Document n63yrkK98nX5rnx4vna66jxw

JFedawi^Ba^tetar^JI/ohjl^^ 35865 OtMOTBMMT OP TimUPOWTAHOM jmmC 4Special Program 400 Seventh Street, SW.. Washington. D.C. 30MO (202) 42B-307S In tea Matter of Amandmaat of 173.202(b). Table of Assignments. FM Broadcast Station (Hlnti. Muntana) SC Docket No. *0-523, RM-3543. RM-3780. Adopted: July 25,10*3. Released: July 2*. 19*3. ** By tha Chief. Policy and Rule* Division. 1. On July 13.19*3. Capital Investments ('`CapHal") fllad a Petition for Extension. of Tina requesting that the time for responding to an Expedited Petition Mad June 28.1*83.' by KCAP Broadcasters. Inc. ("KCAP") be extended through July 37,1983. KCAP's petition was sn informal request puraeant to 1.41 of tha Commission's Rules that the Commission not accept new application* and withhold processing sn pending applications for newly swiped PM channels at Helena, Montana, until final resolution of tha captioned docket end any rule making growing out of that proceeding. 2. Capital statea that "a number of parties" la this proceeding are discusMng a settlement which could "aaeut" thaCommteaion in resolving matters raised by this proceeding. According to Capital, an extension would permit continuation of the settlement discussion. Capital further state* thit KCAP hat agreed to the request for an extension. 3. We believe it to be consistent with Commieeion policy to encourage settlements, especially in situations such as tha instant proceeding involving several competing parties. The Comniiaeion has not yet given Public Notice of Ms action in this proceeding pursuant to 11..4(b) of toe Rules. Therefore the Commission has retained jurisdiction over this proceeding. See 1 J 1.103(b) of the Commission's Rules. Accordingly, we shad provide a 30-day period from toe date of Capital's request to qjtew interested parties to submit a response to the petition of KCAP. 4. Accordingly' it is Ordered, that the date tor BKm response* to the petition of KCAP. referred to above, is August 12.11113. Federal Communications Commission. Rodsstek K. tote, Chief. Policy and Rule* Division Mass Media Bureau. iPXOoc. w-rnn niw-s ewi seiiinB cnee sris-si-u 'The Mitten wee era* pubUihed to tee MM 40 CPU Part* 171,172. and 173 (Dec**! No. HM-144C, Advance Notice) Reportable Quantity of Hazardous AOOMCV: Materials Transportation Bureau, Research and Special Programs Administration. DOT. Aenop: Advance notice of proposed rulenutkiqg.______________ BUMMA** Section 306(a) of the Comprehenaive Environmental Response. Compensation, and Liability Act (CtSlCLA) requires the Secretary of Transportation to list all "hazardous substances." as defined by that act. as "hazardous materials" under the Huxardmts Materials Transportation Act (HMTA}. By a final rale issued on March Ml 1*01 (46 PR 17736) the . Department's Materials Transportation Bureau (MTB) fulfilled this requirement, but declined to apply regulations under the HMTA to those substances that were not already subject to the Huiardoaa Materials Regulations. However. MTB indtaatea that, when the Environments! Protection Agency (EPA) excorctestf its authority under section 162(a) ofOtiflA to adjust the reportable quantities (RQe) for those subetaao**, MTB would again examine th* quastim of whether to subject them to regulation under tha HMTA. By a Nodes ofPteposed Reieuwking issued an May M 3PMI. (4BfS|R*}lPA baa proposedj|o odfuat tosRQs for many of tomCSpayi; "hacardeus substances." This AfMatne Notice of Proposed BuismqhBn discusses and solicits commertteem ieeue reieting to the applicajtMMiof regulations under the HMTA to tooae substances. OMK Comments must be received on or before October 12,1663. MMOaPmAddreM comments to: Docket* Branch. Materials Transportation Bureau. U.S. Department of Transportation. Washington, D.C. 20500. Cotoarents should identify the docket and be submitted. if possible, in five copies. The Dockets Branch is located mpuim MSI of toe Massif Building. 409 Seventh Street. SW.. Washington. D.C. 20G6Q. Office hours are 6^30 AM. to 5 p m.. Monday through Friday. POOPUOTMBt OPOmMTION CONTACT Thomas J. Qmrfton, Chtef. Standards Division. OMw of Hazardous Materials Regulation, Materials Transportation Bureiini. Dlipsittnsnt of Transportation. The Comprehensive Environmental Response, Compensation, and Liability Act of I960 (CERCLA), also known as the "Supsrfund" law, is tha major Federal legislation designed to address the need for a comprehensive system to respond to releases of hazardous substance* into the environment and to impose liability for then on responsible persona (42 USC 9001 et seq.). While a principal focus of concern under CERCLA has been releases