P.1 

/OIClo)PfR-|-|.| 

Tuesday 

July 19, 1988 

Part II 

Environmental 

Protection Agency 

40 CFR Parts 117, 302, and 355 

Reporting Exemptions for Federally 

Permttted Release* of Hazardous 

Substances; Proposed Rule 
P.2 

27268 Federal Register / Vol. 53, No. 138 / Tuesday, July 19, 1988 / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 117,302, and 355 

[FRL-3207-3] 

Reporting Exemptions for Federally 

Permitted Releases of Hazardous 

Substances 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: Section 103(a) of the 

Comprehensive Environmental 

Response, Compensation, and Liability 

Act of 1980 (CERCLA), as amended, 

requires that the person in charge of a 

vessel or facility from which a 

hazardous substance has been released 

in a quantity that is equal to or greater 

than its reportable quantity (RQ) shall 

immediately notify the National 

Response Center of the release. Section 

102(b) sets an RQ of one pound of 

hazardous substances, except those for 

which RQs have been established 

pursuant to section 311a(b)(4) of the 

clean Water Act. Section 102(a) 

authorizes the U.S. Environmental 

Protection Agency (EPA) to adjust RQs 

for hazardous substances and to 

designate as hazardous substances 

those substances that, 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) of CERCLA 

applies to any release of a hazardous 

substance "other than a federally 

permitted release." Section 101(10) of 

CERCLA defines "federally permitted 

release" in terms of the discharge 

requirements of a number of State and 

Federal programs. Section 107(j) of 

CERCLA also exempts a "federally 

permitted release" from liability under 

CERCLA for response costs and 

damages incurred due to the release. 

The purpose of this rulemaking is to 

clarify the federally permitted release 

exemption from CERCLA release 

reporting and liability provisions. 

Today's proposed rule also addresses 

this exemption from the notification 

requirements under Title III of the 

Superfund Amendments and 

Reauthorization Act of 1986. The 

Agency also proposes in this rule to 

make conforming changes to the 

regulation (40 CFR Part 117) describing 

the notification requirements for 

releases of hazardous substances under 

section 311 of the Clean Water Act. 

Finally, this rulemaking addresses 

several issues related to which releases 

into the environment require notification 

under CERCLA. 

DATES: Comments must be submitted on 

or before September 19,1988. 

ADDRESSES: 

Comments: Comments should be 

submitted in triplicate to: Emergency 

Response Division, Superfund Docket 

Clerk, Attention: Docket Number 101(10) 

FPR, Room LG-100, U.S. Environmental 

Protection Agency, 401 M Street SW., 

Washington, DC 20460. 

Docket- Copies of materials relevant 

to this rulemaking are kept in Room LG100, at the above address. The docket is 

available for inspection between 9:00 

a.m. and 4:00 p.m. Monday through 

Friday, excluding Federal holidays. 

Appointments to review the docket can 

be made by calling 202/382-3046. As 

provided in 40 CFR Part 2, a reasonable 

fee (the first 50 pages are free and each 

additional page costs $.20) may be 

charged for copying services. 

FOR FURTHER INFORMATION CONTACT: 

Mr. Hubert Watters, Project Officer, 

Response Standards and Criteria 

Branch, Emergency Response Division 

(WH-548B), U.S. Environmental 

Protection Agency, 401M Street SW., 

Washington. DC 20460, (202) 382-2463; 

or the 

RCRA/Superfund Hotline, 1-800/424-

9356: in Washington, DC, 1-202/382-

3000. 

The toll-free telephone number of the 

National Response Center is 1-800/424-

8802; in the Washington, DC 

metropolitan area, the number is 1-202/ 

428-2675. 

SUPPLEMENTARY INFORMATION: The 

contents of today's preamble are listed 

in the following outline: 

I. Introduction and General Comments 

A. Background 

B. Relationship to Reporting Under Title III 

n. Elements of the Exemption 

m. Notification for Certain Types of Releases 

A. In General 

B. PCB Waste Disposal 

IV. Dischareges to POTWs 

V. Regulatory Analyses. 

A. Executive Order No. 12291 

B. Regulatory Flexibility Act 

C Paperwork Reduction Act 

I. Introduction and General Comments 

A. Background 

The Comprehensive Environmental 

Response, Compensation, and Liability 

Act of 1980 (Pub. L 98-510), 42 U.S.C. 

9601 et seq. (CERCLA or the Act), 

enacted on December 11,1980, and 

amended by the Superfund Amendments 

and Reauthorization Act of 1986 (SARA) 

(Pub. L 99-499), establishes broad 

Federal authority to respond to releases 

or threats of releases of hazardous 

substances from vessels and facilities. 

Section 101(14) of CERCLA defines the 

term "hazardous substances" chiefly by 

reference to other environmental 

statutes with authority further granted 

to the U.S. Environmental Protection 

Agency (EPA) to designate additional 

hazardous substances under CERCLA 

section 102(a). The CERCLA list 

currently contains 721 hazardous 

substances. 

Section 103(a) of the Act requires 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, the 

person shall notify the National 

Response Center immediately. Section ' 

102(b) of CERCLA establishes RQs for 

releases of hazardous substances at one 

pound, except for those substances 

whose RQs were established at a 

different level pursuant to section 

311(b)(4) of the Clean Water Act (CWA). 

Section 102(a) of CERCLA authorizes 

the EPA Administrator to adjust all of 

these RQs by regulation (see 40 CFR 

302.4). 

Section 109 of CERCLA and section 

325 of SARA Title III authorize EPA to 

assess civil penalties for failure to report 

releases of hazardous substances that 

equal or exceed their RQs. Section 103 

of CERCLA, as amended, authorizes 

EPA to seek criminal penalties for 

submitting false or misleading 

information in a notification made 

pursuant to CERCLA section 103, and 

increases the maximum penalties and 

years of imprisonment for violation of 

the CERCLA section 103 reporting 

requirement 

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 the following general types of 

releases: 

• Discharges covered by a National 

Pollutant Discharge Elimination System 

(NPDES) permit, permit application, or 

permit administrative record; 

• 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 
P.3 

Federal Register / Vol. 53, No. 138 / Tuesday, July 19, 1988 / "Proposed Rule9 27289 

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) to adjust certain RQB, 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 a final rule 

because of the amount of time that has 

passed since the original proposal. 

Today's proposed regulation would add 

a definition of "federally permitted 

release" to 40 CFR 302.3, Definitions.1 

EPA received many comments on 

various aspects of the federally 

permitted release exemption, most of 

which urged a broader interpretation of 

one or more of the exemption categories. 

General comments on the scope of the 

exemption are discussed below, 

followed by discussion of comments on 

specific types of federally permitted 

releases. 

Several commenters discussed the 

potential duplication between CERCLA 

reporting requirements and reporting 

requirements under existing permit 

programs for releases exceeding levels 

set by the terms of the permit These 

commenters suggested that because 

permit programs already may require 

notification of a regulatory authority in 

the event of a release exceeding permit 

levels, such releases should be exempt 

1

 Further, today's proposal revises the definition 

of "release" to reflect SARA amendments to 

CERCLA section 101(221. ' " 

from notification when permitted revels 

are exceeded by an RQ or more. 

CERCLA section 101(10), however, 

generally limits the federally permitted 

release exemption to those releases "in 

compliance with" permitted or 

regulatory requirements. A 

straightforward interpretation of the 

statute indicates that if a release 

exceeds permitted levels, it is not "in 

compliance with" the permit and cannot 

be "federally permitted." Therefore, if 

the amount of die release exceeding the 

permitted level, i.e., the portion of the 

release that is not federally permitted, is 

equal to or exceeds the RQ. the release 

must be reported immediately to the 

National Response Center. This 

approach also avoids the numerous and 

unnecessary reports that could be 

generated by the reporting of small 

permit excursions that are better 

addressed by the permitting authority. 

EPA believes that its interpretation is 

required by the plain language of the 

statute and is essential to ensure 

adequate protection of public health and 

the environment The Agency believes 

that CERCLA reporting and reporting 

under permit programs is not duplicative 

because 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 might be 

inconsistent and incomplete. Permit 

programs also differ in their reporting 

mechanisms and do not always require 

immediate notification. In some cases, 

releases in excess of permitted levels 

need only be reported at specific 

intervals (e.g.. monthly). Moreover, 

releases in excess of permit levels are 

reported to different Federal and State 

authorities, depending upon the permit. 

CERCLA requires immediate 

notification to a central office, the 

National Response Center, as soon as 

the person in charge has knowledge of a 

release equal to or exceeding an RQ, so 

that timely response may be initiated if 

the appropriate government authority • 

determines that the release may present 

substantial danger to public health or 

the environment. 

Moreover, EPA is not convinced that 

requiring persons in charge of a vessel 

or facility to make additional telephone 

calls (to the National Response Center, 

the local community emergency 

coordinator, and the State emergency 

response commission) to a toll-free or 

local number constitutes an undue 

burden on the regulated community. The 

Agency seeks comments on its » . 

interpretation of the burdens and the 

benefits of requiring reporting under 

CERCLA and Federal or State permit 

programs. 

Several commenters recommended 

that releases be considered federally 

permitted releases (and therefore < 

exempt from CERCLA notification and 

liability provisions) if they are exempt 

from regulation by the statutes listed in 

CERCLA section 101(10). EPA believes 

that exempting such releases would be 

contrary to the purpose of the 

notification requirements, which is to 

protect human health and the 

environment by requiring that 

responsible authorities be notified of 

releases that may require a timely 

response. 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 for a specific ' 

release. 

