§7.3 - Spill Reporting and Emergency Planning Under Federal Law

• Jurisdiction: Washington

§7.3 SPILL REPORTING AND EMERGENCY PLANNING UNDER FEDERAL LAW

The list of substances that must be reported under federal law is extensive. The list is actually many different lists, scattered throughout the regulations implementing a number of statutes, including the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. §§9601-9675; the federal Clean Water Act (CWA), 33 U.S.C. §§1251-1376; the Emergency Planning and Community Right-To-Know Act (EPCRA), 42 U.S.C. §§11001-11050; the Hazardous Materials Transportation Act (HMTA), 49 U.S.C. §§5101-5128; and the federal Clean Air Act (CAA), 42 U.S.C. §§7401-7671q. Throughout this chapter, the lists will be referenced under the appropriate sections. Some of the lists referenced include those in 40 C.F.R. pt. 302 (CERCLA); 40 C.F.R. pts. 116 and 117 (CWA); 40 C.F.R. pt. 355, apps. A and B (EPCRA); 49 C.F.R. §172.101(HMTA); and 40 C.F.R. §68.130(CAA). There is a lot of overlap and interplay among the statutes as well, and the regulations must be read carefully. Some examples of commonly used substances that are covered are acetone, benzene, formaldehyde, polychlorinated biphenyls (PCBs), chlorine, and sulfur dioxide.

(1) Comprehensive Environmental Response, Compensation and Liability Act

Under CERCLA, 42 U.S.C. §§9601-9675, the person in charge of a vessel or an onshore or offshore facility must report any release of a hazardous substance in excess of established reportable quantities to the National Response Center as soon as that person has knowledge of the release. 42 U.S.C. §9603(a). A vessel is any type of watercraft, 42 U.S.C. §9601(28), and a facility is (A) any building, structure, installation, equipment, pipe or pipeline ..., well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, or (B) any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located. 42 U.S.C. §9601(9). A hazardous substance under CERCLA includes all of the chemical materials listed in the Clean Water Act (CWA), 33 U.S.C. §1321(b)(2)(A); the Clean Air Act (CAA), 42 U.S.C. §7412(r)(3); the Toxic Substances Control Act (TSCA), 15 U.S.C. §2606; the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §6921; as well as anything listed under 42 U.S.C. §9602(a) by the U.S. Environmental Protection Agency (EPA). It is important to note, however, that CERCLA excludes petroleum from the list of hazardous substances. 42 U.S.C. §9601(14).

There must be an actual release into the environment before reporting requirements are triggered; you are not required to report a threatened release. Fertilizer Inst. v. Envtl. Prot. Agency, 935 F.2d 1303 (D.C. Cir. 1991). The person in charge is either the owner/operator of the facility or someone involved in the daily operations of the business. United States v. Greer, 850 F.2d 1447 (11th Cir. 1988). The oral report must be made immediately to the National Response Center and must contain the following information:

(1)	identification of the chemical released;
(2)	the quantity released;
(3)	time and locations of the release(s);
(4)	affected environmental media;
(5)	any risks to those responding; and
(6)	name, address, and telephone number of person to contact for further information; and
(7)	name, and address, and telephone number for the responsible party.

Other items to consider include weather conditions, current and future cleanup actions, and any injuries/damage. The oral report must be followed by a written report as soon as possible.

The EPA has established reportable quantities for many, but not all, hazardous substances; it is important to check the most current regulations for the list of hazardous substances and reportable quantities. 40 C.F.R. pt. 302. If no reportable quantity has been established for the substance at issue, the person in charge must notify the EPA of any release of one pound or more of that substance. There is an exception to the reporting requirements for a continuous release or a federally permitted release.

A continuous release qualifies for reduced reporting under the regulations. 40 C.F.R. §302.8. A continuous release is defined as a release that occurs without interruption or abatement or that is routine, anticipated, and intermittent and incidental to normal operations or treatment processes. 40 C.F.R. §302.8(b). The release must also be stable in quantity and rate. 40 C.F.R. §302.8(a).

