P.1 

/o/7fo)Ff R~4 , 2. 

of source, special nuclear, or byproduct material, as 

those terms are defined in the Atomic Energy Act of 

1954, as amended, in compliance with a legally enforceable license, permit, regulation, or order issued 

-tr 

pursuant to the Atomic Energy Act of 1954, as 

amended. 

Senate Rep. No. 96-848, to accompany S. 1480, the Environmental Emergency 

Response Act, by the Committee on Environment and Public Works, 96th Cong., 

2d Sess., July 13,1980 

MM 

FniK.u.\i.i.r PKtiMmKn UEIJ-VSK 

[Response authorized, cost not assessed] 

Adoption of mi express Federal liability mechanism for releases 

pursuant to certain Federal permit systems seemed inappropriate nt 

tliis time. Such a proposition was particularly troulilesume for pcimils under section 402 of the Clean Witter Art liecanse the Congress 

had excluded them from the Act's section ."Ml linhility provision* in 

IPTfi. The rule of common law is that compliance with tt permit is not 

n defense to linhility. Mnivovrr, the ('unimv* IMH npvpr wiiil nr SIIJI. 

ge«ted that a Federal [icrniit nmounts to a license to create threats 

lo public health or the environment with legal immunity. However, 

in view of the large sums of money spent to comply with specific 

regulatory programs, linhility for federally permitted releases ought 

In lie determined liased on the facts of each individual case. Therefore, 

the reported hill authorizes response to federally permitted releases. 

Iml requires costs to lie assessed ngainst the permit holder under the 

liability provisions of other laws, not S. 14S0, 

[Response authority unaffected] 

Section 4(1) of the bill preserves the enforcement provisions of the 

regulatory laws. Permitted releases have some potential for causing 

harm and that in some emergency situations it will be difficult to dis-' 

tiiiifiisli lietween n permitted release and other sources. The President. 

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using the Fund, is expressly authorized to respond to problems caused 

hy federally [lermitted releases. Further, the Fund would In- available 

to pay response costs uilU (Inmnjji's cincrcil by thin' hill. Tim Fimil in 

recouping such costs') or any private damage act ions, must rely on 

other iaw—common law or Feilcral or State Statutory law—in lien of 

the liability provisions of section 4. The detcrinihatinii of exactly 

what liability standards, defenses, or other rules apply will lie made 

on a case-by-case basis pursuant to regimes other than that of S. 14^0, 

[Types ol federally permitted releases] 

The .letined term "federally permitted release" (section 2(b) (1R1) 

is a key element in the treatment of these releases under this bill. For 

purposes of this bill, it includes actions by the appropriate Federal 

agencies or under Federally approved Stale programs. Where the 

term "legally enforceable" is used in section 2(b) (ISl. to qualify for 

ex piion from liability for any federally permitted release, the 

relevant terms of such |<ertuit must lie legally enforceable. 

Following is n discussion of the releases encompassed liv the "federally pctiuiitcd release" drlinitinn. These releases HIT excluded from 

the liability and notification provisions of this legislation. 

The Committee continues lo recognize the dilliculty of marking 

clearly where the spill resiHm«c programs of section :tll and of the 

reported legislation apply and when- thn general discharge regulaloi v/|«'riuit programs of section 402 apply. This issue was central 

to an amrnibiient to Section :ill of the Clean Water Act enacted in 

107S and the federally permilled release provisions of the repotted hill 

preserve that Amendment and the rulemaking taken by the F.nvironmenial Protection Agency to carry it intocfTect. 

l'ccuuso of the broadened scopV of the reportiil hill, section 2(b) 

(|M) contains other similar clarifications regarding |>ollution control 

programs under the wet hinds proti-clion program of section 401 of 

the Clean Water Act, the Clean Air Act. subtitle C of the Solid Waste 

Disposal Act. Ihe Marine Protection Act. the Safe Drinking Water 

Act.and the Atomir Energy Act. 

[Clean Water Act § 402 permits) 

With rcs|n—l to regulating the discharge of water pollutants under 

section 402 of the Clean Water Act and the relationship of that 

program lo ha/.ardous substance «pill response nndcr seel ion HI I 

(on which Ihe response- provisions of this bill ate based), the Congress 

addressed the problem in HITS amendments lo the delinitinn of ••discharge"' in section .111. The fit^l three parts of the -eelinn 2(10(1") 

definition in this bill catty those amendments forward without 

change. Thus the explanation at that time and ihe impleiiieiiiing 

regulations of the F.nvironnicnlal Protection Agency arc continued. 

