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Feb 2000
16
February 16, 2000

Enforcement of Release Reporting Under CERCLA

The U.S. EPA recently extended the enforcement discretion discussed in a memorandum dated February 15, 2000, pertaining to certain CERCLA § 103 release reporting and the CERCLA § 101(10)(H) federally permitted release exemption. For background, CERCLA § 103 provides that any person who has a release of a "reportable quantity" of a hazardous substance within a 24-hour period must immediately report that release to the National Response Center. That provision of CERCLA further provides that this notification requirement does not apply to a "federally permitted release." The term “federally permitted release” is defined in § 101(10)(H) to include "any emission into the air subject to a permit" under the federal Clean Air Act or an applicable state implementation plan. In the February 15, 2000, memorandum, the U.S. EPA indicated that the exemption for "federally permitted releases" would not apply to facilities with air permits unless the permits included specific limitations for individual compounds. Most permits do not include such limitations. Accordingly, after strenuous objections from the regulated community and others, the U.S. EPA issued a memorandum on October 27, extending the enforcement discretion discussed in the February 15 memorandum.

In a memorandum issued in early December, 2000, the U.S. EPA again announced that the enforcement discretion discussed in the February 15 memorandum is extended until publication of revised guidance on federally permitted releases or until May 1, 2001. According to the recently issued memorandum, this additional time is necessary to allow the U.S. EPA to complete the revised guidance.

For more information, contact John Byl at jbyl@wnj.com or call 616.752.2149.

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