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ENVIRONMENTAL PROTECTION AGENCY 

40 CFR Parts 110, 117, 300, and 302 

[ ] 

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 immediately notify the National Response Center of the 

release. Section 102(b) sets a reportable quantity of one pound for hazardous 

substances, except those for which reportable quantities have been established 

pursuant to Section 311(b)(4) of the Clean Water Act. Section 102(a) 

authorizes the Environmental Protection Agency to adjust reportable quantities 

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. 

The notification requirement under Sections 103(a) and 103(b) 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" from liability for response costs and damages under CERCLA incurred 

due to the release. Section 101(10) of CERCLA defines "federally permitted 

release" in terms of the discharge requirements of a number of State and 
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Federal programs. The purpose of this rulemaking is to clarify this 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 

Parts 110 and 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 __. 

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

Division, Docket Clerk, Attention: Docket Number , Room LG-100, U.S. 

Environmental Protection Agency, 401 M Street, S.W., Washington, D.C. 20460. 

Copies of materials relevant to this rulemaking are kept in Room LG-100, 

at the above address. The docket is available for inspection between 8:00 

a.m. and 4:00 p.m. Monday through Friday, excluding holidays. As provided in 

40 CFR Part 2, a reasonable fee may be charged for copying services. 

FOR FURTHER INFORMATION CONTACT: 

Ms. Barbara Hostage, Senior Project Officer 

Response Standards and Criteria Branch 

Emergency Response Division (WH-548B) 

U.S. Environmental Protection Agency 

401 M Street, S.W. 

Washington, D.C. 20460 

or the 

RCRA/Superfund Hotline ' 

l-(800) 424-9356; 

in Washington, D.C, 

l-(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. Summary of Supporting Analyses 
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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 seg. (CERCLA or the Act), enacted 

on December 11, 1980, 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. 

Sections 103(a) and (b) 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 (1-800-424-8802; in the Washington, D.C. metropolitan 

area, 1-202-426-2675), immediately. Section 102(b) of CERCLA establishes RQs 

for releases of designated hazardous substances at one pound, except for those 

substances for which RQs were established pursuant to Section 311 of the Clean 

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

RQs. 

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: 
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• Discharges covered by a National Pollutant Discharge 

Elimination System permit; 

• 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 
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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 

permitted releases. General comments on the scope of 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 may already 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 not 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." 

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 
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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 involved. 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. 

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. 

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 

requirements) if they are exempt from regulation by the statutes listed in 

CERCLA Section 101(10). However, the exemption of a type of release from 

regulation under a particular statute may have little or no bearing on whether 

a federal response action might be needed regarding a specific release. 

Therefore, the Agency has determined that releases exempt from regulation by 

the statutes listed in Section 101(10) will not be considered federally 
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permitted releases. For example, discharges of dredge or fill material from 

normal farming, silviculture and ranching activities which 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 which 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 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 specific quantitative levels for hazardous 

substances in individual permits, any release not in compliance with the terms 

of the permit that equals or exceeds an RQ must be reported to the National 

Response Center. 

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 
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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 

Major comments that EPA received concerning particular federally permitted 

release exemptions are discussed below. For several issues discussed below, 

EPA has retained and incorporated the position set forth in the May 25, 1983 

NPRM. 

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 

hazardous substance spill response and prevention program. 

The Agency is proposing to revise certain provisions of 40 CFR Parts 110 

and 117 to make them consistent with the proposed revisions to 40 CFR Part 300 

contained herein. Both Parts 110 and 117 implement Section 311 of the CWA; 

Part 110 regulates oil discharges into navigable waters and Part 117 regulates 

the discharge of hazardous substances into navigable waters. The proposed 
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revision to Part 110 will expand the definition of "discharge" to include an 

explanation of the CWA Section 311 exemptions. The proposed revision to Part 

117 will clarify the Section 311 exemptions in 40 CFR §117.12. The proposed 

revisions will make Parts 110, 117, and 300 consistent with each other and 

with the NPDES regulations in 40 CFR Part 122. 

