ANALYSIS OF CONTINUOUS RELEASE
NOTIFICATION STRATEGIES FOR THE
SUPERFUND PROGRAM
A Report to the
Oil and Hazardous Materials Spills Branch
Office of Research and Development
and
Emergency Response Division
Office of Emergency and Remedial Response
United States Environmental Protection Agency
Under Subcontract to
Rockwell International
EPA Contract 68-03-3014
February 1, 1982
ICF INCORPORATED 1850 K Street. Northwest,
Suite 950, Washington, D. C. 20006
-------
ANALYSIS OF CONTINUOUS RELEASE NOTIFICATION
STRATEGIES FOR THE SUPERFUND PROGRAM
A Report to the
Oil and Hazardous Materials Spills Branch
Office of Research and Development
and
Emergency Response Division
Office of Emergency and Remedial Response
United States Environmental Protection Agency
by ICF Incorporated
Under Subcontract to
Rockwell International
EPA Contract 68-03-3014
February 1, 1982
-------
PREFACE
The ICF staff for this project have prepared this draft report for
discussion purposes only. It does not represent the policy of the U.S.
Environmental Protection Agency (EPA) and has not been reviewed by EPA or by
Rockwell International, the prime contractor. Please do not quote or cite
this draft.
The ICF project staff are pleased to acknowledge the assistance and
support of the Rockwell International staff, the EPA Edison, New Jersey ORD
Laboratory staff, and the EPA headquarters staff who have contributed to our
understanding of the issues raised in this analysis. We are especially
grateful to Dr. Bart Tuffly, Dr. Wayne Stone, Dr. Jack Kooyoomjian, Mr. James
Lounsbury, Mr. Leo McCarthy, Mr. John Riley, Mr. John Cross, and Ms. Barbara
Hostage. We also very much appreciate the time spent with us in interviews
and the assistance given by other members of the EPA staff, the Department of
Transportation staff, the Nuclear Regulatory Commission staff, the Food and
Drug Administration staff, and representatives of industry and environmental
organizations.
The ICF project staff for this report include Jim Janis, Project Manager;
Leslie Allen, Carol Andress, Michael Barth, David Bruce, Michael Goldman, Marc
Lieber, William Lusk, Betsy Marshall, Sara Nielsen, and Mary Sexton.
ICF INCORPORATED
-------
TABLE OF CONTENTS
Page
EXECUTIVE SUMMARY ES-1
CHAPTER 1: BACKGROUND 1-1
1.1 CERCLA Requirements 1-2
1.2 Purpose and Approach of the Report 1-2
1.3 Section 103(a), (b), and (f) 1-3
1.4 Statement and Scope of the Problem 1-4
1.5 Special Topics Related to Continuous.Release Notification 1-5
1.5.1 Designation Under Section 102 and
Reportable Quantities (RQs) 1-5
1.5.2 Distinctions Based on Process or Industry 1-6
1.5.3 Distinctions Based on Substances Released 1-6
1.5.4 Federally Permitted Releases 1-7
1.6 Organization of the Report 1-8
CHAPTER 2: THE KEY ISSUES POSED BY CONTINUOUS RELEASE NOTIFICATION ... 2-1
2.1 Purposes of Continuous Release Notification 2-1
2.2 Releases That Qualify for the Section 103(f)(2)
Exemption 2-5
2.2.1 Definition of "Continuous" 2-6
2.2.2 Definition of "Stable in Quantity and Rate" 2-8
2.2.3 Definition of "Period Sufficient to Establish
the Continuity, Quantity, and Regularity" 2-10
2.3 When is Reporting and Monitoring Required of Releases
Qualifying tinder Section 103(f)(2) 2-12
i
ICF INCORPORATED
-------
TABLE OF CONTENTS (continued)
£SSe
2.3.1 Possible Interpretations of "Statistically
Significant Increase in the Quantity ... Released" .... 2-13
2.3.2 Possible Interpretations of "Annually, or at
Such Time as There is any Statistically
Significant Increase" 2-14
2.3.3 Requiring No Monitoring of Continuous Releases - 2-15
2.4 Summary 2-15
CHAPTER 3: ALTERNATIVE PROGRAM STRATEGIES 3-1
3.1 Introduction 3-1
3.2 Strategy 1. Establish a Notification Exemption Scheme
Without Undertaking Further Analysis of Affected
Media and Industries 3-2
3.3 Strategy 2. Defer Further Notification Guidance;
Analyze Problems of Affected Media and
Individual Industries 3-4
V ,\
3.4 Strategy 3. Establish an Interim Notification Exemption
Policy and Study the Problems of Affected Media and
Individual Industries 3-8
3.5 Summary 3-10
CHAPTER 4: REPORTING AND MONITORING EXAMPLES 4-1
4.1 Reporting Requirements 4-1
Time of reporting 4-1
Form of reports 4-3
Reporting to whom 4-3
Information to be reported 4-4
ii
ICF INCORPORATED
-------
TABLE OF CONTENTS (continued)
Page
4.2 Monitoring Requirements . •. 4-5
Comprehensive monitoring 4-5
Selective monitoring 4-6
4.3 Examples of Reporting and Monitoring Options 4-7
Example 1: Few Releases Qualify for Exemption/Great
Reduction in Reporting Burden for These Releases 4-8
Example 2: Dual Track 4-13
Example 3: Many Releases Qualify for Exemption/Moderate
Reduction in Reporting Burden for These Releases 4-14
Example 4: Releases Choice Based on EPA Guidance 4-16
Example 5: Many Releases Qualify for Exemption/
Large Reduction in Reporting Burden 4-17
4.4 Summary 4-18
CHAPTER 5: ECONOMIC ANALYSIS 5-1
5.1 Types of Economic Effects and Affected Parties 5-1
5.1.1 Types of Costs of Notification 5-3
5.1.2 Types of Benefits of Notification 5-6
5.2 Analytical Approach to Measuring Economic Effects 5-7
5.2.1 Effects on Firms 5-7
5.2.2 Effects on EPA and Other Government Agencies 5-8
5.3 Further Steps in the Analysis 5-9
5.3.1 Baseline 5-9
5.3.2 Preliminary Data Analysis 5-11
iii
ICF INCORPORATED
-------
TABLE OF CONTENTS (continued)
5.3.2.1 Potentially Affected Firms 5-11
5.3.2.2 Unit Cost of Notification Activities 5-19
5.3.2.3 Data Needs 5-23
5.4 Summary 5-25
APPENDIX A: Data Sources A-l
APPENDIX B: Federal Permitting Programs B-l
APPENDIX C: Analysis of Industry Profiles C-l
APPENDIX D: Development of Examples D-l
APPENDIX E: Excerpts from Text of Sections 101 and 103 of CERCLA E-l
iv
ICF INCORPORATED
-------
LIST OF EXHIBITS
Page
ES-1 Major Decisions to be Made in Establishing a
Continuous Release Notification Policy ES-3
2-1 Key Issues for Structuring a Continuous Release Notification
Policy 2-2
3-1 Program Strategies 3-3
3-2 Data Needs for Study of Potentially Affected Industries *.. 3-6
4-1 Range of Possible Reporting and Monitoring Requirements 4-2
4-2 Examples of Continuous Release Notification Schemes 4-9
5-1 Structure of Analysis of Economic Effects of Notification
Requirements 5-10
5-2 Hazardous Substances Used by Selected Major Industries 5-12
5-3 Use of Hazardous Substances in the Industrial Inorganic
Chemical Industry 5-16
5-4 Two Examples Estimating the Number of Potential Section 103(f)
Exemptions in the Industrial Inorganic Chemical Industry 5-17
5-5 Cost of Notification -- Each Plant 5-20
B-l Reporting Requirements B-3
D-l Examples of Reporting Options D-4
D-2 Examples of Monitoring Options D-6
v
ICF INCORPORATED
-------
m
x
fl>
n
c
<
d>
KS>
c
3
3
D
-------
EXECUTIVE SUMMARY
1. PURPOSE AND SUMMARY OF THE REPORT
This report deals with the notification requirements imposed by the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980
(CERCLA or "Superfund"). In particular, the report examines continuous
releases of hazardous substances and the notification requirements and
exemption applied to some of these releases by Section 103 of CERCLA. The
purpose of the report is two-fold:
• To identify and analyze alternative program
strategies that EPA might adopt to implement the
reporting of continuous releases of hazardous
substances under Section 103 of CERCLA; and
• To identify and analyze the key issues associated
with implementing the exemption from routine
reporting granted by Section 103(f) of CERCLA for
certain kinds of continuous releases.
The report identifies the issues that EPA must resolve and the range of
options for resolving them. It also investigates the economic effects of
possible notification policies that EPA could adopt for continuous releases.
.* V
The analysis of issues, options, and economic effects is intended to aid
EPA in devising a notification exemption for continuous releases that will
minimize burdens while gathering the information necessary to carry out the
Superfund program. The report notes that the environmental problem presented
by continuous releases is of unknown proportions. Thus, additional
information about continuous releases may be useful in determining their scope
and magnitude.
2. BACKGROUND
Section 103(a) of CERCLA requires that responsible parties report to the
National Response Center the release of any hazardous substance equalling or
exceeding the reportable quantity for that substance, unless the release is
federally permitted. Section 103(f)(2) provides an exemption from the general
notification requirements of Section 103(a) and (b). The exemption is for
releases that are "continuous" and "stable in quantity and rate" and for which
the appropriate initial reports have been submitted. For those releases
qualifying for this exemption under Section 103(f)(2)(A), this initial
reporting is the site survey required in Section 103(c); for those releases
qualifying under Section 103(f)(2)(B), the initial reporting must be "for a
period sufficient to establish the continuity, quantity, and regularity" of
the release. The exemption is limited, however, and notification must still
be given: (1) as initially required, and (2) "annually, or at such time as
there is any statistically significant increase" in the amount released.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
ES-2
Nonetheless, instead of having to report every release as it occurs,
responsible parties are allowed to report certain continuous releases less
often.
The continuous release notification policy to be established by EPA for
Section 103 is closely linked to the setting and adjusting of reportable
quantities (RQs) under Section 102. EPA's choice of a reporting period
(measured in hours or days) for the RQ levels (measured in pounds) determines
how many continuous releases are subject to general notification requirements
under Section 103(a) and (b) and therefore are potentially exempted by the
Section 103(f)(2). This interrelation becomes particularly important in the
context of a Regulatory Impact Analysis that might be required for these
regulations.
Section 103(f)(2) is an exemption from the usual reporting requirements;
it is not a separate authority for requiring reporting. At present, it
appears that only a few members of the regulated community are reporting
continuous releases to the National Response Center. The interviews conducted
with industry representatives as part of this analysis indicate great
uncertainty as to the requirements for continuous release notification. That
uncertainty may explain in part the very low level of reporting of continuous
releases received to date by the National Response Center.
3. THE ISSUES RAISED BY SECTION 103(f)(2)
Exhibit ES-1 highlights the key decisions that EPA must make to establish
a continuous release nbtification policy. Several decisions involve language
in Section 103(f) of CERCLA that is not defined in the statute or in its
legislative history. Other issues focus on what a continuous release
exemption should achieve. Three broad issue areas are addressed in this
report:
(a) The possible purposes of continuous release
notification;
(b) The kinds of releases which qualify for the exemption
provided by Section 103(f)(2); and
(c) The reporting and monitoring required for releases
qualifying under Section 103(f)(2).
(a) Possible purposes. Section 103(a) and (b) reporting requirements
apply to both episodic and continuous releases. The broad purposes of
requiring release notification should apply equally to both. Neither the
statute nor its legislative history specifies the purposes of notification.
This report identifies four potential purposes for release notification.
These possible purposes are not mutually exclusive, and each or some
combination may have been intended as the rationale for the notification
requirements. EPA may base its design of a continuous release reporting
program on these or other purposes for the reporting:
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
ES-3
EXHIBIT ES-1
MAJOR DECISIONS TO BE MADE IN
ESTABLISHING A CONTINUOUS RELEASE
NOTIFICATION POLICY
1. Definition of "continuous" release. Possible alternatives include:
* Literally continuous releases
* Releases that are continuous only during operating hours
* Releases from batch processes
* Routine anticipated intermittent releases
* Releaser's discretion
2. Determination of whether releases of a particular substance are measured
facility-wide or whether each point source in a facility is to be
considered separately.
3. Definition of "stable in quantity and rate". Options include:
* Fluctuation allowed, if any
* Method of measuring stability
* Releaser's discretion
4. Definition of the "period sufficient to establish the continuity,
quantity, and regularity" of the release. Options include:
* Same period for all releases
* Different periods for different types of releases
* Uniform number of reports required to be made
* Releaser's discretion
5. Interpretation of a "statistically significant increase" in the amount
released. Options include:
* Based on statistical tables
* Based on pre-established factor
* Releaser's discretion
6. Determination of when reporting is required. Options include:
* Annually
* At times of statistically significant increases
* Both annually and at times of statistically significant increases
7. Determination of specific monitoring requirements, if any, to be imposed.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
ES-4
(1) Increase and improve clean-up of releases of
hazardous substances. More releases may be cleaned
up and some may be cleaned up earlier or better since
both the government and the regulated community would
be more aware of the extent of continuous releases;
(2) Prevent releases. The regulated community would be
encouraged to prevent releases as a way of avoiding
reporting costs;
(3) Increase the coverage of permit programs. The
regulated community would be encouraged to apply for
permits to avoid the costs of reporting releases,
since federally-permitted releases need not be
reported. In addition, the government would be able
to identify releasers that should be brought into
permit programs and additional substances that should
be covered by these programs. The costs associated
with entering the permit program, however, may be
higher than the costs of reporting releases under
Superfund; and
(4) Provide a detailed data base for research and future
regulatory action if needed. An additional benefit
of reporting could be the compilation of a detailed
data base on the nature of continuous releases.' This
data basne could help resolve many of the uncertainties
with respect to continuous releases, particularly the
extent of their contributions to ambient concentra-
tions of hazardous substances in certain geographic
areas.
The exemption provided by Section 103(f)(2) permits responsible parties to
report certain releases less often than each time the release occurs. This
exemption thus has the separate and important purpose of reducing the
reporting burdens on both EPA and the regulated community.
The issue concerning purposes is two-pronged because any continuous
release notification policy is derived from both Section 103(aj and
103(f)(2). Section 103(a) is the general notification requirement for all
hazardous substance releases that equal or exceed reportable quantities, while
Section 103(f)(2) provides certain continuous releasers with a partial
exemption from Section 103(a) requirements. The temptation is to analyze
these two subsections in isolation from each other, but to do so distorts the
purposes of a continuous release notification policy. It seems clear that
Section 103(f)(2) reduces the burden that some continuous releasers would
incur if they were in strict compliance with whatever notification regime is
ultimately established under Section 103(a). It seems equally clear, however,
that this partial exemption should be structured so that the purposes of
Section 103(a) are not undermined. That is, the Section 103(f)(2) exemption
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
ES-5
simply recognizes that, where certain continuous releases are concerned, there
may be a less costly means of satisfying the purposes of release notification
under CERCLA than literal adherence to the requirements of Section 103(a).
(b) Releases qualifying for the Section 103(f)(2) exemption. A release
must satisfy three requirements to qualify initially for the Section 103(f)(2)
exemption: •
(1) The release must be a "continuous release";
(2) It must be "stable in quantity and rate"; and
(3) It must be reported for a period "sufficient to
establish the continuity, quantity, and regularity" of
the release.
To continue to qualify for the exemption, the release must be reported
annually or at times of statistically significant increases in the amount
released. Neither the statute nor its legislative history defines any of the
key terms in Section 103(f)(2).
The phrase "continuous release" has a range of possible interpretations.
A narrow interpretation includes only those releases that are literally
continuous, occurring 24 hours a day, 365 days a year. A slightly broader
interpretation also includes releases that are continuous only during
operating hours of a facility. Broader still is an interpretation including
releases from batch operations. The'broadest interpetation also covers
routine anticipated intermittent releases -- those predictable, routine,
regularly-occurring releases incidental to normal business operations. A
related issue in defining "continuous" releases is whether all emissions of a
particular hazardous substance at a plant are considered as one release (as in
the "bubble" concept used for air emissions) or whether each point source in
the plant is considered separately.
Establishing the requirements for "stable in quantity and rate" raises two
separate questions. The first is what degree of stability will be required;
that is, how much fluctuation in the quantity released will be tolerated and
over what period will this fluctuation be measured. The second question is
what kinds of releases can be considered stable. For example, EPA may want to
decide if weather-related releases may be considered stable.
There are three basic interpretations of the phrase "period sufficient to
establish the continuity, quantity, and regularity." One is that the same
period is required for all releases. The second is that different periods are
permitted for different types of releases, such as a longer period for
releases that occur less often, or a "sliding-scale" approach. EPA also may
decide to specify different periods for releases of different substances, from
different processes, and into different media. The third approach is to
specify the period solely in terms of the number of reports required.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
ES-6
In determining the "period sufficient" under either of these two
interpretations, EPA may want to adopt a multiple of the period over which the
reportable quantity is measured. For example, if a substance has an RQ of 10
pounds in 24 hours, then EPA could establish the "period sufficient" as 10
times the RQ period or 10 days. No matter what length of time is chosen, EPA
will need to decide whether it will determine when reports have been submitted
for a period sufficient to establish the exemption, or whether that decision
will be left to t>he discretion of the reporter.
(c) Reporting and monitoring required for releases qualifying under
Section 103(f)(2). Reporting is required for releases qualifying for the
Section 103(f)(2) exemption "annually, or at such time as there is any
statistically significant increase in the quantity" released. The first
problem is defining "statistically significant increase." If EPA chooses to
define this phrase, the definition could be based on the use of statistical
tables (such as the "Student's t" test) or on a pre-established level of
increase (such as ten times the previously-reported daily average). Another
issue to be resolved is whether reporting is required annually or at times of
significant increases, or is required both annually and at such times.
Finally, EPA must determine what, if any, specific monitoring requirements
will be imposed on qualifying continuous releases.
4. PROGRAM STRATEGIES
The report includes three possible strategies that EPA could undertake to
consider and resolve the issues discussed above:
t \
Strategy 1. Establish a notification exemption
policy without undertaking further analysis of affected
media and releasers. In an effort to reduce uncertainty
for the regulated community and to accelerate the
realization of benefits from continuous release reporting,
EPA could promptly issue an interpretation of Section
103(f). This interpretation, however, could very likely be
based on an inadequate evaluation of all possible options
and insufficient information to determine accurately the
most cost-effective option.
Strategy 2. Defer further notification guidance;
analyze problems of affected media and releasers. EPA may
wish to defer issuing an interpretation of Section 103(f)
in order to study further the continuous release problem,
using existing EPA data to the greatest possible extent.
This strategy may help identify additional options for
resolving the issues involved in continuous release
reporting and could permit a more accurate evaluation of
the costs and benefits of the options. On the other hand,
deferring continuous release guidance perpetuates the
uncertainty that exists for the regulated community and
delays any benefits that could be realized from
notification of continuous releases.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
ES-7
Strategy 3. Establish an interim notification exemp-
tion policy and study the problems of affected media and
releasers. EPA could also choose to promulgate an interim
notification policy while conducting further studies of the
continuous release problem. This policy could take several
different forms as described in Chapter 3. This approach
provides greater certainty for the regulated community,
early realization of the benefits of reporting, possible
identification of additional options for the notification
policy, and better information on which to base the choice
of the most cost-effective option. On the other hand, this
approach may be more costly than the other two strategies,
since the regulated community may be reluctant to commit
significant resources to comply with an interim policy, and
there may be resistance to changing from the interim policy
to a potentially more burdensome final policy.
5. EXAMPLES OF REPORTING AND MONITORING OPTIONS
Depending on the overall strategy selected, reporting and monitoring
requirements for releases that qualify for the Section 103(f)(2) exemption may
be required. The report discusses four basic aspects of reporting
requirements;
(a) Time of reporting. Reporting may be required
annually, or at times of statistically significant
increases in the quantity released, or both annually and
at such times.
(b) Form of reports. Reports may be verbal
(telephone) or written. EPA may choose one form for all
reports or require different forms for different types of
reports (such as those in the initial reporting period,
annual reports, or reports of "statistically significant
increases").
(c) Reporting to whom. EPA may require that all
reports be made to the National Response Center or that
certain reports be made to EPA. Alternatively, in an
effort to reduce the burden on the regulated community, EPA
could arrange for other federal and state authorities to
forward to the National Response Center or EPA reports they
receive concerning continuous releases. As another
alternative, EPA could simply determine that notification
of continuous releases sent to other agencies, such as the
Nuclear Regulatory Commission or state environmental
protection agencies, is sufficient for purposes of Section
103(f)(2).
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
ES-8
(d) Information to be reported. The information
required to be reported could include the identity of the
reporter, the responsible party, the chemicals released,
the amount and/or concentrations released, the location
and/or source of release, the media affected, the duration
and frequency of release, the dispersion of the substances
released, the methods used to measure the release, the
efforts-made to contain the release, and the observed
health, welfare, and environmental effects of the release,
if any.
The language of Section 103(f)(2) does not explicitly mention monitoring
of continuous releases nor does it require extensive monitoring. Thus, EPA
may allow the regulated community to base its reports on best engineering
judgment or generally-accepted measurement techniques used in the industry, or
EPA may require use of particular monitoring requirements specified by
regulation. If specific monitoring requirements are imposed, there are many
possible levels of monitoring frequency and detail. One level could be
selected for all continuous releases or different levels could be chosen for
different substances, processes, or industries. Monitoring requirements
should take into account the availability of sampling protocols for the
CERCLA-designated hazardous substances.
Chapter 4 of the report includes five examples of combinations of
reporting and monitoring options that demonstrate the range of alternatives
available to EPA for resolving the issues outlined in the report. Each
example attempts to resolve fully all of the major issues presented in the
report, but the examples are not meant to be exhaustive. EPA could decide
that some or all of the examples included here create too great a burden on
the regulated community. Alternatively, the Agency could decide that none of
the examples sufficiently serves its goals for continuous release reporting.
The examples included are:
• Example 1: Few Releases Qualify for Exemption/
Great Reduction in Reporting Burden for These
Releases~ A small group of releases would qualify for
significantly reduced notification requirements. This
example could substantially reduce notification costs
for qualifying releases with a minimal effect on the
information reported. Because most continuous releases
would still be subject to the full requirements of
Section 103(a), EPA would receive a broad base of
information on continuous releases that could improve
the Agency's understanding of the magnitude and scope
of the continuous release problem.
• Example 2: Dual Track. This example would impose
greater notification burdens on releasers of hazardous
substances with low RQs and somewhat lesser burdens on
releasers of other hazardous substances. This example
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
ES-9
could be used to highlight the need for strict control
of those hazardous substances whose release the Agency
has determined should be reported even when small
quantities are involved.
• Example 3: Many Releases Qualify for Exemption/
Moderate Reduction in Reporting Burden for These
Releases. A large group of releases would qualify for
moderately reduced notification requirements. This
example could be used to obtain from a large number of
releasers reasonably reliable information that could be
useful in deciding which hazardous substances should be
addressed in federal permit programs.
• Example 4: Releaser Choice Based on EPA Guidance.
EPA would issue broad guidelines under which releasers
could select which monitoring and reporting methods to
use to satisfy EPA's information request. This example
could be used as an interim or a final policy,
depending on the priority that the agency assigns to
the continuous release problem.
• Example 5; Many Releases Qualify for Exemption/Large
Reduction in Reporting Burden. Significant relief
from the Section 103(a) and (b) reporting requirements
would be given"to a large group of releases. This
example could be used to implement the minimum
requirements of the Act and thereby place the least
possible burden on the regulated community and the
Agency.
Each of the examples contains elements which could be combined with elements
of other examples to form different reporting and monitoring options. For
instance, Example 5 contains elements of both Examples 1 and 3. There are
also many other possible examples as discussed further in Chapter 4.
6. POTENTIAL ECONOMIC EFFECTS
The report concludes with a preliminary analysis of the potential economic
effects of reporting continuous releases. The analysis to date has been
mainly methodological, setting the stage for any later quantitative study.
Data collected, while neither complete nor definitive, suggest that the
overall costs of continuous release notification could be significant since so
many industries, municipalities (e.g. treatment plants, landfills), state
governments, institutions (e.g. hospitals, universities, research
laboratories), and federal agencies operate facilities that are possible
sources of continuous releases. In the short time available for preparing
this report, it has not been possible to develop an exact estimate of the
number of potential respondents, but a total well in excess of 100,000
facilities is not unreasonable.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
ES-10
In view of the potential costs involved, one of EPA's options is to decide
that the subtle balance of potential advantages and disadvantages justifies
prompt solicitation of public comment. If such comment was solicited, the
notification requirements would be implemented only after giving the regulated
community and other interested parties an opportunity to offer their judgment
and guidance on the relevant issues. Such a course might also make it
possible to determine with greater certainty the magnitude and distribution of
costs and benefits involved.
Chapter 1 of the report contains a detailed summary of the remaining
chapters.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
CHAPTER 1
BACKGROUND
The Comprehensive Environmental Response, Compensation, and Liability Act
of 1980 (CERCLA or Superfund) deals primarily with releases of hazardous
substances.1 The: statute's definition of release2 makes no distinction
between kinds of releases. Section 103(f)(2)3 of the Act, however, provides
1The Act (Section 101(14)) defines "hazardous substances" to mean a
variety of substances that have been designated as toxic or hazardous under
other specified environmental statutes. The full text of CERCLA Section
101(14) is included in Appendix E. CERCLA also covers certain "pollutants or
contaminants", but no notification is required when they are released.
Pollutants or contaminants, therefore, are not relevant for the purposes of
this report which deals only with notification under CERCLA.
2CERCLA Section 101(22) defines release, as "any spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injecting, escaping,
leaching, dumping, or disposing into the environment." Section 101(22) also
lists four exclusions from the definition: (1) certain work place releases;
(2) emissions from certain engine exhausts; (3) releases of certain
radioactive substances; and (4) normal application of fertilizer. The full
text of Section 101(22) is in Appendix E. Unless otherwise noted, all
statutory references ate to CERCLA. (
3The full text of Section 103(f) is reproduced in Appendix E. Section
103(f)(2) provides:
No notification shall be required under subsection (a) or (b) of this
section for any release of a hazardous substance —
(2) which is a continuous release, stable in quantity and rate and is
(A) from a facility for which notification has been given under
subsection (c) of this section, or
(B) a release of which notification has been given under
subsection (a) and (b) of this section for a period
sufficient to establish the continuity, quantity and
regularity of such release:
Provided, That notification in accordance with subsections (a)
and (b) of this paragraph shall be given for releases subject to
this paragraph annually, or at such time as there is any
statistically significant increase in the quantity of any
hazardous substance or constituent thereof released, above that
previously reported or occurring.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
1-2
a different notification11 procedure for certain "continuous releases" than
that imposed under Section 103(a). Although undefined in the Act, the term
"continuous releases" suggests an operational distinction -- there are
releases that occur with expected frequency (continuous releases), and there
are other kinds of releases that are unexpected (often referred to as
"episodic releases"). Because notification requirements may impose
significant burdens on both the regulated community and EPA, and because the
benefits of notification of some releases are not always clear, Section
103(f)(2) merits careful attention.
1.1 CERCLA REQUIREMENTS
CERCLA gives the federal government authority and funding to respond to
releases of hazardous substances and certain pollutants and contaminants into
the environment. Notification of the release of a hazardous substance
equalling or exceeding the reportable quantity (RQ) for that substance directs
the Agency's attention to those releases that should be considered for
priority response action; notification, therefore, is crucial to the
successful operation of the Superfund emergency response and remedial response
programs. Notification requirements also have certain consequences for the
releaser. Failure to provide adequate notification of a hazardous substance
release may subject the releaser to civil and criminal penalties.
Notification requirements, therefore, are an important part of the Superfund
scheme.
1.2 PURPOSE AND APPROACH OF THE REPORT
The purpose of this report is (1) to identify and analyze alternative
program strategies that EPA might consider in order to implement the reporting
of continuous releases of hazardous substances under Section 103 of CERCLA,
and (2) to identify and analyze the key issues associated with implementing
the exemption from routine reporting granted by Section 103(f) of CERCLA for
certain kinds of continuous releases.
In this report, a key distinction is made between "program strategies" and
examples of "reporting and monitoring options." The strategies are broad
approaches for resolving the continuous release notification issue (e.g., one
strategy is prompt issuance of regulations or guidance on the continuous
release exemption, without further detailed study). The examples of reporting
and monitoring options are specific articulations of what kinds of reporting
and monitoring could be required for releases that qualify for the Section
103(f)(2) exemption. A particular example may be applicable under more than
one of the strategies.
fcThe terms "notification" and "reporting" are used interchangeably in
this report.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
1-3
This report is the result of a three-step approach: (1) identification of
issues that affect implementation of Section 103(f)(2); (2) interviews with
persons in EPA, other federal agencies, the regulated community, environmental
interest groups, and state and local agencies (see Appendix A for a list of
interviewees); and (3) analysis of the programmatic and economic effects of
reporting and monitoring options and various regulatory strategies. The
approach to the continuous release issue was circumscribed by the short period
in which this report had to be completed; the results presented are
necessarily tentative.
The specific statutory provisions for notification are discussed in the
next section.
1.3 SECTION 103(a). (b). AND (f)
Any person in charge of a vessel, or an offshore or onshore facility is
required by Section 103(a) to notify the National Response Center when the
release of a hazardous substance to any media equals or exceeds its reportable
quantity (RQ).5 Section 103(b) authorizes a penalty for failure to comply
with Section 103(a).6 Except for federally permitted releases7 and
certain releases of pesticide products,8 the requirement of Section 103(a)
applies to all releases — including those that are incidental to the normal
manufacturing, treatment processes, or operations of a facility. These
ordinary business releases are widespread and may occur frequently at any one
facility — perhaps many times daily.
5"Reportable quantity (RQ)" is that amount of release that triggers a
reporting requirement. RQs are initially established by Section 102(b) as the
RQ established under Section 311(b)(4) of the Federal Water Pollution Control
Act (FWPCA) for those substances subject to that section of FWPCA and as one
pound for all other hazardous substances. Section 102(a) gives EPA the
authority to alter these RQs.
6A maximum penalty of $10,000 and one year imprisonment can be imposed
for failure to provide immediate notification as soon as a responsible person
has knowledge of the release.
7"Federally permitted release" is defined in Section 101(10) and
includes a variety of releases permitted under Federal and state law. The
full text of Section 101(10) is included in Appendix E.
sThis exception is made in Section 103(e) and covers the application of
pesticide products registered under the Federal Insecticide, Fungicide, and
Rodenticide Act, or the handling and storage of such products by an
agricultural producer.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
1-4
The requirement for reporting all releases at or above reportable
quantities could, if RQs are low enough, inundate the Agency with information
about releases for which government action would not be taken, and it could
impose a significant burden on the releasers making the reports. Preliminary
data developed in Chapter 5 indicates that upwards of 50,000 business
establishments in some of the major industries using hazardous substances
could be affected by notification requirements. Moreover, there are also
thousands of municipalities and state and federal installations potentially
affected. Although the number of potential respondents is large, very few
continuous releases have been reported to date; only 1,519 releases had been
reported to the National Response Center under Superfund through October 1981,
and the majority of these were episodic releases.
