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BACKGROUND DOCUMENT FOR THE PROPOSED REGULATION ON 

FEDERALLY PERMITTED RELEASES 

A Report to the 

EMERGENCY RESPONSE DIVISION 

Office of Emergency and Remedial Response 

U.S. Environmental Protection Agency 

March 1987 

Prepared by 

ICF INCORPORATED 

under subcontract to 

Combustion Engineering, Inc. 

EPA Contract 68-03-3182 

ICF INCORPORATED International Square 

1850 K Street, Northwest, Washington, D. C. 20006 
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BACKGROUND DOCUMENT FOR THE PROPOSED REGULATION ON 

FEDERALLY PERMITTED RELEASES 

I 

A Report to the 

EMERGENCY RESPONSE DIVISION 

Office of Emergency and Remedial Response 

U.S. Environmental Protection Agency 

March 1987 

Prepared by 

ICF INCORPORATED 

under subcontract to 

Combustion Engineering, Inc. 

EPA Contract 68-03-3182 

I 
TABLE OF CONTENTS 

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Page 

CHAPTER 1: INTRODUCTION AND BACKGROUND 1-1 

CHAPTER 2: PROVISIONS OF FEDERAL PERMIT PROGRAMS INCLUDED IN 

SECTION 101(10) OF CERCLA 2-1 

2.1 Clean Water Act Programs 2-2 

2.1.1 National Pollutant Discharge Elimination 

System (NPDES) Permits 2-2 

2.1.2 Permits for Dredged or Fill Material 2-3 

2.1.3 Pretreatment Standards 2-4 

2.2 Resource Conservation and Recovery Act (RCRA) 2-6 

2.3 Marine Protection, Research, and Sanctuaries 

Act (MPRSA) 2-7 

2.4 Safe Drinking Water Act (SDWA) 2-8 

2.5 Clean Air Act (CAA) 2-9 

2.5.1 PSD and NSR Air Permits 2-10 

2.5.2 New Source Performance Standards (NSPS) 2-11 

2.5.3 National Emissions Standards for Hazardous 

Air Pollutants (NESHAP) 2-12 

2.6 Atomic Energy Act 2-13 

2.7 State Laws Related to the Development of Crude 

Oil or Natural Gas Supplies 2-14 

2.8 TSCA-Regulated Facilities 2-15 

CHAPTER 3: RELEASES TO SECONDARY CONTAINMENT DEVICES 3-1 
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CHAPTER 1 

INTRODUCTION AND BACKGROUND 

The Comprehensive Environmental Response, Compensation, and Liability Act 

of 1980 (CERCLA), 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. The Act defines the term "hazardous 

substances" by reference to other environmental statutes (section 101(14)) 

with authority granted to the Environmental Protection Agency (EPA) to 

designate additional hazardous substances under CERCLA section 102. There are 

currently 717 substances designated as hazardous under CERCLA. 

Sections 103(a) and (b) of CERCLA require the person in charge of a vessel 

or facility to notify the National Response Center immediately when there is a 

release of a designated hazardous substance in an amount equal to or exceeding 

the reportable quantity (RQ) for that substance. 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 (NPDES) permit; 

• Discharges in compliance with a legally enforceable 

permit for dredged or fill materials under section 404 

of the Clean Water Act (CWA); 

• Releases in compliance with a legally enforceable 

Resource Conservation and Recovery Act (RCRA) hazardous 

waste management facility final permit; 

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• Releases in compliance with a legally enforceable 

permit under the Marine Protection, Research, and 

Sanctuaries Act (MPRSA); 

• Injection 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; 

• Air emissions subject to permit or control regulations 

under certain provisions of the Clean Air Act (CAA); 

• Injection 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 pollutants into a publicly owned 

treatment works (POTW) when such pollutant is specified 

in and in compliance with pretreatment standards and a 

pretreatment program submitted to EPA for approval; and 

• Releases 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. 

