FEB 2 7 1987 

p.i 

ENVIRONMENTAL PROTECTION AGENCY 

40 CFR Parts 117, 300, and 302 

[ " 1 

Reportable Quantities -- Federally Permitted Releases 

AGENCY: Environmental Protection Agency (EPA) 

ACTION: Proposed Rule 

SUMMARY: Sections 103(a) and 103(b) of the Comprehensive Environmental 

Response, Compensation, and Liability Act of 1980 (CERCLA) require that 

persons in charge of vessels or facilities from which hazardous substances 

have been released in quantities that are equal to or greater than the 

reportable quantities (RQs) immediately notify the National Response Center of 

the release. Section 102(b) sets an RQ of one pound for hazardous substances, 

except those for which RQs have been established pursuant to Section 311(b)(4) 

of the Clean Water Act. Section 102(a) authorizes the Environmental 

Protection Agency to adjust RQs for hazardous substances and to designate as 

hazardous substances those substances which, when released into the 

environment, may present substantial danger to the public health or welfare or 

the environment. 

Section 101(10) of CERCLA defines "federally permitted release" in terms 

of the discharge requirements of a number of State and Federal programs. The 

notification requirement under sections 103(a) and 103(b) of CERCLA applies to 

any release of a hazardous substance "other than a federally permitted 

release." Section 107(j) of CERCLA also exempts a "federally permitted 

release, except those federally permitted releases defined by sections 
JP2^ 

v. 

101(10)(B) and (C), from liability under CERCLA for response costs and damages 

incurred due to the release. 

The purpose of this rulemaking is to clarify the federally permitted 

release exemption from CERCLA release reporting and liability provisions. The 

Agency also proposes in this rule to make conforming changes to the language 

of 40 CFR Part 117. Finally, this rulemaking addresses several issues related 

to the definition of "release into the environment" under CERCLA. 

DATES: Comments must be received on or before [insert 60 days from FR 

publication date]. 

ADDRESSES: The toll-free telephone number of the National Response Center is 

1-800/424-8802; in the Washington, DC metropolitan area, the number is 

1-202/426-2675. 

COMMENTS: Comments should be submitted in triplicate to: Emergency Response 

Division, Superfund Docket Clerk, Attention: Docket Number 101(10) FPR, Room 

LG-100, U.S. Environmental Protection Agency, 401 M Street, SW, Washington, 

DC 20460. 

DOCKET: Copies of materials relevant to this rulemaking are kept in Room 

LG-100, at the above address. The docket is available for inspection between 

9:00 a.m. and 4:30 p.m. Monday through Friday, excluding Federal holidays. As 

provided in 40 CFR Part 2, a reasonable fee may be charged for copying 

services. 

FOR FURTHER INFORMATION CONTACT: 

Mr. Hubert Watters, Project Officer, 

Response Standards and Criteria Branch, 

Emergency Response Division (WH-548B), 

U.S. Environmental Protection Agency, 

401 M Street, SW, 

Washington, DC 20460, 
P.3 

or the 

RCRA/Superfund Hotline 

1-800/424-9356; 

in Washington, DC 

1-202/382-3000 

SUPPLEMENTARY INFORMATION: The contents of today's preamble are listed in the 

following outline: 

I. Introduction and General Comments 

II. Elements of the Exemption 

III. Releases into the Environment 

A. In General 

B. PCB Waste Disposal 

IV. Discharges to POTWs 

V. Summary of Supporting Analyses 

I. INTRODUCTION AND GENERAL COMMENTS 

The Comprehensive Environmental Response, Compensation, and Liability Act 

of 1980 (P.L. 96-510), 42 U.S.C. 9601 et s_eq. (CERCLA or the Act), enacted on 

December 11, 1980, and amended by the Superfund Amendments and Reauthorization 

Act of 1986 (SARA), establishes broad Federal authority to respond to releases 

or threats of releases of hazardous substances from vessels and facilities. 

Section 101(14) of the Act defines the term "hazardous substances" by 

reference to other environmental statutes with authority further granted to 

the Environmental Protection Agency (EPA) to designate additional hazardous 

substances under CERCLA section 102(a). The CERCLA list currently contains 

717 hazardous substances. 

Section 103(a) of the Act require that, as soon as the person in charge of 

a vessel or facility has knowledge of a release of a hazardous substance from 

such vessel or facility in a quantity equal to or greater than the reportable 

quantity (RQ) for that substance, that person shall notify the National 

Response Center immediately. Section 102(b) of CERCLA establishes RQs for 

releases of designated hazardous substances at one pound, except for those 
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substances for which RQs were established pursuant to section 311(b)(4) of the 

Clean Water Act (CWA). Section 102 of CERCLA authorizes EPA to adjust all of 

these RQs. 

Section 103(b) authorizes penalties, including criminal sanctions, for 

persons in charge of vessels or facilities who fail to report releases of 

hazardous substances that equal or exceed RQs. Section 109 of SARA amends 

section 103(b) of CERCLA, increasing the maximum penalties and years of 

imprisonment. Any person who, as soon as that person has knowledge of a 

reportable release, fails to report the release immediately pursuant to 

section 103(b) or who submits any information which he knows to be false or 

misleading, shall, upon conviction, be fined in accordance with the applicable 

provisions of Title 18, United States Code (not more than $250,000 or 

$500,000, depending upon whether the violator is an individual or an 

organization), or imprisoned for not more than three years (or not more than 

five years for second and subsequent convictions), or both. Notifications 

received under section 103(b) or information obtained by exploitation of such 

notifications cannot be used against any reporting person in any criminal 

case, except a prosecution for perjury or for giving a false statement. 

Section 109 of SARA also provides for a system of administrative penalties for 

violations of CERCLA section 103(b), enforceable through civil proceedings. 

One of the exemptions from section 103 reporting requirements is for 

"federally permitted releases." The definition of "federally permitted 

release" in CERCLA section 101(10) specifically identifies releases permitted 

under other environmental statutes, including: 

• Discharges covered by a National Pollutant Discharge 

Elimination System permit, permit application, or permit 

administrative record; 
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• Discharges in compliance with a legally enforceable 

permit for dredged or fill materials under section 404 

of the CWA; 

• Releases in compliance with a legally enforceable 

Resource Conservation and Recovery Act (RCRA) hazardous 

waste management facility final permit; 

• Releases in compliance with a legally enforceable 

permit under the Marine Protection, Research, and 

Sanctuaries Act; 

• Any injections of fluids authorized under federally 

approved underground injection control programs 

(including federally authorized State programs) pursuant 

to Part C of the Safe Drinking Water Act; 

• Any air emissions subject to permit or control 

regulations under certain provisions of the Clean Air 

Act (CAA); 

• Any injections of fluids or other materials authorized 

by applicable State law for the purpose of stimulating 

or treating wells for the production of crude oil, 

natural gas, or water, or for other production or 

enhanced recovery purposes; 

• The introduction of any pollutant into a publicly 

owned treatment works when such pollutant is specified 

in and in compliance with pretreatment standards and a 

pretreatment program submitted to EPA for approval; and 

• Any release of source, special nuclear, or byproduct 

material in compliance with a legally enforceable 

license, permit, regulation, or order issued pursuant to 

the Atomic Energy Act. 

In the May 25, 1983, Notice of Proposed Rulemaking (NPRM) (48 FR 23552) 

that proposed to adjust certain RQs, EPA explained the Agency's interpretation 

of each of the types of releases exempted by the definition of "federally 

permitted release." EPA has decided to repropose the rule for federally 

permitted releases today rather than publish this as a final rule because of 

the amount of time that has passed since the original proposal. EPA received 

many comments on various aspects of the federally permitted release exemption, 

most of which urged a broader interpretation of one or more of the federally 
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permitted releases. General comments on the scope of the exemption are 

discussed below, followed by discussion of comments on specific types of 

federally permitted releases. 

Several commenters discussed the potential duplication between CERCLA 

reporting requirements and reporting requirements under existing permit 

programs for releases exceeding levels set by the terms of the permit. These 

commenters suggested that, because permit programs already may require 

notification of a regulatory authority in the event of a release exceeding 

permit levels, such releases should be exempt from CERCLA notification 

requirements. EPA does hot agree that such releases should be considered 

"federally permitted" or that they should be exempt from notification when 

permitted levels are exceeded by an RQ or more. Moreover, CERCLA section 

101(10) generally limits the federally permitted release exemption to those 

releases "in compliance with" permitted or regulatory requirements. A 

straightforward interpretation of the statute indicates that if a release 

exceeds permitted levels, it is not "in compliance with" the permit and cannot 

be "federally permitted." Therefore, if the amount of the release exceeding 

the permitted level, i.e., the portion of the release that is not federally 

permitted, is equal to or exceeds the RQ, the release must be reported 

immediately to the National Response Center. This approach also avoids the 

numerous and unnecessary reports that could be generated by the reporting of 

small permit excursions that are better addressed by the permitting authority. 