CERCLA provides no overall exemption from reporting for ordinary business
releases. Section 103(f)(2), however, does provide an exemption for certain
"continuous releases." The exemption from notification is only partial;
notification in accordance with Sections 103(a) and (b) must be given: (1)
for a "period sufficient to establish the continuity, quantity, and
regularity" of the release; and (2) "annually, or at such time as there is any
statistically significant increase in the quantity" of the release. Because
"continuous release" is not defined in the statute, the extent to which the
exemption applies to releases which occur as a result of ordinary business
practices is not clear.
Section 103(f)(2) is an exemption from and not an addition to reporting
requirements. This means that a narrow definition of the terms of Section
103(f)(2) will result in fewer releases covered by the exemption. The
problems of defining the key terms of this exemption (e.g., "continuous") are
discussed below in Chapter 2.
1.4 STATEMENT AND SCOPE OF THE PROBLEM
Because the key terms of Section 103(f)(2) are undefined in the statute
and its legislative history, the ranges of their possible meanings are broad.
The breadth of possible meanings makes it difficult to specify what actions
would be affected by a continuous release notification policy. The potential
volume and number of substances that could be subject to a continuous release
notification policy under a broad interpretation of Section 103(f)(2) in some
major industries is substantial, as indicated by the preliminary data
presented in Section 5.3.2.1 (e.g. the number of substances may range from 10
to 57 in the plastics and synthetics material industry). Of course, not all
hazardous substances utilized in a process will be continuously released, and
some releases are exempt from reporting requirements because they are
federally permitted. Given a wide range of potentially affected actions, this
analysis has necessarily concentrated on analyzing the implications of
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
1-5
possible interpretations of Section 103(f)(2). Accordingly, the analysis of
costs and benefits cannot be as precise as might be desired.9
Data availability is a significant problem in this analysis. Some data
about the number of sources releasing hazardous substances, the quantity and
rate of these releases, and the identity (SIC code or other identifier) and
location of these sources have been obtained from EPA permit data bases, but
these data have been in forms that are of limited use. In addition, industry
representatives contacted to date have been unable to provide data that might
have made more quantitative analysis possible.
Not only has some data on the scope of continuous releases been difficult
to obtain, other relevant data do not yet exist. For example, it is
reasonable to assume that many of the current one-pound reportable quantities
(RQs') will be revised upward, but the level of revised RQs for particular
substances has not been determined. Similarly, no reporting periods (the
period over which a determination is made whether an RQ of a particular
substance has been released) for continuous releases have been set. Without
knowing the final RQs of substances and the relevant reporting periods for
continuous releases, it is impossible to say what level of costs will be
imposed by a continuous release notification policy.
These problems and others that constrain the analysis of the continuous
release notification problem are discussed in greater detail in Chapter 5.
1.5 SPECIAL TOPICS RELATED TO CONTINUOUS RELEASE NOTIFICATION
Although the meaning of key phrases in Section 103(f)(2) is an important
issue, there are several other issues whose resolution may influence the
choice of a strategy for continuous release notification. These issues are
summarized below and are discussed where relevant in the remainder of the
report.
1.5.1 Designation Under Section 102 and Reportable Quantities (RQs)
The continuous release notification policy will apply to all substances
designated as hazardous under Section 102. The policy should be designed with
s0ne measure of the benefits of a continuous release notification policy
is the use of information generated under the policy. The information that
would be reported on continuous releases will be useful in the Superfund
program and may have some application to other permits and programs. A
crucial question, however, is whether the various potential users have the
resources to accommodate this extra information. Appendix B includes a
discussion of whether information generated by a continuous release
notification policy would have applicability to existing EPA permit programs.
February 1. Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
1-6
the understanding that it is applied to a hazardous substance list that is not
necessarily fixed. That is, over time, new substances may be designated as
hazardous. Thus, although the short-term costs and benefits associated with a
continuous release notification program can be assessed in terms of those
substances currently listed, longer-term costs and benefits are not
necessarily circumscribed by the current listing.
In addition,'while RQs may be set primarily for purposes of episodic
releases, these RQs will also be applicable to continuous releases unless
different RQs are specifically established for continuous releases. (Another
means of distinguishing between episodic and continuous releases is to use a
different—lengthier—reporting period for the latter.) As a result, the
costs and benefits of any continuous release notification policy will be
affected by the RQs and reporting periods selected.
Thus, the effects of.continuous release notification depend upon the
strategies chosen (1) for designating additional substances as hazardous and
(2) for adjusting and setting RQs. In addition, however, the effects of
designation and the establishment of reportable quantities will also depend on
the burdens and benefits of the continuous release notification policy
chosen. Therefore, EPA may want to consider jointly the methods for
establishing reportable quantities, designating substances as hazardous, and
selecting a continuous release notification policy.
1.5.2 Distinctions Based on Process or Industry
Variations in the continuous release notification scheme may be desirable
on the basis of processes or industries. For example, if certain industries
are more likely to release highly hazardous substances, they could be subject
to more stringent continuous release reporting requirements than other
industries less likely to do so. The design and selection of the continuous
release notification policy should take into consideration the value of
drawing distinctions based on the differences among processes and industries.
In Chapter 2, examples are given of where such distinctions might be made.
Chapter 3 includes a discussion of strategies for implementing a continuous
release notification policy which incorporate studies to investigate where
these distinctions should be made (possible future industry studies are
described in Appendix C). The continuous release issues that may arise in the
context of transportation do not at present seem sufficiently distinct for
separate treatment in this report.
1.5.3 Distinctions Based on Substances Released
The policy selected for continuous release notification may have .
variations that are based on the kinds of substances released. Three
categories of substances that might receive different treatment are: (1)
substances with low RQs; (2) hazardous wastes; and (3) radionuclides.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
1-7
(1) Substances with low RQs. A more stringent monitoring and reporting
option could be.used for substances with low RQs. These substances would be
those selected by EPA for close scrutiny and may therefore deserve special,
stricter requirements. For example, a substance with a low RQ that was
discharged to surface water, was emitted to the air, or leached continually
into groundwater over a long period of time could create a serious problem.
In order to keep close track of continuous releases of these kinds of
substances, EPA may want to use a monitoring and reporting regime that is
stricter than what is used for substances with higher RQs.
(2) Hazardous Wastes. Section 101(14) includes "hazardous waste having
the characteristics identified under or listed pursuant to section 3001 of the
Solid Waste Dispsal Act" (also referred to as. the Resource Conservation and
Recovery Act, or RCRA). An .issue related to hazardous wastes is how to treat
the characteristics of ignitability, corrosivity, reactivity, and toxicity
(ICRT) that are covered by RCRA. If continuous releasers are required to
monitor for these characteristics, the monitoring costs could be very high.
It may be easier to test or monitor releases for particular substances known
to exist in a particular effluent or discharge than to monitor a release
generally for ICRT characteristics.
(3) Radionuclides. Radionuclides present a special problem because the
technology for dealing with them is different from that associated with other
hazardous substances. In addition, because small amounts of radionuclides can
cause significant harm, the RQs for radionuclides are likely to be much lower
than one pound. The treatment of radionuclides under a continuous release
notification strategy,''therefore, may'require methods unique to those
substances. The extent of the problem posed by radionuclides is not clear,
because the Nuclear Regulatory Commission and the states already have
permitted most of the sources of significant releases of radionuclides.
Because the Nuclear Regulatory Commission bases its notification requirements
to a large extent on such concepts as exposure or concentrations, EPA may want
to use a similar approach, or at least explicitly consider the effects of
applying a different unit of measurement. In any event, EPA's release
notification requirements should not duplicate existing Nuclear Regulatory
Commission and state requirements.
1.5.4 Federally Permitted Releases
Federally permitted releases (defined in Section 101(10), reproduced in
Appendix E) are important because they are exempt from CERCLA reporting
requirements. Although the precise scope of the term "federally permitted
release" is unclear, it is likely that many continuous releases will be exempt
from all CERCLA reporting requirements because they are federally permitted.
Releases that are exempt from permit programs, for whatever reason, will,
however, be subject to CERCLA.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
1-8
1.6 ORGANIZATION OF THE REPORT
The remainder of this report is organized in four chapters and several
appendices:
• Chapter 2, The Key Jssues Posed by Continuous
Release Notification, includes a discussion of the
purposes of a continuous release notification program,
which releases can qualify for the Section 103(f)(2)
exemption, and when notification is required for
exempted releases.
• Chapter 3. Alternative Program Strategies, outlines
and discusses several strategies for implementing a
continuous release notification program. Advantages,
disadvantages, and potential economic effects of the
strategies are discussed.
• Chapter 4, Reporting and Monitoring Examples,
describes examples based on a possible range of options
that can be used under the various program strategies.
The examples cover the content, timing, and form of
reporting and monitoring activities.
• Chapter 5, Economic Analysis, presents the results
of an examination of the costs and benefits associated
with continuous release,.-reporting.
• Appendices. Several appendices follow the
conclusion of the analysis. The appendices cover the
following subjects: sources of data for this report
(including a list of interviewees); background
information on several environmental permit programs;
how industry studies might be performed as part of two
of the strategies discussed in Chapter 3; a more
detailed explanation of how the monitoring and
reporting examples were developed; and selected
. excerpts from CERCLA.
The following chapter discusses the key issues related to a continuous
release notification program.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
U
C
0>
-------
CHAPTER 2
THE KEY ISSUES POSED BY CONTINUOUS RELEASE NOTIFICATION
This chapter discusses the major issues that are presented in establishing
a notification program for continuous releases, including:
(1) The possible purposes of continuous release
notification;
(2) The kinds of releases that qualify for the exemption
provided by Section 103(f)(2); and
(3) The reporting and monitoring required for releases
qualifying under Section 103(f)(2).
The chapter suggests alternative resolutions of the issues, but contains no
recommendations. These issues are summarized in Exhibit 2-1 and are discussed
below.
2.1 PURPOSES OF CONTINUOUS RELEASE NOTIFICATION
As described in Chapter 1, Congress enacted a limited exemption for
continuous releases from the ordinary notification requirements of Section
103(a) and (b). Before analyzing strategies for implementing a continuous
release notification policy, it is important to explore the possible reasons
for this limited exemption. EPA may want to consider whether and how well
different continuous release notification strategies fulfill the purposes of
Section 103. Unfortunately, the legislative history lacks a clear explanation
of why a special provision relating to continuous release notification was
included in the statute. This section of the report, therefore, suggests some
alternative purposes for continuous release notification.
There are at least four possible purposes for requiring continuous
releases to be reported under the usual reporting requirements of Section
103(a) and (b):
(1) To increase and improve clean-up. By requiring reporting, Superfund
increases the awareness of the regulated community of the continuous release
problem and provides the government with information about continuous
releases. Awareness of the problem may encourage some responsible parties to
clean up their releases earlier or more completely than they might have
otherwise. In addition, the information reported to the government may prompt
expert response by the government that would not have occurred in the absence
of reporting requirentents. Reporting may also increase the likelihood that
adequate and timely response is undertaken because reporting can help
establish liability for response costs and natural resource damage under
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
EXHIBIT 2-1
KEY ISSUES FOR STRUCTURING A CONTINUOUS RELEASE NOTIFICATION POLICY
ISSUE
I
What are the purposes of the Superfund continuous
release notification policy?
o Purposes served by notification under Superfund
o Purposes served by Section 103(f)(2) provisions
for continuous releaseis
2. What releases qualify for the Section 103(f)(2)
exemption?
o What is a "continuous release?"
o When is a release "stable in quantity and rate?"
— What fluctuation In quantity and rate is
tolerated?
POSSIBLE RESOLUTION
o Provide EPA with information for deciding whether to
respond to a release of hazardous substances.
o Increase coverage of existing permits by identifying
unpermitted releases that should b6"subject to permits.
o Prevent releases — in order to avoid the costs of reporting,
potential releasers will implement measures to prevent
releases.
o Provide detailed data base for use by other programs that
protect public health, welfare, or the environment.
o Reduce notification burden for continuous releasers.
o Reduce the administrative burden of processing release
notifications.
o Assure that purposes of notification under Superfund are not
c i rcumvented.
o Releases that are an uninterrupted flow or drip 24 hours a
day, 365 days a year.
o Releases that are an uninterrupted flow or drip only during
operating hours.
o Releases from batch operations.
o Releases that are intermittent, but are predictable,
routine, regularly occurring, and Incidental to normal
operations.
o Any combination of the preceding resolutions.
o 2% or lower
o 5% - 25%
o 50% or higher
February I Draft * * * Do Not Quote or Cite
-------
EXHIBIT 2-1 (continued)
KEY ISSUES FOR STRUCTURING A CONTINUOUS RELEASE NOTIFICATION POLICY
ISSUE
POSSIBLE RESOLUTION
— Over what period is the fluctuation determined?
— What Is required to be "stable"?
o What is a "period sufficient to establish the
continuity, quantity, and regularity" of a release
3. When is reporting required for releases that are
subject to Section 103(f)(2)?
o How is "statistically significant increase in the
quantity ... released" interpreted?
o What is the interpretation of "annually, or at
such time as there is any statistically signifi-
cant increase?"
o Is any reporting required?
o Is any monitoring required?
o One or several reporting periods for particular substance,
o Some other time period.
o The frequency of release,
o The rate of flow.
o Uniform period for all releases
- single report
- several' reports
- select "lowest common denominator" (i.e. longest period
necessary for any one release) and apply to all releases.
o Sliding scale (i.e. different periods for different kinds of
releases)
- based on the reporting period for RQs
- based on nature of substance.
o When release exceeds an expected range based on
statistical tables (e.g.. Student's t").
o When release exceeds by a pre-established factor the amount
usually released (e.g., ten times the daily average).
o Let the releaser determine when a statistically significant
increase occurs for the particular process and industry
InvoIved.
o Alternative requirement — report either annually or when
there Is a statistically significant increase.
o Joint requirement — report both annually and when there is
i a statistically significant increase.
o Yes or no.
o Yes or no.
February I Draft * * * Do Not Quote or Cite
-------
2-4
Section 107 of CERCLA. Responsible parties are more likely to respond where
liability is more certain, but even if they do not, the government will be
able to sue to recover its cleanup costs.
(2) To prevent releases. Another way of avoiding the reporting burden of
Superfund is to prevent releases from occurring. Although many continuous
releases are by-products of necessary industrial processes, the expense and
trouble of reporting and the penalties for failure to report may be additional
incentive for releasers to reduce these releases below the reportable
quantities. An additional incentive may exist when the substance released has
some commercial value if it is recovered, but that value is not sufficiently
great to make recovery worthwhile unless reporting costs can also be reduced.
In many cases, however, it may be less expensive to report releases than to
prevent them.
(3) To increase the coverage of permit programs. Reporting of releases
could help the government identify releasers that should be 'brought into
permit programs and additional substances that should be covered by these
permits. In addition, because no reporting is required of releases that are
federally permitted, the regulated community has an incentive to apply for the
appropriate permits in order to avoid having to report continuous releases.
If reporting costs are low, however, it may be less burdensome to report
releases than to obtain permits for them. It should also be noted that
certain permit programs are not concerned with small (de minimis) releases.
If the RQ is low for substances covered by such programs, there may be no
practical alternative for releasers than to report small continuous releases
of these substances under CERCLA.
(4) To provide a detailed data base. In order to study the long-term
public health, welfare, and environmental effects of hazardous substances, it
may be necessary to have detailed information on the kind and quantity of
these substances released into the environment. Since continuous releases may
be a major source of hazardous substances entering the environment, reporting
of these releases could contribute to the accuracy of any such study and to
the success of any programs that are instituted on the basis of study
findings. These programs could result in prevention or containment of
releases or in education efforts that reduce potential exposure to hazardous
substances. Thus, in addition to the benefits already mentioned, reporting of
continuous releases could help provide a useful, detailed data base.
These four possible purposes are not mutually exclusive, and each or some
combination may have been intended as the rationale for the notification
requirements of Section 103(a) and (b).
The exemption from some of the reporting requirements for certain
continuous releases provided by Section 103(f)(2) apparently has a completely
separate purpose. Congress may have seen that requiring all non-federally
permitted releases to be reported would place too great a burden on both the
regulated community and EPA. As long as releases are "continuous" and
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
2-5
"stable", less frequent reporting would be sufficient to fulfill the purposes
of Section 103(a) and (b) discussed above. Because it makes continuous
release notification less burdensome, the Section 103(f)(2) exemption probably
makes it more likely that releasers will report continuous releases and thus
potentially increases the likelihood that one or more of the four possible
purposes of reporting noted above will be realized.
The next section of this chapter discusses which releases may qualify for
the exemption provided by Section 103(f)(2).
2.2 RELEASES THAT QUALIFY FOR THE SECTION 103(f)(2) EXEMPTION
Only releases that fulfill the statutory requirements set forth in Section
103(f)(2) initially qualify for the limited exemption set out in that
section. Among other things, the release must be "a continuous release,
stable in quantity and rate" and notification must have been given in
accordance with Section 103(c) (hazardous waste sites) or in accordance with
Section 103(a) and 103(b) "for a period sufficient to establish the
continuity, quantity, and regularity of such release." To remain qualified
for the exemption, reporting is also required annually or at times of
statistically significant increases in the amount released. This last phrase
is discussed in Section 2.3 below. Three undefined phrases are of particular
interest to this discussion of the requirements to qualify initially for the
exemption:
* "continuous releases";
* "stable in quantity and rate"; and
* "period sufficient to establish the continuity,
quantity, and regularity."
The statute does not require EPA to define these phrases, and the Agency may
choose not to do so. If the Agency chooses not to define these key phrases,
however, it is foregoing an opportunity to determine the scope of the
exemption provided by Section 103(f)(2).
By defining these phrases broadly, more releases will fit within the
exemption and more relief will be given to the regulated community. If a
large number of releases are included within the exemption, the possible
purposes of Section 103(a) and (b) (encouraging permitting, preventing
releases, fostering clean-up, and gathering information) may be less fully
carried out. At the same time, however, the burdens on the regulated
community and EPA are reduced. Reducing the Agency's burden may enable it to
spend more time and money on the releases that are being reported. If the
phrases are defined narrowly so that fewer releases fit within the exemption,
just the opposite occurs: the possible purposes of Section 103(a) and (b) may
be furthered while the burdens are increased. EPA will want to balance the
costs and benefits and select a definition for each phrase in the statute that
best furthers the Agency1s goals.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
2-6
Whatever definitions EPA chooses for the terms in Section 103(f)(2), the
Agency .will need to establish whether treatment under Section 103(f)(2) is
mandatory for those releases that fulfill the Section's requirements, or
whether a continuous releaser can continue to report under Section 103(a) and
(b). In most instances, members of the regulated community may prefer to take
advantage of the Section 103(f)(2) exemption. In certain circumstances,
however, the reporting entity may find it too burdensome to measure a
continuous release accurately enough or may otherwise determine that it is not
worth establishing its qualification for the exemption.
2.2.1 Definition of "Continuous"
The definition of which releases are "continuous" is central to the
determination of the public health, welfare, and environmental effects of any
continuous release notification strategy. Both the costs and benefits of any
regulation will be affected by the definition selected for "continuous."
Possible definitions range from a narrow, literal interpretation requiring an
unbroken flow or drip to a broad interpretation encompassing routine, but
intermittent, releases incidental to normal business operations. Four types
of releases that cover this range are considered here:
(1) Literally continuous releases;
(2) Releases that are continuous only during operating
hours;
(3) Releasesvfrom batch operations; and
(4) Routine anticipated intermittent releases.
EPA will want to decide how far to extend the definition of "continuous"
based on how it weighs the costs and benefits and practical considerations of
regular Section 103(a) and (b) reporting against the costs and benefits of the
Section 103(f)(2) exemption. This could be done by first determining, based
on the purposes of reporting, what particular types of releases should be
exempted under Section 103(f) and then selecting a definition of "continuous
release" that covers such releases. The initial determination of which
releases should be exempted could be based on an examination of the releases
covered by existing media permit programs. Each of the four types of releases
is discussed briefly.
Literally Continuous Releases. Releases of hazardous substances which
are literally continuous, meaning that they enter the environment 24 hours a
day, 365 days a year, include leaking pipes or lagoons containing hazardous
substances being released into surface water, leaching into the soil or
groundwater, or evaporating into the air. Many of these literally continuous
releases are at very low levels. Low-level releases are often difficult to
measure accurately. In addition, identification of these releases is highly
dependent on the state-of-the-art in monitoring techniques, which differs
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
2-7
among industries, processes, and media. EPA-will want to consider the
limitations of monitoring technology when establishing reportable quantities.
Low reportable quantities may not only increase the reporting burden but may
dramatically increase the need for monitoring in order to measure small
releases.
Releases Continuous Only During Operating Hours. Another category of
releases that could be considered 'continuous ' are those that are continuous
only during operating hours, such as releases from some paper and pulp
processes. It can be argued that releases that are continuous only during
operating hours are not literally continuous and should not be considered
"continuous" under the statute. On the other hand, it can be argued that
excluding such releases from the definition of continuous has the effect of
making only two types of releases subject to the exemption, those resulting
from holding hazardous substances (as in pits or lagoons) and those resulting
from 24-hour-a-day, 365 day-a-year operations. There are very few of the
latter, since almost all operations experience some down time or closure
(e.g., plant shut-downs for maintenance). In addition, establishing that an
operation is literally continuous could require extended and potentially
expensive monitoring. Thus, in practice, only releases that resulted from
holding or storing hazardous substances would qualify for the exemption.
Releases from Batch Operations. Many operations more closely resemble a
batch process rather than a continuous process, such that releases are not
occurring continually during operating hours. An example is electroplating,
where releases occur during much, but not all, of the business day. In
defining "continuous" "to include releases that are not at least continuous
during all operating hours, EPA will have to determine and specify how
non-continuous a release can be and still fit within the definition. Drawing
such lines, although difficult, may be necessary to ensure that the purposes
of Section 103(f)(2) are fulfilled and that the expected benefits are realized.
Routine Anticipated Intermittent Releases. At the other end of the
continuum from literally continuous releases are routine anticipated
intermittent releases. These are predictable, routine, regularly-occurring
releases that are incidental to the normal manufacturing or treatment
processes or operations of facilities or vessels. Examples include releases
from release valves, the maintenance of pollution control equipment, charging
of coke oven batteries, and tank cleaning operations. These releases may
occur hourly, daily, or less often; although not literally continuous, there
is a continuing and stable probability that a release of a predictable size
into the environment will occur. EPA must decide whether to include routine
anticipated intermittent releases in the definition and, if they are to be
included, what kinds of anticipated intermittent releases should be included.
For example, weather-related releases, such as overflows of berms due to rain
or releases from "pop" valves in tank trucks caused by heat, are not nearly as
predictable as releases from operations that occur at the end of each shift at
a plant.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
2-8
Whatever categories of releases are included in the definition of
continuous, EPA may need to resolve one other issue: whether all emissions of
a particular hazardous substance at a plant or facility are to be considered
one release or whether each separate source in the plant or facility is to be
considered a separate release. The plant-wide approach is similar to the
"bubble" concept used in certain air programs under the Clean Air Act. If the
plant-wide approach is taken, more individual releasers may be required to
report since some plants may have a number of individual sources of small
releases which together equal the reportable quantity, but none of which alone
equals it. On the other hand, if each point source is considered separately,
fewer releasers may need to report, but those reporting will be making a
relatively greater number of reports.
It is unclear which of the two approaches is less burdensome overall and
which has the greater benefits. The first approach, however, because it
aggregates all releases from a facility, may be more likely to include small
releasers than the second approach. EPA may wish to minimize the burden on
the regulated community by letting the releasers choose which approach to take.
2.2.2 Definition of "Stable in Quantity and Rate"
The releases exempted from immediate notification in Section
103(f)(2) must be not only continuous but also "stable in quantity and rate."
This phrase raises two problems that EPA may resolve: (1) how stable must a
release be; and (2) what kinds of releases can be considered stable? With
respect to the first of these problems, if no fluctuation at all were allowed
in the quantity and rate of release, virtually no releases would qualify for
the exemption. It seems likely, then, that some fluctuation in quantity and
rate will be tolerated, but how much (e.g. 2 percent, 5 percent, 25 percent,
50 percent) can occur and over what period this fluctuation will be measured
are major issues that will affect which releases can qualify for special
treatment under this section. Both the fluctuation in the amount of
continuous releases and the measurement accuracy attainable vary greatly for
releases of different substances, into different media, and from different
processes.
EPA may want to take these differences into account in establishing
acceptable fluctuations, perhaps even setting different fluctuations for
different substances, media, industries, or processes. EPA may also want to
take into account the length of the period over which the reportable quantity
is measured in establishing the period to be used to measure the stability of
the release. EPA could also decide that stability should be measured over at
least several reportable quantity periods to improve the statistical validity
of the sample.
The problem of reporting continuous releases of radionuclides is an
excellent example of why EPA may want to define "stable in quantity and rate"
differently for different substances or processes. Radionuclide discharges
from abandoned sites and from nuclear power plants tend to be much more stable
than discharges from hazardous waste sites. Thus, EPA might wish to establish
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
2-9
smaller permissible.fluctuations for radionuclides than for other substances.
This is not a complete answer to the problem, however, since radionuclide
releases from production facilities utilizing radionuclides (such as
manufacturers of gauges or radiopharmaceuticals) may fluctuate much more than
those from nuclear power plants.
EPA may also allow certain continuous releases to qualify as stable
without requiring actual measurement or estimates of the quantities being
released. EPA may presume, for example, that continuous releases from
facilities that have complied with permit requirements under other statutes
for some pre-established period of time are stable in quantity and rate. This
presumption could be applied even to substances not covered in the permits and
to permits issued by any local, state, or federal agency. This approach
lowers reporting costs and encourages firms to obtain permits, but it could be
challenged as not furthering the purposes of continuous release notification
(e.g., cleaning up and preventing releases, gathering information for later
use).
The second problem raised by the phrase "stable in quantity and rate" is
determining the kinds of releases that can be considered stable. Releases
that are either literally continuous or continuous only during operating hours
can be sufficiently stable if the quantity and rate of the release stays
within the established limits. If the definition of stable in quantity and
rate includes a stable frequency of release of a hazardous substance, then
some releases from batch operations and intermittent releases could also be
included in the Section 103(f)(2) exemption. If, however, the language is
interpreted as a stable rate of flow,' then only releases that are either
literally continuous or continuous during operating hours may qualify for the
exemption.
This second problem raises two other issues. The first is whether
weather-related releases should be included in the Section 103(f)(2)
exemption. Weather-related releases tend not to be as stable in quantity or
rate as some other anticipated intermittent releases, but if the definition of
"stable in quantity and rate" allows a sufficiently great fluctuation, they
may be included. If, however, the allowable fluctuation is broad enough to
cover weather-related releases, so many releases might be included in the
Section 103(f)(2) exemption that not enough reporting would be required to
carry out the purposes of Section 103(a). As a result, the benefits of
Section 103(a) notification may not be realized.
Finally, EPA may need to clarify what "stable in quantity and rate" means
with respect to those wastes that are designated as hazardous in Section
101(14) only on the basis of their ignitability, corrosivity, reactivity, or
toxicity (based on the RCRA regulations, 40 CFR 261 Subpart C). EPA could
determine that stability is established:
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
2-10
(1) Only when the amount of a specific ignitable,
corrosive, reactive, or toxic substance released is
stable. In other words, the release can qualify for
the exemption only if the same substance is present in
the same quantity in each release; or
(2) Only when the total amount of substances having one
of.the four characteristics is stable. In other
words, the amount of, say, ignitable substances
released must be stable, but the same specific
substances need not always be released; or
(3) Whenever the amount of substances released having any
of the four characteristics is stable. This means
that the release need not always contain the same
substance or even substances having the same
characteristics, as long as the amount of substances
_ having any of the four characteristics is stable.
Monitoring for.these characteristics may be difficult under any of these
alternatives. The first of these interpretations will lead to the fewest
number of hazardous waste releases qualifying for the Section 103(f)(2)
exemption, while the last interpretation will allow the greatest number of
such releases to qualify for the exemption.
2.2.3 Definition of "Period Sufficient to Establish the
Continuity.* Quantity, andsRegularity"
The phrase "period sufficient to establish the continuity,
quantity, and regularity" governs the period of regular reporting under
Section 103(a) and (b) required to establish that the release qualifies for
the Section 103(f)(2) exemption. The inclusion of releases from batch
operations or routine anticipated intermittent releases complicates the
determination of this period. If only literally continuous releases or
releases that are continuous during operating hours are covered by Section
103(f)(2), a few daily telephone calls to the NRC may be enough to determine
the continuity, quantity, rate, and regularity of the release. An
intermittent release that occurred weekly, on the other hand, might require
several months-of reporting under Section 103(a) and (b) to establish its
quantity and regularity. EPA may find that an even longer period is needed
for some releasers.
There are at least three ways to interpret the "period sufficient to
establish ...." One is to require a single period for all releases. Under
this interpretation, EPA might determine that a single report or several
reports (which might be telephone calls) are sufficient to establish the
period. EPA might find that the period would have to be the "lowest common
denominator" -- the longest period of time for establishing the regularity of
any release qualifying for the Section 103(f)(2) exemption would serve as the
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
2-11
period for all releases. Otherwise, those releases needing the longest
reporting period might not be sufficiently documented.
An alternative to a single period is a sliding scale that establishes
different periods for different types of releases. For example, daily
releases might require 3 or 4 successive days of telephone notification before
the continuity, quantity, and regularity of the release is sufficiently
established. Releases that occur once every two days on the average might
require 4 or 5 days to a week of notification before the continuity of the
release is established. Weekly releases could require a month of notification
(i.e., four reports), and so on, depending on how intermittent a release can
be and still be "continuous" for purposes of Section 103(f)(2). The single
period is administratively simple to apply, but the sliding scale could reduce
unnecessary immediate notification.
A third option, which may obtain the benefits of both the single and the
sliding scale approaches is to require that a set number of reports be made
before the exemption can be used. For example, if ten reports are required, a
daily release could qualify in ten days, a weekly release could qualify in ten
weeks, and so on. Some limit, such as one year, might be set for the maximum
period over which reports would be required.
The appropriate period of reporting sufficient to establish a release as
continuous cannot be established without consideration of the reportable
quantity and the period over which the RQ is measured. EPA will want to
ensure that the period of reporting required under Section 103(f)(2) makes
sense in light of t&e period over which a reportable quantity is measured.
