R U RQ? DIRTY LITTLE SECRETS OF RELEASE REPORTING John Stillmun, FMC Corporation October 2009 Amy Donohue-Babiak, Johnson Matthey Inc. Bonnie Allyn Barnett, Drinker Biddle Margaret Bazany, The Dow Chemical Company

The Big Picture Reporting Obligations Come in all Shapes and Sizes: Federal Statutes. State and Local Requirements. Permit Requirements. Past Releases vs. the Current “Ooops.”

The Big Picture Time is of the Essence and Often Short. Be Prepared Before the Call Comes. Have a Policy in Advance, Focused on the Jurisdictions Where Facilities are Located. When the Consultant Knows Better.

CERCLA REPORTING CERCLA, as implemented by 40 C.F.R. Part 302, requires any person in charge of a facility to notify the National Response Center immediately when he or she has knowledge of any release of a hazardous substance from that facility in a quantity equal to or greater than the “reportable quantities” listed by the EPA. CERCLA § 103. RQ must be exceeded within 24 hours.

CERCLA REPORTING To determine whether notification is necessary under CERCLA, you must determine: A. Whether there has been an unpermitted “release” B. Whether the substance was “hazardous” as defined by CERCLA C. Whether the amount released was large enough to be a “reportable quantity”

EPCRA EMERGENCY RELEASE NOTIFICATION REQUIREMENTS EPCRA § 304 requires an owner or operator of a facility to immediately notify the local emergency planning committee (“LEPC”) and state emergency response commission (“SERC”) if there is a release (other than a federally permitted release) from the facility of: a CERCLA hazardous substance that exceeds its RQ, or an Extremely Hazardous Substance (“EHS”) that exceeds its RQ.

CLEAN WATER ACT (“CWA”) REPORTING Any person in charge of a vessel or facility shall “immediately” notify the National Response Center soon as she has knowledge of any discharge of oil or a hazardous substance into navigable waters of the US, adjoining shorelines or the contiguous zone, etc. “in such quantities as may be harmful” as determined by EPA. CWA § 311 (b)(3)&(5).

DELAWARE REPORTING REQUIREMENTS Discharges & Spills onto Land or into Waters: Reporting is required by any person who causes or contributes to: an environmental release into surface water, groundwater or on land, or disposal of solid waste in excess of the most stringent of CERCLA, CWA or Delaware state RQs. The spill must be reported as soon as the person has knowledge of the release or discharge unless circumstances exist which make such notification impossible. 7 Del. Code § 6028.

PENNSYLVANIA REPORTING REQUIREMENTS Release of Hazardous Substances or Extremely Hazardous Substances: The owner or operator of a facility that manufactures, produces, uses, imports, exports, stores, supplies or distributes any hazardous substance or extremely hazardous substance must immediately report the release of the substance where such release: exceeds the reportable quantity and extends beyond the property boundaries of the facility 35 Pa. Stat. Ann. § 60222.206.

PENNSYLVANIA REPORTING REQUIREMENTS Discharge to Surface or Groundwater: The person in charge of a substance or the owner/occupier of the facility where a release of a toxic substance or another substance occurs must immediately report the release PADEP and, where reasonably possible, notify known downstream users where such release would: endanger downstream users of the waters of Pennsylvania; otherwise result in pollution or create a danger of pollution of the waters; or damage property. 25 Pa. Code § 91.33.

NEW JERSEY REPORTING REQUIREMENTS Releases to Water or Land: The New Jersey Spill Act and corresponding regulations require notification by any person or persons responsible for a discharge who knows or reasonably should know of a "reportable discharge" from a facility. N.J.S.A. §§ 58:10-23.11 et seq.; N.J.A.C. Part 7:1E. The NJDEP must be immediately notified of a discharge. Notification received more than 15 minutes after the person responsible for a discharge knew, or reasonably should have known, of the discharge is presumptively not immediate. N.J.A.C. § 7:1E-5.3.

Historic Releases RQs Virtually Impossible to Determine, Especially Given the 24 Hour Requirement. Groundwater Contamination and the Lessons of Westinghouse. New Jersey’s Historic Release Provisions.

Rule of Thumb If in doubt, REPORT Easier to explain being over cautious Many times the matter will be resolved without agency action or enforcement Rules are complex, and consequences if you are wrong can be significant

Hypothetical Tank Spill In Pennsylvania, a large tank is located in concrete containment dike. The tank has recently been drained through a valve located at the bottom. The operator is preparing to refill the tank. The operator properly closes drain valve of the tank before beginning the filling operation, but does not realize that the valve to a smaller sampling port was also open.

Into the Environment? The material being pumped into the tank is a CCP which is viscous and not volatile; it has an RQ of 1000 pounds. The operator begins pumping at 1:00, and the material begins to leak almost immediately. The operator does not see the leak as it is on the far side of the tank. The operator identifies the leak at 1:30; he estimates 2000 pounds have leaked into the dike.

Into the Environment? The material being pumped into the tank is a CCP which is volatile; it has an RQ of 1000 pounds. Pumping begins at 1:00, and the material begins to leak almost immediately. The leak is identified at 1:30; about 2000 pounds have leaked into the dike. Based on volatility, temperature, volume, surface area, etc., the operator estimates 800 pounds have volatilized.

Hazardous Waste Spill The material in the tank is a listed hazardous waste which is volatile with an RQ of 100 lbs. Pumping begins at 1:00, and the material begins to leak almost immediately. The leak is identified at 1:10; about 200 pounds have leaked into the dike. Tank system rules apply, and if the material is volatile, a minimal (one pint) release to the air will trigger reporting.

Product or Waste The material in the tank is a CCP that is “ignitable” with no stated RQ. Characteristic haz wastes have a 100 lb RQ. RCRA guidance says that spilled materials that cannot be recovered for reuse without reclamation are haz waste. CCP with no RQ becomes a characteristic haz waste with a 100 lb RQ upon being spilled, except if it can be recovered and reused.

Hypothetical Reactor Release A batch reactor is charged with raw materials, including a raw material with a 10 lb RQ and one with a 1000 lb RQ. Assume that remaining raw materials have no RQ values (e.g., water) Assume that the product is essentially inert and has no RQ During the reaction, a rupture disk blows, releasing vapor phase materials

Into the Environment? The rupture disk leads into a blowdown tank, designed to capture liquids Vapors are directed from the blowdown tank to a control device (e.g. a flare) Permit contemplates the operation of this equipment, and provides limits on the emissions from the equipment

Rupture Disk Release If the vapors reach the air without control, this will be a release to the environment. What if operators cannot estimate how much of each RQ chemical was in the release? What if operators know the percentage of each chemical in the starting mixture? What if the reaction is 90% complete?

Spill to Surface Water Release of liquid hazardous material directly into surface water stream What if no NPDES parameters or priority pollutants, but there is a visible sheen? What if release went into wastewater treatment system, was treated and some of the substance released? What if release went into stormwater swale and was captured before it discharged to surface water? 22

Discovery After the Fact What happens if operators calculate that release was below RQ at time of incident, but later discover their calculation is in error? Duty to report when no long “immediate?” Is the error otherwise reportable/discoverable? What if the discovery was during a routine corporate audit? 23

Practical Considerations Plan ahead – decision-making on the fly is difficult and subject to error Focus on time of discovery of release What if you have no idea of the amount of the release? Plan to spend some time on the phone; an NRC call is not quick.