MlLU STATES ENVIRONMENTAL PROTECTION \GENO
                        WASHINGTON. DC :o4«o
                                                     OSWER « 9841.1

                            JUL I 6 1987
 MEMORANDUM

 SUBJECT:   Interim  Guidance  on  Use  of  Adainiscracive  Penalty
           Provisions  of  Section  109 of CERCLA and Section
           325  of SARA

 FROM:      Thomas L. Adams.  Jr. ly
           Assistant Administrator
                                    //
 TO:        Regional Administrators
           Regional Counsels
           Directors,  Regional  Waste Management  Divisions


     This  memorandum  provides  interim guidance  on the use of the
 new administrative penalty  provisions of  the Comprehensive
 Environmental  Response.  Compensation, and  Liability  Act  (CERCLA).
 <*2 U.S.C.  9601 et s eq. and  the Superfund  Amendments  and  Reauthori-
 zation Ace  (SARA; or  1986.  Pub.  L. No. 99-499.   Section  109 of SARA
 amended CERCLA by adding civil penalties  for violations  of certain
 provisions  of  CERCLA  or  agreements entered  into pursuant to the
 Act.  The  penalties may  be.assessed in an  administrative action or
 in a judicial  action.  SARA also created  the Emergency Planning and
 Community  Right-to-Know  Act of 1986.  Section 325 of Title III
 provides for civil and criminal  penalties  for violations of the
 notification and planning requirements of  that  Title.
            »
 Background

     Section 109 and  Section 325(b)'established  tvo  classes of
administrative penalties.   Those classes differ  trom each other
with respect to procedures  for assessing  and collecting penalties  -
and the maxiaua penalty  available.  EPA may assess Class I
administrative penalties of not  more  than  $25,000 per violation for
violations  of  the provisions specified in  Section TDT(a) and section
 325(b).  In determining  the amount of the Class I penalty. EPA must
consider the factors  specified in  Section  109(a)(3)  or Section
 325(b)(l)(C).  EPA aay assess  Class XI administrative penalties of
 not more than  $25,000 per day  for  each day the  violation continues
 for violations of provtsTons specified in Section  109(b) or Section
 325(b).  For subsequent  Class  II violations, the penalty may be not
 more than  $75,000  for each  day of  violation.

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                               - 2 -
      Seccion  109 and Section 325(b) also established different
 procedures for che two classes of penalties.   For Class I
 penalties under-Seccion 109 or Seccion 325 EPA muse provide nocice
 and opporcunicy for a hearing buc che proceedings are noc  subjecc
 co che Administrative Procedure Ace (APA).  EPA may subpoena
 witnesses and documents for Class I proceedings.   The person
 aggrieved by  che penalcy accion may seek judicial review in a
 United Scaces Discricc Courc.  In such a case, EPA nusc file in
 che courc a cercified copy of che record on which che penalcy
 was based.  OECM-Wasce Division is developing Class I penalcy
 procedures, and expecc co issue chese procedures  shortly.

      For Class II penalcies under Seccion 109 and Seccion  325,
 EPA muse provide nocice and opporcunicy for a hearing in
 compliance with Seccion 554 of che APA, 5 U.S.C.  554.  For Seccion
 109 penalties, che person aggrieved by che penalcy accion  may seek
 judicial review tn a United Scaces Courc of Appeals.  For Class  II
 penalcies under Seccion 325, che person aggrieved by che penalcy
 accion may seek judicial review in a United States District Courc.

      Class II proceedings are similar to formal adjudicatory
 penalcy proceedings conducced by the Agency under other
environmental statutes.  The Consolidated Rules of Practice,
promulgated by EPA at <»0 CFR Part 22, govern the administrative
assessment under the APA of penalties available under other statutes.
To make these rules applicable to Class II proceedings under Section
 109 and Seccion 325, OECM-Wasce Division will promulgate a rule
providing that che Consolidated Rules shall govern proceedings for
 the assessment of Class II administrative penalties under those
 provisions.