The main departure in the proposed Part 117 from the existing Part 117 

concerns the use of the term "upset" in section 117.12(d)(iii). Specifically, 

under the existing section 117.12, if an upset results from operator error, 

the resulting discharge is exempt from Section 311, while under the proposed 

section 117.12, a discharge resulting from an upset, as defined by section 

122.41(n), is not exempt from Section 311 if it is the result of operator 

error. Congress intended to "draw a line between the provisions of the [Clean 

Water] [A]ct under Section 301, 304, and 402 regulating chronic discharges and 

311 dealing with spills" (124 Congressional Record 37683 (1978)), as 

explained by Senator Stafford. The Senator further stated that: "The concept 

can be summarized by stating that those discharges of pollutants that a 

reasonable man would conclude are associated with permits, permit conditions, 

the 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" (Ibid.). The Agency believes that operator 

error is an episodic event, more closely associated with an episodic or 

classic spill situation than with a chronic discharge situation. Therefore, 

this proposal would amend the third exemption to provide that a discharge that 

results from operator error will be regulated under Section 311. Additional 
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proposed revisions to 40 CFR §117.12 provide clarifications of all three 

exemptions to Section 311. 

As noted above, CERCLA Section 101(10)(A) exempts those discharges which 

are in compliance with an NPDES permit that addresses the discharge in 

question. In order to qualify under this exemption, 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 

factsheet prepared during permit development must specifically list the 

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

CERCLA Section 101(10)(B) exempts those discharges which are both 

foreseeable (and therefore raised in the record of the NPDES permit's 

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

is capable of adequately treating the discharge. This second CWA exclusion 

should in no way be read to preclude liability or to provide an exemption from 

CERCLA reporting requirements where a permittee reroutes a discharge through a 

treatment system that is neither designed to treat such pollutants nor capable 

of handling the volume of pollutants discharged. In addition, the second 

exclusion contemplates that the facility's NPDES permit addresses these 

chronic releases through release prevention plans and other best management 

practices and that the permittee has met these requirements before it is 

eligible for an exemption from the Section 103 or Clean Water Act Section 311 

requirements. 

CERCLA Section 101(10)(C) exempts those discharges where the permittee 

possesses a valid and effective NPDES permit and, although the permit limits 

were exceeded, the permittee had previously obtained the permitting 

authority's approval for the discharge as an anticipated bypass as that term 
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is defined in 40 CFR §122.41(m); or the permittee has acted in such a manner 

as to qualify the facility for an "excused excursion" under the upset 

regulations in 40 CFR §122.41(n). These discharges are not reportable under 

CERCLA Section 103 even though the permittee may be technically out of 

compliance with its permit. Thus, under the proposed rule, any discharge 

exceeding the NPDES permit's limitations must be reported if it exceeds permit 

limits by an RQ or more, unless the permittee can demonstrate that the 

requirements for the defenses of anticipated bypass or excused excursion 

described above have been met. 

Releases Subject to CWA Section 404 Permits. Discharges which comply 

with a legally enforceable permit for dredge or fill materials under Section 

404 of the CWA are also 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, EPA exempted from the 

notification requirement not only those releases which were in compliance with 

Section 404 permits, but also those which were not subject to 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, they must be reported. Releases in compliance with a legally 

enforceable permit under Section 404 of the CWA need not be reported. 
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Releases from Facilities with Final RCRA Permits. Releases in compliance 

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

are considered by CERCLA Section 101(10)(E) as 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. However, the issuance of a final 

permit is an express requirement for exemption under Section 101(10)(E). The 

legislative history of CERCLA makes the scope of this exemption clear: "Sites 

or facilities which have interim status under Section 3005(e) do not 

adequately utilize acceptable levels of technology, and do not qualify for 

this exclusion." (Sen. Rep. 96-848, 96th Cong., 2d Sess. 48 (1980)). 

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) and 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 
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identify the materials which may be discharged (see 40 CFR Parts 221, 223). 

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 Sections 103(a) and (b). 

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 

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). As stated in the preamble to the May 25, 1983 

NPRM, for this exemption to apply, however, any such CAA controls must be 

"specifically designed to limit or eliminate emissions of a designated 
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hazardous pollutant or a criteria pollutant." (Sen. Rep. 96-848, 96th Cong., 

2d Sess. 49 (1980)). 

