Environmental Guidance Document Release Reporting for the Oil and Gas Exploration and Production Industry as Required by the Clean Water Act, the Comprehensive Environmental Response, Compensation and[.]
CleanWaterAct
Section 311(b) of the Clean Water Act (CWA), 33 U.S.C §1311(b), prohibits the discharge of harmful amounts of oil or hazardous substances into navigable waters of the United States, encompassing various water bodies beyond those that are literally navigable Individuals responsible for vessels or facilities must report any prohibited discharges to the National Response Center (NRC) Regulations specify reportable quantities (RQs) for hazardous substances and define harmful oil discharges as any amount that results in a sheen For a comprehensive overview of CWA notice requirements, refer to Section 4.
The Comprehensive Environmental Response Compensation and
CERCLA primarily focuses on the clean-up of sites contaminated with hazardous wastes, but it also includes provisions for reporting hazardous substance releases under §§102 and 103, 42 U.S.C §§9602 and 9603 Section 103(a) mandates that individuals in charge of vessels or facilities must notify the NRC within 24 hours of discovering a release of a reportable quantity (RQ) of a hazardous substance The act allows exemptions for “federally-permitted” releases and offers reduced reporting requirements for “continuous releases.” Notably, crude oil and natural gas are not classified as hazardous substances under CERCLA For a comprehensive overview of CERCLA's notification requirements, refer to Section 5.
Emergency Planning and Community Right-to-KnowAct (EPCRA)
EPCRA was adopted in 1986 as part of the SuperfundAmendments ReauthorizationAct, but it is a free-standing statute, sepa- rate from the Superfund program.
EPCRA section 301 creates a structure for local emergency response planning, mandating that each state's governor establish a State Emergency Response Commission (SERC) These commissions are responsible for designating emergency planning districts and appointing Local Emergency Planning Committees (LEPCs) for each district.
The Emergency Planning and Community Right-to-Know Act (EPCRA) mandates that facilities with a threshold planning quantity (TPQ) of extremely hazardous substances (EHS) designate an emergency coordinator and inform the state commission of their emergency planning obligations Additionally, under EPCRA §304, facilities are required to notify State Emergency Response Commissions (SERCs) and Local Emergency Planning Committees (LEPCs) if they release a reportable quantity (RQ) of an EHS or a hazardous substance under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) within a 24-hour timeframe.
The Emergency Planning and Community Right-to-Know Act (EPCRA) emphasizes the importance of public access to information regarding chemicals in the community This includes details about the type, quantity, location, usage, disposal, and environmental release of these chemicals Specifically, EPCRA §311, 42 U.S.C §11021 mandates that facilities subject to the act must submit Material Safety Data Sheets (MSDSs) or a comprehensive list of chemicals covered by an MSDS.
1FederalWater Pollution ControlAct, 33 U.S.C §1251 et seq Subsequent citations to the CWA will appear in the text.
2Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C §9601 et seq Subsequent citations to CERCLA will appear in the text
3Emergency Planning and Community Right-to-KnowAct, 42 U.S.C §11001 et seq Subsequent citations to EPCRA will appear in the text.
Under the Emergency Planning and Community Right-to-Know Act (EPCRA), a notice is required for the release of an Extremely Hazardous Substance (EHS) that is classified as a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) hazardous substance if the release meets or exceeds a Reportable Quantity (RQ) Conversely, for EHS that are not CERCLA hazardous substances, notification is mandated only if the release exceeds the RQ While the statute specifies that reporting obligations for such EHS releases are based on amounts exceeding the RQ, the regulations stipulate that a report is necessary for any release at the RQ level This Bulletin will align with EPA regulations and simplify the reporting obligations by not distinguishing between the two scenarios.
Facilities that are obligated to submit Material Safety Data Sheets (MSDSs) or chemical lists must also provide annual emergency and hazardous chemical inventory forms to the Local Emergency Planning Committees (LEPCs), State Emergency Response Commissions (SERCs), and local fire departments.
Under EPCRA §313, 42 U.S.C §11023, specific industrial facilities must report toxic release inventory (TRI) data for certain chemicals they handle However, this Bulletin does not address the TRI program, as oil and gas exploration and production activities are excluded from the industrial categories that fall under this program.
National Response Center
The Clean Water Act mandates that individuals responsible for prohibited discharges of oil or hazardous substances into navigable waters must notify the National Response Center (NRC) of the U.S Coast Guard This requirement is outlined in CWA §311(b) and 33 U.S.C §1321(b) Additionally, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) also requires that any release of hazardous substances be reported to the NRC, as specified in CERCLA §103(a) and 42 U.S.C §9603(a).
The National Response Center (NRC), situated at U.S Coast Guard Headquarters, serves as the primary contact for reporting pollution incidents under the Clean Water Act (CWA) and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) It functions as the communication hub for the National Response Team, promptly relaying telephone notifications of discharges or releases to the relevant federal on-scene coordinators (OSCs), including the Federal Emergency Management Agency (FEMA) during potential disaster or evacuation scenarios.
Both the Clean Water Act (CWA) and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) mandate that any releases or discharges must be reported to the National Response Center (NRC) via telephone at (800) 424-8802, or (202) 267-2675 in the Washington, D.C area Additionally, CWA regulations permit notification to a pre-designated On-Scene Coordinator (OSC) when direct reporting to the NRC is not feasible, as outlined in 40 CFR §110.6.
See 4.5 and 5.14 andAppendix B for additional information on online reporting and for an outline of information the NRC will request.
The State Emergency Response Commission or SERC
EPCRA section 301(a) mandates the creation of state emergency response commissions (SERCs), which are appointed by the Governor of each state These commissions consist of technical experts in various fields and are tasked with crucial responsibilities related to emergency response.