EPA recognizes that its interpretation may result in some duplication of 

notification requirements. Nevertheless, the Agency believes that this 

interpretation is required by the plain language of the statute and is 

essential to ensure adequate protection of public health and the environment. 
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There are significant differences between the purposes served by CERCLA 

notification and the purposes of permit programs. The permit notification 

requirements and the information that is reported under permit programs may 

differ from one program to another. If permit notification requirements were 

allowed to suffice for CERCLA notification, the information available to the 

CERCLA program on releases may be inconsistent and incomplete. Permit 

programs also differ in their reporting mechanisms and do not always require 

immediate notification. In some cases, releases in excess of permitted levels 

need only be reported at specific intervals (e.g., monthly). Moreover, 

releases in excess of permit levels are reported to different Federal and 

State authorities, depending upon the permit. CERCLA requires immediate 

notification to a central office, the National Response Center, as soon as the 

person in charge has knowledge of a release, so that timely response may be 

initiated if EPA determines that the release may present substantial danger to 

public health or the environment. 

Moreover, EPA is not convinced that requiring persons in charge of a 

vessel or facility to make one additional phone call to a toll-free number 

constitutes an undue burden on the regulated community. In the Agency's view, 

the benefits of immediately reporting potentially harmful releases to a 

central agency outweigh any minor additional requirements imposed on releasers 

of hazardous substances. 

Several commenters recommended that releases be considered federally 

permitted releases (and therefore exempt from CERCLA notification and 

liability provisions) if they are exempt from regulation by the statutes 

listed in CERCLA section 101(10). The exemption of a type of release from 

regulation under a particular statute, however, may have little or no bearing 
P.8 

on whether a Federal response action might be needed for a specific release. 

The Agency has determined, therefore, that releases exempt from regulation by 

the statutes listed in section 101(10) will not be considered federally 

permitted releases. For example, discharges of dredge or fill material from 

normal farming, silviculture, and ranching activities that are exempted under 

CWA section 404(f) from dredge and fill permit requirements are not "federally 

permitted" for purposes of CERCLA, and must be reported when the discharge 

contains hazardous substances that have been released in amounts equalling or 

exceeding the applicable RQs. 

One commenter requested that a release still be considered a federally 

permitted release when there is only a "technical" violation of permit 

conditions (i.e., where the violation relates to operating, monitoring, or 

reporting procedures and does not affect the character or quantity of the 

release). EPA agrees that notification of the National Response Center would 

be unnecessary in such a case and should be addressed by the permit programs 

as a permit violation. If the characteristics of a release (both the 

substance involved and the quantity or concentration) are in compliance with a 

permit described in section 101(10), CERCLA notification will not be 

required. However, to the extent that a release exceeds the permit limit with 

regard to the quantity of a substance, it will not be considered a federally 

permitted release and CERCLA notification will be required when the release of 

the hazardous substance exceeds its permitted level by an RQ or more. For 

those Federal permit programs that do not include, in individual permits, 

specific numerical levels for hazardous substances, any release that equals or 

exceeds an RQ and is not in compliance with the terms of the permit must be 

reported to the National Response Center. 
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Several commenters urged that various types of releases (such as all 

"routine" releases or releases covered by other permit programs) not mentioned 

in section 101(10) be considered federally permitted releases. EPA cannot 

support this position. Federally permitted releases are specifically listed 

in section 101(10). This detailed list clearly indicates that Congress did 

not intend other releases to be exempt under this provision. 

II. ELEMENTS OF THE EXEMPTION 

Each federally permitted release exemption is discussed below. Relevant 

comments received on the May 25, 1983 NPRM pertaining to each exemption also 

are discussed. 

Releases from Point Sources with National Pollutant Discharge Elimination 

System (NPDES) Permits. Section 101(10) identifies three types of releases 

from point sources with NPDES permits as federally permitted releases: 

(A) discharges in compliance with a permit under section 

402 of the Federal Water Pollution Control Act, (B) 

discharges resulting from circumstances identified and 

reviewed and made part of the public record with respect to 

a permit issued or modified under section 402 of the Federal 

Water Pollution Control Act and subject to a condition of 

such permit, (C) continuous or anticipated intermittent 

discharges from a point source, identified in a permit or 

permit application under section 402 of the Federal Water 

Pollution Control Act, which are caused by events occurring 

within the scope of relevant operating or treatment 

systems.... 

This language is identical to that used in section 311(a)(2) of the CWA to 

exclude these releases from the term "discharge" with respect to EPA's oil and 

hazardous substance spill response and prevention program. Furthermore, 

Congress intended, in enacting CERCLA section 101(10)(A), (B), and (C), that 

EPA's interpretation of the provisions under the CWA be continued under 
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CERCLA. (See Sen. Rep. 96-848, 96th Cong., 2nd Sess. 47 (1980).) Reflective 

of Congressional intent, the Agency proposes today that the interpretation 

provided in the regulatory language and the preambles to the rules 

implementing CWA section 311(a)(2) be applied to the NPDES exemptions under 

CERCLA section 101(10)(A), (B), and (C). 

The legislative history of the CWA explains that the purpose of section 

311(a)(2) was to exclude from section 311 coverage three types of discharges 

subject to CWA sections 402 NPDES and 309 enforcement provisions. Senator 

Stafford explained that: 

... we are attempting to draw a line between the provisions 

of the [CWA] under sections 301, 304, 402 regulating chronic 

discharges and 311 dealing with spills. At extremes, it is 

relatively easy to focus on the difference but. it can become 

complicated. The concept can be summarized by stating that 

those discharges of pollutants that a reasonable man would 

conclude are associated with permits, permit conditions, 

operation of treatment technology and permit violations 

would result in 402/309 sanctions; those discharges of 

pollutants that a reasonable man would conclude are episodic 

or classical spills not intended or capable of being 

processed through the permitted treatment system and outfall 

would result in the application of section 311." (124 

Congressional Record 37683 (1978).) 

In 1979, the Agency promulgated 40 CFR Part 117 that contains CWA 

reporting requirements for discharges of hazardous substances (44 FR 50776, 

August 29, 1979). Section 117.12 provided a regulatory interpretation of the 

three exclusions to the definition of "discharge" in CWA section 311(a)(2), 

and the preamble to that rule provided a detailed explanation of the three 

types of excluded discharges. In 1985, EPA proposed to amend the definition 

of "discharge" in 40 CFR Part 110, the discharge of oil regulation, to codify 

the three CWA exclusions (50 FR 9775, March 11, 1985). The preamble to the 

proposed oil discharge rule adopted the description of the three exclusions 

from the 1979 preamble to 40 CFR Part 117. 
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In today's rule, the Agency does not propose to revise the existing 

codification of CERCLA section 101(10)(A), (B), and (C) in the National 

Contingency Plan (40 CFR Part 300). Instead, the Agency proposes to continue 

the existing interpretation of the three types of discharges that are excluded 

from coverage under CWA section 311, and to apply that interpretation to the 

first three types of discharges included in the definition of "federally 

permitted release" under CERCLA section 101(10). This interpretation applies 

to the following regulatory provisions: 40 CFR 110.1, 117.12, and 300.6. The 

Agency, however, is proposing to make two clarifying amendments to 40 CFR 

117.12, that will be explained below in the appropriate discussions of the 

types of discharges. 

Therefore, under both CWA section 311 and CERCLA, any discharge or release 

of a hazardous substance that is not federally permitted, as described below, 

must be reported immediately to the National Response Center if it exceeds 

permit limits by an RQ or more; if the hazardous substance discharge or 

release is not subject to a numerical permit limit, any discharge or release 

that triggers a permit violation and equals or exceeds an RQ must be reported 

immediately. Similarly, under 40 CFR Part 110, any oil discharge that 

triggers a permit violation and causes an oil sheen must be reported 

immediately. 

Discharges excluded from CWA section 311 coverage and defined as federally 

permitted releases under CERCLA sections 101(10)(A), (B), and (C) are subject 

to the CWA section 309 enforcement provision that provides EPA with the 

authority to issue compliance orders, bring civil actions, and impose criminal 

and civil penalties. In addition, under CWA section 311(b)(6)(D), if the 

Federal government incurs any costs of removal of discharges excluded by 
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section 311(a)(2)(C), the Federal government can bring a civil action under 

the authority provided by CWA section 309(b) to recover such removal costs. 

Furthermore, under CERCLA section 107 (j), the response costs incurred by the 

Federal government in connection with the federally permitted releases defined 

by section 101(10) (B) and (C) can be recovered through a civil action brought 

under the authority of CWA section 309(b). 

The reporting requirements for releases subject to CERCLA section 

101(10)(A), (B), and (C) and excluded from CWA section 311(a)(2) are subject 

to the CWA section 402 24-hour notice. The Agency acknowledges that Congress 

recognized that the 24-hour reporting requirement may "create gaps in action 

necessary to protect the public or the environment." (See Senate Report No. 

96-848 (1980), p.47.) Congress suggested that the Agency amend the CWA 

section 402 reporting regulation to require that those releases excluded from 

CWA section 311 coverage and exempt from the CERCLA section 103 reporting 

requirement under section 101(10)(A), (B), and (C) be subject to an immediate 

notification requirement under the CWA section 402 NPDES regulations. 