For example, if the reportable quantity of a substance is set at a low level,
the measurement error could be greater than if the RQ were set higher. Thus,
where a substance has a low RQ, EPA may want to receive more reports of a
release before its "continuity, quantity, and regularity" is established.
As another example, EPA may decide to require only one continuous release
report for most of the hazardous substances in Superfund, but may require
extended reporting for those few that have the lowest RQs. To accomplish
this, EPA may want to set the Section 103(f)(2) reporting period for
substances with the higher RQs equal to the period over which the reportable
quantity is measured. The period selected should make sense both for
measuring the reportable quantity and for establishing the continuity,
quantity, and regularity of a continuous release.
EPA may want to take other factors into account as well when establishing
the Section 103(f)(2) period:
(1) Age of facility. A longer reporting period to
establish continuity may make more sense for new
facilities than for old ones since new operations
sometimes need to go through a shake-down period
during which releases may be less stable than those at
older plants.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
2-12
(2) Different substances, processes, and media. EPA may
also want to distinguish among different substances,
processes, and media in establishing a reporting
period. For example, the releases from some processes
may be more sensitive to changes in weather, chemical
reactions being used, or the operating temperature.
Emissions from publicly-owned treatment works (POTWs)
and from abandoned radioactive sites may vary with
rainfall, but radionuclide discharges tend to be much
. more stable overall than those from POTWs. A full
month of reporting from a plant using radionuclides in
its production processes may be sufficient, while a
shorter period may be enough for nuclear power plants
and a longer period, perhaps covering different
seasons, may be necessary for a POTW.
(3) Small entities. In addition, EPA might give special
consideration to small businesses and small
municipalities in order to fulfill the mandate of the
Regulatory Flexibility Act.
EPA may also want to consider who determines which releases qualify for
the Section 103(f)(2) exemption. Perhaps EPA's regional personnel or the
personnel of states to which federal permitting authority has been delegated
should review the reports and certify when there has been enough reporting and
when releases otherwise fulfill the requirements of the exemption.
Alternatively, EPA cou;ld allow the regulated community to determine which
releases qualify. If fcPA certification is required, more EPA resources will
be required and delays may result, but if the releasers make the determination
themselves, the application of the established rules could be uneven, possibly
decreasing the benefits of the notification program.
The next section discusses when releases qualifying for the Section
103(f)(2) exemption must be reported.
2.3 WHEN IS REPORTING AND MONITORING REQUIRED OF RELEASES
QUALIFYING UNDER SECTION 103(f)(2)
As mentioned previously, releases that qualify under Section 103(f)(2) are
accorded only a limited exemption from the Section 103(a) and (b) reporting
requirements. These releases must still be reported "annually, or at such
time as there is any statistically significant increase in the quantity of any
hazardous substance or constituent thereof released, above that previously
reported or occurring." This section investigates the possible meanings of
this clause and is organized as follows:
(1) Possible interpretations of "statistically significant
increase in the quantity . . . released";
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
2-13
(2) Possible interpretations of "annually, or at such
time as there is any statistically significant
increase in the quantity" of substances released
[emphasis added]; and
(3) Whether monitoring of continuous releases is required.
2.3.1 Possible Interpretations of "Statistically Significant
Increase in the Quantity ... Released
Subsection 103(f)(2) mentions two instances when notification of
continuous releases must be provided: annually "or at such time as there is
any statistically significant increase in the quantity of any hazardous
substance . . . released." Annual notification is unambiguous and the
interpretation of the "or" in this phrase is discussed in the next section.
The issue of what is a "statistically significant increase" is a major
definitional problem and is discussed here.
Whenever a measurement is taken, there is the chance that it is in error.
If one measurement of a release is larger than another one taken earlier,
there is no certainty that the amount released has actually increased; either
or both of the measurements may be incorrect. In the case of continuous
releases, however, neither Section 103(f)(2) nor the legislative history
indicates how certain the releaser must be that the quantity of the release
has increased or how great the suspected increase must be in order for there
to be a "statistically significant increase." Nor does Section 103(f)(2)
prescribe how many samples, if any, should be taken to determine that there
has been a "statistically significant increase."
• There are at least three ways of handling the term "statistically
significant increase." The first is to require reporting whenever a measured
release falls outside some expected range based on statistical tables, such as
the "Student's t" test.1 Some RCRA regulations and radionuclide safeguard
regulations use this kind of approach. A second way is to require reporting
whenever the measured release exceeds the amount ordinarily released by some
pre-established factor (some other radionuclide safeguard regulations take
this approach). For example, this factor could be 2, 5, or 10 times the daily
average. The strictest interpretation of the term "statistically significant
increase" would probably not allow use of the same simple multiple to
determine
1A "Student's t" test is used to determine whether there is a
statistically significant difference between the hypothetical mean of a
population and the mean of a sample of that population. In this case, the
hypothetical mean is the previously-determined average amount or concentration
of hazardous substances released, and the sample mean is the average of the
releases being measured.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
2-14
significance in all cases. Although the first approach may appear to have a
sounder scientific basis, the second approach has the advantage of
administrative ease. Both approaches could be used to set the required level
of increase as high or as low as is desired.
A third approach is to let the reporter interpret the term. This approach
is taken in some POTtf permits. It leads to uncertainty for the regulated
community, however, and creates difficulties in enforcement (note that POTWs
are subject to monitoring requirements and periodic inspections, reducing
enforcement difficulties). Examples representing several of these alternative
definitions are analyzed further in Chapter 4.
2.3.2 Possible Interpretations of "Annually, or at Such Time
as There is any Statistically Significant Increase1
Section 103(f)(2) gives releasers a limited exemption from the
Section 103(a) and (b) reporting requirements, but only if reporting is done
"annually, or at such time as there is any statistically significant increase
in the quantity" released [emphasis added]. The problem discussed here is the
use of the word "or", which might be interpreted to mean that reporting
either annually or at times of such increases is sufficient, or that
reporting both annually and at the times of these increases is required. If
EPA determines that reporting is required either annually or when there is a
statistically significant increase, a related issue to be resolved is whether
EPA or individual releasers will select which alternative will be used.
The language of the statute can be used to support both interpretations.
It can be argued that if Congress had intended reporting at both times, it
would have said "and" rather than "or". On the other hand, it is easy to
accept the notion that Congress intended reporting to be done annually, except
when statistically significant increases occur between annual reports, in
which case reporting is also required. The legislative history provides no
guidance as to the meaning of this language. The different interpretations
do, however, have different costs and benefits that can be investigated.
If EPA requires reporting both annually and at times of statistically
significant increases, the reporting costs to industry could be highest, and
the benefits, in terms of encouraging permit applications, preventing and
cleaning up releases, and obtaining information, may also be greatest. In
this case, EPA might decide to reduce the reporting burden by changing the
anniversary date for annual reporting and starting the one-year period anew
each time a statistically significant increase is reported. If EPA instead
requires reporting at only one of the two times (and specifies which one), the
costs will be reduced, but the benefits of reporting might also be reduced
since less reporting is required. Finally, if EPA leaves it up to the members
of the regulated community to choose to report annually or at times of
statistically significant increases, they will presumably choose the least
costly alternative. This will probably be the alternative which requires the
fewest reports. Thus, the reporting costs will be minimized, but the benefits
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
2-15
may also be decreased. An example of an option' which allows the regulated
parties, to decide this issue is reviewed in Chapter 4.
2.3.3 Requiring No Monitoring of Continuous Releases
Section 103(f)(2) does not mention monitoring. It would seem that
EPA is free either to impose specific monitoring requirements or not.
Specific monitoring requirements could add substantially to the cost of a
continuous release notification policy, but they could also increase the
accuracy of the information reported and the benefits available from using
it. EPA may weigh these increased costs and benefits to determine whether
specific monitoring requirements should be imposed and, if they are, what the
requirements should be.
2.4 SUMMARY
This chapter has attempted to clarify and explain the many complex issues
associated with establishing a continuous release notification policy and a
reasonable exemption policy. The range of possible resolutions of the issues
and the factors that could be considered in choosing among the alternatives
are presented for EPA's consideration. The next chapter reviews the
alternative program strategies for implementing a continuous release
notification policy.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
CHAPTER 3
ALTERNATIVE PROGRAM STRATEGIES
3.1 INTRODUCTION
The difficulty of resolving the issues presented in Chapter 2 would appear
to suggest a two-step approach to implementing a continuous release
notification program. First, EPA would choose an overall program strategy for
developing the best alternatives for a continuous release notification
program. The strategy would embody EPA's goals and purposes for such a
program. The baisic choice of strategies is whether to propose a continuous
release notification program now without more detailed consideration of the
continuous release problem in industry, or whether to defer final guidance
until after the problem of continuous releases has been analyzed more
carefully. These strategies are discussed in this chapter.
The second step for implementing a continuous release notification program
is to develop a list of reporting and monitoring options that will establish
the conditions for the exemption. Given the limited understanding of the
continuous release problem, the examples of reporting and monitoring options
developed in this report cannot be exhaustive. Pursuing a more detailed
analysis of the continuous release problem, as suggested in two of the three
strategies discussed below, may yield information to expand these options
beyond the basic reporting and monito.ring approaches given here. Examples
covering the range of potential reporting and monitoring options are presented
in Chapter 4.
Three alternative strategies for the development and analysis of reporting
and monitoring options have been identified. The three strategies discussed
in this chapter are not the only possible ones. Most other strategies are
only slight variations of these, however, so for simplicity, the discussion is
limited to these three.
One strategy is for EPA to establish a program for notification of
routine releases in the near future, choosing from the examples of reporting
and monitoring options discussed below in Chapter 4. Under this strategy, EPA
would not undertake further analysis of affected releasers. Such a choice,
however, would be based on a limited understanding of the scope and impact of
the continuous release problem.
A second strategy would be to defer providing guidance for a notification
program (beyond what is contained in the statute) until the nature of
continuous hazardous substance releases, the numbers of releasers involved,
and the costs and benefits of reporting these releases have been analyzed in
greater detail. This approach would lead to a notification program with a
stronger economic justification, but in the interim would leave continuous
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
3-2
releasers to interpret Section 103(f)(2) themselves and decide whether they
have satisfied its provisions.
A third strategy would be to establish an interim notification policy
with a minimum burden on the regulated community and to defer specifying a
final continuous release notification policy until the effects on responsible
parties and their releases have been analyzed in detail. The three strategies
and the advantages and disadvantages of each are summarized in Exhibit 3-1 and
described in detail in this chapter.
3.2 STRATEGY 1. ESTABLISH A NOTIFICATION EXEMPTION PROGRAM WITHOUT
UNDERTAKING FURTHER ANALYSIS OF AFFECTED MEDIA AND INDUSTRIES
The first strategy is for EPA to propose a program for notification of
continuous releases in the near future, choosing from the reporting and
monitoring options that can be developed without more extensive study of the
continuous release problem, the affected media, and the relevant industries.
In this case, EPA would publish a rule or interpretation of the Section
103(f)(2) exemption -- perhaps as early as 1982. Prompt implementation of a
continuous release notification program has several advantages and
disadvantages. The advantages include:
• Relative certainty. The regulated community will
know soon what releases are covered and how they should
report. It appears that most releasers prefer to know
as soon as possible how EPA will interpret the language
of Section 103, so they1can proceed with their
operations without fear of liability for being in
noncompliance; and
• Earlier benefits. Releasers will be less likely to
report more continuous releases to the National
Response Center than is needed (over-report) or report
fewer continuous releases than EPA would want (under-
report). Over-reporting could waste resources of both
the regulated community and EPA. Given the present low
level of continuous release reporting, however, there
may be no resource savings from avoiding over-
reporting. Under-reporting, in addition to being
illegal, could result in public health and
environmental damage if beneficial clean-up were
delayed or not undertaken at all. It should be noted
that the value of avoiding under-reporting may not be
realized if timely response is not possible for
technical or other reasons.
The disadvantages of establishing a continuous release notification program in
the near future are:
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
3-3
EXHIBIT 3-1
PROGRAM STRATEGIES
Strategy,
1. Establish a notifi-
cation scheme with-
out further analysis
of affected media
and industries
2. Defer further noti-
fication guidance
and study problems
of affected media and
individual industries.
Advantages
• Relative certainty
for regulated
community
'Earlier benefits
• Better options
through additional
information
• Better information
on which to base a
choice among options
• Stronger technical
and "scientific basis
Disadvantages
• Limited program
options
• Limited information
• Uncertainty for
regulated community
• Delay of benefits
3. Establish an interim
notification scheme
and study problems
of affected media
and individual
industries
• Greater certainty
for regulated
community
• Earlier results;
less under- and
over-reporting
• Better options
through addition-
al information
* Possible additional
cost to EPA
• Potential resist-
ance from the regu-
lated community to
interim policy and
to stricter policy
later
• Better information
on the continuous
release problem on
which to base a
choice among options
• Stronger technical
and scientific basis.
February 1 Draft * * '* Do Not Quote or Cite
ICF INCORPORATED
-------
3-4
• Limited options. The reporting and monitoring
options presently are limited because little is known
about the problem. There may be better options that
solve the continuous release notification problem more
cost-effectively; and
• Limited information. Whether or not there are more
reporting and monitoring options, the package of
options chosen without further study may be ill-advised
because information necessary to assure that the chosen
option maximizes net benefits may be currently
unavailable.
Example notification schemes for reporting and monitoring requirements
under this strategy are presented in Chapter 4. An alternative to prompt
selection of a strategy is Strategy 2, discussed below.
3.3 STRATEGY 2. DEFER FURTHER NOTIFICATION GUIDANCE; ANALYZE PROBLEMS
OF AFFECTED MEDIA AND INDIVIDUAL INDUSTRIES
The reason for proposing Strategy 2 is the present state of under-
standing of continuous releases. The magnitude and incidence of the problem
of continuous releases of hazardous substances is largely unknown at this
time. Extensive interviews with EPA permit program personnel, industry
representatives, and environmental groups have emphasized the difficulty of
defining the scope of the problem or quantifying the economic impacts on the
industries and municipalities likely,, to be involved in a continuous release
notification program.
Under the second strategy, EPA would give no guidance beyond the language
of the statute, leaving responsible parties to interpret on their own when
they should report releases to the National Response Center. EPA (probably
OERR), meanwhile, would begin a more intensive study of the continuous release
problem. The study would consider both the media effects of continuous
releases and the industries most affected. Identifying what media are
adversely affected by what kinds of continuous releases will help identify
those releasers of greatest concern to a program exempting continuous releases
from notification requirements.
While the media effects are being analyzed, the study would examine which
industries have non-permitted continuous releases of hazardous substances at
or above the reportable quantities and how the firms normally handle such
releases. This would help EPA understand what continuous releases need to be
reported to implement Section 103(f)(2) meaningfully. Included in this study
would be an investigation of the role of the permit programs and how they
affect continuous releases. Existing sources of information, such as the
industry studies done for the effluent guidelines program and for the early
' RCRA regulations, would provide most of the data for these studies,
considerably reducing the study costs.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
3-5
The study could also examine the costs and benefits of various reporting
and monitoring options as they relate to different industries and sizes of
firms and municipalities. For example, in some industries already regulated
by other permit programs, continuous release monitoring costs may be lower
because of existing sampling equipment and trained personnel, while other
kinds of firms would have higher initial costs. Further analysis could
identify the distribution of such costs among industries. An
industry-by-industry1 examination might be the most efficient way to
approach the problem. The information to be obtained would ideally include
the data listed in Exhibit 3-2.
Simultaneous analysis of media effects and industry problems would enable
the Agency to study immediately those industries of greatest concern, while
identifying other releasers that should be considered. The analysis of media
effects might also suggest that some releasers included in the initial group
of industries to be studied do not actually warrant closer scrutiny. An
approach for these media and industry studies is described in Appendix C.
The advantages and disadvantages of this strategy focus on the benefits of
better information about the continuous release situation and the potential
problems of delaying the'notification program. The effects of this strategy
are almost the opposite of Strategy 1. Advantages include:
• Better options. More information will help identify
more reporting and monitoring options than could be
considered under Strategy 1. These options may be
better tailored to the actual continuous release
problem, including whether such features as
establishing small releaser exemptions or combining
monitoring requirements with requirements under
existing permit programs should be part of a
notification program;
industries which might be considered for study, by SIC code, include:
10 Metal Mining, 24 Lumber and Wood Products, 26 Paper and Allied Products, 28
Chemicals and Allied Products, 30 Rubber and Plastic Products, 34 Fabricated
Metal Products, 35 Machinery, except Electrical, 36 Electric and Electronic
Equipment, 495 Sanitary Services, and 5161 Wholesale Trade, Chemicals. Other
candidates are those discussed in Section 5.3.2.1. SIC codes are from Office
of Management and Budget, Standard Industrial Classification Manual. 1972
(with 1977 Supplement). The SIC codes listed here were selected in ICF
Incorporated, Economic Impact Analysis of the Revisions to the National Oil
and Hazardous Substances Pollution Contingency Plan (Draft), November 2,
1981, pp. 5-16 to 5-35.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
3-6
EXHIBIT 3-2
DATA NEEDS FOR STUDY OF POTENTIALLY AFFECTED INDUSTRIES
1*. Number of Known Continuous Releases
Point of release
Flow/drips
Intermittent anticipated
Quantities (volume)
- Media
Geographical distribution
Intermedia impacts
Industries involved
Size of continuous releasers (for small business effects)
Permitted vs. non-permitted
Average number of different releases per releaser (bears on use
of the bubble approach)
2. Response to and Effects of Releases
Do releasers know about their continuous releases?
Are these releases now cleaned up?
Would releasers clean up this kind of release if they know about
it?
What are the observed health, welfare and environmental effects
of releases that are cleaned up? Of those that are not cleaned
up?
3. Reporting/Recordkeeping
Cost to industry
• written
• telephone
• record storage
Cost to EPA
• written
• telephone
• record storage
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
EXHIBIT 3-2 (continued)
DATA NEEDS FOR STUDY OF POTENTIALLY AFFECTED INDUSTRIES
Monitoring
What is the current practice and cost to industry
" federal programs
• state programs
° insurance requirements
* own initiative (and reasons for them--e.g., economic,
public relations)
Kinds of monitoring available and costs (i.e., relation of
sophistication to cost)
What kinds of releasers are easily monitored; which are difficult
and/or require more sophisticated techniques
What methods of quality control and quality assurance exist, and
what are their costs
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
3-8
• Better information. Even if the complete range of
options has been identified, better information on the
nature of continuously releasing entities and on costs
and benefits of notification will aid in choosing the
most cost-effective option; and
• Stronger technical and scientific basis. Once the
study has been completed, EPA would have a much
stronger technical and scientific basis for any
continuous release policy that is issued.
The major disadvantages of this strategy are:
• Uncertainty. Until a notification policy is
selected, members of the regulated community will not
know whether they are exempted from reporting
continuous releases. Reporting continuous releases to
the NRC would not be uniform. Many releasers may
erroneously conclude that their releases are exempted
from reporting by Section 103(f)(2); and
• Delay of benefits. The benefits of choosing the
most cost-effective option will be postponed, unless
the best option is to do nothing. Benefits foregone
include prevention of releases, earlier and less costly
clean up of releases that cause long-term damage, and
information that can be*used in health studies, local
planning, and similar activities.
Some of these disadvantages may be avoided by choosing Alternative 3,
discussed next.
3.4 STRATEGY 3. ESTABLISH AN INTERIM NOTIFICATION EXEMPTION POLICY
AND STUDY THE PROBLEMS OF AFFECTED MEDIA AND INDIVIDUAL INDUSTRIES
This strategy entails choosing an interim notification exemption policy
while studying the industries that continuously release hazardous substances.
For example, an interim notification policy could require an initial one-time
notification by all facilities that believe they have continuous releases and
require additional reporting only if the release increases by a great amount,
such as ten times the originally reported release. The interim policy could
also state that EPA will be targeting its enforcement efforts on those
unreported continuous releases that are particularly large (such as 2, 5, 10,
or 20 times the reportable quantity). Further elaboration of the kinds of
options which could be selected now is contained in Chapter 4.
As part of this strategy, a media and industry analysis would be started,
as described under Strategy 2 and in Appendix C. After the analysis was
completed, the interim notification policy would be adjusted. For example,
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
3-9
reporting and monitoring requirements could be altered for all releasers or
for certain industries, exemptions could be made for small releasers or small
quantity releases, a targeted auditing program could be designed, and other
similar modifications could be made. Analysis of special considerations for
small entities is especially important in order to comply with the Regulatory
Flexibility Act. The final notification policy could be similar to the option
that would be chosen under Strategy 2; however, the Strategy 3 reporting and
monitoring option may be influenced by the experience of an interim
notification policy and a better understanding of the problem.
Strategy 3 has the advantages of having a notification policy in place as
soon as possible and of pursuing at a later date a detailed analysis of
continuous releases by industry in order to fine-tune the regulatory options.
These advantages include:
• Greater certainty. The regulated community would
not go through a prolonged stage with no EPA guidance
on continuous release notification requirements as it
would in Strategy 2. They would know now what releases
are covered and how they should report under the
interim notification policy. Many releasers prefer to
know as soon as possible how EPA will interpret the
language of Section 103, so they can proceed with their
operations without fear of noncompliance;
• Earlier results. Benefits could be realized because
releasers^are less likely to over-report or
under-report continuous releases to the National
Response Center than under Strategy 2. Over-reporting,
although unlikely, could waste resources of both the
regulated community and EPA, while under-reporting
could result in public health and environmental damage
if beneficial clean-up were delayed or not undertaken
at all;
• Better options. More information will help identify
more reporting and monitoring options than could be
considered under Strategy 1. These options may be
better tailored to the actual continuous release
problem, including whether such features as
establishing small releaser exemptions or combining
monitoring requirements with requirements under
existing permit programs should be part of the
notification policy;
• Better information. Even if the complete range of
regulatory options has been identified, better
information on the nature of the continuous release
problem and on the costs and benefits of notification
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
3-10
will aid in choosing the most cost-effective final
option to implement the exemption; and
• Stronger technical and scientific basis. Once EPA
has completed the study of continuous releases, any
policy it issues will have a stronger technical and
scientific basis.
The major disadvantages of this strategy are:
• Cost. Implementing an interim program and
initiating a detailed analysis, plus adjusting the
notification program later could cost EPA more than
either of the first two strategies. One way of
reducing these costs, although difficult to implement,
would be to coordinate some or all of the studies under
CERCLA with the studies of the same media or industries
being undertaken elsewhere within EPA; and
• Resistance from the regulated community. Although
the regulated community will not have a long period
with no guidance, it would probably not want to
institute any expensive reporting and monitoring
efforts only to have them changed several months or a
year later. Choosing a very low-burden interim
notification policy may minimize this disadvantage.
Such an interim policy may, however, increase the
likelihood of resistance to the later adoption of
potentially stricter requirements. This resistance
might be particularly great where the new policy is
perceived as requiring only slightly different
information to be reported in a slightly different
form, but with higher costs for the regulated community.
3.5 SUMMARY
Each of the three strategies is designed to lead to the development of
alternative reporting and monitoring options. The ultimate choice among the
strategies depends on a difficult evaluation of factors that are virtually
impossible to measure -- the costs to business of uncertainty, the expected
level of preparation for responding to continuous releases, including
monitoring systems and liability insurance, and so forth. EPA could decide
that the subtle balance of advantages and disadvantages argues for requesting
public comments in the near future, in order to implement the notification
requirements after giving the regulated community an opportunity to offer its
judgments and guidance on the issues just identified. EPA would then have a
stronger base upon which to evaluate the specific options for reporting and
monitoring. Examples of reporting and monitoring options are provided in the
next chapter.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
CHAPTER 4
REPORTING AND MONITORING EXAMPLES
Once EPA selects an overall program strategy for continuous release
notification, the Agency must decide whether to impose any specific reporting
and monitoring requirements on releasers as a condition of the Section
103(f)(2) exemption and, if so, what those requirements should be. The
possible reporting and monitoring requirements have several elements: the
reporting requirements could include the frequency, form, and content of the
notification, and to whom the report is made; the specific monitoring
requirements, if any, could include the frequency, duration, coverage,
monitoring techniques, and points monitored. Each of these elements can be
varied. For example, the frequency of monitoring can be continuous, daily,
weekly, monthly, semi-annually, annually, or some other period.
A reporting and monitoring option, then, is a combination of these several
reporting and monitoring elements. Because each element can be varied, the
number of possible combinations is enormous. In the following sections, the
reporting and monitoring elements are examined more closely, and several
detailed examples of reporting and monitoring options are developed to
illustrate both the complexity of formulating these options and the variety of
options available for EPA's consideration. Exhibit 4-1 illustrates the range
of reporting and monitoring requirements.
4.1 REPORTING REQUIREMENTS
EPA can consider four general issues in fashioning a reporting option:
when reporting is necessary, the form (telephone or written) of the reports,
to whom the notification is given, and the information required to be reported.
Time of reporting. The limited exemption provided by Section 103(f)(2)
from the usual reporting requirements is not available until regular
notification has been made under Section 103(a) for the required initial
period, as discussed in detail in Section 2.2.3 above. This means that,
whatever option is chosen by EPA for defining this period, releasers must
report each continuous release of a reportable quantity until the period has
expired. At that point, if the other requirements of Section 103(f)(2) have
been met, the release qualifies for the exemption.
Under Section 103(f)(2), once the continuity of a release has been
established, reporting is required "annually, or at such time as there is any
statistically significant increase in the quantity ... released." As
discussed in Chapter 2, the use of the term "or" may cause some confusion
about whether releasers must report both annually and at times of increased
releases, or whether reporting at either time is sufficient. In the latter
case, there is the additional question of whether EPA or the members of the
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
4-2
EXHIBIT 4-1
RANGE OF POSSIBLE REPORTING AND MONITORING REQUIREMENTS
Reporting Monitoring
* Telephone reporting when statisti-
cally significant increase in
quantity occurs.
• Telephone reporting annually.
Telephone reporting both annually
and at times of statistically
significant increases.
* Written reporting when statisti-
cally significant increase in
quantity occurs.
• No specific monitoring
requirements
• Monitoring for very hazardous
substances
• Selective monitoring of
several points in plant of
releases for certain hazardous
substances
— Annually
— Semiannually
— Quarterly
-- Monthly
• Selective monitoring of
several points in plant of
releases of all hazardous
substances
— Annually
-- Semiannually
-- Quarterly
-- Monthly
• Comprehensive monitoring of
all possible sources of releases
— Annually
— Semiannually
— Quarterly
— Monthly
• Written reporting annually.
• Written reporting both annually
and at times of statistically
significant increases.
• Written reporting annually and
telephone reporting at times of
statistically significant increases
• Written reporting annually and
written and telephone reporting at
times of statistically significant
increases
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
4-3
regulated community will choose when to report. These questions leave three
options for reporting frequency:
(1) Reporting when statistically significant increases in
quantity occur;
(2) Annual reporting; and
(3) Reporting both annually and at times of statistically
significant increases.
Form of reports. Another issue is the form of the report. Telephone
notification may be an option if only a small amount of easily-conveyed
information needs to.be sent to EPA. Otherwise, some form of written report
may be necessary. EPA might also consider using a combination of telephone
and written reporting, perhaps requiring telephone reporting for statistically
significant increases and written reporting for the initial reports
establishing the continuity and stability of the release and for any annual
reports that are required. The relative burden on the regulated community of
alternative forms of reporting is an important consideration because telephone
reporting is probably significantly less burdensome than other forms. The
Regulatory Flexibility Act, furthermore, requires that EPA consider the
special problems that small entities may have in fulfilling any reporting or
monitoring requirements imposed on releasers qualifying for the exemption.
Reporting to whom. In most instances, continuous releases that are not
federally permitted wijl be reported ,to the National Response Center (NRC).
For some releases, though, releasers may already be required to report to
another federal agency, one of EPA's permit programs, or a state agency.
Examples include:
• A continuous release of radionuclides may be reported
to the Nuclear Regulatory Commission;
• A statistically significant increase in the
concentration of hazardous substances in groundwater
around a RCRA disposal facility must be reported to the
Regional Permit Branch together with a plan to mitigate
the pollution; and
• In some states, a state agency may be designated to
receive reports of hazardous substance releases; under
CERCLA, more states may be encouraged to perform this
function.
Whenever a continuous releaser might report to another authority, there
are two ways such a report would be used to comply with CERCLA Section 103
requirements. Either the federal or state authorities can agree to send
reports of the continuous -release notifications they have received to the NRC
or the Superfund office at EPA, or EPA can make a policy decision that
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
4-4
notifying these other authorities fulfills the notification requirement of
Section 103(f) without further direct notification to EPA.1 Both of these
approaches can help reduce the burden on the regulated community. In the
second approach, however, the information in the reports will often not reach
EPA, making it somewhat less likely that the full benefits of reporting (such
as basing studies on the information gathered) will be realized.
Information to be reported. The regulated community will also want to
know what information it is required to report. EPA may choose to request
some or all of these data:
(1) The identity of the reporter and of the responsible
party;
(2) The chemical composition and physical state of the
release;
(3) The amount, rate of flow, and/or concentration of
hazardous substances being released and whether or not
this represents a statistically significant increase
in the amount previously reported;
(4) The location and/or source of release (i.e., pipe,
stack, lagoon, drain);
(5) The media into which the release occurs (including the
name(s) tof waterways, ptc.)>
(6) The duration and frequency of the release;
(7) The estimated dispersion of the substances;
(8) The methods used to measure the release;
(9) What, if anything, is being done to contain the
release; and
(10) The observed health, welfare, and environmental
effects of the release, if any.
A reporting option can require that any one or group of these be included in
all reports. It is also possible to specify that more information is
necessary for certain substances, that certain reports (such as the annual
report) contain more or less information than other reports, or that EPA can
request additional information later.
1Whether the statute permits this second approach is a question to be
decided by EPA's Office of General Counsel.
February 1 Draft * * * Do Not Quote or Cite ICF INCORPORATED
-------
4-5
The next section discusses possible monitoring requirements under a
continuous release notification scheme.
4.2 MONITORING REQUIREMENTS
Monitoring is not mentioned in Section 103(f)(2), so any monitoring
requirements would stem from the necessity of determining whether a release is
"stable in quantity and rate," and when a "statistically significant increase
in the quantity" 'released has occurred. EPA may decide not to impose
specific monitoring requirements in some or all cases; the measurements of
the quantity released and chemical testing may not be found cost-effective
for all industries. A possible alternative to specific monitoring
requirements is to depend on a plant manager and registered professional
engineer's "best engineering judgment"2 for reporting the quantity,
frequency, and characteristics of a hazardous substance release. Under this
alternative, releasers would incur some costs, but probably less than that
associated with formal monitoring. Another alternative monitoring requirement
is to allow members of the regulated community to choose from a "menu" of ways
to determine the substances and quantities being released, so that the least
burdensome option could be selected. This menu could include:
(1) "Best engineering judgment," which might require a
statement that it is the best information available
without the expenditure of significant costs;
(2) Generally-accepted measurement techniques used in the
industry^ or
(3) Use of monitoring methods specified by regulation, for
specific hazardous substances.
