[Federal Register Volume 67, Number 74 (Wednesday, April 17, 2002)]
[Notices]
[Pages 18899-18904]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-9322]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-7172-4]
Guidance on the CERCLA Section 101(10)(H) Federally Permitted
Release Definition for Certain Air Emissions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
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SUMMARY: EPA is publishing as an appendix to this notice a guidance on
the CERCLA section 101(10)(H) federally permitted release definition
for certain air emissions.
FOR FURTHER INFORMATION CONTACT: Visit the OECA Docket Web Site at
www.epa.gov/oeca/polguid/enfdock.html or contact the RCRA/UST,
Superfund and EPCRA Hotline at (800) 424-9346 or (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 Ginny Phillips at (202) 564-6139 or mail your
questions to: U.S. EPA, 1200 Pennsylvania Ave., NW., Washington DC
20460, attention Lynn Beasley, mail code 5204G.
SUPPLEMENTARY INFORMATION:
Purpose of this Notice
Today's guidance discusses the federally permitted release
definition, which is an exemption to the reporting requirements under
two federal emergency response and public right to know laws: section
103 of the Comprehensive Environmental Response, Compensation, and
Liability Act (``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. Federally permitted releases are defined in CERCLA
section 101(10), which specifically identifies certain releases that
are permitted or controlled under several environmental statutes and
exempts these releases from the notification requirements of CERCLA
section 103 and EPCRA section 304. CERCLA section 101(10)(H) identifies
releases that are exempt from reporting because they are subject to
permits and regulations under the Clean Air Act (``CAA'').
This guidance reflects our consideration of the general concerns
raised by previous Federal Register notices on the definition of
federally permitted release, the comments submitted on the Interim
Guidance and our own experience in implementing the reporting
requirements under CERCLA section 103 and EPCRA section 304. This
guidance also considers several administrative adjudication decisions
on federally permitted releases.
This guidance does not impose new reporting requirements or change
the types of releases which are required to be reported under CERCLA
section 103 and EPCRA section 304 or the implementing regulations at 40
CFR parts 302 and 355. The legal authority for the reporting
requirements arises from those statutory and regulatory provisions, as
well as the statutory provisions on federally permitted releases, not
from this guidance. This guidance has no effect on CAA permit
requirements.
The CAA provides EPA and states the authority to impose a wide
variety of permits, regulatory limits and control requirements on
emission sources. Whether a particular air release of a hazardous
substance or extremely hazardous substance is exempt from CERCLA
section 103 and EPCRA section 304 reporting requirements requires a
case-by-case determination based on the specific permit language or
applicable control requirement. As a consequence, it is difficult to
establish a ``bright line'' for when releases qualify for the
[[Page 18900]]
CERCLA federally permitted release exemption.
Opportunities for Notice and Comment
The public has had several opportunities to comment on our
interpretation of the CERCLA definition of federally permitted release.
We originally requested comments on this issue in 1983, when we
proposed regulations for CERCLA notification requirements and
reportable quantity adjustments. See 48 FR 23552 (May 25, 1983).
Subsequently, in a 1988 proposed rule, we addressed some comments on
federally permitted releases, explained our understanding of the term
in certain circumstances and requested additional comments. See 53 FR
27268 (July 19, 1988). In 1989, we published a Supplemental Notice of
Proposed Rulemaking and requested further comment on our interpretation
of federally permitted releases. See 54 FR 20305 (July 11, 1989). On
December 21, 1999, we published in the Federal Register the ``Interim
Guidance on the CERCLA section 101(10)(H) Federally Permitted Release
Definition for Certain Air Emissions'' (``Interim Guidance''),
requested comment and announced a public meeting. See 64 FR 71614
(December 21, 1999). We extended the comment period twice, providing
the public with over 75 days to consider and prepare their comments on
the Interim Guidance. We hosted a public meeting on February 24, 2000,
to provide additional opportunities for oral testimony and dialogue.
This extensive comment period gave the public an opportunity to raise
their concerns to us prior to the publication of this guidance. The
guidance addresses many of the comments received on the Interim
Guidance.