While the exemptions from liability for federally permitted 

releases are pencilled to give regulated parties clarity in their legal 

duties and responsibilities, these exemptions are not to operate lo 

create gaps in actions necessary to protect the public or the environment. Thus the reporting reipiii-enicitt under icetinn 4t>2 should lie 

amended by the Environmental Protection Agency to cause owners 

anil o|tcratnrs who release substances designated under section -III 

or this lull under circumstances which are now excbuleil from section :ill. tn re|vort under section 4(>2 in a milliner similar to that 

rr.|<iin-il under section :ill so that the appropriate slop- may U> taken 

tn protect, for instance, drinking water supplies oroihc r downstream 

WX| 

resources. The current 24 hour notice |ierio<l under'I he XPDES 

regulations should be amended to provide immediate notice in the 

event of a failure of a treatment or operating component which 

results in u. release, of a hazardous Mil-stance. Such a case recently 

occurred in Orangeburg, South Cnrolina. While exclusion from MI-. 

t-ion :ill was claimed, the company's notice, which was filed in a 

manner consistent with section 402, was loo late to protect downstream drinking water sources. This should IN* repaired bv the Knvironiiieutal Protection Agency in the regulations implementing the 

notice provisions of section 4I>2. 

Also because of its broadened sco|ie. it should lie clear that the 

liability provisions of S. 1480 would apply to any unauthorized di,. 

charges by any person into publicly-owned treatment works. Thus 

discharges of hazardous substances from mobile facilities which .-re 

unauthorized bv the publiclv-owncd treatment system (midnight 

ihiin|tcrs), or discharges of such substances from fixed facilities into 

sewer systems which are not authorized under a prcliratiucnt pro. 

gram are releases for purposes of this Act. never excluded ,-s federally pcrmlltcd releases, and the full authority and rfspimsiliililioi 

established by the bill would apply. 

Accidents—whatever their cause—which result in, or can reasonably he rx|H-cted to result, in releases of hazardous |KilluiaiUs would 

not lie exempt from the rc<|iiirrmcnts and liabilities of this bill. Thus 

fitvs, ruptures, wrecks and the like invoke the response and liability 

provisions of the bill. 

[Clean Water Act § 404 permits] 

The fourth clement of the definition covers |>ciinils flir divided 

or till material under seel ion 101 of the Clean Water Act. Permits 

issued under this process arc subjected lo a hazardous sulis'.auc? 

review, as rri|iiircd liy I lie Environmental Protection Agency, during 

the permitting process. Where hazardous sulrslancc* are likely lo lie 

present in dredged or fill materiul, testing may be required. Accordtug tn EPA regulations seel um 4U4 -icrmitx will I* granted onlv 

where evidence indicates that hazardous sidislsinrrn will nut result 

in substantial harm. Permittees who comply with the mpiircmcnt* 

for jiermit issuance and the conditions of thrir |iemiit would be 

cnventl by this |*>rtiou of the definition*. 

[Solid Waste Oisposal Act § 300S permits] 

Subparagraph (E) of tho definition addresses permits issued under section :f»i."> (Permits for Treatment, Storage or I)is|>nsal of 

Hazardous Waste) of the Solid Waste Disposal Act. The reported 

bill lightly limits the types of disposal site, releases that would lie 

covered bv ill's definition. First, only final |>c-ruiits arc included. 

Sites nr facilities which have interim status under section 31*15 (e) 

do nol adequately utilizr acceptable levels of technology, and do not 

i|.i..!if\ for tins exclusion. Second, lo he covered by this |orliou of 

ii.. d. li,,il em, the |ieiii,',l nj.jili. ;int must >-|« ifv the hi/aidmis sub 

stance to IK' released anil agree, to controls on such releases. For example, this subparagraph would not cover permits where the permitcc 

has built a dis|»isal siu toa design standard but for some reason it leaks 

a hazardous sulistanrc. For sucn a : itnnlion to utilize the exeinptioi. 

under this section the |>ennitlco would have, had to designate these 

releases and made them subject to a standard of practice, contro. 

procedure or bioassay limitation or condition, or other control 

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Similarly, a properly closed disposal site that subsequently leakei 

would not be covered by this definition (although such a site migh 

well bo covered by the post-closure liability portion of this bill). 

[Marine Protection, Research, and Sanctuaries Act §§ 102,103 permit: 

The sixth clcmrnt of the definition encontpusses permits under tl: 

ocean dumping section (so-iion l'rj) and the ocean dredging -cctio 

(section 103) of the Marine Protection, Research, and Sanctuarie 

Act. Thcso ocean dumping and ocean dredging permits are subjeetc 

to a hazardous substance review during the permitting process. Thu. 

compliance with requirements for permit issuance and the condition 

of a permit issued under these sections of the Marine Protection, R< 

search, and Sanctuaries Act would bo covered by this portion of tl. 

definition. 
P.2 

. » IJ 

[Sale Drinking Water Act permits) 

Tho seventh isort ion of the. definition addresses the Underground 

Injection Control program under Part C of the Safe Drinking 

Water Act. This provision exempts a release to the sub>trata of the 

Earth of a specific containment which is designated as hazardous 

under this bill, if such release is authorized and in compliance with the 

conditions of such authorization granted under the Underground 

Injection Control Program of the Safe Drinking Water Act. 