In every case where monitoring is required, several levels of frequency of
monitoring and levels of monitoring detail can be specified. Options for fre-
quency of monitoring include annually, semi-annually, quarterly, monthly or
even continuously. The duration of the monitoring required can also vary
widely. In addition, there are many levels of detail that can be required in
monitoring. Two illustrative levels of monitoring detail, called
comprehensive monitoring and selective monitoring, are described below.
Comprehensive monitoring is defined here as monitoring.for all possible
sources of release--such as leaks, evaporation, venting, leaching, and
runoff. For evaporation, leaching, and runoff, the flow could be estimated by
aEPA may determine that the plant manager's "best engineering judgment"
is sufficient if he is a registered professional engineer.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
4-6
the area exposed, weather conditions, and other factors. For the point
sources, for example three samples could be taken at each source of release
where the amount of release at that point alone exceeds the reportable
quantity. The samples could be tested using standard hazardous substance
testing protocols for amount and concentration of hazardous substances. For
routine anticipated intermittent releases, the amount, concentration,
duration, and frequency of hazardous substance releases could be measured.
Dispersion directions and concentrations could be estimated for each of the
environmental media affected for all continuous releases monitored.
Selective monitoring is based on measurements from some pre-selected
sample points of release into each environmental medium affected. At least
some portion of these samples should be intermittent releases (at facilities
where they occur) that could be tested for a week or for some other measuring
period related to the reportable quantity reporting period. The monitoring
requirements in the comprehensive monitoring scheme described above could be
followed for several sample points and the findings could be extrapolated to
estimate the continuous releases from the entire plant. Selective monitoring
could cover some or all hazardous substances.
The monitoring options suggested here are by no means the only
alternatives for the possible levels of monitoring detail, but they give an
idea of the range of possible monitoring options. The two types of monitoring
can also be used together, possibly with comprehensive monitoring required at
the beginning to qualify for the Section 103(f)(2) exemption and selective
monitoring, or some other less extensive form of monitoring, used thereafter.
EPA may also decide to impose different monitoring requirements on different
substances, processes, or industries. For example, the most hazardous
substances and the processes or industries that most often lead to their
continuous release could have the heaviest monitoring burden. Alternatively,
EPA may determine that special monitoring requirements should be imposed on
hazardous wastes that are specified only by the ICRT characteristics, in order
to reduce potentially high monitoring costs.
The monitoring requirements chosen should, to a large extent, depend on
the information required to be reported and the defined uses for that
information. Major monitoring requirements may not be worth their cost unless
the monitored information is transmitted to EPA and used to adjust permits or
require some form of control. In addition, if a continuous release is defined
as a release of a specific substance plant-wide, it may not be cost-effective
to require every point source at the facility to be monitored. The
combination of monitoring practices and reporting requirements used in the
continuous release notification strategy chosen will depend on the analysis of
costs and benefits of the alternatives evaluated.
In the next section, some examples of reporting and monitoring options are
developed. The examples illustrate the variety of possible options from which
EPA may select and the difficulty of making such a selection.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
4-7
4.3 EXAMPLES OF REPORTING AND MONITORING OPTIONS
The examples described below illustrate the important aspects of a
reporting and monitoring option and the difficulties that must be resolved in
developing a continuous release notification scheme. The five examples
discussed here are not exhaustive; the array of possible options is simply too
vast for an exhaustive consideration of them to be coherent and manageable.
In Appendix D, greater detail is provided about the way that various reporting
and monitoring elements can be combined and the number of possible options.
The five examples that are used provide a cross section of possible
options. They are in no way exhaustive of the choices available to the
Agency. The examples are based on different resolutions of two key issues:
(1) the purposes a continuous release notification scheme is supposed to
fulfill, and (2) the meaning of key phrases in Section 103(f)(2). Each of the
examples is sufficiently different from the others to provide a basis for
comparison and to illustrate how alternative resolutions of the key issues may
affect the notification scheme; yet each of the examples also represents
viable choices that EPA might make.
The issue concerning purposes is two-pronged because any continuous
release notification policy is derived from both Section 103(a) and
103(f)(2). Section 103(a) is the general notification requirement for all
hazardous substance releases that equal or exceed reportable quantities, while
Section 103(f)(2) provides certain continuous releasers with a partial
exemption from Section 103(a) requirements. The temptation is to analyze
these two subsections in isolation from each other, but to do so distorts the
purposes of a continuous release notification policy. It seems clear that
Section 103(f)(2) reduces the burden that some continuous releasers would
incur if they were in strict compliance with whatever notification regime is
ultimately established under Section 103(a). It seems equally clear, however,
that this partial exemption should be structured so that the purposes of
Section 103(a) are not undermined. That is, the Section 103(f)(2) exemption
simply recognizes that, where certain continuous releases are concerned, there
may be a less costly means of satisfying the purposes of release notification
under CERCLA than literal adherence to the requirements of Section 103(a).
The five examples described here are:
• Example 1: Few Releases Qualify for Exemption/Great
Reduction in Reporting Burden for These Releases. A
small group of releases would qualify for significantly
reduced notification requirements;
• Example 2: Dual Track. This example would impose
greater notification burdens on releases of the most
hazardous substances and somewhat lesser burdens on
releases of other hazardous substances;
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
4-8
• Example 3: Many Releases Qualify for Exemption/
Moderate Reduction in Reporting Burden for these
Releases. A large g-roup of releases would qualify for
moderately reduced notification burdens;
• Example 4: Releaser Choice Based on EPA Guidance.
EPA would issue broad guidelines under which releasers
could select which monitoring and reporting methods to
use to satisfy EPA's information request; and
• Example 5: Many Releases Qualify for Exemption/
Large Reduction in Reporting Burden. A large group of
releases would qualify for significantly reduced
reporting requirements.
These examples merely illustrate how options for continuous release
notification can be structured and the difficulty of such an effort; they are
not a set of alternatives from which EPA must choose. For instance, several
aspects of one example could be combined with those of a different example.
EPA could also decide that all of these examples are too burdensome, or that
none provide sufficient information for the agency's purposes.
The choice of reporting periods, for example, is arbitrary. Based on
current knowledge of the continuous release problem, there is no reason why 30
days should be used instead of say, 21 days; 30 days is simply a unit of time
that releasers are accustomed to using (e.g., many NPDES limits are written in
terms of a 30-day period). Similarly, it is not difficult to "mix and match"
aspects of the examples presented below; for example, the monitoring
requirements of one example might be combined with the reporting requirements
of another to form an example different from the five presented here.
To facilitate the design of a continuous release notification program, the
Agency may want first to detemine what releases should qualify for the Section
103(f)(2) exemption. The determination could be based on whether exempting
particular releases would serve the purposes of Superfund. Using this
approach to continuous release notification may enable the Agency to avoid
problems that might occur if a continuous release notification program were
designed without a sense of what kinds of releases would be affected.
Finally, the time periods used in the examples are, to the extent
possible, phrased in terms of reporting periods. Thus, rather than defining a
"statistically significant increase" as a particular level of increase over 24
hours, Examples 1 and 3 define it as a particular level of increase over one
reporting period. When reporting periods are finally selected, a different
approach might be taken. The first four examples are summarized in Exhibit
4-2. All five examples are discussed below.
Example 1: Few Releases Qualify for Exemption/Great Reduction in
Reporting Burden for These Releases. The first example gives significant
relief from the Section 103(a) and (b) reporting requirements to a narrow
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
EXHIBIT 4-2
EXAMPLES OF CONTINUOUS RELEASE NOTIFICATION SCHEME
Issue
Policy objective
What is a "continuous"
release?
"Stable in quantity and
rate"
EXAMPLE 1:
Few Releases Qualify for Exemp-
tion/Great Reduction in Report-
ing Burden for These Releases
Significant relief to small
group of firms, general
information on releases
Literally continuous
releases and releases con-
tinuous only during plant's
hours of operation
The quantity and rate of no
sample is more than 2 to 10
times!*/ as great as the
observed mean of samples
in initial reporting period
EXAMPLE 2:
Dual Track
Moderate relief to Gmall
group or firms, speci-
fic information on
releases, and very
specific information
on the most hazardous
substances
Literally continuous
releases and releases
continuous only during
plant's hours of
operation
Hazardous substances with
low RQs:' The quantity
and rate of no sample is
more than 2 to 5 times!?/
as great as the observed
mean of samples in
initial reporting
period
Hazardous substances with
high RQs: the quantity
and rate of no sample is
more than 5 to 10
times as great as the
obseved mean of samples
in initial reporting
period
EXAMPLE 3:
Many Releases Qualify for Exemp-
tion/Moderate Reduction in Report-
ing Burden for These Releases
Moderate relief to wide group of
firms, specific information on
releases
Literally continuous releases,
releases continuous only
during plant's hours or
operation, releases from
batch operations, and
routine anticipated
intermittent releases
The quantity and rate of no sam-
ple is no more than 2 to 10
times]?/ as great as the
observed mean of samples in
initial reporting period
EXAMPLE 4:
Releaser Choice Based
on EPA Guidance
Minimize reporting and
monitoring burden
Releaser makes choice
based on EPA policy
guidance
Releaser makes choice
based on EPA policy
guidance
I
10
l/The schemes listed here are only examples of the range of possible schemes. There are very many combinations of resolutions of the many issues
posed by continuous release notification.
^/Ranges of values are given here only to indicate the relative size of the increases that would be involved in defining these terms. Detailed
scientific analysis would be necessary to establish a specific number within these ranges based on the number of expected reports during the initial
reporting period under Section 103(f)(2).
February 1 Draft * • * Do Not Quote or Cite
-------
EXHIBIT 4-2 (continued)
EXAMPLES OF CONTINUOUS RELEASE NOTIFICATION SCHEME
Issue
"Period sufficient to
establish" (initial
monitoring-reporting
period)
EXAMPLE 1:
Few Releases Qualify for Exemp-
tion/Great Reduction in Report-
ing Burden for These Releases
30 days or 10' RQ periods,
whichever is longer
EXAMPLE 21
Dual Track
Hazardous substances with
low RQst 60 days or 30
RQ periods, whichever is
shorter.
EXAMPLE 3:
Many Releases Qualify for Exemp-
tion/Moderate Reduction in Report-
ing Burden for These Releases
30 days or enough time to sample
10 reportable releases, which-
ever is longer
EXAMPLE 41
Releaser Choice Based
on EPA Guidance
Releaser makes choice
based on EPA policy
guidance
Hazardous substances with
high RQs: 14 days or 7
RQ periods, whichever is
shorter.
What is a "release"?
Type of monitoring
required
Aggregate of all releases
from facility
Qualitative estimates by
plant or facility manager
and registered professional
engineer
Hazardous substances with
low RQst Aggregate of
all releases from
facility
Hazardous substances with
high RQs: Release from
each individual point
source in facility
Hazardous substances with
low RQs: Comprehensive
monitoring of every
point of release
Hazardous substances with
high RQs: Selective
sampling of release
points.
Aggregate of all releases from
facility
Selective sampling of release
points, with monitoring based
on applicable protocols or, if
none exist, on best engineer-
ing judgment
Aggregate of all releases -
from facility or each
individual point source
considered separately,
at releaser's option
Releaser makes choice
based on EPA policy
guidance
For both types of
substances, monitor-
ing is based on applic-
able protocols or, if
none exist, on best
engineering judgment
Will EPA certify that
release qualifies for
exemption?
EPA does not certify releases;
releaser, subject to EPA's
disapproval, determines when
releases qualify for the
exemption
EPA does not certify
releases; releaser, based
on scientific judgment and
subject to EPA's dis-
approval, determines when
releases qualify for the
exemption
EPA does not certify releases;
releaser, based on scientific
judgment and subject to EPA's
disapproval, determines when
releases qualify for the
exemption
EPA does not certify
releases; releaser,
based on EPA policy
guidance and subject
to EPA's disapproval,
determines when
releases qualify for
the exemption
$/The schemes listed here are only examples of the range of possible schemes. There are very many combinations of resolutions of the many issues
posed by continuous release notification.
February 1 Draft * * * Do Not Quote or Cite
-------
EXHIBIT 4-2 (continued)
EXAMPLES OF CONTINUOUS RELEASE NOTIFICATION SCHEMES^/
Issue
How to report releases
What is reported?
EXAMPLE 1:
Few Releases Qualify for Exemp-
tion/Great Reduction in Report-
ing Burden for These Releases
By telephone
Name of substance(s), amount
released, media affected,
actions taken to contain
release
EXAMPLE 2:
Dual Track
Hazardous substances with
low RQss By immediate
telephone and written
report
Hazardous substances with
high RQs: by telephone
As required by applic-
able protocol; if no
protocol exists, then
name of substance(s),
amount released, media
affected; in any case,
actions taken to con-
tain release
EXAMPLE 3:
Many Releases Qualify for Exemp-
tion/Moderate Reduction in Report-
ing Burden for These Releases
By telephone for initial and
annual reportB, by telephone
plus written report for statis-
tically significant increases
As required by applicable
protocol; if no protocol
exists, then name of sub-
stance (s), amount released,
media affected; in any case,
actions taken to contain
release
EXAMPLE 4:
Releaser Choice Based
on EPA Guidance
By telephone or written
report, at releaser's
option
Releaser makes choice
based on EPA policy
guidance
When must firm report?
Definition of "statis-
tically significant
increase"
When statistically signifi-
cant increases in amount
released occur. (No annual
reporting)
The quantity and rate of no
sample is more than 2 to 10
times!?/ as great as the
observed mean of samples in
initial reporting period
When statistically sig-
nificant increases in
amount released occur.
(No annual reporting)
Hazardous substances with
low RQs: The quantity
and rate of no sample
is more than 2 to 5
timesli/ as great as
the observed mean of
samples in initial
reporting period
Hazardous substances with
high RQs: The quantity
and rate of no sample
is more than 2 to 10
timesi>/ as great as
the observed mean of
samples in initial
reporting period
When statistically significant
increases in amount released
occur, and annual reporting
The quantity and rate of no
sample is more than 2 to
10 times]?/ as great as the
observed mean of samples in
initial reporting period
Annually or at times of
statistically signifi-
cant increases, at
releaser's option
Releaser makes choice
based on EPA policy
guidance
—/The schemes listed here are only examples of the range of possible schemes. There are very many combinations of resolutions of the many issues
posed by continuous release notification.
^/Ranges of values are given here only to indicate the relative size of the increases that would be Involved in defining these terms. Detailed
scientific analysis would be necessary to establish a specific number within these ranges based on the number of expected reports during the initial
reporting period under Section 103(f)(2).
February 1 Draft * * * Do Not Quote or Cite
-------
4-12
group of releasers. Example 1 assures the provision of this relief by
requiring only informal monitoring and occasional reporting, so that EPA
receives reports of only the most obvious increases in otherwise stable
continuous releases. The justification for giving significant relief to a few
releasers is based on a narrow interpretation of "continuous release" —
literally continuous releases and those releases that occur continuously
during operating hours.
Under Example 1, exemptions would be granted only to those entities that
released hazardous substances continuously, either 24 hours a day 365 days a
year, or only during the facility's operating hours. The continuity and
stability of a release would be established during an initial reporting period
of 30 days or perhaps 10 RQ periods, whichever is longer (i.e., this is what
the statute refers to as a "period sufficient to establish the continuity,
quantity, and regularity" of a release).3 A release would be "stable in
quantity and rate" if it were estimated not to exceed by more than some factor
in the range of 2 to 10 times'* the mean of all estimates made during the
initial reporting period. The quantity of a particular substance released
would be defined as the aggregate of all releases from the facility (as in the
"bubble" concept used to control certain air emissions while permitting
releasers to seek the least costly way to achieve the overall limit).
Releasers under this example would estimate their releases each day for 30
days or perhaps 10 RQ periods, whichever is longer, and submit a written
report of the mean amount of each substance released, the sample distribution,
the environmental media affected, and any efforts taken to contain the
release. EPA would not certify that,, releases qualify for the exemption; the
Agency would let the releasers determine which releases qualify, although EPA
would maintain the right to disapprove claimed exemptions for failure to
fulfill the requirements of the exemption. After the initial reporting
period, releasers would report statistically significant increases in amounts
'These periods were chosen somewhat arbitrarily, but 30 days was
selected because it corresponds to the period over which many firms review
their operations. The figure 10 RQ periods was included to ensure that, if a
relatively long period (such as 30 days) were chosen for the period over which
the RQ were measured, enough reports would be generated to give a
reasonably-sized sample.
4A range of values is given here only to indicate the relative size of
the increase that would be used to establish stability in quantity and rate.
Detailed scientific analysis would be necessary to determine a specific number
within this range based on the number of expected reports during the initial
reporting period. This problem is present in Examples 1, 2, and 3 with
respect to the term "stable in quantity and rate" and "statistically
significant increase."
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
4-13
released, meaning any release in one RQ period that exceeds by some factor in
the range of 2 to 10 times the amount of the initially reported mean. These
subsequent reports would consist of telephone calls to the National Response
Center, updating the information reported initially. Monitoring would consist
of informal estimates by the plant or facility manager and a registered
professional engineer based on his expert judgment and using equipment
available, but no specific monitoring equipment or protocols would be required.
This approach may be desirable because it represents both significant cost
reductions for that small group of covered releasers and an insignificant
reduction in quality of information received by EPA. For these literally
continuous releases and releases continuous during operating hours,, daily
reports under Section 103(a) would provide information of only slightly higher
usefulness than occasional reports of large increases, while the cost of
frequent reports would be significantly higher.
Example 2: Dual Track. EPA could vary the approach taken in Example 1
by requiring more attention to a subset of hazardous substances selected
because their RQs are low (e.g., less than or equal to 10 pounds). Thus,
Example 2 is characterized by stricter requirements for releases of substances
with low RQs. While all releases of CERCLA hazardous substances may
constitute a threat of harm to public health, welfare, and the environment,
EPA may wish to concentrate its efforts and the efforts of releasers on those
hazardous substances whose release the Agency has determined should be
reported even when small quantities are involved. In doing so, EPA would
impose the greatest burdens on the releasers of the hazardous substances with
low RQs so that they would be induce4, to prevent releases of these substances
rather than be subject to significant reporting and monitoring costs. In
addition, those releasers that continued to release these substances would be
required to report information that could be used (1) to determine if and when
response is necessary, (2) to help establish liability for harmful releases,
and (3) to help build a detailed data base.
Example 2 defines continuous releases as literally continuous (24-hour a
day/365 days a year) releases or releases occurring only during operating
hours. Releases would not be defined as releases from individual valves or
points within a facility for less hazardous substances, but would be defined
as total amount released from an entire plant for the most hazardous
substances as in the "bubble" concept.
Other requirements would be divided into those for substances with low
RQs. The initial reporting period would be 60 days or 30 RQ periods
(whichever is shorter) for the hazardous substances with low RQs, but only 14
days or 7 RQ periods (whichever is shorter) for other hazardous
substances.5 A release of the hazardous substances with low RQs is "stable
5These periods were chosen rather arbitrarily but are intended to impose
significant burdens on releasers of the hazardous substances with low RQs and
a rather light burden on the releasers of other hazardous substances. i
February 1 Draft * * * Do Not Quote or Cite ICF
INCORPORATED
-------
4-14
in quantity and rate" if no sample in the initial reporting period exceeds by
more than some factor in the range of 2 to 5 times the mean of the samples.
For the hazardous substances with higher RQs, a release is "stable in quantity
and rate" if no sample exceeds by more than some factor in the range of 5 to
10 times the mean of those samples. Releasers themselves would determine
which releases qualify for the exemption based on scientific judgments
although EPA would retain the right to disapprove exemptions for failure to
fulfill the requirements of the exemption.
Statistically significant increases would be defined as any release in one
RQ period that exceeds by some factor in the range of 2 to 5 times the mean of
the initially reported releases for the hazardous substances with low RQs, and
5 to 10 times the mean for other hazardous substances. Subsequent reporting
of statistically significant increases would be by immediate telephone
reporting for all substances, but a written report could also be required for
releases of the hazardous substances with low RQs. Monitoring would also be
more strict for the hazardous substances with low RQs, with comprehensive
monitoring (as described in Section 4.2) required for these hazardous
substances, but only selective monitoring (also described in Section 4.2)
required for hazardous substances with higher RQs. Monitoring in both cases
would be based on protocols where they exist6 and on best engineering
judgment otherwise. Similarly, a releaser would report what is required by
protocols where they exist. In the absence of protocols, the amount of each
substance released and the environmental media affected would be reported,
based on best engineering judgment. In any case, any efforts taken to contain
the release would also be reported.
v
Example 3: Many Releases Qualify for Exemption/Moderate Reduction in
Reporting Burden for these Releases. The third example includes a larger
group of releases than the first two examples. The policy objective of this
example is to obtain from a large number of releasers reasonably reliable
information. Because so many releases would be included, it is necessary to
impose monitoring requirements on qualifying releasers so that EPA may
maintain some quality control on the information received.
In this example, "continuous releases" would include, in addition to
literally continuous releases and those continuous during the operating hours
of the facility, those releases from batch operations and routine anticipated
intermittent releases. These releases would still have to be stable in
quantity and rate—no release reported in the initial monitoring and reporting
period could exceed by more than some factor in the range of 2 to 10 times the
6Protocols here mean sampling and analysis methods established tinder
other EPA or other federal programs for the particular substance and media
involved. The Superfund office will need to identify and maintain a current
list of the protocols that exist.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
4-15
size of the mean of these releases. The mean would be calculated by sampling
the amount released for 30 days or 10 samples, whichever is longer.7
Releases would be defined as all releases of a particular substance from a
plant as in the "bubble" concept. Reporting would be required by telephone
for the initial reporting period and for annual reports. Both telephone and
written reports would be required when a statistically significant increase
occurred, defined as a release over a single RQ period that exceeds by some
factor in the range of 2 to 10 times the size of the mean of the initially-
reported releases. The initial report, as well as all subsequent reports,
would specify the information required in any applicable protocol or, if no
protocol exists, the amount of each substance released and the media
affected. In any case, the releaser would also report any effort, taken to
contain the release. Monitoring would be by selectively sampling release
points throughout the facility (as discussed in Section 4.2).
Under Example 3, releasers would determine when a release qualified for
the exemption, based on scientific judgment, but this determination would be
subject to EPA disapproval for failure to fulfill the requirements of the
exemption. It is not clear whether releasers with batch operations or
anticipated intermittent releases would attempt to take advantage of the
exemption and incur the required monitoring expenses or whether they would
report their releases much more often but without the expense of monitoring.
For example, if Section 103(a) requires reporting but no monitoring, a
facility that releases during batch processes may prefer to report during the
batch production run rather than incur the expense of monitoring required to
establish a Section 103(f)(2) exemption. The extent of relief from the burden
of Section 103(a), therefore, would depend both on the frequency of batch and
anticipated intermittent releases and the cost of the monitoring required
under Section 103(f)(2).
It should be emphasized that EPA need not resolve all the issues for the
notification policy it chooses as has been done under any one of these first
three examples and that it is not difficult to "mix and match" aspects of
each. For instance, it is possible to include anticipated intermittent
releases in the definition of "continuous" and to increase the notification
requirements for the most hazardous substances. It is also possible to
require informal monitoring for hazardous substances with high RQs and
selective monitoring for the substances with low RQs. Each of the examples
presented here represents only one approach to the notification problem, with
the specifics of each alternative based on a particular policy objective.
Numerous other notification schemes might also accomplish the same objective.
7Again, somewhat arbitrary numbers of reported samples must be choosen
here. Thirty days roughly corresponds to the period over which many firms
keep track of their operations. The 10 sample figure is used to assure a
reasonable number of samples in case a long reporting period for RQs is
established (such as 30 days).
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
4-16
Example 4: Releaser Choice Based on EPA Guidance. The fourth example of
a notification program would allow releasers to choose the method of
monitoring and reporting that would be least costly to them, yet which
satisfies general criteria adopted by EPA. The policy objective of Example 4
would be to provide the least-cost method of obtaining information of a
minimum quality from a large group of releasers. It would allow releasers to
choose the method most appropriate to their particular needs, experience, and
processes. At the same time, however, there would be a risk of receiving
information of varying quality from releasers since some would be able to give
higher quality information than others without heavily burdening themselves
(some releasers, especially large operations, might already be gathering much
of the information EPA seeks). This variation in quality might make some
subsequent uses of the information which depend on uniform data difficult
(such as detailed health studies). Example 4 would not, therefore, be
designed to establish a detailed data base, but instead to obtain general
information on the nature and extent of continuous releases.
In Example 4, the Superfund office would issue policy guidance indicating
that notification of continuous releases is required, but that the methods of
obtaining the information reported is left largely to the releaser's
discretion. The policy guidance would give examples of acceptable definitions
of "continuous release," "stable in quantity and rate," "period sufficient to
establish the continuity, quantity, and regularity," and "statistically
significant increase," but the specific interpretation would be left to the
releaser's discretion._
Similarly, the releaser would be*free to choose to report annually or at
times of statistically significant increases and to choose what is reported
and how (by telephone or written report), although EPA would present a set of
permissible (but not exhaustive) alternatives as examples. EPA would also
present in its policy guidance a menu of acceptable monitoring options, such
as (1) established protocols, (2) established industry practices, or (3)
qualitative estimates by plant or facility managers and registered
professional engineers (if accompanied by a statement that better information
would not be obtained without significant expense). EPA would retain the
authority to disapprove any claimed exemption for failure to fulfill the
exemption's requirements and would conduct random audits to ensure accurate
reporting. Any releaser found to be failing to report as required or
misreporting might lose its exemption and be subject to penalties and/or fines
under Superfund.
As part of the policy guidance supporting Example 4 or in separate formal
or informal guidance, EPA may want to indicate where it is targeting its
enforcement efforts in the area of continuous releases. One alternative is to
emphasize enforcement with respect to unreported continuous releases that
exceed some "concern level," defined as a simple multiple of the reportable
quantity (such as 2, 5, 10, 20). This type of alternative may be particularly
useful to EPA before RQ adjustments are made since some RQs may need revision
upward.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
4-17
Example 5; Many Releases Qualify for Exemption/Large Reduction in
Reporting Burden. This example demonstrates how elements of other examples
can be combined to form new examples. Here, the elements of Examples 1 and 3
are combined. Significant relief from the Section 103(a) and (b) reporting
requirements would be given to a large group of releases. The relief would
result because only informal reporting and occasional monitoring would be
required. EPA would receive reports of only the most obvious increases in
otherwise stable, continuous releases. The application of this exemption to a
large number of releases would be achieved by broadly defining "continuous
release," "stable in quantity and rate," and "period sufficient" so that batch
and routine anticipated intermittent releases are included. A policy
objective of this example would be to implement the minimum requirements of
the Act and thereby place the least possible burden on the regulated community
and on the Agency.
A wide-ranging example such as that described above assumes that whatever
reporting is required to establish the continuity, quantity, and regularity of
a release will provide EPA with adequate information about the release, unless
the size of the release is significantly increased. The broad coverage and
limited reporting and monitoring requirements of this example make it unlikely
that the Agency will be able to exercise much oversight of this class of
releases. More attention and program resources, therefore, would probably be
devoted to the problems associated with episodic releases.
Other Examples. The five examples discussed above are intended to
illustrate the range of possible continuous release notification policies that
EPA could implement. None of these five examples is necessarily recommended,
and it is probable that EPA's final policy on continuous releases will differ
from these five examples. There are many other possible examples that could
have been described in addition to or in place of these preceding examples.
To further illustrate the variety of policy designs from which EPA may draw to
construct its continuous release notification program, some program elements
that are not in the five examples are described below.
EPA could decide that the experience and decisions made in other permit
programs might be applicable to the Superfund program. Making use of this
experience can involve adopting the exemption and special treatment granted to
some releases in these other programs, or using the information gathered by
these other programs. Other permit programs have exemptions for certain
releases or allow them special treatment (e.g., small generators under RCRA).
The special treatment that is accorded some releases under other programs is
based on the particular purposes and authorities of the program; these same
purposes and authorities may not be present under Superfund. The exemptions
and special treatment under other programs, therefore, may not be desirable
under Superfund. For example, exemptions given to small entities under other
programs may not be appropriate under Superfund because a small releaser may
have large and harmful releases. The exempted and specially treated releases
under other programs, however, could be screened for Superfund applicability
and thereby save Superfund program resources that might have been used in an
independent effort to identify such releases.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
4-18
The information gathered by other permit programs may also be used by the
Superfund program to reduce reporting and monitoring requirements that
otherwise would be imposed. For example, if information about a particular
continuous release had already been reported under another permit program,
that information might simply be reviewed for purposes of continuous release
notification without requiring resubmission of the same information. This use
of information already held by EPA would require a significant level of
coordination among the program offices, and such information might not always
include the full "range of data needed for continuous release notification. In
spite of these drawbacks, the use of in-house information may be an attractive
means of reducing the Superfund reporting and monitoring requirements.
4.4 SUMMARY
This chapter has illustrated a broad range of possible reporting and
monitoring options. Although there are many possible options, the resolution
of two issues could guide decision-making: (1) what purposes are to be served
by the continuous release notification program, and (2) how are the key terms
of Section 103(f)(2) interpreted. When the Agency articulates a clear
position on these issues, the choice of an appropriate reporting and
monitoring option will be simplified.
The final chapter, Economic Analysis, examines the kinds of economic
effects that may result from a continuous release notification program.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
Ln
m
n
O
D
O
3
n
>
D
0_
-<
-------
Chapter 5
ECONOMIC ANALYSIS
The previous chapter provided several examples of how EPA could formulate
a continuous release notification exemption. At some time in the future, EPA
may structure su£h examples into program strategies. The economic effects of
a continuous release notification program are properly understood in the
context of hazardous substance notification in general. Unlike the preceding
four chapters, therefore, the scope of the following discussion is not limited
to the effects of a continuous release notification policy. Instead, this
chapter discusses the potential economic effects of any release notification
policy with the purpose of indicating types and directions of economic effects
and the kinds of data that will be needed for any later quantitative
analysis. When the necessary information is available, these general
principles about economic effects can then be applied specifically to the
options for a continuous release notification exemption policy that the Agency
is considering.
It is important to note again that Section 103(f)(2) provides an
exemption from routine reporting for certain kinds of continuous releases. A
broad definition of the terms used in Section 103(f)(2) could reduce the costs
to the regulated community for reporting of and recordkeeping for releases. A
broad definition of the terms may also reduce the benefits that society gains
from the reporting requirement. Alternatively, a narrow definition of the
section's terms would permit fewer releasers to take advantage of the
exemption and thus increase the potential costs and benefits of the Section
103(a) and (b) reporting program.
The chapter is organized as follows. Section 5.1 includes a discussion of
the types of economic effects that could accompany any notification program,
including a brief discussion of potentially affected parties. It then
discusses some of the specific costs and benefits that seem most important.