Examples illustrate the disparate 

reasons for exemptions. For instance, 

owners or operators of certain solid 

waste disposal facilities that handle 

hazardous waste only from generators 

of less than 100 kg. per month of 

nonacutely hazardous waste (See 40 

CFR 261.5) are exempt from the 

requirement to obtain a hazardous 

waste management facility permit under 

section 3005 of RCRA. The exemption is 

based on a balancing of the 

administrative burden of including such 

wastes in the Subtitle C system against 

the threat the Agency determined would. 

be posed by disposing of the wastes in 

unpermitted facilities (45 FR 33068; 

33102-33105 (May 19,1980)). Certain 

types of hazardous waste recycling 

activities—for example, the act of O' 

reclamation of a hazardous waste or. 

burning a hazardous waste in a boiler or 

industrial furnace to recover energy— 

are exempt from regulation while EPA 

determines appropriate regulatory 

regimes for these activities. (See 40 CFR 

261.6 and 40 CFR Part 286). Under the 

CWA, electroplating facilities that 

produce 1000 gallons of effluent per day 

are exempted from effluent standards , 

because compliance is economically 

infeasible for these small firms (39 FR 

11510. March 28,1974). In each instance, 

the release may require response action, 

and the fact that the release is exempted 

from the statutory requirements is not . 

relevant to this determination. The -

Agency haB determined, therefore, that 

releases exempted from regulation by 

the statutes listed in section 101(ir) will 
P.4 

27270 Federal Register / Vol. 53, No. 138 / Tuesday, July 19, 1988 / Proposed Rules 

not be considered federally permitted 

releases. 

Although certain releases may not 

qualify as federally permitted, they may 

not pose a sufficient hazard to.warrant 

reporting to the National Response 

Center. The Administrator will consider 

establishing an administrative 

exemption from CERCLA notification 

requirements if it appears that certain 

releases pose no hazard or pose a 

hazard only rarely and under 

circumstances that would not likely 

result in any action being taken to 

respond to the hazard. However, no 

such exemptions are proposed under 

this regulation. 

One commenter requested that a 

release still be considered a federally 

permitted release when there is only a 

"technical" violation of permit 

conditions (i.e., where the violation 

relates to operating, monitoring, or 

reporting procedures and does not affect 

the character or quantity of the release). 

EPA agrees that notification of the 

National Response Center would be . 

unnecessary in such a case and should 

be addressed by the permit programs, 

where appropriate, 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 hazardous 

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. Some Federal permit 

programs do not include quantitative 

limits on the amounts of specific 

hazardous substances that can be 

released. Accordingly, no "permitted • 

level" exists against which the released 

quantity can be compared to determine 

whether CERCLA notification is 

required (i.e., whether the permitted 

level has been exceeded by an RQ or 

more). In such cases, CERCLA 

notification will be required when the 

characteristics of the release are not in 

compliance with the permit (e.g., the 

allowable concentration of a particular 

constituent has been exceeded) and an 

RQ or more of a hazardous substance 

has been released. 

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 release. 

EPA cannot support this position. 

Federally permitted releases are 

specifically listed in section 101(10). 

This detailed list clearly indicated that 

Congress did not intend releases other 

than those listed in section 101(10) to be 

considered federally permitted and 

thereby exempt from CERCLA reporting 

and liability requirements. 

B. Relationship to Reporting Under Title 

III 

Title III of SARA (sections 301-329) 

addresses emergency planning and 

community right-to-know and provides, 

among other things, emergency and 

annual notification requirements in 

addition to those included in section 103 

of CERCLA. EPA has provided (see 52 

FR 13377, April 22,1987; 52 FR 21152, 

June 4,1987) and will continue to 

provide regulations and guidance on the 

Title III requirements as necessary and 

appropriate. 

With respect to emergency 

notification requirements, section 304 of 

SARA provides release reporting 

requirements that parallel the 

requirements of section 103(a) but are 

intended to make release information 

immediately available to State and local 

emergency officials as well as Federal 

response officials notified under 

CERCLA section 103. In addition, 

section 304(a) requires reporting of (1) 

releases for which notification is 

required under section 103(a) of 

CERCLA, and (2) releases of "extremely 

hazardous substances" that are not 

hazardous substances under CERCLA 

but that "occur in a manner which 

would require notification under section 

103(a)" of CERCLA. Federally permitted 

releases, as defined by CERCLA section 

101(10), are not required to be reported 

under section 304 of SARA (see 52 FR 

13383). To clarify the type of releases 

that are defined as federally permitted 

releases, and thereby exempt from 

SARA section 304 reporting, today's rule 

proposes to revise the applicability 

section of the regulation implementing 

section 304 (40 CFR 355.40(a)) to add the 

definition of "federally permitted 

releases" provided in this rule. Thus, the 

interpretation of federally permitted 

release proposed in today's rule will 

define clearly the scope of the releases 

reportable under SARA section 304. 

With, respect to annual notification of 

toxic chemical releases required under 

SARA section 313, however, federally 

permitted releases are not exempt 

II. Elements of the Exemption 

Each element of the federally 

permitted release exemption is 

discussed below. Relevant comments 

received on the may 25,1983, NPRM 

pertaining to each element also are 

discussed. 

Releases from Point Sources with 

National Pollutant Discharge 

Elimination System (NPDES) Permits. 

Introduction. Section 101(10) identifies 

three types of releases from point 

sources with NPDES permits as 

federally permitted releases: 

(A) discharges in compliance wrth a permit 

under section 402 of the Federal Water 

Pollution Control Act, (B) discharges resulting 

from circumstances identified and reviewed 

and made part of the public record with 

respect to a permit issued or modified under 

section 402 of the Federal Water Pollution 

Control Act and subject to a condition of 

such permit (C) continuous or anticipated 

intermittent discharges from a point source, 

identified in a permit or permit application 

under section 402 of the Federal Water 

. Pollution Control Act which are caused by 

events occurring within the scope of relevant 

operating or treatment systems * * *. 

This language is identical to that used 

in section 311(a)(2) of the CWA to 

exclude these releases from the term 

"discharge" with respect to EPA's oil 

and hazardous substances spill response 

and prevention program. Furthermore, 

Congress intended, in enacting CERCLA 

section 101(10) (A), (B), and (C), that 

EPA's interpretation of the provisions 

under the CWA be continued under 

CERCLA. (See S. Rep. No. 848,96th 

Cong., 2nd Sess. 47 (1980).) Reflective of 

Congressional intent, the Agency 

proposes today that the interpretation 

provided in the regulatory language and 

the preambles to the rules implementing 

the CWA section 311(a)(2) exclusions be 

applied to the same exemptions under 

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

(Q. 

The legislative history of the CWA 

explains that the purpose of the section 

311 exemptions was to exclude from the 

spill response provisions of section 311 

three types of discharges subject to 

regulation under other CWA provisions; 

specifically, section 402 NPDES permits 

and section 309 enforcement provisions. 

Senator Stafford explained that: 

* * * we are attempting to draw a line 

between the provisions of the (CWA) under 

sections 301.304.402 regulating chronic 

discharges and 311 dealing with spills. At the 

extremes, it is relatively easy to focus on the 

difference but it can become complicated. 

The concept can be summarized by stating 

that those discharges of pollutants that a 

reasonable man would conclude are 

associated with permits, permit conditions, 

operation of treatment technology and permit 

violations would result In 402/309 sanctions; 

those discharges of pollutants that a 

reasonable man would conclude are episodic 

or classical spills not intended or capable of 

being processed through the permitted 

treatment system and outfall would result in 
P.5 

Federal Register-/ Vol. 53. No. 138 / Tuesday, July 19, 1988 / Proposed Rules 27271 

the application of section 311. (124 

Congressional Record 37683 (1978).) 

In 1979, the Agency promulgated 40 

CFR Part 117, which contains CWA 

reporting requirements for discharges of 

hazardous substances (44 FR 50776, 

August 29,1979). Section 117.12 provided 

a regulatory interpretation of the three 

exclusions to the defintion of 

"discharge" in 40 CFR Part 116 and 

CWA section 311(a)(2), and the 

preamble to the rule provided a detailed 

explanation of the three types of 

excluded discharges. In 1987, EPA 

amended the definition of "discharge" in 

40 CFR Part 110, the discharge of oil 

regulation, to codify the same three 

CWA exclusions (52 FR 10712, April 2, 

1987). The preamble to the oil discharge 

rule adopted the description of the three 

exclusions from the 1979 preamble to 40 

CFR Part 117. 

In today's rule, the Agency proposes 

to apply the existing interpretation of 

the three types of discharges that are 

excluded from coverage tinder CWA 

section 311 to the first three types of 

discharges under CERCLA section 

101(10). Thus, this interpretation will 

apply to the following regulatory 

provisions: 40 CFR 110.1,116.3,117.12, 

300.5, 302.3, and 335.40. The Agency, 

however, also is proposing to make two 

clarifying amendments to 40 CFR 117.12, 

as explained below, that also will be 

aplicable to the corresponding 

exemptions under 40 CFR Parts 110,116; 

300,302, and 355. 

In the paragraphs that follow, tile 

three types of NPDES discharges that 

correspond to the federally permitted 

releases in CERCLA sections 101(10) 

(A), (B), and (C) are described. For 

simplicity, these discharges will be 

referred to as Type A, B, and C 

respectively. 

Type A Discharges. Type A 

discharges are those that are in 

compliance with an NPDES permit limit 

that specifically addreses the discharge 

in question. To qualify as a Type A 

discharge, the permit must either 

address the discharge directly through 

specific effluent limitations or through 

the use of indicator pollutants. In the 

case of the latter, the administrative 

record prepared during permit 

development must identify specifically 

the discharge of the pollutant as one of 

those pollutants the indicator is 

intended to represent 

Type B Discharges. Type B discharges 

are foreseeable (i.e., identified in the 

NPDES permit's development record) 

and flow into a facility's effluent 

treatment system designed to treat the 

discharge. This second type of discharge 

is limited to on-site spills to the 

permitted treatment system that were 

identified and considered in the 

issuance of the permit but are not 

subject to any specific effluent 

limitations. Discharges are included only 

where (1) the source, nature, and 

amount of a potential discharge were 

identified and made part of the public 

record and (2) the permit contained a 

condition requiring that the treatment 

system be capable of eliminating or 

abating the potential discharge. 

Therefore, if an on-site spill was 

processed through a treatment system 

capable of eliminating or abating the 

spill, and the spill is subject to a permit 

condition, a discharge resulting from the 

on-site spill would be subject to CWA 

sections 402 and 309 and would be a 

federally permitted release. If an on-site 

spill is not passed through a treatment 

system or is not otherwise treated in any 

way, the discharge resulting from the 

on-site spill is subject to CWA section 

311 and is not a federally permitted 

release. Also, discharges that result from 

on-site spills that are passed through 

treatment systems (1) that have not been 

demonstrated as capable of eliminating 

or abating the discharge or (2) for which 

no permit condition exists are subject to 

CWA section 311 and are not federally 

permitted releases under CERCLA. 

