00-16181. Interim Guidance on the CERCLA Section 101(10)(H) Federally Permitted Release Definition for Certain Air Emissions; Update

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice.

SUMMARY:

The Environmental Protection Agency (EPA) is announcing that it will revise the Interim Guidance on the CERCLA Section 101(10)(H) Federally Permitted Release Definition for Certain Air Emissions. EPA has suspended the Interim Guidance until revised guidance is published.

EPA published the Interim Guidance in the Federal Register on December 21, 1999. EPA stated in the Interim Guidance that “EPA will revise the guidance if, after reviewing the comments, the Agency believes that the guidance warrants modification.” EPA provided extensive opportunity for comment. The Interim Guidance public comment period was extended twice and EPA also held a public meeting on the Interim Guidance on February 24, 2000. EPA received numerous comments on the Interim Guidance. Upon review of these comments, EPA has decided to revise the Interim Guidance. EPA expects to issue revised guidance to replace the Interim Guidance in July 2000.

On March 17 and March 20, 2000, several petitioners filed challenges to the Interim Guidance in the United States Court of Appeals for the District of Columbia, consolidated in National Association of Manufacturers, et al v. Browner (Nos. 00-1111 and 00-1121). On May 19, 2000, EPA and petitioners jointly moved to vacate the schedule for briefing and oral argument and to hold all proceedings in abeyance until August 25, 2000, or until EPA issues revisions to the Interim Guidance, whichever comes first. Because of the pending revisions to the guidance the parties agreed that it would be wasteful and inefficient to brief the merits of the Interim Guidance. In addition, EPA suspended the Interim Guidance until the revisions are issued. This means that EPA will not rely on or cite the suspended Interim Guidance in any actions, including actions to enforce the reporting requirements under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) or the Emergency Planning and Community Right-to-Know Act (EPCRA). EPA will continue to rely on the statute, regulations, and previous decisions when enforcing CERCLA and EPCRA.

EPA, in this Federal Register document, is providing notice to the regulated community and the interested public on the status of the Interim Guidance. Below is the text of the Joint Motion as filed and signed by the parties on May 19, 2000, and granted by the U.S. Court of Appeals on May 24, 2000 (attachment 1). The court also granted a similar joint motion to vacate scheduling and hold the case in abeyance in Alabama Power Co. v. Browner (Nos. 89-1408 and 89-1765), a prior, separate case which also raises issues regarding federally permitted releases.

On February 15, 2000, EPA issued an enforcement discretion memo to its regional offices regarding the enforcement of certain CERCLA section 103 and EPCRA section 304 violations. EPA is announcing that the period of enforcement discretion discussed in that memo is extended until August 25, 2000. Copies of the memo may be obtained by calling EPA's Enforcement and Compliance Docket and Information Center at 202-564-2614/2119, or by E-mail at [e-mail].

FOR FURTHER INFORMATION CONTACT:

For further information regarding this notice, please contact Virginia Phillips, Environmental Protection Agency (Mail Code 2245A), 1200 Pennsylvania Avenue, NW, Washington, DC 20460; [phone].

Dated: June 16, 2000.

Eric Schaeffer,

Director, Office of Regulatory Enforcement.

In the United States Court of Appeals for the District of Columbia Circuit

National Association of Manufacturers, et al., Petitioners, v. United States Environmental Protection Agency, Respondent)

Joint Motion To Vacate Schedule for Briefing and Oral Argument and To Hold All Proceedings in Abeyance

The respondent, Environmental Protection Agency (“EPA”), and both sets of Petitioners in these consolidated cases jointly move to vacate the schedule for briefing and oral argument and request the Court to hold all proceedings in abeyance until August 25, 2000, or until EPA issues revisions to the guidance document challenged in this case, whichever comes first, at which time the parties will submit motions regarding future proceedings in the case. The parties seek this relief because EPA has suspended the interim guidance document challenged by the petitioners until it issues revisions to that document, which it is currently drafting and which it expects to issue in July 2000 as a replacement of the interim guidance document. In further support of this motion, the parties state as follows:

