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CHEMICAL MANUFACTURERS ASSOCIATION 

September 4, 1986 

Ms. Barbara Hostage 

Sr. Project Officer 

Office of Emergency Response 

US Environmental Protection Agency 

401 M Street, S.W. 

Washington, DC 20460 

Dear Ms. Hostage: 

CMA appreciates the time you and your associates took with CMA staff and 

member company representatives on August 20 to discuss Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) reporting issues. 

Given your intent to draft proposed clarifying regulations in the near future, 

CMA wishes to submit the following informal suggestions for your consideration. Since the following is based only on our discussions with the Agency 

and not on draft regulations, we hope CMA will have additional opportunities 

to continue this dialogue as the regulatory development process progresses. 

We believe there are three types of current and emerging uncertainties regarding the reporting of releases under Section 103(a) of CERCLA that need regulatory clarification. Specifically these are: 

1) Which releases are exempt as "federally permitted"; 

2) How does one determine when non-exempt releases are continuous and 

therefore exempt from daily reporting; and 

3) What should be the relationship between reporting requirements under 

existing Section 103(a) of CERCLA and Section 313 as it appears on 

the CERCLA Reauthorization Conference report. 

FEDERALLY PERMITTED RELEASES 

CMA believes that Congress intended a broad interpretation of the "federally 

permitted release exemption (Section 101(10))". Clean Water Act NPDES exempted 

releases include any discharge "in compliance with permit under Section 402 of 

the Federal Water Pollution Control Act,... 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,... continuous 

or anticipated intermittent discharges from a point source... which are caused 

by events occurring with the scope of relevant operating or treatment systems." 

Formerly Manufacturing Chemists Association—Serving the Chemical Industry Since 1872. 

2501 M Street, NW • Washington, DC 20037 • Telephone 20: 387-1100 • Telex 89617 (CMA WSH) 
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UIC injection includes "any injection of fluids authorized under federal 

underground injection control programs or state programs submitted for Federal 

approval...". Air emissions include "any emission into the air subject to a 

permit or control regulation under Section 111, Section 112 Title I Part C, 

Title I Part D, or state implementation plans submitted in accordance" with 

Section 110 of the Clean Air Act...". Legislative history for the air emission section alone is more expansive requiring that some specification to 

control or limit emissions of a designated hazardous or criteria pollutant be 

embodied in the permit or regulation. 

We believe that Congress deliberately chose these words with the intent that 

the control of criteria groups, (i.e., VOC's, TSS, BOD etc.) covering a number 

of substances under either a permit or a regulation, be considered as "federally permitted". Further, use of the qualifying terms "any" and "subject to" 

appear far broader in intent than the "specifically named and limited in a 

permit" qualifiers suggested by some in the Agency. CMA believes that with 

this language, Congress was attempting to identify releases not already 

subject to control authority under other statutes and to avoid a redundant 

information gathering authority. 

CMA urges EPA to closely consider Congressional intent in enacting Section 103 

before proposing regulations. CMA believes that intent was to provide information for response purposes and not to create a data base. The development of 

a national data-base of information regarding releases is a different need 

which Congress is now addressing in Title III of the Superfund amendments 

recently completed by the Conference Committee. Section 314 of that title 

appears directly intended and better suited for the development of a national 

data-base. Further, the intent of a report required to be made under Section 

103(a) to the National Response Center, (NRC), is made clear by the name given 

the Center, and the role assigned it elsewhere in the statute - namely response . To require reporting of releases subject to regulation but not 

specifically limited in permits would inundate the Center with thousands of 

reports - even with the reduced reporting provided by Section 103(f)(2). Such 

reporting would hinder, not help, the important function of the NRC. 

In addition, CMA questions whether any significant benefit would be derived 

from such reporting in that the great majority of releases of concern are 

already reported in some form to the Agency or authorized states under other 

statutory authorities (VOC emission tally, priority pollutant reports, RCRA 

groundwater reports, etc.). CMA cautions the Agency not to mix response needs 

with data collection needs. CMA recommends that if enacted, the EPA use Title 

III of the Superfund amendments to develop a national data-base and resume 

Section 103(a) for reporting only when a response is necessary. 

