It’s 4:30 p.m. on a sunny Seattle Friday. Just when you think you are done for the week, you get the phone call. One of your clients has spilled a caustic substance at the plant. They think they have to report the spill to someone, but they’re not sure. In fact, a careful analysis must be performed to ensure that your client’s reports comply with federal law.
Covered facilities are required to notify the local emergency planning committee and the state emergency response commission in the event of a release of various chemicals and hazardous substances under the Compre-hensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). Similarly, CERCLA requires persons in charge of vessels or facilities from which any “hazardous substance” has been released in amounts greater than or equal to specified reportable quantities (RQs) to immediately notify the National Response Center, a communications center for response actions located at Coast Guard headquarters in Washington, D.C.
Reporting requirements under section 304 of the Superfund Amendments and Reauthorization Act (SARA), a 1986 amendment to CERCLA, are closely related to CERCLA requirements. For example, both § 103 of CERCLA and SARA § 304 require that releases of hazardous substances in amounts equal to or greater than RQs be reported. Releases of hazardous substances at a client’s facility could therefore trigger reporting requirements under both SARA § 304 and CERCLA § 103.
While the reporting requirements of CERCLA and SARA overlap, not all chemical releases that are subject to Title III reporting requirements are currently covered by CERCLA. The Environmental Protection Agency is in the process of revising the list of chemicals covered by CERCLA to include all chemicals subject to SARA § 304 reporting. Under the revised system, all § 304 releases also will be covered by CERCLA reporting requirements.
Facilities that produce, use or store any “hazardous chemical” are subject to § 304 notification requirements. For purposes of emergency release notifications under § 304, certain non-stationary transportation vehicles (e.g., motor vehicles, rolling stock and aircraft) also are considered “facilities.”
A “hazardous chemical” is defined as any chemical that is a physical or health hazard. In determining whether a chemical is a “hazardous chemical” for § 304 reporting purposes, the criteria prescribed by the Occupational Safety and Health Administration Hazard Communication Standard (HCS) are applied.
Facilities subject to § 304 must report “releases” of any covered chemicals in amounts exceeding RQs. A “release” is any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching or dumping (including the abandonment or discarding of barrels, containers and other closed containers) into the environment. However, § 304 exempts from its notification requirements:
- federally permitted releases;
- “continuous” releases;
- disposal of hazardous substances at an approved disposal facility;
- releases from a facility that neither purchases, uses or stores hazardous chemicals; and
- exempt releases under CERCLA § 101(22).
Releases of any extremely hazardous substance or any CERCLA hazardous substance in amounts greater than its RQ must be reported. Releases from different facilities or releases of different hazardous substances from the same facility do not need to be aggregated.
Both an initial notification and a follow-up report are required under § 304. The initial notice required by § 304 may be via telephone and must include:
- the identity and amount of the chemical released,
- the duration of the release, and
- information concerning any health hazards posed by the release.
The follow-up notice must update the information previously conveyed and must specify the actions taken with respect to the release. The follow-up report must be in writing.
It is vitally important to review and analyze the reporting requirements under § 304 because the failure to disclose a spill can lead to serious civil and criminal penalties. Failure to comply with § 304 emergency release reporting requirements subjects covered facilities to civil penalties of up to $25,000 per violation and up to $25,000 for each day the violation continues. Failure to comply can result in criminal penalties as well. Fines of up to $25,000 and/or imprisonment for up to two years can be imposed upon those who knowingly and willfully fail to provide notice in accordance with the regulatory provisions.
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Matthew King is a Seattle attorney whose practice focuses on environmental, land use, toxic tort and construction litigation. He can be reached at matthewking@abanet.org.