(Ibid.) The Agency has not yet amended the NPDES regulations to require 

immediate notification of those releases exempt from section 311 and CERCLA. 

However, the Agency is considering two approaches to remedying the reporting 

"gap' identified by Congress: either amend the regulations implementing CWA 

section 311 (40 CFR Parts 110 and 117) and CERCLA section 103 (40 CFR Part 

302) to require immediate notification for the exempted releases, or amend the 

CWA section 402 NPDES regulations (40 CFR Part 122) to revise the 24-hour 

notification requirement to an immediate notification requirement for the 

exempted releases. Before the Agency proposes to require immediate 

notification for the exempted releases, the Agency solicits comments on the 
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"reporting gap," such as, examples of situations where the 24-hour notice was 

not sufficient to protect human health and the environment, and comments on 

the approaches discussed above. 

In the paragraphs that follow, the three types of NPDES discharges that 

correspond to the federally permitted releases in CERCLA sections 101(10)(A), 

(B), and (C) are described. For simplicity, these discharges will be referred 

to as Type A, B, and C, respectively. 

Type A discharges are those that are in compliance with an NPDES permit 

limit that specifically addresses the discharge in question. To qualify as a 

Type A discharge, the permit must either address the discharge directly 

through specific effluent limitations or through the use of indicator 

pollutants. In the case of the latter, the administrative record prepared 

during permit development must specifically identify the discharge of the 

pollutant as one of those pollutants the indicator is intended to represent. 

Type B discharges are foreseeable (i.e., identified in the NPDES permit's 

development record) and flow into a facility's effluent treatment system 

designed to treat the discharge. This second type of discharge is limited to 

on-site spills to the permitted treatment system that were identified and 

considered in the issuance of the permit but are not subject to any specific 

effluent limitations. Discharges are included only where (1) the source, 

nature, and amount of a potential discharge were identified and made part of 

the public record, and (2) the permit contained a condition requiring that the 

treatment system be capable of eliminating or abating the potential discharge. 

Therefore, if an on-site spill was processed through a treatment system 

capable of eliminating or abating the spill, and the spill is subject to a 

permit condition, a discharge resulting from the on-site spill would be 
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subject to CWA sections 402 and 309 and would be a federally permitted 

release. If an on-site spill is not passed through a treatment system or is 

not otherwise treated in any way, the discharge resulting from the on-site 

spill is subject to CWA section 311 and is not a federally permitted release. 

Also, discharges that result from on-site spills that are passed through 

treatment systems (1) that have not been demonstrated as capable of 

eliminating or abating the discharge and (2) for which no permit condition. 

exists are subject to CWA section 311 and are not federally permitted releases 

under CERCLA. 

A "condition" would include the existence of a treatment system or release 

prevention plans and other best management practices designed to address the 

discharge. Best management practices are operating methods or procedures to 

prevent or minimize the potential for the discharge of toxic or hazardous 

substances from processes ancillary to the industrial manufacturing or 

treatment process. For example, a discharger has a drainage system which will 

route spilled material from a broken hose connection to a holding tank or 

basin for subsequent treatment or discharge at a specified rate. To be 

eligible as a Type B discharge, the discharger must specifically identify such 

a system in the permit application. The proposed permit condition must be 

sufficient to treat the maximum potential spill from the identified source. 

Discharges that result from an on-site spill larger and more concentrated than 

the spill contemplated in the public record, and for which a condition was 

provided in the permit, will be subject to CWA Section 311 and CERCLA 

notification and liability provisions (i.e., the discharge will not be a 

federally permitted release). 

Today's rule proposes to amend 40 CFR 117.12(c) by deleting the phrase 

"whether or not the discharge is in compliance with the permit," for Type B 
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discharges, to avoid confusion caused by the phrase. The phrase was 

originally included in the rule because Type B discharges are discharges that 

result from circumstances identified and considered in the issuance of a 

permit but that are not subject to any specific effluent limitations. The 

Agency is concerned that the phrase may be incorrectly interpreted to mean 

that Type B discharges could include discharges where the permittee did not 

satisfy the condition placed in the permit. Because the Agency considers that 

(1) the distinction between the Type A and Type B discharges is sufficiently 

clear and (2) the phrase causes confusion, the Agency proposes to delete the 

phrase from the regulation. The Agency solicits comments on this proposed 

revision to 40 CFR 117.12(c). 

Type C discharges are from a point source and are (1) continuous or 

anticipated intermittent, (2) identified in a permit or permit application, 

and (3) caused by events occurring within the scope of the relevant operating 

and treatment systems. Included within the scope of this provision are 

chronic, process-related discharges resulting from periodic upsets in the 

manufacturing and treatment systems, for example, the discharge created by a 

system backwash. Discharges caused by spills or episodic events that release 

hazardous substances to the manufacturing or treatment systems are not Type C 

discharges. The language of 40 CFR 117.12(d) provides further examples of 

discharges that fit within the category -- provided that an on-site spill is 

not the cause, contamination of noncontact cooling water or storm water; an 

upset or failure of a treatment system or of a process producing a continuous 

or anticipated intermittent discharge; or where the discharge originates in 

the manufacturing or treatment systems, a continuous or anticipated discharge 

of process waste water. 
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The Agency has identified a type of release that may be unregulated under 

both the CWA sections 402 and 309, and CWA section 311 and CERCLA. Such a 

release would be excluded from section 311 coverage and considered a federally 

permitted release as a Type C discharge. If a discharge is (1) continuous or 

anticipated intermittent, (2) caused by events occurring within the scope of 

the operating or treatment system, (3) identified in the permit application, 

and (4) not caused by an on-site spill, the discharge is not covered under CWA 

section 311 and is considered a federally permitted release under CERCLA. 

However, although identified in the permit application, if such a discharge is 

not eventually identified in the effective permit, it is not covered under CWA 

sections 402 and 309. The Agency expects that this apparent gap in coverage 

is addressed in the NPDES permitting process by including in the permit a 

limit or condition necessary to eliminate or abate discharges that would 

result in harm to public health and the environment. The Agency solicits 

comments on the practical extent of this apparent gap. 

The Agency is proposing in today's rule to amend 40 CFR 117.12(d)(2)(iii) 

by deleting the term "operator error" from the description of "an upset or 

failure of a treatment system."1 The reasons for the proposal to eliminate 

the term "operator error" are: (1) the use of the term "operator error" in 

describing an upset is inconsistent with the NPDES regulations (40 CFR 122.41) 

Section 117.12(d)(2)(iii) presently states: 

(iii) An upset or failure of a treatment system or of a process 

producing a continuous or anticipated intermittent discharge where the 

upset or failure results from a control problem, an operator error, a 

system failure or malfunction, an equipment or system startup or 

shutdown, an equipment wash, or a production schedule change, provided 

that such upset or failure is not caused by an on-site spill of a 

hazardous substance. 
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that provide that a discharge caused by operator error is not an upset; and 

(2) the Agency believes that discharges caused by operator error are not 

likely to be "continuous or anticipated intermittent discharges," as provided 

by the statutory language. 

The concept of "upset" was first introduced in the NPDES regulations in a 

proposed rule on August 21, 1978, as a justification for NPDES permit 

noncompliance (43 FR 37078, 37094). "Upset" was described as "an exceptional 

incident" caused by "factors beyond the reasonable control of the permittee" 

when the facility was "being operated in a prudent and workmanlike manner and 

in compliance with applicable operation and maintenance procedures" and not 

the result of "careless or improper operation" (§122.14(m), Ibid.). If, in a 

compliance proceeding, a discharger could demonstrate that its permit 

violation was the result of an upset, then the upset demonstration provides a 

defense against the noncompliance charge. The term "operator error" was not 

employed in the upset discussion in the proposed NPDES rule, but one could 

argue an operator error could occur when the facility was being properly 

operated. The regulatory interpretation of "upset" provided in the 1978 

proposed rule was the only one that existed, although not effective, when 

Congress enacted CWA section 311(a)(2) in October 1978 and the Agency proposed 

40 CFR 117.12 in February 1979. The proposed §117.12 included operator error 

within the scope of the term "upset," and therefore proposed to exclude from 

CWA section 311 coverage discharges that result from upsets caused by operator 

error (44 FR 10272).2 

discharges resulting from upsets caused by operator error are not 

covered under CWA section 311; however, they would be subject to regulation 

under CWA sections 402 and 309. 
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It is important to note the terms "upset" and "operator error" were used 

for different purposes in the NPDES regulations and the section 311 

regulations. The use of the term "operational error" as an exclusion to the 

term "upset" in the NPDES regulations fulfills both enforcement and regulatory 

purposes. Comparatively, the purpose of the term "operator error" in 

modifying "upset" in the section 311 regulation simply provides an example. 

