Margaret Bazany, The Dow Chemical Company

John Stillmun, FMC Corporation

Bonnie Allyn Barnett, Drinker Biddle

Amy Donohue-Babiak, Johnson Matthey Inc.

R U RQ? R U RQ? DIRTY LITTLE SECRETS DIRTY LITTLE SECRETS

OF OF RELEASE REPORTINGRELEASE REPORTING

October 2009October 2009

The Big PictureThe Big Picture

Reporting Obligations Come in all Shapes and Sizes:Reporting Obligations Come in all Shapes and Sizes:

Federal Statutes.Federal Statutes. State and Local Requirements.State and Local Requirements. Permit Requirements.Permit Requirements. Past Releases vs. the Current “Ooops.”Past Releases vs. the Current “Ooops.”

The Big PictureThe Big Picture

Time is of the Essence and Often Short.Time is of the Essence and Often Short.

Be Prepared Before the Call Comes.Be Prepared Before the Call Comes.

Have a Policy in Advance, Focused on the Have a Policy in Advance, Focused on the Jurisdictions Where Facilities are Located. Jurisdictions Where Facilities are Located.

When the Consultant Knows Better.When the Consultant Knows Better.

CERCLA REPORTINGCERCLA REPORTING

CERCLA, as implemented by 40 C.F.R. Part CERCLA, as implemented by 40 C.F.R. Part 302, requires any person in charge of a facility 302, requires any person in charge of a facility to notify the National Response Center to notify the National Response Center immediatelyimmediately when he or she has when he or she has knowledgeknowledge of any of any releaserelease of a of a hazardous substancehazardous substance from from that facility in a quantity equal to or greater that facility in a quantity equal to or greater than the “than the “reportable quantitiesreportable quantities” listed by the ” listed by the EPA. CERCLA § 103.EPA. CERCLA § 103.

RQ must be exceeded within 24 hours.RQ must be exceeded within 24 hours.

CERCLA REPORTINGCERCLA REPORTING

To determine whether notification is To determine whether notification is necessary under CERCLA, you must necessary under CERCLA, you must determine:determine:• A. Whether there has been an A. Whether there has been an unpermitted unpermitted

“release”“release”

• B. Whether the substance was B. Whether the substance was “hazardous” “hazardous” as as defined by CERCLAdefined by CERCLA

• C. Whether the amount released was large enough C. Whether the amount released was large enough to be a to be a “reportable quantity”“reportable quantity”

EPCRA EMERGENCY RELEASE EPCRA EMERGENCY RELEASE NOTIFICATION NOTIFICATION

REQUIREMENTSREQUIREMENTS EPCRA § 304 requires an owner or operator of a EPCRA § 304 requires an owner or operator of a

facility to immediately notify the local emergency facility to immediately notify the local emergency planning committee (“LEPC”) and state planning committee (“LEPC”) and state emergency response commission (“SERC”) if emergency response commission (“SERC”) if there is a release (other than a federally permitted there is a release (other than a federally permitted release) from the facility of: release) from the facility of:

• a CERCLA hazardous substance that exceeds its a CERCLA hazardous substance that exceeds its RQ, or RQ, or

• an Extremely Hazardous Substance (“EHS”) that an Extremely Hazardous Substance (“EHS”) that exceeds its RQ.exceeds its RQ.

CLEAN WATER ACT (“CWA”) CLEAN WATER ACT (“CWA”)

REPORTINGREPORTING Any person in charge of a vessel or facility Any person in charge of a vessel or facility

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

DELAWARE REPORTING DELAWARE REPORTING REQUIREMENTSREQUIREMENTS

Discharges & Spills onto Land or into WatersDischarges & Spills onto Land or into Waters::

• Reporting is required by any person Reporting is required by any person who causes or contributes who causes or contributes to:to:

• an environmental release into surface water, groundwater an environmental release into surface water, groundwater or on landor on land, or, or

• disposal of solid wastedisposal of solid waste in excess of the most stringent in excess of the most stringent of of CERCLA, CWA or Delaware state CERCLA, CWA or Delaware state RQsRQs. .

• The spill must be reported The spill must be reported as soon as the person has knowledge as soon as the person has knowledge of the release or dischargeof the release or discharge unless circumstances exist which unless circumstances exist which

make such notification impossiblemake such notification impossible. 7 Del. Code § 6028.. 7 Del. Code § 6028.