[Clean Air Act permits] 

Subparagraph (II) of tho definition covers several sections of the 

Clean Air Act, as amended, where they result in the control of air 

emissions of hazardous substances. In the Clean Air Act, unlike some 

other Federal regulatory statutes, the control of hazardous air pollutant, emissions call be achieved through a variety of means: express 

emissions limitations (such as control on the pounds of pollutant 

that may lie discharged from a source during a given time.); technology requirements (such us floating roof tanks on hydrocarbons 

in a certain vapor pressure range); operational requirements (such 

as start up or shut down procedures to control emissions during such 

o|>crulions); work practices (such as Ihe application of water lo-suppress certain particulates) ;or other control practices. Whether control 

of hazardous substance emissions is achieved directly or indirectly, 

the means must be specifically designed to limit or eliminate emissions 

of a designated hazardous pollutant or a criteria pollutant. This section of the federally permitted release definition includes any |iertuit 

or control regulation under one of the cited sections of the Clean Air 

Act. which has this effect. 

[Atomic Energy Act requirements] 

The ninth element of the definition addresses the Atomic Energy 

Act of I'.'.'il which establishes a comprehensive Federal regulatory 

program for specified uses and classes of nuclear materials. Unlike 

the other environmental statutes referred to in this amendment, the 

Atomic Energy Act limits any delegated regulatory role for State!) 

and their political sulxlivisions. The most notable exception is section 

274 (b). which authorizes the Nuclear Regulatory Commission to 

adopt agreements with individual Slates for transfer of regulatory 

authority over designated sourrc. byproduct, or special nuclear 

materials. 

Under either Federal or State regulatory regimes, relrascs of source. 

s|iccial nuclear, or byproduct materials that are within the terms of a 

license or permit issued by the Commission or by an agreement state 

are covered by this portion of the definition. The definition also 

applies to releases of designated nuclear materials, def.iied ill sections 

|50| 

lie. 11st. and Una of the Atomic Knergy Act of I!i.r>4. when those releases are made pursuant to Commission order. 

[Exempt from notification] 

The Committee does not intend for the notification elements of the 

bill to apply lo the federally permitted releases defined in section 2 

(h)(IH). The laws authorizing the permit and regulations that control these, releases provide fcr notification and such notification procedures should provide the same public lienelits—especially regarding 

timely response—as would lie provided in S. 14WI. Xnticels crucial to 

Ihe removal and remedial operations which are central to the reported 

bill. The federally |iermilted release exceptions are not directed at 

avoiding notice, but rather to make it clear which provisions of law 

apply to discharging sources. 

[Registered pesticide applications] 

There are some activities which are subject to Federal or State 

regulation which do not fall neatly into one of (lie programs established to protect a particular media such as air or water or land. One 

of these is the application of |>csticidcs—cs|iecially in agricultural 

practices. The bill provides Ihat damage or removal costs resulting 

from field applications involving pesticides which are registered 

under the Federal Insecticide. Fungicide, and liodenticide Act are not 

recoverable under the provisions of section 4 of S. 14X0. It should also 

be clear that the notice and penalty provisions do not apply to such 

routine field applications. Accidents or international disposals which 

result, in the release of a |>esticide in other than its intended field application would, of course, lie subject to the notice provision of the bill. 

Only in this manner could the preventive res|ionse mechanisms of the 

bill ojienite to protect public health. 

(Clean Water Act §311] 

With res|K-ct to spills and future releases. S. 14*0 builds upon and 

carries forward the preventive orientation of section 311 of the Clean 

Water Act. Thus the spill prevention control program—which has 

lieen so successful in the case of oil releases—should lie aggressively 

pursued by the Environmental Protection Agency and the Coast 

(itiard. The Committee is disturbed that the authority of section 311 

for the Secretary of Transportation to issue spill prevention programs for rolling stock and vessels has not been implemented. It is 

essential this authority be implemented immediately, especially witr 

rc.ijiird to t rucks. Imrges. and railroads. 

The Knvironmental Protection Agency should expedite the issuance of the spill prevention program applicable to designated hazardous substances. 

S. 1480 Staff Working Paper No. 2, Senate Committee on Environment and 

Public Works, June 2,1980 

[Contained no provisions comparable to Section 101(10) of the Act] 

* S. 1480 Staff Working Paper No. 1, Senate Committee on Environment and 

Public Works, Feb. 1,1980 

I B [Contained no provisions comparable to Section 101(10) of the Act] 

I 

I 

I 

I 

S. 1480 as introduced, July 11,1979 

[Contained no provisions comparable to Section 101(10) of the Act] 

S. 1341 as introduced, June 14,1979 

SEC. 4. The Federal Water Pollution Control Act, as 

amended, is further amended by adding at the end thereof the 

following: 

• • • . e 

Sec. 601: 

"(ee) 'release' includes, but is not limited to any 

spilling, leaking, pumping, pouring, emitting, emptying, 

discharging, escaping, leaching, or dumping into the 

with a permit under section 402 of this Act, (2) discharges resulting from circumstances identified and reviewed and made a part of the public record with respect to a permit issued or modified under section 402 

of this Act and subject to a condition in such permit, 

(3) continuous or anticipated intermittent discharges 

from a point source, identified in a permit or permit 

m environment, but excludes (1) discharges in compliance application under section 402 of this Act, which are