Interim Guidance on the CERCLA Section 101(10)(H) Federally Permitted Release Definition for Certain Air Emissions

SUMMARY: The Environmental Protection Agency (EPA) is seeking comments

on its interim guidance on the CERCLA section 101(10)(H) federally

permitted release definition for certain air emissions. The interim

guidance is published as an Appendix to this notice.

DATES: Submit comments on or before February 22, 2000.

ADDRESSES: Send comments to EPA, CERCLA Federally Permitted Release

Definition, Docket Number EC-G-1999-029, Mail Code 2201-A, and mail to:

401 M Street, SW, Washington DC, 20460, or fax to: (202) 501-1011 or

email to: [email protected]. Submitters who want EPA to acknowledge

receipt of their comments must mail a self-addressed, stamped envelope.

FOR FURTHER INFORMATION: Visit the OECA Docket Web Site at www.epa.gov/

oeca/polguid/enfdock.html or contact the RCRA/UST, Superfund and EPCRA

Hotline at 1-800-424-9346 (703-412-9810 in Washington, DC area). For

general questions about this guidance, please contact Lynn Beasley at

(703) 603-9086 and for enforcement related questions, please contact

Cheryl Rose at (202) 564-4136.

SUPPLEMENTARY INFORMATION:

Purpose of this Notice

This notice publishes interim guidance on the federally permitted

release exemption to section 103 of the Comprehensive Environmental

Response, Compensation, and Liability Act of 1980 (CERCLA), as amended,

42 U.S.C. 9603 and section 304 of the Emergency Planning and Community

Right-to-Know Act (EPCRA), 42 U.S.C. 11004. The guidance responds to

specific questions raised by industry groups. It discusses EPA's

interpretation of the federally permitted release exemption as it

applies to some air emissions.

The notice also solicits public comment on the issues discussed in

the interim guidance and EPA intends to conduct a public meeting on the

guidance. EPA will revise the guidance if, after reviewing the

comments, the Agency believes that the guidance warrants modification.

CERCLA section 103 requires the person in charge of a facility or

vessel to immediately notify the National Response Center (NRC) of any

release of a hazardous substance in an amount equal to or greater than

its reportable quantity. EPCRA section 304 requires the owner or

operator of a facility to notify the State Emergency Response

Commissions (SERC) and Local Emergency Planning Committees (LEPC) of

any release of a CERCLA hazardous substance or an EPCRA designated

extremely hazardous substance (EHS) in an amount equal to or greater

than its reportable quantity. These statutes, however, do not require

notification for a ``federally permitted release'' as defined in CERCLA

section 101(10).

The attached guidance discusses the CERCLA section 101(10)(H)

notification exemption for certain air emissions. The guidance will

assist EPA regional offices, state and local emergency response and

other authorities, as well as the regulated community, to determine

whether or not a particular release meets that definition. Whether the

exemption applies to a particular release often depends upon the

language and purposes of a facility's permits and control regulations.

EPA recognizes that additional questions may arise regarding the scope

of the federally permitted release exemption, and will address those

circumstances on a case by case basis. For additional guidance on

specific questions regarding whether to report a release, the person in

charge, owner or operator should contact EPA's Office of Emergency and

Remedial Response (OERR).

The Office of Solid Waste and Emergency Response (OSWER) and the

Office of Enforcement and Compliance Assurance (OECA) jointly issue

this guidance.

Dated: December 3, 1999.

Timothy Fields, Jr.,

Assistant Administrator for Solid Waste and Emergency Response.

Dated: December 12, 1999.

Sylvia K. Lowrance,

Acting Assistant Administrator for Enforcement and Compliance

Assurance.

Appendix--Interim Guidance on the CERCLA Section 101(10)(H)

Federally Permitted Release Definition for Certain Air Emissions

Table of Contents

Summary

I. Notification Requirements: CERCLA 103/EPCRA 304

II. Federally Permitted Release: Controlled & In Compliance

III. Hazardous Air Pollutant Releases that are Controlled Under CAA

Section 112

IV. Hazardous Substance & Extremely Hazardous Substance Releases

that are Not Controlled

A. Sources that are Exempt from Clean Air Act Regulation

B. Accidents & Malfunctions

C. Start-up & Shut-down

D. Volatile Organic Compound/Ozone Controls & Particulate Matter

Controls

--VOCs as Ozone Precursors

--Particulate Matter

V. Continuous Releases

Conclusion

Summary

Section 103 of the Comprehensive Environmental Response,

Compensation, and Liability Act of 1980 (CERCLA), as amended, 42 U.S.C.

