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Issue: Exemption for Federally Permitted Releases 

Code: 500 

Comments Received: 

RQ-1S-G 

37-B 

40-C 

41-C 

56-D 

99-D 

112-E 

116-0 

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Total: 8 

Summary of Major Comments: 

• Several commenters pointed out that permit programs may already 

require notification of the appropriate EPA office in the event of a 

release exceeding permit levels. These commenters asked that such 

releases be exempted from CERCLA notification requirements. 

• Several commenters recommended that releases be considered federally 

permitted releases (and therefore exempt from CERCLA notification 

requirements) if they are exempt from regulation by the statutes 

listed in CERCLA Section 101(10) or if such releases were considered 

during the permit process and were not included under the terms of the 

permit. 

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500. EXEMPTION FOR FEDERALLY PERMITTED RELEASES 

BACKGROUND 

CERCLA Section 103(a) requires the person in charge of a vessel or 

facility to notify immediately the National Response Center (NRC) as soon as 

he has knowledge of any release. This notification requirement does not apply 

to "federally permitted releases," however, which are defined in Section 

101(10) of the statute. Congress intended that such releases, which often are 

subject to notification requirements under the conditions of the permits, not 

be subject to additional reporting regulations under CERCLA as long as they 

are in compliance with the terms of the permit. 

DISCUSSION OF MAJOR COMMENTS 

In the NPRM, EPA described in detail the scope of the federally permitted 

release exemption and requested comments on several issues. Two generic 

issues were raised by commenters: 

(1) 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; and 

(2) The scope of the federally permitted release exemption with 

regard to: 

(a) Releases statutorily exempt from regulation under permit 

programs listed in CERCLA Section 101(10); and 

(b) Releases identified and considered during the permit 

process, but subsequently excluded from the terms of the permit. 

These generic issues are discussed below, along with other general issues 

raised by individual commenters. Comments addressed to specific applications 

of these general issues to the exemptions listed in CERCLA Section 101(10) are 

discussed in Issue Areas 510 through 570 below. 

Several commenters pointed out that permit programs may already require 

notification of the appropriate EPA office in the event of a release exceeding 

permit levels. These commenters asked that such releases be exempted from 

CERCLA notification requirements. EPA disagrees that such releases should, 

without qualification, be exempt. 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 may differ from one permit program to another. If permit 

notification requirements were allowed to suffice for CERCLA notification, the 

information available to the CERCLA program on releases would be inconsistent 

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and incomplete. Permit programs also differ in their reporting mechanisms and 

do not always require immediate notification. In some instances, releases 

that exceed permit levels need only be reported at specific intervals (e.g., 

monthly). Moreover, releases exceeding permit levels are reported to 

different federal and state offices, depending upon the permit involved. 

CERCLA requires immediate notification to a central federal office so that 

timely response may be initiated if EPA determines that a release may present 

substantial danger to public health or welfare or the environment. 

If any permitted release exceeds, by an RQ or more, the levels specified 

by the terms of the permit, the release must be reported immediately to the 

NRC to be in compliance with CERCLA requirements. EPA recognizes that this 

interpretation may result in duplicative notification requirements in some 

cases. Nevertheless, the Agency believes this interpretation is essential to 

ensure adequate protection of public health and welfare and the environment. 

Moreover, EPA is not convinced that requiring releasers to make one additional 

phone call to a toll-free number constitutes an undue burden on the regulated 

community. The purpose of CERCLA's notification requirements is sufficiently 

different from the permit programs to justify the additional reporting. The 

benefits of prompt notification of releases that allows for timely response 

action, in the Agency's view, outweigh any minor additional requirements 

imposed on releasers of hazardous substances. 