from hazardous waste disposal facilities, the law also applies extensively to the transportation of hazardous substances. (Sea, for example, 42 USC 9B01(9)J. The comprehensiveness of CERCLA is indicated by the breadth of the definition of the term, "hazardous substance," which includes substances designated by the Environmental Protection Agency (EPAJ under six separate statutory authorities: 1. Section 311 of the Clean Water Act (CWA): 2. Section 3001 of the Solid Waste Disposal Act; 3. Section 307(a) of the CWA; 4. Section 112 of the Clean Air Act; 5. Section 7 of the Toxic Substances Control Act; and 6. Section 102 of CERCLA. In order to coordinate the implementation of CERCLA with the Department's administration of the Hazardous Materials Transportation act (HMTA), Congress adopted section 300(a) of CERCLA (42 U S C. 9656). which provides that each substance that is listed or designated as a "hazardous substance" under the Act shall be listed as e ``hazardous material" under the HMTA. Section 308(h) provides that, with certain exceptions, carriers of CERCLA "hazardous substances" shall not be held liable under the CERCLA liability scheme until after the effective date of the listing of the released substance as a "hazardous material" in accordance with section 306(a). SfTB Rogulations: At the time of the adaption ef CERCLA. a large number of CERCLA "hazardous substances" were already subject to the Department s Hazardous Materials Regulations (HMR). as developed and administered by tha DapaftaMmt's Materials Transportation Bureau (MTB). Those substances can be divided into three rntegatias RcM. substances that meet MTfi housed dreedefinitions, ROntalned iu 49 CPR Uteri 17*. are fully rtpdslsri ashezardaus matoriala. For DTH 000015420 i fSudteral Beejtetef1 / Vol. 4ft> ** a; a^, t.; raw* Rules example. cyanide, while H is s CERCLA "hazardous substance" bit^Mutt it is designated under section 907 of the CWA, is elreedy fully regulated under the HMR because it meets the hazard class definition for a Class B Poison (49 CFR173J43). Second.with regard to CERCLA "hazardous substances" that had been designated under section 311 of the CWA. these substances that were not already subject to the MB had been subjected to than by a final rule issued by MTBonMey St 1940 the purpose of which was to coordinate the administration of the HMTA with EPA'a administration of the CWA (45 FR . * 34910). The effect of that rale was that, whan such a substance is transported in a package containing a quantity of the substance which equate or exceeds the "reportable quantity" (RQ) for that substance, as determined by EPA, the shipment must conform with certain shipping paper and package marking requirements (40 Oil 173.1300). if a quantity of a hazardous substance equal to or exceeding its RQ ia releases, the release must be immediately reported (40 CFR 171.17). Thus, Cor purposes of the HMR, "hazardous substance" is defined, in effect, as a material designated bar EPA under eection 311 of theCWA, but only when R is transported in a package containing at least the ICQ of that substance. These haaardoua substances", along with thair RQ't. were iacorporated into the Hazardous Materials Table at 40 CFR 172.101. Third, with regard to CERCLA "haaardoua substances" that has been dseignatad under section 9001 of the Split? Wfffttl Act, coaunonly knOnee na tfaefiaafaiMW Cenaervation smd Recovery Act (JtCfcALU.. to" MTB teauad a final . FtiteHMTA with EPA's adtetatetoetisnof gRA(4A fR 34530). That nab incorporated IPA'a "cradle-togreve" wenifNt agutara and other raqlrem--te far me teaeapomtion of huardaue wastes into the HMR (40 CFR mm, M defined thn tarn, "hazardous wmm," |0 BMMML pWttMlW f tfa# HhSTany materiel aahfeet to the EPA BHiilwl eyW--HO Cm mm One -wyiwzwwrrew wee amanrrwtsaraOneeuppistwiiausniaralaTny mens asnnpj haiaard subject MTB Implementation ofCERCLA Section 308(0): On March 19. ISM. MTB issued a final rule, lifting ell CERCLA "hazardous substances" as "hazardous materials" under the HMTA, in accordance with section 300(a) (46 FR 17730). In issuing that rule MTB had examined the issue of whether, in addition to "listing" the substances as hazardous materials. MTB should apply the Hazardous Materials Regulations (HMR) to shipments of those materials that were not already subject to them. In section 102(b) of CERCLA, borrowing the concept of "reportable quantities" from the CWA, Congress assigned a statutory RQ of one pound to all CERCLA "haaardoua substances" (except those for which EPA hud already assigned RQa under section 311 of the CWA). Section 102(a) of CERCLA authorized ERA to set different RQs, as appropriate