A "permit condition" would include 

the existence of a treatment system or 

release prevention plans and other best 

management practices designed to 

address the discharge. Best management. 

- practices are operating methods or 

procedures to prevent or minimize the 

potential for the discharge of toxic or 

hazardous substances from processes 

ancillary to the industrial manufacturing 

or treatment process. For example, a 

discharger has a drainage system that 

will route spilled material from a broken 

hose connection to a holding tank or 

basin for subsequent treatment or 

discharge at a specified rate. To be 

eligible as a Type B discharge, the 

discharger must identify specifically 

such a system in the permit application. 

The permit condition discussed in the 

application must be sufficient to treat 

the maximum potential spill from the 

identified source. Discharges that result 

from an on-site spill larger and more 

concentrated than the spill 

contemplated in the public record, and 

for which a condition was provided in 

the permit will be subject to CWA 

section 311 and CERCLA notification 

and liability provisions (i.e., the 

discharge will not be a federally, 

permitted release). 

Today's rule proposes to amend 40 

CFR 117.12(c) by deleting the phrase 

"whether or not the discharge is in 

compliance with the permit." for Type B 

discharges, to avoid confusion caused 

by the phrase. The phrase was originally 

included in the rule because Type B 

discharges are discharges that result 

from circumstances identified and 

considered in the issuance of a permit 

but that are not subject to any specific 

effluent limitations. The Agency is 

concerned that the phrase may be 

interpreted incorrectly to mean that 

Type B could refer to discharges in 

which the permittee did not satisfy the 

condition placed in the permit. Because 

the Agency believes that the phrase 

causes confusion, the Agency proposes 

to delete the phrase from the regulation. 

The Agency solicits comments on this 

proposed revision to 40 CFR 117.12(c). 

Type C Discharges. Type C discharge* 

are from a point source and are (1) 

continuous or anticipated intermittent 

discharges, (2) identified in a permit or 

permit application, and (3) caused by 

events occurring within the scope of the 

relevant operating and treatment 

systems. Included within the scope of 

this provision are chronic processrelated discharges resulting from 

periodic upsets in the manufacturing 

and treatment systems, for example, the 

discharge created by a system 

backwash. Discharges caused by spills 

or episodic events that release 

hazardous substances to the 

manufacturing or treatment systems are 

not Type C discharges. The language of 

40 CFR 117.12(d) provides further 

examples of discharges that fit within 

the category: (1) Provided that an on-site 

spill is not the cause, contamination of 

noncontact cooling water or storm 

water, (2) an upset or failure of a 

treatment system or of a process 

producing a continuous or anticipated 

intermittent discharge: or (3) where the 

discharge originates in the 

manufacturing or treatment systems, a 

continuous or anticipated discharge of 

process waste water. 

Amendment to 40 CFR 117.12. With 

respect to Type C discharges, the 

Agency also is proposing in today's rule 

to amend 40 CFR 117.12(d)(2)(iii) by 

deleting the term "operator error" from 

the description of "an upset or failure of 

a treatment system." * The reasons for 

'Section 117.12(d)(2)(M) presently states: 

(tli) An upset or faHura of a treatment system or 

of a process producing a continuous or anticipated 

intermittent discharge where the upset or failure 

resulta from a control problem, an operator error, a 

system failure or malfunction, an equipment or 

system startup or shutdown, an equipment wash, or 

'a production schedule change, provided that such 

upset or failure Is not caused by an on-site spill of a 

hazardous substance. 
27272 Federal Register / Vol. 53, No. 138 / Tuesday, July 19, 1988 / Proposed Rule9 

P.6 

the proposal to eliminate the term 

"operator error" are: (1) The use of the 

term "operator error" in describing an 

upset is inconsistent with the NPDES 

regulations (40 CFR 122.41) that provide 

that a discharge caused by an operator 

error is not an upset; and (2) the Agency 

believes that discharges caused by 

operator error are not likely to be 

"continuous or anticipated intermittent 

discharges," as provided by the 

statutory language. The Agency expects 

discharges caused by operator error to 

be episodic and unpredictable, as 

compared to discharges caused by 

system startups and shutdowns. The 

proposed deletion of the term "operator 

error" is intended to enhance the clarity 

and consistency of the regulatory 

language and is not meant to signal a 

change in policy. It is possible that 

under some circumstances an operator 

error may cause a failure of a treatment -

system or process, and produce a 

continuous or anticipated intermittent 

discharge. Such a discharge may meet 

the requirements for a federally 

permitted release. The term "upset" as 

used in 40 CFR Part 117, however, 

generally will be interpreted to be 

consistent with the term "upset" in 40 

CFR Part 122, i.e., it does not include 

incidents causedby operational error. 

The Agency requests comments on its 

proposal to delete operator error from 40 

CFR 117.12(d)(2)(iii). 

Conclusion. Under both CWA section 

311 and CERCLA, any discharge or 

release of a hazardous substance that is 

not federally permitted, as described 

above, must be reported immediately to 

the National Response Center if it 

exceeds permit limits by an RQ or more; 

if the hazardous substance discharge or 

release is not subject to a numerical 

permit limit any discharge or release 

that triggers a permit violation and 

equals or exceeds an RQ must be 

reported immediately. Similarly, under 

40 CFR Part 110. any oil discharge that 

exceeds permitted levels and causes an 

oil sheen must be reported immediately. 

Discharges excluded from CWA 

section 311 coverage and defined as 

federally permitted releases under 

CERCLA sections 101(10) (A), (B), and 

(C) are subject to the CWA section 309 

enforcement provision that provides 

EPA with the authority to issue 

compliance orders, bring civil actions, 

and impose criminal and civil penalties. 

In addition, under CWA section 

311(b)(6)(D), if the Federal government 

incurs any costs of removal of 

discharges excluded by section 

311(a)(2)(C), the Federal government can 

bring a civil action under die authority 

provided by CWA section 309(b) to 

recover such removal costs. 

Furthermore, under CERCLA section 

107(j), the response costs incurred by the 

Federal government in connection with 

the federally permitted releases defined 

by section 101(10) (B) and (C) can be 

recovered through a civil action brought 

under the authority of CWA section 

309(b). 

Finally, all three exemptions raise the 

issue of timeliness of notification. The 

reporting requirements for releases 

exempted from CERCLA reporting and 

liability under section 101(10) (A), (B), 

and (C) and excluded from CWA section 

311(a)(2) are subject to the 24-hour 

notification requirements under CWA 

section 402. The Agency acknowledges 

that Congress recognized that the 24-

hour reporting requirement may "create 

gaps in action necessary to protect the 

public or the environment." (See S. Rep. 

No. 848.96th Cong., 2nd Sess. 47 (1980).) 

The legislative history of section 101(10) 

suggests that the Agency could resolve 

this issue by amending the CWA section 

402 reporting regulation to require that 

those releases excluded from CWA 

section 311 coverage and exempt from 

CERCLA reporting requirements be 

subject to an immediate notification 

requirement under the CWA section 4C2 

NPDES regulations. (Ibid.) The Agency 

has not yet amended the NPDES 

regulations to require immediate 

' notification of those releases exempt 

from section 311 and CERCLA. Before 

the Agency proposes to amend the CWA 

sectin 402 NPDES regulations (40 CFR 

Part 122) to revise the 24-hour 

notification requirement to an 

immediate notification requirement for 

the exempted releases, the Agency 

solicits comments on the "reporting 

gap," particularly examples of situations 

where the 24-hour notice was not 

sufficient to protect human health and 

the environment 

Releases Subject to CWA Section 404 

Permits. Discharges that comply with a 

legally enforceable permit for dredge or 

fill materials under section 404 of the 

CWA also are federally permitted 

releases exempted from the notification 

requirements of CERCLA sections 103(a) 

and 103(b). Before issuing these permits, 

the government reviews the substances 

to be discharged. Permits allowing the 

discharge of hazardous substances are 

issued only if no significant degradation 

of the aquatic environment will result 

This exemption applies to discharges in 

compliance with the terms and 

conditions of either an individual or a 

general CWA section 404 permit 

In regulations implementing section 

311 of the CWA for hazardous 

substances, 40 CFR 117.12 (but not the 

regulations for oil in 40 CFR Part 110), 

EPA exempted from the notification 

requirement not only those releases that 

were in compliance with section 404 

permits, but also those releases that 

were exempt from permit requirements 

under section 404 of the CWA (sections 

404(f) and 404(r)). These latter releases 

are not "federally permitted releases" 

for purposes of CERCLA because 

section 101(10)(D) is limited to releases 

in compliance with a legally enforceable 

permit under section 404 of the CWA. 

The Agency interprets the CERCLA 

notification requirements to exempt only 

those releases whose environmental and 

health effects have been evaluated and 

determined to be allowable under the 

appropriate permit program. 

Releases from Facilities with Final 

RCRA Permits. Releases in compliance 

with a legally enforceable RCRA 

treatment, storage, or disposal final 

permit are, pursuant to CERCLA section 

101(10)(E), federally permitted releases 

when the hazardous substances 

released are specified in the permit and . 

subject under the permit to a specific 

limitation, standard, or control 

procedure (see 40 CFR Parts 264 and 

270). Identifying releases on the record 

during the permit process is insufficient 

to qualify them for the section 101(10)(E) 

exemption because, in order to be 

exempt the substances must be 

specified in the permit and subject to 

some permit condition or control. 

Four commenters requested tiiat 

facilities with interim status pursuant to 

section 3005(e) of RCRA and 40 CFR 

Part 265 be included in the "federally 

permitted release" definition. Some of 

the commenters indicated that it may be 

some time before these facilities are 

issued final permits. The legislative 

history specifically rejects application of 

this exclusion to releases from facilities 

with interim status (S. Rep. No. 848,96th 

Cong.. 2nd Sess. 48 (1980)). 