Several commenters recommended that releases be considered federally 

permitted releases (and therefore exempt from CERCLA notification 

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

CERCLA Section 101(10) or if such releases were considered during the permit 

process and were not included under the terms of the permit. EPA recognizes 

that some statutes deliberately exempt certain releases from regulation. The 

exemption of a type of release from regulation under a particular statute has 

little or no bearing on whether a federal response action might be needed 

regarding a specific release of the type exempted from regulation. Therefore, 

the Agency has determined that releases exempted by the statutes listed in 

Section 101(10) will not be considered federally permitted releases. For 

example, discharges exempted from dredge and fill permit requirements under 

CWA Sections 404(f) and 404(r) are not "federally permitted" for purposes of 

CERCLA and must be reported when they equal or exceed an RQ. 

On the other hand, EPA has determined that, where a hazardous substance 

release meets the following conditions, the release should be considered "in 

compliance with a permit" for CERCLA purposes (i.e., federally permitted) even 

if it is not expressly included in the terms of the permit: 

(1) The release has been specifically identified, reviewed, and made 

part of the public record with respect to one of the permits 

listed in CERCLA Section 101(10) (other than RCRA permits or 

pretreatment standards or programs, in which hazardous substance 

releases must be specified or otherwise subject to control 

requirement to be exempt from CERCLA); 

(2) The release is not excluded from permit terms because it is 

intended to be prohibited; 

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(3) The release is not excluded from permit terms because it is 

statutorily exempt from regulation; and; 

(4) The release does not violate any permit terms or conditions. 

This policy concerning federally permitted releases is consistent with the 

position stated in the NPRM, but is more explicit. The Agency believes that a 

substance need not be listed in a permit for the rationale of the federally 

permitted release exemption to apply. Once the Agency issuing the permit has 

examined the characteristics of a release of a hazardous substance and 

determined that the release need not be restricted under the terms of the 

permit, the paper record of the permit issuance indicates this determination, 

and the other conditions noted above are satisfied, notification of the 

release under CERCLA would provide no significant benefit to public health or 

welfare or the enviromnent. Therefore, as long as hazardous substance 

releases meet the above conditions, notification of such releases under CERCLA 

is unnecessary. Note that this policy will not apply to certain permit 

programs (e.g. RCRA permits or CWA pretreatment standards) because of the 

additional requirements imposed by Section 101(10) concerning such programs. 

DISCUSSION OF MISCELLANEOUS COMMENTS 

Two commenters recommended that all releases authorized by permit 

programs, whether or not they are listed in CERCLA Section 101(10), be treated 

as federally permitted releases under CERCLA, despite the loopholes and 

oversights of the existing permit programs. The Agency interprets the statute 

and the legislative history to mean that only releases specifically listed in 

Section 101(10) are exempt from CERCLA reporting requirements. EPA believes 

that Congressional intent in establishing the federally permitted release 

exemption was clearly not to allow such loopholes to remain a source of 

threats to public health or welfare or the environment. The Senate Report on 

S. 1480 states clearly: 

The federally permitted release exceptions are not directed at 

avoiding notice, but rather to make it clear which provisions apply to 

discharging sources. (S. Rep. 96-848, 96th Cong., 2nd Sess., 50) 

One commenter requested that, at a minimum, CERCLA notification 

requirements be waived when there is only a technical violation of permit 

conditions, i.e., where the violation relates to operating procedures and does 

not affect the character or quantity of the discharge. EPA agrees that 

notification of the NRC would be unnecessary in such a case and that the 

violation should be addressed by the permit programs solely as a permit 

violation. If the characteristics of a release (both quantity or 

concentration and substance) are in accord with a permit described in Section 

101(10) and issued by a federal agency or federally authorized state program, 

CERCLA notification is not required. 

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Finally, at least three commenters suggested that EPA consider all 

"routine" releases as "federally permitted releases" and thus exempt from 

notification requirements. The commenters' definition of "routine" is not 

clear, however, and the Agency believes it would be inappropriate to exempt 

such a potentially broad class of releases from CERCLA reporting 

requirements. In any case, the CERCLA statutory language would not permit 

"routine" releases to be classified as federally permitted releases. 

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