    The United States may als-o bring a civil action  in a district
court to collect penalties of not more than $25,000  per day for
 each  day of violation for violations of those provisions specified
 in Section 109(c) and in Section 325(b).  For subsequent violations,-
 EPA may seek penalties of up to $75,000 for each.day of violation.
 In addition to the Class I and Class II penalcies for violations
 specified in Section 325(b), Sections 325(a), (c), and  (d) provide
 for civil and administrative penalties for violating the require-
 ments specified in chose provisions.  The United States may  also
 seek  criminal sanctions under Section 103 of CERCLA  for violations
 of the release notification requirement.  SARA amended  Section  103
 of CERCLA by  increasing the maximum penalties for such  criminal
 violations.   Sections 325(b) and  (d) also provide for  criminal
 penalties.

 Current Procedures

      Prior co completion of  che  procedures  for Class I  penalcies
 and che promulgacion of che  rule amending the Consolidated Rules,

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                                - 3 -
 EPA may seek civil  penalties  under Section 109  or  Section
 325 under one of  cwo  approaches.   First,  the  Regions nay file
 administrative actions  assessing  the Class I  or Class  II penal-
 ties of Sections  109  or 325(b)  or the administrative penalties
 in  Sections  325(c)  and  325(dJ.   In filing such  actions, the Region
 on  an interim basis should  comply with the Consolidated Rules, 40
 CFR Part 22.   After the Class  I penalty procedures are completed.
 Class I administrative  penalties  should be assessed in compliance
 with those procedures.   The Regions  may also  prepare a judicial
 referral for  civil action or a judicial referral for criminal
 action.   Orders under Section  325(a)  may  be enforced after a
 judicial referral.

      In the near  tern,  EPA will be using  Section 109 most
 frequently to seek administrative penalties for violations of
 the  notice requirements of Section 103(a)  and (b).  Until further
 guidance is available,  we have attached for your use a chart
 showing che elements needed to prove a violation of Section 103(a)
 or  (b),  background  information  in the reportable quantities provi-
 sions,  and a  sample certification by a person at the National
Response Center that no notice was received.  More detailed
guidance on the assessment of  administrative  penalties under
Sections 109  and  325 is now being developed by  OECM-Waste Division
 and the Office of Waste Programs  Enforcement.   For further infor-
mation  contact Frances  McChesney  at  FTS 475-9437.

Attachments

 cc:   Lisa  K.  Friedman
      Gene  A.  Lucero
      Regional Counsel Hazardous Waste Branch  Chiefs

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                            PRIHA FACIE  CASE
            SECTION  103(8) CERCLA.  M? U.S.C. SECTION 9603(1)
                              NOTIFICATION
 FACT TO ii PROVED      STATUTORY BASIS
                             CONNLNTS
PERSON IN CHARGE or
VESSEL OR FACILITY

HAS KNOWLEDGE or
REICASC or

HAZARDOUS SUBSTANCE
103U). (B)
103U). (B)
1G3U). (B)

I03U). (B)
 EVIDENCE  SHOWING PERSON is IN
 CHARGE

 KMM«r.E OF RB.EASF. NAY BF, JNFRRRFTi ;
STANDARD IN CIVIL CASKS I£SS Til AN
 IN CRIMINAL CASES

 EVIDENCE  or RELEASE

 EVIDENCE  THAT SUBSTANCE
 RELEASED  IS HAZARDOUS

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                                        CASE
            SECTION 103(i) CERCLA. M2 U.S.C. SECTION 9603(8)
                              NOTIFICATION
                               (CONTINUED)  .
      10 ei PROVED
IN REPORTADLE
QUANTITY
WHO FAILS TO REPORT
THE RELEASE
STATUTORY BASIS

  I03UK (B)
  103(1)
           COMMENT?
EVIDENCE THAT RELEASE WAS
EQUAL TO OR EXCEEDED
REPORTABLE QUANTITY

CERTIFICATION BY NRC THAT IT
UAS NOT NOTIFIED

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                BRIEFING ON

    REPORTABU  QUANTITIES  IMPLEMENT AT ION
                     BY
        EMERGENCY RESPONSE DIVISION
 OFFICE or EMERGENCY AND REMEDIAL RESPONSE
OrricE or SOLID WASTE AND EMERGENCY RESPONSE

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                             TOPICS
STATUTORY AUTHORITY
PURPOSE or RE PORT me OUANTITITES
RO ADJUSTMENTS   .
RO ADJUSTMENT NETHOOOIOOV
RELATIONSHIP BETWEEN CERCLA AND CWA
RCfORTINO RCOUIREHCNTS
DCTCRIUNING UHCN AN RO HAS BCCN RdCASCD
FCDCRAUV PCRIIITTCD AND CONTINUOUS RCUASF RCPORTIN8 EXEMPTIONS

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                           STATUTORY AUTHORITY
•   CERCIA  SECTION 101 UM) DEFINES 'HAZARDOUS SUBSTANCE* BY REFERENCE  TO
    OTHER ENVIRONMENTAL STATUTCS. INCLUDING!