Releases Pursuant to Marina 

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 1202 (EPA 

ocean dumping permits) or section 103 

(Corps of Engineers permits for ocean 

dumping of dredged materials) of the 

Marine Protection. Research, and 

Sanctuaries Act Pursuant to EPA 

regulations, applicants for ocean 

dumping permits must identify the 

physical and chemical properties of the 

materials to be discharged, and die 

permit must identify the materials that 

may be discharged (see 40 CFR Parts 221 

and 227). Similar procedures and criteria 
P.7 

Federal Register / Vol. 53, No. 138 / Tuesday. July 19, 1988 / Proposed Rules 27273 

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 

discharged lawfully. Dumping of 

hazardous substances not specifically, 

allowed in these permits is subject to 

the notification requirements of 

CERCLA section 103(a) because 

emergency response officials should be 

made aware of releases not evaluated 

previously by a permit program for 

health and environmental effects. 

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). 

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 that 

has been approved, or submitted and 

not disapproved by EPA. or permitted 

under an EPA-administered program, is 

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 52,6a 61, 

and 62). However, as stated in the 

preamble to the May 25,1983 NPRM. for 

this exemption to apply, any such CAA 

controls must be "specifically designed 

to limit or eliminate emissions of a 

designated hazardous pollutant or a 

criteria pollutant" (See S. Rep. No. 848, 

96th Cong., 2nd Sess. 49 (1980)). The 

CAA exemption, therefore, cannot be 

read broadly to cover any and all types 

of air emissions. Moreover, as today's 

proposed rule makes clear, for the 

exemption to apply, the emission must 

be in compliance with the applicable 

permit or control regulation. 

Several commenters suggested that 

the clear and unequivocal nature of the 

statutory language made elaboration on 

the CAA exemption unnecessary. 

Generally, these commenters took the 

view that the CAA exemption covers 

' nearly all air emissions because such 

emissions are in one way or another 

controlled by die CAA—eitiier directly 

because they contain substances 

specifically regulated by the CAA, or 

indirectly, for example, through 

emission limitations established as part 

of State Implementation Plans (SIPs) 

approved under section 110 of die 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 the broadest 

interpretations, under which virtually all 

air emissions including dangerous 

episodic releases would be exempt from 

CERCLA reporting requirements, could 

have been intended by Congress under 

section 101(10). Moreover, the 

exemption for "federally permitted 

releases" under CERCLA section 101(10) 

also applies to reporting of air releases 

to State and local governments under 

Title III of SARA. Title ID, which is the 

Emergency Planning and Community 

Right-to-Know Act of 1986, was enacted 

in large part as a response to dangers 

posed by chemical air releases to 

surrounding communities, such as the 

catastrophic release of methyl 

isocyanate in Bhopal, India. Because 

Title IH was intended to address 

particularly the dangers of air releases, 

interpreting the exclusion for federally 

permitted releases so that accidental air 

releases would not be reported locally 

would be directly contrary to the 

legislative purpose. Similarly, the 

purpose of notification requirements 

under section .103 of CERCLA is to 

ensure that the government is informed 

of any potentially dangerous releases of 

hazardous substances to the 

environment for which timely response 

may be necessary. Establishing a very 

broad interpretation of CAA controls, as 

requested by the commenters, could 

eliminate virtually any CERCLA 

reporting of air emissions and, thus, the 

potential for early Federal responses; 

such an approach would eviscerate not 

only the Congressional intent but also 

the major purpose of the section 103 

notification requirement 

In addition, some commenters urged 

EPA to interpret the federally permitted 

release exemption to include any air 

emission from a permitted source. Some 

of die 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 

may be one of many releases from a 

permitted source that is being checked 

for compliance with a variety of laws 

and regulations. The inclusion of a 

pollutant is a SIP review provision is not 

equivalent to subjecting the pollutant to 

CAA requirements or controls "designed 

specifically to limit or eliminate" the 

pollutant (See S. Rep. No. 848,96th 

Cong., 2nd Sess. 49 (1980)). A reviewed 

release, therefore, is not necessarily a 

federally permitted release. 

Several commenters stated that the 

air release exemption should apply 

broadly to 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 generally agrees with 

this position, but again is concerned that 

an overbroad interpretation of the air 

release exemption could result in 

nonreporting of dangerous chemical 

releases. A large release of a substance 

from a pressure release valve over a 

short period of time could be within a 

VOC limit established for a source, yet 

could pose a threat to nearby residents. 

Although the categorical limits 

indirectly restrict each constituent, 

those limits were established based on 

routine emissions over a specific 

averaging time, and were not predicated 

on an upset or excursion from normal 

operations. The Agency does not 

believe, therefore, that such an upset or 

excursion should be considered 

"permitted" within the meaning of 

section 101(10)(H) of CERCLA. 

EPA is soliciting public comment 

today on three approaches to 

distinguishing emissions permitted 

under the CAA from releases that could 

create potential hazards to surrounding 

areas and for which timely notification 

under CERCLA and Title III Is 

necessary. Under the first approach, 

EPA would interpret the air release 

exemption in a manner similar to die 

exemption for releases regulated under, 

the CWA. Thus, air releases would be 

permitted to the extent that the 

constituent hazardous substances have 

been identified, reviewed, and made 

part of the public record during the 

permit issuance, State implementation 

plan, or regulation development process 

for the pollutant that includes the 

hazardous substance. The exemption 

would not extend to releases of 

constituent hazardous substances of a 

permitted or regulated pollutant 

category that are not identified 

expressly on the record with respect to 
P.8 

27274 Federal Register / Vol. 53. No. 138 / Tuesday. July 19. 1988 / Proposed Rules 

the applicable permit or control 

program. Once the constituent 

hazardous substance had been 

identified and reviewed appropriately, 

the limitation on the category of 

emissions of hazardous substances 

would provide the "permit or control 

regulation" needed for application of the 

section 101(10)(H) exemption. A specific 

issue on which the Agency solicits 

comments is the inclusion of negative 

determinations under die CAA section 

112 program in die exemption. 

The second approach would interpret 

broadly the regulatory programs 

governing pollutants for which a 

National Ambient Air Quality Standard 

(NAAQS) has been established under 

CAA section 109. These programs are 

developed under CAA section 111 New 

Source Performance Standards (NSPS) 

or CAA section 110 State 

Implementation Plans (SD?s). Under tins 

approach, EPA would distinguish 

between emissions of hazardous 

substances that are VOCs and regulated 

as precursors of ozone, and constituents 

of the other NAAQS pollutants. For 

example, emissions of constituents of 

particulate matter would be considered 

"subject to a permit or control 

regulation" and therefore, exempt from 

notification requirements. Emissions of 

individual VOCs, however, would not be 

considered subject to permit or control 

regulations solely because they are 

indirectly controlled by regulations 

limiting total VOC emissions. These 

emissions of individual VOCs in 

amounts equal to or in excess of an RQ, 

consequently, would be subject to 

notification requirements. 

This approach is based on the 

recognition that for five of the present 

NAAQS (sulfur dioxide, particulate 

matter, nitrogen oxides, lead and 

carbon monoxide) the standards in each 

case are based on die evidence of health 

effects of those emissions. In contrast. 

emissions of VOCs are regulated based 

on their reactivity and consequent 

contribution to the creation of ambient 

ozone levels for which NAAQS have 

been set In setting the ozone NAAQS or 

establishing emission limitations for 

VOCs, no consideration was given to 

any direct health effects of ambient 

concentrations of total or any 

constituent VOC. As a result 

interpreting VOC emission limitations to 

subsume consideration of the possible 

health effects of constituents appears to 

be inappropriate. Using this 

interpretation, a substance would be 

considered federally permitted if it is a 

constituent of, and, therefore, limited by 

regulations or standards for, any of the 

five pollutants enumerated above, but 

not if it is limited by standards for 

VOCs. 

Reportable quantities for the purpose 

of release notification requirements are 

established to ensure appropriate 

response to episodic releases of 

hazardous substances that have 

potential adverse health and 

environmental effects. A large release of 

an individual VOC in a quantity equal to 

or in excess of an RQ may be within 

total VOC emission limits and may 

make a negligible contribution to ozone 

formation, which is affected by 

photochemical conditions, meteorology, 

and the contributions of other VOC 

sources. Such a release may, 

nonetheless, potentially endanger 

human health because of the toxicity of 

the individual substance. 

For example, under CAA section 111, 

EPA established controls on the rubber 

tire manufacturing industry limiting 

VOC emissions for a medium-sized 

plant to approximately 400 tons per 

year, or about 1.1 tons per day. 

Predominant VOCs emitted in the 

manufacturing process are white 

gasoline and petroleum naptha. Toluene, 

xylene, ketones, and esters are also 

used throughout the industry. (48 FR 

2676, September 15,1983.) A release on 

one day of an RQ or more of one of 

these VOC constituents, such as 1000 

pounds of toluene, although within the 

total VOC release limit of approximately 

1 ton per day may pose a threat to 

human health or the environment 

because the total VOC limitation is 

based on controlling the formation of 

ozone, and not on the toxicity of toluene 

or another of the VOC emission 

constituents. The Agency would take the 

position that interpreting NSPS or SB? 

VOC emission limitations to subsume 

consideration of the possible health 

effects of such VOC constituents, and 

thereby exempt them from notification 

requirements, is inappropriate. Thus, 

EPA would require notification of 

releases of VOC constituents in amounts 

equivalent to or greater than an RQ 

under die second approach. 

As a third option, EPA could interpret 

the CAA federally permitted release 

exclusion to apply only to releases that 

are subject to a CAA permit or control 

regulation and that are either the 

"routine" emissions for which the permit 

or control regulation was designed or in 

compliance with a specific standard for 

release of that substance specified in the 

permit or regulation. Unpermitted, 

nonroutine releases would include 

upsets from such devices as pressure 

release valves, storage tank reactor 

vessels, or sudden releases from valve 

and pipe ruptures, equipment failure, 

and emergency startups and shutdowns. 