Changes From the Interim Guidance
This guidance supercedes the Interim Guidance, which is now deemed
to be withdrawn. It also differs from the Interim Guidance in several
aspects. First, this guidance clarifies the discussion of volatile
organic compounds (``VOC'') and particulate matter (``PM'') limits and
controls and when releases of hazardous substances which are
constituents of these criteria pollutants could qualify for the CERCLA
federally permitted release exemption. Second, the Guidance adds a
section addressing air emissions of nitrogen oxide (``NO'') and
nitrogen dioxide (``NO2''). Third, whether the exemption can
be applied to grandfathered sources will be addressed in a separate
forthcoming guidance document. Finally, the guidance explains that
certain releases from minor sources subject to a federally enforceable
limit may meet the definition of a CERCLA federally permitted release.
The changes from the Interim Guidance are based on the information
we received from comments on the Interim Guidance. For example,
commentors provided us with examples of permits that have VOC and/or PM
control requirements that may also effectively limit or control the
emissions of hazardous substances. Therefore, in response to this
information, we clarified and expanded our discussion of when a release
of a hazardous constituent of VOC or PM could be considered a federally
permitted release.
Although releases of NO and NO2 were not addressed
directly in the Interim Guidance, commentors pointed out to us that the
current ten pound reportable quantity for CERCLA/EPCRA reporting for NO
and NO2 could result in a large number of notifications of
very small releases which could overburden the CERCLA notification
system and have negative consequences on the government's ability to
focus its resources on more serious releases. We agree with these
commentors and are addressing this issue in several ways. First, we
agree that permitted air releases of NO and NO2 that are
subject to limits or controls for NOX are CERCLA federally
permitted releases. Second, the Agency supports the proposal of an
administrative reporting exemption for certain NO and NO2
air releases which could result in these releases not being required to
be reported under CERCLA section 103 and EPCRA section 304. EPA will
move forward with the proposal as soon as resources become available.
Finally, we are providing enforcement discretion to certain sources
that would otherwise have to report their NO and NO2 air
releases until the administrative reporting exemption process is
complete or until we publish a notice saying otherwise.
We also received a significant number of comments concerned with
the possible impacts of the Interim Guidance on the notification
requirements for releases from CAA minor sources. Commentors have
provided us with useful information on the number of minor sources they
feel are potentially impacted by this guidance, the treatment of minor
sources under federal and state air regulatory programs and why they
feel that releases from minor sources meet the definition of federally
permitted release under CERCLA. Most commentors believe that emissions
from minor sources meet the CERCLA federally permitted release
definition. We agree with one group of commentors which has pointed out
that in some situations emissions that are in compliance with a
federally enforceable threshold limit meet the definition of federally
permitted releases. The specific situations are discussed in section V
of the guidance.
Finally, we have reformatted this guidance to more clearly respond
to the questions raised by commentors, and to make the document easier
to read in accordance with President Clinton's June 1, 1998, Executive
Memorandum on Plain Language in Government Writing. The word ``we'' in
this guidance means EPA. The word ``you'' in this guidance means the
reader and, depending on context, may mean state, local or tribal
government agencies, industry, environmental groups or other
stakeholders.
The Office of Solid Waste and Emergency Response and the Office of
Enforcement and Compliance Assurance jointly issue this guidance.
Dated: April 4, 2002.
Marianne Lamont Horinko,
Assistant Administrator for Solid Waste and Emergency Response.
Dated: April 11, 2002.
Sylvia K. Lowrance,
Acting Assistant Administrator for Enforcement and Compliance
Assurance.
Appendix A--Guidance on the CERCLA Section 101(10)(H) Federally
Permitted Release Definition for Certain Air Emissions
Table of Contents
I. Background: CERCLA Section 103 and EPCRA Section 304
II. Purpose of Guidance
III. Emission Exceedances of Permit Limits and Control Regulations
IV. Criteria Pollutants: VOCs, PM and NOX
V. Minor Sources
VI. Waivers
VII. Accidents and Malfunctions
VIII. Start-up/Shut-down
IX. Conclusion
I. Background: CERCLA Section 103 and EPCRA Section 304
Reporting Requirements
The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. 9601 et seq. (``CERCLA'') gives EPA
broad authority to respond to releases or threats of releases of
hazardous substances. In order to alert federal officials of
potentially dangerous releases of hazardous substances, CERCLA section
103 requires facilities 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
[[Page 18901]]
(``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 103(f) stablishes an alternative reporting scheme for releases
that are continuous and stable in quantity and rate. A facility
choosing this alternative submits a report on the continuous release in
compliance with the regulations at 40 CFR 302.8 and 355.40(a)(2)(iii).