(1) On December 21, 1999, EPA issued its “Interim Guidance on the CERCLA Section 101(10)(H) Federally Permitted Release Definition for Certain Air Emissions,” published at 64 FR 71614 (December 21, 1999) (“Interim Guidance”). Although there is disagreement among the parties regarding the Interim Guidance and its effects, in general the Interim Guidance includes statements by EPA on the subject of CERCLA's federally permitted release exemption in the context of certain air emissions. Federally permitted releases are exempt from the reporting requirements under CERCLA section 103, 42 U.S.C. 9603(a), and section 304 of the Emergency Preparedness and Community Right-to-Know Act (“EPCRA”), 42 U.S.C. 11004(a). In addition, federally permitted releases are exempt from CERCLA liability under CERCLA section 107(j). 42 U.S.C. 9607(j). Federally permitted releases are defined at CERCLA section 101(10). That provision includes a definition of federally permitted releases for emissions into the air pursuant to the Clean Air Act. CERCLA section 101(10)(H); 42 U.S.C. 9601(10)(H).

(2) In the Interim Guidance, EPA requested comments on the document's contents, declared that it intended to conduct a public meeting on the Interim Guidance, and stated that “EPA will revise the guidance if, after reviewing the comments, the Agency believes that the guidance warrants modification.” 64 FR 71614, col. 1.

(3) On March 17 and 20, 2000, the Petitioners filed their respective petitions challenging the Interim Guidance.

(4) On April 18, Petitioners in Case No. 00-1111 filed “Petitioners” Motion for Expedited Consideration of Petition for Review, Accelerated Briefing Schedule and Stay Pending Review.” On April 26, in its opposition to Petitioners' motion, EPA cross-moved to dismiss both petitions. On May 2, 2000, the Court referred the motion to dismiss to the merits panel, denied the motion for stay, and set a briefing schedule, with Petitioners' opening brief due on June 1. The Court has scheduled oral argument for September 6, 2000.

(5) On February 24, 2000, EPA conducted a public meeting on the Interim Guidance. In addition to comments received at the public meeting, EPA has received numerous written comments on the Interim Guidance. Upon review of these comments, EPA has decided to revise the Interim Guidance.

(6) EPA expects to issue revisions to the Interim Guidance in July, 2000. These revisions will replace the Interim Guidance. Accordingly, it would be wasteful and inefficient to brief the merits of the Interim Guidance. EPA therefore agrees to suspend the Interim Guidance until the issuance of the revisions. EPA will not rely on or cite the suspended Interim Guidance in any actions, including actions to enforce the reporting requirements under CERCLA or EPCRA.

(7) Because EPA expects to issue revisions that will replace the Interim Guidance during the currently scheduled briefing period or shortly after briefing is completed, but before the scheduled date for oral argument in this case, the parties request that the Court hold in abeyance all proceedings in this case until August 25, 2000, or until EPA issues revisions to the Interim Guidance, whichever comes first. At that time, the parties would submit motions regarding the future proceedings in the case. If, as expected, EPA has issued revisions that replace the Interim Guidance, those motions would discuss the disposition of the petitions filed in this case, which challenge the current Interim Guidance.

(8) Intervenor has represented that it agrees to the relief requested by this motion.

For the reasons set forth above, the parties request that this Court vacate the schedule for briefing and oral argument and request the Court to hold all proceedings in this case in abeyance until August 25, 2000 or until EPA issues revisions to the Interim Guidance, whichever comes first, at which time the parties would submit motions regarding future proceedings in the case.

Dated: May 19, 2000.

Respectfully submitted,

For Respondent EPA:

Lois J. Schiffer,

Assistant Attorney General, Environment and Natural Resources Division.

Thomas Lorenzen,

G. Scott Williams,

Environmental Defense Section, United States Department of Justice, P.O. Box 23986, Washington D.C. 20026-3986, [phone].

Nina Rivera,

Office of General Counsel (2366A), Environmental Protection Agency, 401 M Street, SW., Washington, DC 20460.

For Petitioners National Association of Manufacturers, et al.:

Paul G. Wallach,

James L. Quarles III,

James G. Votaw,

Hale and Dorr LLP, 1455 Pennsylvania Avenue, NW., Washington, DC 20004, [phone].

For Petitioners Appalachian Power Co., et al.:

Henry V. Nickel,

F. William Brownell,

Norman W. Fichthorn,

Hunton & Williams, 1900 K Street, NW., Washington, DC 20006, [phone].