[Federal Register Volume 65, Number 124 (Tuesday, June 27, 2000)]
[Notices]
[Pages 39615-39617]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-16181]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-6725-6]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The Environmental Protection Agency (EPA) is announcing that 
it will revise the Interim Guidance on the CERCLA Section 101(10)(H) 
Federally Permitted Release Definition for Certain Air Emissions. EPA 
has suspended the Interim Guidance until revised guidance is published.
    EPA published the Interim Guidance in the Federal Register on 
December 21, 1999. EPA stated in the Interim Guidance that ``EPA will 
revise the guidance if, after reviewing the comments, the Agency 
believes that the guidance warrants modification.'' EPA provided 
extensive opportunity for comment. The Interim Guidance public comment 
period was extended twice and EPA also held a public meeting on the 
Interim Guidance on February 24, 2000. EPA received numerous comments 
on the Interim Guidance. Upon review of these comments, EPA has decided 
to revise the Interim Guidance. EPA expects to issue revised guidance 
to replace the Interim Guidance in July 2000.

[[Page 39616]]

    On March 17 and March 20, 2000, several petitioners filed 
challenges to the Interim Guidance in the United States Court of 
Appeals for the District of Columbia, consolidated in National 
Association of Manufacturers, et al v. Browner (Nos. 00-1111 and 00-
1121). On May 19, 2000, EPA and petitioners jointly moved to vacate the 
schedule for briefing and oral argument and to hold all proceedings in 
abeyance until August 25, 2000, or until EPA issues revisions to the 
Interim Guidance, whichever comes first. Because of the pending 
revisions to the guidance the parties agreed that it would be wasteful 
and inefficient to brief the merits of the Interim Guidance. In 
addition, EPA suspended the Interim Guidance until the revisions are 
issued. This means that EPA will not rely on or cite the suspended 
Interim Guidance in any actions, including actions to enforce the 
reporting requirements under the Comprehensive Environmental Response, 
Compensation and Liability Act (CERCLA) or the Emergency Planning and 
Community Right-to-Know Act (EPCRA). EPA will continue to rely on the 
statute, regulations, and previous decisions when enforcing CERCLA and 
EPCRA.
    EPA, in this Federal Register document, is providing notice to the 
regulated community and the interested public on the status of the 
Interim Guidance. Below is the text of the Joint Motion as filed and 
signed by the parties on May 19, 2000, and granted by the U.S. Court of 
Appeals on May 24, 2000 (attachment 1). The court also granted a 
similar joint motion to vacate scheduling and hold the case in abeyance 
in Alabama Power Co. v. Browner (Nos. 89-1408 and 89-1765), a prior, 
separate case which also raises issues regarding federally permitted 
releases.
    On February 15, 2000, EPA issued an enforcement discretion memo to 
its regional offices regarding the enforcement of certain CERCLA 
section 103 and EPCRA section 304 violations. EPA is announcing that 
the period of enforcement discretion discussed in that memo is extended 
until August 25, 2000. Copies of the memo may be obtained by calling 
EPA's Enforcement and Compliance Docket and Information Center at 202-
564-2614/2119, or by E-mail at [email protected].

FOR FURTHER INFORMATION CONTACT: For further information regarding this 
notice, please contact Virginia Phillips, Environmental Protection 
Agency (Mail Code 2245A), 1200 Pennsylvania Avenue, NW, Washington, DC 
20460; (202) 564-6139.

    Dated: June 16, 2000.
Eric Schaeffer,
Director, Office of Regulatory Enforcement.

In the United States Court of Appeals for the District of Columbia 
Circuit

[Case No. 00-1111 and consolidated Case No. 00-1121]

National Association of Manufacturers, et al., Petitioners, v. United 
States Environmental Protection Agency, Respondent)