• appointing the local emergency planning committees (LEPCs),
• supervising and coordinating the activities of the LEPCs,
• establishing procedures for receiving and processing requests from the public for information, and
• designating an official to serve as information coordinator.
The Local Emergency Planning Committee or LEPC
The Emergency Planning and Community Right-to-Know Act (EPCRA) mandates the State Emergency Response Commission (SERC) to establish emergency planning districts and appoint Local Emergency Planning Committee (LEPC) members for each district Each LEPC must comprise elected officials, law enforcement representatives, civil defense personnel, fire department members, community group representatives, and representatives from facilities governed by EPCRA.
The LEPC is required to create procedures for handling information requests and must implement rules for public notification regarding committee activities Additionally, it is essential for the LEPC to organize public meetings to discuss the emergency plan and ensure the distribution of emergency response plans.
Each Local Emergency Planning Committee (LEPC) develops a detailed emergency response plan, assessing the necessary resources for its creation and execution Additionally, the LEPC provides recommendations for any extra resources that may be needed to enhance the plan's effectiveness.
The Environmental Protection Agency (EPA) has the authority to expand the Emergency Planning and Community Right-to-Know Act (EPCRA) program through regulation In 1996, the EPA proposed including exploration and production (E&P) operations, among other industrial categories, in the Toxic Release Inventory (TRI) program However, in 1997, the agency deferred action on E&P operations pending further study Although the addition of E&P operations was included in the EPA's regulatory plan in October 1997, the issue was withdrawn from the unified agenda in August 2000, with the agency stating that it had "No Further Action" planned.
6EPA’s Chemical Emergency Preparedness and Prevention Office maintains a list of SERC contacts on its website (http://www.epa.gov/swer- cepp/serclist.htm).
7EPA’s Chemical Emergency Preparedness and Prevention Office maintains a list of LEPCs on its website (http://www.epa.gov/ceppo/ lepclist.htm).
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E NVIRONMENTAL G UIDANCE D OCUMENT ẹR ELEASE R EPORTING FOR THE O IL AND G AS E&P I NDUSTRY 3
This section offers a straightforward set of flowcharts to help users determine when release reporting is necessary The initial chart serves as a master overview, followed by detailed flowcharts for each specific type of report or notification.
Flowcharts address release reporting requirements under the CWA, CERCLA and EPCRA The CERCLA and EPCRA òow- charts are supplemented by two òowcharts addressing the exemption for federally permitted releases
Additional òowcharts address EPCRA ÔÔ302 notiịcation and EPCRA ÔÔ311 and 312 hazardous chemical reporting require- ments
For detailed information not readily available in the òowcharts, the reader should refer to speciịc sections which address the reporting requirements in more detail
Appendix A includes a list of common oilịeld chemicals with TPQs and RQs Section 7 contains examples of potential release reporting scenarios
Chart 1ẹSummary of Release Reporting and Other EPCRA Notiịcation Requirements
Are any EPCRA extremely hazardous substances brought to, produced at, or stored on the site?
(See Appendix A and 40 CFR pt 355)
Are any CERCLA hazardous substances brought to, produced at, or stored on the site?
Are any OSHA hazardous chemicals brought to, produced at, or stored on the site?
Exposure to release reporting is minimal because no OSHA, CERCLA, or EPCRA hazardous substances or chemicals are on the site.
Investigate the need for filing an EPCRA 302 notification.
(Go to Chart 4b, EPCRA 302 Notification)
Investigate the need for filing EPCRA 311 and 312 reports.
(Go to Chart 4c, EPCRA 311/312 Hazardous
In the event of a chemical or substance release, it is essential to assess the necessity of filing a CWA release report, a CERCLA release report, and an EPCRA 304 release report For guidance, refer to Chart II for CWA reporting, Chart III.A for CERCLA reporting, and the relevant resources for EPCRA 304 reporting.
(Go to Chart 4a, EPCRA 304 Reporting)
Determine the type and quantity of material released and the extent of its travel from the point of release.
Was the material released into waters of the United States ? (See Section 4.3) NO
Is the material oil as defined by the CWA?
Was the material released into or upon the waters of the contiguous zone?
Is the material a listed CWA hazardous substance?
Was the amount released equal to or greater than the RQ?
Did the discharge cause a sheen, film, or discoloration on the water s surface?
Did the discharge cause a sludge or emulsion to be deposited beneath the surface of the water?
Did the discharge violate applicable water quality standards?
CWA reporting not Check for applicability of release reporting under CERCLA (Chart 3a) or EPCRA 304 (Chart 4a).
The material in question was released from a vessel or facility located beyond the contiguous zone It is important to determine whether this release is subject to regulations under the Outer Continental Shelf Lands Act or the Deepwater Port Act of 1974.
Was the material released beyond the contiguous zone to waters containing, covering, or supporting a natural resource belonging to, appertaining to, or under the exclusive management authority of the U.S.?
1 Certain otherwise reportable releases of oil may be excluded by provisions in 40 CFR 110.5.
2 Certain otherwise reportable releases of CWA hazardous substances may be excluded by provisions in 40 CFR pt 117, subpt B.
A release of oil exceeding 1,000 gallons or two separate releases over 42 gallons within a year necessitates the submission of specific facility information to the EPA's Regional Administrator and state authorities, as outlined in Section 4.6.
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E NVIRONMENTAL G UIDANCE D OCUMENT ẹR ELEASE R EPORTING FOR THE O IL AND G AS E&P I NDUSTRY 5
Determine the type and quantity of material released and the extent of its travel from the point of release.
Was the amount released equal to or greater than the RQ?
(Go to Chart III.D, Determination of the Applicable
RQ for CERCLA Release Reporting)
Is the material a solid waste that exhibits RCRA character istics (i.e., an unlisted hazardous waste)?
Was the release wholly contained (i.e., completely contained within the building)?
