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Guidance on the CERCLA Section 101(10)(H) Federally Permitted Release Definition for Clean Air Act “Grandfathered” Sources

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Information about this document as published in the Federal Register.

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AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice.

SUMMARY:

EPA is publishing as an appendix to this notice a guidance on the CERCLA section 101(10)(H) federally permitted release definition as it applies to grandfathered sources under the Clean Air Act (CAA).

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FOR FURTHER INFORMATION CONTACT:

Visit the OECA Docket Web Site at www.epa.gov/​oeca/​polguid/​enfdock.html or contact the RCRA/UST, Superfund and EPCRA Hotline at (800) 424-9346 or (703) 412-9810 in Start Printed Page 19751Washington, DC area. For general questions about this guidance, please contact Lynn Beasley at (703) 603-9086 and for enforcement related questions, please contact Ginny Phillips at (202) 564-6139 or mail your questions to: U.S. EPA, 1200 Pennsylvania Ave., Washington DC, 20460, attention Lynn Beasley, mail code 5204G.

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SUPPLEMENTARY INFORMATION:

Purpose of this Notice

This notice announces guidance discussing the application of the federally permitted release exemption to air emissions from sources that are “grandfathered” under the Clean Air Act (“CAA”). The federally permitted release exemption pertains to the reporting requirements under two federal emergency response and public right to know laws: section 103 of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), as amended, 42 U.S.C. 9603, and section 304 of the Emergency Planning and Community Right-to-Know Act (“EPCRA”), 42 U.S.C. 11004. Federally permitted releases are defined in CERCLA section 101(10), which specifically identifies certain releases that are permitted or controlled under several environmental statutes. These releases are exempt from the notification requirements of CERCLA section 103 and EPCRA section 304. CERCLA section 101(10)(H) identifies releases that are exempt from reporting because they are subject to permits and regulations under the CAA.

On December 21, 1999, we published in the Federal Register the “Interim Guidance on the CERCLA section 101(10)(H) Federally Permitted Release Definition for Certain Air Emissions” (“Interim Guidance”). The Interim Guidance discussed several issues regarding the application of the federally permitted release exemption to air releases, including whether the exemption applies to releases from grandfathered sources. We requested comment on the Interim Guidance and held a public meeting, giving the public an opportunity to raise their concerns about these issues. On April 17, 2002, the Agency published the “Guidance on the CERCLA section 101(10)(H) Federally Permitted Release Definition for Certain Air Emissions,” (67 FR 18899). This Guidance responded to the concerns raised by commentors and superceded the Interim Guidance. The Guidance, however, did not address the question of grandfathered sources and federally permitted releases. The document we publish today discusses grandfathered sources. This document reflects our consideration of the comments submitted on the Interim Guidance regarding that issue, general concerns raised by previous Federal Register notices on the definition of federally permitted release, and our own experience in implementing the reporting requirements under CERCLA section 103 and EPCRA section 304. This guidance also incorporates principles articulated in EPA administrative adjudications.

This guidance does not impose new reporting requirements or change the types of releases which are required to be reported under CERCLA section 103 and EPCRA section 304 or the implementing regulations at 40 CFR parts 302 and 355. The legal authority for the reporting requirements arises from those statutory and regulatory provisions, as well as the statutory provisions on federally permitted releases, not from this guidance. Further, whether a particular air release of a hazardous substance or extremely hazardous substance is exempt from CERCLA section 103 and EPCRA section 304 reporting requirements requires a case-by-case determination based on the specific applicable permit language or control requirements. This guidance has no effect on CAA permit requirements.

The Office of Solid Waste and Emergency Response and the Office of Enforcement and Compliance Assurance jointly issue this guidance.

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Dated: April 4, 2002.

Marianne Lamont Horinko,

Assistant Administrator for Solid Waste and Emergency Response.

Dated: April 11, 2002.

Sylvia K. Lowrance,

Acting Assistant Administrator for Enforcement and Compliance Assurance.

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Appendix A—Guidance on the CERCLA Section 101(10)(H) Federally Permitted Release Definition for Clean Air Act “Grandfathered” Sources

Section 103 of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) and section 304 of the Emergency Planning and Community Right-to-Know Act (“EPCRA”) require that facilities notify federal, state and local authorities of releases of hazardous substances, if the amount of the release reaches a designated reportable quantity. Federally permitted releases, as defined in CERCLA section 101(10), are exempt from the CERCLA and EPCRA release reporting requirements. Federally permitted releases are certain releases that are permitted or controlled under several environmental statutes. CERCLA section 101(10)(H) identifies releases that are exempt from reporting because they are subject to permits and regulations under the Clean Air Act (“CAA”). This guidance document addresses the federally permitted release exemption as applied to releases from grandfathered sources under the CAA.

CERCLA section 101(10)(H) defines federally permitted releases under the CAA as: 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 (and not disapproved by the Administrator of the Environmental Protection Agency), including any schedule or waiver granted, promulgated, or approved under these sections.

42 U.S.C. 9601(10)(H)(internal citations omitted). The Senate committee report explained the CERCLA definition of federally permitted release for air emissions:

In the Clean Air Act, unlike some other Federal regulatory statutes, the control of hazardous air pollutant emissions can be achieved through a variety of means: express emissions limitations (such as control on the pounds of pollutant that may be discharged from a source during a given time); technology requirements (such as 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 operations); work practices (such as the application of water to 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.

Senate Rep. 848, 96th Cong., 2d Sess. 49 (1980).

Generally, releases from grandfathered sources do not meet the definition of federally permitted releases, because Congress exempted those sources, rather than imposing permits or control regulations on them. Congress, in enacting several of the CAA programs, did not require existing pollution sources (unless modified) to install pollution controls. For example, certain requirements of the New Source Performance Standards Program apply specifically to new sources. See 42 U.S.C. 7411(b). Exempted existing sources are known as “grandfathered” sources under Title I of the CAA. Congress structured the CAA to force pollution control technology in a cost-effective manner. Thus, the decision not to require those sources was primarily based on economic considerations, i.e., when pollution control technology could be efficiently and cost-effectively engineered into plants. See, for example, H.R. Rep. No. 95-294, at 185. For this reason, a facility's status as a grandfathered source does not necessarily mean that emissions from this facility do not pose a public health hazard.

To the extent that the releases from grandfathered sources are not subject to permits or control regulations, they generally will not meet the CERCLA section 101(10)(H) definition of federally permitted release based on the status of the facility as grandfathered. However, a source that is exempt from a CAA requirement because of its grandfathered status may be subject to Start Printed Page 19752other applicable CAA permits or regulations. If there are federally enforceable permits or control regulations issued under the CAA provisions cited in CERCLA 101(10)(H) that apply to releases of hazardous substances from a grandfathered source, despite the grandfathered source exemption, those releases may qualify as federally permitted releases under CERCLA section 101(10)(H).

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[FR Doc. 02-9914 Filed 4-22-02; 8:45 am]

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