PENNSYLVANIA REPORTING PENNSYLVANIA REPORTING REQUIREMENTSREQUIREMENTS

Release of Hazardous Substances Release of Hazardous Substances or or

Extremely Hazardous SubstancesExtremely Hazardous Substances::

• The The owner or operator of a facilityowner or operator of a facility that manufactures, produces, uses, that manufactures, produces, uses, imports, exports, stores, supplies or distributes any imports, exports, stores, supplies or distributes any hazardous hazardous substancesubstance or or extremely hazardous substanceextremely hazardous substance must immediately must immediately report report the release of the substancethe release of the substance where such release:where such release:

• exceeds the reportable quantityexceeds the reportable quantity andand • extends beyond the property boundaries of the facilityextends beyond the property boundaries of the facility

35 Pa. Stat. Ann. § 60222.206. 35 Pa. Stat. Ann. § 60222.206.

PENNSYLVANIA REPORTING PENNSYLVANIA REPORTING REQUIREMENTSREQUIREMENTS

Discharge to Surface or GroundwaterDischarge to Surface or Groundwater::• The person in charge of a substance or the owner/occupier of The person in charge of a substance or the owner/occupier of

the facility where a release of a toxic substance or another the facility where a release of a toxic substance or another substance occurs must substance occurs must immediately report the release immediately report the release PADEPPADEP and, where reasonably possible, and, where reasonably possible, notify known notify known downstream usersdownstream users where such release where such releasewould:would:

• endanger downstream users of the waters of Pennsylvania;endanger downstream users of the waters of Pennsylvania;• otherwise result in pollution or create a danger of pollution of the otherwise result in pollution or create a danger of pollution of the

waters; or waters; or • damage property. damage property.

25 Pa. Code § 91.33.25 Pa. Code § 91.33.

NEW JERSEY REPORTING NEW JERSEY REPORTING REQUIREMENTSREQUIREMENTS

Releases to Water or LandReleases to Water or Land::

• The New Jersey Spill Act and corresponding regulations The New Jersey Spill Act and corresponding regulations require notification by any person or persons responsible require notification by any person or persons responsible for a discharge who knows or reasonably should know of for a discharge who knows or reasonably should know of a "a "reportable dischargereportable discharge" from a facility. N.J.S.A. §§ " from a facility. N.J.S.A. §§ 58:10-23.11 et seq.; N.J.A.C. Part 7:1E.58:10-23.11 et seq.; N.J.A.C. Part 7:1E.

• The NJDEP must The NJDEP must be immediately notified be immediately notified of a of a discharge. Notification received more than discharge. Notification received more than 15 minutes15 minutes after the person responsible for a discharge knew, or after the person responsible for a discharge knew, or reasonably should have known, of the discharge is reasonably should have known, of the discharge is presumptively not immediate. presumptively not immediate.

• N.J.A.C. § 7:1E-5.3.N.J.A.C. § 7:1E-5.3.

Historic ReleasesHistoric Releases

RQs Virtually Impossible to Determine, RQs Virtually Impossible to Determine, Especially Given the 24 Hour Requirement.Especially Given the 24 Hour Requirement.

Groundwater Contamination and the Lessons Groundwater Contamination and the Lessons of Westinghouse.of Westinghouse.

New Jersey’s Historic Release Provisions.New Jersey’s Historic Release Provisions.

Rule of ThumbRule of Thumb

If in doubt, REPORTIf in doubt, REPORT Easier to explain being Easier to explain being

over cautiousover cautious Many times the matter Many times the matter

will be resolved without will be resolved without agency action or agency action or enforcementenforcement

Rules are complex, and Rules are complex, and consequences if you are consequences if you are wrong can be wrong can be significantsignificant

Hypothetical Tank SpillHypothetical Tank Spill

In Pennsylvania, a large tank is located in In Pennsylvania, a large tank is located in concrete containment dike.concrete containment dike.

The tank has recently been drained through a The tank has recently been drained through a valve located at the bottom.valve located at the bottom.

The operator is preparing to refill the tank.The operator is preparing to refill the tank. The operator properly closes drain valve of the The operator properly closes drain valve of the

tank before beginning the filling operation, but tank before beginning the filling operation, but does not realize that the valve to a smaller does not realize that the valve to a smaller sampling port was also open.sampling port was also open.

Into the Environment?Into the Environment?

The material being pumped into the tank is a The material being pumped into the tank is a CCP which is viscous and not volatile; it has CCP which is viscous and not volatile; it has an RQ of 1000 pounds.an RQ of 1000 pounds.

The operator begins pumping at 1:00, and the The operator begins pumping at 1:00, and the material begins to leak almost immediately.material begins to leak almost immediately.

The operator does not see the leak as it is on the The operator does not see the leak as it is on the far side of the tank.far side of the tank.

The operator identifies the leak at 1:30; he The operator identifies the leak at 1:30; he estimates 2000 pounds have leaked into the dike.estimates 2000 pounds have leaked into the dike.

Into the Environment?Into the Environment?

The material being pumped into the tank is a The material being pumped into the tank is a CCP which is volatile; it has an RQ of 1000 CCP which is volatile; it has an RQ of 1000 pounds.pounds.

Pumping begins at 1:00, and the material begins to Pumping begins at 1:00, and the material begins to leak almost immediately.leak almost immediately.