Therefore, the CAA exemption 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 

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 specifically 

designed 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 to the environment of hazardous 

substances for which timely response may be critical. To establish an 

interpretation of CAA controls as requested by the commenters would virtually 
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eliminate any CERCLA reporting of air emissions and, thus, 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 

which 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 

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

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

they have been reviewed. 

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 and reviewed and 

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

development process. The exemption does not extend to releases of hazardous 

substances that are not expressly identified on the record with respect to the 
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applicable permit or control program. Once the constituent hazardous 

substances have been appropriately identified and reviewed, the limitation on 

the category of emissions 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) 

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 those described in the statute 

results in a release of a hazardous substance in an amount that equals or 

exceeds the applicable RQ. 
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Introduction of Pollutants into Publicly Owned Treatment Works. As 

stated in the May 25, 1983 NPRM, releases to publicly owned treatment works 

(POTWs) will be considered federally permitted if two conditions are 

satisfied: (1) the pollutant is specified in pretreatment standards and is in 

compliance with the standards of Section 307(b) and (c) of the CWA, and (2) 

the pollutant is specified in and is in compliance with enforceable 

requirements in a local pretreatment program submitted by the state or local 

government for EPA approval. 

The "pretreatment standards" referred to in the first condition include 

both national categorical standards and standards established by local law as 

described below. If a POTW develops a local limit pursuant to 40 CFR 

§403.5(c) to implement the general prohibition against interference or pass 

through (section 403.5(a)), or the specific prohibitions of section 403.5(b), 

releases of specific pollutants subject to and in compliance with such local 

limits would qualify as federally permitted releases if they are also in 

compliance with any applicable categorical standards. The development of 

local limits under section 403.5(c) involves three basic steps. First, a POTW 

must determine which, if any, of the pollutants discharged by its industrial 

users1 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 loading that it can accept to prevent the 

occurrence of pass through or interference. Finally, after maximum allowable 

headworks loadings are determined for each of the pollutants of concern, the 

x"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. 
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POTW must implement a system of local limits applicable to industrial users to 

assure that these loadings will not be exceeded. Therefore, in order for a 

release to qualify as a federally permitted release, the existence of a POTW 

ordinance or other local limits that result in some level of control of 

pollutant discharges is not in itself sufficient; the limit must have been 

developed in accordance with 40 CFR §403.5(c). 

The second condition requires POTWs to have local pretreatment programs 

approved by an "approval authority" pursuant to 40 CFR Part 403. The term 

"approval authority" as defined in 40 CFR §403.3(c), includes a State that has 

in turn received EPA approval to implement the national pretreatment program 

within the State pursuant to Section 402(b) of the Clean Water Act, or EPA if 

the State does not have an approved State pretreatment program. The second 

condition also includes industrial users discharging to POTWs for which a 

State with an approved State pretreatment program has assumed responsibility 

for also implementing the local pretreatment program requirements pursuant to 

40 CFR §403.10(e). In such case, the municipality need not have an approved 

local pretreatment program because the State has assumed those regulatory 

obligations. 

Except as described above, other industrial users of POTWs will not 

qualify for the federally permitted release exemption. Although CERCLA uses 

the term "submitted," a strict reading of the statute 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" (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 
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pollutants from non-domestic users of the POTW. Such program may not be 

approved by the approval authority due to major deficiencies. Therefore, for 

the discharge to be a federally permitted release, 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. 

Similarly, industrial users of POTWs subject only to a State-administered 

pretreatment program can only qualify for the federally permitted release 

exemption if the State has been approved to administer the local pretreatment 

program pursuant to 40 CFR §403.10(e) for that POTW. The fact that a State 

has submitted a request to administer such a local program will not 

necessarily be sufficient. A determination by EPA that a State-run local 

program is approvable (and that the State can then therefore implement a 

pretreatment program in lieu of its POTWs) is a prerequisite for discharges by 

industrial users to such POTWs to be authorized under a pretreatment program. 