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.
The Emergency Planning and Community Right-to-Know Act (``EPCRA''),
42 U.S.C. 11001 et seq., also known as Title III of the Superfund
Amendments and Reauthorization Act of 1986 (``SARA''), and its
implementing regulations (40 CFR part 355) was established to ``* * *
provide the public with important information on the hazardous
chemicals in their communities, and to establish emergency planning and
notification requirements which would protect the public in the event
of a release of hazardous chemicals.'' H.R. Conf. Rep. No. 962, 96th
Cong., 2d Sess. (1986). EPCRA section 304 requires the owner or
operator of a facility to immediately notify both the state emergency
response commissions (``SERC'') and local emergency planning committees
(``LEPC'') whenever the facility has a release of an RQ or more of a
CERCLA hazardous substance or an EPCRA extremely hazardous substance
(``EHS'') for each area that the release is likely to affect. EPCRA
section 304(c) requires the owner or operator of the facility, as soon
as practicable after a reportable release, to provide a written follow
up notice that includes information on the release, response actions,
risks and medical advice.
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 authorizes the
EPA Administrator to designate additional hazardous substances when
their release may present substantial danger to the public health or
welfare or the environment. Pursuant to CERCLA section 102, the
Administrator sets the quantities for hazardous substances known as
reportable quantities (``RQ'') that, when released, require reporting.
If the Administrator has not established an RQ, section 102(b) provides
for a default RQ. A table at 40 CFR 302.4 lists the CERCLA hazardous
substances with their RQs, and tables at 40 CFR part 355, appendices A
& B list the EPCRA EHSs with their RQs.
Immediate notification provides emergency planning authorities with
the information they need to respond to the release as quickly as
possible in order to minimize the danger to human health and the
environment, including dangers to children, other sensitive populations
and sensitive ecosystems. The release reports also alert emergency
planning personnel to the potential for future risks so that local
communities can work with facilities to minimize those risks. Emergency
planning authorities can also use the release reports to assess
emergency planning needs, to identify and develop appropriate responses
to acute as well as chronic exposure and to assess cumulative effects
of chemical exposures from many different sources in local areas. EPCRA
gives members of the public, including local communities and
individuals, the right to know the types and amounts of releases of
certain chemicals in their communities.
Exemption for Federally Permitted Releases
Congress exempted ``federally permitted releases'' as defined in
CERCLA section 101(10) from the notification requirements in CERCLA
section 103 and EPCRA section 304. The definition of federally
permitted release in CERCLA section 101(10) specifically identifies
releases that are regulated under other environmental programs, such as
the National Pollutant Discharge Elimination System of the Clean Water
Act; Resource Conservation and Recovery Act; and the Underground
Injection Control program of the Safe Drinking Water Act, among others.
Our guidance document only addresses certain air releases when the
source of the release is regulated under the Clean Air Act (``CAA'').
CERCLA section 101(10)(H) defines federally permitted releases under
the CAA as:
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 section 101(10)(H); 42 U.S.C. 9601(10)(H)(internal citations
omitted).
II. Purpose of Guidance
This guidance document discusses the most common questions we have
received from the public on the federally permitted release definition
and discusses the principles we consider most important in evaluating
whether an air release may be considered a CERCLA section 101(10)(H)
federally permitted release.