9603, requires the person in charge of a facility or vessel to

immediately report any release of a hazardous substance in an amount

equal to or greater than its reportable quantity (RQ) to the National

Response Center (NRC). Section 304 of the Emergency Planning and

Community Right to Know Act (EPCRA), 42 U.S.C. 11004, requires the

owner or operator of a facility to immediately notify the State

Emergency Response Commissions (SERC) and Local Emergency Planning

Committees (LEPC) of any release of a CERCLA hazardous substance or an

EPCRA designated extremely hazardous substance (EHS) in an amount equal

to or greater than its RQ and provide written followup notice as soon

as practicable thereafter.1 When a release is continuous and

stable in quantity and rate, the facility may submit a report on the

circumstances of the continuous release that complies with the

applicable regulations. For those releases that qualify, continuous

release reporting eliminates the burden of having to report each

release as it occurs. The immediate and continuous release

notifications provide important information for numerous activities.

They help government agencies and regulated industries to:

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\1\ This guidance refers to the CERCLA ``person in charge'' and

EPCRA ``owner or operator'' collectively as ``the facility.'' This

document does not provide a detailed discussion of the distinctions

between the two statutes, such as the different definitions of

``facility'' and reporting exemptions that may apply to one and not

the other. Each facility should review the statutes and regulations

in order to determine its obligations.

1. Respond to releases;

2. Assess future risks and cumulative effects;

3. Identify chronic problems;

4. Develop pollution prevention and pollution reduction plans; and

5. Educate local communities and the public.

CERCLA and EPCRA, however, do not require notification to the NRC,

SERC,

[[Page 71615]]

and LEPC of ``federally permitted releases,'' as defined in CERCLA

section 101(10). An air emission is a federally permitted release under

the CERCLA definition when it is subject to a permit or control

regulation that is issued under section 112, section 111, Title I part

C or Title I part D of the Clean Air Act (CAA) or under a CAA section

110 State Implementation Plan (SIP), including any schedule or waiver

granted, promulgated or approved under these sections.

This guidance document resolves some commonly asked questions

regarding the CERCLA federally permitted release exemption as it

applies to air emissions. This document does not specifically address

every possible application of the definition. A facility should use

this document as a general guide to determine whether its individual

releases of hazardous substances and EHSs, on a case by case basis, are

subject to a CAA permit or control regulation and, therefore, qualify

for the CERCLA federally permitted release exemption.

This guidance document explains why a release is generally subject

to a permit or control regulation, as defined in CERCLA section

101(10)(H), and therefore exempt from the CERCLA/EPCRA notification

requirement when the release is controlled by and in compliance with

provisions issued under CAA section 112, including limits and other

controls under that section that are technology-based and provisions

under that section that control hazardous air pollutants (HAPs)

individually or as a class of compounds.

This guidance document also explains why, in the situations

discussed herein, a release is generally not subject to a permit or

control regulation, as defined in CERCLA section 101(10)(H), and

therefore does not qualify for the CERCLA federally permitted release

exemption when the release is:

1. An unpermitted or unregulated release, including releases from

facilities that are exempt from CAA permits or control regulations,

such as grandfathered or some minor sources;

2. Caused by an accident or malfunction;

3. Released during start-up or shut-down of a facility and there is

no limit or other control on the release of the hazardous substance or

EHS during the start up or shut down period;

4. Regulated solely to address volatile organic compound

contributions to ozone ambient air quality problems; or

5. Regulated solely to address particulate matter ambient air

quality concerns.

In all of these examples, hazardous substances and EHSs are not

controlled and may be released directly to the environment without any

limits or other control requirements. These uncontrolled releases can

involve, for example, highly toxic materials like chromic acid,

mercury, methyl isocyanate or 1,3 butadiene, and may occur near

sensitive populations, such as elementary schools or senior citizen

homes. The law gives emergency response authorities and the public the

right to receive information about these hazardous releases so that

they can take steps to avoid or minimize exposure, develop responsible

emergency response planning and respond to emergencies.

I. Notification Requirements: CERCLA 103/EPCRA 304

CERCLA establishes broad federal authority to respond to releases

or threats of releases of hazardous substances from vessels and

facilities. In order to alert federal officials of potentially

dangerous releases of hazardous substances, CERCLA section 103 requires

the facility to immediately notify the National Response Center (NRC)

of any release of a hazardous substance in an amount equal to or

greater than the reportable quantity (RQ) for that substance. Section

103(a) states, in part, as follows:

Any person in charge of a vessel or an offshore or an onshore

facility shall, as soon as he has knowledge of any release (other

than a federally permitted release) of a hazardous substance from

such vessel or facility in quantities equal to or greater than those

determined pursuant to Section 9602 of this title, immediately

notify the National Response Center....

42 U.S.C. 9603(a).

This notification provides release information to the government so

that government personnel can evaluate the need for a response and

undertake any necessary action in a timely fashion. CERCLA section 104

authorizes the federal government to respond whenever there is a

release or a substantial threat of a release of a hazardous substance.