The purpose of the proposed federally permitted release reporting 

regulation is to clarify the definition of federally permitted release under 

CERCLA and the reporting requirements applicable to those facilities releasing 

CERCLA hazardous substances above permitted levels. In addition, the proposed 

rulemaking would clarify CERCLA notification requirements for releases from 

facilities regulated under the Toxics Substances Control Act (TSCA) and for 

releases into engineered structures designed specifically to prevent materials 

from reaching the land surface. Chapter 2 discusses briefly the Federal 

programs enacted to control hazardous substance releases into the environment 

and, to the extent possible, estimates the number of facilities that are 

regulated under each of the Federal programs listed in section 101(10) of 

CERCLA. It also discusses the Agency's position regarding releases from 
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TSCA-regulated facilities. Chapter 3 describes the Agency's position on 

releases to secondary containment devices. 
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CHAPTER 2 

PROVISIONS OF FEDERAL PERMIT PROGRAMS 

INCLUDED IN SECTION 101(10) OF CERCLA 

CERCLA section 103 exempts from CERCLA notification requirements releases 

from certain facilities when such releases are in compliance with conditions 

of applicable permits, standards, regulations, licenses, orders, or programs. 

CERCLA section 107 exempts all federally permitted releases, except those 

defined by sections 101(10)(B) and (C), from liability for cost recovery. The 

proposed federally permitted release regulation is intended to clarify the 

definition of this exemption under section 101(10) of CERCLA. This regulation 

also clarifies the section 103 reporting exemption under CERCLA to specify 

that releases of CERCLA hazardous substances are not subject to CERCLA 

notification requirements unless the release exceeds permitted levels by an RQ 

or more. 

The following sections in this chapter briefly describe the pollution 

control programs delineated in section 101(10) of CERCLA. Section 2.1 

discusses programs established under the Clean Water Act; Section 2.2 

discusses programs under the Resource Conservation and Recovery Act; Section 

2.3 discusses programs under the Marine Protection, Research, and Sanctuaries 

Act; Section 2.4 discusses the Safe Drinking Water Act programs; Section 2.5 

discusses the Clean Air Act programs; Section 2.6 discusses the programs 

established under the Atomic Energy Act; Section 2.7 discusses the injection 

of materials related to the development of crude oil or natural gas supplies; 

and Section 2.8 discusses releases from TSCA-regulated facilities. 
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2.1 CLEAN WATER ACT PROGRAMS 

The Clean Water Act created several different mechanisms for controlling 

pollution of surface water: section 402 of the CWA establishes the NPDES 

program to regulate point source discharges; section 404 controls the 

discharge of dredged or fill material; and sections 307(b) and 307(c) of the 

CWA control discharges to POTWs. Each of these programs is discussed below. 

2.1.1 National Pollutant Discharge Elimination System (NPDES) Permits 

Section 101(10) identifies three types of releases from NPDES permitted 

point sources as federally permitted releases: (A) discharges in compliance 

with a permit under section 402 of the Clean Water 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 Clean Water Act and subject to a condition of such permit, and (C) 

continuous or anticipated intermittent discharges from a point source, 

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

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

operating or treatment systems. 

Section 402 of the CWA requires that any person who discharges or proposes 

to discharge pollutants into "waters of the United States" from a "point 

source" obtain an NPDES permit. These permits cover continuous and 

noncontinuous discharges of all types of pollutants: conventional, toxic, and 

nonconventional (see 40 CFR Parts 122-125). 

NPDES permits are written on the basis of technology-based requirements 

and more stringent State water quality standards. Technology-based 

requirements are established in Federal effluent limitations guidelines, or, 

in the absence of guidelines, the best professional judgment (BPJ) of the 
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permitting authority. The permits specify how the effluent limitations 

guidelines (or limits based on BPJ) and State water quality standards will be 

applied to a particular point source. The limitations imposed by the permit 

are tailored to the operations of the discharger. In addition to discharge 

limitations, NPDES permits prescribe monitoring procedures and the 

recordkeeping and reporting that must be performed. 

As of July 1985, EPA and delegated State authorities had issued about 

64,000 NPDES permits.1 Depending on the manufacturing process involved, an 

NPDES permit may or may not include limitations for releases of CERCLA 

hazardous substances. The 64,000 estimate, therefore, would represent an 

upperbound number of point source dischargers affected by the proposed 

federally permitted release reporting regulation. 