The Senate committee that considered the CERCLA definition of
federally permitted release recognized that the CAA controls air
pollutants in several ways:
In the Clean Air Act, unlike some other Federal regulatory statutes,
the control of hazardous air pollutant emissions can be achieved
through a variety of means: express emissions limitations (such as
control on the pounds of pollutant that may be discharged from a
source during a given time); technology requirements (such as
floating roof tanks on hydrocarbons in a certain vapor pressure
range); operational requirements (such as start up or shut down
procedures to control emissions during such operations); work
practices (such as the application of water to suppress certain
particulates); or other control practices. 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. 848, 96th Cong., 2d Sess. 49 (1980).
Because of the numerous programs under the CAA and their
complexity, this guidance does not address each application of the
exemption. This guidance is intended for you to use as a general guide
to determine, on a case-by-case basis, whether an air release of a
hazardous substance qualifies as a federally permitted release. You
should consider any permit language as a whole rather than reviewing
specific language in isolation and also look at all applicable control
requirements in order to determine whether, taken together, they
subject a release of a hazardous substance to a relevant CAA permit or
control regulation.
The CERCLA, EPCRA and CAA statutory provisions and the EPA
regulations described in this guidance contain legally binding
requirements. This guidance does not substitute for those provisions or
regulations, nor is it a regulation itself. Thus, it does not impose
new legally-binding requirements on EPA, states or the regulated
community, and may not
[[Page 18902]]
apply to particular situations depending upon the circumstances. We
retain the discretion to adopt approaches that differ from this
guidance when appropriate, and may change this guidance in the future.
In implementing and enforcing the reporting requirements of the
statutes, we will decide what position to take in each particular case
based on the applicable statutes and regulations for each release.
Interested parties are free to challenge our position in particular
situations before the administrative or judicial courts, which
ultimately decide how the exemption applies based on the statutes and
regulations themselves.
III. Emission Exceedances of Permit Limits and Control Regulations
I have discovered a violation at my facility which
resulted in a release of a hazardous substance in excess of the CAA
control regulation. Does this release qualify for the CERCLA section
101(10)(H) federally permitted release exemption?
The EPA Environmental Appeals Board (``EAB'') concluded that ``* *
* a release `subject to' Clean Air Act regulatory requirements must be
in conformance with those requirements in order to be exempt from EPCRA
and CERCLA emergency reporting provisions * * *'' In re Mobil Oil
Corp., EPCRA Appeal No. 94-2, 5 EAD 490, 508, 1994 WL 544260 (EAB,
Sept. 29, 1994).
The EAB reasoned that:
To adopt Mobil's argument that any noncomplying air release triggers
the [federally permitted release] exemption so long as the pollutant
released is addressed in some way in a permit or other Clean Air Act
requirement would mean that potentially significant air releases would
be exempt from EPCRA reporting obligations, regardless of the extent of
the noncompliance or resulting environmental harm.
IV. Criteria Pollutants: Ozone (VOC), PM and NOX
My facility has a CAA permit which contains emission
limits for VOC and PM and is not subject to NESHAPs. The facility
releases are in compliance with the VOC or PM limits. Are the releases
of hazardous substances that are also either VOCs or emitted as
particulate matter federally permitted releases under CERCLA?
If you are in compliance with your federally enforceable CAA permit
limit or control regulation for volatile organic compounds (``VOC'') or
particulate matter (``PM''), and those limits or controls include
conditions that, when viewed together, control the release of a
constituent hazardous substance, such a release would likely qualify as
a federally permitted release. The Senate Report language states that
to qualify for the CERCLA 101(10)(H) federally permitted release
exemption, the means of controlling the hazardous substance emissions
must be ``* * * specifically designed to limit or eliminate emissions
of a designated hazardous pollutant or a criteria pollutant'' (Senate
Report No. 848 at 49).\1\ Whether the hazardous substance or EHS is a
criteria pollutant or a hazardous air pollutant, the permit limit or
control should have the specific effect of limiting or eliminating the
releases of the designated hazardous substance or EHS if releases of
that hazardous substance or EHS are to qualify for the federally
permitted release exemption.
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\1\ Hazardous substance or EHS include any pollutant for which a
reportable quantity has been established under CERCLA or EPCRA.