The NPDES regulations were revised and promulgated on June 7, 1979 (see 44 

FR 32863, 32906). In the revised version of the NPDES regulations, 

operational error was excluded from the scope of "upset" in response to 

comments received on the proposed NPDES rule. Under the final NPDES rules, 

therefore, if a discharge is the result of an upset caused by operational 

error, then the discharger cannot use the upset defense against a 

noncompliance charge. The §117.12 rule, however, was promulgated as proposed, 

for purposes of this discussion, i.e., upset could be read to include operator 

error. Therefore, the use of the term operator/operational error in the upset 

provisions of the NPDES regulations and §117.12 is inconsistent. The Agency 

believes that the upset provisions in the NPDES regulation and the spill 

prevention regulation (§117.12) should be consistent and, furthermore, that 

upset provisions were originally intended to be consistent in the proposed 

rules. For this reason, as well as those provided below, the Agency is 

proposing to delete the term "operator error" from §117.12. 

Additionally, the Agency does not expect that a discharge caused by 

operator error would result in a "continuous" or an "anticipated intermittent" 

release, as described by the statutory language of CWA section 311(a)(2) and 

CERCLA section 101(10)(C). The Agency would expect discharges caused by 

operator error to be episodic and unpredictable, as compared to discharges 
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caused by system startups and shutdowns. The proposed deletion of the term 

"operator error" is intended to enhance the clarity and consistency of the 

regulatory language and is not meant to signal a change in policy. It is 

possible that under some circumstances an operator error may cause a failure 

of a treatment system or process, and produce a continuous or anticipated 

intermittent discharge. Such a discharge may meet the requirements for a 

federally permitted release. The term "upset" as used in 40 CFR Part 117, 

however, generally will be interpreted to be consistent with the term "upset" 

in 40 CFR Part 122, i.e., it does not include incidents caused by operational 

error. 

The Agency requests comments on its proposal to delete operator error from 

§117.12(d)(2)(iii). 

Generally, Congress coordinated CWA authority with CERCLA authority. For 

example, all hazardous substances regulated under CWA section 311 are defined 

as hazardous substances under CERCLA, although the CERCLA hazardous substance 

universe is larger than the CWA universe. Another example is that Congress, 

in recognizing both the broad reach of CWA section 504, which provides EPA 

with the authority to bring suit to restrain any person from an action causing 

or contributing to an imminent and substantial endangerment or to take other 

action, and section 504's limited funding, repealed the funding authorization 

for section 504, directed that the balance of the section 504 funds be 

transferred to the Superfund, and allowed the authority to bring suit to 

stand. Under section 504 as amended, therefore, the Agency cannot take 

abatement action but can bring suit to restrain further harm. The Agency can 

take a response action under CERCLA. 
P.20 

-20-

Finally, the Agency wishes to clarify that the geographic scope of CERCLA 

for the purposes of these three NPDES exemptions is bound by the definitions 

of "coastal zone" and "inland zone" contained in the National Contingency 

Plan, 40 CFR Part 300. Coastal zone is defined as: 

... all U.S. waters of the Great Lakes, specified ports and 

harbors on the inland rivers, waters of the contiguous zone, 

other waters of the high seas subject to this [National 

Contingency] Plan, and the land surface or land substrata, 

ground waters, and ambient air proximal to those waters. 

The term coastal zone delineates an area of Federal 

responsibility for response action. Precise boundaries are 

determined by EPA/USCG agreements and identified in Federal 

regional contingency plans. (40 CFR 300.6) 

Inland zones are defined as: 

... the environment inland of the coastal zone excluding the 

Great Lakes and specified ports and harbors of inland 

rivers. The term inland zone delineates the area of Federal 

responsibility for response action. Precise boundaries are 

determined by EPA/USCG agreement and identified in Federal 

regional contingency plans. (40 CFR 300.6) 

Releases Subject to CWA Section 404 Permits. Discharges that comply with 

a legally enforceable permit for dredge or fill materials under section 404 of 

the CWA also are federally permitted releases exempt from the notification 

requirements of CERCLA sections 103(a) and (b). Before issuing these permits, 

the government reviews the substances to be discharged. Permits allowing the 

discharge of hazardous substances are issued only if no significant 

degradation of the aquatic environment will result. This exemption applies to 

discharges in compliance with the terms and conditions of either an individual 

or a general CWA section 404 permit. 

In regulations implementing section 311 of the CWA for hazardous 

substances, 40 CFR 117.12 (but not the regulations for oil in 40 CFR Part 

110), EPA exempted from the notification requirement not only those releases 

which were in compliance with section 404 permits, but also those releases 
P.21 

-21-

that were exempt from permit requirements under section 404 of the CWA 

(sections 404(f) and 404(r)). These latter releases are not "federally 

permitted releases" for purposes of CERCLA; therefore, releases of a hazardous 

substance equal to or greater than an RQ must be reported. Releases in 

compliance with a legally enforceable permit under section 404 of the CWA need 

not be reported. 

Releases from Facilities with Final RCRA Permits. Releases in compliance 

with a legally enforceable RCRA treatment, storage, or disposal final permit 

are, pursuant to CERCLA section 101(10)(E), federally permitted releases when 

the hazardous substances released are specified in the permit and subject 

under the permit to a specific limitation, standard, or control procedure (see 

40 CFR Parts 264 and 270) . Identifying releases on the record during the 

permit process is insufficient to qualify them for the section 101(10)(E) 

exemption because in order to be exempt the substances must be specified in 

the permit and subject to some permit condition or control. 

Four commenters requested that facilities with interim status pursuant to 

section 3005(e) of RCRA and 40 CFR Part 265 be included in the "federally 

permitted release" definition. Some of the commenters indicated that it may 

be some time before these facilities are issued final permits. The Agency 

agrees that disposal of hazardous substances at a disposal facility in 

accordance with EPA regulations should not be subject to CERCLA notification 

requirements. However, the Agency disagrees that disposal into an interim 

status facility be considered a "federally permitted release" and therefore 

exempt from the CERCLA section 107 liability provision. Where (1) the 

disposal of wastes into interim status facilities is properly documented 

through the RCRA manifest system and RCRA regulations are followed and (2) the 
-22-

facility is in compliance with all applicable regulations and permit 

conditions, notification under CERCLA does not provide additional benefit. If 

the disposer knows that the facility is not in compliance, however, disposal 

of an RQ or more of a hazardous substance must be reported. Spills or 

accidents occurring during disposal that result in releases of RQs of 

hazardous substances also must be reported. (See 50 FR 13461, April 4, 1985.) 

Releases Pursuant to Marine Protection, Research, and Sanctuaries Act 

Permits. Section 101(10)(F) of CERCLA includes, in the definition of a 

federally permitted release, releases in compliance with legally enforceable 

permits issued under section 102 (EPA ocean dumping permits) or section 103 

(Corps of Engineers permits for ocean dumping of dredged materials) of the 

Marine Protection, Research, and Sanctuaries Act. Pursuant to EPA 

regulations, applicants for ocean dumping permits must identify the physical 

and chemical properties of the materials to be discharged, and the permit must 

identify the materials which may be discharged (see 40 CFR Parts 221, 227). 

Similar procedures and criteria apply to permits for ocean dumping of dredged 

material (see 33 CFR Part 324). These EPA and Corps of Engineers permits 

cover substances that can be lawfully discharged. Dumping of hazardous 

substances not specifically allowed in these permits is subject to the 

notification requirements of CERCLA section 103(a). 

Underground Injections Authorized Pursuant to the Safe Drinking Water Act. 

CERCLA section 101(10)(G) exempts from the notification requirements "any 

injection of fluids" authorized under Federal injection control programs or 

State programs submitted for Federal approval pursuant to Part C of the Safe 

Drinking Water Act (and not disapproved by EPA) (section 101(10)(G)). 

EPA has published regulations establishing technical standards and 

criteria (40 CFR Part 146) and regulations governing approval of State 
-23-

programs and permit procedures (40 CFR Parts 122-124). Under the Safe 

Drinking Water Act, the States are to take the primary role in implementing 

the underground injection control program; EPA is to administer the program 

only if the State fails to submit an approvable program within a specified 

time period. Any underground injection of hazardous substances permitted 

under a State program approved by EPA or under an EPA-administered program are 

considered federally permitted for purposes of CERCLA notification. 

Emissions Subject to Clean Air Act Controls. Section 101(10)(H) of CERCLA 

provides an exemption for hazardous substance emissions that are subject to a 

Clean Air Act (CAA) permit or control regulation (see 40 CFR Parts 52, 60, 61, 

and 62). However, as stated in the preamble to the May 25, 1983 NPRM for this 

exemption to apply, any such CAA controls must be "specifically designed to 

limit or eliminate emissions of a designated hazardous pollutant or a criteria 

pollutant." (Sen. Rep. 96-848, 96th Cong., 2d Sess. 49 (1980)). The CAA 

exemption, therefore, cannot be read broadly to cover any and all types of air 

emissions. Moreover, as today's proposed rule makes clear, for the exemption 

to apply, the emission must be in compliance with the applicable permit or 

control regulation. 

Several commenters suggested that the clear and unequivocal nature of the 

statutory language made elaboration on the CAA exemption unnecessary. 

Generally, these commenters took the view that the CAA exemption covers nearly 

all air emissions, because such emissions are in one way or another controlled 

by the CAA -- either directly, because they contain substances specifically 

regulated by the Act, or indirectly, through emission permits granted as part 

of State Implementation Plans (SIPs) approved under section 110 of the CAA. 

