposed rule. In

general, adverse comments are comments that suggest that the rule

should not be adopted, that offer contrary facts or that dispute the

factual basis of the rulemaking. If you are interested in commenting

you should do so in accordance with the time frame provided in today's

Federal Register. Provide any written comments on this rule to the

address indicated in the ADDRESSES section above.

The Agency is removing caprolactam from the list of hazardous

substances through direct final rule because it does not expect any

adverse comments and as stated above, parties had an opportunity to

coment on the effect of removing caprolactam from the hazardous air

pollutant list prior to that final rule (61 FR 30816). Because

regulating caprolactam under CERCLA presents an unnecessary burden to

industry, EPA believes that the public's interest is best served by

immediately removing caprolactam from the list of CERCLA hazardous

substances.

III. Administrative Requirements

A. Executive Order 12866

Under Executive Order 12866, (58 FR 51735, October 4, 1993) the

Agency must determine whether the regulatory action is ``significant''

and therefore subject to Office of Management and Budget (OMB) review

and the requirements of the Executive Order. The Order defines

``significant regulatory action'' as one that is likely to result in a

rule that may:

(1) Have an annual effect on the economy of $100 million or more or

adversely affect in a material way the economy, a sector of the

economy, productivity, competition, jobs, the environment, public

health or safety, or State, local, or Tribal governments or

communities;

(2) Create a serious inconsistency or otherwise interfere with an

action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants,

user fees, or loan programs or the rights and obligations of recipients

thereof; or

(4) Raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

the Executive Order.

EPA has determined that this rule is not a ``significant regulatory

action'' under the terms of E.O. 12866 and is therefore not subject to

OMB review.

B. Executive Order 12875

Under Executive Order 12875, EPA may not issue a regulation that is

not required by statute and that creates a mandate upon a State, local

or tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments, or EPA consults with those governments. If EPA complies by

consulting, Executive Order 12875 requires EPA to provide to the Office

of Management and Budget a description of the extent of EPA's prior

consultation with representatives of affected State, local and tribal

governments, the nature of their concerns, copies of any written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, Executive Order 12875

requires EPA to develop an effective process permitting elected

officials and other representatives of State, local and tribal

governments ``to provide meaningful and timely input in the development

of regulatory proposals containing significant unfunded mandates.''

Today's rule does not create a mandate on State, local or tribal

governments and it does not impose any enforceable duties on these

entities. Accordingly, the requirements of Executive Order 12875 do not

apply to this rule.

C. Executive Order 13084

Under Executive Order 13084, EPA may not issue a regulation that is

not required by statute, that significantly or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments, or EPA consults with those

governments. If EPA complies by consulting, Executive Order 13084

requires EPA to provide to the Office of Management and Budget, in a

separately identified section of the preamble to the rule, a

description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

of their concerns, and a statement supporting the need to issue the

regulation. In addition, Executive Order 13084 requires EPA to develop

an effective process permitting elected officials and other

representatives of Indian tribal governments ``to provide meaningful

and timely input in the development of regulatory policies on matters

that significantly or uniquely affect their communities.'' This rule is

not subject to this Executive Order because it does not impose

substantial direct compliance cost on tribal communities and it does

not significantly or uniquely affect those communities.

D. Executive Order 13045

Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any

rule that: (1) is determined to be ``economically significant'' as

defined under E.O. 12866, and (2) concerns an environmental health or

safety risk that EPA has reason to believe may have a disproportionate

effect on children. If the regulatory action meets both criteria, the

Agency must evaluate the environmental health or safety effects of the

planned rule on children, and explain why the planned regulation is

preferable to other potentially effective and reasonably feasible

alternatives considered by the Agency. This rule is not subject to the

Executive Order because it is not economically significant as defined

in E.O. 12866, and because it does not involve decisions based on

environmental health or safety risks.

E. Regulatory Flexibility Act

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.,

as amended by the Small Business Regulatory Enforcement Fairness Act

(SBREFA) of 1996) whenever an agency is required to publish a notice of

rulemaking for any proposed or final rule, it must prepare and make

available for public comment a regulatory flexibility analysis that

describes the effect of the rule on small entities (i.e., small

businesses, small organizations, and small governmental jurisdictions).

However, no regulatory flexibility analysis is required if the head of

an agency certifies the rule will not have a significant economic

impact on a substantial number of small entities.