If a State program under section 403.10(e) does not cover all of its POTWs, 

only those discharges to POTWs for which the State has implemented the 

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

permitted releases. Other POTWs would have to have individually approved 

local pretreatment programs in order for the discharges of their industrial 

users to qualify as federally permitted releases. 

In addition, inasmuch as Congress intended to require an approved 

pretreatment program as a precondition for an industrial user discharge to 

qualify as a federally permitted release, approval of a State to implement the 

State pretreatment program pursuant to Section 402(b) of the CWA would not 

automatically qualify discharges to its POTWs as federally permitted 

releases. A State that has been approved to run the State pretreatment 
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program in lieu of EPA (whereby the State becomes the approval authority) does 

not thereby obtain authority to operate the local pretreatment program in lieu 

of the POTW. Unless a State has implemented the local pretreatment program 

pursuant to section 403.10(e), individual POTWs would still have to develop a 

local pretreatment program pursuant to Part 403 in order for discharges to the 

POTWs to be considered as federally permitted releases. 

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. 

Releases equal to or exceeding the RQ of radionuclides 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 radiation-
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related activities under an agreement with the Nuclear Regulatory Commission. 

EPA and the Department of Energy 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 considered "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 are also considered "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. 

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 
P.22 

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excluded from the definition of release, considered 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 which 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. 

In the preamble to the April 4, 1985 final rule adjusting RQs 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 
P.23 

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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 

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

leaves the building. However, 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 have been brought to the Agency's 

attention that illustrate both the potential for a serious problem and an 

existing serious situation. 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. 

Releases to engineered 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. It has 

been suggested that where these 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. 

The Agency is interested in receiving comments and data discussing the 

circumstances under which notification of releases into such 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 
P.24 

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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 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, 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. Therefore, EPA will not require reporting of the 

approved, proper disposal of PCB wastes. However, a party responsible for a 

release of PCB wastes that need not be reported under CERCLA 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 substantial compliance with applicable regulations and 

approved conditions, disposal of an RQ or more of PCB waste must be reported 

to the National Response Center. Likewise, spills and accidents occurring 

during disposal that result in releases of RQs of PCB waste must also be 
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reported to the National Response Center. Finally, PCB releases of an RQ or 

more from a TSCA approved facility (as opposed to disposal into such a 

facility), must be reported under CERCLA. 

IV. SUMMARY OF SUPPORTING ANALYSES 

Rulemaking protocol under Executive Order 12291 requires that proposed 

regulations be classified as major or non-major 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 non-major, 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, S.W., Washington, D.C. 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 

that this proposed regulation will not have a significant impact on a 

substantial number of small entities. 
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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 

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 110 

Administrative practice and procedure, Coastal zone, Continental Shelf, 

Environmental protection, Fisheries, Hazardous substances, Intergovernmental 

relations, Liabilities, Marine resources, Natural resources, Oil pollution, 

Penalties, Petroleum, Public health, Reporting and recordkeeping requirements, 

Rivers, Treaties, Vessels, Water pollution control, Water resources, Waterways. 

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. 
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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 

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 that 40 CFR 

Chapter I be amended as follows: 

PART 110 - DISCHARGE OF OIL 

1. The authority citation for Part 110 continues to read as follows: 

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

Amendments of 1972 (33 U.S.C. 1251 et seg. as amended); Section 18(m)(3) of 

the Deepwater Port Act of 1974 (33 U.S.C. 1517(m)(3)); Section 12(b) of the 

Act to Prevent Pollution from Ships (33 U.S.C. 1901 et seq.). 

2. 40 CFR 110.1 is amended by revising the definition of "Discharge" 

contained therein to read as follows: 

110.1 Definitions. 

"Discharge" includes, but is not limited to, any spilling, leaking, 

pumping, pouring, emitting, emptying, or dumping, but excludes 

(a) Discharges in compliance with a permit issued under Section 402 of the 

Act if the permit contains an effluent limitation applicable to the 

oil discharged or an effluent limitation applicable to another waste 

parameter that has been specifically identified in the permit as 

intended to limit such oil, and the discharge is in compliance with 

the effluent limitation. 