Some commenters even claimed that because controls could be developed for any 
P.24 

-24-

hazardous substance, any release to the air is "subject" to CAA controls. EPA 

does not agree that these interpretations, under which virtually all air 

emissions including dangerous episodic releases would be exempt from CERCLA 

reporting requirements, were intended by Congress under section 101(10). To 

the contrary, the legislative history noted both above and in the preamble to 

the May 25, 1983 NPRM, indicates that CAA controls must be designed 

specifically to limit or eliminate emissions of a particular pollutant for a 

release of that pollutant to be exempt. The purpose of notification 

requirements under section 103 of CERCLA is to ensure that the government is 

informed of any potentially dangerous releases of hazardous substances to the 

environment for which timely response may be critical. Establishing an 

interpretation of CAA controls as requested by the commenters would eliminate 

virtually any CERCLA reporting of air emissions and, thus, the potential for 

early Federal responses; such an approach would eviscerate not only the 

Congressional intent but also the major purpose of the section 103 

notification requirement. 

In addition, some commenters urged EPA to interpret the federally 

permitted release exemption broadly to include any air emission from a 

permitted source. Many of these commenters used the word "reviewed" almost 

interchangeably with the word "permitted." A "reviewed" release is not 

necessarily a "permitted" release or a controlled release. A permitted 

release is an allowable release of a specific substance or emission. A 

reviewed release generally is one of many releases from a permitted source 

that is being checked for compliance with a variety of laws and regulations. 

The inclusion of a review provision in a SIP does not subject all potential 

releases from a permitted source to CAA requirements or controls "designed 
-25-

specifically to limit or eliminate" them (Sen. Rep. 848, 96th Cong., 2d Sess. 

49 (1980)). EPA, therefore, cannot consider releases exempt solely because 

they have been included in a review provision in a SIP. 

Several commenters advocated exemptions for categories of hazardous 

substances (such as volatile organic compounds (VOC) or total suspended 

particulates (TSP)) regulated under the CAA (including those regulated under 

approved State programs). The commenters claimed that a permit or regulatory 

limit on such categorical emissions in effect constitutes a limit on each 

constituent in the group. EPA agrees with this position to the extent that 

the constituent hazardous substances have been identified, reviewed, and made 

part of the public record during the permit issuance or regulation development 

process for the category of the hazardous substance. The exemption does not 

extend to releases of consistent hazardous substances in permitted or 

regulated categories that are not expressly identified on the record with 

respect to the applicable permit or control program. Once the constituent 

hazardous substances have been appropriately identified and reviewed, the 

limitation on the category of emissions of hazardous substances will provide 

the "permit or control regulation" needed for application of the section 

101(10)(H) exemption. 

Injections of Materials Related to Development of Crude Oil or Natural Gas 

Supplies. Several commenters felt that EPA's interpretation of the CERCLA 

section 101(10)(I) exemption from notification requirements for the injection 

of fluids or other materials related to the development of crude oil or 

natural gas supplies is unnecessarily narrow. Because it is probable that all 

conceivable injection modes are not considered in State laws, EPA, in the 

preamble to the May 25, 1983 NPRM, interpreted the section 101(10)(I) 
-26-

provision to exempt only those activities or materials which are specifically 

authorized by State law, rather than those that are not prohibited by State 

law. This interpretation ensures that the appropriate authorities have 

consciously considered and intentionally authorized the injection activities 

and materials that are to be exempt from notification requirements. 

EPA interprets the section 101(10)(I) exemption to apply only to those 

items used in activities whose sole purpose is the production of crude oil, 

natural gas, or water; the recovery of crude oil or natural gas; or the 

reinjection of fluids brought to the surface from such production. Some 

commenters objected to this interpretation and instead supported a broader 

interpretation. However, EPA does not support any position that would allow 

all oil and gas field operations to be unregulated under CERCLA. The National 

Response Center should be notified in any situation where the use of injection 

fluids or materials for purposes other than the development of crude oil or 

natural gas supplies results in a release of a hazardous substance in an 

amount that equals or exceeds the applicable RQ. 

Introduction of Pollutants into Publicly Owned Treatment Works. One of 

the commenters on the May 25, 1983 NPRM suggested that the Agency broaden its 

approach to the POTW exemption to require only that the discharge be in 

compliance with general pretreatment requirements and not require sitespecific requirement compliance. The Agency disagrees and believes that 

according to CERCLA section 101(10)(J), a release of a hazardous substance to 

a publicly owned treatment works (POTWs) will be federally permitted if the 

hazardous substance is a pollutant specified in applicable pretreatment 

standards and the release of the pollutant is in compliance with the standards 

of section 307(b) or (c) of the CWA and enforceable requirements of a State or 
P.27 

-27-

local pretreatment program. This exemption applies only to industrial 

users3 discharging to POTWs; POTWs are subject to CERCLA reporting and 

liability provisions if their discharge of a hazardous substance .violates 

their NPDES permit by an RQ or more. POTWs are not required to report 

hazardous substances in quantities that equal or exceed an RQ that are 

traveling through their collection systems; however, the industrial user is 

responsible for reporting such releases into the collection system. 

Sections 307(b)(1) and (c) of the CWA direct EPA to establish pretreatment 

standards "to prevent the discharge of any pollutant through treatment works 

... which are publicly owned, which pollutant inerferes with, passes through, 

or is otherwise incompatible with such works." These sections address the 

problems created by discharges of pollutants from nondomestic sources to 

municipal sewage treatment works or pass through the works to navigable waters 

untreated or inadequately treated. Pretreatment standards are intended to 

prevent those problems from occurring by requiring nondomestic users of POTWs 

to pretreat their wastes before discharging them to the POTW. In 1977, 

Congress amended section 402(b)(8) of the CWA to require POTWs to help 

regulate their industrial users by establishing local programs to ensure that 

industrial users comply with pretreatment standards. 

In establishing the national pretreatment program to achieve these 

pretreatment goals, the Agency adopted a broad-based regulatory approach that 

implements the statutory prohibitions against pass through and interference at 

two basic levels. The first is through the promulgation of national 

3"lndustrial users," as the term is used in this discussion, means not 

only those facilities discharging directly to a POTW but also mobile sources 

discharging hazardous substances to a POTW. 
•28-

categorical standards that apply to certain industrial uses within selected 

categories of industries that commonly discharge toxic pollutants. 

Categorical standards establish numerical, technology-based discharge limits 

derived from an assessment of the types and amounts of pollutant discharges 

that typically interfere with or pass through POTWs with secondary treatment 

facilities. 

The potential for many pass through or interference problems depends not 

only on the nature of the discharge but also on local conditions (e.g., the 

type of treatment process used by the POTW, local water quality, POTW's chosen 

method for handling sludge), and thus needs to be addressed on a case-by-case 

basis. Examples of such problems include discharges to a POTW that may 

consist of pollutants not covered by a categorical standard or from 

nondomestic sources that are not in one of the industrial categories regulated 

by the categorical standards. Because categorical standards are established 

industry-wide, they cannot consider site-specific conditions and therefore may 

not be adequate to prevent all pass through and interference even for the 

regulated pollutants. EPA's General Pretreatment Regulations (40 CFR Part 

403) address these areas of concern. First, 40 CFR 403.5(b) establishes 

specific prohibitions that apply to all nondomestic users and are designed to 

guard against common types of pollutant discharges that may result in 

interference and pass through (e.g., no discharge of flammable, explosive, or 

corrosive pollutants). Second, 40 CFR 403.5(a) establishes a general 

prohibition against pass through and interference which serves as a back-up 

standard to address localized problems that occur. In addition, POTWs must 

develop and enforce specific local limits as part of their local pretreatment 

programs to prevent pass through and interference. POTWs not required to 
P.29 

-29-

develop pretreatment programs also must develop local limits if they have 

recurring pass through and interferences (see 40 CFR 403.5(c)). 

The pretreatment standards a POTW user must meet to claim the federally 

permitted release exemption include both applicable national categorical 

standards and standards established by local law as described below. 

Compliance only with the general and specific prohibitions (40 CFR 403.5(a) 

and (b)) of the general pretreatment regulations is insufficient to qualify a 

release as federally permitted. 

Only local limits applicable to the pollutant, developed in accordance 

with 40 CFR 403.5(c), and designed to implement the general prohibition 

against interference and pass through (§403.5(a)), can qualify the release of 

such pollutant as a federally permitted release. The development of local 

limits under §403.5(c) involves three basic steps. First, a POTW must 

determined which, if any, of the pollutants discharged by its industrial users 

have a reasonable potential to pass through or interfere with the POTW. For 

each of the pollutants the POTW concludes may be of concern, the POTW must 

then determine the maximum amount of the pollutant it can accept (maximum 

headworks loading) and still prevent the occurrence of pass through or 

interference. Finally, after maximum allowable headworks loadings are 

determined for each of the pollutants of concern, the POTW must implement a 

system of local limits applicable to industrial users to assure that these 

loadings will not be exceeded. 