2.1.2 Permits for Dredged or Fill Material 

Under section 101(10) of CERCLA, discharges in compliance with a legally 

enforceable permit for dredged or fill materials under section 404 of the 

Clean Water Act also are considered federally permitted releases exempt from 

the notification requirements of CERCLA sections 103(a) and (b). 

The Clean Water Act prohibits the discharge of dredged or fill material to 

"waters of the United States" except in compliance with section 404. Section 

404 sets up a procedure for issuing permits that may specify discharge sites. 

Section 404 permits that allow the discharge of hazardous substances are 

issued only if no significant degradation of the aquatic environment will 

result. The discharge of dredged or fill material may be a continuous or long 

1Personal communication. Mike Mundell, U.S. EPA, Office of Water 

Enforcement and Permits, and Elizabeth Deutsch, ICF. February 21, 1986; Linda 

Wilbur, U.S. EPA, Office of Water Regulations and Standards, and Ellen Warhit, 

ICF. May 23, 1986. 
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term disposal method, or a discrete action designed to create land for 

construction purposes (see 33 CFR Parts 320, 323, and 325 and also 40 CFR 

Parts 230, 231, and 233). 

The Secretary of the Army acting through the Chief of the Corps of Engineers, or an approved State, approves discharges at particular sites through 

application of the section 404(b)(1) guidelines, that are the substantive 

criteria for dredged and fill material discharges under the Clean Water Act. 

Contaminants or pollutants in dredged or fill material must be identified and 

may be discharged only (1) if the contamination can be reduced to an acceptable 

level at the disposal site and (2) if constraints are available to prevent the 

contamination from traveling beyond the boundaries of the site. 

There are no general monitoring, recordkeeping, or reporting requirements 

applicable to all section 404 permits. Specific permits may, and often do, 

however, contain appropriate monitoring, recordkeeping, or reporting 

requirements tailored to the circumstances of the permitted discharge. 

Because there are no pollutant-specific limitations in section 404 permits, it 

is not possible to determine if releases of CERCLA hazardous substances are an 

RQ or more above permitted levels. Facilities with section 404 permits, 

therefore, must report any hazardous substance releases that are not in 

compliance with permit conditions when the amount released equals or exceeds 

the applicable RQ. 

2.1.3 Pretreatment Standards 

Pretreatment standards control the discharge of pollutants from 

nondomestic dischargers to POTWs. Under section 101(10)(J), the introduction 

of hazardous substances into a POTW is a federally permitted release (exempted 

from CERCLA reporting and liability requirements) if the pollutant is 
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specified in and in compliance with pretreatment standards and a pretreatment 

program submitted to EPA for approval. Any facility discharging into a POTW 

without an approved pretreatment program does not fall under these two 

conditions and is not considered federally permitted for purposes of CERCLA 

notification. Pretreatment standards under sections 307(b) and (c) are of 

several types: Federal pollutant-specific standards for certain industrial 

categories, a generic prohibition against discharges that may interfere with 

or pass through the POTW, or specific prohibitions (e.g., pH). Sections 

307(b) and 307(c) require the establishment and enforcement of national 

pretreatment standards to control the introduction into POTWs of pollutants 

that are not treatable by a POTW, that contaminate the sludge produced by a 

POTW, or that interfere with, pass through, or are otherwise incompatible with 

the operation of a POTW. POTWs are required to develop local limits to 

prevent pass through or interference. 

Generally, POTWs with a design flow of more than five million gallons per 

day and that receive industrial pollutants must have an approved local 

pretreatment program. For those POTWs with a flow of less than five million 

gallons per day, the State or EPA regional office makes a case-by-case 

determination as to whether a local program must be developed (40 CFR 403.8). 

POTWs required to develop local pretreatment programs must have the legal 

authority to enforce pretreatment standards that are applied to industrial 

users. The control mechanism for regulating industrial users of POTWs may be 

in the form of a permit, contract, order, or other means, depending on the 

POTW. Industrial users must keep records of all monitoring activities and 

report the results to the POTW at least twice a year. There are approximately 
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14,000 industrial facilities discharging into POTWs with pretreatment programs 

that are covered by pollutant-specific industrial pretreatment standards.2 

2.2 RESOURCE CONSERVATION AND RECOVERY ACT (RCRA) 

Releases from hazardous waste management facilities that have legally 

enforceable final permits under section 3005 of RCRA are exempt from CERCLA's 

notification requirements if the permit specifically identifies the hazardous 

substances released and makes those substances subject to "a standard of 

practice, control procedure or bioassay limitation or condition, or other 

control on the hazardous substances in such releases" (section 101(10)(E)). 