Therefore, in adopting the rule in accordance with section 305 of CERCLA. MTB faced the issue of whether to (swat aU CERCLA "hazardous ' as "hazardous substances" I thereby to impoea i hinninsi aaoer uod rai'lf ins suatins * ra"g mE ^^ehsuinn^eueaM^paueaU^e of package* ol GBEtCLA "hazardous aubstattcaa"eaoai to or axcaadiag the statutory RQ of oae pound. Sine* the Hate ofCBMGLA lusaffbua *ubataUM4" wnlain assay comi *aa^a^^^sea^^WrUP 'egoBfiae^i^Ap `tMiONmtee aon^waoeRe the burden wood aubatasitial.Mllldaseded not to impose bunt wipiifBhwitw* *hq* time. MIRtedfeMad. however, that it would reexatoitielteleaaa when ERA set RQe for theeubabAasMea authertnd by a ~e-wcM^tAiVjraa.P:yrnP^1j^lI^M|HJ||jlt|PylL)glpyiI. HCBIKWL|RAR:W"A^ftMlsOchVtuna section UBUastabUeh RQa Iw particular wthtemcas, Mn will dSMeSwii%fl^NauuB^w^twao^ai wr^^w |MM)BP^f^tniel^geoM^^et^infzi oa^nt sllsf^tst*isihs^ag them wtetaM* i ^hantdouM subitttEMMMt1. i|S1 to I motived petitions for racqgwidantien of the rule from the National Task Truck Carriera. lac., the AoumMo^hi Trading'Aasaciatian. and the Aimutu Muirtetinn nf Ralkeeils three aMtesud Rada aaaociutiooa reoMedtiimna^an carriera of haaafdiMOieWrtete. AS of the petitionam ohjoctad to MTBT failure to 309(b) i equal to or RQofoaa ahwa aoction exempted carriera form liability under that set ptior to the effective data of the listing required by action 300(a). Congress must have intended that carriera be given actual notice that they are transporting listed materials in order to ba subject to liability under CERCLA. and that the HMR shipping paper requirements under that Act prior to the effective date of the listing required by section 306(a). Congress must have intended that carriers be given actual notice that they are transporting listed materials in order to ba aobjact to lability under CERCLA. and that tha HMR shipping paper requirements were intended as the means for providing that notice. They argued further that it was inappropriate to subject carriers la tha liability and reporting and other requirements of CERCLA unless a means for notifying them of that fact ware established. On November 30. lOil. MTB published a denial of these petitions (45 FR SOON). MTB conchuted that, while section 305(a) of CERCLA required tha listing of CERCLA "hazardous substances" as "hazardous materials" under the HMTA. Congress had noi expressed an intent to affect the Department's bug-standing discretion under section 105 of the HMTA to determine whether, and to what extent. to regulate hasaidoua materials. MTB also restated ita position that, given the traauadaua paperwork bqr4>n that would be nquirad to provide carriers with the notice they sought, it would be inappropriate to impoae shipping paper requtiementa at that tiara, mil that, when EPA adjusted tha RQs. MTB would again examine tha issue. SPA Notice ofPiopoaed iluteme/u'ng; On May gg. 1053. EPA pubUahad a Notice of Proposed Rulemaking (NPRM) in which it propound |q airsrriat ita udwidra under auntiMi 100(b) of CEROA to adfcmlRCfa for CERCLA "hazardous aahntaaosa" (40 FIt3S52). on QQptfcs if qnnpifHx wA Owei twfahirpa wAimiiImpnr*w4ipfln*sCoDnA has prooeoud RQadtaatmenufor 387 out of substances." The i still undar evaluation by EPA, and adjustment* to them will be proposed whan the evaluations have been completed. With nurd tit those substances for whidi EPA has completed its evaluations, it proposes either to retain the RQ of one pound or to establish a new RQ of 10,100,1000. or 5000 pounds. Interests d parsons an referred to tha preamble of the NPRM adjustments and to dm proposed rule itaeif for the proposed RQs. DTH 000015421 Federal Register / Vol. 46. No. 153 / Monday, August 8, 1983 / Proposed Rules 35967 Executive Order 12291: la keeping with its commitment in issuing the rulemaking in accordance with section 306 of CERCLA, MTB is initiating the process of determining whether to incorporate EPA's adjusted RQ's into the HMR and to subject the CERCLA ` hazardous substances" to regulation as "hazardous substances" under the HMR. In making that determination, MTB is subject to the provisions of Executive Order 12281. section 2 of which provides: In promulgatum new regulation*. * * * all agencies, to the extent permitted by law. shall adhere to the following raquiramanta: (a) Admioistrative dsdsioas skill be based on adsqnats information concerning the need for sod comaquancu of proposed govsnumnt actkm: (b) Regulatory ootloo shall not ba uadsrlaeao uniosa tea potential benefit* to octely for tea rogulaHoo outweigh lbs potential costs to society; (c) Regulatory objective* shall be chosen to maximise tee net benefits to society: (d) Among