EPA believes that only local limits which have been developed based upon 

procedures that evaluate the site-specific characteristics and treatment 

capabilities of a POTW should qualify the release of the pollutant for the 

exemption. Such an extensive analysis is needed to assure that pass through 
P.30 

-30-

and interference problems do not arise. A discharge of a pollutant by an 

industrial user in compliance with a local limit not designed using these 

procedures may not address the statutory prohibitions against pass through and 

interference nor provide the requisite degree of environmental protection to 

qualify for the federally permitted release exemption. 

Thus, a release that violates an applicable categorical pretreatment 

standard or a local limit developed in accordance with 40 CFR 403.5(c), and 

exceeds the permitted level by an RQ or more, must be reported. Moreover, the 

absence of a categorical pretreatment standard or a local limit for a specific 

pollutant precludes coverage for releases of that pollutant under the 

federally permitted release exemption. If an industrial user releases an RQ 

or more of a hazardous substance into a POTW which has not set a local limit 

for such a substance, or for which there is no limit based on a categorical 

standard, then the release is not federally permitted and is subject to CERCLA 

reporting and liability provisions. 

In addition to compliance with local limits and categorical standards, the 

pollutant must be in compliance with enforceable requirements (e.g., 

monitoring and reporting) of an approved local pretreatment program. For 

example, although monitoring may confirm that the pollutant is in compliance 

with an applicable categorical pretreatment standard, failure to meet the 

pretreatment reporting requirements confirming such compliance would prevent 

coverage under the federally permitted release exemption. 

Furthermore, the release of a pollutant to a POTW would only qualify for 

the federally permitted release exemption if (1) the POTW has a local 

pretreatment program approved by the "approval authority" (as defined in 

§403.3(c)) or (2) a State, in lieu of the municipality, is implementing a 

pretreatment program for that POTW pursuant to 40 CFR 403.10(e). 
-31-

Section 101(10)(J) provides that the pretreatment program must be 

"submitted by a State or municipality for Federal approval." The Agency 

interprets this provision to mean that the program not only must be submitted 

for approval but must be approved. A strict reading of the statutory language 

P.31 

would be contrary to the expressed congressional intent that discharges of 

hazardous substances into sewer systems qualify as federally permitted 

releases only if they are authorized under a pretreatment program (see Senate 

Report No. 96-848 (1980), p.48). The fact that a POTW has submitted a program 

for approval does not necessarily mean the program is adequate to control the 

introduction of pollutants from nondomestic users of the POTW. Such a program 

may not be approved by the approval authority due to major deficiencies. For 

the discharge to be a federally permitted release, therefore, it must be 

specifically regulated in an approved program, a program that the approval 

authority has determined is consistent with the federally mandated minimum 

standard. 

An approved program may be (1) designed and implemented locally by a POTW 

and approved by either EPA or an EPA-approved State pretreatment program or 

(2) designed and implemented by an EPA-approved State treatment program. 

Approval of a State to implement a State pretreatment program pursuant to 

section 402(b) of the CWA would not automatically qualify as federally 

permitted a release to a POTW in that State. The local pretreatment program 

must be approved either by EPA or by an EPA-approved State program. 

Generally, approval by a State pretreatment program merely changes the 

approval authority for the POTW programs from EPA to the EPA-approved State 

pretreatment program. The approved State has primary responsibility for 

requiring local POTWs to develop and implement a pretreatment program to 
•32-

directly regulate users. The fact that a State pretreatment program has been 

approved does not in and of itself change the quality or approveability of 

local POTW programs. POTWs in approved States would still need to develop 

local pretreatment programs and receive pretreatment program approval if they 

have not already done so. Thus, to satisfy the federally permitted release 

exemption individual approval of each POTW pretreatment program is necessary 

(except for a State-administered §403.10(e) program as described below). 

Section 403.10(e) allows the State in lieu of the POTW to assume 

responsibility for developing and implementing POTW pretreatment program 

requirements. Because the §403.10(e) program must meet the same standard as 

would be required for pretreatment programs developed by a municipality 

(§403.8(f)), EPA believes that the §403.10(e) programs are the State 

pretreatment programs Congress intended to include under section 101(10)(J). 

In the event that a State's §403.10(e) program does not extend to all its 

POTWs, only those releases to POTWs for which the State has implemented the 

pretreatment program pursuant to §403.10(e) would qualify as federally 

permitted. If a POTW is not directly regulated by its State NPDES program, 

the POTW must, nevertheless, implement an approved local pretreatment program 

in order for the discharges of industrial users to qualify for the federally 

permitted release exemption. 

In summary, for a release to a POTW to be subject to the federally 

permitted release exemption, the release must be: (1) in compliance with 

applicable categorical pretreatment standards and local limits developed in 

accordance with §403.5(c) and (2) into a POTW with an approved local 

pretreatment program or a §403.10(e) State-administered local program. 

One of the commenters on the May 25, 1983 NPRM stated that discharges into 

a POTW are transfers between facilities, not "into the environment," and 
P.33 

-33-

therefore all discharges into POTWs should be exempt from CERCLA reporting. 

The commenter's approach to defining "into the environment" is not consistent 

with the approach in today's proposal. To determine whether its release is 

federally permitted, therefore, an industrial user should measure its 

discharge at the point the substance leaves the industrial user's facility. 

In the case of indirect dischargers, the release should be measured when it 

leaves the discharger's building. Mobile sources should measure the discharge 

at the point it is released into the POTW, which will be at the headworks in 

most cases. Industrial users are not required under CERCLA to conduct 

monitoring activities different from those required by the applicable 

pretreatment program. 

Releases of Source, Byproduct, or Special Nuclear Materials: 

Radionuclides (which include source, byproduct, and special nuclear material) 

are generically listed under section 112 of the CAA and therefore are 

hazardous substances under CERCLA. However, CERCLA section 101(22)(C) 

excludes from the definition of a release the discharge of: 

source, byproduct, or special nuclear material from a 

nuclear incident, as those terms are defined in the Atomic 

Energy Act of 1954, if such release is subject to 

requirements with respect to financial protection 

established by the Nuclear Regulatory Commission under 

section 170 of such Act, or, for the purposes of section 104 

of this title [concerning response authorities] or any other 

response action, any release of source, byproduct, or 

special nuclear material from any processing site designated 

under section 102(a)(1) or 302(a) of the Uranium Mill 

Tailings Radiation Control Act of 1978.... 

In addition, CERCLA section 101(10) (K) includes within the. definition of 

federally permitted release, releases of source, byproduct, or special nuclear 

material that comply with the conditions of a legally enforceable license, 

permit, regulation, or order issued pursuant to the Atomic Energy Act. 
-34-

Releases equal to or exceeding the radionuclide RQs, and not excluded by 

sections 101(10)(K) or 101(22), must be reported to the National Response 

Center. 

Licenses, permits, regulations, and orders may be issued by the Nuclear 

Regulatory Commission or by States granted the authority to regulate radiationrelated activities under an agreement with the Nuclear Regulatory Commission. 

EPA, the Department of Energy, and the Department of Defense also have certain 

regulatory authority under the Atomic Energy Act. EPA can issue generally 

applicable environmental standards for protecting the public from radiation 

and recommend to the President guidance for all Federal agencies to use for 

health protection from radiation. When regulations are promulgated under 

these authorities (e.g., 40 CFR Parts 190, 191, and 192), releases in 

compliance with these regulations are federally permitted. Similarly, the 

Department of Energy governs its radiation protection activities under the 

Atomic Energy Act by a series of internal orders. When such orders are issued 

under the Department of Energy's Atomic Energy Act authority and releases are 

in compliance with the applicable order(s), these releases also are federally 

permitted. The Department of Defense.issues regulations governing weapons and 

reactors within their jurisdiction; releases in compliance with these 

regulations are federally permitted. 

The regulations of the Nuclear Regulatory Commission contain several 

important exemptions from their provisions, based generally on the small 

quantities of material involved or the low levels of radioactivity the 

materials emit. EPA believes that releases of exempted materials are not 

subject to "legally enforceable" requirements, as required by CERCLA section 

101(10)(K), and that releases of these materials are therefore not federally 

permitted releases. 
P.35 

•35-

All commenters on the radionuclides exemption felt that a broader 

exemption is warranted. Some commenters suggested that reports of releases 

currently required by the Nuclear Regulatory Commission are sufficient and 

comprehensive because the Commission would determine the need for and the 

adequacy of response; any additional reports to EPA would be an unnecessary 

burden. EPA expects that most releases involving radionuclides will either be 

excluded from the definition of release, will be a federally permitted 

release, or will be less than the RQ. However, EPA believes that the 

reporting requirements imposed on the remaining releases of radionuclides, 

including releases of radionuclides that are source, byproduct, or special 

nuclear material that are exempted from Nuclear Regulatory Commission 

regulations, are essential to mitigate the risk to public health or welfare or 

the environment posed by such releases. 