Releases in compliance with final RCRA permits issued by a State also are 

considered federally permitted releases for purposes of CERCLA. 

All owners and/or operators of hazardous waste treatment, storage, or 

disposal facilities are required to obtain RCRA permits. EPA regulations 

require that proposed operating procedures for a facility be described in 

detail in the RCRA permit application. If the permit is issued, certain 

operating procedures become permit conditions and any deviation from those 

procedures must be reported to EPA (see 40 CFR Parts 264 and 270). 

The owner/operator of a hazardous waste facility must submit an annual 

report to the EPA Regional Administrator specifying wastes received during the 

year. Releases from the facility require oral notification to the National 

Response Center within 24 hours if human health or the environment would be 

threatened beyond the facility boundary. 

2U.S. Environmental Protection Agency, Report to Congress on the 

Discharge of Hazardous Wastes to Publicly Owned Treatment Works, Office of 

Water Regulations and Standards, February 1986, p. 1-4. 
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Few final RCRA permits have been issued to date and therefore the 

federally permitted release reporting exemption provided by section 101(10)(E) 

is not expected to have wide applicability.3 

2.3 MARINE PROTECTION, RESEARCH, AND SANCTUARIES ACT (MPRSA) 

Releases in compliance with legally enforceable permits issued under 

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

Act (MPRSA) are considered federally permitted releases under CERCLA section 

101(10)(F). MPRSA prohibits transportation for the purpose of dumping 

material into ocean waters and the dumping of materials transported, unless a 

permit has been issued to do so. An ocean dumping permit may be issued if it 

can be established that the proposed dumping "will not unreasonably degrade or 

endanger" the marine environment. 

Ocean dumping permit applications are evaluated using the environmental 

impact criteria in MPRSA and in EPA regulations (the Corps of Engineers is 

responsible for reviewing applications and issuing permits for dumping of 

dredged material). The criteria designate certain materials that are 

prohibited from being dumped and other materials that are prohibited except as 

trace contaminants, and recommend tests and procedures to provide enough 

information to evaluate a permit application. 

The MPRSA permit program evaluates applications on a case-by-case basis. 

Accordingly, EPA or the Corps of Engineers may require certain information as 

3Although not considered federally permitted, disposal of hazardous 

substances at a facility in compliance with applicable interim status 

standards is not subject to the notification requirements under CERCLA 

sections 103(a) and (b) (50 FR 13456, 13461). The fact that such disposal 

need not be reported does not preclude liability for response costs or natural 

resource damages caused by such disposal. 
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part of a particular permit, such as test results, additional information, or 

monitoring of either the material being dumped or the receiving waters. EPA, 

along with the Coast Guard, monitors and manages each designated dumpsite. If 

the dumping endangers the marine environment, EPA has the authority to modify 

or revoke permits as necessary. The permittee must keep historical records of 

the physical and chemical characteristics of the material dumped and the times 

and locations of dumping. This information must be reported to the Regional 

Administrator every six months by the permittee. 

The MPRSA permit program broadly regulates dumping into ocean waters, 

including hazardous substances. Permits specify the site, times, and 

quantities of material to be dumped. 

2.4 SAFE DRINKING WATER ACT (SDWA) 

Another type of federally permitted release is "any injection of fluids 

authorized under Federal underground 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)). 

The SDWA authorizes EPA to promulgate regulations for State Underground 

Injection Control (UIC) programs. Such regulations are required to contain 

"minimum requirements for effective programs to prevent underground injection 

which endangers drinking water." The statute requires Federal or State 

authorization for all underground injections. 

The regulations that describe minimum State requirements for UIC programs 

divide underground injection wells into five categories. Class I and Class IV 

wells deal with injection of hazardous wastes and require permits. 
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Monitoring requirements vary from permit to permit, but may include a 

number of different analyses. Requirements for Class I wells include 

* i • * *• 

quarterly reports to the permitting authority. Under the EPA regulations for 

the underground injection control program (40 CFR 144.51(k)(6)), any owner or 

operator of an injection well must report within 24 hours to the Regional 

Administrator or State Director as appropriate, a violation of the permit that 

may endanger health or the environment. 