SBREFA amended the Regulatory Flexibility Act to require Federal

agencies to provide a statement of the factual basis for certifying

that a rule will not have a significant economic impact on a

substantial number of small entities. The following discussion explains

EPA's determination. Because the action being taken by the Agency in

today's notice reduces regulatory requirements, the Administrator

certifies pursuant to U.S.C. 605(b) that

[[Page 69168]]

this rule will not have a significant economic impact on a substantial

number of small entities. This regulation, therefore, does not require

a regulatory flexibility analysis.

F. Paperwork Reduction Act

This final rule does not contain any information collection

requirements subject to OMB review under the Paperwork Reduction Act of

1980, 44 U.S.C. 3501 et seq.

G. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public

Law 104-4, establishes requirements for Federal agencies to assess the

effects of their regulatory actions on State, local, and tribal

governments and the private sector. Under section 202 of the UMRA, EPA

generally must prepare a written statement, including a cost-benefit

analysis, for proposed and final rules with ``Federal mandates'' that

may result in expenditures to State, local, and tribal governments, in

the aggregate, or to the private sector, of $100 million or more in any

one year. Before promulgating an EPA rule for which a written statement

is needed, section 205 of the UMRA generally requires EPA to identify

and consider a reasonable number of regulatory alternatives and adopt

the least costly, most cost-effective or least burdensome alternative

that achieves the objectives of the rule. The provisions of section 205

do not apply when they are inconsistent with applicable law. Moreover,

section 205 allows EPA to adopt an alternative other than the least

costly, most cost-effective or least burdensome alternative if the

Administrator publishes with the final rule an explanation why that

alternative was not adopted.

Further, before EPA establishes any regulatory requirements that

may significantly or uniquely affect small governments, including

tribal governments, it must have developed under section 203 of the

UMRA a small government agency plan. The plan must provide for

notifying potentially affected small governments, enabling officials of

affected small governments to have meaningful and timely input in the

development of EPA regulatory proposals with significant Federal

intergovernmental mandates, and informing, educating, and advising

small governments on compliance with the regulatory requirements.

Today's rule contains no Federal mandates (under the regulatory

provisions of Title II of UMRA) for State, local, or tribal governments

or the private sector. This rule is deregulatory in nature and does not

impose any enforceable duty. Thus, today's rule is not subject to the

requirements of sections 202 and 205 of the UMRA. As to section 203,

EPA has determined that this rule contains no regulatory requirements

that might significantly or uniquely affect small governments.

H. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement

Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272)

directs EPA to use voluntary consensus standards in its regulatory

activities unless doing so would be inconsistent with applicable law or

otherwise impractical. Voluntary consensus standards are technical

standards (e.g., materials specifications, test methods, sampling

procedures, and business practices) that are developed or adopted by

voluntary consensus standards bodies. The NTTAA directs EPA to provide

Congress, through OMB, explanations when the Agency decides not to use

available and applicable voluntary consensus standards. This action

does not involve technical standards. Therefore, EPA did not consider

the use of any voluntary consensus standards.

I. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., generally

provides that before a rule may take effect, the agency promulgating

the rule must submit a rule report which includes a copy of the rule to

each House of Congress and to the Comptroller General of the United

States. EPA will submit a report containing this rule and other

required information to the U.S. Senate, the U.S. House of

Representatives, and the Comptroller General of the United States prior

to publication of the rule in the Federal Register. A Major rule cannot

take effect until 60 days after it is published in the Federal

Register. This action is not a ``major rule'' as defined by 5 U.S.C.

804(2). This rule will be effective February 16, 1999.

List of Subjects in 40 CFR Part 302

Environmental protection, Air pollution control, Chemicals,

Hazardous materials, Hazardous wastes, Intergovernmental relations,

Natural resources, Reporting and recordkeeping requirements, Superfund,

Waste treatment and disposal, Water pollution control.

Dated: December 9, 1998.

Carol Browner,

Administrator.

40 CFR Part 302 is amended as follows:

PART 302--DESIGNATION, REPORTABLE QUANTITIES, AND NOTIFICATION

1. The authority citation for Part 302 continues to read as

follows:

Authority: 42 U.S.C. 9602, 9603 and 9604; 33 U.S.C. 1321 and

1361.

Sec. 302.4 [Amended]

2. Amend Sec. 302.4 by removing the entry for ``Caprolactam'' from

Table 302.4.

[FR Doc. 98-33213 Filed 12-14-98; 8:45 am]

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