Reduced reporting includes the following:

(1)	initial telephone notification to the National Response Center;
(2)	initial written notification within 30 days of the initial telephone notification to the appropriate regional EPA office;
(3)	follow-up notification within 30 days of the first anniversary date of the initial written notification;
(4)	notification of any changes to the reported information and
(5)	notification whenever an increase in the quantity of the hazardous substance being released during any 24-hour period represents a statistically significant increase

40 C.F.R. §302.8(c). Check the regulation for more details regarding the information to be reported under reduced reporting for continuous releases.

A reportable release may be to land, water, or air, and may trigger other reporting requirements, discussed below, such as reporting under the Clean Water Act.

(2) Clean Water Act

Under §311 of the CWA, 33 U.S.C. §1321, the discharge of oil or listed hazardous substances into navigable waters of the United States in quantities that may be harmful is unlawful:

Any person in charge of a vessel or of an onshore facility or an offshore facility shall, as soon as he has knowledge of any discharge of oil or a hazardous substance from such vessel or facility [in excess of its RQ shall] ... immediately notify the appropriate agency of the United States Government of such discharge.

33 U.S.C. §1321(b)(5).

Oil has been defined for spill reporting purposes as any kind of oil, including petroleum, fuel oil, sludge, and waste oil, as well as vegetable oils. 33 U.S.C. §1321(a)(1); 40 C.F.R. §110.1. A release of a hazardous substance only has to be reported under the CWA if it reaches navigable waters of the United States. Navigable waters of the United States have been defined broadly to include virtually any surface water, including tributaries of navigable waters, wetlands, and intrastate waters used in interstate commerce. 40 C.F.R. § 110.1.

CWA hazardous substances include approximately 300 substances listed under §311 of the CWA by the EPA. See 40 C.F.R. pt. 116. The harmful quantity, or reportable quantity (RQ), has been set for each of the 300 or so substances, ranging from one to five thousand pounds. See 40 C.F.R. § 117.3. The harmful quantity is to be measured over a 24-hour period, and only the hazardous substance component or fraction of a mixture or solution is measured when determining whether an RQ has been exceeded. For oil, a discharge is harmful if it causes a sheen on the surface of the water, essentially a no-discharge standard.

Common RQs include the following:

Substance	CWA RQPounds
Acetic Acid	5000 lbs.
Ammonia	100 lbs.
Benzene (solvent)	10 lbs.
Diazinon (insecticide)	1 lb.
Hydrogen Sulfide	100 lbs.
Oil (product)	sheen test

Any person in charge of a vessel or facility shall, as soon as the person has knowledge of a discharge of oil or hazardous substance in a reportable quantity over a 24-hour period, report it to the National Response Center at (800) 424-8802. Failure to give notice is a criminal offense punishable by fines or imprisonment or both. Apex Oil Co. v. United States, 530 F.2d 1292 (8th Cir. 1976), cert. denied, 429 U.S. 827 (1976). In general, the person in charge has been determined to be a supervisory employee who has sufficient authority to prevent, abate, or clean up a release.

There are several limited exceptions to the basic reporting requirements set out in §311. If the discharge is in compliance with NPDES effluent limitations contained in the permit, reporting is not required. 33 U.S.C. § 1321(a)(2). Also, if discharges are identified and made a part of the NPDES permit, reporting is not required.

Civil penalties of up to $25,000 per day may be assessed against any owner, operator, or person in charge of a vessel or facility for unlawful discharges. In addition criminal fines and/or imprisonment may be imposed for negligent or willful discharges.

(3) Federal Oil Pollution Act of 1990

Reporting provisions of the federal Oil Pollution Act of 1990 (OPA), 33 U.S.C. §§2701-2762, require that any person in charge of a vessel or facility with knowledge of an oil spill immediately report the incident to the National Response Center. If this is not possible, the person must report to the Coast Guard or to an EPA-designated on-scene coordinator. Oil means oil of any kind or in any form. 33 U.S.C. §2701(23). See discussion in §7.3(2), above, for reporting of oil spills under the Clean Water Act.

Under the terms of OPA, any release from a facility that stores, handles, transfers, or transports oil into navigable waters of the United States or adjoining shorelines could subject the owner or operator of the vessel or facility to liability for costs relating to removal activities, real or personal property damage, lost revenues, and natural resource damages. Navigable waters are broadly defined to include all the waters of the United States. 33 U.S.C. §2701(21). Although OPA contains some limits to liability for spills, see...