alternative approaches to any given regulatory objective, the alternative involving ilia leaat not cost to society shall be (e) Agnaaiea shall set regulatory prioriUes with the *ff of tntxiinMag the aggregate oat benefits to soctety, isSfoglnto amount tea condition of particular ladeatrioe affected by ngMlaitaas, mo condition of the aaiionoi eoaaongr, rod otesr reguiaiccy antique contemplated for ten fklMiao. (41 HI 13103). Controlling Paperwork Burdems: By a final rula Isouad on March 31,1063 (48 andiSSfort (OMVt ptwuulgatod regulations undor tbs Paperwork Reduction Act of I960root Impose additions! requiremente on agoncias considering tbs issuance of regulations that wouroraquite the "collectionof information" (5 CFR flat 1320}. As braatly dlAtted tathM regulations, the term, "uilfoii Ihni of IrifareMtion" indudos Si shipping paper and package labeling requiremente under tbs HMR (5 CFR MUfoPIcUt]). Tbarefora. In coitsMuring wdrotiier to subject GBRLA "hroirorttma sebsteniMM" to those roqHpiniMa MTV ie required to comply with (two* regulations. In port thane mgulstfana provide that agencies map not impoza iafoamation coltoettoo requirements without Amt obtaining CH& approval (fi CFR I320n(nii- thowmgMiotions also provide: Tb otatsfcl OMB ipiHfowd f of liA'` itft mmt 4wil ijwarH! -#wHvy: rwMfa4ttap to the agency's function* ta comply with legal requirements and achieve program (2jN^ffilleCtion of information's, not duplicative ofinformation otherwise accessible lb the agency; end (3) The collection of information has practical utility * ` * (5 CFR 1320.4|b)|. Regulatory Alternatives: MTB has determined that the following are the principal regulatory alternatives available to it when BPA issues its final rule to adjust RQs: 1. MTB may issue a rule to incorporate all CERCLA "hazardous substances" into the Hazardous Materials Table as "hazardous substances" under the HMR. applying the RQ for each substance in effect at tfoM time (including the statutory RQ of onapound for those subetancro for which EPA has not concluded Its evaluations). 2. With regard to those CERCLA "hazardous substances" for which EPA has completed its evaluations and estabiiebstiRQe* MTB may ba issue a rule to incorporate those substances into tht Huzrdow Materials ToMe as "hazardous substances" under the HMR. but sridthoipd fiiribor action on all other CERCLA "hasanloue subotanoos" until EPA hot completed its evaluations and 3. MTB may withheld further action until EPA two completed its evaluations 4. As a variation of Alternative l, MrBmsy issue swobs rule with regard only to tMOo robstancas for which MTB pooroeoos adoQuate folbimation concornhm the need for and consequaaoro of such a rule. and for which tho potential bonsflts outweigh the potential costs. 5. As a WMltan Alternative 2, MTB may issue rosh a rule with regard only to them subotancos for which MTB peeresses adequate information concerning the noed linr and MMpMMli W 9MI 9 Iwtt* 9110 SOT which the MStmitel benefits outweigh the potentfigl casts. 6 As s vurietion of Alternative 3, MTB may issuatnuh ends with regard only to flmurolctanprofo* Whiidi MTB puswssss adequate Wormstioe conccmhmdu need for Mid cnaasqataiwib of such a rale, and for which tfm potential IwnoMs outweigh throe Hy wri.t*?Oimiil t*o*a*h*ro*im** 7. Iff! may do nothing. This would subatanceo iapilatod bp the HMR would bo dMaa-ajplhtaf'UNtatthi Bta Mroordous 9. MIfeflMVCkKBllMI to 9bd1v tht HMR Materials Table and by not adding any others. This would return DOT to its traditional role of safety regulation undor HMTA. Categories of Substances: In order to analyze thoae alternatives in accordance with E.0.12291 and 3 CFR Part 1320, MTB requites additional information regarding tho need for and consequences of adopting the EPA adjusted RQs, the associated costs and benefits, and the relative burdens and the practical utility of the various alternatives. For this purpose, CERCLA "hazardous substances" can be divided into four categories: * 1. Those which are already subject to the HMR because they fail within one or more of the hazard classes defined in 49 CFR Part 173. 2. Those which are already subject to the HMR because they have been designated under section 311 of the CWA end are. therefore, incorporated into the HMR ea "hazardous substances." 3. Those which are already subject to the HMR because they have been derignatad undor section 3001 of RCRA and ore. thsrefore, incorporated into the HMR as "hazardous wastes."