Is this material covered by the petroleum exclusion?
Is the release federall y permitted ? (See Section 5.16 and go to Chart III.B, Federally Permitted Releases)
Is the material a listed CERCLA hazardous substance?
Is the material an exploration or production waste exempt from RCRA hazardous waste regulations?
The E&P industry view is that no CERCLA reporting is required Because EPA may not agree, the operator should confer with legal counsel.
Check for the applicability of release reporting under the CWA (Chart II) or EPCRA 304 (Chart 4a).
1 In the case of any release required to be reported under CERCLA, the operator should determine whether an EPCRA 304 report is required Go to Chart 4a, EPCRA Section 304 Release Reporting.
Is the release an emission to air?
Is the release a discharge authorized by a NPDES permit or state PDES permit?
Is the release a discharge authorized by a legally enforceable Section 404 permit for the discharge of dredge or fill material?
Is the release an introduction of a pollutant into a POTW when the pollutant is specified in pretreatment standards?
Is the release authorized by a legally enforceable ocean dumping permit?
Is the release authorized by a legally enforceable final permit for a TSD facility, which permit specifically identifies the hazardous substances and makes them subject to a standard or other control?
The release involves the injection of fluids or materials that are permitted by state law for specific purposes, including (i) the stimulation or treatment of oil, gas, or water wells, (ii) enhanced recovery methods, or (iii) the reinjection of materials related to oil and gas production.
Is the release an injection of fluids authorized under a federal UIC program or a state UIC program submitted for federal approval and not disapproved?
Is the release of source, special nuclear, or by-product material authorized by a legally enforceable license, permit, regulation, or order under the Atomic
NO No federally permitted release exemption applies so the release reporting obligation is calculated based on the amount released.
Is there a release to the environment from a facility of a CERCLA hazardous substance or an EPCRA EHS?
Is the amount released equal to or greater than the applicable RQ?
Is the release in compliance with the authorized limits, i.e., does the amount of the CERCLA hazardous substance or EHS released exceed amount authorized to be released?
Does the amount of the CERCLA hazardous substance or EHS released in excess of the authorized limit equal or exceed the RQ?
Return to the applicable flowchart (Chart III.A, CERCLA Release Reporting or Chart IV.A., EPCRA 304 Release Reporting) for instructions on release reporting
Go to Chart 3c, Federally Permitted Releases to Air.
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Chart 3cẹFederally Permitted Releases to Air
Is the release an emission subject to a permit or control regulation under NSPS?
Is the release an emission subject to a permit or control regulation under NESHAPs?
Is the release an emission subject to a permit or control regulation under the PDS program?
Is the release an emission subject to a permit or control regulation in a plan for attainment of a national ambient air quality standard?
Is the release an emission subject to a permit or control regulation in a SIP submitted for approval and not disapproved?
Is the release an emission subject to a waiver or schedule granted, promulgated, or approved under the CAA program?
Are the limits short-term limits and do they have the effect of limiting the release of the CERCLA hazardous substance?
No report required based on NOx enforcement waiver.
Are the limits in the permit, control regulation, schedule or waiver limits on particulate matter or VOCs?
1 Permits and control regulations include minor source thresholds and exemptions from permitting with applicable emission thresholds.
2 Short term limits may include annual minor source thresholds, for example, calculated to reflect operating conditions, such as daily limits
Is the release in compliance with the permit control regulation schedule or waiver?
No federally permitted release exemption applies.
The release reporting obligation is calculated based on the amount released.
Is the release an uncontrolled release from an emergency valve?
Is the release from an accident or malfunction NO
Does the amount of the CERCLA hazardous substance or EHS released exceed the amount authorized to be released?
Does the amount of the CERCLA hazardous substance or EHS released in excess of the authorized limit equal or exceed the RQ?
Return to the applicable flowchart (Chart III.A, CERCLA Release Reporting or Chart IV.A., EPCRA Release Reporting) for instructions on release reporting.
Is the release a release of NOx from combustion equipment?
Chart 3dẹDetermination of Applicable RQ for CERCLA Release Reporting
Is the material a listed CERCLA hazardous substance?
Does the material contain a CERCLA hazardous substance?
Is the material a specifically listed RCRA hazardous waste?
Is the material a solid waste that exhibits RCRA character istics (i.e., an unlisted hazardous waste)?
Does the waste exhibit the characteristics of toxicity?
The RQ for wastes which exhibit the characteristics of reactivity, ignitability, or corrosivity is 100 pounds.
NO YES Use the RQ in 40 CFR 302.4 for listed
NO YES Calculate the amount of hazardous substance released per Section 5.8.
CERCLA reporting is not required.
Determine the contaminant(s) which the toxicity characteristic is based upon.
Use 40 CFR 302.4 to determine the appropriate RQ for each contaminant.
The final Risk Quotient (RQ) will be determined by taking the lowest RQ among the contaminants present in the waste, or it will be set at 100 pounds if the waste demonstrates characteristics of reactivity, ignitability, or corrosivity.
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E NVIRONMENTAL G UIDANCE D OCUMENT ẹR ELEASE R EPORTING FOR THE O IL AND G AS E&P I NDUSTRY 9
Determine the type and quantity of material released and the extent of its travel from the point of release.
Is the material an EPCRA extremely hazardous substance?
(See Appendix A and 40 CFR pt 355)
Was the release contained within the bounds on the property (i.e., no potential to affect persons off-site)?
Is the release federall y permitted ? (See Sections 5.16 and 6.5.3 and go to Chart 3b, the Federally Permitted Releases flowcharts)
Is the substance a CERCLA hazardous substance?
Check for applicability of release reporting requirements under the CWA (Chart II) or CERCLA (Chart 3a).
Was the amount released equal to or greater than the RQ?