CERCLA section 101(14) defines the term ``hazardous substance'' by

reference to provisions in other environmental statutes that identify

substances as hazardous and to CERCLA section 102, which instructs the

EPA Administrator to designate additional hazardous substances, as

appropriate, when a release of such substances into the environment may

present substantial danger to the public health or welfare or the

environment. Pursuant to section 102, the Administrator also sets the

quantities for hazardous substances that, when released, require

reporting. If the Administrator has not established a quantity, section

102(b) provides for a default RQ. A table at 40 CFR section 302.4 lists

the CERCLA hazardous substances with their RQs.

The Superfund Amendments and Reauthorization Act of 1986 (SARA)

revised and extended the authorities established under CERCLA. Title

III of SARA, also known as the Emergency Planning and Community Right-

to-Know Act of 1986 (EPCRA), 42 U.S.C. 11001 et seq., established new

authorities for emergency planning and preparedness, emergency release

notification, community right-to-know reporting and toxic chemical

release reporting. One purpose of EPCRA is to provide communities and

the public with information on potential chemical hazards and to foster

state and local planning efforts to control hazardous substance

releases.

EPCRA section 304 requires the facility where a hazardous chemical

is produced, used or stored to immediately report the release of

reportable quantities of CERCLA hazardous substances to state and local

emergency planning authorities (i.e., the SERC and LEPC) for each area

that the release is likely to affect. In addition, the facility must

notify the SERC and LEPC of any release of a reportable quantity of any

EPCRA extremely hazardous substance (EHS). These substances are listed

in 40 CFR Part 355 Appendices A & B. EPCRA section 304(c) also requires

the facility, as soon as practicable after a reportable release, to

provide a written followup notice that includes information on the

release, response actions, risks and medical advice.

CERCLA section 103(f) establishes an alternative reporting scheme

for releases that are continuous and stable in quantity and rate.

CERCLA and EPCRA recognize that it is not necessary for the facility to

immediately notify the NRC, SERC and LEPC every time such a release

occurs in an amount equal to or greater than its RQ. Instead, the

facility should report these releases in compliance with EPA's

regulations at 40 CFR sections 302.8 and 355.40(a)(2)(iii).

Reporting releases of hazardous substances and EHSs to federal,

state, and local emergency planning and response authorities serves

several functions. It provides these authorities with important

information to respond to the release as quickly as possible in order

to minimize the danger to human health and the environment--in

particular to that of children, other sensitive populations and

sensitive ecosystems. The reports also alert

[[Page 71616]]

emergency planning personnel to the potential for future risks so that

local communities can work with facilities to minimize harm. Emergency

planning agencies also use the reports to assess emergency planning

needs, to identify and develop appropriate responses to acute as well

as chronic exposure and to assess cumulative effects from many

different sources in local areas. These agencies and other local

authorities may use this information to develop plans for pollution

prevention, pollution reduction, zoning and land use planning. EPCRA

also emphasizes that members of the public, including local communities

and individuals, have a right to know the types and amounts of releases

of hazardous substances and EHSs in their communities.

II. Federally Permitted Release: Controlled and In Compliance

The CERCLA section 103 and EPCRA section 304 notification

requirements do not apply to ``federally permitted releases'' of

hazardous substances, as defined in CERCLA section 101(10). The CERCLA

definition of a federally permitted release is incorporated by

reference into EPCRA and, therefore, applies to the notification

requirements of both statutes. The CERCLA section 101(10) definition of

federally permitted release lists eleven categories of releases that

are subject to permits or authorizations under enumerated provisions of

specific environmental statutes. With respect to air releases, section

101(10)(H) exempts:

any emission into the air subject to a permit or control regulation

under section 111, section 112, Title I part C, Title I part D, or

State implementation plans submitted in accordance with section 110

of the Clean Air Act (and not disapproved by the Administrator of

the Environmental Protection Agency), including any schedule or

waiver granted, promulgated, or approved under these sections[.]

CERCLA 101(10)(H); 42 U.S.C. 9601(10)(H)(internal citations omitted).

EPA administrative rulings have clarified that a release is a

federally permitted release only if it is in compliance with and

controlled by one of the CAA provisions identified in CERCLA section

101(10)(H). The EPA Environmental Appeals Board (EAB) concluded that an

air emission must be in compliance with a permit limitation in order to

qualify for the federally permitted release exemption and that a

facility must report a release of a hazardous substance that exceeds a

permit limit by the RQ or more.2 An EPA Administrative Law

Judge explained that a release is only a federally permitted release if

the regulation imposes an emission limit or otherwise controls the

release. The judge concluded that a relief valve discharge was not

controlled and, therefore not federally permitted, by a NESHAP

regulation that prohibited any discharge from relief valves on

equipment in vinyl chloride service except for an emergency relief

valve discharge.3

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\2\ The EAB's decision, In re Mobil Oil Corp., EPCRA Appeal No.

94-2, 5 EAD 490 (EAB Sept. 29, 1994), is available at the following

internet address: http://www.epa.gov/eab/alpha.htm, or by contacting

the Clerk of the Board, (202) 501-7060.