* 4. Those which am not currently subject to the HMR. With regard to Category 1 substances, tho Impact of tbs adoption of RQs under tho regulatory alternatives generally appears to bo relatively minor because most of this# materials are already fully ragtdatad under the HMR. The principal change would be that shipping papers would bo required to display "RQ" end caftaia other information (49 CFR 172203(c)). However. there may ba important exception to this generaHaotinn For example, materials claaaHM asORM-A under the HMR am subject to regulation only when trsmpMlRi on aircraft and/or vassals unless they am hazardous wastes in whtah am they am ntplated by all motfoo. Pwipation Of throe- materials as "ItasttodNNte anbotenets" wW the HMB would subject them to regulation when wrotgrotart by odwr mottos, as wuB. For aaampfo. tetrachkiroBthylene, under dm tMtaaanQftM-A is a CKBCLA "hazuidoro aubstanca" baaatna it la droignatod under both ' Itan Is sastaambi* tMuriop aoMMS te*M 0i ` vaMUuacyaal'faie in u hut Mte" udat unWJ far j99W^899tBB 1b Ids laudatory DTH 000015422 asBfis ggpg Federal RngUtfl* Proposed Rides section 307 of tbs CWA and section 3001 of RCRA. EPA is still assessing the effects of this substance, and has proposed retaining the statutory RQ of one pound ut least until those assessments are completed. Therefore, if MTU were to adopt that RQ, cunently unregulated shipments of tetrschloroethyiene by highway and rail in packages exceeding one pound would become subject to die HMR. With regard to Category 2 substances, the adoption of RQs under the regulatory alternatives would only affect substances for which EPA ten adjusted the RQ from that which had been assigned under section 311 of the CWA. For example, EPA has proposed to adjust tin RQ for pentachloruphenol, a common wood preservative, from ten pounds to (me pound. Thus, if pentaddorophenol were frequently transported in packages containing more that one pound, tell lese than ten pounds, of the substance. MTB's adoption of an adjusted RQ of one pound could result in a significant inareaae to the number ofshipments subject to the HMR. On the otherhand, EPA baa proposed to increase the RQs for seme of theca substances, which might result hi a reduction ef the number of shipments subject to the HMR. It should be noted that, as discussed above, the anginal purpose of MTB's adopting RQ'a for Amu materials waa to copcdiiata its pragmas with that of EPA, and that thetpugWeeimidion laager be MtUedJ K2T warato retain the culmnt RQs after EPA has dumped thpm. With regard to Category 3 aubstancas. as discussed above, only shipmanls of hazardous wade that cm subject to EfWsinani* BSut-Thetafore. lipSSi iiiMiiiiiMBif Therefore, under the regulatory alternatives, ail shipments of diethyl phthalate in packages exceeding 100 pounds would become subject to the HMR. Questions to be Addressed by Comments; The above discussion of the potential impacts of the regulatory alternatives is based on preliminary observations. Ey this advance notice, Mils solicits more specific information from the public in order to conduct the analyses required by E.0.12291 and S CFRPnrt 1320. Specifically, MTB solicits responses to the following questions: 1. What is the anticipated frequency of shipments that am not currently subject to the HMR. but that would become subject to them if MTB were to adopt RQs under the regulatory alternatives? 2. Whet new cost would the adoption of RQs under Em regulatory alternatives impose onshippers and camese of CVtCLA `iMXwfciuft iiihiltnrwir 3. What is Ihs anticipated frequency of ral--a--from these shipments Jut would excued ths RQ. end whet is the UkehomM 4. WhntsmWe sunidpoiod anvil 6. With regard to these raJoaeee. whet is the lihehood that cleen-up would occur ev* if him dW not adept one of Uw ngufniosy alternatives? i. Wtettwqidd be the effect of the adaption.# RQs under the regulatory alternattvee on intsrneti<ml eommeroe? 7. What (Mould be the afflicts of the adoption of RQs under (he nmulatory altanseteme an the potential nr liability *nd on the iMwebjlity ofsMppen and (wrier* cddlRCLA "hazardous 8. Sonne OBftCLA "hazardous substames" am hazardous only in tnrampU wipi lead Mill otlfikiivv flutAftt am <hjiiiid m ontfSBAmhttlinftfti. that iiw hmirrimii oniv whM.thfiv SKbm9vm^sssstss*^mWW*We ["Wmfl;sIjkTmwWampi gjitteH IMfUafafts 1hTMM!L diminish their effectivenees as haaerd warnings? 10. Wbat other factors should MTB consider in detarmimiug the need for and consequences of the regulatory alternatives? 11. What other factors should MTB consider in determining the potential benefits and the potential coals lo society of the regulatory alternatives? 12. Whal other information would be of value to MTB in conducting the analyses required by E.0.12291? 