At the time of the release, was the substance being transported?
Notify the LEPC and SERC immediately by telephone.
Provide written follow-up as soon as practicable.
Provide notification to the local authorities via the 911 system.
1 In the case of any release required to be reported under EPCRA 304, the operator should determine whether a CERCLA report is required Go to Chart III.A, CERCLA Release Reporting
Does the facility have an EPCRA extremely hazardous substance on site?
(See Appendix A and 40 CFR pt 355) START
Does the amount of the EHS exceed the threshold planning quantity?
(See Appendix A and 40 CFR pt 355)
Notify the SERC within 60 days of the EHS being brought on site.
Designate a facility emergency coordinator to participate with the LEPC in developing emergency response plans.
EPCRA 302 notification is not required.
1 The transportation of hazardous substances and natural gas is exempt from 302 notification.
2 This chart should be used any time an EHS is brought on site.
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Chart 4cẹEPCRA Section 311/312 Hazardous Chemical Reporting
Does the facility have an extremely hazardous substance on site?
(See Appendix A and 40 CFR pt 355)
Does the amount of the EHS exceed the lesser of 500 pounds (approximately 55 gallons) or the threshold planning quality?
(See Appendix A and 40 CFR pt 355)
EPCRA 311 reporting required within 3 months after the chemical is first present in threshold amounts.
Provide MSDSs or a list of hazardous chemicals and EHSs to the SERC, the LEPC, and the local fire department.
Follow up with the annual EPCRA 312 report on March 1 of the next calendar year.
Does the facility have any materials which require OSHA material safety data sheets?
Are there more than 10,000 pounds of any of these OSHA hazardous chemicals at the facility?
EPCRA 311/312 reporting is not required.
Update EPCRA 311 fil ings within 3 months if significant new information becomes available.
The transportation of hazardous substances and natural gas is exempt from 311/312 reporting.
4 Reporting Requirements under the Clean Water Act (CWA)
General Requirements
The Clean Water Act (CWA) forbids the release of significant amounts of oil or hazardous substances into the navigable waters of the United States and mandates prompt notification in the event of such a discharge.
The requirement to report prohibited discharges is very similar to the release reporting requirements under CERCLA section
103, 42 U.S.C §9603 There are, however, some important differences:
• The CWA requires reports only for releases to navigable waters, while CERCLA requires reports of releases to all environ- mental media—water, air and land.
• The list of hazardous substances reportable under the CWA is considerably smaller than that under CERCLA.
• The CWA requires reports of releases of petroleum, but CERCLA does not.
• CWA regulations include specific exclusions from reporting at 40CFR117.11(a)-(j) that diverge from the CERCLA exclu- sions.
Scope of the Discharge Reporting Requirement
The statute forbids the release of oil or hazardous substances into the navigable waters of the United States and their adjacent shorelines The definition of "navigable waters" is detailed in section 4.3.
• discharges into or upon the waters of the contiguous zone; and
Discharges occurring beyond the contiguous zone are associated with activities governed by the Outer Continental Shelf Lands Act or the Deepwater Port Act of 1974 These discharges may impact natural resources that are owned, managed, or regulated by the United States, including those under the Fishery Conservation and Management Act of 1976.
Under CWA §311(b)(1) and 33 U.S.C §1321(b)(1), EPA regulations define hazardous substances and specify that the contiguous zone aligns with Article 24 of the Convention on the Territorial Sea and the Contiguous Zone Additionally, these regulations prohibit discharges into waters that extend beyond the contiguous zone.
Discharges from vessels or facilities, whether onshore or offshore, that are involved in activities governed by the Outer Continental Shelf Lands Act (43 U.S.C §1331 et seq.) or the Deepwater Port Act of 1974 (33 U.S.C §1501 et seq.) are subject to specific regulations.
The waters that encompass or sustain natural resources managed exclusively by the United States, including those governed by the Fishery Conservation and Management Act of 1976 (16 U.S.C §1801 et seq.), are subject to specific regulations.
Discharges to the contiguous zone or beyond are allowed if they comply with the 1978 Protocol related to the International Convention for the Prevention of Pollution from Ships, 1973, as outlined in 40CFR§116.3 and CWA §311(b), 33 U.S.C §1321(b).
Excluded from the definition of “discharge” are:
• discharges in compliance with a National Pollutant Discharge Elimination System (NPDES) permit;
Discharges that arise from circumstances documented and reviewed, which are included in the public record, are associated with an issued or modified NPDES permit and are subject to specific conditions outlined in the permit.
Continuous or expected intermittent discharges from a point source, as specified in a National Pollutant Discharge Elimination System (NPDES) permit or application, result from events related to the operational or treatment systems in place.
• certain discharges authorized under the National Contingency Plan.
Definition of “NavigableWaters of the United States”
The Clean Water Act (CWA) defines "navigable waters of the United States" as encompassing all waters within the U.S., including territorial seas, as stated in CWA §502(7), 33 U.S.C §1362(7) This definition was significantly impacted by the United States Supreme Court's ruling in the Solid Waste Agency of Northern Cook case.
In early 2001, the judicial decision in County v U.S Army Corps of Engineers (SWANCC) generally supported the broader interpretations of the Clean Water Act (CWA) by agencies like the EPA and the U.S Army Corps of Engineers, extending the definition beyond just navigable waters However, the legal landscape regarding this definition continues to evolve, making it essential to consult legal counsel when uncertainties arise.
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The EPA regulations implementing the CWA release reporting requirements define the term, “navigable waters of the United States,” broadly as including:
All waters currently in use, previously utilized, or potentially suitable for transporting interstate or foreign commerce are included, encompassing those affected by tidal movements and adjacent wetlands.