EPA requests comments on these 

alternatives for defining the scope of the 

air release exemption. Specifically, EPA 

requests comments distinguishing 

releases of ozone precursors (VOC) 

constituents from releases of 

constituents of other categorical 

pollutants controlled by NAAQS. EPA 

also is soliciting comment on the 

"routine" vs. "nonroutine" distinction 

and the need to define "routine" in 

terms fo specific emission points or 

circumstances, and solicits comments on 

what emission points should be 

included In addition, EPA is concerned 

that the first approach may lead to 

overreporting of routine releases subject 

to adequate control under existing 

regulatory or permit limits that could 

divert resources from releases requiring 

immediate response. EPA solicits 

information on the number of facilities 

and types of releases that would require 

reporting under these approaches, and 

the types of releases that would be 

excluded under either approach, 

particularly with respect to any 

potentially dangerous releases that may 

be excluded. 

In addition, the National Emission 

Standards for Hazardous Air Pollutants 

(NESHAPs) limits for radionuclides are 

health-based annual limits, whereas 

radionuclide RQs are reporting triggers 

based on 24-hour releases. The Agency 

will require a report if an RQ above any 

annual NESHAP limit is released in a 

24-hour period. The Agency requests 

comments on the number of facilities 

and types of releases that may require 

reporting.9 

Injection of Materials Related to 

Development of Crude Oil or Natural 

Gas Supplies. The injection of materials 

related to the production of crude oiL 

natural gas, or water is considered a 

federally permitted release if the 

injection material is authorized 

specifically under applicable State law. 

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 die section 101(10)(I) 

provision to exempt only those activities 

or materials that are authorized 

' In support of the final nil* adfaating the RQ for 

radionuclides (lo be pabUahed la 1988). the Agency 

has prepared eo Economic impact Analysis that 

estimates the coat to the government and regulated 

community caused by the revised radionuclide RQ 

reporting requirements. This document is available 

for public inspecnoa in Room LG-100. US. 

Environmental Protection Agency, 401 M Street. 

SW.. Washington. OC 20400 (Docket Number 

102RQ-RN). 
P.9 

Federal Register / Vol 53, No. 138 / Tuesday, July 19, 1988 / Proposed Rules 27275 

specifically 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 and that the National 

Response Center will be made aware 

immediately of the potential need to 

respond to releases that have not been 

evaluated previously by a permitting 

authority. 

EPA interprets the section 101(10)(I) 

exemption to apply only to (hose 

materials specifically authorized by 

State law to be 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 tile 

reinjection of fluids brought to die 

surface from such production. Some 

commenters objected to this 

interpretation and instead supported a 

broader interpretation that would 

exempt from CERCLA notification all 

materials used in gas and oil field 

operations. The National Response 

Center must be notified in any situation 

involving the use of injection fluids or 

materials that are not authorized 

specifically by State law for purposes of 

the development of crude oil or natural 

gas supplies and resulting in a release of 

a hazardous substance in an amount 

that equals or exceeds the applicable 

RQ. This will allow an immediate 

evaluation of the need for a response. 

Introduction of Pollutants into 

Publicly Owned Treatment Works. A 

release to a Publicly Owned Treatment 

Works (POTW) is subject to the 

federally permitted release exemption if 

the release is (1) in compliance with 

applicable categorical pretreatment 

standards and local limits developed in 

accordance with 40 CFR 40&5fc). and (2) 

into a POTW with an approved local 

pretreatment program or a S 403J0fe) 

State-administered local program. One 

of the commenters on the May 25,1983 

NPRM suggested that the Agency 

broaden its approach to the POTW 

exemption to provide that the discharge 

be in compliance only with general 

pretreatment requirements and not win 

site-specific requirements. The Agency 

believes that for POTW to be 

considered "federally permitted," not 

only must the hazardous substance be a 

pollutant specified in applicable 

pretreatment standards and the release 

of the pollutant be in compliance with 

the categorical pretreatment standards, 

but the release also must be in 

compliance with the local limits 

developed on the basis of the sitespecific conditions, because the 

categorical standards alone may not be 

adequate to address the impact of 

pollutants on the POTW. Therefore, 

even though a release into a POTW is in 

compliance with the categorical 

pretreatment standards, the National 

Response Center must be notified if the 

release exceeds the local limits by an 

RQ or more, because die release may 

cause interference with the POTW's 

processes or may pass through die 

POTW to the navigable waters, either of 

which may result in a situation requiring 

an emergency response. This exemption 

applies only to industrial users * 

discharging to POTWs; a POTW is 

subject to CERCLA reporting and 

liability provisions if its discharge of a 

hazardous substance violates its NPDES 

permit by an RQ or more. POTWs are 

not required to report hazardous 

substances that are traveling through 

their collection systems in quantities 

that equal or exceed RQs; however, the 

industrial user is responsible for 

reporting such releases into die 

collection system. 

Sections 307(b)(1) and (c) of the CWA 

direct EPA to establish pretreatment 

standards "to prevent die discharge of 

any pollutant through treatment works 

* * * which are publicly owned, which 

pollutant interferes with, passes 

through, or is otherwise incompatible 

with such works." These sections 

address the problems created by 

discharges of pollutants from 

nondomestic sources to municipal 

sewage treatment works that interfere 

with die POTW or pass through die 

POTW to navigable waters untreated or 

inadequately treated. Pretreatment 

standards are intended to prevent those 

problems from occurring by requiring 

nondomestic users of POTWs to pretreat 

their wastes before discharging them to 

the POTW. In 1977, Congress amended 

section 402(b)(8) of the CWA to require 

POTWs to help regulate their industrial 

users by establishing local programs to 

ensure that industrial users comply with 

pretreatment standards. 

In establishing the national 

pretreatment program to achieve these 

pretreatment goals, the Agency adopted 

a broad-based regulatory approach that 

implements the statutory prohibitions 

against pass through and interference at 

two basic levels. The first is through die 

promulgation of national categorical 

standards that apply to certain 

industrial uses within selected 

categories of industries that commonly 

discharge toxic pollutants. Categorical 

standards establish numerical. 

* "Industrial users." aa tbs term is used in this 

discussion. Ujclwdee aobtle sources diechargms 

hazardous substances to a POTW. 

technology-based discharge limits 

derived from an assessment of the types 

and amounts of pollutant discharges 

that typically interfere with or pass 

through POTWs with secondary 

treatment facilities. 

The potential for many pass through 

or interference problems depends not 

only on the nature of the discharge but 

also on local conditions (e.g., die type of 

treatment process used by the POTW, 

local water quality, POTWs chosen 

method for handling shidge), and nW 

needs to be addressed on a case-by-case 

basis. Examples of such problems 

include discharges to a POTW that may 

consist of pollutants not covered by a 

categorical standard or from 

nondomestic sources that are not in one 

of the industrial categories regulated by 

the categorical standards. Because 

categorical standards are established 

industry-wide, Uiey cannot consider 

site-specific conditions and therefore 

may not be adequate to prevent all pass 

through and interference even for the 

regulated pollutants. EPA's Genera] 

Pretreatment Regulations (40 CFR Part 

403) address these areas of concern. 

First 40 CFR 403.5(b) establishes 

specific prohibitions that apply to all 

nondomestic users and are designed to 

guard against common types of pollutant 

discharges that may result in 

interference and pass through (e.g., no 

discharge of flammable, explosive, or 

corrosive pollutants). Second, 40 CFR 

403.5(a) establishes a general 

prohibition against pass through and 

interference that serves as a backup 

standard to address localized problems 

that occur. In addition, POTWs must 

develop and enforce specific local limits 

as part of their local pretreatment 

programs to prevent pass through and 

interference. POTWs not required to 

develop pretreatment programs also 

must develop local limits if they have 

recurring pass through and interference 

(see 40 CFR 403.5(c)). 

The pretreatment standards a POTW 

user must meet to claim the federally 

permitted release exemption include 

both applicable national categorical 

standards and standards established by 

local law as described below. 

Compliance only with die general and 

specific prohibitions (40 CFR 403.5(a) 

and (b)) of die general pretreatment 

regulations is insufficient to qualify a 

release as federally permitted. 

Only local Baits applicable to die 

pollutant developed m accordance with 

40 CFR 403.5(c), and designed to 

implement the general prohibition 

egainst mterfierance and pass through 

(§ 403.5(a)), can qualify the release of 

such pollutant as a federally permitted 
P.10 

27276 Federal Register / Vol. 53, No. 138 / Tuesday, July 19, 1988 / Proposed Rules 

release. The development of local limits 

under 40 CFR 403.5(c) involves three 

basic steps. First, a POTW must 

determine which, if any, of the 

pollutants discharged by its industrial 

users have a reasonable potential to 

pass through or interfere with the 

POTW. For each of die pollutants the 

POTW concludes may be of concern, the 

POTW must then determine the 

maximum amount of die pollutant it can 

accept (maximum headworks loading) 

and still prevent the occurrence of pass 

through or interference. Finally, after 

maximum allowable headworks 

loadings are determined for each of the 

pollutants of concern, the POTW must 

implement a system of local limits 

applicable to industrial users to assure 

that these loadings will not be exceeded. 

EPA believes that only local limits 

that have been developed based upon 

procedures that evaluate the sitespecific characteristics and treatment 

capabilities of a POTW should qualify 

the release of the pollutant for the 

exemption. Such an extensive analysis 

is needed to assure that pass through 

and interference problems do not arise. 

A discharge of a pollutant by an 

industrial user in compliance with a 

local limit not designed using these 

procedures may not address the 

statutory prohibitions against pass 

through and interference or provide the 

requisite degree of environmental 

protection to qualify for the federally 

permitted release exemption. 

Thus, a release that exceeds by an RQ 

or more an applicable categorical 

pretreatment standard or a local limit 

developed in accordance with 40 CFR 

403.5(c) must be reported. Moreover, the 

absence of a categorical pretreatment 

standard or a local limit for a specific 

pollutant precludes coverage for 

releases of that pollutant under the 

federally permitted release exemption. If 

an industrial user releases an RQ or 

more of a hazardous substance into a 

POTW that has not set a local limit for 

such a substance, or for which there is 

no limit based on a categorical standard, 

then the release is not federally 

permitted and is subject to CERCIA 

reporting and liability provisions. 

Furthermore, the release of a pollutant 

to a POTW only would qualify for the 

federally permitted release exemption if 

(1) the POTW has a local pretreatment 

program approved by the "approved 

authority" (as defined in § 403.3(c)), or 

(2) a State, in lieu of the municipality, is 

implementing a pretreatment program 

for that POTW pursuant to 40 CFR 

403.10(e). 