13. To assist MTB in fulfilling the requirement of 5 CFR Part 1320, which of the regulatory alternatives, necessary for the proper performance of the agency's function, would be the least 14. What ie the "prsclicel utilily". as that term ie defined at 3 OPR Part 1320.7(q), of the "collection of information" that would result from the adoption of RQs under the regulatory alternatives? List of Subjects 48 CFR Part 171 Experts, Hazardous matenuis transportation. Imports. Reporting and raonwihsspmg nquireuiuati. Waste MtetEMMIt and disposal. 48 CFR Part 172 ' Hazardous materials transportation. Labeling, Packaging and containers, Waste treatment and disposal. 48 CFR Part 173 Haaerdous materials transportation. Packaging and oonteiners. Issued In Washington, O.C. oa July 28. lttU AkmL Retorts, AiSQCMW Dimeterfor Hazardous Materials HegeJoitOA Materials Transportation Bureau. tea EPA In meponee teBPA's Notice of Proposed Rulemaking (NfRMj. entitled. "Notification requirements; Reportable QueeMfty Adteshfnenia" (48FR 23SS2), the tltelriiite Transportation Bureau (MTE) of the U.S. Department of Transportation submits the billowing sebstnueas, ofRQe wumfwnumnmUwds| Ii ii|ipviiy iiiwMBifii lo knfMust on inn ote oat iiptbnotent*. snRQfdr ?Si(2Sl?s^ iatSppMhatq Slit lb* At the outset. MTB notes end concurs with Rfifito expressed intention "to work with DOT tetfviiop a cocdinated (sic) and integrated set of regulations so that iera ofhazardous 1 subject te only one l (48 PR 38180). This rcoawmit fully wifi the longhrfncdpfin!Zfo* f both aaeUjldyoTa tuo,w^or. DTH OOOO 5BFadanl Restates / VoL 4a. No. 153 / Monday, August a, 1888 / -- Rules responsibility to ensure that and gaps do not occur. In accordance with this policy. MTB haa previously expressed its commitment to examino the question of whether to subject CERCLA "hazardous substances** to additional regulation under the Hazardous Materials Transportation Act (HMTA) at such time as EPA exercises Us authority under section 108(a) of CERCLA to adjust the reportable miantitiOB (RQs) for those eubetanaei. The enHoaed Advance Notice of Propoaad Ruiemakint (ANVRM) is MUTs initial step in conducting due examination, and any comments that EPA msyltave on that ANPRM will be greatly appreciated and fully considered. Very briefly, the primary purpose of the ANPRM ie to solicit information necessary to conduct the analyses that MTB is required to perforat by Executive Ordor (HQ.) 122M before issuing to CERCLA k>kiiAfi6iii iiibiliiMiiM (0 ftUditiiocuil regulation under the HMTA. As EVA's connector, (CF. Inc,, haa obaaiwad. "the extanslon of dm HMR (MTB'. Hazardous Materisds Regulations) to CERCLA hazardous subatancss is a discretionary action, and. , . the effects of that extension (such aa shipping paparcoete) should be . attributed to DOTa regulatory action, not EPA's edtasUnant regulation." s While Mrffufly concurs with this conclusion, ainca EPA haa dm authority under CERCLA to designate "hazardous substances" and to aatabltsh RQa lot thaas, EPA's notions, in aflect astahliah the startling poiat for MTB*s considerations. Therefore, thoaa actions clearly have a very aubstantial Influence on the ultimate effect of any action by MTB to subject CERCLA "hasserdoua substances" to additional regulation under the HMR. For example, if a given CERCLA iMsardoue eubetaaoe." is frequently trnnapertad in package. containing IS pounds of tan substance. EPA's determination that dm RQ for that substance ebonhl be IB panada. rather then 100 pounda, would result in many more shipments of the substance, being subject to the HMR if MTB were to extend the applicability of theMMR to that substance. Therefore, although E.O. 12291 properly places an MTB dm ultimate raapoiwibiUty^omcu^B the An exoettent exmnpla of BPA'a apparent iiiiniidsmiwi of these impacts it the treatment in the NPRM of metals that ntf CERCLA "hazardous substances" because they am designated a* "toxic pollutants" under section 307 of the CWA Recognizing that thane metals (such ae load, copper and line) am hazardous only In the form of very email particles, SPA stated taut "no reporting of releases of massive form* of these substances is required if the diaitteter of die pieces of the substance wtotsodia equal to or exceed! HO micrometer.1' (41 PR 23001). Tide Jiasituiioq of dm form of the aubatanees arekaa it muefa i substamme to regtilation under the HMR,' large ourabere oTtanocuoue sbipmenls containing these metals in other forms would got be fubpfft to ragtiletinn Stiittlitf UMitetioM Bipy slipo'bc appropriate for other CERCLA "hazardous aabataaoas." For example, asbestos, --Hutftt demonstrably hazardous in some forma, in a commonly used industrial metarial that is frequantly transported an a part of products