[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]
BILLING CODE 6560-50-P