Section 101{10)(J) provides that the 

pretreatment program must be 

"submitted by a State or municipality 

for Federal approval." The Agency 

interprets this provision to mean that 

the program not only must be submitted 

for approval but must be approved. A 

strict reading of the statutory language 

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 (S. Rep. 

No. 848,96th Cong.. 2nd Sess. 48 (1980)). 

The fact that a POTW has submitted a 

program for approval does not 

necessarily mean the program is 

adequate to control the introduction of 

pollutants from nondomestic users of the 

POTW. Such a program may not be 

approved by the approval authority due 

to major deficiencies. For the discharge 

to be a federally permitted release, 

therefore, it must be specifically 

regulated in an approved program, a 

program that the approval authority has 

determined is consistent with the 

federally mandated minimum standard 

An approved program may be (1) 

designed and implemented locally by a 

POTW and approved by eitiier EPA or 

an EPA-approved State pretreatment 

program, or (2) designed and 

implemented by an EPA-approved State 

pretreatment program. EPA approval of 

a State pretreatment program pursuant 

to section 402(b) of die CWA would not 

automatically qualify a release to a 

POTW in that State as federally 

permitted. The local pretreatment 

program must be approved either by 

EPA or by an EPA-approved State 

program. Generally, EPA approval of a 

State pretreatment program merely 

changes the approval authority for die 

POTW programs from EPA to the EPAapproved State pretreatment program. 

The approved State has primary 

responsibility for requiring local POTWs 

to develop and implement a 

pretreatment program to regulate users 

directly. The fact that a State 

pretreatment program has been 

approved by EPA does not in and of 

itself change the quality or approvability 

of local POTW programs. POTWs in 

approved States would still need to 

develop local pretreatment programs 

and receive pretreatment program 

approval if they have not done so 

already. Thus, to satisfy the federally 

permitted release exemption, individual 

approval of each POTW pretreatment 

program is necessary (except for a State 

administered $ 403.10(e) program as 

described below). 

Section 403.10(e) allows the State in 

lieu of the POTW to assume 

responsibility for developing and 

implementing POTW pretreatment 

program requirements. Because the 

§ 403.10(e) program must meet the same 

standard as would be required for 

pretreatment programs developed by a 

municipality (§ 403.8(f)). EPA believes 

that the § 403.10(e) programs are the 

State pretreatment programs Congress 

intended to include under section 

101(10)(J). 

In the event that a State's § 403.10(e) 

program does not extend to all its 

POTWs, only those releases to POTWs 

for which the State has implemented the 

pretreatment program pursuant to 

S 403.10(e) would qualify as federally 

permitted. If a POTW is not regulated 

directly by its State NPDES program, the 

POTW nevertheless must implement an 

approved local pretreatment program in 

order for the discharges of industrial 

users to qualify for the federally 

permitted release exemption. 

In summary, for a release to a POTW 

to be subject to the federally permitted 

release exemption, the release must be: 

(1) In compliance with applicable 

categorical pretreatment standards and 

local limits developed in accordance 

with 40 CFR 403.5(c), and (2) into a 

POTW with an approved local 

pretreatment program or a 40 CFR 

403.10(e) State administered local 

program. 

One of the commenters on the May 25, 

1983 NPRM stated that discharges into a 

POTW are transfers between facilities. 

not "into the environment." and 

therefore all discharges into POTWs 

should be exempt from CERCLA 

reporting. The commenter's approach to 

defining "into the environment" is not 

consistent with the approach in today's 

proposal. To determine whether its 

release is federally permitted, therefore, 

an industrial user should measure its 

discharge at the point the substance 

leaves the industrial user's facility. In 

die case of indirect dischargers, the 

release should be measured when it 

leaves die discharger's building. Mobile 

sources should measure the discharge at 

the point it is released into the POTW, 

which will be at the headworks in most 

cases. Industrial users are not required 

under CERCLA to conduct monitoring 

activities different from those required 

by the applicable pretreatment program. 

Releases of Source, Byproduct, or 

Special Nuclear Material. 

Radionuclides (which include source. 

byproduct, and special nuclear material) 

are listed genetically under section 112 

of the CAA and are therefore considered 

hazardous substances under CERCLA. 

CERCLA section 101(22)(C). however, 

excludes from the definition of "release" 

the discharge of: 

source, byproduct or special nuclear material 

from a nuclear incident, as those terms are 
P.11 

Federal Register / Vol. 53, No. 138 / Tuesday, July 19. 1988 / Proposed Rules 27277 

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 tide 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 

[UMTRCAJ 

It should be noted that releases of 

source, byproduct or special nuclear 

material from processing sites 

designated under section 102(a)(1) or 

section 302(a) UMTRCA are exempted 

from CERCLA response action 

provisions but not from reporting 

requirements under CERCLA section 

103. 

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 (AEA). 

Therefore, releases of source, byproduct 

or special nuclear material that exceed 

the licensed or permitted levels by an 

RQ or more, and that are not excluded 

by section 101(22), must be reported 

immediately to the National Response 

Center. 

Under the AEA, the Nuclear 

Regulatory Commission is responsible 

for issuing licenses for the possession 

and use of source, byproduct, and 

special nuclear material. States that 

have entered into an agreement with the 

Nuclear Regulatory Commission (le., 

Agreement States) are also authorized 

under the AEA to issue licenses for the 

possession and use of source, 

byproduct or special nuclear material. 

Releases of source, byproduct or special 

nuclear material in compliance with 

licenses issued by the Nuclear 

Regulatory Commission or Agreement 

States are federally permitted releases 

under CERCLA section 101(10)(K). 

The regulations of the Nuclear 

Regulatory Commission contain several • 

important exemptions from their 

provisions, some of which are based on 

the small quantities of material involved 

or the low levels of radioactivity the 

materials emit. The Nuclear Regulatory 

Commission has developed "exempted 

quantities" for purposes of identifying 

facilities that are not subject to 

Commission licensing requirements. 

These quantities are smaller than the 

radionuclide RQs and therefore, 

releases from these facilities will not be 

reported under CERCLA. Nevertheless, 

these releases are not federally 

permitted under CERCLA and, therefore, 

these facilities are subject to the 

CERCLA section 107 liability provisions. •-

Some releases of source, byproduct 

and special nuclear material may 

comply with licenses, permits, orders, or 

regulations issued under die AEA 

through provisions administered not by 

the Commission or its Agreement States, 

but by DOE, the Department of Defense, 

or EPA. For example, DOE governs its 

radiation protection activities under the 

AEA by a series of internal orders. 

When such orders are issued under 

DOE's AEA authority and releases of 

source, byproduct or special nuclear 

material are in compliance with the 

applicable orderfs), these releases are 

federally permitted under section 

101(10)(K).» The Department of Defense 

issues regulations under the AEA 

governing weapons and reactors within 

its jurisdiction, and EPA issues 

regulations under the AEA for certain 

operations involving radioactive 

material (e.g. 40 CFR Parts 19a 191, and 

192). Releases of source, byproduct or 

special nuclear material in compliance 

with these regulations are also federally 

permitted under section 101(10)(K). Any 

release that is an RQ or more above 

federally permitted levels, however, 

would be subject to die CERCLA 

notification requirements. 

Further clarification is needed 

regarding die applicability of the 

definition of federally permitted releases 

to a fourth category of radioactive 

material called naturally occurring and 

accelerator-produced radioactive 

material (NARM). The AEA gives DOE 

broad authority to control its radiationrelated activities and to protect public 

health and safety and the environment 

This authority applies to activities 

involving NARM, as well as activities 

involving source, byproduct, and special 

nuclear material. CERCLA section 

101(10)(K) refers, however, only to 

releases of source, byproduct, and 

special nuclear material. Thus, it 

provides no basis for exempting DOE's 

NARM releases from CERCLA's 

reporting and liability provisions. 

Furthermore, the AEA currendy does 

not give authority to the Nuclear 

Regulatory Commission to license 

NARM, only source, byproduct, and 

* Under the DOE procurement regulations, 

provisions of the relevant DOE environmental and 

safety orders must be incorporated by reference 

into contracts entered into with managers and 

operators of DOE facilities (see 48 CFR 970.2303-2. 

970.5204-2.97Q.S104-2B(b)). By virtae of their 

incorporation into binding contracts, the provisions 

of the DOE orders become binding on the managers 

and operators of DOB facilities and are enforceable 

by DOE on the basis of the facility management and 

operation contracts. 

special nuclear material. Although 

Agreement States may regulate NARM, 

this regulatory authority is not federally 

derived. Therefore, releases of NARM 

are not considered federally permitted 

under section 101(10)(K). Certain NARM 

releases are, however, considered 

federally permitted under other 

CERCLA sections. For example, air 

releases of NARM that are in 

compliance with NESHAPs are federally 

permitted under section 101(10)(H). 

In making this finding with respect to 

NARM and die definition of federally 

permitted releases in section 101(10)(K), 

the Agency wishes to differentiate 

between NARM, source material, and 

byproduct material. Both source and 

byproduct material are defined under 

the AEA to include certain naturally 

occurring radionuclides. Specifically, 

source material is natural uranium, 

natural thorium, or ores that contain 0.05 

percent or more (by weight) of natural 

uranium or thorium. Byproduct material 

is defined to include naturally occurring 

decay products of uranium or thorium 

when those decay products are 

associated with mill tailings. The 

exclusion of NARM from die definition 

of federally permitted releases under 

section 101(10)(K) applies only to those 

naturally occurring radionuclides that 

do not qualify as either source or 

byproduct materiaL For example, 

naturally occurring radium used in 

medical and well logging devices does 

not meet the definition of source or 

byproduct material and therefore, 

releases of radium from these devices 

does not qualdy for die reporting 

exemption under section 101(10)(K). 

