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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 20460 

SEP I 9 I988 

OFFICE OF 

SOLID WASTE ANO EMERGENCY RESPONSE 

MEMORANDUM 

SUBJECT: 

FROM: 

Minutes of the Meeting of the Emergency Response Division, the 

Office of General Counsel, and representatives of the Chemical 

Manufacturers Association 

Hubert Watters 

Emergency Response' DTvls'ion 

TO: 

1. 

2. 

3. 

The Record 

Date: 

Place: 

Attendees: 

Purpose: 

Thursday, August 11, 1988 

U.S. Environmental Protection Agency 

401 M Street, S.W. 

Washington, D.C. 20460 

John Riley, ERD 

Barbara Hostage, ERD 

Hubert Watters, ERD 

Charlie Carter, 0GC 

Carrie Wen ling, 0GC 

Jim Mulligan, CMA 

Kathy Bailey, CMA 

Rosemary Wisniewski, ICF Inc. 

Meeting requested by the Chemical Manufacturers 

Association to discuss the applicability of the 

federally permitted release exemption to certain 

categories of air emissions. 

Summary/High lights: 

Members of the staffs of the Emergency Response Division 

(ERD) and the Office of General Counsel (0GC) met with 

representatives of the Chemical Manufacturers 

Association (CMA) to discuss certain issues concerning 

the treatment of air emissions in the proposed rule on 

federally permitted releases which interprets CERCLA 

section 101(10)(H) (see 53 FR 27268 July 19, 1988). The 

CMA representatives had several related concerns about 

which they sought clarification: 
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(1) The Agency's statutory interpretation that 

permitted releases are releases subject to and in 

compliance with permitted or regulatory requirements; 

(2) The Agency's reasons for the language added to 40 

CFR Part 355 (a)(2)(ii)(H) in the proposed rule; and 

(3) The method for determining which facilities are 

required to provide CERCLA section 103 notification of 

releases and which releases are federally permitted 

under the Clean Air Act. 

Addressing the first issue, ERD noted that CERCLA 

section 101(10) generally limits the federally permitted 

release exemption to releases in compliance with 

permitted or regulatory requirements. The Agency 

believes that a straightforward interpretation of the 

statute indicates that if a release exceeds permitted 

levels, it is not in compliance and cannot be federally 

permitted. Also, the broadest interpretation of the 

section 101(10)(H) statutory term "subject to," under 

which virtually all air emissions would be exempt from 

CERCLA reporting requirements, could not have been 

intended by Congress because such an interpretation would 

include dangerous episodic release for which the Agency 

would most certainly want notice to determine whether a 

response action was needed. To be exempt under subsection 101(10)(H), therefore, a release must be in 

subject to and_ in compliance with a CAA permit or 

control regulation. Accordingly, 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. 

With regard to determining which facilities are subject 

to notification requirements, ERD pointed out that in 

the proposed rule the Agency described and asked for 

comments on three alternative approaches for defining 

the scope of the air release exemption. 0GC explained 

that the language in the proposed revision of 40 CFR.40 

355(a)(2)(ii)(H) is based on the first approach. ERD 

also said that comments from associations such as the 

CMA are solicited because association members have the 

experience to assist EPA in determining which of the 

proposed approaches best protects human health and the 

environment while not requiring unnecessary duplicative 

reporting. 

CMA then requested clarification about several specific 

categories of facilities and their status under the 

proposed approaches, as follows: 
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Facilities in attainment areas that are subject to 

Part C of the CAA but are not subject to prevention of 

significant deterioration (PSD) requirements or other 

permit or control regulations; 

Facilities that have submitted an inventory of emissions 

that the State has reviewed in terms of applicable 

standards and decided that the facilities are not 

required to have a permit, although the State may have 

non-facility-specific limits in its air toxics 

regulations; 

Facilities that are subject to limits of VOC emissions 

under permits or control regulations; and 

Facilities whose emissions are permitted or controlled 

by a completely independent state air toxics program. 

Responding to CMA's inquiries, ERD and OGC staff members 

indicated that, in general, CMA was perhaps giving too 

narrow a reading to the requirement that facilities must 

be subject to and in compliance with permit conditions 

or control regulations. The federally permitted release 

exemption is premised on the belief that such releases 

need not be reported under CERCLA section 103 because 

the releases are limited by and reported to other 

authorities. Thus, the basic criterion that must be met 

is that the facility's emissions are subject to and in 

compliance with some federal or federally authorized 

state limitation whether that is a permit, control 

regulation, or a waiver under CAA section 110. It is 

not necessary, however, that the limitation be facilityspecific. 

With regard to a facility in an attainment area, ERD 

explained that the releases from such facilities cannot 

be considered exempt unless they are subject to and in 

compliance with a federal or federally authorized state 

program limitation. If such facilities are currently 

not subject to any permit limitation or control 

regulation, OGC raised the possibility that facility 

owners or operators might request that a limitation be 

specified by a Federal or federally authorized state 

program in order to meet the threshold qualification for 

the federally permitted release exemption. 

Emissions from facilities that have been reviewed by 

State authorities and allowed to operate without 

facility-specific permits or controls, may qualify under 

the first and third approaches. OGC noted that the 

Agency specifically asked for comments on the treatment 

on such negative determinations. If, however, emissions 

from such facilities are subject to and in compliance 

with emissions limitations written into state 
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with emissions limitations written into state 

regulations, even though the limitations are not 

facility-specific, they would be considered exempt 

from reporting requirements approaches. 

VOC emissions, if subject to and in compliance with 

permit conditions or control regulations, would be 

exempt from reporting requirements under the first and 

third approaches but not under the second. The second 

approach disqualifies VOC emissions because regulatory 

standards and limitations are based on the contribution 

of VOC to the formation of ozone not on the direct 

health effects of VOC emissions. 

Emissions that are permitted or controlled solely by an 

independent State air toxics program, OGC 

representatives explained, cannot be considered 

federally permitted releases because the statute clearly 

requires that releases come within Federal or federally 

derived state authority. 

CMA also raised the question of the "cut-off point" for 

routine releases under the third proposed approach. ERD 

staff members replied that the Agency asked for comments 

from the regulated community on the routine vs. 

nonroutine distinction. ERD also stated that some nonpermitted releases may qualify for reduced reporting 

under CERCLA section 103(f)(2). 

Next Steps: CMA said that they would be happy to assist the Agency 

by attempting to define routine releases perhaps in 

terms of percentages. CMA added that they would submit 

formal comments on alternative approaches to defining 

the scope of the air emissions exemption with their 

comments of other aspects of the proposed rule.