\3\ The ALJ's decision, In re Borden Chemicals & Plastics, Co.,

[CERCLA] EPCRA 003-1992 (Order Granting Partial Accelerated Decision

Concerning Liability, Feb. 18, 1993), is available by contacting the

EPA Hearing Clerk at Headquarters, (202) 260-4865, and is also

available through legal research services such as Lexis or Westlaw.

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Congress did not intend for CAA permit or regulatory provisions to

provide a loophole for facilities to avoid notifying the NRC, SERC and

LEPC of potentially dangerous releases of hazardous substances. The

Senate Report by the Committee on Environment and Public Works that

accompanied the 1980 CERCLA bill explained that ``[t]he federally

permitted release exceptions are not directed at avoiding notice, but

rather to make it clear which provisions of law apply to discharging

sources.'' Senate Rep. No. 848, 96th Cong., 2d Sess. 50 (1980).

Congress drafted the federally permitted release exemption to apply

only to releases of CERCLA hazardous substances or EPCRA EHSs that are

controlled by a CAA permit or regulation. The Senate Report explained,

``Subparagraph (H) of the definition covers several sections of the

Clean Air Act, as amended, where they result in the control of air

emissions of hazardous substances....Whether control of hazardous

substance emissions is achieved directly or indirectly, the means must

be specifically designed to limit or eliminate emissions of a

designated hazardous pollutant or a criteria pollutant.'' Senate Rep.

No. 96-848 at 49.

The Senate Committee Report also explained that ``[w]hile the

exemptions from liability for federally permitted releases are provided

to give regulated parties clarity in their legal duties and

responsibilities, these exemptions are not to operate to create gaps in

actions necessary to protect the public or the environment.'' Senate

Rep. No. 96-848 at 47. In order to avoid the ``gaps'' in protection of

public health and the environment that concerned Congress, the

federally permitted release provision exempts only those releases that

are subject to emission limits and other controls that are specifically

designed to address hazardous impacts from the release of the hazardous

substance or EHS at issue.

III. Hazardous Air Pollutant Releases That Are Controlled Under CAA

Section 112

Releases of hazardous substances and EHSs that are controlled by

and in compliance with a permit or control regulation under CAA section

112 qualify for the CERCLA section 101(10)(H) federally permitted

release exemption and do not have to be reported under CERCLA section

103 and EPCRA section 304. CAA section 112 provides authority for EPA,

by regulation, to establish National Emission Standards for Hazardous

Air Pollutants (NESHAPs). The emission limits and other control

provisions in the NESHAPs control releases of hazardous air pollutants

(HAPs), as defined in CAA section 112(a)&(b). CAA section 112 also

provides some authority, for example in subsections 112(g) and 112(j),

to set HAP emission limits on a case by case basis in permits.

Pursuant to CERCLA section 101(14), all HAPs are also CERCLA

hazardous substances. A HAP emission is generally a CERCLA/EPCRA

federally permitted release if the release is in compliance with all of

a NESHAP's limits and other control provisions for the specific HAPs

(or groups of HAPs) and methods of release (i.e., the particular

emission points) at issue. EPA typically identifies the HAPs and

emissions points that each NESHAP provision controls in the NESHAP and/

or the preamble to the final rule promulgating the NESHAP. The pre-1990

health-based, as well as post-1990 NESHAP controls that are often

technology-based, upon maximum achievable control technology (MACT),

are designed to limit or eliminate emissions of HAPs--substances that

were listed because of their individual hazardous qualities and

impacts. Releases of hazardous substances or EHSs that are controlled

by and in compliance with health-based and MACT-based NESHAP limits and

other control provisions that are directed at controlling those

substances, therefore, qualify for the CERCLA/ EPCRA federally

permitted release exemption.

CAA section 112(l) authorizes EPA to delegate to states the

authority to implement and enforce the federal NESHAPs. Under section

112(l), EPA may approve state programs to implement and enforce

emissions standards and other HAP requirements in place of federal

NESHAPs, provided

[[Page 71617]]

the state requirements are no less stringent than federal requirements.

State programs that EPA approves under CAA section 112(l) are federally

enforceable pursuant to section 112(l)(7). Releases of CERCLA hazardous

substances and EPCRA EHSs that are controlled by and in compliance with

these EPA-approved state programs also qualify for the CERCLA and EPCRA

federally permitted release exemption.

IV. Hazardous Substance and Extremely Hazardous Substance Releases

That Are Not Controlled

A release of a hazardous substance is not subject to a permit or

control regulation when the facility does not have a permit or

regulation that controls the release at issue. The following provides a

few examples of releases that do not qualify for the CERCLA/EPCRA

federally permitted release exemption. In these situations, the

facility must immediately notify the NRC, SERC and LEPC when it

releases a hazardous substance or EHS release in an amount that is

equal to or greater than the RQ or file a continuous release report for

its releases that are continuous and stable in quantity and rate.