that posa Little riak. such sabrake linings fln^ asbestos-cement pipes. To subject shipments of these products to the HMR because they contain e quentity equal to or greater than the RQ for asbestos (curren|ty one pound) would very probably not be cost-effective. However, tf ERA were to limit dm forms of asbestos that am subject to the RQ to those forme that present foe hazards for which --bastes was designated a ' CERCLA "hamudous substance" (e.g., unbonded pa-das). application for foe HMR only ta those forme of asbestos would be mom feasible. of the "Adfotieemlcitterta oonewlemd -but not cuimntly seed for adfoeting reportable quantities." Pferst EVA stales, "until passageof GBICLA, net all fafoeeee of CERCLA hmoiricmi sabataacae have been uniformly subject to DO requirements" (4g FR23M7). Hie aialement imphen that, ime paasage of CERCLA. aB misuses of thorn substuimus have been uniformly subject to DOT rspeetatg mquirenwnts As discussed in the ancleeed ANFttM, and in the rulemaking actions cited therein, DOT had net extended spplicatioa of foe HMR. tiyMfog foe reporting i CERCLA "hazardous suhatanaae'* foat warn not already su*b3 ajerncwt tsof, IthoeWm-l disagrees with EPA's sugnsstten that "Release Potential" nrignt been appropriate criterion on which to base adjustments to RQs. Aa EPA states etaewere in the NPRM: ** ststaUuy flGteMflb smI CHiMcfal oomlete wtfo lhm*t^Myofhiamr^or Aeo/m and m-tee amtfata anwiraemaW (so The Ukeiibood of release of a substance fat irrelevant to fossa considerations; foe "possibility of hazard or barm" and the "potential Amainto public health and welfare and foe environment" caused by a given release are the same whether the releaee was likely or unlttwty to occur. Therefore, the need for SPA to bo notified and to undertake response is likewise the same. With regard to foe specific factors identified by EPA in that section, MTB ftlpNI ttlAl `Transportation Mods" ar^Badmging and Containerization" might bo appropriate factors lor canaidefstioa in detarmfauag the lihirlihaort of ff*#etet With repaid to traaapMdtatkmmade, the NPRM etatee, "If some hazardoua sabstances are generally shipped by a transpartaltan mode that expasas them to a particularly Ugh riah of targe releases, the RQawy be reduced. . (--1*21--7]. It is. ofamine, foe purpeee of foe HMR to assure that all hazardoua materials am transported, by whatever mode, fat a manner foat doaa not poet an unreasonable risk of release. Generally, each mode poaes equivalent risks of releaee. In transportation between two specific points ta ssay bo possible to detemine that one mods presents a lower risk foaaenofoer. hot foat cataclusian could be established only after e dstaihd risk aaalystaand would reply "fly to foat pattteidar sitaatfam. Pbe sscampte, while a riskaaalyBis aright iemeestrsta foat. for trenspoeiati re fatware New Orieane aadHoestost bagdag would pom a tiretafolowerrtahthaatod.foat * cmfofos would obvioaeiy he absurd for traasporieSfam beta-- Denver and Phoenix. Fsether, other footers, such as condition of equipment, track, or roadway, have a much greater influence on transportation risk than does mode of With mgeed ta "pwkegjng containerization." CERCLA "hazardous substances" foat am subject to the packaging requirements of the HMR are required to bo packaged fat such a way that releasaa trill not occur during the normal course of transportation, fai the event of an accident involving properly DTH 000015424 96f79 Federal fUgiatar / Voi. 4a. No. 153 / Monday, August a, 1983 / Proposed Rules packaged materials. the type of parfcajlng will generally have little affect on tha likalibood or quantity of ralaaaa. With regard to package size. MTB agrees with EPA mat there la likely to be a cortelaUon between the size of package and the size of releaee. Aa ditcueeed previously, to the extent that EVA can ectablieh RQs so that only reteaaea from packages of a sufficient size to pose a substantial threat are subject to reporting requirements, application of the HMR will be more practicable. Again, however, the relevant concern ia the severity of the release, rather than its likelihood. |FH Ouc. HJ-ZIO* FiM S-J-W M <un| 49 CPU Parts 172,173, and 179 iDooms Ma. His-iser; Nonce No. 43-61 nOT| ltnftOtinisfltrQ4U-a`l CwaXnWwii^sriQilwOnliav of General SQg--V! Materials Transportation Bureau (MTB). Research and Special Programs Administration, DOT. ACT-- Notice of proposed rulemaking. niMMSOtri The MTB is considering amending the regulations governing the transportation of hazardous materials to incommrate therein a number of changes based oa existing exemptions which heve bean granted to individual applicants allowing