Interim Guidance on the CERCLA Section 101(10)(H) Federally
Permitted Release Definition for Certain Air Emissions
[Federal Register: December 21, 1999 (Volume 64, Number 244)]
[Notices]
[Page 71613-71620]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21de99-166]
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_______________________________________________________________________
Part V
Environmental Protection Agency
_______________________________________________________________________
Interim Guidance on the CERCLA Section 101(10)(H) Federally Permitted
Release Definition for Certain Air Emissions; Notice
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-6513-2]
Interim Guidance on the CERCLA Section 101(10)(H) Federally
Permitted Release Definition for Certain Air Emissions
ACTION: Notice, request for comments.
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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: docket.oeca@epa.gov. 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.<SUP>1</SUP> 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
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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.<SUP>2</SUP> 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.<SUP>3</SUP>
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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
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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.<SUP>4</SUP>
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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).
---------------------------------------------------------------------------
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).<SUP>5</SUP>
Subsequent administrative adjudications have provided additional
guidance, and EPA has published regulations to explain the reduced
reporting option for continuous releases.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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]
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