2.5 CLEAN AIR AC T (CAA) 

Section 101(10)(H) of CERCLA includes within the definition of federally 

permitted release "any emission into the air subject to a permit or control 

regulation under section 111, 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." 

EPA regulates the following two types of air pollutants under the CAA: 

Criteria Air Pollutants under section 109, and Hazardous Air Pollutants under 

section 112. The Clean Air Act also establishes, under section 111, 

performance standards for new stationary sources of air pollution (see 40 CFR 

Parts 52, 60, 61, and 62). 

Pursuant to section 109 of the Clean Air Act, EPA has established national 

ambient air quality standards for the protection of public health and 

welfare. Ambient air quality standards have been established for the seven 

criteria pollutants: total suspended particulates, sulfur dioxide, photochemical oxidants, nitrogen dioxide, carbon monoxide, hydrocarbons, and lead. 
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Lead is the only criteria air pollutant that is also a CERCLA hazardous 

substance.4 The vast majority (86 percent) of the total amount of lead 

discharged into the air comes from gasoline combustion.5 The remainder 

(about 5,000 tons per year) comes from 17 other source categories. These 

source categories vary from those with a large number of small units (e.g., 

waste oil combustion), to those with a small number of large sources (e.g., 

smelters). 

Much of the authority for implementing air pollution control programs 

necessary to comply with the ambient air quality standards has been delegated 

to the States via State Implementation Plans (SIPs), subject to EPA oversight 

and approval. Sources of air pollution regulated by SIPs are divided into two 

categories: Class A "major" sources are those that generate over 100 tons per 

year of the pollutants regulated under the CAA, and Class B "minor" sources 

are those that generate less than 100 tons per year of regulated pollutants. 

Presently, there are 27,055 Class A "major" sources. Data on Class B "minor" 

sources are not available, but the number is considered to be large.6 

2.5.1 PSD and NSR Air Permits 

The CAA divides the country into two status classifications, attainment 

areas and nonattainment areas. Attainment areas are those where the air is 

40ther CERCLA hazardous substances are often components of other 

criteria air pollutants. For example, toluene and xylene are typically 

components of hydrocarbons. Hence, releases of toluene and xylene also would 

be regulated when hydrocarbons are regulated under section 109 of the CAA. 

5U.S. EPA Environmental Criteria and Assessment Office, Air Quality 

Criteria for Lead. EPA. 600/8-83-028A (October 1983). Volume II. p. 58. 

6Personal communication. Howard Wright, U.S. EPA, Compliance Analysis, 

Air Programs Branch, and Elizabeth Deutsch, ICF. February 28, 1986. 
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cleaner than national ambient air quality standards, and are subject to 

"prevention of significant deterioration" (PSD) standards that limit the 

allowable degradation of air quality. The PSD program requires both new major 

sources and major modifications in 28 industrial categories to undergo 

preconstruction review prior to obtaining a permit to build. In addition, new 

or modified sources not included in one of the 28 industrial categories are 

subject to PSD requirements if they have the potential to emit 250 tons per 

year of any pollutant regulated by the CAA. 

Nonattainment areas are those where the air does not meet the national 

ambient air quality standards for one or more of the criteria air pollutants. 

To achieve air quality standards, SIPs establish emission limits and 

compliance schedules for existing sources and require new source reviews (NSR) 

for all new major sources or major modifications before construction can 

occur, after which a permit is issued if the review is favorable. 

It has been estimated that 100 to 400 PSD and NSR permits are issued each 

year.7 Approximately two-thirds of all NSR and PSD permits issued are for 

major modifications. 

2.5.2 New Source Performance Standards (NSPS) 

In addition to national ambient air quality standards, section 111 of the 

CAA mandates the establishment of new source performance standards (NSPS) for 

63 industrial categories of new and modified stationary sources of air 

pollutant emissions established since August 1971. The number of currently 

7Personal communication. Gary McCutchen, U.S. EPA, Office of Air 

Quality Planning and Standards, Pollutant Assessment Branch, and Elizabeth 

Deutsch, ICF. March 10, 1986. 
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operating NSPS sources is 2,800.8 There is no permitting system under NSPS, 

however. Instead, design standards for particular source categories are 

promulgated. 