Section 5.2 discusses the approach to and measurement of the economic effects
of the notification programs. Finally, Section 5.3 includes a discussion of
two issues that will have to be confronted in any subsequent work on this
subject: the baseline against which to measure economic effects and the
required data. Section 5.3 also includes a presentation of our data gathering
to date on affected firms and the costs of continuous release notification.
5.1 TYPES OF ECONOMIC EFFECTS AND AFFECTED PARTIES
A notification program could cause parties that are responsible for
continuous releases to spend money on monitoring and reporting of releases or
to spend money on spill prevention or control measures in an effort to
minimize the need for reporting. It could also cause some parties to minimize
costs by avoiding compliance with the legally required notification
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
5-2
practices.1 It also might benefit society by bringing about a decrease in
releases of hazardous substances. This section discusses the broad categories
of economic effects and then discusses the costs and benefits of notification
in the context of these categories.
Distinguishing among broad categories of economic effects is useful in
order to provide a framework for considering these effects. The changes in
economic behavior that notification will cause can occur as a direct result
of notification requirements (e.g., making reports, keeping records), or as an
indirect result of the new requirements (such as the purchase of insurance or
the installation of equipment to control releases). These altered behaviors
can cause changes in society's capacity to produce or consume goods or
services (i.e., real effects) or they may cause some members of society to
gain (e.g., persons living near a hazardous waste site) while others lose
(e.g., owners of firms which cause continuous releases). These gains and
losses are often referred to as "distributional effects."
The regulated community that could be affected by any notification
requirement pertaining to continuous releases is potentially quite large. It
includes private firms that use hazardous substances, plus municipalities
(nearly all of which operate waste sites and sewage treatment facilities),
hospitals, some military installations, and federal and private research
institutions. Under Section 103(f)(2)(A), it could even include those who
owned or operated, or transported hazardous substances to, hazardous waste
sites that have not been issued RCRA permits. Based on preliminary
identification of potentially affected parties, we estimate that there would
almost certainly be a minimum of 105,000 respondents that would potentially
notify EPA of releases' under a notification program. This figure includes
about 40,000 publicly-owned facilities and 65,000 privately-owned facilities
(this is an incomplete industry estimate discussed in Section 5.3.2.1). The
actual number of facilities affected would depend on the definition of
"continuous release, stable in quantity and rate," the monitoring and
reporting requirements imposed, the number of continuous releases that are
federally permitted, and other issues discussed in Chapters 2 through 4.
Moreover, the actual number affected would depend on the reportable quantities
(RQs) that are set. There are more potential respondents, for example, for a
substance if it has a one-pound RQ than if it has a 5000-pound RQ, assuming
that the RQ reporting period for either situation is 24 hours.
The sections that follow provide more detail' on the types of costs and
benefits that might accompany a program for notification of continuous
releases. Both the costs and benefits of a notification program will result
1Because notification requirements impose costs on firms, the number of
reports received may decrease as reporting costs rise. If the costs of
notification are high enough, some firms may choose to assume the cost of
incorporating their continuous releases into existing permit programs or
preventing continuous releases.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
5-3
from specific actions undertaken in response to the imposition of a
notification program. Accordingly, the following broad scenario of actions
under such a program is used as a reference point for discussing costs and
benefits:
In order to notify the National Response Center (NRC)
of a continuous release, releasers must know the type and
amount of substances released, record this information, and
report it to the NRC. Once this information is reported,
EPA or the U.S. Coast Guard may record and process this
information for internal use and for public information
purposes.2 Interested parties may wish to use this
information for damage claims against a releaser, and EPA
may use this information to guide enforcement actions or
for use with existing programs.
5.1.1 Types of Costs of Notification
The costs of a notification program can be attributed to five
classes of action: monitoring, recordkeeping, reporting, Agency processing
and storage of reports, and insurance and liability costs.
Monitoring costs may arise from any requirements for determining what
substances are being released, the quantities released, the amount of
fluctuation in quantity, and any other aspects of a release about which the
releaser or EPA may wish to learn. Monitoring could be necessary to determine
conditions such as whejther a release,occurs, is continuous, and is stable in
quantity and rate, and when statistically significant increases occur. EPA
may require specific monitoring procedures which direct releasers to discern
accurately whether these conditions have occurred. EPA's definition of
monitoring procedures will have a direct bearing on the cost of monitoring.
For example, if "stable in quantity and rate" is defined as a particular
amount of deviation from the hourly mean, EPA could possibly require hourly
mass spectographic samples which would be relatively costly. As another
example, if EPA defined "statistically significant increase" as a 100 percent
increase over 30 days as estimated through the best judgment of the plant or
facility manager, or a qualified independent professional engineer, a releaser
might have to prepare only a low-cost, informal estimate of the quantity and
rate of release using no special equipment.
There are many variables affecting monitoring costs, including the
technical equipment required, cost of trained employees, frequency of
2The use of this information for public information purposes may pose
problems of confidentiality, especially if such information could reveal trade
secrets. The risk of revealing information about industrial processes must be
balanced against the public's right to know about risks of exposure to
hazardous substances.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
5-4
monitoring, sampling procedures, and comprehensiveness of the monitoring
effort. Monitoring costs are also affected significantly by the degree to
which Section 103(f)(2) monitoring requirements are coordinated with the
requirements of existing permit programs.- In other words, since existing
pollution control programs may collect information similar to that desired by
EPA under Section 103(f)(2), it is probably desirable to design a continuous
release notification program with special attention to existing programs. For
example, if future control of continuous releases is to be done through
existing permit programs, it may be desirable to begin integrating Section
103(f)(2) information into those programs now.
In summary, preliminary data indicate that monitoring costs are
potentially the most significant costs associated with notification of
continuous releases. The choice of monitoring protocols and coordinations
with existing requirements could therefore have a potential economic impact
ranging from negligible to highly significant.
Recordkeeping costs arise from the need to record monitoring information
in a form that facilitates reporting to EPA. The type of monitoring and
reporting required will therefore determine the level of recordkeeping costs.
Variables affecting recordkeeping costs include the cost of clerical staff
(direct plus overhead), volume of monitoring data, frequency of reporting, and
the extent to which these records require special training of staff. If
required records of continuous release monitoring data follow the format of
records for other permit programs, for example, the incremental cost to
releasers will not be as high as if a unique format were required. Even with
the possible range in costs, the economic impact of recordkeeping costs are of
much less significance'"than monitoring costs.
Reporting costs are associated with the act of notifying EPA of
continuous releases (in order to qualify for the exemption) and the type of
information required by EPA. For example, the more detailed the information
required for the exemption, the higher the reporting costs will be and the
greater will be the incentives for the regulated community to seek ways of
circumventing the requirements. Of course, the amount of detail required will
affect the recordkeeping and monitoring costs as well. EPA's choice of
reporting form also affects reporting-costs: telephone reports may be less
costly than written reports. Costs may also rise with the degree of
divergence between the format required under Superfund and the format normally
used by the regulated parties. While costs of reporting and recordkeeping
will be borne by owners and customers of firms, by municipalities, and by the
other releasers that report, the determinants of these costs will also affect
the costs of EPA's processing of the information. The simpler and shorter the
reports are, the less costly will be EPA's recordkeeping efforts. The
relative economic burden of reporting costs is similar to that of
recordkeeping costs.
EPA processing and storage costs are associated with receiving, filing,
tabulating, and analyzing reports. These costs will rise with the number and
detail of continuous release reports received, the level of effort expended in
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
5-5
analysis, and the subsequent use of the Information in EPA regulatory and
enforcement programs. The cost of processing these reports will generally be
borne by taxpayerswho will either pay increased taxes to support the effort
or receive reduced public service from other programs if taxes are not <
increased. To the extent that EPA costs are covered by the taxes levied under
Superfund, however, the ultimate consumers of the goods taxed will bear a
portion of these costs.
Insurance and liability costs arise from the potential use of reported
information by parties seeking damage claims against releasers.3 The
presumption is that without the information reported to EPA, such claims would
be successful less often. Hence firms would have less need for insurance
coverage if the information were not widely available. In addition, the
availability of public information on continuous releases may lead to an
increase in the number of such claims, which would mean higher cost of
liability insurance for the releasers. These added costs would be borne by
owners of firms and their customers, by taxpayers, and by organizations
purchasing insurance. It is likely that some or all of these costs would
ultimately be borne by a firm's customers and by the taxpayers (in the case of
publicly-owned facilities).*
The actual costs of any notification program will be determined primarily
by the specificity and precision required to achieve the policy objective
inherent in the program. If the information is to be used in an EPA program
to reduce releases and accomplish health benefits through permit programs or
the formation of a data base, a notification program may need specific and
precise information on releases. If.increased cleanup by industry is sought,
only general information may be desired. If specific information is desired,
it may be necessary to develop monitoring protocols to assure accuracy and
standardization of all information submitted. This could involve a very
complex and difficult effort by EPA and industry in developing mutually
acceptable procedures.
Monitoring, recordkeeping, and reporting use resources that otherwise
would be available to produce different goods or services (and presumably ones
that consumers had been demanding). Hence, they result in what were referred
to above as real resource costs (to the people who now cannot consume those
goods and services). These activities will also result in distributional
3Insurance companies, however, do not insure against penalties assessed
for violations! of law, such as failure to report under Superfund.
*While the costs of insurance and liability payments may be potentially
significant to the parties involved, only a relatively small portion of these
costs (i.e., the overhead component of insurance and the litigation costs) are
real costs to society. The major part of these payments consists of transfer
payments from firms to citizens living near releasing facilities, and are
therefore distributional costs. See below, Section 5.2.1.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
5-6
effects as income is transferred from those who produce the goods made in
continuous release processes to those who monitor and report since the persons
who produce these goods may be different from those who perform the monitoring
and reporting functions.
5.1.2 Types of Benefits of Notification
The benefits of notification requirements for continuous releases may
include the elimination, reduction, or cleanup of hazardous substance releases
and the attendant health and environmental costs thus avoided, plus the value
of the information on releases available to EPA and the public. Placing
values on such benefits presents enormous challenges.
Later quantitative analysis of alternative continuous release notification
programs, if any, will need to examine the populations affected by the preven-
tion or cleanup of releases that result from reporting requirements. Using
data on potential sites of continuous releases and nearby populations, it will
be possible to project — based on assumptions regarding the nature of the
avoided or cleaned up release — the sick days, hospital costs, and other ,
costs avoided because of notification.
Valuing the information made available is particularly difficult in the
absence of knowledge regarding how it will be used (other than for response
under Superfund). If the information is used for program management or
research purposes that lead to more efficient and effective program operation,
benefits could be important. Or if the information is of value to citizens,
they might be willing somehow to pay ,,for it, suggesting its value to them.5
The imposition of notification requirements will increase the probability of
potential use of information, and therefore create an incentive for some firms
to clean up or prevent releases in order to avoid liability costs. Other
firms may choose to avoid these costs by minimizing compliance with notifica-
tion requirements, so that the benefits of information will be absent in some
cases. But, if the information is not to be used or if it is to be used for a
low priority purpose, then informational benefits would be minimal. Similarly,
the value of information is decreased if it is not complete enough or in the
proper form to be used as desired. Therefore, it will be important for EPA to
determine the expected uses of this information.6
sFor example, EPA could make the information available under a user fee
system. Over time, the fee could be adjusted to defray EPA's costs, in full
or part. If the public had no need or desire for the information, no requests
to use the information at the established price would be received, and EPA
would know that information benefits were minimal.
6Interviews with program personnel indicated that, of the 11 permit
programs reviewed in Appendix B, six programs had identifiable uses for the
type of information that continuous release reporting could generate. Of
these six programs, at least two would have to obtain additional resources in
order to utilize fully this information.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
5-7
5.2 ANALYTICAL APPROACH TO MEASURING ECONOMIC EFFECTS
This section includes a discussion of an approach to defining
operationally and estimating some of the major economic effects of a
notification program. The discussion centers on estimating the changes in
behavior of the parties affected by notification requirements. Because of the
lack of data on health, welfare, find environmental effects, these types of
effects are not covered in detail. While the principal concern is with the
effects on private business, the section also includes a brief discussion of
the effects on other releasers such as states, municipalities, and EPA.
5.2.1 Effects on Firms
The definition of notification requirements for continuous releases is
likely to serve as a stimulus for changes in the operations of EPA and the
regulated community. Because releasers may be spending money to monitor and
report continuous releases, production processes and storage facilities that
involve continuous releases will become more expensive to operate than
previously. Managers of these firms may decide to alter price or output in
order to compensate for the additional expense. Given certain economic
information on the firms and the markets for their goods, these changes in
economic behavior can be estimated, or at least bracketed. A method for
estimating the magnitude of these changes in behavior is discussed below.
The estimation of economic effects may be approached by first identifying
the stimulus or constraint on behavior caused by a particular notification
requirement. The effect of that stimulus or constraint would then be
identified as it is reflected in an economic parameter such as cost. The
resulting change in an economic indicator, such as price or output, would be
described as firms attempt to find the behavior most beneficial to their
interest, given the new stimulus or constraint. The private effects of that
change in behavior, such as the decrease in profits or dividends, would then
be identified. Similarly, it would be necessary to identify the social costs
or benefits of that change in behavior. For example, a rise in price and
decrease in output would deprive society of the value of goods that would have
been produced, had that change in behavior, due to government actions, not
occurred. The net effect of this dead-weight loss is mitigated by the fact
that the pre-notification level of production was achieved in part by imposing
environmental and health damage costs upon society. To the extent that
notification requirements raise the cost of -production to reflect this damage,
the resultant decrease in production is considered beneficial. Finally, any
distributional effects would be described, as would any macroeconomic effects
that would result when all of the individual changes in prices, output, or
consumption are aggregated.
Of all of the changes in economic behavior mentioned, only some can be
measured or estimated. For example, given some knowledge about how changes in
the prices of products involving continuous-release processes affect output or
sales, it is possible to estimate the output changes, the costs absorbed by
firms, and the; other social costs that would result from the imposition of
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
5-8
monitoring costs through a notification program. It is very difficult to
estimate these changes in a precise manner without information on the number
of firms using processes that continuously release hazardous substances, the
frequency of the releases, the cost of preventing the releases, and the
markets in which the releasers1 products are sold.
The above difficulties notwithstanding, the problem of estimating the
effects on firms may be approached as follows. Requiring firms to monitor and
report continuous releases will mean that firms must spend money to fulfill
the EPA requirements (for monitoring equipment, personnel, additional
insurance, and so forth) or to avoid legally those requirements by preventing
their releases or incorporating them into an EPA permit. Over time, such
expenses could cause firms affected by any such requirement to be less
profitable. Often in such situations, firms find that they must pay more to
acquire working capital or funds for expansion. The end result of this
complex process is that the cost of doing business has risen. Profits for the
firm's owners could decline. Vith time to adjust, firms that use continuous
release processes may reduce output and employment.7 Section 5.3 below
describes the information needed to estimate the magnitude of such effects, if
any.
5.2.2 Effects on EPA and Other Government Agencies
EPA would also have to increase its expenditures in order to process the
reports of continuous releases. Since EPA presently has almost no program to
receive and process the reports, the Agency would have to make available
personnel, equipment, .and space. Assuming no decrease in expenditures on
other government programs to cover this cost, taxes would have to be raised
(or government borrowing increased) to cover the costs . The amount of EPA
processing costs relative to all U.S. government expenditures is quite small,
likely rendering any effect insignificant. If one assumes, however, that
7If information on the structure of the firm's market is available
(i.e., the demand and supply schedules), the changes in price, output, and
social welfare can be estimated by using simulation under a variety of
assumptions. Generally, such information is crude. Often, regulatory
analyses require sophisticated econometric, market studies before such
calculations can be undertaken.' In some cases, a serviceable alternative is
to assume limiting values for the key demand and/or supply parameters (i.e.,
that output or price are unchanging). In addition, values for unknown
parameters may be assumed and a sensitivity analysis undertaken. These
artificial conditions can serve to bracket the range of effects. It may be
that even the largest effects conceivable are of only minor concern, or that
the smallest effects conceivable are of great concern. Such findings can
direct both the attention of policy makers and further analysis to these
latter issues. Beginning such an analysis would be a first step in any
further work on the economic effects of continuous release notification
options.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
5-9
EPA's budget is fixed, then the effect of the additional processing costs for
a continuous release notification program is a reduction in the size of other
EPA programs. For this reason, EPA may want to explore carefully whether
current reporting requirements under other programs can satisfy a large
portion of the need for reports of continuous releases.
Similar comments are relevant with respect to municipalities and other
governmental units that would increase outlays as a result of a notification
policy. Taxes would be raised or the supply of other services would be
reduced. The number of potentially affected municipalities is quite large.
The U.S. has over 3000 counties and over 18,000 municipalities, many of which
operate facilities that could be involved with one or more continuous releases
that would need to be reported. In this context, it is easy to see the real
costs of such a policy. Citizens would pay more taxes and thus have less
disposable income to spend on other goods. It is against this cost that the
benefits must be weighed.
Summary. Exhibit 5-1 both summarizes the economic effects of monitoring,
reporting, insurance, and EPA processing costs, and indicates the economic
parameters that should be measured in order to estimate the economic effect of
a notification program. For example, to estimate the effect on firms of
monitoring requirements in the short run, it would be necessary to estimate
each releaser's total cost of monitoring under the notification program, the
rise in the cost of capital, and the amount of profits distributed as
dividends. Only some of this information is easily available — the rest must
be estimated or the analysis conducted on the basis of assumptions.
*
5.3 FURTHER STEPS IN THE ANALYSIS
In order to conduct an analysis such as that discussed in the preceding
section, it would be necessary to develop a baseline against which to measure
the effects of notification and to engage in a substantial data collection and
analysis effort. This section includes discussions of these two subjects.
5.3.1 Baseline
In order to measure the effects of a policy change, such as the
notification examples discussed here, it is necessary to have a basis of
comparison. This should be a projection of the world in the situation of no
EPA elaboration or clarification of the broad notification requirements
contained in the CERCLA statute.
General adherence to CERCLA would form the basis for a projection of the
level of notification and monitoring activity that would exist in the absence
of a Section 103 regulation. Depending on the precise manner in which any
future continuous release notification policy issued by EPA would alter
behavior as based upon CERCLA, the effects of such a policy could result in
costs or benefits. If the effect of a policy was to preclude behavior already
begun, then costs would result (e.g., if continuous releasers are required to
report both annually and at times of statistically significant increases
i
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
EXHIBIT 5-1
STRUCTURE OF ANALYSIS OF ECONOMIC EFFECTS OF NOTIFICATION REQUIREMENTS
Regulatory
Requirement
1. Monitoring of
releases
Stimulus or
Constraint
to Behavior
Monitoring expen-
ditures for con-
tinuous release
(CR) processes
Change in
Economic
Magnitude
Higher cost of
CR processes
Change in
Economic
Behavior
Reduced
profits to CR
process firms.
Reduced out-
put of CR
processes.
Higher price
of CR process
products.
Increased
outlays of
municipali-
ties
Real
Effect
Dead-weight
loss in con-
sumer surplus
(unless moni-
toring is
technology
forcing)
Improved
health and
environment
Increased
taxes and/or
reduced ser-
vices
Distributional
Effect
Gainerst Owners and
employees of moni-
toring firms| Peo-
ple living near
facilities with
continuous releases
Losersi Consumers of
CR-process plants;
Owners of
CR-process firms;
Taxpayers
Macroeconomic
Effect
Loss in consump-
tion, employment,
output, services
y
Measurement
Cost of moni-
toring and
reporting
Demand and sup-
ply schedule;
price rise; out-
put reduction
Reduction in
amount of
hazardous
substances
released
Changes in
levels of
taxation or
municipal
services
Ui
I
2. Reporting of
releases®/
Increased number
of liability suits
and increased
probability of
successful suits
against releasers
Higher insur-
ance premiums
Reduced
profits to
CR process
firms
Higher price,
reduced output
of CR process
products
Dead-weight
loss of in-
creased in-
surance
premium
Improved
health and
environment
Gainers: Citizens
near CR-process
plants; Citizens
receiving pay-
ments; Owners of
insurance firms
Losers: . Consumers
of CR process
products; Owners
of CR-process
firms
Loss in consump-
tion from decreased
dividends
Increase in
liability
payments
Increase in
premium pay-
ments
Price and
output
changes
Reduction in
amount of
substances
released
3. EPA process-
ing of infor-
mation
Handling and
responding to
reports
Higher taxes,
higher government
borrowing, or re-
ductions in other
EPA programs in
other federal
programs
Uncertain Reduced real dis- Uncertain
posal income or
Reduction in
benefits
from other
EPA programs
Uncertain
Cost of pro-
cessing
reports
Estimated use
of informa-
tion
S/ln general, the
b/The items under
items under "reporting" are In addition to those under "monitoring."
"measurement" refer to all three categories of regulatory requirement.
February 1 Draft * * * Do Not Quote or Cite
-------
5-11
instead of their previous practice of reporting annually or at times of such
increases). But if the policy allowed behavior that might previously have
been avoided (such as including routine anticipated intermittent releases in
the definition of continuous releases), then benefits would result.
5.3.2 Preliminary Data Analysis
The discussion to this point has mentioned key variables that would have
to be measured in', any quantitative analysis. This subsection includes
illustrative analyses of available information on (1) the number of private
firms that could be affected by a continuous release notification program and
(2) the unit costs of many of the activities associated with monitoring and
reporting. A concluding section enumerates additional data that would be
needed for a more detailed analysis.
5.3.2.1 Potentially Affected Firms
This section reports on a preliminary analysis of the number of
potentially affected firms. The steps necessary to estimate the potential
number of firms reporting under any notification program are as follows (this
analysis is keyed in part to data presented in Exhibit 5-2):
* Define the population of industries using hazardous
substances.8 This population includes the industries
listed in column 1 of Exhibit 5-2 and almost certainly
includes other industries such as coal, metal, and
other mining, paper and wood products, electric
powerplants, textile mills, machinery products
manufacturing, transportation equipment, and industries
using aerosols and degreasers. These industries could
increase the number of potential continuous releasers
by as much as a factor of ten;9
• Estimate the number of facilities in these
industries. These estimates are presented in column 2
of Exhibit 5-2, and are based upon the classification
of industries using hazardous substances identified in
a draft report to EPA. The number of establishments
within these industries was taken from the Department
of Commerce's. Census of Manufacturers and County
Business Patterns;
'Section 101(14) excludes petroleum and gas products from the
definition of "hazardous substance."
9The estimates of the number of establishments depend on the survey
method and definition of each industry, and vary even among different studies
utilized by EPA.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
5-12
EXHIBIT 5-2
HAZARDOUS SUBSTANCES USED BY
SELECTED MAJOR INDUSTRIES
Industry
Leather and
Leather Products
Iron and Steel
Manufacturing
Inorganic Chemicals
Manufacturing
Organic Chemicals
Manufacturing
Nonferrous Metals
Manufacturing
Paving and Roofing
Materials
Paint, Ink Formula-
tion, and Printing
Soaps and Detergent
Manufacturing
Laundries
Plastics and Synthetic
Materials Manufacturing
Number of
Establishments
1,265
1,216
999
760
874
1,318
15,465
635
28,752
505
Average
Daily Use
of Hazardous
Substance
(lbs/establish-
ment/day)
1,851
31,127
174,629
1,600,000
789,773
85,000
77
25,000
75
288,673
Number of
Hazardous
Substances Used
10
5-6
7-36
82
1-12
0-22
22
14
10-57
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
5-13
EXHIBIT 5-2 (Continued)
HAZARDOUS SUBSTANCES USED BY
SELECTED MAJOR INDUSTRIES
Industry
Rubber Processing
Miscellaneous Chemicals
Electropolating
Ore Mining and Dressing
Number of
Establishments
2,223
4,387
5,145
1,086
Total Average
Daily Use
of Hazardous
Substance
(lbs/plant/day)
24,788
89,108
2,510
137,181
Number of
Hazardous
Substances Used
9-10
13-46
78
3-7
Source: Establishments: U.S. Department of Commerce, Bureau of the Census,
Census of Manufacturers. 1977, Census of Mineral Industries, 1977,
and County Business Patterns, United States, 1977; Average daily use
and number of hazardous substances: Draft report to the
Environmental Response Division.
February 1 Draft * * *
Do Not Quote or Cite
ICF INCORPORATED
-------
5-14
* Estimate the average daily use of each hazardous
substance in those facilities. Estimates of the total
daily use of hazardous substances are presented in
column 3 of Exhibit 5-2, and are taken from a draft
report prepared for EPA. As discussed further in the
examples below, the average daily use figure will be
used to estimate the amount of continuous releases, but
it is very unlikely that each establishment in an
industry uses or releases a similar amount each day;
* Estimate the percent of each hazardous substance that
would be released continuously. Based on conversations
with industry experts, an arbitrary value of 0.375
percent has been assumed for this key parameter. This
represents a mid-range of the estimates given by the
industry experts contacted; these experts estimated the
percentage to be in the 0.25-0.5% range. The experts
also indicated that the percentage could be as little
as 0.01 percent for extremely expensive substances such
as platinum catalysts, and some experts indicated that
releases significantly in excess of 0.5 percent could
be expected at certain facilities in some industries.
This percentage may vary widely among firms, depending
on size of firms, type of industry, and management
practices. In an example given below, it is assumed
that 10% of all firms in an industry release a much
higher percentage than the industry average. Because
the estimation of this percentage is a critical step,
any later work would have to analyze this issue
carefully and apply sensitivity analysis;
• Estimate the number of facilities in each industry
whose continuous releases would exceed the reportable
quantity; and
• Estimate and exclude the releases that are federally
permitted.
In order to indicate orders of magnitude and to present the initial stages
in the development of a methodology for preparing estimates of the number of
firms affected, the following preliminary analysis is presented for one
industry, the industrial inorganic chemical industry (SIC 2819), the largest
subgrouping within the inorganic chemical industry.
The average use of hazardous chemicals in an industrial inorganic chemical
facility is estimated to be about 250,000 pounds per day.10 Because the
10The average daily use figure for the industrial inorganic chemical
industry exceeds that for the inorganic chemical industry because the latter
includes many facilities that use no hazardous substances, while the former
does not.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
5-15
percentage of hazardous substances released continuously is unknown, it is
necessary to make an assumption about that percentage. If 0.375 percent of
average daily use of hazardous substances were released continuously into the
environment and were not federally permitted, for example, then the average
facility would release about 938 pounds per day of hazardous substances (i.e.,
0.00375 x 250,000 = 937.5). If the reportable quantity were set at 100 pounds
in 24 hours (and if each facility used only one hazardous substance and a
continuous release were defined to include all releases of a particular
hazardous substance plant-wide), then all facilities would be required to
report continuous releases. Vith a 1000 pound reportable quantity, no
facility would be required to report, even if each facility used only one
hazardous substance. However, facilities in the industrial inorganic chemical
industry use up to 36 hazardous substances, so that it is possible that a
facility may release only 26 pounds (937.5/36) of each substance. In that
case, no firms would be required to report if the RQ were 100 pounds, but all
firms would be required to report if the RQ were 10 pounds.
The preceding example is rather simplistic, and does not include any
variation in size of plant. In order to illustrate the analysis in more
complex and realistic cases, the following examples break down the industrial
inorganic chemical industry by size of facility, and assume (1) that each
facility uses 36 hazardous substances, using equal amounts of each substance,
(2) that each facility releases 0.375 percent of the hazardous substances
used, (3) that a continuous release is defined to include all releases of a
particular hazardous substance, plant wide, (4) that the reportable quantity
for all substances is 1000 pounds in 24 hours, and (5) that none of the
releases is federally permitted. Exhibit 5-3 presents the average daily use
of hazardous substances in the industrial inorganic chemical industry by size
of facility. For the industrial inorganic chemical industry, under these
assumptions, only the largest facilities on average would release enough
hazardous substances to require a report to the National Response Center (see
Exhibit 5-4, Example A). For example, the 11 small facilities would release
274 pounds each (0.00375 x 73,000 pounds used = 273.75), and therefore would
not be required to report their releases. If one varies the key assumption by
assuming a 100-pound RQ, then all but the 30 very small facilities (defined
here as producing less than 10,000 tons/year) would release enough to report
with an RQ of 100 pounds in 24 hours.
It will almost certainly be the case, however, that not all facilities
release the same proportion of their hazardous substances.' Assume again that
the amount of continuous release is 0.375 percent of all hazardous substances
used, but that 10 percent of all facilities release 90 percent of all
substances.11 If the distribution of releases by size of facility remains
"in Example A, 228 facilities released 1,016,225 pounds of hazardous
substances per day. In Example B, 23 facilities (.1 x 228) released 914,602
pounds (.9 x 1,016,225) of hazardous substances per day. The 205 other
facilities would release 101,623 pounds (.1 x 1,016,225) of hazardous
substances per day.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
5-16
EXHIBIT 5-3
USE OF HAZARDOUS SUBSTANCES IN THE INDUSTRIAL
INORGANIC CHEMICAL INDUSTRY
Size of
Percent
of all
Facility a/ Facilities
Very small
Small
Medium
Large
Very large
13
5
25
29
28
100
Average
Daily Use of
Hazardous Substances
(lbs./plant/day)
13,000
73,000
116,000
257,000
514,000
Number
of Facilities
30
11
57
66
64
a/ Size of facility is defined in terms of the range of annual output
per facility: very small--0-10,000 tons/year; small—>10,001-20,000 tons/year;
medium--20,001-50,000 tons/year; large—50,001-100,000 tons/year; very large--
greater than 100,000 tons/year.
Source: Draft report prepared for EPA Emergency Response Division.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
5-17
EXHIBIT 5-4
TWO EXAMPLES ESTIMATING THE NUMBER OF POTENTIAL
SECTION 103(f) EXEMPTIONS IN THE INDUSTRIAL INORGANIC CHEMICAL INDUSTRY
Example A — Assume 0.375% of average daily use is released
Size of
Facility
Very small
Small
Medium
Large
Very large
Number of
Facilities
30
11
57
66
64
Number of
Pounds Released
by Each Facility
49
274
435
964
1,928
Example B -- Assume (1) 0.375% of average daily use is released
(2) 10 percent of firms release 90 percent of amount of
substances.
Size of
Facility
Number of
Major Releasers
Number of Pounds
Released by Each
Major Releaser
Number of
Minor Releasers
Number of Pounds
Released by Each
Minor Releaser
Very small
3
439
27
5
Small
1
2,710
10
30
Medium
6
3,719
51
44
Large
7
8,178
59
108
Very large
6
18,504
58
213
Source: ICF analysis of data in Draft report prepared for EPA Emergency
Response Division.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
5-18
the same as in Example A, (see Exhibit 5-4, Example B), then reports would
potentially be received from all but the smallest major releasers, and none
from the minor releasers. The 64 very-large facilities for example, release
123,360 (64 x 0.00375 x 514,000) pounds of hazardous substances per day, but
the 6 facilities (0.1 x 64) accounting for 90 percent of the releases release
18,504 pounds each (123,360 x 0.9 * 6 = 18,504). The 58 minor releasers
would release 213 pounds each (123,360 x 0.1 * 58 = 212.68), and would not
report under a 1000-pound RQ. If instead one assumes a 100-pound RQ, then
reports could potentially be received from all 23 major releasers, as well as
from the 117 minor releasers in the large and very large categories.
