P.1 

OlOo]ffK-j-/3 

Tuesday 

July 11, 1989 

Part VI 

Environmental 

Protection Agency 

40 CFR Part 302 and 355 

Reporting and Liability Exemptions for 

Federally Permitted Releases of 

Hazardous Substances; Supplemental 

Notice to Proposed Rule 
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29306 Federal Register / Vol. 54, No. 131 / Tuesday, July 11, 1989 /Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 302 and 355 

[FRL-3613-81 

Reporting and Liability Exemptions for 

Federally Permitted Releases of 

Hazardous Substances 

AGENCY: U.S. Environmental Protection 

Agency [EPA). 

ACTION: Supplemental notice to 

proposed rule. 

SUMMARY: On July 19,1988, the U.S. 

Environmental Protection Agency (EPA) 

published a Notice of Proposed 

Rulemaking (NPRM) to define the scope 

of the exemption from reporting and 

liability for "federally permitted 

releases" under the Comprehensive 

Environmental Response, 

Compensation, and Liability Act of 1980 

(CERCLA), as amended. This Notice 

clarifies certain aspects of the proposed . 

scope of the CERCLA exemption for 

releases permitted under the Clean Air 

Act (CAA) and solicits comments on the 

clarification. 

DATES: Comments must be submitted on 

or before August 10,1989. 

ADDRESSES: Comments: Comments 

should be submitted in triplicate to: 

Emergency Response Division, 

Superfund Docket Clerk, Attention: 

Docket Number 101(10) FPR, Room 

2427M, (OS-240), U.S. Environmental 

Protection Agency, 401 M Street, SW, 

Washington, DC 20460. 

Docket: Copies of materials relevant , 

to this rulemaking are kept in Room 

2427M, at the above address. The docket 

is available for inspection between 9:00 

a.m. arid 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 

(OS-210), U.S. Environmental Protection 

Agency, 401 M Street, SW, Washington, 

DC 20460, (202) 382-2463; or the RCRA/ 

Superfund Hotline at 1-600/424-9356; in 

Washington, DC, 1-202/382-3000. The 

toll-free telephone number of the 

National Response Center is 1-800/424-

8802; in Washington, DC, 1-202/426-

2675. 

SUPPLEMENTARY INFORMATION: Th e 

Comprehensive Environmental 

Response, Compensation, and Liability 

Act of 1980 (CERCLA), as amended, 

establishes broad Federal authority to 

respond to releases or threats of 

releases of hazardous substances, 

pollutants, and contaminants. In order to 

alert Federal officials of potentially 

dangerous releases of hazardous 

substances, section 103 of CERCLA 

requires any person in charge of a vessel 

or facility to immediately notify the 

National Response Center when there 

has been a release of a hazardous 

substance from a vessel or facility in an 

amount equal to or greater than the 

"reportable quantity" (RQ) for that 

substance. RQs are established under 

CERCLA section 102 and are published 

in 40 CFR Part 302. Under section 107 of 

CERCLA, responsible parties are liable 

for the costs incurred in responding to 

releases of hazardous substances, 

regardless of whether the amount 

released equals or exceeds an RQ. 

CERCLA section 103(a) exempts 

"federally permitted releases" from the 

reporting requirements for releases of 

hazardous substances. Similarly, section 

107(j) exempts federally permitted 

releases from CERCLA liability. In 

addition, section 304(a)(2)(A) of the 

Emergency Planning and Community 

Right-to-Know Act of 1986 (also known 

as Title III of the Superfund 

Amendments and Reauthorization Act 

of 1986) exempts federally permitted 

releases from State and local emergency 

release notification requirements. 

Section 101(10) of CERCLA defines 

the term "federally permitted release" 

by specifically enumerating certain 

releases subject to permits or 

authorizations under other Federal or 

State environmental laws. EPA 

discussed and solicited comments on 

possible interpretations of the CERCLA 

section 101(10) federally permitted 

release exemptions in the preamble to a 

proposed rule published on May 25,1983 

(48 FR 23552). On July 19,1988 (53 FR 

27268), EPA proposed a rule defining the 

scope of these exemptions. Today's 

Notice addresses the proposed 

exemption for one category of release: 

releases permitted under the Clean Air 

Act (CAA). Public comment is requested 

on this approach for determining which 

air releases should be reported under 

section 103 and for defining the scope of 

the exemption for federally permitted air 

releases under CERCLA and Title III. 

CERCLA section 101(10)(H) defines 

"federally permitted release" to include: 

any emission into the air subject to a permit 

or control regulation under section ill, 

section 112, title I part C, title I part D. or 

State implementation plans submitted in 

accordance with section llO of the Clean Air 

Act (and not disapproved by the 

Administrator of the Environmental 

Protection Agency), including any schedule or 

waiver granted, promulgated, or approved 

under these sections * * * 

In the July 19,1988 proposal (53 FR 

27273-27274), EPA discussed three 

options for defining the scope of this 

exemption. Under the first option, EPA 

would include under the exemption only 

those air releases for which the 

constituent hazardous substances have 

been expressly identified on the record, 

reviewed during the permit or 

rulemaking proceeding, and subject to a 

specific or categorical limitation in the 

permit or control regulation. Option two 

would include as federally permitted 

those releases of specifically named 

criteria pollutants as well as 

constituents of the pollutant, i.e., 

particulate matter (including its 

constituents) and four other CAA 

criteria pollutants in compliance with a 

permit or regulatory standards. Releases, 

of constituents of particulate matter that 

are hazardous substances would be 

federally permitted whether or not the 

specific constituent hazard substances -

are identified on the record. Under 

Option two, releases of volatile organic 

compounds (VOCs) that are regulated 

under section 109 of the CAA would not 

be federally permitted because they are 

not criteria pollutants, but rather are 

precursors of ozone. The third option 

would add to releases defined as 

federally permitted under Option one 

any "routine" emission that the permit 

or control regulation is designed to 

address.1 

EPA is today clarifying Option one as 

described above. Under Option one, 

EPA would exempt as federally 

permitted under CERCLA section 

101(lO)(H) only those air releases in 

compliance with a CAA permit or 

control regulation that specifically 

identifies the hazardous substance and 

is specifically designed to limit or 

eliminate the emission of that hazardous 

substance. Thus, a hazardous substance 

constituent of released particulate 

matter

 2 or a hazardous substance 

1

 Releases of particulate matter generally would 

be considered federally permitted under Options 

two and three, as those options are described in the 

July 19.1988 NPRM; releases of VOCs would 

generally be considered federally permitted only 

under Option three. 