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When evaluating whether a release qualifies for the federally
permitted release exemption, you should consider whether your federally
enforceable CAA permit limit or the applicable control regulations
limit or eliminate the release of the designated hazardous substance or
EHS. Because of the variety of VOC and PM permit terms and controls, we
cannot establish any ``bright line'' tests to determine whether a
control regulation or permit limit for VOC or PM is adequate to qualify
a release of a designated hazardous substance or EHS as a CERCLA
federally permitted release. You should consider whether the permit
provides direct or indirect control of a designated hazardous substance
or EHS by reviewing the federally enforceable permit limits and control
regulations that apply to your releases of hazardous substances or
EHSs. Where the federally enforceable permit limits and control
regulations, considered together, have the specific effect of limiting
or eliminating releases of a hazardous substance or EHS, we will infer
that these permit limits and control regulations were designed to
achieve that result unless circumstances or evidence clearly indicate
to the contrary. The following criteria may help you determine whether
a permit limit or control requirement for VOC or PM has the specific
effect of limiting or eliminating the release of a hazardous substance
or EHS:
Are the federally enforceable permit limits short term, or
do the federally enforceable control requirements minimize the
likelihood of a substantial release of a hazardous substance or EHS? If
short term limits control releases of the hazardous substances or EHS,
even when the limit is expressed in VOC or PM terms, the releases of
those substances subject to short term limits would probably qualify
for the CERCLA federally permitted release definition.
Does the permit application or applicable regulation
(including supporting materials such as preambles, technical background
documents, or details in the permit application that are referenced in
the permit) include information that clearly shows that the federally
enforceable VOC or PM limits have the specific effect of limiting or
eliminating the release of the designated hazardous substance or EHS?
If so, then the releases of those substances would probably qualify for
the CERCLA section 101(10)(H) federally permitted release exemption.
Permit limits and control regulations usually do not control or
limit unanticipated releases such as accidents or malfunctions and for
that reason such releases generally do not qualify for the CERCLA
section 101(10)(H) federally permitted release exemption.
If I am in compliance with my federally enforceable permit
limit for NOX issued under Title I of the CAA, would my
release of NO and NO2 equal to or greater than the RQ qualify for the
CERCLA section 101(10)(H) federally permitted release exemption?
Yes. NOX permit limits and control regulations under CAA
Title I are designed to regulate nitrogen oxide (``NO'') and nitrogen
dioxide (``NO2'') emissions, and their hazardous impacts are
taken into consideration when establishing these limits. Thus,
NOX permit limits are sufficient to meet the CERCLA
federally permitted release definition for releases of NO and
NO2. Accordingly, your releases of NO or NO2 are
federally permitted releases if they are in compliance with your
NOX permit limit.
V. Minor Sources
NESHAP, SIP or other CAA permitting requirements are not
applicable to my source because my emissions are below an annual
threshold limit. Would my releases meet the definition of CERCLA
section 101(10)(H) federally permitted release?
Releases in compliance with a federally enforceable threshold as
well as releases that comply with any federally enforceable technology
requirements, operational requirements, work practices or other control
practices, would generally meet the definition of federally permitted
releases in CERCLA section 101(10)(H) when the emission threshold
limits or eliminates the release of the designated
[[Page 18903]]
hazardous substance or EHS at issue. Releases of hazardous substances
or EHSs from the normal operations of such minor sources would qualify
for the CERCLA section 101(10)(H) federally permitted release
definition when the emissions of designated hazardous substances or
EHSs are subject to the threshold limit imposed by law or regulation.
For example, under the CAA section 112 ``area sources'' (sources that
do not have the potential to emit 10 tons per year or more of any one
HAP, or 25 tons per year or more of a combination of HAPs) do not have
to comply with NESHAP regulations that apply to major sources only, as
long as they stay below that threshold. If their emissions exceed this
limit they must comply with the appropriate NESHAP standards for their
major source. Releases of designated hazardous substances or EHSs from
normal operations are limited by this standard and therefore meet the
definition of federally permitted release in CERCLA 101(10)(H).