An analysis of the number and size of facilities potentially affected by a
continuous release notification policy would be of considerable assistance to
EPA in fulfilling the requirements of the Regulatory Flexibility Act (RFA).
If EPA knew the number of facilities that would have to report, with various
RQ levels, it could determine the extent to which the RQ level could be used
to help meet the purposes of the RFA or whether a more general exemption for
small entities was indicated. For example, if EPA were interested in a high
RQ and most small entities released at rates below the RQ, the goals of the
RFA would be met effectively by the RQ decision.
In addition to its preliminary nature and lack of coverage of a broad
range of industries, the following caveats should be made regarding this
illustrative analysis:
* It was assumed that no releases of hazardous
substances were federally permitted, although some
releases are likely to be federally permitted. Since
federally permitted releases are exempt from
notification requirements under Superfund, the number
of these releases must be determined and subtracted
from the total number of releases estimated.
0 The estimates of average use of hazardous substances
may be subject to variation among facilities and
industries. Furthermore, because some hazardous
substances are used only in small amounts, the
preceding analysis attempted to place an upper bound on
the estimate of the number of affected firms by
assuming use of only one substance per facility.
* The estimates of number of facilities and average
daily use of hazardous substances are based on the best
information publicly available. They are used to
estimate an order of magnitude of the number of
facilities, and should not be used for purposes of
precise estimations.
* The amount of substances released (assumed here to be
0.375 percent of the amount used) may vary widely among
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
5-19
facilities due to such factors as the industry
involved, the substances being used, age, size, and
type of facility, geographic location, the production
rate, the mix of products manufactured, media, and
financial condition of firm.
• The analysis does not include any estimates for
publicly owned treatment works or other publicly owned
facilities, and the assumptions used may not be
applicable to non-private facilities.
5.3.2.2 Unit Cost of Notification Activities
The preceding analysis illustrated a method that could be used to
estimate the potential number of facilities choosing to report under the
Section 103(f) exemption; the actual number will depend on the cost of
notification to the firms. If, for example, the monitoring requirements are
very costly, the managers of a facility may choose to report releases daily
under Section 103(a) or to avoid reporting rather than incur the expense of
monitoring if EPA permits this. In addition, knowledge of such costs is
essential to estimate the economic effects of a notification program. In
order to begin to develop cost estimates, the following approach to estimating
the unit costs of monitoring and reporting has been developed.
The total cost of notification for each facility will be determined by the
unit cost of each activity and the number of units applied. Although it is
difficult to specify precisely what activities will be required (including the
level of effort and frequency), it is possible, as a starting point for the
analysis, to enumerate the basic categories of activities required and to
investigate the unit cost of each.
Exhibit 5-5 presents the activities required to notify EPA of a continuous
release under any continuous release notification program. These activities
include inspecting the facility and discovering each release, establishing the
continuity and stability of the release through monitoring and reporting, and
subsequent monitoring and reporting. The exhibit may be read as follows. The
first column lists the required activities. For each activity, reading across
the exhibit, the columns provide the following:
• Number of units -- the number of times the activity
would be used (i.e., inspection would take place once;
sampling would take place as specified by EPA
(indicated by the "A" and explained in the note to the .
table));
• Variation in units -- indicates the potential for
variation in the use of the activity and the reason;
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
EXHIBIT 5-5
COST OF NOTIFICATION — EACH PLANT
ASSUMING NO EXISTING MONITORING
FOR CONTINUOUS RELEASES
Activity .
1) Inspection of Facility
Pe rsonneI
Equipment
Number of
Units
Variation In Units
None
Unit Cost
Person-hrs
$/ Inspection
Variations In Unit Cost
Size of plant, type of Inspec-
tions. Equipment may or may
not be necessary, depending on
medI a.
2) Discovery of Release
PersonneI
None
Person-hrs
3) Initial Monitoring and
Reporting to NRC
Establishment of
Procedures
Forms
Telephone
Personnel
Capital Equipment (sampling
and analysis)
Samp I Ing
Personnel
None
None
Firm may elect to
contract analysis
to samp Iing fi rm
Number of samples to
provide reports to
NRC
$/report
Installation, upkeep
t» Person-hrs
$75-$200/sampIe
Person-hrs
Size of establishment.
If necessary.
Size and complexity of release.
Varies with media, substance,
and process; minimal capital
costs if firm already has in-
houfee analysis capabilities or
if firm contracts analysis.
Varies with media, substance, and
process. Special sampling
requirements such as groundwater
we 11s.
A: The number of samples taken and analyzed must be sufficient to meet the requirements for establishing release as
continuous and stable in quantity and rate. In Examples 1 and
-------
EXHIBIT 5-5
COST OF REPORTING—EACH PLANT (Continued)
Activity
Number of
Units
Variation In Units Unit Cost
Variations In Unit Cost
3) Initial Monitoring and
Reporting to NRC
(continued)
Chemical Analysis
Operation (per run)
PersonneI
Reporting
Personnel
4) On-going Reporting and
Monitoring of Release
Samp II ng
Personnel
Supplies
Chemical Analysis
Personnel
Operation(per run)
Reporting
Personnel
Number of analyses
to provide reports
to NRC
Reports sufficient
to establish stable
quantity and rate
Frequency of moni-
toring required
Frequency of moni-
toring required
Frequency of re-
porting required
$650-$1,000/run
Person-hrs
if person-hrs
Person-hrs
$75-$200/sample
Person-hrs
$650-$1,000/run
4 person-hrs
Varies with media, substances and
process.
Varies with detail and form of
report.
Varies with media and type of
substance.
Varies with media, substance,
and number of substances.
Varies with detail and form of
report.
o
A: The number of samples taken and analyzed must be sufficient to meet the requirements for establishing release as
continuous and stable in quantity and rate. In Examples 1 and 4, sampling would not necessarily be required. In Examples
,2 and 3, more samples would be necessary to report accurately to the NRC.
B: The number of reports required to establish that the release is a continuous release, stable in quantity and rate.
C: After establishing that the release is a continuous release, monitoring may be required to check for statistically
significant increases. C is the number of samples necessary to monitor accurately the release.
D: The number of reports required by the exemption. These reports may be required at certain time intervals (e.g.,
annually) or when there is a statistically significant increase in the quantity released.
s
o
February I Draft
Do Not Quote or Cite
-------
5-22
• Unit cost — the dollar magnitude or labor input, per
unit of the activity. Where data are available, actual
costs are indicated. These are discussed further
below; and
• Variation in unit costs — indicates the nature of
factors that might cause unit costs to vary.
Monitoring costs are determined by the protocols for sampling and
analysis and other monitoring requirements established under a notification
program. For monitoring involving sampling and analysis by gas chromotography
(GC) and mass spectroscopy (MS), estimates of cost from sample analysis ranged
from $350 to $1,000 for a 6C/MS analysis of organic priority pollutants.
Sample analysis for metals had greater variance in cost estimates, ranging
from $8 for analysis of one substance to $150 for an analysis of an
8-substance package.12 Some firms may prefer to perform their own 6C/MS
analysis which requires hiring laboratory personnel and investing $5,000 to
$10,000 in equipment.
One indication of the potential cost of monitoring may be observed in the
cost' of monitoring fugitive emissions to air in a large industrial facility.
For example, California requires annual sampling for fugitive emissions from
every valve and flange in petroleum refineries. A Chevron engineer has
estimated the annual cost of sampling the 31,000 valves and 32,000 flanges at
a rated 405,000 bbl/day refinery to be $315,000 for labor and $16,000 for
equipment.
Reporting costs are determined by the degree of detail of the report and
whether the report is submitted in written form or by telephone. EPA
currently has estimates of the recordkeeping and reporting burden for
compliance with NSPS and NESHAP requirements. Reports of no excess emissions
of pollutants, for example, require 8 person-hours per report per 'facility per
pollutant, while reports of excess emissions require 40 hours. The NESHAP
Compliance Status Information Report contains information describing the
facility, type and amount of pollutant released, and control devices used, and
requires 4 person-hours per report per facility per pollutant.
Sampling costs will also be determined by the monitoring protocols and
other requirements. For example, current EPA protocols require use of
specially prepared bottles and preservation and/or refrigeration of samples
between sampling and analysis. A complete sampling set, including bottles,
ice chest, preservatives, and instructions, costs approximately $50 per sample
of organic priority pollutants. A Tenax trap used in collecting gas samples
costs approximately $20-$30. Unit costs for sampling leachates may vary
12Spectrix, Inc. provided information on the range of monitoring and
sampling costs throughout the industry.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
5-23
widely, depending on the cost of drilling wells and on the number of samples
taken from each well drilled. Personnel requirements for sampling range from
30 minutes per sample for sampling a flange with a portable analyzer to 16
hpurs for installing a well for groundwater sampling.
The following caveats apply to estimating the unit cost of monitoring and
reporting:
• Increased monitoring activity may lead to increased
competition among monitoring service firms or to
advances in monitoring technology, either of which
might lower the unit cost of monitoring.
• Monitoring and sampling protocols may not exist for
some substances designated as hazardous under CERCLA.
The cost of developing these protocols would be an
additional effect of any notification scheme.
• Some monitoring of hazardous substances may be done
as part of normal business operations or in connection
with permit programs, so that the cost attributable to
a new notification scheme may not equal the unit cost
for some firms.
• Monitoring costs may vary among facilities based on a
variety of factors, including age, size, and type of
facility,*geographic location, and media.
5.3.2.3 Data Needs
The previous two sections on measuring economic effects have
discussed the kinds and estimated numbers of firms continuously releasing
hazardous substances and the unit costs of notification for the average
releaser. This section points out some of the gaps in this information and
the other data needed to measure the economic effects of continuous release
notification programs.
Other industries: Section 5.3.2.1 presents the use of hazardous
substances in 14 industries and makes a more detailed analysis of the
industrial inorganic chemical industry as an example of how to estimate the
number of firms in an industry with continuous releases. This analysis must
be performed for all industries that may include facilities using continuous
release processes. Potentially important industries not listed in Exhibit 5-2
include mining industries; paper and wood products; electrical power plants;
textile mills; machinery, except electrical; and electrical machinery.
Municipalities: The publicly-owned treatment works (POTWs) of many
municipalities release hazardous substances continuously, and some of those
releases will be above the reportable quantities. EPA has estimated the
effectiveness of POTWs in reducing the amount of priority pollutants released
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
5-24
compared to the amount flowing to the POTWs.13 The study found that 50
percent of secondary treatment plants achieved at least 76 percent reduction
of total priority pollutant metals, 85 percent reduction of total volatile
priority pollutants, and 70 percent reduction of total acid-base-neutral
priority pollutants. The study also found that tertiary treatment improved
the reduction of pollutants. Because the range of hazardous substances
designated under CERCLA and flowing into POTWs is uncertain, further
investigation is necessary to determine the number of reports of continuous
releases from POTWs that would be required under a notification program.
Substances released by industry: A more detailed analysis of the
hazardous substances used by each industry is also needed. If firms
continuously release a relatively fixed percentage of the chemical stock used
in their daily processes, the larger firms will bear the costs of continuous
release notification. After the industries likely to be continuously
releasing hazardous substances are identified, the next step in the analysis
is to determine the number and type of hazardous substances produced, used,, or
disposed of by the average firm in each industry. The variations must then be
explored. It must be determined whether the substances or amounts
continuously released by an industry vary by:
• Age of facility;
• Size of facility;
• Type of facility;
• Geographic location;
• Production rate;
• Mix of products manufactured;
• Media;
• Financial condition of the firm; or
• Other patterns of variation.
This analysis will specify both how many firms will be required to report and,
with a better understanding of the substances involved, how the monitoring
costs are likely to vary by industry. Appendix C contains further discussion
of industry studies.
Market structure: Economic information is needed on the change in demand
for and supply of a product or service resulting from a rise in its price.
This information should be obtained for each industry that may report
continuous releases since it forms the basis for measuring economic effects.
Other needed data would include: profitability, debt structure, and cash
flow, all by size of firm.
Routine anticipated intermittent releases: One category of continuous
releases that may or may not be included in the Section 103(f) notification
l3EPA Effluent Guidelines Division, "Fate of Priority Pollutants in
Publicly Owned Treatment Works," October 1980.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
5-25
policy is routine anticipated intermittent releases -- releases that are not
literally continuous but occur regularly as part of standard business
practices. The following kinds of data are needed:
* Average proportion of continuous releases that are
routine anticipated intermittent releases;
0 Frequency of these releases (how intermittent they
are*.;
* What industries have more routine anticipated
intermittent releases and fewer literally continuous
releases; and
* What industries have intermittent releases and no
literally continuous releases..
Benefits: A more detailed exposure profile of the populations affected
by continuous releases is needed. Data for this analysis would include the
location of firms that continuously release hazardous substances, estimates of
the likely health and environmental impacts of these releases, and the costs
of attendant illnesses, mortality, and environmental changes. In addition, it
is necessary to conduct a more careful examination of the potential uses of
information from a notification program. This examination would identify any
impediments to using notification information in the six permit programs named
as potential users in Appendix B. Such an examination would also analyze the
optimal use of information given the objectives and constraints of the permit
programs.
5.4 SUMMARY
The discussion in this chapter has set the stage for a more in-depth
economic analysis of any continuous release notification program. Because
detailed data collection and analysis remains to be performed and because only
illustrative data have been presented, it is not appropriate at this time to
draw specific conclusions concerning the level of costs and benefits
associated with continuous release notification.
February 1 Draft
* * * Do Not Quote or Cite
ICF INCORPORATED
-------
APPENDIX A
DATA SOURCES
ICF INCORPORATED
-------
APPENDIX A
This Appendix describes the sources of information on
continuous releases used in this report. The first section .
lists all interviews (telephone and in-person) and meetings
conducted by XCF, including those with people from' EPA
headquarters,„ EPA regional Qffices, state offices, other
agencies, industry, and environmental groups. The last
section lists written sources utilized by ICF, including
computerized data supplied by EPA.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
INTERVIEWS
EPA Interviews
Contact
David Patrick
Al Gal 11
Jay SIlhanek
Barbara Elkus
Amy Mills
Arnie Edelman
Amy Schaffer and
Paula Abrams
Don 01 son/
Alan Morrlssey
George Young
Susan Schmedes
Brian Maas
Bob Crimm
Bill Diamond
Rich Guimond
Office (Program)
ORD (Air Programs)
OEPER/QRD
ORP
OWPE
OSW (RCRA)
OTI/OPTS
OWPE/Enforcement
UIC-Enforcement
NPDES
OGC
N PDES-Enforcement
Ocean Dumping
POTW-Enforcement
Chemical Control
Interview Date
9 November
13 November
16 November
12 November
13 November
30 November
28 October
9 November
10 November
2 December
17 November
19 November
17 November
19 November
N>
O
-n
z
8
31
February I Draft * * * Do Not Quote or Cite
-------
EPA Interviews (continued)
Contact
Office (Proaram)
Interview Date
Steve Heare
OERR/ERD
20 November
David Blount
RCRA-Permits Division
28 October
Tom Helms
RTP/A i r-Sta te Prog rams
12 November
John Rasnic
Air-Enforcement (NSPS/NESHAPS)
16 November
Bob Ajax
RTP (NSPS/NESHAPS-Standa rds)
13 November
Susan Grove
NSPS/NESHAPS
17 November
Howard Wright
NSPS/NESHAPS
20 November
El izabeth Scopino
Air Enforcement
30 December
Ann Eastham
Air Enforcement
30 December
Paul Baltay
Drinking Water
2 February
Reaional Interviews
Contact
EPA Reaional Office
Interview Date
Dick Boynton
1 Branch Chief-Permit Writing
23 November
(RCRA/NPDES)
Steve S i1va
1 NPDES, permit writer
16 November
Roosevelt Childress
IV NPDES, permit writer
7 December
Frank Langone
II NPDES, permit writer
7 December
Roger Frinette
VIII NPDES, permit writer
7 December
o
O February I Draft * * * Do Not Quote or Cite
O
3
¦o
0
1
-------
State Interview
Contact
Expertise
Interview Date
Wl II lam Hart
New Jersey Air Permits
Other Aaencv Interviews
20 November
Contact
Aaency
Interview Date
Jerry Page
NRC
.18 November
Gale Schmidt
FDA-Bureau 9f Radiological Health
18 November
Al Roberts
DOT-Materla1s Transportation Bureau
20 November
Tom Charleton
DOT-Office of Hazardous Materials
Regulation, MTB
it December
Doug Anderson
DOT-Research and Special Programs
Administration
4 December
Frank Robinson
DOT-Office of Pipeline Safety
4 December
Chuck McDonald
NRC
Industry Interviews
30 November
Contact
Oraanization
Interview Date
Julie Harvey
CMA
13 November
Ed Dineen
Arco
13 November
Carl St. Cin
Monsanto
13 November
Bob KeIIy
Union Carbide
13 November
o
-n
j-j February I Draft * * * Do Not Quote or Cite
a
s
§
o
-------
Industry Interviews (continued)
Contact
Bill Pea rd
Brenda Harrison
J.B. Miller, Butch Slawson
Ann Mason-TwedelI
CI iff Harvison
Organization
PPG Industries
Burlington Industries
RIo Blanco OiI Shale
Association of American Railroads ¦
f.
Natl Tank Truck Carrier Conf.
Interview Date
10 December
15 December
10 December
3 December
30 November
Environmental Group Interviews
Contact
Kh r i s Ha 11
Bruce Turnquist
David Ingram
Organization
Environmental Defense Fund
National Resources Defense Council
Hazardous Materials Advisory Council
Interview Date
24 Novembe r
24 November
30 November
February I Draft * * * Do Not Quote or Cite
-------
k-6
ATTENDEES AT MEETING ON CONTINUOUS RELEASES
December 3, 1981
Name
Bruce Turnquist
Paul Mirengoff
Katherine Adurso-Hughes
David Lexmett
Gerald Meier
Lee Nute
Juliane B. Harvey'
David Weinberg
Riva Rubenstein
Khris Hall
Rod Dwyer
Carl St. Cin
Wayne Stone
Jack Kooyoomjian
Susan Schmedes
John Cross
Organization
National Resources Defense Council
Hunton & Williams
Environmental Action Foundation
Environmental Defense Fund
Association of American Railroads
Dow-Chemical Manufacturers Association
Chemical Manufacturers Association
Wald, Harkrader, & Ross
National Solid Wastes Management
Association
Environmental Defense Fund
American Mining Congress
Monsanto-Chemical Manufacturers Association
Rockwell International
EPA-Emergency Response Division
EPA-Office of General Council
EPA-Office of Policy and Program Management
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
A-7
REFERENCES
ICF Incorporated. "Economic Impact Analysis of the Revisions to the National
Oil and Hazardous Substances Pollution Contingency Plan," November 2, 1981
Draft, pp. A7II, 5-16 to 5-35.
ICF Incorporated. "Economic Analysis of Section 5 Notice Requirements,"
April, 1981 Draft, pp. 17-22.
N. C. Finley et al. Transportation of Radionuclides in Urban Environments:
Draft Environmental Assessment, July 1980, Sandia National Laboratories,
NUREG-CR-0743.
U.S. Department of Commerce, Bureau of the Census. Census of Manufacturers,
1977.
U.S. Department of Commerce, Bureau of the Census. Census of Mineral
Industries, 1977.
U.S. Department of Commerce, Bureau of the Census. County Business Patterns.
United States, 1977.
U.S. Environmental Protection Agency'. Economic Impact Analysis of Proposed
Effluent Limitations Guidelines, New Source Performance Standards and
Pretreatment Standards for the Pulp, Paper and Paperboard Mills Point
Source Category, Addendum: Resource Requirements Summary, Reporting
Impact Statement," December, 1980, EPA 440/2-80-086.
U.S. Environmental Protection Agency. "Fate of Priority Pollutants in
Publicly Owned Treatment Works," Interim Report, October 1980, Effluent
Guidelines Division, Office of Water and Waste Management, EPA
440/1-80-301.
U.S. Environmental Protection Agency. "Permit Compliance System, Milestone
Report: Limits for Non-Municipal Permits."
Value Line Investment Survey. 1980 (NY: Arnold Bernhard & Co).
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
APPENDIX B
FEDERAL PERMITTING PROGRAMS
ICF INCORPORATED
-------
APPENDIX B
FEDERAL PERMITTING PROGRAMS
This appendix summarizes the coverage and requirements of several federal
permit programs. These descriptions provide a point of comparison for the
alternative continuous release notification strategies and options; they also
provide some indication of what kinds of federally permitted releases are
exempt from hazardous substances release notification requirements. Each
section describes the requirements under that permit program, including
monitoring, recordkeeping, and reporting requirements; it also describes the
authority for the program and the agency/program that issues the permit. The
section concludes with a discussion of how the information generated by
continuous release notification could be used by the permit program involved.
Permit program reviews may also provide insight on releases that are not
subject to permits; for example, irrigation return flows are not subject to
NPDES permit requirements. The logic for exempting or not regulating certain
releases under other permit programs may have some force under CERCLA. If so,
unnecessary expenditure of Agency and releaser resources could be avoided by
tailoring notification requirements to reflect this logic.
These reviews are not intended to be complete comprehensive analyses of
permit programs. Instead, they provide a general outlne of the program and
information particularly relevant to CERCLA. Program reviews were generated
from information supplied in the Code of Federal Regulations, Federal Register
notices and EPA documents, and interviews with permit program personnel.
The permit programs reviewed are:
° National Pollutant Discharge Elimination System
Permits (Clean Water Act);
• Pretreatment Program (Clean Water Act);
• Dredged and Fill Material Permits (Clean Water Act);
• Resource Conservation and Recovery Act Permits;
• Prevention of Significant Deterioration Permits
(Clean Air Act);
• New Source Performance Standards (Clean Air Act);
• National Emission Standards for Hazardous Air
Pollutants (Clean Air Act);
• Permits for Non-Attainment Areas (Clean Air Act);
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
B-2
• Underground Injection Control Programs (Safe
Drinking Water Act);
• Marine Protection, Research, and Sanctuaries Act
Permits; and
• Radionuclides Permit Programs.
As help in understanding the reporting options in Chapter 3, Exhibit B-l
outlines the reporting requirements for all the permit programs reviewed in
this appendix. The next section summarizes the NPDES permit program.
B.l NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM PERMITS
The broadly stated purpose of the Federal Water Pollution Control Act
(commonly known as the Clean Water Act (CWA)) is "to restore and maintain the
chemical, physical and biological integrity of the nation's waters."1 The
National Pollutant Discharge Elimination System (NPDES) permit program was
established under Section 402 of the CWA in order to further the progress
toward clean water by controlling pollutant discharges. Regulations for the
NPDES permit program are found in 40 CFR 122-125.
Requirements
Section 402 requires that any person who discharges or proposes to
discharge pollutants into U.S. waters2 from a "point source" must obtain an
NPDES permit. The permit requirements cover both toxic and non-toxic
pollutants, although there are different provisions for each. As defined in
the regulations, NPDES covers both "continuous" and "noncontinuous"
discharges. A "continuous" discharge is defined to be a discharge "which
occurs without interruption throughout the operating hours of the facility,
except for infrequent shut downs for maintenance, process changes, or other
similar activities". (40 CFR 122.3) Different limits are required for
noncontinuous discharges, which occur on an intermittent basis, to avoid
shocks of high quantity discharges into the water. The distinction between
continuous and noncontinuous is drawn primarily for purposes of calculating
permit limitations.
NPDES permits are based on effluent guidelines, set forth in 40 CFR
401-460, and State water quality standards. These permits specify effluent
limitations for certain pollutants discharged into U.S. waters. For
conventional pollutants (biochemical oxygen demand, total suspended solids,
fecal coliform, oil and grease, and pH), effluent limitations are based on the
best conventional pollutant
1Clean Water Act, Section 101(a).
2"Waters of the United States" are defined in 40 CFR 122.3.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
B-3
EXHIBIT B-l
REPORTING REQUIREMENTS FOR FEDERAL PERMIT PROGRAMS
Permit Program
National Pollutant
Discharge Elimina-
tion System
Dredged or Fill
Material
RCRA
Prevention of
Significant
Deterioration
Reports Required
Varies with Permit
No Reporting Require-
ments
Annually
Varies with Permit
Actions Required if
Release Exceeds Permit
Discharges that endanger
health or the environment
exceeding permit quantities
must be reported to EPA
within 24 hours
None Required
Releases that endanger
health or the environment
from facility require
notification of National
Response Center within 24
hours
None Required
New Source Perform-
ance Standards
National Emission
Standards for
Hazardous Air
Pollutants
Non-Attainment
Areas
UIC Programs
Varies with State
Implementation Plan
permit.
Varies between Stand-
ards : Asbestos,
Mercury - no report-
ing requirements
Vinyl Chloride - con-
tinuous monitoring,
semiannual report
Beryllium - continu-
ous monitoring,
report every 30
days.
No Reporting Require-
ments
Quarterly Reports
(Class I Wells only -
hazardous substances)
Varies with State
Implementation Plan
Permit
Varies between Standards
None Required
Notification of non-
compliance that endangers
health or the environment
must be reported within 24
hours
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
B-4
EXHIBIT B-l (continued)
REPORTING REQUIREMENTS FOR FEDERAL PERMIT PROGRAMS
Permit Program
Consolidated
Permits
Ocean Dumping
Reports Required
As required for each
program
Semi-Annual
Radionuc1ides
Semi-Annual
Actions Required if
Release Exceeds Permit
Notification of non-
compliance which may
endanger health or the
environment
Unpermitted, emergency
dumping must be reported
immediately to the EPA
Regional Office or the Coast
Guard.
Required to report releases
over specified concentra-
tions, over certain 24 hour
human exposure, causing loss
of facility operations, or
causing over specified prop-
erty damages.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
B-5
control technology, and for toxic pollutants (defined in CWA Section
307(a)(1)) and non-conventional pollutants (all pollutants other than
conventional and toxic), effluent limitations are based on the best available
technology economically achievable.3 Effluent limitations for toxic
pollutants are generally covered in 40 CFR 125.3, and particular limitations
for 6 toxic pollutant categories are set out in 40 CFR 129. Permits
addressing conventional, toxic, and non-conventional pollutants are written on
the basis of effluent limitations guidelines, best professional judgment (in
the absence of guidelines), or water quality standards. The permits specify
how the effluent guidelines (or limits based on best professional judgment)
and State water quality standards will be applied to a particular point
source. The limitations imposed by the permit are tailored to the operations
of the discharger. In addition to discharge limitations, permits prescribe
monitoring procedures and the recordkeeping and reporting that must be
performed. NPDES permits are valid for a period not to exceed five years. At
present, there are approximately 65,000 NPDES permits and permit applications.
In addition to obtaining a permit for discharges, owners or operators of
point sources may be required to monitor the water for the impact of the
pollutant(s) on the receiving waters. The monitoring requirements vary from
permit to permit—weekly, monthly, bimonthly, or, for small releasers,
quarterly. Certain types of chemical monitoring may be required for toxic
pollutants, such as gas chromatograph and mass spectrometer analysis. Since
these are fairly sophisticated and expensive, many firms with NPDES permits
utilize contracted laboratories. Applications for NPDES permits may include
requirements (45 FR 33571, May 19, 1980) for monitoring certain pollutants.
To obtain a permit, some industries are required to analyze their discharges
for all 126 priority pollutants; others may have to analyze for only those
they believe to be present. All monitoring information — date, place and
time of sampling, names of individuals who sample, date of analyses, names of
individuals who analyzed the results -- must be kept for three years. Owners
or operators are required to report any information that EPA or the State
Director of the NPDES program may request to determine compliance. (40 CFR
122.7)
Authority For Permit Program
As with many environmental programs, a state may operate its own NPDES
permitting program if it has been approved by EPA. Currently, 33 out of 56
jurisdictions administer the NPDES permit program themselves. The states,
however, must transmit to the Administrator a copy of each permit application
received and also must notify the Administrator of every action related to the
consideration of each application unless EPA has waived review. The
3Clean Water Act Sections 301(b)(2)(A), (C), (D), and (E). Note,
however, that the BAT regulations are not yet final. Note, also, that
publicly owned treatment works must apply best practicable waste treatment
technology.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
B-6
Administrator may review each permit; if she objects in writing within 90 days
to the issuance of a permit, the permit is not issued. Thus, although the
states may assume responsibility for administering the permits, EPA retains
oversight authority after the state NPDES program has been approved. If a
state does not have an EPA-approved NPDES program, EPA has full responsibility
for the permit program.
Potential Use of Information Generated by Continuous
Release Notification
Under NPDES, there already exist separate and detailed requirements for
some hazardous substances. However, according to EPA, the NPDES system has
dealt primarily with "conventional" pollutants. In spite of this traditional
emphasis, limitations for hazardous substances are currently included in
permits and more attention is being paid to them in permit writing. Where
analytical methods (testing protocols) have not been approved for a particular
pollutant, the discharge of that pollutant can still be limited in the permit
by specifying a particular analytical method.
Reporting of continuous releases under CERCLA could provide information to
the NPDES program about releases of hazardous substances which are not (and
perhaps should be) included in the permits. Putting limitations on toxic
pollutants or requiring monitoring of toxics, however, may not be possible for
all NPDES permits. For example, although most large Publicly-Owned Treatment
Works (POTWs) monitor for toxics, some smaller POTWs with NPDES permits that
cover only "conventional" pollutants may be discharging some toxic"
pollutants. To require monitoring for these establishments discharging small
quantities might be too expensive for small POTWs.
B.2 PRETREATMENT STANDARDS AND PERMITS
Section 307(b) of the Clean Water Act (CWA) requires the establishment and
enforcement of national pretreatment standards to control the introduction
into POTWs of pollutants which are not treatable by POTWs and which
contaminate the sludge produced by the POTW, or interfere with, pass through,
or are otherwise incompatible with the operation of a POTW. There are two
types of pretreatment standards. The first are technology-based standards
intended to control the 126 priority pollutants identified in Section 307(a)
of the CWA that are promulgated for individual industry categories. (40 CFR
403) Besides effluent limitations for specific indirect industrial
dischargers, there is a general pretreatment standard that prohibits the
discharge of any substance into a POTW which will interfere with the operation
of the works. (40 CFR 403.2)
Each POTW with a design flow of more than 5 million gallons/day and which
receives industrial pollutants must have an approved pretreatment program.
Under the pretreatment program, the POTW identifies contributions of
pollutants from various industrial sources and assures compliance by these
sources with any applicable pretreatment standards. The requirements for
identifying pollutants from significant industrial users and for ensuring
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
B-7
compliance with national pretreatment standards by these users are included in
the POTW's NPDES permit.