* Particulate matter is regulated under the 

National Ambient Air Quality Standards of the 

CAA if it has a diameter of 10 micrometers (known 

as "PM10") or less (40 CFR 50.6(c)). Fine particles of 

CERCLA hazardous substances, such as lead and 

other metals, may be among the constituents 

released in particulate matter. 
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Federal Register / Vol. 54, No. 131 / Tuesday, July 11, 1989 / Proposed Rules. 29307 

constituent of VOCs would not be 

considered federally permitted unless it 

was specifically addressed and 

controlled under a CAA permit or 

regulation. Identification in the public, 

record without specific control in a 

permit or regulation would be . 

insufficient. Even if the limitation or 

control is designed to address 

particulates or VOCs as a class, these 

emissions would not be federally 

permitted. 

Under Option one as clarified in 

today's Supplemental Notice, reporting 

would be required for releases of an RQ 

or more of a CERCLA hazardous 

substance, unless the direct health and 

environmental effects of that substance 

have been explicitly considered in 

developing the permit or control 

regulation for the release. Specific 

consideration of the health and 

environmentaleffects of the hazardous 

substance constituent of particulate 

matter or VOCs must be clearly 

manifested in the permit or control 

regulation, either through a specific limit 

on the hazardous substance constituent 

or a statement that the limitation on the 

criteria pollutant sufficiently controls 

the toxic effects of the hazardous 

substance constituent. Moreover, 

persons in charge of facilities or vessels 

with releases of particulate matter or 

VOCs that are not federally permitted 

would be subject to the liability 

provisions of CERCLA section 107. 

There are several reasons for today's > 

Supplemental Notice. First, Option one, 

which would exclude releases 

identified, reviewed, and made part of 

the public record for the permit, was 

based in part oh the statutory language 

concerning the exemption for releases 

permitted under the Clean Water Act. 

(See CERCLA section 101(10)(B).),As 

noted by several commenters, however, 

section 101(10)(B) does not relate to air 

releases and the language is difficult to 

apply outside the context of permits 

issued under the Clean Water Act. For 

instance, under the Clean Water Act, 

such "identified" discharges must be 

subject to on-site treatment in order to 

qualify for the federally permitted 

release exemption. 

Second, the July 19,1988 preamble 

discussion of Option one stated that a 

release would be federally permitted if it 

was identified in the permitting record; 

this position was inconsistent with the 

proposed regulatory language. The 

intent of the regulatory language in the 

July 19,1988 proposed rule and today's, 

clarification of Option one is to exempt 

only those emissions which the permit 

or control is specifically designed to 

limit or eliminate. Thus, Option one 

would not, contrary to the expectations 

of some commenters, include releases of 

constituent hazardous substances in 

particulate matter unless those 

constituents are in compliance with a . 

specific emission limit. 

Third, as discussed above, the 

exemption for federally permitted 

releases applies to liability under 

CERCLA section 107 as well as 

emergency release notification under 

section 103 of CERCLA and section 304 

of Title III. Although the impact of the 

rule on liability was stated in the 

preamble and is a significant factor in 

the Agency's decision concerning the 

breadth of the exclusions, virtually all 

commenters on the Jury;19,1988 NPRM 

addressed only the impact of the options 

on their reporting responsibilities. 

Commenters did not address the large 

potential impact of the options on 

liability of responsible parties for 

CERCLA cleanups. Therefore, this .. 

Supplemental Notice is intended to 

highlight the fact that the "definition of 

"federally permitted release" affects 

both notification and liability under 

CERCLA, and specifically solicit 

comments on the impacts on both 

notification and liability under CERCLA 

of the scope of the federally permitted 

release exemptions and today's 

clarification of Option one. 

As stated in the July 19,1988 proposal, 

the Agency is considering Option one 

because VOCs are regulated based on 

their contribution to ozone, not on the 

direct health effects associated with 

ambient concentrations of total VOCs or 

VOC constituents. Option one would 

ensure that individual VOCs are not 

considered federally permitted unless 

the health effects of those VOCs were 

considered in the permit or regulation 

development process. Similarly, EPA is 

aware of certain particulate matter 

emissions that contain large amounts of 

hazardous substances (e.g., lead), but for 

which, the particulate matter emission 

limit was established without regard to 

the amount or toxicity of the constituent 

hazardous substances. Some of these 

emissions can result, and have resulted, 

in widespread soil contamination in the 

area of the facility. EPA solicits 

comments on whether such 

contamination, even though it may have 

resulted from releases in compliance 

with applicable categorical controls for 

particulate matter under the CAA 

(which are riot based on the toxicity of 

the constituent hazardous substances), 

should be exempt from CERCLA 

notification and liability provisions. 

Date: June 28,1989 

Jonathan Z. Cannon,. 

Acting Assistant Administrator. 

[FR Doc. 89-16211 Filed 7-10-89; 8:45 am] 

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