• tributaries of navigable waters, including adjacent wetlands;
• interstate waters, including wetlands; and
All waters, including intrastate lakes, rivers, streams, mudflats, sandflats, and wetlands, play a crucial role in interstate commerce The use, degradation, or destruction of these water bodies can significantly impact activities such as recreation, fish and shellfish harvesting, and industrial operations.
Wetlands are regions that are either flooded or saturated with surface or groundwater for sufficient durations to sustain typical wetland vegetation These areas encompass swamps, marshes, bogs, and may also include playa lakes, sloughs, prairie potholes, wet meadows, prairie river overflows, mudflats, and natural ponds While the definitions for reporting oil discharges and hazardous substance releases in regulations are similar, they are not identical.
Before the SWANCC decision, courts generally supported the EPA and the Corps in classifying tributaries of navigable waters as regulated "navigable waters of the United States," including those that flow intermittently However, the treatment of groundwater was less consistent, with some courts ruling that discharges to groundwater may require a permit under the CWA if connected to surface waters, while others disagreed Additionally, several rulings recognized "isolated" wetlands—those not adjacent to navigable waterways—as "navigable waters of the United States," a stance that SWANCC subsequently altered.
The Supreme Court's decision redefined "isolated" wetlands as "navigable waters of the United States," effectively overturning the Corps of Engineers' "migratory bird rule." This rule previously allowed the Corps to assert jurisdiction over certain wetlands not directly connected to navigable waters, based on their use as habitat for migratory birds under the Clean Water Act (CWA).
On January 10, 2002, the EPA and the Corps issued a joint advance notice of proposed rulemaking to gather comments on revising regulations following the SWANCC decision Alongside this notice, they released a memorandum outlining their jurisdiction interpretation during the rule revision process The memorandum states that the agencies will not claim jurisdiction over isolated, non-navigable intrastate waters solely based on their use as habitats for migratory birds, federally protected endangered species, or for irrigating crops sold in interstate commerce Additionally, EPA and Corps staff must obtain formal, project-specific headquarters approval before asserting jurisdiction over these isolated waters based on their use by interstate or foreign travelers, the presence of fish or shellfish for sale in interstate commerce, or other recreational uses.
9See United States v Riverside Bayview Homes, Inc., 474 U.S 121, 133, 106 S.Ct 455, 462, 88 L Ed 2d 419 (1985) (holding that wetlands adjacent to “navigable waterway” are “navigable waters of the United States”).
Regulations define "adjacent" in the context of hazardous substances as "bordering, contiguous, or neighboring" (40 CFR §116.3) Notably, the oil and hazardous substance discharge regulations exclude prior converted cropland and waste treatment ponds, excluding cooling ponds, from the definition of navigable waters (40 CFR §§110.1 and 117.1) The Part 110 regulations focus on oil discharge, while Part 116 designates hazardous substances, and Part 117 establishes reportable quantities and mandates reports for hazardous substance releases.
In the case of Headwaters, Inc v Talent Irrigation District, the court determined that irrigation canals linked to streams flowing into navigable waters qualify as "waters of the United States." Similarly, Aiello v Brookhaven further explores the legal definitions surrounding water bodies under U.S jurisdiction.
2001) (tributaries of navigable waters that are not themselves navigable in fact are “waters of the United States”).
Intermittent flow tributaries are classified as "waters of the United States," as established in Headwaters, 243 F.3d at 534 Additionally, the case Quivira Mining Co v U.S.E.P.A., 765 F.2d 126, 130 (10th Cir 1985), affirmed the EPA's authority to mandate National Pollutant Discharge Elimination System permits for discharges into dry arroyos that direct rainfall to navigable waters during significant rainfall events.
Several court cases have established that releases from oil pipeline tanks to groundwater are considered prohibited discharges to waters of the United States, as seen in Williams Pipe Line Co v Bayer Corp Additionally, groundwater that is connected to surface water falls under the jurisdiction of the Clean Water Act (CWA), as demonstrated in Friends of Santa Fe County v LAC Minerals, Inc Furthermore, the McClellan Ecological Seepage Situation (MESS) v Weinberger case indicated that discharges to groundwater linked to surface water may necessitate a CWA permit.
The EPA's July 17, 2002 regulation on Spill Prevention Control and Countermeasures (SPCC) emphasizes that facilities with groundwater directly connected to navigable waters may be required to develop an SPCC Plan due to their geographical location This regulation is detailed in the final rule published in the Federal Register, highlighting the importance of environmental protection measures for both onshore and offshore facilities.
40 CFR pt 112) (SPCC Plan Rule).
Several court cases have established that stormwater retention ponds do not necessitate a discharge permit for water that percolates into groundwater Notably, in *Town of Norfolk v U.S Army Corps of Engineers*, the First Circuit affirmed this principle, while the Seventh Circuit in *Village of Oconomowoc v Dayton Hudson Corp.* supported the same conclusion Additionally, the dismissal of Clean Water Act claims in *Kelley v United States* highlighted that groundwater releases that eventually migrate into navigable waters do not warrant federal jurisdiction Furthermore, the case of *U.S v GAF Corp.* reinforces these legal precedents.
The memorandum directs field staff to maintain jurisdiction over traditional navigable waters, adjacent wetlands, and their tributary systems for industrial purposes in interstate commerce.
Definition of “Hazardous Substance” and “Harmful Quantity”
The term "hazardous substance" refers to any substance identified by the EPA under CWA section 311(b)(2), which poses a significant threat to public health, wildlife, and natural resources, excluding oil A comprehensive list of these substances can be found in 40 CFR Section 116.4 While all CWA hazardous substances are also classified as CERCLA hazardous substances, the reverse is not true Additionally, harmful quantities of these substances, known as reportable quantities (RQs), are specified in 40 CFR §117.3 Oil is defined broadly to encompass various forms, including petroleum, fuel oil, sludge, and oil mixed with other wastes, as outlined in CWA §311(a)(1), 33 U.S.C §1321(a)(1).