Requirements
POTWs which develop local pretreatment programs have the legal authority
to enforce pretreatment standards applied to industrial users. This authority
may be in the form of a permit, contract, order, or other means, depending on
the POTW. Under this authority, the POTW may monitor, inspect, or otherwise
verify that the industrial user is meeting the national pretreatment standards
or other standards specified in the POTWs NPDES permit. (40 CFR
403.8(f)(1)(V)) The POTW must maintain records that describe all monitoring
activities.
In addition, all industrial users must submit to the POTW (or to EPA if
the POTW program is not yet approved) the following information: the name and
address of the user, SIC code, rate of production, average and maximum daily
flow of the discharge to the POTW, the nature and concentration of each
pollutant in the discharge, the applicable pretreatment standards, whether
these standards are being met on a consistent basis and a compliance schedule
for installation of pretreatment technology. (40 CFR 403.12(b)) The user
must keep records of all monitoring activities and must also report the
results to the POTW at least twice a year. These reports must include the
nature and concentration of pollutants in the effluent which are covered by
pretreatment standards and a record of all measured or estimated daily flows.
(40 CFR 403.12(e) and (g))
Authority for Permit Program
Although the POTW has the primary responsibility for insuring compliance
with pretreatment standards as part of their NPDES permit, the program also
involves the state and federal government. For those POTWs with a flow less
than 5 million gallons/day, the state or EPA regional office makes a case-by-
case determination whether a local program must be developed. Where a local
program is developed, categorical pretreatment standards for indirect
dischargers are enforced by the regional office of EPA or the state agency in
NPDES states (states with approved authority for managing and enforcing NPDES
permits). For the POTWs required to have local pretreatment programs, the
provisions of their pretreatment program for industrial users, including any
alterations in pretreatment standards to reflect POTW pretreatment, must be
approved by the regional EPA office or the state agency in NPDES states. In
sum, the authority to issue NPDES permits for POTWs, which delineate the
components of the pretreatment program, is EPA or the NPDES-state agency. The
POTW or local/state agency that manages the POTW has the responsibility for
ensuring that the conditions of its NPDES permit are met, including enforcing
the industrial pretreatment standards.
Potential Use of Information Generated by Continuous
Release Notification
The pretreatment standards apply to existing and new sources for major
industry categories. The standards limit discharges of those pollutants among
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
B-8
the 126 priority pollutants that are incompatible with the normal operation of
POTWs. Reports on the discharges of incompatible hazardous pollutants would
be supplied by notification of continuous releases under CERCLA. This
information could be used to flag hazardous substances for categorical
pretreatment standards for particular industries, if that information was not
supplied by current EPA surveys. Continuous release notification could also
supply data to POTWs on the types and quantities of substances that might
interfere with their operation.
B.3 PERMITS FOR DREDGED OR FILL MATERIAL
The Clean Water Act prohibits the discharge of dredged or fill material
except in compliance with Section 404. Section 404 sets up a procedure for
issuing permits specifying discharge sites. Fundamental to Section 404 of the
CWA "is the precept that dredged or fill material should not be discharged
into the aquatic ecosystem, unless it can be demonstrated that such a
discharge will not have an unacceptable adverse impact on the aquatic
ecosystem.4 Permits issued under Section 404 primarily control dredge and
fill activities that modify the physical integrity of navigable waters,
especially such modifications as stream channelization and the drainage of
wetlands.5 The discharge of dredged or fill material may be a continuous or
long-term disposal method, or a discrete action designed to create land for
construction purposes. In either case, a permit is required for the
discharge6 of dredged or fill material, and must be discharged in a site
specifically designated by the U.S. Army Corps of Engineers. (40 CFR 230.5)
Requirements
The requirements of 40 CFR 230 apply to the discharge of dredged or fill
material into navigable waters, not including the territorial sea and to the
discharge of fill material into the territorial sea.7 (The discharges of
dredged material into the territorial sea is covered under the Marine
Protection, Research and Sanctuaries Act (MPRSA) of 1972 which is discussed
below in Section B.10 of this appendix.)
"40 CFR 230.1.
5Edward Thompson, Jr. "Section 404 of the Federal Water Pollution Conrol
Act Amendments of 1977: Hydrologic Modification, Wetlands Protection, and the
Physical Integrity of the Nation's Waters." Harvard Environmental Law
Review, Vol. 2: 264-287 1977.
6Certain discharges (e.g., emergency repairs, certain farm and forest
roads, and other discharges identified in Sections 404(f) and (r)) are
exempted from the permit requirements.
740 CFR 230.1(b) "Territorial sea" and "waters of the United States" are
defined more fully in 40 CFR 230.3(v) and (s).
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
B-9
The permitting authority (either the Corps of Engineers or an approved
state program) approves discharges at particular sites through application of
the Section 404(b)(1) Guidelines, which are the substantive criteria for
dredged and fill material discharges under the Clean Water Act. Under the
Guidelines, a permit for discharge of dredged or fill material will not be
issued under the following conditions:8
• if there is a practicable alternative which would
have less adverse impact on the aquatic ecosystem;
• if it violates any applicable toxic effluent
standard under Section 307 of the CWA;
• if it jeopardizes the existence of species listed as
endangered or threatened under the Endangered Species
Act of 1973;
• if it violates any requirement that protects any
marine sanctuaries designated under the MPRSA; or
• if it will cause or contribute to any significant
degradation of the water of the United States.
The person petitioning to discharge dredged or fill
material must supply sufficient test data and
evaluations of the material and the extraction site
for the permitting authority to determine that the
material.does not meet .any of the restrictions
described above. (40 CFR 230 Subparts C-G) The
information supplied by the submitter must include
sufficient data to determine the degree to which the
discharge will introduce, relocate, or increase
contaminants or pollutants.
The District Engineer (or other authority) must evaluate, and put in
writing, determinations of potential short-term and long-term effects on the
physical substrate, water circulation, suspended particulates, turbidity,
contaminants, aquatic ecosystem and organisms, and other aspects of the
aquatic environment. In evaluating a discharge, the permitting authority
should also delineate the candidate disposal site, evaluate the physical and
chemical components of the site and the material to be discharged, and
identify ways to minimize the environmental impact of the discharge. The
permitting authority can only approve a discharge if it does not violate any
of the restrictions mentioned above.
The Corps also conducts a Public Interest Review which ensures that the
discharge will comply with the applicable requirements of other statutes and
840 CFR 230.10(a)-(d).
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
B-10
be in the public interest. The Corps or the State, as the case may be, must
provide an opportunity for a public hearing before making its decision whether
to approve or deny. If the Corps concludes that the discharge does not comply
with the Guidelines, it may still issue the permit under 404(b)(2) if it
concludes that the economics of navigation and anchorage warrant. Section
404(b)(2) gives the Secretary a limited authority to issue permits prohibited
by the Guidelines. The regulations governing Corps and state requirements,
respectively, appear at 33 CFR Parts 230-237 and 40 CFR Part 123.
There are no general monitoring, recordkeeping, or reporting requirements
applicable to all 404 permits. However, specific permits may, and often do,
contain appropriate monitoring, recordkeeping, or reporting requirements
tailored to the circumstances of the permitted discharge.
Authority for Permit Program
Permits to discharge are issued by the District Engineer of the U.S. Army
Corps of Engineers, or by any other individual designated by the Secretary of
the Army to act under Section 404 of the CWA. Alternatively, the State
Director of a permit program approved by EPA under Sections 404(g) and (h) or
his delegated representative may issue or deny permits.
Potential Use of Information Generated by Continuous
Release Notification
Contaminants or pollutants in dredged or fill material must be identified
and may be dumped only (1) if the contamination can be reduced to an
acceptable level at the disposal site and (2) if constraints are available to
prevent the contamination from traveling beyond the boundaries of the site.
Information supplied through continuous release notification could notify EPA
and the Corps of Engineers about releases of hazardous substances not
specified in permits.
B.4 PERMITS UNDER THE RESOURCE CONSERVATION AND RECOVERY ACT
The Resource Conservation and Recovery Act (RCRA) was enacted to encourage
"the safe disposal of discarded materials, and to regulate the management of
hazardous waste."3 Section 3005 of RCRA describes the basic requirements
for permits for treatment, storage, and disposal of hazardous wastes, but the
permit requirements are delineated more fully in the regulations. (40 CFR
122-124, 264, 266, and 267)
Requirements
All owners and/or operators of hazardous waste treatment, storage, or
disposal facilities are required to obtain permits. ("Hazardous waste" is
9Resource Conservation and Recovery Act, Section 1003, Purpose of the
Act. '
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
B-ll
defined in 40 CFR 261.3.) The RCRA regulations are very specific about the
information to be provided on a permit application. The application for final
permit has two parts: Part A consists of Forms 1 and 3 from the Consolidated
Permit Application Forms (40 CFR 122.22); Part B is a narrative describing
security procedures and providing detailed technical information about site
geohydrology, technologies to be used, and operating procedures. (40 CFR
122.25) In addition, the regulations require the proposed operating
procedures for a facility to be described in detail in the RCRA permit
application; if the permit is granted, certain operating procedures become
permit conditions and any deviation from those procedures must be reported to
EPA. Conditions implementing the technical and administrative requirements of
40 CFR 264 are included in RCRA permits.
The owner/operator of a hazardous waste facility must submit an annual
report to the EPA Regional Administrator specifying wastes received during the
year.10 As mentioned,, owners/operators must also notify EPA of any
modifications to the facility or its operating procedures. In addition, a
release from the facility requires oral notification to the National Response
Center within 24 hours if human health or the environment would be threatened
outside the facility. Compliance with regulations may be checked by
inspection.
The regulations establish general recordkeeping requirements which
pertain, for the most part, to the wastes received by the facility, their
type, quantity, and how or where they were disposed. The regulations also
require that, for the life of the facility, records be kept of all required
semi-annual testing of groundwater monitoring wells, groundwater surface
elevations, and other monitoring.11 If any required semi-annual groundwater
tests show that a statistically significant increase in the level of hazardous
substances in the groundwater, the operator of the facility is required to
send EPA a plan for mitigating the groundwater contamination. There are no
other specific monitoring requirements in the regulations.
Few final RCRA permits have been issued to date. Many existing facilities
do have interim status, where the firms have notified EPA of the hazardous
wastes that they generate, transport, store, or dispose. About 10,000 storage
facilities, treaters, and disposers have interim permits while another 695,000
small generators (which generate less than 1,000 kg. per month each) have been
exempted from some RCRA manifest system and permit requirements.12
10 40 CFR Section 264.75. EPA, as it has done in the past, may suspend
this requirement on a yearly basis.
11 40 CFR Section 122.28.
12 Federal Register, Preamble to RCRA 3001 Regulations, Vol. 45, No.
98, May 19, 1980, p. 33,102.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
B-12
Authority for Permit Program
EPA has overall responsibility for the RCRA program, although permits may
be issued by states with authorized programs. In addition, EPA has review
rights for permits, and can terminate a permit or take enforcement action
against its holder.
Potential Use of Information Generated by Continuous
Release Notification
Any releases should be specified in the RCRA permit, so a facility
complying with its permit should not have continuous releases. This may not
be true in actual practice, however, and the information that could be
supplied through continuous release reporting might provide detailed
information on facilities with unexpected releases. Since RCRA regulations
(at least for large generators and disposers) have significant monitoring and
reporting requirements, most continuous relases would be detected and
corrected under existing requirements. While facilities are beginning to
comply with RCRA regulations, continuous release notification could help EPA
target its efforts in ensuring compliance with RCRA permits. Information from
continuous release reporting could also provide more data on those presently
exempted from RCRA permit requirements, such as small generators and certain
industries.
B.5 PREVENTION OF SIGNIFICANT DETERIORATION (PSD) UNDER THE CLEAN AIR ACT
Part C of the 1977 Clean Air Act Amendments deals with prevention of
significant deterioration (PSD) of air quality. Its purposes are
broad-reaching and include protection of public health and welfare,
preservation and enhancement of air quality in certain areas, and the
insurance that "economic growth will occur in a manner consistent with the
preservation of existing clean air resources."13 PSD is designed to prevent
the deterioration of air quality in an "attainment" area that is at the level
of the National Ambient Air Quality Standards (NAAQS) or an unclassified area.
Requirements
New major stationary sources (or existing stationary sources which are
planning major modifications) in one of 28 industrial categories are subject
to PSD requirements if they are located in an attainment area or unclassified
area and have the potential to emit, with air pollution control equipment, 100
tons per year of any pollutant regulated under the Clean Air Act. In
addition, all new sources with the potential to emit more than 250 tons per
year are subject to PSD requirements. PSD requirements cover any pollutant
that is subject to regulation under the Clean Air Act, including hazardous
13Clean Air Act, Section 160.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
B-13
pollutants under National Emission Standards for Hazardous Air Pollutants
(NESHAPs), the criteria pollutants subject to National Ambient Air Quality
Standards, and pollutants that are controlled under New Source Performance
Standards (NSPS). Sources subject to PSD requirements may be included in a
"bubble" as part of the PSD permit.
A permit must be obtained prior to construction or major modifications of
facilities which are subject to PSD requirements, as explained above. Firms
may have to perform preconstruction ambient air monitoring or modeling of all
pollutants covered by the Clean Air Act if their emissions exceed certain de
minimus amounts. Duration of monitoring for criteria pollutants is from
four to twelve months during a time period when maximum air quality levels can
be expected. Firms must use EPA-approved monitoring techniques, and EPA will
individually review the number of proposed sites and locations for data
collection. Existing air quality data that conform to EPA standards may be
used. For regulated non-criteria pollutants (NSPS, NESHAPs), EPA can allow
modeling or other estimates rather than mandatory monitoring. EPA may also
require firms to monitor ambient air after they have gone into operation,
particularly if the PSD increment is threatened.
Authority for Program
PSD requirements are generally administered by EPA Regional Offices, but
some states have either been delegated full or partial authority for the
program. Few states have taken over the PSD program entirely. In some cases,
the state agencies, while not having final authority, serve as intermediaries
with the EPA region. In others, EPA still has full charge. In any case, PSD
permits must be approved by the permitting authority before a facility may
undergo construction or a major modification.
Potential Use of Information Generated by Continuous
Release Notification
The PSD program covers all pollutants regulated under the Clean Air Act.
Out of these, only NESHAPs are listed as hazardous substances under CERCLA.
Unlike criteria pollutants, NESHAP substances are not required to be measured
in the pre-construction monitoring program, but EPA (or states) may require
monitoring of NESHAPs for PSD permits. Even with pre-construction monitoring
requirements, PSD permits are essentially permits to build, and the program
does not focus clearly on monitoring during operation of the facility.
Therefore, continuous release information would not easily be incorporated
into or utilized by the program.
B.6 NEW SOURCE PERFORMANCE STANDARDS
New Source Performance Standards (NSPS), authorized under Section 111 of
the Clean Air Act (CAA), are uniform national emission standards set by EPA.
The standards apply to all new construction or modification or reconstruction
of existing sources in an industrial class, regardless of the air quality
region in which they are located.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
B-14
Requirements of the Standards
Because NSPS are written for particular industries, the regulated
substances differ somewhat between industries. Each new source performance
standard, however, includes emission limits for one or more of eight
pollutants. Five of these, such as carbon monoxide and particulate matter,
are also criteria pollutants. The other three are regulated because of other
health and welfare effects. None of the hazardous air pollutants (NESHAPs),
which are considered hazardous substances under CERCLA, are regulated under
NSPS.
Within 60 days after achieving maximum production, but not later than 180
days after initial start-up of an affected facility, firms must conduct
performance tests with an observer present to ascertain the effectiveness of
their emission control equipment. Specific monitoring requirements and
emission standards are set by the individual NSPS.
Particular reporting requirements are also included in each NSPS. In
general, firms must submit quarterly reports which include:
• information about excess emissions (magnitude, date,
time);
• specific identification of each period of excess
emissions that occurs during startup, shutdown and
malfunction;
• date and- time during which continuous monitoring
system is inoperative;
• explanation of actions taken to correct malfunctions
of equipment or monitors; and
• negative declaration where no excess emissions or
monitoring problems have occurred.
NSPS also have recordkeeping requirements which vary depending on the
standard. At a minimum, owners and operators must maintain records of the
occurrence and duration of any startup, shutdown, or malfunction of air
pollution control equipment. Owners should keep files containing all
measurements, performance test results, continuous monitoring system
performance evaluations, calibration checks, adjustments and maintenance
performed on emissions or monitoring systems, and any other information
required by the individual NSPS. This information should be retained at least
two years.
Authority for the Program
EPA is responsible for all NSPS standard setting and enforcement.
Enforcement may be delegated to states, and about half of the states have
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
B-15
received such delegation. Even in such delegate states, however, EPA retains
its full enforcement authority concurrently.
Potential Use of Information Generated by Continuous
Release Notification
At this time, NSPS do not include any substances designated as hazardous
under CERCLA. Consequently, information provided through continuous release
notification would probably not provide information useful to the NSPS program.
B.7 NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS
Section 112 of the Clean Air Act gives the Administrator of EPA the
authority to establish national emission standards for hazardous air
pollutants (NESHAPs) which "in his[her] judgment provide an ample margin of
safety to protect the public health from such hazardous air pollutants[s]."
The emission standards apply to all point sources of hazardous air pollutants
that have been designated by EPA for regulation. Thus far, EPA has designated
seven hazardous substances -- benzene, radionuclides, asbestos, beryllium,
mercury, vinyl chloride, and arsenic.
Requirements
NESHAPs apply to all sources of NESHAP-regulated pollutants; both old and
new sources must comply with the standard. The standards generally specify
emissions limits and may also specify certain manufacturing, use, and/or
disposal restrictions and practices. In addition, no person may construct a
new source or modify ah existing source of designated hazardous air pollutants
without obtaining a permit. Construction or modification will not be
permitted if it would cause emissions of hazardous air pollutants in violation
of the emission standard.
Within 90 days after EPA issues a standard, affected sources must submit
information concerning their operation and control strategies for the
substances regulated. In addition, NESHAP-regulated sources are required to
conduct emission testing and monitoring, and are required to install sampling
ports, sampling platforms, and other sampling and testing equipment. Testing
and monitoring requirements, as well as additional reporting requirements, are
spelled out in the individual standards. In addition, NESHAPs may also
specify recordkeeping requirements. For example, owners or operators of
industries affected by the vinyl chloride standard must keep detailed records
of operating procedures and sampling and monitoring data, and must submit
annual and semi-annual reports to authorities.
Authority for the Program
The Clean Air Act authorizes EPA to delegate to each state the authority
to carry out and enforce the NESHAPs program. In fact, only about half the
states have assumed responsibility for enforcing the NESHAP provisions, and
the terms of this delegation vary from state to state. EPA and the states
share enforcement activities.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
B-16
Potential Use of Information Generated by Continuous
Release Notification
Since this program specifically deals with hazardous substances,
continuous release notification under Superfund could help obtain information
on releases of the NESHAP substances. Monitoring or reporting under CERCLA
could also provide information on hazardous substances not presently regulated
by the NESHAP program. Continuous release data could help identify hazardous
substances for the development of new hazardous air pollutant standards and
provide data for use in developing and predicting the effects of such a
standard.
B.8 PERMITS FOR NON-ATTAINMENT AREAS
Air quality control regions are classified as non-attainment if, for a
particular contaminant, the area exceeds an applicable national ambient air
quality standard (NAAQS). New growth is permitted in a non-attainment area as
long as it complies with certain stringent requirements set up under Sections
110 and 171-178 of the Clean Air Act. This section requires that the states,
in their State Implementation Plans, design permit programs for the
construction and operation of new, modififed, or reconstructed major
stationary sources in non-attainment areas. The permit program must ensure
that no new (or modified) source will cause a net increase in the
concentration of any pollutant which exceeds the NAAQS in that area or create
a delay in meeting the air quality standard.
Requirements
States have three options for complying with the non-attainment provisions:
• They may include in their plans (and regulations) a
provision for offsets;
• They may design a plan with general emissions
standards and control strategies of sufficient
stringency to create a margin for growth without
offsets; or
• They may do both.
Most, but by no means all, of the states are working out offset provisions
rather than attempting to regulate all of their existing sources tightly
enough to provide a large margin for growth. Some sources subject to
non-attainment requirements may be covered by a "bubble" as part of their
permit.
To obtain a permit in a non-attainment area of a state that has adopted
offset regulations, a major new source or major modification must comply with
the following:
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
B-17
• use very advanced technology in order to achieve the
lowest achievable emission rate (LAER);
• provide a reduction in emissions as an offset large
enough to demonstrate a net air quality improvement in
the non-attainment area; and
• certify that all other sources under its control
(within the same state) are in compliance with their
emission limitations.
A source that is not major must comply with the normal new source performance
standards (NSPS) applicable to its location and industry category.
Certification of compliance must be accompanied by supporting evidence, such
as performance test results, continuous monitoring results, and/or
demonstration that required control devices are in place and operating at
design efficiency.
In states that have not adopted offset regulations, facilities must
comply with the general emission standards and control strategies of the
particular state. However, new major sources and modifications are still
subject to statewide compliance and Lowest Achievable Emission Rate (LAER)
requirements.
Authority for the Program
The state is responsible for the design and implementation of
non-attainment permit programs, although EPA reviews the program in its
approval or denial of the revised State Implementation Plan.
Potential Use of Information Generated by Continuous
Release Notification
This program would probably not be able to utilize information on
hazardous releases because the program has only the authority to regulate
criteria pollutants in non-attainment areas. These pollutants are not
presently designated as hazardous substances under CERCLA.
B.9 UNDERGROUND INJECTION CONTROL (UIC) PROGRAMS
Section 1412 of the Safe Drinking Water Act authorizes EPA to promulgate
regulations for state underground injection programs. Such regulations are
required to contain "minimum requirements for effective programs to prevent
underground injection which endangers drinking water".11* The statute
mandates minimum state regulations that require federal or state authorization
for all underground injections. Guidelines for state requirements allow
luSection 1412(b)(1) [emphasis added].
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
B-18
authorization by permit or by rule. (40 CFR 122.29). UIC regulations cover
any injection of "fluids" underground (with the exemption of individual or
household residential cesspools). "Fluids" is defined as anything that flows
or moves. (40 CFR 146.3). The regulations that describe minimum state
requirements for UIC programs divide underground injection wells into five
categories:15
Class I; Wells which inject hazardous waste16 or other
industrial and municipal fluids beneath the lowermost formation
containing, within one quarter mile of the well bore, an underground
source of drinking water.
Class II: Wells which inject fluids which are brought to the
surface in connection with conventional oil and gas production, are
used for enhanced recovery of oil or gas, or are used for storage of
liquid hydrocarbons.
Class III: Wells which inject for extraction of minerals or
energy, excluding Class V wells used in heating or aquaculture.
Class IV:
• Wells that inject hazardous wastes into a
formation which, within one quarter mile of the well,
contains an underground source of drinking water;
• Wells that inject hazardous waste above a
formation which, within one quarter mile of the well,
contains an underground source of drinking water; and
• Wells that inject hazardous wastes that are not
Class I wells, and do not inject hazardous wastes
into or above a formation which, within one quarter
mile of the well, contains an underground source of
drinking water. For example, wells used to dispose
of hazardous wastes into or above a formation which
contains an aquifer which has been exempted17 under
40 CFR 146.04 are included in Class IV.
1540 CFR 146.5(a)-(e) as updated through Final Rules, August 27, 1981,
46 FR 43156 and Proposed Rules (to be finalized with minor changes, February,
1982), October 1, 1981 46 FR 48243.
16"Hazardous wastes" are defined as promulgated under RCRA (40 CFR
261.3).
1 "'Exempted aquifers" are aquifers (designated by the state or regional
office of EPA) that would otherwise qualify as "underground sources of
drinking water" but which have no real potential to be used as drinking water
sources. (46 FR 48249).
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
B-19
Class V: Injection wells not included in Class I-IV,
including geothermal wells for heating, dry wells for injection
of wastes, septic system wells for multiple dwellings, and
injection wells used in experimental technologies.
As demonstrated by the above definitions, underground injection wells
involving hazardous wastes covered by CERCLA are classified as either Class I
or Class IV wells. Except for wells that exist at the time of approval of the
state program, which can be authorized by rule for a period of time (up to 5
years for Class I wells, 6 months for some Class IV wells), all Class I and
Class IV wells require permits.18 Class IV wells that inject hazardous
wastes into an underground source of drinking water (the first type of Class
IV well defined above) are to be eliminated over a period of six months after
the approval of a state program, and all such new wells are to be prohibited.
(40 CFR 122.36). UIC permits are included under EPA's Consolidated Permit
Regulations, which also include RCRA and NPDES permits, and are subject to the
general requirements of 40 CFR 122.1-122.20. Underground injection control
programs are also subject to the additional requirements specific to UIC
programs (40 CFR 122.31-122.45), and the technical UIC requirements of 40 CFR
146.
Requirements
In order for a state program to gain approval, the program must meet
certain requirements. Permits for underground injection under approved state
programs must include the following permit conditions (40 CFR 122.42):
• construction requirements to ensure proper well
operation;
• corrective action requirements to bring existing
wells in the injection zone into compliance,
• operation requirements to define the volumes and
pressures allowed and to prevent the well from
threatening drinking water supplies;
• monitoring and reporting requirements;
• procedures for plugging and abandonment of wells;
and
• financial responsibility requirements.
1'Wells authorized by rule must submit "inventory" information (40 CFR
122.37(c)), and are subject certain other requirements, depending on the class
of the well.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
B-20
Besides the general requirements above, injection wells for hazardous wastes
must also comply with the manifest and other requirements of RCRA which are
applicable to all generators of hazardous waste and owners or operators of
hazardous waste management facilities.
Reporting requirements for Class I wells include quarterly reports to the
permitting authority that outline the characteristics of the injection fluids;
monthly average, maximum and minimum values for injection pressure, flow rate
and volume, and annular pressure; the results of required monitoring; and the
results of any tests of mechanical integrity or other tests required under the
permit. (40 CFR 146.13(c)). Operators are required to retain records
concerning the nature and composition of all injected fluids until three years
after the well has been plugged and abandoned. (40 CFR 122.41(b)).
Monitoring requirements vary from permit to permit, but can include
analysis of the injected fluids with sufficient frequency to yield
representative data of their characteristics; the use of continuous recording
devices to monitor injection pressure, flow rate, and volume; and a
demonstration of mechanical integrity at least every five years. The permit
must also include sufficient monitoring requirements that will measure the
migration into and pressure in.any affected underground sources of drinking
water. (40 CFR 146.13(b)).
Under the Consolidated Permit Regulations, any owner or operator of an
injection well must report, within 24 hours, a violation of the permit which
may endanger health or the environment. In the case of injection of hazardous
wastes, a violation of the permit would primarily mean the movement of
injection fluids beyond the injection' zone, endangering drinking water
supplies. After the problem has been reported, the permitting authority, such
as the state agency, can require any needed corrective actions.
Authority for Permit Program
The SDVA authorizes states to administer UIC programs if the state
program is approved by EPA. Three state programs have been conditionally
approved. Only one of these, however, has been approved for hazardous waste
injection wells. The other two programs are approved for enhanced oil and gas
recovery only. Because of the lag between when EPA's regulations and criteria
became effective (July, 1980) and when approved state programs will come into
effect, underground injection of hazardous wastes has been temporarily
permitted under RCRA interim facility standards. Since underground injection
is a hazardous waste disposal method, owners or operators of underground
injection wells for hazardous wastes, like other hazardous waste disposers,
have been required to obtain permits and to comply with Subparts A through E
of 40 CFR 265--Interim Status Standards.19 Because of the overlap in
19These standards include general facility standards, preparedness and
prevention procedures, contingency plan and emergency procedures, and manifest
system, recordkeeping, and reporting. >
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
B-21
authority between RCRA and SDWA, EPA policy is still in a state of flux, and
no final decision has been made on the applicability of each of the two
programs.
Potential Use of Information Generated by Continuous
Release Notification
UIC permits (including those regulated under RCRA) already require
routine reporting, monitoring, and special reporting of permit violations for
permitted wells. Therefore, it is unlikely that continuous release
notification would supply any additional information on these wells. If there
are presently unpermitted wells, reporting requirements under Section 103 of
CERCLA might induce presently unpermitted wells to report and to come into to
compliance.
B.10 OCEAN DUMPING PERMITS
The Marine Protection, Research, and Sanctuaries Act (MPRSA) gives the
authority to "regulate the dumping of all types of materials into ocean
waters," and to prevent or strictly limit the dumping of any material which
would adversely effect human health, welfare, and amenities or the marine
environment, ecological systems, or economic potentialities.20 MPRSA
prohibits transportation for the purpose of dumping material into ocean waters
unless the dumper can obtain a permit.21 "Material," as defined in the Act,
means "matter of any kind or description." MPRSA provides some examples, such
as solid waste, sewage sludge, chemicals, and industrial, municipal, and
agricultural waste.22 Permits are obtained by the dumper who can prove that
the proposed dumping "will not unreasonably degrade or endanger" the marine
environment.2 3
Requirements
Permit applications are evaluated using the environmental impact criteria
set forth in the statute and in EPA regulations 40 CFR 227. The criteria
designate certain materials that are prohibited from being dumped, other
materials prohibited except as trace contaminants, and recommended tests and
procedures to provide enough information to evaluate a dumper's application.
20USC Section 1401(b).
21USC Section 1411(b).
22USC Section 1402(c).
23USC Section 1412(a), 1413(a) [emphasis added]. "Dumping" is defined
in the Act as any disposition of material provided that it does not encompass
several exceptions including but not limited to: effluents from discharges
covered by the Clean Water Act, Rivers and Harbor Act, or Atomic Energy Act of
1954, routine effluents from vessels; the construction of artificial islands
and intentional placement of any device, oyster shells, fish wastes, or any
other material for fisheries development.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
B-22
All permits must include the following information:2"
1. Name of permittee;
2. Means of conveyance and methods of release of material;
3. Port from which the material is transported;
4. A description of relevant physical and chemical
properties of the material;
5. Quantity to be dumped;
6. The disposal site; and
7. The times at which the permittee may release materials
into the ocean and the effective and expiration dates
of the permit.
Besides displaying the permit on the vessel engaged in dumping, the dumper
must keep records in the form of historical records of the physical and
chemical characteristics of the material to be dumped and times and locations
of dumping. This information must be reported, every six months during the
time the permit is valid, to the Regional Administrator of EPA who granted the
permit.25
Authority for Permit Program
Permit applications are granted and revised by the appropriate regional
offices of EPA (for non-dredged material) or district Corps of Engineers
office (for dredged material). Copies of permit applications, however, are
sent to state water pollution control boards and/or state coastal zone
management authorities and copies of permits are held by the U.S. Coast Guard,
who is involved in enforcing the permits.26 It is important to note that
the permit program evaluates permit applications on a case-by-case basis.