All of the commenters on the 

radionuclides exemption felt that a 

broader exemption is warranted. Some 

commenters suggested that reports of 

releases currendy required by the 

Nuclear Regulatory Commission are 

sufficient and comprehensive because 

they enable the Commission to 

determine die need for and die 

adequacy of response. These 

commenters felt that any additional 

reports to the National Response Center 

would be an unnecessary burden. EPA 

expects that most releases involving 

radionuclides will be excluded from the 

definition of release, will be federally 

permitted, or will involve a quantity 

smaller than the RQ. (The Agency 

published a rule that proposed RQs for 

radionuclides on March 16,1987 in 52 FR 

8172; these RQs are being revised and 

the Agency expects to publish final RQs 

for radionuclides in 1988.) EPA believes, 

however, that die reporting 

requirements imposed on the remaining 

releases of radionuclides, including 
P.12 

27278 Federal Register / Vol. 53. No. 138 / Tuesday. July 19, 1988 / Proposed Rules 

releases not subject to or in compliance 

with applicable permits, regulations, or 

orders, are essential to mitigate the risk 

to public health or welfare or the 

environment posed by such releases. 

III. Notification for Certain Types of 

Releases 

A. In General 

This section addresses several 

recurring questions not related 

specifically to the definition of 

"federally permitted release" but that 

arise under the CERCLA section 103(a) 

reporting requirements. One such 

question involves releases to engineered 

structures designed specifically to 

prevent materials from reaching die land 

surface. The issues involve both 

interpretation of the phrase "release into 

the environment" and the 

appropriateness of CERCLA notification 

requirements for releases to such 

secondary containment devices. The 

Agency solicits comments on die 

following issues. 

In the preamble to the April 4,1985 

final rule adjusting RQs for 340 CERCLA 

hazardous substance, 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 ditches open to the 

outside aid. 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.) SO FR 13462. 

In applying the phrase "into the 

environment" to releases to secondary 

containment devices. EPA believes that 

a release inside a building or structure is 

not a release "into the environment" 

unless the spilled substance leaves die 

building. 

On one hand, a release to a secondary 

containment device that is not wholly 

contained and that is located outside of 

a building or structure is "into the 

environment." Examples of releases to 

such devices that illustrate both die 

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 CERCLA notification 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. 

The Agency is interested in receiving 

comments and data discussing the 

circumstances under which immediate 

notification of releases into secondary 

containment devices would not provide 

useful information for Federal response 

purposes under CERCLA. EPA is 

particularly interested in information on 

the significance of the issue, specific 

examples of procedures followed where 

there is a release to a secondary 

containment device and techniques used 

to prevent releases from such devices, 

data discussing the integrity of 

secondary containment devices, and 

suggestions on the appropriate means of 

eliminating any such unnecessary 

reporting. If the Agency decides to 

exempt from CERCLA notification 

certain releases into secondary 

containment devices, a demonstration 

may be required to show that die device 

is sufficiently protective and reliable. 

B. PCB Waste Disposal 

A second issue concerning the 

necessity for section 103 notification is 

whether approved polychlorinated 

biphenyl (PCB) disposal by incineration, 

landfilling. or alternate methods needs 

to be reported as a release under section 

103. Because PCB disposal approvals 

under die Toxic Substances Control Act 

(TSCA) are not included in the CERCLA 

section 101(10) definition of federally 

permitted release, EPA does not believe 

that it has the authority to apply that 

exemption to such approvals. 

At die same time, however, EPA does 

not believe that notification under 

section 103 of CERCLA provides any 

significant additional benefit so long as 

the disposal facility is in substantial 

compliance with all applicable 

regulations and approval conditions. 

The PCB regulations under TSCA, 40 

CFR Part 761. require owners or 

operators of PCB disposal facilities, 

incinerators, chemical waste landfills, 

and high efficiency boilers to obtain 

written EPA approval, based on 

compliance with detailed technical 

requirements designed to ensure proper 

disposal, before accepting PCB wastes. 

The TSCA approval process is designed 

to ensure that the operation of PCB 

disposal facilities does not present an 

unreasonable risk of injury to health or 

the environment from PCBs. In addition. 

40 CFR Part 761, Subpart J, requires PCB 

disposal facility owners or operators to 

monitor carefully the facility's inventory 

and operation, maintain detailed records 

for periods of 5 to 20 years, and report 

under certain circumstances. The TSCA 

regulations provide the Federal 

government with the information 

necessary to determine whether an 

emergency response to a PCB disposal is 

required. Today's proposal not to 

require CERCLA reporting for EPAapproved PCB disposals is consistent 

with the overall objective of the 

CERCLA notification requirements. 

Therefore, EPA will not require 

reporting under section 103(a) of the 

approved, proper disposal of PCB 

wastes into a disposal facility. The 

Agency requests comments on this 

proposal to exempt administratively 

these releases from CERCLA 

notification. 

A party responsible for a release of 

PCB wastes that need not be reported 

under CERCLA, however, remains liable 

for die costs of cleaning up the release 

and for any natural resource damages 

caused by the release. In addition, 

where the disposer knows that the 

facility is not in compliance with 

applicable regulations and approved 

conditions under TSCA, disposal of an 

RQ or more of PCB waste must be 

reported to the National Response 

Center. Likewise, spills and accidents 

occurring during disposal and outside of 

the approved operation and that result 

in releases of an RQ or more of PCB 

waste must be reported to the National 

Response Center. Finally. PCB releases 

of an RQ or more from a TSCAapproved facility (as opposed to 

disposal into such a facility) must be 

reported under CERCLA. 

TV. Discharges to POTWs 

The Agency recognizes that the 

regulation implementing CWA section 

311 for hazardous substance discharges 

mu3t be revised to be consistent with 

the Agency's regulatory approach taken 

under CERCLA section 101(10)(J). Under 

CERCLA seciton 101(10)0).

 a n

 indirect 

discharge to a POTW must be subject to 

and in compliance with categorical 

pretreatment standards and local limits 

applicable in an approved local 
P.13 

Federal Register / Vol. 53. No. 138 / Tuesday, July 19, 1988 / Proposed Rules 27279 

pretreatment program (see discussion 

under Section HI of today's preamble). 

All indirect dischargers, ie., both mobile 

and stationary sources, are subject to 

the same requirements for their 

discharges to be considered federally 

permitted releases. 

Under 40 CFR 117.13, mobile sources 

discharging industrial waste are not 

subject to CWA section 311 coverage if 

the mobile source has contracted with, 

or otherwise received written 

permission from the POTW to discharge 

a designated quantity of industrial 

waste treated to comply with effluent 

limitations (under CWA sections 301, 

302, or 306) or pretreatment standards 

(under CWA section 307). Indirect 

dischargers are not addressed under 

§ 117.13. Paragraph (a) of § 117.13 was 

reserved to provide the conditions under 

which indirect discharges are subject to 

CWA section 311. 

The Agency is proposing to amend 40 

CFR 117.13 to state that indirect 

discharges are not subject to section 311 

coverage if the indirect discharge is in 

compliance with applicable categorical 

pretreatment standards and local limits 

developed in accordance with 40 CFR 

403.5(c) and is into a POTW with an 

approved local pretreatment program or 

a 40 CFR 403.10(e) State administered 

local program. EPA also is proposing to 

revise paragraph (b) to apply the same 

conditions to mobile sources as would 

be applied to indirect discharges under 

paragraph (a). The Agency requests 

comments on this proposal. 

V. Regulatory Analyses 

A. Executive Order No. 12291 

Rulemaking protocol under Executive 

Order (E.O.) 12291 requires that 

proposed regulations be classified as 

major or nonmajor for purposes of 

review by the Office of Management 

and Budget (OMB). 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, 

States, or local government agencies, or 

geographic regions; or 

(3) Significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or on the ability of 

United States-based enterprises to compete 

with foreign-based enterprises in domestic or 

export markets. 

Today's regulation is nonmajor, 

because adoption of die 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 in the public 

docket, shows that the proposed rule is 

simply a clarification of existing 

statutory requirements. 

This rule has been submitted to OMB 

for review, as required by E.O. 12291. 

B. Regulatory Flexibility Act 

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." Today's proposed rule is not 

expected to significantly impact small 

entities because the rule proposes 

simply to clarify the existing statutory 

requirement. EPA certifies, therefore, 

that this proposed regulation will not 

have a significant impact on a 

substantial number of small entities and 

that a Regulatory Flexibility Analysis is 

not required. 

C. Paperwork Reduction Act 

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. 3501 et seq. 

List of Subjects 

40 CFR Part 117 

Hazardous Substances, Penalties, 

Reporting and recordkeeping 

requirements, Water pollution control. 

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. 

40 CFR Part 355 

Chemical accident prevention. 

Chemical emergency preparedness, 

Chemicals, Community emergency 

response plan, Community right-toknow, Contingency planning, Extremely 

hazardous substances, Hazardous 

substances, Reportable quantity, 

Reporting and recordkeeping 

requirements. Threshold planning 

quantity. 

Dated: July 11.1988. 

Lee M. Thomas, 

Administrator. 

For the reasons set out in the premble, 

it is proposed to amend Title 40 of the 

Code of Federal Regulations as follows: 

PART 117—DETERMINATION OF 

REPORTABLE QUANTITIES FOR 

HAZARDOUS SUBSTANCES 

1. The authority citation for Part 117 is 

revised to read as follows: 

Authority: 33 U.S.C. 1321 and 1361. 

2. Section 117.12 is revised to read as 

follows: 

§ 117.12 Applicability to discharges from 

facilities with NPDES permits. 

(a) This regulation does not apply to: 

(1) Discharges in compliance with a 

permit under section 402 of the Clean 

Water Act; 

(2) Discharges resulting from 

circumstances identified and reviewed 

and made a part of die public record 

with respect to a permit issued or 

modified under section 402 of the Clean 

Water Act, and subject to a condition in 

such permit; or 

(3) Continuous or anticipated 

intermittent discharges from a point 

source, identified in a permit or permit 

application under section 402 of the 

Clean Water Act, which are caused by 

events occurring within the scope of 

relevant operating or treatment systems. 

(b) A discharge is "in compliance with 

a permit issued under section 402 of the 

Clean Water Act" if die permit contains 

an effluent limitation specifically 

applicabale to die 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. 