III. RELEASES INTO THE ENVIRONMENT 

A. In General 

This section addresses several recurring questions not specifically 

related to the definition of "federally permitted release" but instead related 

to broader "release" definition issues. One such question involves releases 

to engineered structures designed specifically to prevent materials from 

reaching the land surface. The issues involve both interpretation of the 

phrase "release into the environment" and the appropriateness of reporting 

requirements for releases to such secondary containment devices. The Agency 

solicits comments on the following issues. 

In the preamble to the April 4, 1985 final rule adjusting RQs for 340 

CERCLA hazardous substances, EPA stated: 
P.36 

-36-

Hazardous substances may be released "into the 

environment" even if they remain on plant or installation 

grounds. Examples of such releases are spills from tanks or 

valves onto concrete pads or into lined ditches open to the 

outside air, releases from pipes into open lagoons or ponds, 

or any other discharges that are not wholly contained within 

buildings or structures. Such a release, if it occurs in a 

reportable quantity (e.g., evaporation of an RQ into the air 

from a dike or concrete pad), must be reported under CERCLA. 

On the other hand, hazardous substances may be spilled at a 

plant or installation but not enter the environment, e.g., 

when the substance spills onto the concrete floor of an 

enclosed manufacturing plant. Such a spill would need to be 

reported only if the substances were in some way to leave 

the building or structure in a reportable quantity. (Note, 

however, that the federal government may still respond and 

recover costs where there is a threatened release into the 

environment.) 50 FR 13462. 

In applying the phrase "into the environment" to releases to secondary 

containment devices, EPA believes that a release inside a building or 

structure is not a release "into the environment" unless the spilled substance 

leaves the building. 

On one hand, a release to a secondary containment device outside of a 

building or structure is per se "into the environment." Examples of releases 

to such devices that illustrate both the potential for a serious problem and 

an existing serious situation have been brought to the Agency's attention. 

These include a release of hydrochloric acid to a dike that would have 

overflowed in a heavy rain, and radioactive contamination of water supplies 

apparently resulting from an improperly functioning secondary containment 

device at a nuclear facility. 

On the other hand, it has been suggested that where engineered structures 

are open to the air, releases into such structures should be exempt from 

reporting unless an RQ or more of the substance reaches any ground or surface 

waters or land surface or evaporates into the ambient air. Releases to such 

structures may include such occurrences as releases onto concrete pads, 
P.37 

-37-

secondary containment devices with sealed floors around storage tanks, or drip 

pans used to catch minor hose or line drainage. 

The Agency is interested in receiving comments and data discussing the 

circumstances under which notification of releases into secondary containment 

devices would not provide useful information for Federal response purposes. 

EPA is particularly interested in information on the significance of the 

issue, specific examples of procedures followed where there is a release to a 

secondary containment device and techniques used to prevent releases from such 

devices, data discussing the integrity of secondary containment devices, and 

suggestions on the appropriate means of eliminating any such unnecessary 

reporting. If the Agency decides to allow certain releases into secondary 

containment devices not to be reported, a demonstration may be required to 

show that the device is sufficiently protective and reliable. 

B. PCB Waste Disposal 

A second general "release" issue concerns whether approved polychlorinated 

biphenyl (PCB) disposal by incineration, landfilling, or alternate methods 

need to be reported as a release under section 103, or if such disposal is 

exempt from reporting as a federally permitted release. Because PCB disposal 

approvals under the Toxic Substances Control Act (TSCA) are not included in 

the CERCLA section 101(10) definition of federally permitted release, EPA does 

not believe that it has the authority to apply that exemption to such 

approvals. 

At the same time, however, EPA does not believe that notification under 

section 103 of CERCLA provides any significant additional benefit so long as 

the disposal facility is in substantial compliance with all applicable 

regulations and approval conditions. The PCB regulations under TSCA, 40 CFR 
P.38 

-38-

Part 761, require owners or operators of PCB disposal facilities, 

incinerators, chemical waste landfills, and high efficiency boilers to obtain 

written EPA-approval, based on compliance with detailed technical requirements 

designed to ensure proper disposal, before accepting PCB wastes. The TSCA 

approval process is designed to ensure that the operation of PCB disposal 

facilities does not present an unreasonable risk of injury to health or the 

environment from PCBs. In addition, 40 CFR Part 761, Subpart J, requires PCB 

disposal facility owners or operators to carefully monitor the facility's 

inventory and operation, maintain detailed records for periods of 5 to 20 

years, and report under certain circumstances. The TSCA regulations provide 

the Federal government with the information necessary to determine whether an 

emergency response to a PCB disposal is required. Today's proposal to not 

require CERCLA reporting for EPA-approved PCB disposals is consistent with the 

overall objective of the CERCLA notification requirements. Therefore, EPA 

will not require reporting of the approved, proper disposal of PCB wastes into 

a disposal facility. 

A party responsible for a release of PCB wastes that need not be reported 

under CERCLA, however, remains liable for the costs of cleaning up the release 

and for any natural resource damages caused by the release. In addition, 

where the disposer knows that the facility is not in compliance with 

applicable regulations and approved conditions under TSCA, disposal of an RQ 

or more of PCB waste must be reported to the National Response Center. 

Likewise, spills and accidents occurring during disposal and outside of the 

approved operation, that result in releases of RQs of PCB waste from the 

facility, also must be reported to the National Response Center. Finally, PCB 

releases of an RQ or more from a TSCA-approved facility (as opposed to 
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disposal into such a facility), must be reported under CERCLA. The Agency 

requests comments on this proposal. 

IV. DISCHARGES TO POTWs 

The Agency recognizes that the regulation implementing CWA section 311 for 

hazardous substance discharges must be revised to be consistent with the 

Agency's regulatory approach taken under CERCLA section 101(10)(J). Under 

CERCLA section 101(10)(J), an indirect discharge to a POTW must be subject to 

and in compliance with categorical pretreatment standards and local limits 

applicable in an approved local pretreatment program (see discussion under 

Section III of today's preamble). All indirect dischargers, i.e., both mobile 

and stationary sources, are subject to the same requirements for their 

discharges to be considered federally permitted releases. 

Under 40 CFR 117.13, mobile sources discharging industrial waste are not 

subject to CWA section 311 coverage if the mobile source has contracted with, 

or otherwise received written permission from the POTW to discharge a 

designated quantity of industrial waste treated to comply with effluent 

limitations (under CWA sections 301, 302, or 306) or pretreatment standards 

(under CWA section 307). Indirect dischargers are not addressed under 

§117.13. Paragraph (a) of §117.13 was reserved to provide the conditions 

under which indirect discharges are subject to CWA section 311. 

The Agency is considering amending 40 CFR 117.13 to (1) add a paragraph 

(a) describing that indirect discharges are not subject to section 311 

coverage if the indirect discharge is in compliance with applicable 

categorical pretreatment standards and local limits developed in accordance 

with 40 CFR 403.5(c) and into a POTW with an approved local pretreatment 
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 s 

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program or a 40 CFR 403.10(e) State administered local program, and (2) to 

revise paragraph (b) to apply the same conditions to mobile sources as would 

be applied to indirect discharges under paragraph (a). The Agency requests 

comments on this considered amendment. 

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^'1 

V. SUMMARY OF SUPPORTING ANALYSES 

Rulemaking protocol under Executive Order 12291 requires that proposed 

regulations be classified as major or nonmajor for purposes of review by the 

Office of Management and Budget. According to E.O. 12291, major rules are 

regulations that are likely to result in: 

(1) An annual effect on the economy of $100 million or more; 

or 

(2) A major increase in costs or prices for consumers, 

individual industries, federal, state, or local 

government agencies, or geographic regions; or 

(3) Significant adverse effects on competition, employment, 

investment, productivity, innovation, or on the ability 

of United States-based enterprises to compete with 

foreign-based enterprises in domestic or export markets. 

Today's regulation is nonmajor, because adoption of the rule will result 

in zero costs, and will not cause any of the significant adverse effects 

mentioned in (3) above. The Background Document for the Proposed Regulation 

on Federally Permitted Releases, available for inspection at Room LG-100, U.S. 

Environmental Protection Agency, 401 M Street, SW, Washington, DC 20460, 

shows that the proposed rule is simply a clarification of existing statutory 

requirements. 

The Regulatory Flexibility Act of 1980 requires that a Regulatory 

Flexibility Analysis be performed for all rules that are likely to have a 

"significant impact on a substantial number of small entities." EPA certifies 
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that this proposed regulation will not have a significant impact on a 

substantial number of small entities and that a Regulatory Flexibility 

Analysis is not required. 

EPA requires an Information Impact Analysis to be carried out for all 

rules that impose a paperwork burden on the public. This proposed rule merely 

P.41 

implements a statutory reporting exemption and, therefore, there is no 

associated paperwork burden on the public. 

There are no reporting or recordkeeping provisions included in this 

proposed rule that require approval from the Office of Management and Budget 

under Section 3504(h) of the Paperwork Reduction Act of 1980, 44 U.S.C. 

Section 3501 et seq. 

List of Subjects in 40 CFR Part 117 

Hazardous Substances, Penalties, Reporting and recordkeeping requirements, 

Water pollution control. 