A. Sources That Are Exempt From CAA Regulation

Air emissions of hazardous substances or EHSs that are not subject

to a permit or control regulation issued under CAA sections 111, 112,

Title I--part C, Title I--part D, or a section 110 SIP are not CERCLA

federally permitted releases. A CAA exemption from these CAA provisions

does not exempt a facility from its obligation to comply with CERCLA

and EPCRA notification requirements. Emissions that are exempt from CAA

requirements are not subject to a permit or control regulation, do not

qualify for the CERCLA/EPCRA federally permitted release notification

exemption, and must comply with CERCLA and EPCRA notification

requirements. Pursuant to CERCLA and EPCRA, the facility must notify

the NRC, SERC and LEPC of hazardous substance or EHS releases that are

exempt from CAA permits or control regulations when the releases are

equal to or greater than the applicable RQs, or file a continuous

release report for its releases that are continuous and stable in

quantity and rate.

Releases that are not subject to CAA permits or control regulations

may include emissions from facilities that are exempt from CAA controls

because they existed prior to enactment of the CAA requirement, such as

unmodified ``grandfathered'' sources, or releases from facilities that

are exempt from CAA controls because they emit an annual, cumulative

amount of pollution below a stated threshold, such as unpermitted minor

sources. The hazardous substance and EHS releases from these facilities

are not controlled or limited by, and therefore are not subject to, a

permit or control regulation. Without CERCLA and EPCRA notification,

emergency response authorities would not learn of potentially dangerous

releases that are exempt from CAA requirements.

A facility that is exempt from CAA permits and control regulations

could release a dangerous amount of a hazardous substance that requires

a federal, state or local emergency response action. Even a very small

source could have a release of a hazardous substance that has

catastrophic consequences and requires an immediate response.

Information about emissions from exempt sources may also be crucial to

emergency and pollution prevention planning. It would frustrate the

notification purposes of CERCLA and EPCRA to interpret the federally

permitted release exemption to authorize these releases without

alerting the NRC, SERC and LEPC.

The CERCLA definition of federally permitted release includes

releases that are subject to any schedule or waiver granted,

promulgated or approved under the CAA sections identified in the

definition. The terms ``schedule'' and ``waiver'' have specific

meanings under the CAA. CERCLA's reference to CAA schedules and waivers

covers only those specific meanings and does not include exempt

sources. Under section 111(j)(1) of the CAA, for example, EPA may grant

a waiver from a New Source Performance Standard (NSPS) in order to

encourage the use of an innovative technological system or systems of

continuous emission reduction. If a technology does not result in an

emission reduction that equals or exceeds the applicable standard, the

regulator will terminate the waiver and establish a schedule for

compliance. A release of a hazardous substance or EHS that is

controlled by and in compliance with a schedule or waiver issued

pursuant to a CAA section listed in CERCLA section 101(10)(H) is a

CERCLA/EPCRA federally permitted release, provided the schedule or

waiver includes and authorizes a release of that hazardous substance.

B. Accidents and Malfunctions

Unanticipated releases, such as accidents or malfunctions, are the

most obvious types of releases that concerned Congress when it enacted

CERCLA section 103 and EPCRA section 304. An accident or malfunction

can result in an extremely large and/or extremely toxic release. Many

accidents or malfunctions require immediate responses, which could

include shutting down the facility, evacuating the local population or

sealing off the affected area.

A fundamental purpose of CERCLA section 103 and EPCRA section 304

is to ensure that emergency response personnel are immediately alerted

of unanticipated releases. Once notified, emergency response experts

can assess the dangers from the release and initiate appropriate action

to ensure that the harm is minimized, the release is brought under

control as quickly as possible and any remaining damage is cleaned up

or repaired.

Congress did not intend to exempt unanticipated releases from

CERCLA section 103 and EPCRA section 304. As explained in the Senate

Report, ``Accidents--whatever their cause--which result in, or can

reasonably be expected to result in releases of hazardous pollutants

would not be exempt from the requirements and liabilities of this bill.

Thus, fires, ruptures, wrecks and the like invoke the response and

liability provisions of the bill.'' Senate Rep. No. 96-848 at 48.

Some CAA programs recognize that accidents and malfunctions may

happen even when the facility has implemented reasonable measures to

avoid them. A release caused by an accident or malfunction, therefore,

may not violate the facility's CAA obligations if the facility

develops, maintains and is operating in compliance with an accident and

malfunction plan. The CAA requires accident and malfunction plans in

order to prevent accidental releases, identify accidents and

malfunctions when they occur, bring accidental releases under control

as quickly as possible and clean up any damage. Accident and

malfunction plans, however, do not control unanticipated releases. Even

when a facility is in compliance with its accident and malfunction

plan, an unanticipated release of hazardous substances or EHSs could

result in severe impacts that require immediate response. Unless the

facility prevents a release, or until it brings an unanticipated

release under control through repairs or other means, the release is

uncontrolled and does not qualify for the CERCLA/EPCRA federally

permitted release notification exemption. An unanticipated release of a

hazardous substance or EHS that is due to an accident, malfunction or

otherwise, is not subject to a permit or control regulation and must be

reported under CERCLA section 103 and EPCRA

[[Page 71618]]

section 304 when the amount of the release is equal to or greater than

the applicable RQ.

