Federally Permitted Release

Section 304 of Title III of the Superfund Amendments and Reauthorization Act of 1986 (SARA Title III) and section 103 0f the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) require that facilities report certain releases of hazardous substances and extremely hazardous substances (EHSs) to the environment if they are above the reportable quantity for that substance.  Releases are not reportable if they are "federally permitted."


For several years, industry has been asking that EPA provide guidance that defines "federally permitted" release, specifically as that term applies to releases to the air.  On April 17, 2002, EPA published in the Federal Register the final "Guidance on the CERCLA Section 101(10)(H) Federally Permitted Release Definition for Certain Air Emissions."  This guidance supersedes the Interim Guidance, which is now withdrawn.  The following is a summary of the guidance.  Please refer to the Federal Register notice for the complete text.


Draft Summary of EPA's Final Guidance

(This summary is DRAFT pending EPA's review of the text.)


The final guidance is only a general guide and does not impose new legally binding requirements on EPA, states, or the regulated community, and might not apply to particular situations depending on the circumstances.  In general, the guidance considers releases to be federally permitted if control of the hazardous air pollutant emissions is achieved in accordance with the Clean Air Act (CAA) by express emission limitations, technology requirements, operational requirements, work practices, 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.


Minor sources are those sources that are not subject to CAA permitting requirements because the emissions are below an annual threshold limit.  Minor sources also include sources that comply with emission (or potential to emit) thresholds established by state regulations that are federally enforceable.  Releases of hazardous substances or EHSs from the normal operations of minor sources are considered federally permitted because they are subject to the threshold limit imposed by law or regulation.


Emissions that exceed federally enforceable permit limits or control regulations are not federally permitted.  If the permit limit is exceeded during normal operations of the source, then only the amount by which the limit is exceeded is counted toward the amount of the reportable release.


Accidents, whatever their cause, which result in, or can reasonably be expected to result in releases of hazardous pollutants would not be exempt from the reporting requirements.  Facilities should report the entire release if the release is not part of the facility's normal operations (i.e. caused by an accident or malfunction, or is otherwise an unanticipated release) and the total amount of the release is at or above the reportable quantity of a hazardous substance or EHS.


The enforcement discretion that EPA originally issued on February 15, 2000, with regard to violations that might be affected by the federally permitted release exemption has been extended until October 14, 2002 , unless the release is:

(1)   unanticipated, such as an accident or malfunction;

(2)   in excess of a permit limit or control regulation;

(3)   from an emergency release valve;

(4)   from a source that is grandfathered and not subject to CAA permits or control regulations; or

(5)   from a source that is otherwise exempt and not subject to any federally enforceable CAA permit or control regulation.


Finally, the guidance states that "The Agency supports the proposal of an administrative reporting exemption for certain NO and NO2 air releases which could result in these releases not being required to be reported under CERCLA section 103 and EPCRA section 304.  EPA will move forward with the proposal as soon as resources become available.  Until the process for an administrative reporting exemption is complete, or until we publish a notice stating otherwise, we will exercise enforcement discretion and not enforce against owners/operators or persons in charge for failure to report air releases of NO and NO2 that would otherwise trigger a reporting obligation under CERCLA section 103 and EPCRA section 304, unless such releases are the result of an accident or malfunction."


If you have questions regarding the "Guidance on the CERCLA Section 101(10)(H) Federally Permitted Release Definition for Certain Air Emissions" or the associated enforcement discretion, please contact Beth Burchard, US EPA HQ at (202) 564-4177.