Accordingly, EPA or the Corps of Engineers may require certain information as
part of a particular permit, such as test results, additional information, or
monitoring of either the waste or the receiving waters. EPA, along with the
National Oceanic and Atmospheric Administration (NOAA), monitors and manages
each designated dumpsite. If the dumping is endangering the marine
environment, EPA has the authority to modify or revoke permits as necessary.
2"40 CFR 223.1.
2540 CFR 224.
2640 CFR 222.3(d) and (f), 222.9(d).
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
B-23
Potential Use of Information Generated by Continuous
Release Notifications
The MPRSA permit program covers hazardous releases since any release into
ocean waters is allowed only through a permit which records the site, times,
and quantities of material dumped. Continuous release notification, in this
case, would not be useful since each dumping event is a discrete action, is
known about in advance, and no continuous releases under Section 103(b)(2)
would be expected. Ocean dumping is only economically feasible when material
is transported in large quantities, which the Coast Guard would be able to
detect. Therefore, continuous release notification would probably not help
identify any releases not already permitted.
B.ll RADIONUCLIDE PERMIT PROGRAMS
Nuclear materials are primarily regulated by the Nuclear Regulatory
Commission under the Atomic Energy Act of 1954. The Commission issues
licenses and regulations for the production, transfer, processing,
transportation, and use of "source", "by-product" and "special" nuclear
material, as defined in the Atomic Energy Act.27 Except for certain
exceptions spelled out in each permit program, such as research for the
Department of Energy or use of small quantities, every person who deals with
source, by-product, or special nuclear material must have a general or
specific license to do so.
Regulations pertaining to the licensing of nuclear facilities, radioactive
devices, spent fuel storage, and other uses of radionuclides are found in 10
CFR Parts 14-75. The regulations are organized according to the type of
material regulated: domestic licensing of by-product material (Part 30);
domestic licensing of source material (Part 40); domestic licensing of
production and utilization facilities (Part 50); domestic licensing of special
nuclear material (Part 70); and licensing regulations for spent fuel storage
installations (Part 72).
Requirements
Licenses granted by the Nuclear Regulatory Commission may be general or
specific. General "licenses" (basically waivers) are granted, without
2'According to the Atomic Energy Act (42 USC 2011), "source material"
means (i) uranium or thorium or any combination thereof, or (ii) ores which
contain .05% or more of those elements, not including special nuclear
material. "Special nuclear material" means plutonium, uranium 233, 235, or
any material artificially enriched by these isotopes not including source
material. "By-product material" means any radioactive material (except
special nuclear material) yielded in or made radioactive by exposure to the
process of utilizing special nuclear material. UMTRCA also includes as
"by-product material" the tailings or wastes produced by the extraction or
concentration of uranium or thorium from any ore processed for its source
material content.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
B-24
application, for certain uses of source and by-product material. A special
license is required, however, to produce devices such as guages, lights, and
other enclosed uses of radioactive substances that have been given general
licenses. The producers are required to maintain records of where and to whom
the devices are sold. Special licenses require application to the Nuclear
Regulatory Commission, and verification and inspection of safety facilities,
recordkeeping, and monitoring facilities. Each type of license (special,
by-product, source material) specifies different reporting and monitoring
requirements depending on the risks posed by the activity. There are certain
requirements common to all of the permit programs.
The Nuclear Regulatory Commission requires that records be kept of all
receipts, transfers, and disposals of source, by-product, and special nuclear
material. In addition, licensees must maintain records of all monitoring and
safety inspections. These records must be kept for the time specified in the
permit (usually two years, but sometimes until the Nuclear Regulatory
Commission releases them), depending on the permit. For special and source
material, a "materials balance" system is required that records the
whereabouts of all materials in the possession of or transferred by the
licensee. Monitoring is required for all activities involving nuclear
material, except for certain uses of small quantities of enclosed by-product
material. Besides general monitoring of personnel areas and nuclear
facilities, licensees must report to the Nuclear Regulatory Commission the
quantities and nature of all effluents (both gaseous and liquid) released into
unrestricted areas every six months.
According to 10 CFR 20, which describes general requirements for all uses
of radioactive substances, licensees must notify the Nuclear Regulatory
Commission of all "nuclear incidents".28 Depending on the level of
exposure, the amount of radioactive material released, and other criteria, the
licensee must report nuclear incidents or excessive levels of radioactivity
immediately, within 24 hours, or within 30 days. Licensees must also report
all defects in facilities and non-compliance with the license within two
days. (10 CFR 21.21)
Authority for Permit Program
The Nuclear Regulatory Commission has the primary authority for regulating
source, by-product, and special nuclear material. It has delegated this
28"Nuclear Incident" is defined in Section 11(a) of the Atomic Energy
Act as: ... any occurrence, including an extraordinary nuclear occurrence,
within or outside the United States, causing bodily injury, sickness, disease
or death, or loss of or damage to property, or loss of use of property,
arising out of or resulting from the radioactive, toxic, explosive, or other
hazardous properties of source, special nuclear, or by-product material.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
B-25
authority to about 25 states (called "agreement states"). The states have
primary responsibility for regulating naturally-occurring or accelerator-
produced radioactive material (NARM). A little over half the states license
NARM, while most of the rest merely require registration of users of NARM.
Potential Use of Information Provided by Continous
Release Notification
Since the regulations of the Nuclear Regulatory Commission and many states
require extensive monitoring and reporting of releases of radionuclides from
regulated facilities, continuous release notification would probably not
provide new, useful information on these substances. Most facilities are
required to monitor and to make periodic reports. Notification of continuous
releases under CERCLA could provide the same kinds of information already
being received.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
APPENDIX C
ANALYSIS OF INDUSTRY PROFILES
ICF INCORPORATED
-------
APPENDIX C
ANALYSIS OF INDUSTRY PROFILES
C.l INTRODUCTION
Chapter 3 of :this report discusses three program strategies for defining
the continuous release notification exemption. Strategies 2 and 3 are
implemented over a longer period because they use industry-by-industry
studies, or "industry profiles," to help structure the continuous release
notification exemption. EPA may wish to conduct these studies (under OERR
direction) in order to gain more detailed and accurate information about the
extent of the multi-media, multi-substance continuous release problem. The
studies also would provide information about the possible economic effects of
alternative reporting and monitoring options on the regulated community.
Analysis of the structure of the industries involved could also help uncover
new options for a more cost-effective notification policy for continuous
releases. This appendix explores how such an analysis might proceed.
C.2 PURPOSE OF THE PROFILES
The rationale for the analysis outlined here is to improve the present,
very limited understanding of the continuous release problem. The magnitude
and incidence of the problem of continuous releases of hazardous substances is
largely unknown. Extensive interviews with EPA permit program personnel,
industry representatives, and environmental groups have emphasized the
difficulty of defining the scope of the problem or quantifying the economic
effects on the industries, municipalities, and other entities likely to be
involved in a continuous release notification program.
The analysis proposed here would initiate a more intensive study of the
continuous release problem. The study would consider the media effects of
continuous releases, the industries most affected, the role of the permit
programs, and how the permit programs affect continuous releases. Identifying
what media are adversely affected by what kinds of continuous releases will
help identify those releasers of greatest concern to a program exempting
continuous releases from notification requirements. While the media effects
are being analyzed, the study would examine which industries have
non-permitted continuous releases of hazardous substances at or above
reportable quantities and how the firms normally handle such releases.
Simultaneous analysis of media effects and industry problems would enable the
Agency to look immediately at those industries which it thinks are of the
greatest concern, while identifying other releasers that should be of
concern. The analysis of media effects might also suggest that some releasers
included in the initial group of industries to be studied do not actually
warrant further scrutiny.
The study would also examine the costs and benefits of various reporting
and monitoring options as they relate to different industries and sizes of
February 1 Draft * * * Do Not Quote or Cite
3 IW INCORPORATED
-------
C-2
firms and municipalities. For example, in some industries already regulated
by other permit programs, continuous release monitoring costs may be lower
because of existing sampling equipment and trained personnel, while other
firms not currently subject to such regulation would have high initial costs.
The analysis would identify the distribution of such costs among industries.
C.3 INDUSTRIES TO PROFILE
The subject of further analysis is those industries likely to be involved
in continuous releases of reportable quantities of hazardous substances. An
initial assessment of such industries would include those that generate,
transport, or store/treat/dispose of hazardous substances, particularly those
industries with histories of spills or problem sites. The first industries to
study and their SIC codes might include:
Industry SIC Code
Metal Mining 10
Lumber and Wood Products 24
Paper and Allied Products 26
Chemicals and Allied Products 28
Petroleum and Coal Products 29
Rubber and Plastic Products 30
Fabricated Metal Products 34
Machinery, except Electrical 35
Electric and Electronic Equipment 36
Sanitary SeryjLces 495
Wholesale Trade, Chemicals 5161
These twelve SIC.codes cover the generator and disposer industries; transpor-
tation industries will need to be explored further.
Municipalities are another potentially regulated party to analyze. The
public sector profile should include information similar to the industry
profiles, including the extent of the problem with continuous releases, size
of cities releasing, and ability to handle possible monitoring, reporting, and
cleanup requirements.
C.4 INFORMATION TO BE INCLUDED IN INDUSTRY PROFILES
Information to be included in the profiles, by SIC industrial group, is:
* Distribution of firm size, by sales volume, by
number of employees, or by hazardous substance
quantities used or released;
* Geographical distribution of facilities;
* The proportions of EPA permit-holders, exempted
firms, and other non-permittees within the industry,
under EPA or EPA-approved state programs for NPDES,
RCRA permits, UIC, NESHAPS, and NSPS;
February 1 Draft * * * Do Not Quote or Cite ICF INCORPORATED
-------
C-3
* Types of chemicals continuously released (Including
anticipated intermittent releases — separately, if
possible);
• Amounts of hazardous chemicals continuously
released, by chemical group;
* The extent of present cleanup of continuous
releases; and
• Estimated Section 103(f)(2) monitoring and reporting
costs, which will vary by reporting and monitoring
option, based on marginal costs of monitoring beyond
that required by existing permits.
Some of this information may be difficult or impossible to obtain, but the
goal of each industry profile is to discover as much of this information as
possible for the industry studied without excessive expenditures of resources.
Much of the information needed to assess the economic impact of
alternative options would come from generally available published sources and
analyses already performed for EPA program offices and research laboratories.
The effluent guidelines studies, air emission studies, and 1978 industry
impact analyses for RCRA regulations can provide much information for industry
profiles and would be utilized to the fullest extent possible. The
information specific to continuous releases of CERCLA hazardous substances,
such as the types and .amounts of chemicals released by industries, may be more
difficult to obtain from existing sources. In those cases, interviews with
industry representatives, professional engineers, and other experts would be
necessary. Extensive, original research involving plant visits, inspections,
monitoring, testing, and other tasks involving significant levels of travel or
sampling would not be necessary for these profiles.
C.5 NEW NOTIFICATION POLICIES AND OPTIONS ARISING FROM PROFILES
The information from the profiles could be used in the quantitative
analysis of costs and benefits of alternative notification policies that might
be considered. But in addition to using the profiles to analyze the existing
alternative policies, the new information can also be used to generate new
options to be considered in the final selection of a notification policy.
Several requirements of any final rulemaking on CERCLA Section 103(f)(2)
may be aided by these profiles. The Regulatory Flexibility Act requires that
regulatory costs to small entities be measured and disproportionate burdens
eased wherever possible. Industry profiles of the potentially regulated
community will measure the costs to small firms and municipalities, perhaps
suggesting cut-off points in firm size where notification requirements could
be modified for smaller entities. Studies may suggest different criteria
(annual sales, number of employees, amount of hazardous substances used, etc.)
for making small-entity exemptions. Executive Order 12291 requires the
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
C-4
consideration of non-regulatory alternatives in any regulatory intact analysis
of a proposed rule.. More information about the regulated community may
suggest other ways Section 103(f) (2-) could be implemented to provide greater
regulatory relief while reaping the benefits intended by the law.
C.6 TIME REQUIRED FOR THE ANALYSIS
Each major industry group profile probably can be completed within a few
months of initiation. The profiles could be prepared concurrently or
sequentially.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
APPENDIX D
DEVELOPMENT OF EXAMPLES
ICF INCORPORATED
-------
APPENDIX D
DEVELOPMENT OF EXAMPLES
This appendix describes a framework for specifying many different
reporting and monitoring approaches for the continuous release notification
provisions of Section 103(f)(2). Many options other than the five examples in
Chapter 4 can be .developed by combining the elements of the reporting and
monitoring options discussed below. This discussion demonstrates the number
of possible notification options and the difficulty of formulating and
selecting the option best suited to EPA's needs and the continuous release
notification requirements of Superfund.
D.l REPORTING OPTIONS
Much o'f the reporting discussion in Chapter 4 is repeated here for the
sake of completeness and for the reader's convenience. There are four basic
elements of a reporting option for continuous releases:
* When must reporting be done (e.g., quarterly,
annually, with a significant increase in quantity, with
permit applications);
* What form must the report take (written or telephone);
* To whom must the report be submitted; and
* What must be reported (e.g., substances released,
amount, concentration, media affected).
D.l.l Time of Reporting
Reporting can be required at a number of different times. The possible
reporting times can be classified in the following cagegories:
(1) Regular -- This includes reports at constant
intervals such as monthly, quarterly, and annually.
(2) At the time of a statistically significant increase
in the quantity released -- Examples of this are 150%
of the median amount released hourly over the past
year, or 200% of the mean amount released daily over
the past three years. Significant can be defined
differently for different substances; it could
represent a smaller deviation from the applicable norm
for the more hazardous substances.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
D-2
(3) With permit applications and renewals — There is
only one choice here, to require it with applications
or not.
A reporting option could require reporting at times falling into any one
classification (such as annually), into any two classifications (such as
quarterly and at times of permit applications or renewals), or into all three
(such as annually, when daily amount released over two monitoring periods
exceeded 150% of mean for last 5 years, and with permit applications or
renewals). Another option is to let firms decide when they will report, given
some standard criteria. In addition, the required reporting times could
depend on the types or amounts of substances released or on the risks posed.
D.1.2 Form of Reporting
The third element of a reporting option is the form of the reports. Two
basic forms are stelephone reporting and written reports. Either or both could
be required for all reported releases. On the other hand, the required form
could depend on the type or amount released or the risks posed.
Written reports generally impose the greatest burden on industry since it
usually takes more time to write a report than to speak on the telephone, but
it is unclear whether telephone reports or written reports pose a greater
burden to EPA. It is unclear, therefore, which form imposes less burden
overall, although requiring both forms clearly imposes the greatest burden.
D.1.3 To Whom to Report
In most instancesv a firm with c9ntinuous releases that are not federally
permitted will report the release to the National Response Center (NRC). For
some releases, though, entities may already be required to report to another
federal agency, one of EPA's other programs, or a state agency. In each case
where a continuous releaser might report to another authority, there are two
ways such a report can be used to comply with CERCLA Section 103 requirements.
Either the federal or state authorities can agree to send periodic reports of
the continuous release notifications they have received to the NRC or EPA, or
EPA can make a policy decision that notifying these other authorities fulfills
the notification requirement of Section 103(f). Both of these approaches can
help reduce the burden on the regulated community. In the second approach,
however, the information in the reports will often not reach EPA, making it
less likely that the full benefits of reporting (such as basing studies on the
information gathered) will be realized.
D.1.4 What to Report
The regulated community must know what kind of information will have to be
reported. The kinds of information EPA might want to require are:
(1) Identity of the reporter and of the responsible party;
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
D-3
(2) The chemical composition and physical state of the
release;
(3) The amount, rate of flow, and/or concentration of
hazardous substances being released, and whether or
not this represents a statistically significant
increase in the amount previously reported;
(4) The location and/or source of release (i.e., pipe,
stack, lagoon, drain);
(5) The media into which the release occurs (including the
name(s) of waterways, etc.);
(6) The duration and frequency of the release;
(7) The estimated dispersion of the substances;
.(8) The methods used to measure the release;
(9) What, if anything, is being done to contain the
release; and
(10) The observed health, welfare, and environmental
effects of the release, if any.
A reporting option can require that any one or group of these be included in
all reports. It is also possible to specify that more information is
necessary for certain substances, that certain reports (such as the annual
report) contain more of less information than other reports, or that EPA can
request additional information later.
The organization of what is reported can also affect EPA's use of the
information and the effort required of the regulated community. The material
may be submitted by general location of releases, substances released, size of
release, or by media affected by the release. For example, if a major goal of
this reporting is to incorporate the releases into existing permit programs,
arranging the reports by media will make the information more easily routed to
and absorbed by the media-based environmental permit programs.
D.1.5 Illustrative Array of Reporting Options
Exhibit D-l lays out the elements of reporting options. One entry will be
selected from each of the columns numbered (1), (2), and (3), while multiple
entries may be selected from columns (4) and (5). In all columns, the entries
chosen may differ for different types or amounts of substances released or
risks posed by the releases being reported. Note that the entry "None" may
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
EXHIBIT D-1
EXAMPLES OF REPORTING OPTIONS
(1)
Regular
(1) Quarterly
or
(2) Annua Ily
or
(3) Other
or
(4) None
Time of Reporting
o
f
(2)
Statistically, Significant Increases
In the Quantity Released
Spec I fy:
(1) Significant increase occurs when
release increases 1>y a given
percent,
or
(2) Significant increases occurs when
severaj samples show a "statis-
tically significant" Increase at
a given level of confidence, using
a t-test
or
(3) None
m ,
With Permit
Appl(cations
and Renewals
(1) Yes
or
(2) No
(1)
(2)
(3)
(1)
(5)
(6)
(7)
(8)
(9)
(10)
(ID
(«»)
What to Report
Identity of reporter
and responsible party
and/or
Chemical composition
and physical state
and/or
'Amount and rate of
flow
and/or
Concentrat ion
and/or
Location
and/or
Source
and/or
Media
and/or
Duration and/or
frequency of Inter-
mittent releases
and/or
Dispersion of the
substances
and/or
Containment efforts
and/or
Observed health,
we I fa re, and envIron-
mentaI effects
(5)
Form of Report
(1) Telephone
and/or
(2) Written
7
February I Draft * * * Do Not Quote or Cite
-------
D-5
not be chosen for all three columns under "Time of Reporting" since that would
amount to no reporting which is not an allowable option.
D.2 MONITORING OPTIONS
This discussion covers five elements of a monitoring option:
• Frequency;
• Duration;
• Measures of releases;
• Locations monitored; and
• Media.
These monitoring elements are summarized in Exhibit D-2. It is from these
five elements that the monitoring options presented in Chapter 5 were
developed.
D.2.1 Frequency of Monitoring
The frequency of monitoring required can be divided into four broad
categories:
(1) Continuous monitoring -- A gauge automatically
measuring the amount of a major continuous leak is an
example of continuous monitoring.
(2) Periodic monitoring — Monitoring at given intervals,
such as monthly or quarterly, provides enough samples
to establish a mean an
-------
EXHIBIT D-2
EXAMPLES OF MONITORING OPTIONS
(1)
Frequency of Monitoring
(1) Continuous
or
(2) Periodic
or
(3) One-time
or
(4) None
(2)
Duration of Monitoring
(1) One hour
or
(2) Several hours
or
(3) One-day
or
(4) Several days
or
(5) One week
or
(6) Not specified
(3)
Data to be Monitored
Locations Monitored
(1) Amount and rate of flow (1) Pipes, drains
and/or and/or
(2) Chemical composition
and physical state
and/or
(3) Concentration
and/or
(2) Stacks
and/or
(3) Pits, ponds,
lagoons (air, sol I,
ft g roundwa te r)
and/or
(
-------
D-7
The frequency of monitoring can be set uniformally for all continuous
release circumstances, or the frequency could vary by substance released,
frequency or variability of release, industrial process, environmental media
involved, size of firm, or other factors.
D.2.2 Duration of a Monitoring Event
The costs of this element of monitoring will also depend on the frequency
of monitoring chosen. Options include:
(1) Monitoring for several hours or a 24-hour period --
Measurements such as flow rate, amount, media,
dispersion, weather conditions, and other information
can be measured on an hourly or constant basis. One
(or more) sample can be gathered at each release point
during this short monitoring period to be tested for
concentrations of designated hazardous chemicals.
(2) Monitoring over a week-long period or other time
period over which a reportable quantity is measured —
This option could be chosen when monitoring is done
infrequently or when the release is intermittent.. The
same system of hourly or constant physical measures
with daily sampling for chemical analysis would
continue over a seven-day period.
(3) Unspecified duration -- Under this option, some
context other than duration of monitoring defines the
monitoring period at any one monitoring effort.
Examples include specifying the number of samples to
be tested at each release location, or keeping a
constant daily log of estimated release amounts,
concentrations, and locations.
To keep the costs of the monitoring duration possibilities within a
reasonable range, duration can be paired with frequency, so that a short
duration monitoring event happens more frequently and the longer monitoring
periods can only be selected where monitoring is required only once or
infrequently.
D.2.3 Measures of Continuous Releases
This element parallels the issue of what information to include in
continuous release notification reports (see Section D.1.2 of this appendix).
The kinds of information releasers may monitor include:
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
D-8
• Amount and rate of flow;
• Chemical composition and physical state of the
release;
• Concentration of hazardous substances being released;
• Location and/or source of the release (e.g. pipe,
stack, lagoon, drain, etc.);
• Media into which the release occurs;
• Duration and frequency of a routine anticipated
intermittent release; and
• Dispersion of the release.
Where monitoring is done more frequently, then perhaps fewer measures
might suffice on most occasions, with full information required at relatively
long intervals (for instance, annually).
D.2.4 Locations Monitored
Several or all of the following likely locations of continuous releases
may be monitored by the responsible parties. This is not an exhaustive list:
• Pipes, drains;
• Stacks;
<
• Pits, ponds, lagoons;
• Spigots, safety and other valves;
• Rolling stock (rinsing, small on-site leaks that add
up to a reportable quantity, etc.); and
• Drums, warehouse foundations.
The basic choice here is whether EPA should try to specify the areas where
continuous releases may occur at a business, or whether only examples of such
releases should be provided, and firms held responsible for determining where
their continuous releases occur.
D.2.5 Media Covered
Monitoring techniques may differ depending on the environmental media
being tested. During the monitoring periods, EPA may find it useful to
require some form of ambient air, soil, surface water, or groundwater quality
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
D-9
testing to determine the dispersion of the routine releases of hazardous
substances. This may not be required, as with the testing of the releases
themselves, during every monitoring period, but it may be useful when the
continuous release first qualifies for the Section 103(f)(2) exemption granted
and infrequently thereafter. The frequency of this monitoring could depend
upon the cost and usefulness of the data to the permit programs and to the
protection of public health, welfare, and the environment in general.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
APPENDIX E
EXCERPTS FROM TEXT OF SECTIONS 101 and 103 OF CERCLA
ICF INCORPORATED
-------
APPENDIX E
EXCERPTS FROM TEXT OF SECTIONS 101 AND 103 OF CERCLA
SECTION 101
(10) "federally permitted release" means (A) discharges in compliance with
a permit under section 402 of the Federal Water Pollution Control Act, (B)
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, (C) continuous or anticipated intermittent discharges from a
point source, identified in a permit or permit application under section 402
of the Federal Water Pollution Control Act, which are caused by events
occurring within the scope of relevant operating or treatment systems, (D)
discharges in compliance with a legally enforceable permit under section 404
of the Federal Water Pollution Control Act, (E) releases in compliance with a
legally enforceable final permit issued pursuant to section 3005(a) through
(d) of the Solid Waste Disposal Act from a hazardous waste treatment, storage,
or disposal facility when such permit specifically identifies the hazardous
substances and makes such substances subject to a standard of practice,
control procedure or bioassay limitation or condition, or other control on the
hazardous substances in such releases, (F) any release in compliance with a
legally enforceable permit issued under section 102 of section 103 of the
Marine Protection, Research, and Sanctuaries Act of 1972, (G) any injection of
fluids authorized under Federal underground injection control programs or
State programs submitted for Federal approval (and not disapproved by the
Administrator of the Environmental Protection Agency) pursuant to part C of
the Safe Drinking Water Act, (H) 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, (I) any injection of fluids or
other materials authorized under applicable State law (i) for the purpose of
stimulating or treating wells for the production of crude oil, natural gas, or
water, (ii) for the purpose of secondary, tertiary, or other enhanced recovery
of crude oil or natural gas, or (iii) which are brought to the surface in
conjunction with the production of crude oil or natural gas and which are
reinjected, (J) the introduction of any pollutant into a publicly owned
treatment works when such pollutant is specified in and in compliance with
applicable pretreatment standards of section 307(b) or (c) of the Clean Water
Act and enforceable requirements in a pretreatment program submitted by a
State or municipality for Federal approval under section 402 of such Act, and
(K) any release of source, special nuclear, or byproduct material, as those
terms are defined in the Atomic Energy Act of 1954, in compliance with a
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
E-2
legally enforceable license, permit, regulation, or order issued pursuant to
the Atomic Energy Act of 1954;
(14) "hazardous substance" means (A) any substance designated pursuant to
section 311(b)(2)(A) of the Federal Water Pollution Control Act, (B) any
element, compound, mixture, solution, or substance designated pursuant to
section 102 of this Act, (C) any hazardous waste having the characteristics
identified under .or listed pursuant to section 3001 of the Solid Waste
Disposal Act (but not including any waste the regulation of which under the
Solid Waste Disposal Act has been suspended by Act of Congress), (D) any toxic
pollutant listed under Section 307(a) of the Federal Water Pollution Control
Act, (E) any hazardous air pollutant listed under section 112 of the Clean Air
Act, and (F) any imminently hazardous chemical substance or mixture with
respect to [SIC] which the Administrator has taken action pursuant to Section
7 of the Toxic Substances Control Act.
The term does not include petroleum, including crude oil or any fraction
thereof which is not otherwise specifically listed or designated as a
hazardous substance under subparagraphs (A) through (F) of this paragraph, and
the term does not include natural gas, natural gas liquids, liquefied natural
gas, or synthetic gas usable for fuel (or mixtures of natural gas and such
synthetic gas).
(22) "release" means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, or disposing
into the environment, but excludes (A) any release which results in exposure
to persons solely within a workplace/ with respect to a claim which such
persons may assert against the employer of such persons, (B) emissions from
the engine exhaust of a motor vehicle, rolling stock, aircraft, vessel, or
pipeline pumping station engine, (C) release of source, byproduct, or special
nuclear material from a nuclear incident, as those terms are defined in the
Atomic Energy Act of 1954, if such release is subject to requirements with
respect to financial protection established by the Nuclear Regulatory
Commission under section 170 of such Act, or, for the purposes of section 170
of such Act, or, for the purposes of section 104 of this title or any other
response action, any release of source byproduct, or special nuclear material
from any processing site designated under section 102(a)(1) or 302(a) of the
Uranium Mill Tailings Radiation Control Act of 1978, and (D) the normal
application of fertilizer;
SECTION 103
(a) Any person in charge of a vessel or an offshore or onshore facility
shall, as soon as he has knowledge of any release (other than a federally
permitted release) of a hazardous substance from such vessel or facility in
quantities equal to or greater than those determined pursuant to section 102
of this title, immediately notify the National Response Center established
under the Clean Water Act of such release. The National Response Center shall
convey the notification expeditiously to all appropriate Government agencies,
including the Governor of any affected State.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
E-3
(b) Any person —
(1) in charge of a vessel from which a hazardous substance is
released, other than a federally permitted release^ into or upon the
navigable waters of the United States, adjoining shorelines, or into or
upon the waters of the contiguous zone, or
(2) in charge of a vessel from which a hazardous substance is
released, other than a federally permitted release, which may affect
natural resources belonging to, appertaining to, or under the exclusive
management authority of the United States (including resources under the
Fishery Conservation and Management Act of 1976), and who is otherwise
subject to the jurisdiction of the United States at the time of the
release, or
(3) in charge of a facility from which a hazardous substance is
released, other than a federally permitted release, in a quantity equal to
or greater than that determined pursuant to section 102 of this title who
fails to notify immediately the appropriate agency of the United States
Government as soon as he has knowledge of such release shall, upon
conviction, be fined not more than $10,000 or imprisoned for not more than
one year, or both. Notification received pursuant to this paragraph or
information obtained by the exploitation of such notification shall not be
used against any such person in any criminal case, except a prosecution
for perjury or for giving a false statement.
(c) Within one hundred and eighty days after the enactment of this Act,
any person who owns or operates or who at the time of disposal owned or
operated, or who accepted hazardous substances for transport and selected, a
facility at which hazardous substances (as defined in section 101(14)(C) of
this, title) are or have been stored, treated, or disposed of shall, unless
such facility has a permit issued under, or has been accorded interim status
under, subtitle C of the Solid Waste Disposal Act, notify the Administrator of
the Environmental Protection Agency of the existence of such facility,
specifying the amount and type of any hazardous substance to be found there,
and any known, suspected, or likely releases of such substances from such
facility. The Administrator may prescribe in greater detail the manner and
form of the notice and the information included. The Administrator shall
notify the affected State agency, or any department designated by the Governor
to receive such notice, of the existence of such facility. Any person who
knowingly fails to notify the Administrator of the existence of any such
facility shall, upon conviction, be fined not more than $10,000, or imprisoned
for not more than one year, or both. In addition, any such person who
knowingly fails to provide the notice required by this subsection shall not be
entitled to any limitation of liability or to any defenses to liability set
out in section 107 of this Act: Provided, however, That notification under
this subsection is not required for any facility which would be reportable
hereunder solely as a result of any stoppage in transit which is temporary,
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
-------
E-4
incidental to the transportation movement, or at the ordinary operating
convenience of a common or contract carrier, and such stoppage shall be
considered as a continuity of movement and not as the storage of a hazardous
substance. Notification received pursuant to this subsection or information
obtained by the exploitation of such notification shall not be used against
any such person in any criminal case, except a prosecution for perjury or for
giving a false statement.1
* * *
(f) No notification shall be required under subsection (a) or (b) of this
section for any release of .a hazardous substance --
(1) which is required to be reported (or specifically exempted
from a requirement for reporting) under subtitle C of the Solid Waste
Disposal Act or regulations thereunder and which has been reported to
the National Response Center, or
(2) which is a continuous release, stable in quantity and rate,
and is —
(A) from a facility for which notification has been
given under subsection (c) of this section, or
(B) a release of which notification has been given
under subsection (a) and (b) of this section for a period
sufficient tot establish the,continuity, quantity, and
regularity of such release:
Provided, That notification in accordance with subsections (a)
and (b) of this paragraph shall be given for releases subject to
this paragraph annually, or at such time as there is any
statistically significant increase in the quantity of any
hazardous substance or constiuent thereof released, above that
previously reported or occurring.
1Section 103(d) and (e) are not relevant to this report, consequently
they were not included in these excerpts.
February 1 Draft * * * Do Not Quote or Cite
ICF INCORPORATED
------- |