C. Start-Up and Shut-Down

Start-up and shut-down releases can be large and/or toxic and may

cause harm to human health and the environment. It is important for

federal, state and local emergency response personnel to have

information about uncontrolled emissions during start-up and shut-down

periods for analysis of chronic and cumulative impacts, proper planning

and emergency response.

Some CAA regulations do not require sources to meet emission limits

during start-up and shut-down. A regulation may exempt a release from

CAA emission limits or other controls because, for example, it may not

be technologically feasible for the source to achieve the requirement

during start-up and shut-down.

If a permit or control regulation contains explicit emission limits

or other controls on the releases of listed hazardous substances or

EHSs during start-up or shut-down, then releases of those substances

qualify for the CERCLA/EPCRA federally permitted release notification

exemption up to the controlled amount. If, however, a release of a

hazardous substance or EHS is exempt from CAA regulation, or is

otherwise not subject to emission limits or technology controls during

the start-up or shut-down of an operation, then these uncontrolled

releases do not qualify for the CERCLA/EPCRA federally permitted

release notification exemption and must comply with CERCLA and EPCRA

notification requirements.

In many instances, facilities must have a start-up, shut-down and

malfunction (SSM) plan that sets forth procedures for operating and

maintaining a source during those periods. See, for example, 40 CFR

63.6(e)(3). Even when a facility is in compliance with its SSM plan, it

may experience uncontrolled or unanticipated releases of a hazardous

substance or EHS that require a response. To the extent that an SSM

plan does not incorporate permit or regulation requirements for

specific emission limits or other technology controls on the facility's

releases of hazardous substances and EHSs during start-up or shut-down,

then those releases are not controlled by the SSM plan and must comply

with CERCLA and EPCRA notification requirements, even when the

uncontrolled releases occur while the facility is operating in

accordance with its CAA SSM plan.

D. Volatile Organic Compound/Ozone Controls and Particulate Matter

Controls

An independent, unrelated requirement for ozone or particulate

matter does not qualify a release of a hazardous substance or EHS for

the CERCLA/EPCRA federally permitted release exemption. Limits or other

controls on volatile organic compounds (VOCs) as ozone precursors or on

small particles as particulate matter (PM) do not exempt hazardous

substance and EHS releases from the CERCLA and EPCRA notification

provisions. To conclude otherwise would frustrate the purposes of the

CERCLA and EPCRA release notification requirements and potentially

allow thousands of pounds of highly toxic chemicals to be released--

perhaps next to a schoolyard, nursing home or other sensitive

population, without any notice to federal, state or local response and

emergency planning authorities or to the public. These releases could

potentially endanger surrounding populations and have a significant

impact on human health and the environment.

Hazardous substances and EHSs have RQs that range from one pound to

5,000 pounds per 24 hour period. The RQ is based upon the intrinsic

physical, chemical and toxicological properties of the substance.

Facilities must report a release of CERCLA hazardous substances or

EPCRA EHSs when the release amount is equal to or greater than the

substance's RQ. Emergency response personnel and local emergency

planning officials need to have complete and accurate information

regarding the releases of these different hazardous substances in order

to evaluate the impact on human health and the environment from the

release amount.

The manner in which EPA and authorized states regulate VOCs/ozone

precursors and PM is inconsistent with the CERCLA and EPCRA

notification requirements. The EPA and authorized state ambient air

quality programs that regulate VOCs as ozone precursors or that

regulate small particles as PM are not designed to control releases of

hazardous substances and EHSs and do not address the hazardous impacts

that concerned Congress when it enacted the CERCLA and EPCRA release

notification requirements. The CAA provisions in CERCLA section

101(10)(H) that control hazardous emissions, and not CAA provisions

directed at ozone or particulate ambient air quality, regulate

hazardous substances and EHSs consistently with CERCLA and EPCRA.

Congress established separate CAA programs with independent control

schemes for the different impacts from emissions of different types of

substances. The different CAA programs focus on the particular harms

from the substances that they are designed to regulate and impose

permit and regulatory limits and other controls to achieve the specific

purposes of the individual program. EPA and authorized states control

hazardous emissions through NESHAPs or other hazardous emission

controls that they issue pursuant to sections 112, 111 or 110 or Title

I Parts C or D of the CAA. A release of a hazardous substance or EHS is

only exempt from the CERCLA/EPCRA notification requirements when the

release is subject to a permit or control regulation under a CAA

program that is specifically designed to control the hazardous

substance or EHS release. Limits and other controls on VOCs as ozone

precursors or on small particles as PM do not control releases for this

purpose.

