[Federal Register Volume 67, Number 78 (Tuesday, April 23, 2002)]
[Notices]
[Pages 19750-19752]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-9914]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-7174-8]
Guidance on the CERCLA Section 101(10)(H) Federally Permitted
Release Definition for Clean Air Act ``Grandfathered'' Sources
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 as
it applies to grandfathered sources under the Clean Air Act (CAA).
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
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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., Washington DC, 20460,
attention Lynn Beasley, mail code 5204G.
SUPPLEMENTARY INFORMATION:
Purpose of this Notice
This notice announces guidance discussing the application of the
federally permitted release exemption to air emissions from sources
that are ``grandfathered'' under the Clean Air Act (``CAA''). The
federally permitted release exemption pertains 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. These releases are exempt 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 CAA.
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'').
The Interim Guidance discussed several issues regarding the application
of the federally permitted release exemption to air releases, including
whether the exemption applies to releases from grandfathered sources.
We requested comment on the Interim Guidance and held a public meeting,
giving the public an opportunity to raise their concerns about these
issues. On April 17, 2002, the Agency published the ``Guidance on the
CERCLA section 101(10)(H) Federally Permitted Release Definition for
Certain Air Emissions,'' (67 FR 18899). This Guidance responded to the
concerns raised by commentors and superceded the Interim Guidance. The
Guidance, however, did not address the question of grandfathered
sources and federally permitted releases. The document we publish today
discusses grandfathered sources. This document reflects our
consideration of the comments submitted on the Interim Guidance
regarding that issue, general concerns raised by previous Federal
Register notices on the definition of federally permitted release, and
our own experience in implementing the reporting requirements under
CERCLA section 103 and EPCRA section 304. This guidance also
incorporates principles articulated in EPA administrative
adjudications.
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. Further, 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 applicable
permit language or control requirements. This guidance has no effect on
CAA permit requirements.
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 Clean Air Act ``Grandfathered''
Sources
Section 103 of the Comprehensive Environmental Response,
Compensation, and Liability Act (``CERCLA'') and section 304 of the
Emergency Planning and Community Right-to-Know Act (``EPCRA'')
require that facilities notify federal, state and local authorities
of releases of hazardous substances, if the amount of the release
reaches a designated reportable quantity. Federally permitted
releases, as defined in CERCLA section 101(10), are exempt from the
CERCLA and EPCRA release reporting requirements. Federally permitted
releases are certain releases that are permitted or controlled under
several environmental statutes. 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 document addresses the federally permitted release
exemption as applied to releases from grandfathered sources under
the 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.
42 U.S.C. 9601(10)(H)(internal citations omitted). The Senate
committee report explained the CERCLA definition of federally
permitted release for air emissions:
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).
Generally, releases from grandfathered sources do not meet the
definition of federally permitted releases, because Congress
exempted those sources, rather than imposing permits or control
regulations on them. Congress, in enacting several of the CAA
programs, did not require existing pollution sources (unless
modified) to install pollution controls. For example, certain
requirements of the New Source Performance Standards Program apply
specifically to new sources. See 42 U.S.C. 7411(b). Exempted
existing sources are known as ``grandfathered'' sources under Title
I of the CAA. Congress structured the CAA to force pollution control
technology in a cost-effective manner. Thus, the decision not to
require those sources was primarily based on economic
considerations, i.e., when pollution control technology could be
efficiently and cost-effectively engineered into plants. See, for
example, H.R. Rep. No. 95-294, at 185. For this reason, a facility's
status as a grandfathered source does not necessarily mean that
emissions from this facility do not pose a public health hazard.
To the extent that the releases from grandfathered sources are
not subject to permits or control regulations, they generally will
not meet the CERCLA section 101(10)(H) definition of federally
permitted release based on the status of the facility as
grandfathered. However, a source that is exempt from a CAA
requirement because of its grandfathered status may be subject to
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other applicable CAA permits or regulations. If there are federally
enforceable permits or control regulations issued under the CAA
provisions cited in CERCLA 101(10)(H) that apply to releases of
hazardous substances from a grandfathered source, despite the
grandfathered source exemption, those releases may qualify as
federally permitted releases under CERCLA section 101(10)(H).
[FR Doc. 02-9914 Filed 4-22-02; 8:45 am]
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