2.5.3 National Emissions Standards for Hazardous Air Pollutants 

(NESHAP) 

Section 112 of the CAA requires EPA to list and regulate hazardous air 

pollutants through National Emissions Standards for Hazardous Air Pollutants 

(NESHAP). To date, eight substances have been listed under section 112; 

emission standards have been promulgated for seven of these (mercury, 

beryllium, asbestos, vinyl chloride, inorganic arsenic, benzene, and 

radionuclides).9 EPA is in the process of developing proposed standards for 

the remaining listed pollutant, coke oven emissions. As of mid-1985, about 

1,265 sources were regulated by NESHAP.10 

It should be noted that because sources may be subject to more than one 

section of the CAA, there is a likelihood of significant overlap in the number 

of sources regulated under each section. For example, most NSPS sources are 

probably subject to SIP review processes and therefore are included in the SIP 

major source estimate. Likewise, it was estimated that about one-half of the 

SIP sources that are required to undergo major new or major modified source 

review also must comply with NSPS.11 

8Personal communication. Brenda Riddle, U.S. EPA, Office of Air Quality 

Planning and Standards, Pollutant Assessment Branch, and Elizabeth Deutsch, 

ICF. February 27, 1986. 

9For benzene, standards have been promulgated for fugitive emissions 

from manufacturing and petroleum refining facilities; standards are pending 

for benzene emissions from coke by-product recovery plants. 

10Wasserman, Cheryl. Improving the Efficiency and Effectiveness of 

Compliance Monitoring and Enforcement of Environmental Policies. (1985). 

p. VI-5. 

^Personal communication. Brenda Riddle, U.S. EPA, Office of Air 

Quality Planning and Standards, Pollutant Assessment Branch, and Elizabeth 

Deutsch, ICF. February 27, 1986. 
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2.6 ATOMIC ENERGY AC T 

Section 101(10)(K) of CERCLA defines a federally permitted release to also 

include "any releases of source, special nuclear, or byproduct material," as 

defined by the Atomic Energy Act of 1954, in compliance with a legally 

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

authority of the Atomic Energy Act. 

Nuclear materials are regulated or controlled primarily by the Nuclear 

Regulatory Commission and by the Department of Energy (DOE). EPA and the 

Department of Defense (DOD) also have certain regulatory authority under the 

Atomic Energy Act. The Nuclear Regulatory Commission's jurisdiction is 

limited to certain types of nuclear materials and to certain parties who may 

handle these materials. First, the Commission only licenses source, 

byproduct, and special nuclear material as defined by the Atomic Energy Act. 

In general, the Commission does not license naturally occurring and 

accelerator-produced radioactive materials (NARM), although naturally 

occurring radioactive materials may be subject to Commission regulation when 

they are associated with source, byproduct, or special nuclear material being 

used under an active license. Second, certain activities of DOE and DOD --

even though these activities involve source, byproduct, and special nuclear 

materials -- are exempt from Commission license requirements. 

The Nuclear Regulatory Commission requires that records be kept of all 

receipts, transfers, and disposals of source, byproduct, and special nuclear 

material. Monitoring is required for all activities involving nuclear 

material, except for certain uses of small quantities of enclosed byproduct 

material. Besides general monitoring of personnel areas and nuclear 

facilities, licensees must report to the Commission every six months on the 

quantities and nature of all releases beyond the facility boundaries. 
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According to regulations that describe general requirements for all uses 

of radioactive substances, licensees must notify the Commission of all 

"nuclear incidents". Depending on the level of exposure, the amount of 

radioactive material released, and other criteria, the licensee must report 

nuclear incidents or excessive levels of radioactivity immediately, within 24 

hours, or within 30 days. Licensees also must report all defects in 

facilities and noncompliance with the license within two days. 

There are approximately 8,900 Nuclear Regulatory Commission licensees and 

an additional 13,000 licensees in agreement States.12 Agreement States have 

been delegated authority by the Commission to license source, byproduct, and 

special nuclear material for facilities within their boundaries. 