VOCs as Ozone Precursors

Permit provisions and regulations that regulate ozone through VOCs

are not directed at controlling releases of hazardous substances and

EHSs. These limits are based upon VOC contributions to ozone formation,

not upon the toxicity of individual substances. Particularly in areas

that have attained the ozone national ambient air quality standard

(NAAQS), Ozone-control limits on VOCs may be very large, are often

expressed in annual terms, may apply to numerous substances with

various toxicity levels and are unrelated to the risks posed by

individual hazardous substances. Ozone-control limits on VOCs are

typically not designed to control the facility's releases of hazardous

substances or EHSs. Specific hazardous releases are often dangerous to

human health and the environment in much smaller amounts than general

VOC emissions. A facility could have a dangerous peak release of an

individual hazardous substance that is consistent with a VOC limit for

ozone control, but that may require an immediate response in order to

protect human health and the environment.

Formaldehyde, 1,3 butadiene or ethylene oxide, for example, are

VOCs that, along with less hazardous VOCs, such as dimethyl ether or

ethylene, contribute to ozone formation. Formaldehyde and ethylene

oxide, however, are HAPs that are subject to controls under section 112

and other CAA provisions that Congress established within the CAA to

control HAPs. EPA controls formaldehyde and ethylene oxide through the

HAP programs and not through limits that are

[[Page 71619]]

designed to address ambient ozone levels. Unlike general VOC limits, a

HAP limit imposes controls on specific substances and often provides a

list of hazardous substances and hourly emission limits for each.

Hazardous substance and EHS releases qualify for the CERCLA/EPCRA

federally permitted releases notification exemption when they are

controlled by and in compliance with provisions to control HAP

releases. Hazardous substances and EHSs, therefore, are not subject to

a permit or control regulation under CERCLA section 101(10)(H), when

the facility has a general emission limit or other control for VOCs as

ozone precursors in order to address ozone ambient air quality.

Particulate Matter

PM is a designation that identifies particles of a certain size,

mass or amount. CAA permits and control regulations for PM address the

impacts on human health and the environment from these particles,

taking into account the particles' size and mass and the dangers

presented by the inhalation of small particles. The EPA program for PM

is not designed to address the independent impacts from hazardous

substances or EHSs that may be released in small particles. PM permits

and control regulations control the emission amounts of small particles

of any substance. They typically apply to hazardous and non-hazardous

substances alike. Releases of hazardous substances and EHSs are subject

to specific CAA provisions that are intended to address these releases.

Chromium, for example, which may be released as small particles, is

a HAP that has many severe hazardous effects independent of any impact

due to small particle size. Chromium is extremely toxic and may be

found in its acid mist form, chromic acid. Some forms of chromium, such

as hexavalent chromium, are also considered to be carcinogenic. EPA and

authorized states' particulate matter provisions do not control

releases of chromium or chromic acid as hazardous substance or EHS

releases. These hazardous substances are subject to permits and control

regulations that specifically limit or otherwise control chromium

releases under the CAA's HAP programs. Releases of hazardous substances

or EHSs, therefore, are not subject to a permit or control regulation

under CERCLA section 101(10)(H), when the facility has a general

emission limit or other control for PM.

V. Continuous Releases

In CERCLA section 103(f)(2), Congress established an alternative

notification method for hazardous substance releases that do not

qualify for the federally permitted release exemption under CERCLA

section 101(10)(H), but that are ``continuous'' and ``stable in

quantity and rate.'' The continuous release reporting program provides

response authorities with important information regarding the quantity,

nature and potential impact of these releases, while reducing the

notification burden. Response agencies maintain the immediate and

continuous release notification information and use it for emergency

planning and cumulative impact analysis.

Continuous release notifications perform, for example, the

following important functions: (1) They provide information on releases

into the environment that is often not otherwise available to emergency

response personnel and the public; (2) they may alert government

officials and the public as to when releases are expected to increase;

and (3) they help government officials and emergency planning personnel

to predict when peak exposures to nearby populations may occur. Local

planners may use the continuous release applications to plan outdoor

activities in the community; to assist with urban planning decisions,

such as where to locate buildings that may house or provide services to

sensitive populations (e.g., senior citizen centers, day care centers

and schools); and to assess the risk from total emissions in a

community.

Facilities who believe a release could qualify as ``continuous''

must:

(1) Make an initial telephone call to the NRC, SERC and LEPC;

(2) Provide an initial written notification describing the release

to the EPA Region, SERC and LEPC within 30 days of the telephone call;

and

(3) Provide a one-time written follow-up notification to the EPA

Region within 30 days of the first anniversary of filing the initial

written report.

Thereafter, no further notification is required, unless there is a

change in the information submitted or there is a statistically

significant increase in the release. If there is a change in the

composition or source of a release that did qualify as continuous, the

change must be treated as a new release.4

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\4\ The above description of the continuous release reporting

requirements is a summary of the requirements and is not intended to

modify or replace the continuous release regulations. In order to

determine whether a release qualifies for continuous release

reporting and for instructions on how to comply, use the continuous

release reporting regulations at 40 CFR section 302.8 , 40 CFR

355.40(a)(2)(iii) and 55 FR 30,166 (July 24, 1990).