(c) A discharge results "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 die Clean 

Water Act, and subject to a condition in 

such permit" where: 

(1) The permit application, the permit, 

or another portion of the public record 

contains documents that specifically 

identify: 

(i) The substances and the amounts of 

substances; and 

(ii) The origin and source of the 

substances; 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 that is 

designed to treat the permittee's normal 

discharge and that is additionally 

capable of treating the identified amount 

of the identified substance; or 
P.14 

27280 Federal Register / Vol. 53, No. 138 / Tuesday, July 19, 1988 / Proposed Rules 

(C) Any combination of the above; 

and 

(2) The permit contains a requirement 

that the substances and the amounts of 

the substances, as identified in 

§117.12(c)(l)(i) and §117.12(c)(l)(ii), be 

treated pursuant to § 117.12(c)(l)(iii) in 

the event of an on-site release: and 

(3) The treatment to be provided is in 

place. 

(d) A discharge is a "continuous or 

anticipated intermittent" discharge 

"from a point source, identified in a 

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, if: 

(1) The hazardous substance is 

discharged from a point source for 

which a valid permit exists or for which 

a permit application has been submitted; 

and 

(2) The discharge of the hazardous 

substance results from: 

(i) The contamination of noncontact 

cooling water or storm water, provided 

that such cooling water or storm water 

is not contaminated by an onsite spill of 

a hazardous substance; or 

(ii) A continuous or anticipated 

intermittent discharge of process waste 

water, and where the discharge 

originates within the manufacturing or 

treatment systems; or 

(iii) An upset or failure of a treatment 

system or of a process producing a 

continuous or anticipated intermittent 

discharge where the upset or failure 

results from a control problem, a system 

failure or malfunction, an equipment or 

system startup or shutdown, an 

equipment wash, or a production 

schedule change, provided that such 

upset or failure is not caused by an onsite spill of a hazardous substance. 

3. Section 117.13 is revised to read as 

follows: 

§117.13 ApplIcaMlty to discharges from 

other facilities. 

(a) These regulations apply to all 

discharges of reportable quantities to a 

POTW, where the discharge originates 

from stationary industrial users, so long 

as the discharge is: 

(1) In compliance with applicable 

categorical pretreatment standards and 

local limits developed in accordance 

with 40 CFR 403.5(c); and 

(2) Into a POTW with an approved 

local pretreatment program or a 40 CFR 

403.10(e) State administered local 

program. 

(b) These regulations apply to all 

discharges of reportable quantities to a 

POTW, where the discharge originates 

from a mobile source, so long as the 

mobile source can show that: 

(1) Prior to accepting the substance 

from an industrial discharger, the 

substance being discharged was in 

compliance with applicable categorical 

pretreatment standards and local limits 

developed in accordance with 40 CFR 

403.5(c); and 

(2) The substance is being discharged 

into a POTW with an approved local 

pretreatment program or a 40 CFR 

403.10(e) State administered local 

program. 

PART 302—DESIGNATION, 

REPORTABLE QUANTITIES, AND 

NOTIFICATION 

4. The authority citation for Part 302 is 

revised to read as follows: 

Authority: 42 U.S.C 9602:33 U.S.C. 1321 

and 1361. 

5. Section 302.3 is amended by adding 

in alphabetical order the definition 

"federally permitted release" and by 

revising the introductory text of the 

definition "release" to read as follows: 

§302.3 Definitions. 

**** * 

"Federally permitted release" means 

(1) a discharge in compliance with a 

permit under section 402 of the Clean 

Water Act; 

(2) A discharge resulting from 

circumstances identified and reviewed 

and made a part of the public record 

with respect to a permit issued or 

modified under section 402 of the Clean 

Water Act and subject to a condition in 

such permit; 

(3) A continuous or anticipated 

intermittent discharge from a point 

source, identified in a permit or permit 

application under section 402 of die 

Clean Water Act. which is caused by 

events occurring within the scope of 

relevant operating or treatment systems; 

(4) A discharge in compliance with a 

legally enforceable Federal or State, 

individual or general permit under 

section 404 of die Clean Water Act; 

(5) A release in compliance witii a 

legally enforceable Federal sr State final 

permit issued pursuant to section 3005 

(a) dirough (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 a 

release; 

(8) Any release in compliance with a 

legally enforceable permit issued under 

section 102 or section 109 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 die Safe Drinking 

Water Act; 

(8) Any emission of a substance into 

the air which is named specifically or is 

included in a specifically named group 

of substances subject to and in 

compliance with a permit or control 

regulation under section 111, section 112, 

Tide 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 autiiorized under 

applicable State law: solely for the 

purpose of stimulating or treating wells 

for the production of crude oil, natural 

gas, or water solely for the purpose of 

secondary, tertiary, or other enhanced 

recovery of crude oil or natural gas; or 

which are brought to die 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 workB 

(POTW) whensuch pofhttant hi 

specified in and in compliance with 

applicable categorical pretreatment 

standards and focal limits developed in 

accordance with 40 CFR 403.5(c) and 

into a POTW with an approved local 

pretreatment program or a 40 CFR 

403.10(e) State administered local 

program; and 

(11) Any release of source, special 

nuclear, or byproduct material, as tiiose 

terms are defined in the Atomic Energy 

Act of 1954. in compliance with a legally 

enforceable license, permit regulation, 

or other issued pursuant to the Atomic 

Energy Act of 1954, 

Federally permitted releases do not 

include releases exempt from regulation 

under the authority of one of die cited 

statutes; releasee not in compliance with 

the applicable permit limit or condition, 

license, regulation, order, standard or 

program; or releases into a medium 

other than that covered in the applicable 
P.15 

Federal Register / Vol. 53, No. 138 / Tuesday, July 19, 1988 / Proposed Rules 27281 

permit, license, regulation, order, 

standard, or program. 

**** * 

"Release" means any spilling, leaking, 

pumping, pouring, emitting, emptying, 

discharging, injecting, escaping, 

leaching, dumping, or disposing into the 

environment (including the 

abandonment or discarding of barrels, 

containers, and other closed receptacles 

containing any hazardous substance or 

pollutant or contaminant), but excludes 

6. Section 302.6 is amended by adding 

new paragraphs (e) and (f) as follows: 

§ 302.6 Notification requirements. 

**** * 

(e) Whenever a release of a hazardous 

substance exceeds its federally 

permitted level as defined under § 302.3 

("federally permitted release") by a 

reportable quantity or more, notification 

shall be made for such release in 

accordance with die requirements of 

this section or, if applicable, § 302.8. 

Where numerical levels for hazardous 

substances are not specified, any 

release not in compliance with the 

terms, related to the character or 

quantity of the release, of die applicable 

permit, license, regulation, order, 

standard or program that equals or 

exeeds a reportable quantity must be 

reported to the National Response 

Center in accordance with this section 

or, if applicable. § 302.8. 

(f) Notification is not required for the 

disposal of polychlorinated biphenyl 

(PCB) approved by EPA and in 

substantial compliance with the 

applicable Toxic Substance Control Act 

(TSCA) regulations. 40 CFR Part 781. 

and approval conditions. 

7. Section 302.7 is amended by 

revising paragraph (a)(3) to read as 

follows: 

§302.7 Penalties. 

(a) * * * 

(3) In charge of a facility from which a 

hazardous substance is released, other 

than a federally permitted release, in a 

quantity equal to or greater than that 

reportable quantity determined under 

this part who fails to notify immediately 

the National Response Center as soon 

as he or she has knowledge of such 

release or who submits in such a 

notification any information which he or 

she knows to be false and misleading 

shall be subject to all of the sanctions, 

including criminal penalties, set forth in 

section 103(b) of the Act. 

PART 355—EMERGENCY PLANNING 

AND NOTIFICATION 

8. The authority citation for Part 355 is 

revised to read as follows: 

Authority: 42 U.S.C. 11002 and 11048. 

9. Section 355.40 is amended by 

revising paragraph (a) to read as 

follows: 

§ 355.40 Emergency release notification. 

(a) Applicability. (1) The requirements 

of this section apply to any facility: 

(i) At which a hazardous chemical is 

produced, used, or stored; and 

(ii) At which there is a release of a 

reportable quantity of any extremely 

hazardous substance of CERCLA 

hazardous substance. 

(2) This section does not apply to: 

(i) Any release that results in 

exposure to persons solely within the 

boundaries of the facility; 

(ii) Any release that is a "federally 

permitted release," as defined as 

follows: 

(A) A discharge in compliance with a 

permit under section 402 of die Clean 

Water Act; 

(B) A discharge resulting from 

circumstances identified and reviewed 

and made a part of die public record 

with respect to a permit issued or 

modified under section 402 of the Clean 

Water Act, and subject to a condition in 

such permit; 

(C) A continuous or anticipated 

intermittent discharge from a point 

source, identified in a permit or permit 

application under section 402 of the 

Clean Water Act which is caused by 

events occurring within die scope of 

relevant operating or treatment systems; 

(D) A discharge in compliance with a 

legally enforceable Federal or State, 

individual or general permit under 

section 404 of die Clean Water Act 

(E) A release 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 die hazardous substances in such a 

release; 

(F) 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; 

(G) 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; 

(H) 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, 

Tide 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; 

(I) Any injection of fluids or other 

materials specifically authorized under 

applicable State law: solely for the 

purpose of stimulating or treating wells 

for the production of crude oil, natural 

gas, or water solely for the purpose of 

secondary, tertiary, or other enhanced 

recovery of crude oU or natural gas; or 

which are brought to the surface in 

conjunction with the production of crude 

oil or natural gas and which are 

reinjected; 

(J) The introduction of any pollutant 

into a publicly owned treatment works 

(POTW) when such pollutant is 

specified in and in compliance with 

applicable categorical pretreatment 

standards and local limits developed in 

accordance with 40 CFR 403.5(c) and 

into a POTW witii an approved 

pretreatment program or a 40 CFR 

403.10(e) State administered local 

program; and 

(K) 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. 

(iii) Federally permitted releases do 

not include releases exempt from 

regulation under die authority of one of 

die cited statutes; releases not in 

compliance with the applicable permit 

limit or condition, license, regulation, 

order, standard, or program; or releases 

into a medium other than that covered in 

the applicable permit, license, 

regulation, order, standard, or program. 

**** * 

(FR Doc. 88-16192 Filed 7-18-88: 8:45 am] 

BtLUMO COOt SS40-S0-M