List of Subjects in 40 CFR Part 300 

Air pollution control, Chemicals, Hazardous materials, Hazardous 

substances, Intergovernmental relations, Natural resources, Occupational 

safety and health, Oil pollution, Reporting and recordkeeping requirements, 

Superfund, Waste treatment and disposal, Water pollution control, Water supply. 

List of Subjects in 40 CFR Part 302 

Air pollution control, Chemicals, Hazardous materials transportation, 

Hazardous substances, Intergovernmental relations, Natural resources, Nuclear 

materials, Pesticides and pests, Radioactive materials, Reporting and 
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recordkeeping requirements, Superfund, Waste treatment and disposal, Water 

pollution control. 

Date Lee M. Thomas 

Administrator 
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For the reasons set out in the preamble, it is proposed to amend Title 40 

of the Code of Federal Regulations as follows: 

PART 117 - DESIGNATION, REPORTABLE QUANTITIES AND NOTIFICATION 

3. The authority citation for Part 117 continues to read as follows: 

Authority: Sections 311 and 501(a), Federal Water Pollution Control Act 

(33 U.S.C. 1251 et se%.), and Executive Order 11735. 

4. 40 CFR 117.12 is amended to read as follows: 

Section 117.12 Applicability to discharges from facilities with NPDES 

permits. 

(a) This regulation does not apply to:. 

(1) Discharges in compliance with a permit under section 402 of this 

Act; 

(2) Discharges resulting from circumstances identified, reviewed and 

made a part of the public record with respect to a permit issued 

or modified under section 402 of this Act, and subject to a 

condition in such permit; 

(3) Continuous or anticipated intermittent discharges from a point 

source, identified in a permit or permit application under section 

402 of this Act, which are caused by events occurring within the 

scope of the relevant operating or treatment systems; or 

(b) A discharge is "in compliance with a permit issued under section 402 

of the Act" if the permit contains an effluent limitation specifically 

applicable to the substance discharged or an effluent limitation 

applicable to another waste parameter that has been specifically 

identified in the permit as intended to limit such substance, and the 

discharge is in compliance with the effluent limitation. 
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(c) A discharge results "from circumstances identified, reviewed, and made 

a part of the public record with respect to a permit issued or 

modified under section 402 of the Act, and subject to a condition in 

such permit," where: 

(1) The permit application, the permit, or another portion of the 

public record contain documents that specifically identify: 

(i) The substance and the amount of substance; and 

(ii) The origin and source of the substance; and 

(iii) The treatment, which is to be provided for the discharge 

either by: 

(A) An on-site treatment system treating the permittee's 

normal discharge; or 

(B) A treatment system designed to treat the permittee's 

normal discharge and which is additionally capable of 

treating the identified amount of the identified 

substance; or 

(C) Any combination of the above; and 

(2) The permit contains a requirement that the substances and the 

amounts of the substance, as identified in §117.12(c)(1)(i) and 

§117.12(c)(l)(ii) be treated pursuant to §117 .12(c)(1)(iii) in the 

event of an on-site release; and 

(3) The treatment to be provided is in place. 

(d) A discharge is "continuous or anticipated intermittent" from a point 

source, identified in a permit or permit application under section 402 

of the Act, and caused by events occurring within the scope of 

relevant operating or treatment systems," whether or not the discharge 

is in compliance with the permit if: 
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(1) The hazardous substance is discharged from a point source for 

which a valid permit exists or for which a permit application has 

been submitted; and 

(2) The discharge of the hazardous substance results from: 

(i) The contamination of noncontact cooling water or storm 

water, provided that such cooling water or storm water is 

not contaminated by an on-site spill of a hazardous 

substance; or 

(ii) A continuous or anticipated intermittent discharge of 

process waste water, and where the discharge originates 

within the manufacturing or treatment systems; or 

(iii) An upset or failure of a treatment system or of a process 

producing a continuous or anticipated intermittent discharge 

where the upset or failure results from a control problem, a 

system failure or malfunction, an equipment or system 

startup or shutdown, an equipment wash, or a production 

schedule change, provided that such upset or failure is not 

caused by an on-site spill of a hazardous substance. 

PART 300 - NATIONAL OIL AND HAZARDOUS SUBSTANCES POLLUTION CONTINGENCY PLAN 

5. The authority citation for Part 300 continues to read as follows: 

Authority: Sec. 105, Pub. L. 96-510, 94 Stat. 2764, 42 U.S.C. 9605 and 

sec. 311(c)(2), Pub. L. 92-500 as amended, 86 Stat. 865, 33 U.S.C. 1321(c)(2); 

E.O. 12316, 46 FR 42237 (August 20, 1981); E.O. 11735, 38 FR 21243 (August 

1973) and Executive Order 12580. 
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6. 40 CFR 300.6 is amended by revising the definition of federally 

permitted release to read as follows: 

Section 300.6 Definitions. 

Federally permitted release means: 

(1) Discharges in compliance with a permit under section 402 of the Clean 

Water Act; 

(2) Discharges resulting from circumstances identified and reviewed and 

made a part of the public record with respect to a permit issued or modified 

under section 402 of the Clean Water Act and subject to a condition in such 

permit; 

(3) Continuous or anticipated intermittent discharges from a point source, 

identified in a permit or permit application under section 402 of the Clean 

Water Act, which are caused by events occurring within the scope of relevant 

operating or treatment systems; 

(4) Discharges in compliance with a legally enforceable Federal or State, 

individual or general permit under section 404 of the Clean Water Act; 

(5) Releases in compliance with a legally enforceable Federal or State 

final permit issued pursuant to section 3005(a) through (d) of the Solid Waste 

Disposal Act from a hazardous waste treatment, storage, or disposal facility 

when such permit specifically identifies the hazardous substances and makes 

such substances subject to a standard of practice, control procedure, or 

bioassay limitation or condition, or other control on the hazardous substances 

in such releases; 

(6) Any release in compliance with a legally enforceable permit issued 

under section 102 or section 103 of the Marine Protection, Research, and 

Sanctuaries Act of 1972; 
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(7) Any injection of fluids authorized under Federal underground injection 

control programs or State programs submitted for Federal approval (and not 

disapproved by the Administrator) pursuant to Part C of the Safe Drinking 

Water Act; 

(8) Any emission of a substance into the air which is named specifically 

or is included in a specifically named group of substances subject to and in 

compliance with 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) when such permit or control regulation is specifically designed 

to limit or eliminate such emission of a designated hazardous pollutant or a 

criteria pollutant, including any schedule or waiver granted, promulgated, or 

approved under these sections; 

(9) Any injection of fluids or other materials specifically authorized 

under applicable State law (i) solely for the purpose of stimulating or 

treating wells for the production of crude oil, natural gas, or water, (ii) 

solely for the purpose of secondary, tertiary, or other enhanced recovery of 

crude oil or natural gas, or (iii) which are brought to the surface in 

conjunction with the production of crude oil or natural gas and which are 

reinjected; 

(10) The introduction of any pollutant into a publicly owned treatment 

works when such pollutant is specified in and in compliance with (i) 

applicable pretreatment standards of section 307(b) or (c) of the Clean Water 

Act and (ii) enforceable requirements in a pretreatment program submitted by a 

State or municipality and approved under section 402 of such Act; and 
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(11) Any release of source, special nuclear, or byproduct material, as 

those terms are defined in the Atomic Energy Act of 1954, in compliance with a 

legally enforceable license, permit, regulation, or order issued pursuant to 

the Atomic Energy Act of 1954. 

Any release --

(1) exempt from regulation under the authority of one of the 

statutes listed in paragraphs (l)-(ll); 

(2) not in compliance with the applicable permit limit or 

condition, license, regulation, order, standard, or 

program; or 

(3) to a medium other than that covered in the applicable 

permit, license, regulation, order, standard, or program, 

is not a federally permitted release. 

PART 302 - DESIGNATION, REPORTABLE QUANTITIES, AND NOTIFICATION 

7. The authority citation for Part 302 continues to read as follows: 

Authority: Sec. 102 of the Comprehensive Environmental Response, 

Compensation, and Liability Act of 1980, 42 U.S.C. 9602; sees. 311 and 501(a) 

of the Federal Water Pollution Control Act, 33 U.S.C. 1321 and 1361. 

8. 40 CFR 302.3 is amended by adding a definition of federally permitted 

release as follows: 

Section 302.3 Definitions. 

"Federally permitted release" means any release which meets the definition 

of federally permitted release in section 300.6. 

9. 40 CFR 302.6 is amended by adding a new paragraph (d) as follows: 

Section 302.6 Notification requirements. 
V 

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(d) Whenever a release of a hazardous substance exceeds its federally 

permitted level as defined under section 300.6 ("federally permitted release") 

by a reportable quantity or more, notification shall be made for such release 

in accordance with the requirements of this section or, if applicable, section 

302.8. Where numerical levels for hazardous substances are not specified, any 

release not in compliance with the terms of the applicable permit, license, 

regulation, order, standard or program that equals or exceeds a reportable 

quantity must be reported to the National Response Center in accordance with 

this section or, if applicable, section 302.8.