DOE controls many government-owned, contractor-operated facilities that 

may release radionuclides to the environment, including facilities engaged in 

research and development, nuclear weapons production, enrichment of uranium 

for nuclear reactors, and facilities that process, store, and dispose of 

radioactive waste. Many of the research facilities controlled by DOE are 

accelerators, that generate accelerator-produced radioisotopes (included 

within the definition of NARM). 

2.7 STATE LAWS RELATED TO DEVELOPMENT OF CRUDE OIL 

OR NATURAL GAS SUPPLIES 

CERCLA section 101(10)(I) considers "injection of fluids or other 

materials authorized under applicable State law (i) for the purpose of 

stimulating or treating wells for the production of crude oil, natural gas, or 

water, (ii) for the purpose of secondary, tertiary, or other enhanced recovery 

12U.S. Nuclear Regulatory Commission, 1984 Nuclear Regulatory Commission 

Annual Report, p. 73. 
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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" to be federally permitted releases. 

Federally permitted releases include only those releases that are 

specifically authorized by the State rather than simply not prohibited. _We 

have no information on the number of federally permitted releases as defined 

by section 101(10)(I) of CERCLA. 

2.8 TSCA-REGULATED FACILITIES 

Releases associated with approved polychlorinated biphenyl (PCB) disposal 

by incineration, landfilling, or alternate methods are not included in the 

federally permitted release definition under section 101(10) of CERCLA. EPA 

does not believe, however, that notification under section 103 of CERCLA 

provides any significant additional benefit so long as the disposal facility 

is in compliance with all applicable TSCA regulations and approval 

conditions. Therefore, EPA will not require reporting of the approved, proper 

disposal of PCB wastes. The fact that reporting is not required does not 

preclude liability for response costs or natural resource damages caused by 

such disposal. In addition, PCB releases of an RQ or more from a TSCAapproved facility (as opposed to disposal into such a facility) must be 

reported under CERCLA. 
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CHAPTER 3 

RELEASES TO SECONDARY CONTAINMENT DEVICES 

Questions have arisen on an issue not specifically related to the 

definition of "federally permitted release" but rather to the broader question 

of the definition of the environment. One common question with respect to 

this issue concerns releases of hazardous substances into engineered 

structures designed specifically to prevent materials from reaching the land 

surface. This question involves both interpretation of the phrase "release 

into the environment" and the appropriateness of reporting requirements for 

releases to such secondary containment devices. 

In the preamble to the April 4, 1985 final rule adjusting reportable 

quantities for 340 CERCLA hazardous substances, EPA stated: 

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. 

Applying the phrase "into the environment" to releases to secondary 

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

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

pans used to catch minor hose or line drainage. 

To better understand the experience of regional On-Scene Coordinators 

(OSCs), the Agency conducted some informal polling to determine whether 

releases to secondary containment devices are of concern and whether OSCs are 

interested in continuing to receive reports of these types of releases. 

Most EPA regional personnel stated that they believed it was important to 

continue to receive reports of releases to secondary containment devices. The 

basis for their position was that secondary containment devices did not always 

function properly and were not always able to contain the release. Immediate 

notification of a release was desirable because secondary containment devices 
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are simply a control mechanism and cannot handle all situations that might 

arise. 

Many of the Regions pointed out that some secondary containment devices 

may work well for some types of releases and not well for others. For 

example, a secondary containment device may work well for nonvolatile 

substances but not well for volatile substances, or a release to a secondary 

containment device may pose different hazards depending upon the 

meteorological conditions at the time. The following is one of several 

examples that were presented to illustrate Regional concerns: 

Approximately 10,000 to 15,000 gallons of hydrochloric 

acid were released into a dike and a day or two passed 

before the substance evaporated. If it had rained 

before the substance evaporated, the overflow would have 

created a "violent situation." 

EPA is concerned that exempting these types of releases from reporting 

would not be appropriate because there are too many variables that can lead to 

unique problems. If EPA is given immediate notification of a release, the OSC 

can often advise the facility owner or operator of proper cleanup steps and 

potential hazards. EPA is, however, interested in specific examples of 

procedures followed when there is a release to a secondary containment device 

and techniques used to prevent releases from such devices, as well as data 

discussing the integrity of secondary containment devices.