The Spill Prevention Control and Countermeasures (SPCC) Plan regulations, established on December 17, 2002, encompass a wide range of substances, including synthetic oils, mineral oils, vegetable oils, and animal-derived oils or greases.
EPA regulations at 40CFR§110.3 specify that harmful quantities of oil that have to be reported when released to waters of the United States include:
• a discharge that violates applicable water quality standards;
• a discharge that causes a sheen, film, or discoloration on the water’s surface; or
• a discharge that causes a sludge or emulsion to be deposited beneath the surface of the water.
Procedures for Reporting to the NRC
According to U.S Coast Guard Regulations at 33CFR§153.203, individuals in charge must promptly report any discharge of oil or hazardous substances to the National Response Center (NRC) upon becoming aware of it The NRC can be reached at (800) 424-8802 or (202) 267-2675 for those in the Washington, D.C., metropolitan area.
If telephone reporting is not feasible, reports should be made to the Coast Guard or the EPA-designated on-scene coordinator (OSC) for the relevant region In cases where immediate notification to the OSC or NRC is not possible, the nearest Coast Guard unit should be contacted, followed by a prompt report to the NRC For reference, Appendix C includes tables with the addresses and phone numbers of Coast Guard District offices and EPA regional offices.
While telephone reporting remains mandatory in most cases, the NRC website offers online reporting forms for various release categories, including continuous releases and those from offshore platforms, vessels, storage tanks, and fixed or mobile facilities However, since the regulations do not explicitly permit online reporting, any incidents reported online must also be communicated to the NRC via telephone.
Appendix B includes additional information on reporting, including an outline of the kinds of information the NRC will request.
The joint EPA and Corps memorandum provides a comprehensive overview of court decisions following the SWANCC ruling, highlighting that some lower courts have interpreted its impact as limited to the migratory bird rule For instance, in *United States v Interstate General Co.*, the court upheld a conviction for filling wetlands adjacent to navigable waters, while *United States v Buday* classified tributaries and adjacent wetlands as waters of the United States due to their potential impact on interstate navigable waters Conversely, other courts have viewed the SWANCC decision as having broader implications for EPA and Corps jurisdiction under the Clean Water Act (CWA), necessitating a substantial connection to navigability for isolated intrastate waters to be considered "navigable waters." This perspective is illustrated in *United States v Krilich*, where the court suggested that wetlands must either be connected to navigable waters or demonstrate a significant link to interstate commerce to fall under CWA jurisdiction.
The Environmental Protection Agency (EPA) provides an online "list of lists" that includes hazardous substances under CERCLA, as of October 2001 This resource can be accessed through their website, where users can find various tools and databases related to environmental protection For specific EPA databases and software, visit the dedicated link provided.
The SPCC Plan Rule defines "petroleum oil" as any form of petroleum, which encompasses crude oil, fuel oil, mineral oil, sludge, oil refuse, and refined products, as stated in 40 CFR §112.2 and 67 Fed Reg at 47,142-143.
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Procedures for Reporting to the RegionalAdministrator of the EPA
Operators of onshore and offshore facilities must create and implement Spill Prevention Control and Countermeasure Plans (SPCC Plans) to manage potential oil releases In the event of a reportable oil discharge exceeding 1,000 gallons in a single incident, or two discharges over 42 gallons within a year, operators are required to notify the EPA Regional Administrator This notification must include specific information and be submitted within 60 days of the incident.
• the name of the facility;
• the owner’s or operator’s name;
• the location of the facility;
• the maximum storage or handling capacity of the facility and its normal daily throughput;
• corrective action and countermeasures taken, including a description of equipment repairs and replacements;
• an adequate description of the facility, including maps, flow diagrams, and topographical maps, as necessary;
• the cause of the discharge(s), including a failure analysis of the system or subsystem in which the failure occurred;
• additional preventive measure taken or contemplated to minimize the possibility of recurrence; and
• other information the RegionalAdministrator may reasonably require pertinent to the SPCC Plan or discharge(s) 18
Facilities are required to provide identical information to the relevant state agencies responsible for oil pollution control The EPA Regional Administrator has the authority to request amendments to the facility's SPCC Plan, taking into account the submitted information and recommendations from state regulators for enhanced prevention and containment measures.
Enforcement
Operators can face significant civil penalties for oil spills, amounting to $25,000 per day of violation or $1,000 for each barrel of oil or unit of hazardous substances released, as outlined in CWA §311(b)(6)-(7), 33 U.S.C §1321(b)(6)-(7) Additionally, failing to notify authorities of a reportable discharge can lead to severe criminal penalties, including fines and imprisonment for up to five years, according to CWA §311(b)(5), 33 U.S.C §1321(b)(5).
5 Reporting Requirements under the Comprehensive Environmental Response
Compensation and Liability Act (CERCLA)
General Requirements
CERCLA mandates notification requirements for the release of hazardous substances, as defined in section 101(14) of the Superfund law The EPA is tasked with establishing reportable quantities (RQs) for these substances under CERCLA §102, 42 U.S.C §9602 Similar to the Clean Water Act (CWA), CERCLA requires that any reportable releases be communicated to the National Response Center (NRC) as outlined in CERCLA §103(a), 42 U.S.C §9603(a) The statute also specifies exemptions for certain releases, imposes penalties for non-compliance with notification, and grants the EPA authority to set recordkeeping requirements.
Definition of Hazardous Substance
CERCLA defines “hazardous substance” by reference to five environmental statutes:
• any element, compound, mixture, solution or substance designated as a “hazardous substance by EPA under CERCLA, §102 42 U.S.C §9602;
• any substance designated as a toxic pollutant under CWA §307(a) or as a hazardous substance under CWA §311(b)(2)(A),
Hazardous waste is defined as any waste that exhibits specific characteristics or is listed under section 3001 of the Solid Waste Disposal Act, excluding any waste whose regulation has been suspended by an Act of Congress, as outlined in 42 U.S.C §6921.