The leak is identified at 1:30; about 2000 pounds The leak is identified at 1:30; about 2000 pounds have leaked into the dike.have leaked into the dike.

Based on volatility, temperature, volume, surface Based on volatility, temperature, volume, surface area, etc., the operator estimates 800 pounds have area, etc., the operator estimates 800 pounds have volatilized.volatilized.

Hazardous Waste SpillHazardous Waste Spill

The material in the tank is a listed hazardous The material in the tank is a listed hazardous waste which is volatile with an RQ of 100 lbs.waste which is volatile with an RQ of 100 lbs.

Pumping begins at 1:00, and the material begins to Pumping begins at 1:00, and the material begins to leak almost immediately.leak almost immediately.

The leak is identified at 1:10; about 200 pounds The leak is identified at 1:10; about 200 pounds have leaked into the dike.have leaked into the dike.

Tank system rules apply, and if the material is Tank system rules apply, and if the material is volatile, a minimal (one pint) release to the air will volatile, a minimal (one pint) release to the air will trigger reporting.trigger reporting.

Product or WasteProduct or Waste

The material in the tank is a CCP that is The material in the tank is a CCP that is “ignitable” with no stated RQ.“ignitable” with no stated RQ.

Characteristic haz wastes have a 100 lb RQ.Characteristic haz wastes have a 100 lb RQ. RCRA guidance says that spilled materials that RCRA guidance says that spilled materials that

cannot be recovered for reuse without reclamation cannot be recovered for reuse without reclamation are haz waste.are haz waste.

CCP with no RQ becomes a characteristic haz CCP with no RQ becomes a characteristic haz waste with a 100 lb RQ upon being spilled, except waste with a 100 lb RQ upon being spilled, except if it can be recovered and reused.if it can be recovered and reused.

Hypothetical Reactor ReleaseHypothetical Reactor Release

A batch reactor is charged with raw materials, A batch reactor is charged with raw materials, including a raw material with a 10 lb RQ and including a raw material with a 10 lb RQ and one with a 1000 lb RQ. one with a 1000 lb RQ.

Assume that remaining raw materials have no RQ Assume that remaining raw materials have no RQ values (e.g., water)values (e.g., water)

Assume that the product is essentially inert and has Assume that the product is essentially inert and has no RQno RQ

During the reaction, a rupture disk blows, releasing During the reaction, a rupture disk blows, releasing vapor phase materialsvapor phase materials

Into the Environment?Into the Environment?

The rupture disk leads into a blowdown The rupture disk leads into a blowdown tank, designed to capture liquidstank, designed to capture liquids

Vapors are directed from the blowdown Vapors are directed from the blowdown tank to a control device (e.g. a flare)tank to a control device (e.g. a flare)

Permit contemplates the operation of this Permit contemplates the operation of this equipment, and provides limits on the equipment, and provides limits on the emissions from the equipmentemissions from the equipment

Rupture Disk ReleaseRupture Disk Release

If the vapors reach the air without control, this If the vapors reach the air without control, this will be a release to the environment.will be a release to the environment.

What if operators cannot estimate how much of What if operators cannot estimate how much of each RQ chemical was in the release?each RQ chemical was in the release?

What if operators know the percentage of each What if operators know the percentage of each chemical in the starting mixture?chemical in the starting mixture?

What if the reaction is 90% complete?What if the reaction is 90% complete?

Spill to Surface WaterSpill to Surface Water

Release of liquid hazardous material directly Release of liquid hazardous material directly into surface water streaminto surface water stream

What if no NPDES parameters or priority What if no NPDES parameters or priority pollutants, but there is a visible sheen?pollutants, but there is a visible sheen?

What if release went into wastewater treatment What if release went into wastewater treatment system, was treated and some of the substance system, was treated and some of the substance released?released?

What if release went into stormwater swale and What if release went into stormwater swale and was captured before it discharged to surface water?was captured before it discharged to surface water?

Discovery After the FactDiscovery After the Fact

What happens if operators calculate that What happens if operators calculate that release was below RQ at time of incident, but release was below RQ at time of incident, but later discover their calculation is in error?later discover their calculation is in error?

Duty to report when no long “immediate?”Duty to report when no long “immediate?” Is the error otherwise reportable/discoverable?Is the error otherwise reportable/discoverable? What if the discovery was during a routine What if the discovery was during a routine

corporate audit?corporate audit?

Practical ConsiderationsPractical Considerations

Plan ahead – decision-making on the fly is Plan ahead – decision-making on the fly is difficult and subject to errordifficult and subject to error

Focus on time of discovery of releaseFocus on time of discovery of release What if you have no idea of the amount of the What if you have no idea of the amount of the

release?release? Plan to spend some time on the phone; an Plan to spend some time on the phone; an

NRC call is not quick.NRC call is not quick.