CONTINUOUS RELEASE REPORTING: 

With regard to "continuous release", we understand that the $669 million 

annual savings EPA has estimated as the effect of planned continuous release 

rules is based on the current reporting of such releases and an assumed 

high-non compliance rate. We believe that the current low reporting rate (for 

continuous releases) is not a matter of non-compliance, but rather a reflection of realistic interpretation of the "federally permitted" exemption by EPA 
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regional offices and industry. In addition, it should be recognized that many 

emission rates are calculated on a long-term average basis, many using EPA 

emission factors. These factors account statistically for an average percentage of potentially leaking sources. There is no practical way for the facility operator to determine if a reportable quantity (a very small volume 

compared to those processed) has or has not been released in any given 24 hour 

period from other than episodic situations. 

Several examples, discussed in more detail in our August 20 meeting, may help 

to better understand this point. In any complex organic or petrochemical 

process there are hundreds of valve stems, pump seals, pipe flanges, tank 

vents, wastewater basins, etc. that could emit regulated substances in small 

quantities. Any one or a combination of such sources could emit a reportable 

quantity in any given 24 hour period without the knowledge of the operator. 

These "fugitive" or "secondary" emission sources are not amenable to continuous monitoring and the monitoring that is performed in most instances is not 

quantitative. The only method currently available to measure mass emissions 

from such sources is to "bag" the source and sample the contents of the bag 

after a measured period of time. This very involved technique was developed 

and used by EPA to generate the factors used in determining long-term average 

emissions but is impractical for routine use. Short of enclosing the entire 

process and monitoring a single vent, a costly and impractical alternative for 

most processes, exact emissions from such sources cannot be determined on a 

day-to-day basis. 

Episodic releases from such sources are detectable by area workplace monitoring and alarms, ambient monitoring, visual observation, process instrumentation, etc. These releases are routinely reported. 

When defining the term "continuous", we urge the Agency to incorporate releases that are actually continuous as well as those releases that are predictable and anticipated during the normal operational cycle. 

CMA believes that the non-parametric method EPA is considering to determine 

"statistically significant increases" in continuous releases generally is a 

sound approach to define reportable excursions - particularly with the option 

to propose alternative methods. However, the method would not be a cure for 

the reporting problems that would be created by a narrow definition of the 

"federally permitted" exemption. The data required to use the method is 

rarely available or obtainable. Therefore, the method at most would be of 

limited practical utility. 

We also offer four specific comments regarding the non-parametric method. 

First, we noted that the first sentence of the method description states that 

the method was "based on a 95% confidence interval". We believe that a 

confidence level can only be expressed relative to a range of values. Second, 

the draft would allow substitution of alternate methods which are at least 60% 

sensitive. We do not believe a sensitivity of a statistical method can be 

determined unless the event to be detected is specified. The students "t 

test", for example, is used to compared two variables and determine if one is 

statistically greater than the other. Thus, we are unsure how the sensitivity 

of the proposed method or any proposed substitute can be determined for a 

single variable. Third, the proposed method will produce an average of one 
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report every 20 days for a randomly changing stable variable. Finally, some 

guidance must be developed for interpreting report frequency. For example, 

one report every 20 days could indicate no change and one per day would 

indicate steady change (increase), but where in between would action be 

indicated? 

CMA would like to suggest two Ideas that emerged from our review of the 

proposed method for the Agency's consideration. Our first idea is to limit 

reporting to those changes equal to or exceeding a reportable quantity. This 

would reduce reporting and would more closely knit the continuous reporting 

method to the episodic criteria. Another approach is based on a range of 

emission rates anticipated during a normal operating cycle. Whenever there 

was knowledge that the emission exceeded the top end of the range by an RQ, a 

NCR report would be required. 

SUMMARY: 

In summary, CMA recommends that: 

1. the federally permitted exclusion be clarified in the forthcoming 

guidance to limit reporting to those releases potentially requiring 

a response and not regulated or subject to regulation by other 

statutes. 

2. if enacted, the reporting requirements under Title III of the 

Superfund amendments (particularly Section 304 and Section 313) be 

considered prior to proposing guidance under 103(a) to avoid overlap 

between the two. For example, Section 103(a) could be limited to 

releases requiring a response, whereas Section 313 could be used to 

develop a comprehensive national data-base. 

3. the continuous release regulations be proposed in the context of 

providing more explicit guidance for the limited reporting properly 

taking place (as opposed to "saving" $669 million annually over 

reporting which "should be taking place"). 

If you have any questions please call me at 887-1313. 

Sincerely, 

<7-f^ M /fL~^ 

Jeffrey M. Reamy / 

Manager, Solid Waste Programs / 

CC: Mr. John Riley, Branch Chief, Emergency Response Division 

Ms. Elizabeth LaPointe, Office of the Asst. Adm.: OSWER 

Ms. Carrie Wehling, Office of General Counsel