The SPCC Plan Rule, as outlined in 40 CFR §112.4(a), states that the reporting requirement is not applicable until the initial preparation and implementation period of the SPCC Plan has elapsed According to the amended rule effective April 17, 2003, facilities that began operations between August 16, 2002, and February 18, 2005, and are likely to have a discharge, must implement a plan by February 18, 2005 Additionally, any facility commencing operations after February 18, 2005, is required to prepare and implement a plan prior to starting operations.
19See SPCC Plan Rule, 67 Fed Reg at 47,144, 40 CFR §112.4(c)-(d).
• any hazardous air pollutant listed under section 112 of the CleanAirAct (CAA), 42 U.S.C §7412; and
• any imminently hazardous chemical substance or mixture with respect to which theAdministrator has taken action pursuant to section 7 of the Toxic Substances ControlAct (TSCA), 15 U.S.C §2606.
The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) defines hazardous substances but explicitly excludes petroleum, including crude oil and its fractions, unless specifically listed as hazardous under certain statutes Additionally, natural gas, natural gas liquids, and mixtures of natural or synthetic gas are also excluded For more details on the CERCLA "petroleum exclusion," refer to section 5.3.
The EPA regulations outline CERCLA hazardous substances in 40CFR§302.4, specifically in Table 302.4 This table includes chemicals by name, with an appendix offering a cross-reference to their corresponding Chemical Abstracts Service (CAS) Registry Numbers Additionally, the list indicates the hazardous waste identification number for each chemical and specifies the Reportable Quantity (RQ) for every substance.
The CERCLA hazardous substance list includes broad classes of chemicals, such as zinc compounds, for which the EPA has not assigned a reportable quantity (RQ) According to CERCLA, the default RQ is 1 pound until a regulation specifies otherwise However, the EPA has not applied this default RQ to these broad classes, determining that notification requirements only pertain to specific compounds listed in 40 CFR §302.4 Despite this, the EPA has indicated that owners or operators of vessels or facilities releasing any hazardous substance within these broad categories are still liable for cleanup, regardless of whether an RQ is established for that release.
A comprehensive online resource featuring a consolidated list of CERCLA hazardous substances, as of October 2001, can be accessed through the EPA's Chemical Emergency Preparedness and Prevention Office Users can find this information by navigating to the databases and software section on the EPA's website.
The CERCLA reporting obligations extend to "unlisted" hazardous substances, which are classified as "characteristic" hazardous wastes under the Resource Conservation and Recovery Act (RCRA) These characteristic wastes display traits of toxicity, reactivity, ignitability, or corrosivity and are not exempt from hazardous waste regulations as outlined in 40CFR§261.4(b) Importantly, a characteristic substance must qualify as a "waste" to be considered an "unlisted hazardous substance." If an unlisted hazardous substance with a RCRA characteristic is spilled but promptly cleaned up for repackaging, reprocessing, recycling, or reuse, it does not constitute a waste, and thus the facility operator is not required to report the incident as a CERCLA release, provided there is no release of a reportable quantity (RQ) into the environment An example of this scenario is a spill of pelletized chemicals that is entirely collected, resulting in no waste.
In 1985, the EPA decided not to apply notification requirements to broad classes of compounds labeled as “hazardous substances” due to their classification as toxic pollutants under the Clean Water Act Similarly, the EPA chose not to assign reportable quantities (RQs) to newly listed chemical categories from the Clean Air Act Amendments of 1990, opting instead to identify specific compounds within those categories for RQ assignment However, a 1997 rule clarification indicated that the 1-pound RQ applies to all compounds within a specific category, which contradicts the earlier 1995 notice This inconsistency suggests a potential error, and facility operators are advised to seek legal counsel in cases of uncertainty.
21See “Superfund Programs; Reportable Quantity Adjustments; Final Rule,” 51 Fed Reg 34,534, 34,539 (Sept 29, 1986) (clarifying that the 100poundRQforreleaseofcharacteristicignitable,corrosive,orreactivehazardouswastes,so-called“ICRsubstances,”appliesnotjusttoICR substanceswhicharewastesbeforetheirrelease,butalsotoICRsubstances“whichbecomewastesonlyaftertheirrelease”)(“ICRClarification Notice”).
According to the 22ICR Clarification Notice, 51 Fed Reg at 34,539, if an ICR substance that is not classified as waste is released and only partially cleaned up, the release does not need to be reported unless the unrecovered amount is equal to or exceeds the Reportable Quantity (RQ) of 100 lbs.
If less than 100 pounds of a hazardous substance is spilled and not recovered, or only recovered for disposal, it does not constitute a release of a Reportable Quantity (RQ) Consequently, the reporting requirements outlined in section 103 are not activated.
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Petroleum Exclusion
The CERCLA definition of hazardous substances does not include petroleum products, such as natural gas and crude oil, unless they are specifically identified by one of the five environmental statutes mentioned in the definition of hazardous substances.
The scope of the exclusion of hazardous substances under CERCLA is clarified in various internal EPA memoranda and court rulings A notable example is a General Counsel’s opinion from July 31, 1987, which states that crude oil and its fractions, including naturally occurring hazardous substances like benzene, are excluded from CERCLA response and liability Additionally, it specifies that hazardous substances mixed with or added to crude oil during refining are also excluded The opinion further clarifies that petroleum does not encompass hazardous substances added or concentrated due to contamination during use Current EPA guidance, available in a Q&A format on their website, reiterates this interpretation.