    —  CLEAN WATER ACT (CWA) SECTIONS  311  AND 307 •
    —  CLEAN AIR ACT (CAA) SECTION ll?i
    --  RESOURCE  CONSERVATION AND RECOVERY  ACT (RCRA) SECTION 3001 •  AND
    —  Toxic SUBSTANCES CONTROL ACT  (TSCA)  SECTION 7.

t   IN ADDITION.  THE ADMINISTRATOR NAS  THE  AUTHORITY UNDER SECTION  102 TO
    DESIGNATE  ADDITIONAL HAZARDOUS SUBSTANCES THAT "WHEN RELEASED INTO THE
    ENVIRONMENT NAY PRESENT SUBSTANTIAL DANGER TO THE PUBLIC HEALTH  OR
    WELFARE OR THE ENVIRONMENT.*  I. PA IS IN 11 IK. IWICF.SS OF IWSICNATINC rXTRRMF.I,Y
    HAZARDOUS SUBSTANCES OF TITI,F, ill OF SARA AS IIAZAKIXNIS ttlHSTANnfiS ANI) -SfTilNC  W)f..
t   THERE ARE  CURRENTLY 70S HAZARDOUS SUBSTANCES. INCLUDING INDIVIDUAL
    CHEMICALS  AND UASTE STREAMS.  Till- S|i|\STAM:i.S ARK UNTIL AT 40 CFK PART T02.

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                      STATUTORY AUTHORITY
                          (CONTINUED)
UNDER THE REGULATIONS IMPLEMENTING SECTION 103. RELEASES or A
NAIARDOUS SVDSTARCE WITHIN A 2M-HOUR PERIOD IN A QUANTITY COUAl TO OR
GREATER THAN ITS 'REPORTARLC QUANTITY" MUST DE REPORTED IMMEDIATELY TO
THE NATIONAL RESPONSE CENTER (NRC).  CRIMINAL PENALTIES NAY RE IMPOSED
TOR FAILURE TO REPORT PROPERLY.

REPORTARLE OUANTITITES (RQs) ARE STATUTORILY SET AT I POUND OR AT THE
RO ESTARLISHED UNDER CWA SECTION 311.

THE ADMINISTRATOR NAS THE AUTHORITY UNDER SECTION 102 TO ADJUST RV
REGULATION STATUTORY ROs.
                            - 3 -

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                   PURPOSE OF REPORTABLE QUANTITIES
•   RQS SIRVC AS A TRIGGER FOR NOTIFICATION TO THE FEDERAL GOVERNMENT OF A
    HAZARDOUS SUBSTANCE RELEASE.

t   ROS 00 NOT NECESSARILY REFLECT THE OE6REE OF RISK POSED BY HAZARDOUS
    SUBSTANCES.

t   ONCE A RELEASE IS RCfORTEO. EPA DETERMINES WHETHER A FEDERAL FIELD
    RESPONSE IS WARRANTED.

•   NOT ALL REPORTABLC RELEASES NECESSITATE A FIELD RESPONSE! CONVERSELY.
    SITUATIONS CAN OCCUR WHERE A RELEASE OF LESS THAN AN RQ CAN RESULT IN
    RISKS TO PUBLIC NEALTH OR UELF.ARE OR THE ENVIRONMENT.

B   EXCEPT FOR FEDERALLY PERMITTED RELEASES. RELEASERS ARE LIABLE FOR
    RESPONSE COSTS MO NATURAL RESOURCE DAMAGES RESULTING FROM A HAZARDOUS
    SUBSTANCE RELEASE. REGARDLESS OF THE QUANTITY RELEASED.