Joint Motion To Vacate Schedule for Briefing and Oral Argument and To 
Hold All Proceedings in Abeyance
    The respondent, Environmental Protection Agency (``EPA''), and both 
sets of Petitioners in these consolidated cases jointly move to vacate 
the schedule for briefing and oral argument and request the Court to 
hold all proceedings in abeyance until August 25, 2000, or until EPA 
issues revisions to the guidance document challenged in this case, 
whichever comes first, at which time the parties will submit motions 
regarding future proceedings in the case. The parties seek this relief 
because EPA has suspended the interim guidance document challenged by 
the petitioners until it issues revisions to that document, which it is 
currently drafting and which it expects to issue in July 2000 as a 
replacement of the interim guidance document. In further support of 
this motion, the parties state as follows:
    (1) On December 21, 1999, EPA issued its ``Interim Guidance on the 
CERCLA Section 101(10)(H) Federally Permitted Release Definition for 
Certain Air Emissions,'' published at 64 FR 71614 (December 21, 1999) 
(``Interim Guidance''). Although there is disagreement among the 
parties regarding the Interim Guidance and its effects, in general the 
Interim Guidance includes statements by EPA on the subject of CERCLA's 
federally permitted release exemption in the context of certain air 
emissions. Federally permitted releases are exempt from the reporting 
requirements under CERCLA section 103, 42 U.S.C. 9603(a), and section 
304 of the Emergency Preparedness and Community Right-to-Know Act 
(``EPCRA''), 42 U.S.C. 11004(a). In addition, federally permitted 
releases are exempt from CERCLA liability under CERCLA section 107(j). 
42 U.S.C. 9607(j). Federally permitted releases are defined at CERCLA 
section 101(10). That provision includes a definition of federally 
permitted releases for emissions into the air pursuant to the Clean Air 
Act. CERCLA section 101(10)(H); 42 U.S.C. 9601(10)(H).
    (2) In the Interim Guidance, EPA requested comments on the 
document's contents, declared that it intended to conduct a public 
meeting on the Interim Guidance, and stated that ``EPA will revise the 
guidance if, after reviewing the comments, the Agency believes that the 
guidance warrants modification.'' 64 FR 71614, col. 1.
    (3) On March 17 and 20, 2000, the Petitioners filed their 
respective petitions challenging the Interim Guidance.
    (4) On April 18, Petitioners in Case No. 00-1111 filed 
``Petitioners'' Motion for Expedited Consideration of Petition for 
Review, Accelerated Briefing Schedule and Stay Pending Review.'' On 
April 26, in its opposition to Petitioners' motion, EPA cross-moved to 
dismiss both petitions. On May 2, 2000, the Court referred the motion 
to dismiss to the merits panel, denied the motion for stay, and set a 
briefing schedule, with Petitioners' opening brief due on June 1. The 
Court has scheduled oral argument for September 6, 2000.
    (5) On February 24, 2000, EPA conducted a public meeting on the 
Interim Guidance. In addition to comments received at the public 
meeting, EPA has received numerous written comments on the Interim 
Guidance. Upon review of these comments, EPA has decided to revise the 
Interim Guidance.
    (6) EPA expects to issue revisions to the Interim Guidance in July, 
2000. These revisions will replace the Interim Guidance. Accordingly, 
it would be wasteful and inefficient to brief the merits of the Interim 
Guidance. EPA therefore agrees to suspend the Interim Guidance until 
the issuance of the revisions. EPA will not rely on or cite the 
suspended Interim Guidance in any actions, including actions to enforce 
the reporting requirements under CERCLA or EPCRA.
    (7) Because EPA expects to issue revisions that will replace the 
Interim Guidance during the currently scheduled briefing period or 
shortly after briefing is completed, but before the scheduled date for 
oral argument in this case, the parties request that the Court hold in 
abeyance all proceedings in this case until August 25, 2000, or until 
EPA issues revisions to the Interim Guidance, whichever comes first. At 
that time, the parties would submit motions regarding the future 
proceedings in the case. If, as expected, EPA has issued revisions that 
replace the Interim Guidance, those motions would discuss the 
disposition of the

[[Page 39617]]

petitions filed in this case, which challenge the current Interim 
Guidance.
    (8) Intervenor has represented that it agrees to the relief 
requested by this motion.
    For the reasons set forth above, the parties request that this 
Court vacate the schedule for briefing and oral argument and request 
the Court to hold all proceedings in this case in abeyance until August 
25, 2000 or until EPA issues revisions to the Interim Guidance, 
whichever comes first, at which time the parties would submit motions 
regarding future proceedings in the case.

    Dated: May 19, 2000.

    Respectfully submitted,
    For Respondent EPA:
Lois J. Schiffer,
Assistant Attorney General, Environment and Natural Resources Division.

    Thomas Lorenzen,
G. Scott Williams,
Environmental Defense Section, United States Department of Justice, 
P.O. Box 23986, Washington D.C. 20026-3986, (202) 514-1950.

    Nina Rivera,
Office of General Counsel (2366A), Environmental Protection Agency, 401 
M Street, SW., Washington, DC 20460.
    For Petitioners National Association of Manufacturers, et al.:

    Paul G. Wallach,
    James L. Quarles III,
    James G. Votaw,
Hale and Dorr LLP, 1455 Pennsylvania Avenue, NW., Washington, DC 20004, 
(202) 942-8429.
    For Petitioners Appalachian Power Co., et al.:

    Henry V. Nickel,
    F. William Brownell,
    Norman W. Fichthorn,
Hunton & Williams, 1900 K Street, NW., Washington, DC 20006, (202) 955-
1673.

[FR Doc. 00-16181 Filed 6-26-00; 8:45 am]
BILLING CODE 6560-50-P