In addition to thresholds under the CAA section 112, some states
have incorporated regulations into their federally enforceable CAA
section 110 state implementation plans (``SIPs'') imposing federally
enforceable thresholds on air toxics in addition to criteria pollutants
such as NOX or sulfur dioxide (SO2). As long as a
source complies with the emission (or potential-to-emit) thresholds, it
does not have to comply with other CAA requirements. These sources are
commonly referred to as minor sources. A release of a hazardous
substance or EHS resulting from normal operations of a minor source
that is in compliance with these SIP regulations generally meet the
CERCLA definition of a federally permitted release. See section IV
(Criteria Pollutants: VOC and PM) for a discussion on whether VOC or PM
limits and controls qualify as CERCLA federally permitted releases for
releases of designated hazardous substances or EHSs. If, as discussed
in that section, federally enforceable VOC or PM thresholds for minor
sources limit emissions of the designated hazardous substance or EHS,
these releases would generally meet the definition of federally
permitted release in CERCLA section 101(10)(H).
These thresholds, however, generally do not control unanticipated
releases such as accidents or malfunctions. The thresholds for minor
sources are usually only directed at the facility's releases from its
normal operations. Even a very small source could have an accident or
malfunction that causes a release of a hazardous substance or EHS that
requires an immediate response. The Senate committee report stated that
``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 Report No. 96-848 at 48. Area sources
and other sources that are subject to a regulation that limits their
total annual emissions should generally report their releases at or
above the RQ of hazardous substances and EHSs that are caused by
accidents, malfunctions, unanticipated releases and other releases that
are not part of the facility's normal operations.
VI. Waivers
My hazardous release is subject to a waiver pursuant to
CAA section 111. Would this release qualify for the CERCLA federally
permitted release exemption?
Yes, your release subject to the waiver is a CERCLA federally
permitted release. Section 101(10)(H) of CERCLA exempts releases
subject to ``* * * any schedule or waiver granted, promulgated, or
approved under * * *'' the CAA sections 110, 111, 112 and Title I Parts
C and D. 42 U.S.C. 9601(10)(H)(internal citations omitted).
As an example, under section 111(j)(1) of the CAA, we 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 the technology does not result in an
emission reduction that equals or exceeds the applicable standard, we
will terminate the waiver and establish a schedule for compliance. The
release of a hazardous substance or EHS that would have been controlled
by the NSPS without the waiver is a CERCLA federally permitted release,
as long as it is in compliance with the terms of the CAA waiver.
VII. Accidents and Malfunctions
I had an accidental release of a hazardous substance above
the CERCLA RQ while I was operating consistent with my accident and
malfunction plan. Would my release, qualify for the CERCLA section
101(10)(H) federally permitted release exemption?
In most circumstances, releases resulting from accidents and
malfunctions do not qualify for the federally permitted release
exemption as defined in CERCLA section 101(10)(H). Releases due to
accidents and malfunctions, because they are by definition not
anticipated, are difficult to subject to controls which limit or
eliminate emissions. Congress did not intend to exempt unanticipated
releases such as accidents and malfunctions 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 Report No. 96-848 at 48.
Although the CAA requires accident and malfunction plans in order
to prevent, identify and minimize accidental releases, these plans may
be too general to be considered specifically designed to limit or
eliminate emissions of a designated hazardous pollutant or a criteria
pollutant, and thus releases resulting from accidents and malfunctions
would generally not qualify as CERCLA federally permitted releases.
For example, in In re Borden Chemicals & Plastics, Co.,
[CERCLA]EPCRA 003-1992 (Order Granting Partial Accelerated Decision
Concerning Liability, Feb. 18, 1993), the Administrative Law Judge
concluded that a release is only a CERCLA federally permitted release
if the regulation imposes an emission limit or otherwise controls the
release. In Borden, the judge held that the discharge from an emergency
relief valve was not a federally permitted release, regardless of
whether the discharge violated the CAA, because the release was not
controlled by the NESHAP regulation.
Nevertheless, we realize that there are a wide variety of
approaches to dealing with accidents and malfunctions in CAA
regulations, permits and SIPs. Accordingly, there may be unusual
circumstances in which a release of a hazardous substance or EHS that
resulted from an accident or malfunction might qualify for the
federally permitted release exemption in section 101(10)(H) of CERCLA.