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                             RQ ADJUSTMENTS
                                                           i
t   RO ADJUSTMENTS ALLOW 00VERNNENT OFFICIALS TO FOCUS ATTENTION ON THOSE
    RELEASES TNAT NAY POSE  THE  GREATEST THREAT TO PUBLIC HEALTH AND
    WELFARE  AND THE ENVIRONMENT.

t   RO ADJUSTMENTS FOR 387  NAIARDOOS SOBSTANCES MERE PROPOSED IN AN NPRM
    PUBLISHED IN THE FEDERAL  RtCISTfB ON MAT 25. 1983.  ON APRIL M. 1985.
    EPA PUBlISNCOt

    --  A FINAL  RVLE ADJUSTING  ROS FOR 310 OF THE HAIARDOUS SUBSTANCES FOR
        UHICH RO ADJUSTMENTS  MERE  PROPOSED IN MAT I983| AND

    —  AN NPRM  PROPOSING RO  ADJUSTMENTS FOR 105 ADDITIONAL CERCLA
        NAIARDOUS SUBSTANCES.

t   ROS OF THE REMAINING  260  SUBSTANCES (PRIMARILY POTENTIAL CARCINOCENS)
    ARE 1C INO ADJUSTED  AND  HILL FORM THE  BASIS OF A THIRD NPRM.  IHJS FUR
    lirrfOTIAL CARC INnGHIS AM) RAIMnMM.IIttS WIIJ, UK IWm/An-J) IN IW7.
•   FUTURE RO RNLENAKINBS WILL PROVIDE  CLARIFICATION OF THE REPORTING
    ENENPTIONS FOR CONTINUOUS RELEASES  AND FEDERALLY PERMITTED RELEASES.
    TllffiF RinAMKINHS WIN, ItF. IKnHRf-ATU) IN  IOH7.

                                 -  S -

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               RQ AS TRIGGER FOR RELEASE NOTIFICATION
                                  REPORT
                                 REQUIRED
                               FROM PERSON
                                IN CHARGE
                                                 NRC	
   ALERT APPROPRIATE
V      AGENCIES:
'   EPA/OSC6 REGIONS.
    STATE. AND LOCAL
       RELEASE OF
 HAZARDOUS SURSTANCES
(Air. Graaad Watar. Sailaet
    Watar. Aa4 Laa4)
                                                                   4
                                                           DETERMINE IF NEED
                                                           EXISTS FOR FIELD
                                                           RESPONSE ACTION
                                NO REPORT
                                REQUIRED *
                                                  NATIONAL RESPONSE CENTER
                                                       (IN) 424 - 1112

                                                 WASHINGTON. D.C. METRO AREA
                                                       (212) 421 - 2175
» MMiis MAY if aisrsasiBtf raa atsraatf cam aa
  EVER If TNI AMVtjf ailEASEa IS IISS THAN THE APPUCABll
                                               aisavaci

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                       RQ ADJUSTMENT METHODOLOGY

t   TNC RQ AtJNSTNCNT ffCTHOOOLOCY IS DASCD ON SCICNTiriC AND TCCHHICAL
    ANALYSIS OF TNC CHARACTttlSTICS OF THE HAZARDOUS SUBSTANCES.

•   THf PROPOSED RO ADWTHENTf NSC CRITERIA THAT FOCUS ON A SUBSTANCE'S
    TOXICITV AND ITS CHCNICAL CHARACTERISTICSt

    —  AONATIC TOIICITYl
    —  MANUALIAN TOKICITV (ORAL. DCRNAL. INHALATION)i
    —  ICNITAOILITVi
    —  RCACTIVITTi
    -  CHRONIC TOXICITTI AND
    --  CARCINOCCNICITV.

t   ROS CAN DC AOJBSTCO UPWARD ONC LCVCL DASCD ON DIOOCCRADADILITV.
    HYDROLYSIS. OR PHOTOLYSIS.