them to perform particular functions in a manner that varies from that specified by the regulations. Adoption of these exemptions us rules * of gawarai applicability would provide wider aettea to the benefits of i innovations recognized t end eafe. In addition, those i would eliminate the I by the ; eliminate the need for Midday Meexemption number on' the paohsge end shipping papeifs], and. el-- the need for MTB to receive, review, docket, evaluate, and issue a renewal of dm exemption every two years. DATS: ConuitcnU must be received by October it 1903. MBMIl; Address comments to: Dockets Branch, Materials Transportation Bureau. U S. Department of Transportation. Washington, D.C. 20880. Comments should identify the docket and be subnutted in five copies. Persons wishing to receive confirmation of receipt of their comments should include a self-addressed stumped post card. The Dockets Branch is located in Room 8429 of the Naasif Building. 400 Seventh Street. SW.. Washington. D.C. Public dockets may be reviewed between Me hours of 8:30 a.m. end 5$0 p.m. Monday through Friday. TTErsn!!;i contact: Darrell L. Rainet. Chief. Exemptions and Regulations Termination Branch. Office of Hazardous Materials Regulation. Materials Transportation Bureau. Washington. D.C. 20890 (202-472-2720). gum--srranv w--non: Each of the proposed amendments described in the following table is founded upon either: (1) Actual shipping experience gained under an exemption, or (2) the data and analysis supplied in the application for an exemption. In each case the resulting level of safety being afforded Me public is considered at least equal to Ifm level of safety provided by the current regulations. These proposal* would nut significantly effect the coat of regulatory enlofcswgnt. ear would additional costs be imposed on Me private sector, consumer, or Federal. State or local governments, since these proposals would rnendy authorize the general use of shipping eberaative* previously available o only a few user* under exeesptioas. The safety record of sbipnienri under the identified examines demonstrates that signifiesig environmental impacts would not neuhfram any ofthe proposals. - Adeptien ef mi ameotoent derived from mi shieMmoxemption would obviate Mb ggad: for the exemption end effectively terndoetn it Upon such temdnadgn Ma holder of the exemption end parties thereto would be tndtviMwjty notified. Adoption of an amendment derived from en application for exemption should provide the relief sought, in which event the exemption request would be denied and the applicant so notified. In Me event the Bureau decides not to adopt any of these proposals, each pertinent application would be evaluated and acted upon In accordance with the applicable provisions of the exemption procedures in 49 CFR Pail 107. Subpart B. Consequently, persons commenting on the propopealt may wiahOo address both the proposed amendment end the exemption application. Each mode of transportation for which a particular exemption is authorized or requested is indicated in the "Nature of Exemption or Application" portion of the table below as follows: l--Motor vehicle. 2--Rail freight, 3--Cargo Vessel, 4--Cargo aircraft only, S-- Passenger-carrying aircraft. The MTB certifies that this proposed regulation will not, if promulgated, have a significant economic impact on a substantial number of smell entities. Also, because Ma proposals made in tide Notice relate to exemptions which heve already boon approved by the Materials Transportation Bureau, we have further determined that Me Notice--(1) is not "major" under Executive Order 12291; (2} is not "significant" under DOT Regulatory Policies end Procadurae {44 PR 11034; February 20,1979); (3) does not warrant preparation of a regulatory evaluation a the anticipated impact would be so minimal; HJ Will not effect not-for-profit entsupriam. or small governmental jurisdictions; and (8) does not require an environmental impact etatement under the National Environmental Policy Act (49 UAC. 4321 at aeq.). List of Subject Tenne 49 CFR Part 172 Hazardous materials transportation. Labeling, Packaging and containers. 49 CFR Part 173 Hazardous materials, transportation. Packaging end containers. 4B CFR Part 179 Railroad safety. EwapkMHo. Rf--fiffiw non* ItosuMSSn MMM Mttvi of mmrpton or floofioMon PltlMMMO tfMfldffHMM ooT-csam..... l^na. AN pal rij, 117&961W..... ........... AhONOHMO bMDMMMMI Qf MffOiyf BfOMBffO tOMl To sss sowsas* lots) a (trams a ,-a m diaa use* OMMtf com--- imMswe.. ................. yff _ ywi* jftfc am** nma ff5j^Si6i5wEi(3F(5^2^i^iIiriwS^i3S^ rSS wraranLi, i aaii a w JWiW^SBllie* Is MuW letawes l> DTH 000015425