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The continuous release notification requirements do not impose new,

independent emissions limits. They do, however, offer a less burdensome

way to report predictable releases while also providing government

agencies and local communities with information that may be critical to

managing risks and reducing exposure to sensitive populations.

Conclusion

CERCLA section 103 and EPCRA section 304 require facilities to

provide important information about hazardous substances and EHSs that

are released into the environment to the NRC, SERCs, LEPCs, and

indirectly to EPA, the Coast Guard, other agencies and the public. The

continuous release reporting option provides a less burdensome method

for facilities to notify these federal, state and local authorities of

certain hazardous substance and EHS releases.

The federally permitted release exemption to CERCLA 103 and EPCRA

304 notification requirements eliminates the notification requirement,

including the continuous release reporting option, for certain air

emissions of hazardous substances and EHSs when the release is subject

to a permit or control regulation issued pursuant to CAA, sections 112

and 111, Title I part C, Title I part D, or a section 110 SIP. This

guidance document discusses the federally permitted release exemption

as it would be applied in the specific situations described herein. A

brief statement of the guidance's conclusions is set forth in the

Summary section, above.

The facility must determine whether its hazardous substance and EHS

releases qualify for the notification exemption. In order to overcome

the presumption that a release of a hazardous substance or EHS is not

federally permitted and that a facility must immediately notify the

NRC, SERC and LEPC when the amount of release is equal to or greater

than the substance's RQ, the facility must demonstrate that the CERCLA

federally permitted release definition exempts the hazardous substance

or EHS release from the notification requirements.

This guidance does not impose any new reporting obligations or

burdens and does not recommend new forms or reporting mechanisms. CAA

permit modifications are not required as a result of this guidance.

When a facility's

[[Page 71620]]

CAA permit or control regulations do not control a release as the

release of a particular hazardous substance or EHS, or when the release

is not in compliance with such a permit or control, then the facility

must comply with CERCLA section 103 and EPCRA section 304 notification

requirements.

This guidance is consistent with statements that the Agency has

previously made regarding the federally permitted release exemption.

EPA issued two Notices of Proposed Rulemaking (NPRMs) and one

Supplemental Notice regarding the application of the federally

permitted release exemption in CERCLA section 101(10).5

Subsequent administrative adjudications have provided additional

guidance, and EPA has published regulations to explain the reduced

reporting option for continuous releases.

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\5\ Notice of Proposed Rulemaking, 48 FR 23,552 (May 25, 1983);

Notice of Proposed Rulemaking, 53 FR 27,268 (July 19, 1988);

Supplemental Notice, 54 FR 29,306 (July 12, 1989).

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When developing this guidance, EPA considered the public comments

on air emissions that were submitted in response to the two NPRMs and

the Supplemental Notice. Some of those comments are no longer

applicable because EPA has already addressed the issues discussed in

those comments through administrative adjudications or other Agency

statements. EPA also considered its experience in implementing the

reporting requirements under CERCLA section 103 and EPCRA section 304

and the success of the CERCLA and EPCRA programs in providing

information to communities about releases of hazardous substances and

EHSs.

This guidance document provides notice of EPA's interpretation of

the CERCLA term ``federally permitted release'' as it applies in the

situations described herein. It does not modify, amend or in any way

change current law regarding release notification requirements under

CERCLA and EPCRA. This guidance document does not impose new legally-

binding requirements on EPA, states or the regulated community. EPA may

revise this guidance in the future.

EPA intends to apply the interpretations set forth in this guidance

in enforcement actions, but retains the discretion to adopt approaches

that differ from this guidance when appropriate. When setting

priorities to determine whether to pursue an enforcement action, EPA

generally considers the potential for significant risks and adverse

impacts on human health and the environment, as well as the integrity

of the federal program.

Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August

10, 1999), requires EPA to develop an accountable process to ensure

``meaningful and timely input by State and local officials in the

development of regulatory policies that have federalism implications.''

``Policies that have federalism implications'' is defined in the

Executive Order to include regulations and regulatory policies that

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.''

This interim guidance document does not have federalism implications.

It will not have substantial direct effects on the States, on the

relationship between the national government and the States, nor on the

distribution of power and responsibilities among the various levels of

government, as specified in Executive Order 13132. This guidance does

not impose any new requirements nor modify existing law. It explains a

CERCLA provision that defines an exemption to notification requirements

that are imposed by statute. The guidance does not preempt any State or

local law, and does not impose any mandate on State and local

governments. The requirements of section 6 of the Executive Order,

therefore, do not apply to this interim guidance.

[FR Doc. 99-33030 Filed 12-20-99; 8:45 am]

BILLING CODE 6560-50-P