0   EACH HA1ARDODS SNDSTANCC IS ASSUMED ONC RO APPLICABLE TO RCLCASCS TO
    ALL NCDIA (LAND. AIR. MATER).
                                 - 6  -

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             RflATlOMSHIP KTHtTM CERCLA AND CWA
THE rououiw ASPECTS or  TMI CWA's  APPROACH TO DEALING WI,TH RELEASES
Or HAZARDOUS SUBSTANCES HAVE BEEN ADOPTED UNOEi CCRCLAs

—  THE FIVE RQ IEVEIS or t. 10. 100.  1000. AW 5000 POUNDS •
—  THE niiiunt MULE  ron  ocTCRHmiNo  IF NOTIFICATION is REQUIRED FOR
    HI I WES OR SOLUTIONS CONTAINING  HAZARDOUS SUBSTANCES I

—  THE PI-NOUR PERIOD FOR HEASURING  WHETHER A REPORTABLE QUANTITY OF
    A HAZARDOUS SUBSTANCE HAS BEEN RElEASEOi AMD

—  THE REQUIREMENT THAT  RELEASES BE  REPORTED IRHEDIATEIT TO THE NRC.
                            - 7 -

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                  RELATIONSHIP BE MEN CERCLA  AMD CUA
                             (CONTINUED)
0   THE CUA IS UNITED IN SCOPE AND DIFFERS FROM CERCIA IN THE FOLLOWING
    RESPECTS!

    —  CERCLA COVERS RELEASES INTO All ENVIRONMENTAL MEDIA. UNLIKE THE
        CUA WHICH COVERS ONLY NAVIGABLE WATERSi

    --  CERCLA DOES NOT COVER Oil SPILLS. NNLIKE THE CUA WHICH REQUIRES
        Oil SHEENS TO DE REPORTED TO THE NRCi

    —  CUA SECTION 311 RQS ARE DASED ON AOUATIC TOIICITYi BECAUSE CERCLA
        APPLIES TO All ENVIRONMENTAL MEDIA. ROS BASED SOLELY ON AOUATIC
        TOUCHY ARE NOT SUFFICIENT FOR THE CERCU NOTIFICATION AND
        RESPONSE PROGRAMi AND

    —  CUA SECTIONS 311 AND 307 TOGETHER COVER ONLY A PORTION OF THE
        SUBSTANCES DEFINED AS HAZARDOUS UNDER CERCLA.
                                   8

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                        REPORTING REQUIREMENTS
•   MECHANICS or NOTIFICATION.  As SOON AS A RELCASCR MAS KNOWLCDCC THAT A
    REPORTAILC RCICASC MAS OCCURRCD. THC NRC MUST BE CALLS') IMMEDIATELY.
    SUBPARTS C AW f OF THC PROPOSCO NCP ALLOW THC RCLCASCR TO NOTIFY THC
    OCSIQNATCD OSC IN THC APPROPRIATC EPA RCGION AND U.S. COAST GUARD
    DISTRICT IF NOTIFICATION TO THC NRC is IMPRACTICAL.

•   PCRSONi COVERED.  PCRSONS IN CHARGE OF A FACILITY OR VESSEL ARC
    RCONIRCD TO NOTIFY TNC NRC OF RCPORTABU RCICASCS.

    —  "FtRSONS IN CHARGE" CAN BC INTCRPRCTCD TO INCLUDE INDIVIDUALS AS
        WELL AS PUBLIC. PRIVATE. AND 60VCRNNCNT ENTITIES.

    —  •FACILITY" is BROADLY DEFINED FOR LAND-BASED STATIONARY SOURCES
        ANB VEHICLES.

    -  "VCSSCL* IS ALSO IRvADLY DCFINCD TO INCLUDC PRACTICALLY ANYTHIN6
        THAT FLOATS.

    —  THC HA10R CXCCPTIONS TO THCSC DEFINITIONS ARC CONSUMER PRODUCTS IN
        CONSUMER USC.
                                 -  9 -

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                    REPORTING REQUIREMENTS
                          < CONTINUED)
                                                      !
           COVERED.  'All 705 HAZARDOUS SUBSTANCES LISTED IN THE APRIL
1. I98S FINAL MIC ARC COVCRCDi ADDITIONAL SUB STANCES NAY 1C ADOCD.
(OSW INTENDS TO ADO ABOUT 120 MORE HAZARDOUS WASTES TO THE RCRA
SECTION 3001 LIST IN TNC NEAR FUTURE.)  SUBSTANCES THAT ARE NOT LISTED
IN THE FINAL RULE ALSO MAY IE HAZARDOUS i

—  SUDSTANCES ARE NOT LISTED NNDER ALL POSSIBLE NAMES i AND

—  WASTES WITH ICRE CHARACTERISTICS ARE HAZARDOUS dr NOT
    SPECIFICALLY LISTED THESE WASTES HAVE AN RO OF 100 POUNDS).