Regardless, EPA strongly encourages the prompt reporting of any release
associated with an accident or malfunction. In addition, remember that
under many provisions in the CAA, in order for a release to qualify as
an accident or malfunction it must not be preventable. Releases that
were preventable may violate the general duty clause of the CAA.
[[Page 18904]]
VIII. Start-up and Shut-down
I am operating under an approved start-up/shut-down plan.
If I have a release of a hazardous substance during a start-up or shut-
down, will it qualify as a federally permitted release?
If your release is in compliance with the requirements in an
approved start-up/shut-down plan which contains federally enforceable
procedures which limit or control your releases during start-up or
shut-down, then your release would generally qualify for the federally
permitted release exemption. As discussed above, like accidents and
malfunctions, emissions from start-ups and shut-downs have been handled
in a variety of ways in CAA regulations, permits and SIPs. In many
instances, facilities must have a start-up and shut-down plan that sets
forth procedures for operating and maintaining a source during those
periods. See, e.g., 40 CFR 63.6(e)(3). Unlike malfunctions and
accidents which are unpredictable, releases from start-ups or shut-
downs may be anticipated and therefore they may be more likely to have
emission limitations or controls.
However, if a release of a hazardous substance or EHS is exempt
from CAA regulation, or is otherwise not subject to emission limits or
other controls during the start-up or shut-down of an operation, then
these uncontrolled releases do not qualify for the federally permitted
release exemption and must comply with CERCLA and EPCRA notification
requirements.
IX. Conclusion
The federally permitted release exemption to the CERCLA section 103
and EPCRA section 304 notification requirements exempts from the
notification requirements certain air emissions of hazardous substances
and EHSs when the release of the hazardous substance or EHS is subject
to a permit or control regulation issued pursuant to CAA sections 111
and 112, Title I part C, Title I part D, or a section 110 SIP. Each
facility is responsible for determining whether its hazardous substance
and EHS releases qualify for the notification exemption in light of the
particular CAA requirements that apply to the facility.
Appendix B--Enforcement Discretion
In a memorandum dated February 15, 2000, and in subsequent
extensions dated September 13, 2000, November 30, 2000, April 20, 2001,
July 31, 2001, October 10, 2001, January 16, 2002, and March 7, 2002,
the Assistant Administrator of the Office of Enforcement and Compliance
Assurance exercised discretion to not enforce against facilities for
failure to report certain types of air releases until publication of
the revised guidance. We are extending this discretion for 180 days
following the date of this notice unless the release is:
(1) an unanticipated release, such as an accident or malfunction;
(2) a release in excess of a permit limit or control regulation as
described in the EAB decision In re Mobil Oil Corp., EPCRA Appeal No.
94-2, 5 EAD 490 (EAB Sept. 29, 1994);
(3) a release from an emergency relief valve, as described in the
ALJ's decision In re Borden Chemicals & Plastics, Co., [CERCLA] EPCRA
003-1992 (Order Granting Partial Accelerated Decision Concerning
Liability, Feb. 18, 1993);
(4) a release from a source that is grandfathered and not subject
to CAA permits or control regulations; or
(5) a release from a source that is otherwise exempt and not
subject to any federally enforceable CAA permit or control regulation.
Furthermore, we recognize that certain uncontrolled air emissions
of nitrogen oxide (``NO'') and nitrogen dioxide (``NO2'')
equal to or greater than the ten pound reportable quantity may rarely
require a government response. The Agency supports the proposal of an
administrative reporting exemption for certain NO and NO2
air releases which could result in these releases not being required to
be reported under CERCLA section 103 and EPCRA section 304. EPA will
move forward with the proposal as soon as resources become available.
Until the process for an administrative reporting exemption is
complete, or until we publish a notice stating otherwise, we will
exercise enforcement discretion and not enforce against owners/
operators or persons in charge for failure to report air releases of NO
and NO2 that would otherwise trigger a reporting obligation
under CERCLA section 103 and EPCRA section 304, unless such releases
are the result of an accident or malfunction.
[FR Doc. 02-9322 Filed 4-16-02; 8:45 am]
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