(b) 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 Act, and subject to and in 

compliance with a condition in such permit, where: 
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(1) The public record contains documents that specifically identify: 

(A) The type and the amount of oil; and 

(B) The origin and source of the oil; and 

(C) The treatment that is to be provided for the discharge either 

by: 

(i) An on-site treatment system separate from any treatment 

system treating the permittee's normal discharge; or 

(ii) A treatment system designed to treat both the 

permittee's normal discharge and the identified amount 

of the oil; or 

(iii) Any combination of the above; and 

(2) The permit contains a requirement that the type of oil and amounts 

of oil be treated in the event of an on-site release; and 

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

(c) Continuous or anticipated intermittent discharges 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, where: 

(1) The oil 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 oil results from: 

(A) A continuous or anticipated intermittent discharge where the 

discharge originates within the manufacturing or treatment 

systems; or 
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(B) An upset of a treatment system where the upset results from a 

system failure or malfunction provided that the malfunction is 

not caused by operational error, improperly designed or 

constructed treatment systems, lack of preventative 

maintenance or improper operation, and provided that such 

upset is not caused by an on-site spill of oil. 

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 s_eq.), 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. This regulation does not apply to: 

(a) Discharges in compliance with a permit issued under Section 402 of the 

Act if the permit contains an effluent limitation 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. 

(b) 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 Act, and subject to and in 

compliance with a condition in such permit, where: 

(1) The public record contains documents that specifically identify: 

(A) The type and the amount of substance; and 
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(B) The origin and source of the substance; and 

(C) The treatment that is to be provided for the discharge either 

by: 

(i) An on-site treatment system separate from any treatment 

system treating the permittee's normal discharge; or 

(ii) A treatment system designed to treat both the 

permittee's normal discharge and the identified amount 

of the identified substance; or 

(iii) Any combination of the above; and 

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

amounts of the substance be treated in the event of an on-site 

release; and 

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

(c) Continuous or anticipated intermittent discharges 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, where: 

(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: 

(A) A continuous or anticipated intermittent discharge where the 

discharge originates within the manufacturing or treatment 

systems; or 
•32-

(B) An upset of a treatment system where the upset results from a 

system failure or malfunction provided that the malfunction is 

not caused by operational error, improperly designed or 

constructed treatment systems, lack of preventative 

maintenance or improper operation, and provided that such 

upset 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). 

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 federal or state permit issued under 

Section 402 of the Clean Water Act if the permit contains an effluent 

limitation applicable to the hazardous substance discharged or an 

effluent limitation applicable to another waste parameter that has 

been specifically identified in the permit as intended to limit such 

hazardous substance, and the discharge is in compliance with the 

effluent limitation. 
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(2) Discharges resulting from circumstances identified and reviewed and 

made a part of the public record with respect to a federal or state 

permit issued or modified under Section 402 of the Clean Water Act, 

and subject to and in compliance with a condition in such permit, 

where: 

(a) The public record contains documents that specifically identify: 

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

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

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

either by: 

(A) An on-site treatment system separate from any treatment 

system treating the permittee's normal discharge; or 

(B) A treatment system designed to treat both the 

permittee's normal discharge and the identified amount 

of the hazardous substance; or 

(C) Any combination of the above; and 

(b) The permit contains a requirement that the hazardous substance be 

treated in the event of an on-site release; and 

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

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

identified in a federal or state permit or permit application under 

Section 402 of the Clean Water 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, where: 

(a) 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 
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(b) The discharge of the hazardous substance results from: 

(i) A continuous or anticipated intermittent discharge where the 

discharge originates within the manufacturing or treatment 

systems; or 

(ii) An upset of a treatment system where the upset results from 

a system failure or malfunction provided that the 

malfunction is not caused by operational error, improperly 

designed or constructed treatment systems, lack of 

preventative maintenance or improper operation, and provided 

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

hazardous substance. 

(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; 

(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; 
P.35 

« 

4 

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(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 

(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. 

(12) Any release --
P.36 

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

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

(ii) not in compliance with the applicable permit, license, 

regulation, order, standard, or program; or 

(iii) 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.SiC. 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. 

(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 
P.37 

* 

• ! 

* 

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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.