RELEASES COVERED.  THE DEFINITION OF RELEASE COVERS VIRTUALLY ALL WAYS
THAT S VI STANCES HAY ENTER THE ENVIRONNENT.  HOWEVER. FOUR EXEMPTIONS
ARC PROVIDED UNDEN SECTION 101(22) i

—  RELEASES WHOLLY CONTAINED WITHIN A BUILDING OR STRUCTURE •
--  MOBILE SOURCES OF AIR EMISSIONS*
--  SOURCE. DV-PRODUCT. AND SPECIAL NUCLEAR MATERIAL i AND
—  NORMAL APPLICATION OF FERTILIZERS.
                            - 10 -

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           DETERMINING WHEN AM RQ HAS BEEN RELEASED
REPORTIM« PERIOD*  CERCLA ADOPTS ZM-HOURS AS THE PERIOD TO DETERMINE.
FOR NOTIFICATION PURPOSES. WHITHER AN RO HAS BEEN RELEASED.

Mi IT iint RULE.  RELEASES or MIXTURES OR SOLUTIONS RUST BE REPORTED ir A
COMPONENT HAZARDOUS SUBSTANCE OF THE MIXTURE IS SPILLED IN AN AMOUNT
EOUAL TO OR CHEATER THAN ITS RO.

—  ROS OF DIFFERENT SUBSTANCES IN A MIXTURE ARE NOT ADDITIVE. SO THAT
    SPILLING A MIXTURE CONTAINING HALF AN RO OF ONE SUBSTANCE AND HALF
    AN RO OF ANOTHER SUBSTANCE DOES NOT REQUIRE A REPORT.

-  WHEN THE IDENTITIES AND CONCENTRATIONS OF ALL SUBSTANCES IN A
    MIXTURE ARE NOT KNOWN. THE RQ THAT APPLIES TO THE MIXTURE IS THE
    LOUEST RQ OF THE COMPONENT SUBSTANCES.

MULTIPLE RELEASES.  WHEN REPORTABLE RELEASES OF THE SANE HAZARDOVS
SUBSTANCE ARE OCCURRING AT SEVERAL LOCATIONS IN A FACILITY AT THE SAME
TINE. ONLT ONE REPORT IS .REQUIRED RATHER THAN MULTIPLE REPORTS.
                            - II -

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    FEDERALLY REMITTED AND CONTINUOUS RELEASE REPORTING
t   SECTION 103 PROVIDES A COMPLETE REPORTING EXEMPTION FOR FEDERALLY
    PERMITTED RELEASES AND A UNITED REPORTINC EXE
    RELEASES.  HIE RtlUMAKINn WIN, RF. niN.lftlEI) IN IW7.
PERMITTED RELEASES AND A UNITED REPORTINC EXENPTION TOR CONTINVOVS
    THE UNITED CIENPTION FOR CONTINUOUS RELEASES APPLIES TO RELEASES THAT
    ARE 'CONTINUOUS* AND "STARLE IN OHANTITV AND RATE.* AND FOR WHICH THE
    APPROPRIATE INITIAL REPORTS NAVE IEEN SHRHITTEO.

    RELEASES THAT NEET THESE CONTINVOVS RELEASE CRITERIA NEED ONLY IE
    REPORTED ANNIALLT. OR WHEN A 'STATISTICALLY SIGNIFICANT* INCREASE IN
    THE ANOUNT RELEASED OCCURS.

    SECTION 101 f10)  or CERCU DEFINES RELEASES THAT ARE 'FEDERALLY
    PERMITTED.*  THESE RELEASES ARE COVERED DY SPECIFIED PERMITS OR
    RECVIATIONS NNDER CUA. RCRA, CAA. THE MARINE PROTECTION. RESEARCH.  AND
    SANCTVARIES ACT. THE SAFE DRINKIMG WATER ACT. AND THE ATONIC CNEROV
    ACT.
                                -  12 -

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