Court rulings support the EPA's stance that fractions of crude oil and additives combined with petroleum during refining, despite being classified as hazardous substances, do not exempt one from liability However, the situation may differ for used petroleum products and waste, making it prudent to seek legal advice when uncertainties arise.
Exploration and ProductionWaste Exemption
The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) defines hazardous substances to include RCRA hazardous wastes, but excludes any waste regulated under the Solid Waste Disposal Act (SWDA) that has been suspended by Congress Specifically, under the Resource Conservation and Recovery Act (RCRA), drilling fluids, produced water, and other exploration and production (E&P) wastes related to crude oil and natural gas are exempt from hazardous waste regulation This exemption is supported by legislative history, which clarifies that the exclusion for E&P wastes applies regardless of the presence of hazardous or toxic chemicals Consequently, the oil and gas industry views RCRA-exempt E&P wastes as not classified as CERCLA hazardous substances.
The EPA has inconsistently classified RCRA-exempt exploration and production (E&P) wastes in relation to CERCLA hazardous substances, often misinterpreting the law by considering these wastes hazardous if they contain certain constituents This interpretation is based on court rulings regarding mining wastes, which are not directly applicable to RCRA-exempt E&P wastes Notably, no court has definitively addressed the exclusion of RCRA-exempt E&P wastes from CERCLA's hazardous substance definition Given that RCRA-exempt E&P wastes are distinctly different from mining wastes, the legal precedents concerning mining should not influence the treatment of E&P wastes, which are granted a specific exemption under RCRA, unlike mining wastes categorized as special study wastes.
I don't know!
24See “Petroleum Exclusion, Frequently Asked Questions,” on EPA’s website at (http://www.epa.gov/superfund/programs/er/triggers/haztrigs/ whatsub3.htm).
In several legal cases, courts have upheld the petroleum exclusion despite the presence of contaminants For instance, in *Washington v Time Oil Co.*, the court denied exclusion when contaminants exceeded typical amounts found in petroleum during refining Similarly, in *Wilshire Westwood Associates v Atlantic Richfield Corp.*, the presence of hazardous additives in leaded gasoline did not negate the petroleum exclusion Furthermore, the *Organic Chemical Site PRP Group v Total Petroleum, Inc.* case established that higher concentrations of polynuclear aromatic hydrocarbons at a Superfund site do not prevent the application of the petroleum exclusion, provided the increased levels align with volatilization and biodegradation processes over time.
In various legal cases, the interpretation of the petroleum exclusion has been debated For instance, in *New York v Exxon Corp.*, the court determined that used oil contaminated with hazardous substances falls outside the petroleum exclusion Conversely, *Southern Pacific Transp Co v California* ruled that used petroleum products are included unless CERCLA-listed hazardous substances were added during use Additionally, *Tosco Corp v Koch Indus.* clarified that the petroleum exclusion does not apply to petroleum that has mixed with hazardous wastes in soil and groundwater Lastly, in *Cose v Getty Oil Co.*, it was concluded that waste crude oil tank bottoms do not qualify as "petroleum" under the exclusion.
27The statement comes from the Senate Report accompanying S 1480, where the CERCLA hazardous substance definition originated S Rep.
No 848, 96th Cong., 2d Sess 28 (1980) The Report also states: “Thus, drilling muds and brines which have been excluded by regulation are not hazardous substances under S 1480.” Id.
28See, e.g., Eagle-Picher Indus v EPA, 759 F.2d 922, 930-31 (D.C.Cir 1985).
In the case of Nixon-Egli Equipment Co v John A Alexander Co., the court determined that drilling by-products and the act of drilling itself do not qualify for the petroleum exclusion, referencing the precedent set in Cose v Getty Oil Co.
`,,-`-`,,`,,`,`,,` - along with coal combustion and cement kiln dust wastes 31 Any question regarding exclusion of exempt E&P wastes from the definition of CERCLA hazardous substances should be referred to legal counsel.
Definition of Reportable Quantity
Under CERCLA regulations, notification is mandated only when a hazardous substance is released in quantities that meet or exceed the established reportable thresholds.
The EPA has set five levels of Reportable Quantities (RQs): 1, 10, 100, 1,000, and 5,000 pounds Instead of creating distinct RQs for each hazardous substance across different environmental media, the EPA opted for a unified approach.
The Reportable Quantities (RQs) for hazardous substances, such as nitrogen oxides (NO and NO₂), are set at 10 pounds within a 24-hour timeframe These RQs are determined based on the substances' releases into water and soil or groundwater, rather than their emissions into the air.
NO 2 to air are lower than warranted for such releases Until the EPA establishes an RQ for a hazardous substance, the RQ is 1 pound CERCLA §102(b), 42 U.S.C §9602(b).
The reportable quantities (RQs) for hazardous substances are detailed in 40 CFR §302.4, specifically in Table 302.4 and the EPA’s List of Lists Users accessing the online List of Lists or Table 302.4 should refer to Federal Register notices for any updates made after the publication date of the document.
Unlisted hazardous wastes that are ignitable, corrosive, or reactive are assigned a reportable quantity (RQ) of 100 pounds In contrast, wastes that demonstrate toxicity have their RQs determined by the specific contaminants identified in the extraction procedure (EP) toxicity characteristic It is important to note that the RQ pertains to the waste as a whole, rather than solely to the contaminants present within it.
According to 40CFR§302.5(b), when evaluating EP toxicity involving multiple contaminants, the Reportable Quantity (RQ) is determined by the lowest RQ among those contaminants Additionally, if a waste demonstrates toxicity alongside another characteristic, the applicable RQ will again be the lowest among those considered.
Definition of Reportable Release
CERCLA defines a “release” to mean:
Any action involving the release of hazardous substances or pollutants into the environment—such as spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing—is considered harmful This includes the abandonment or discarding of barrels, containers, and other closed receptacles that contain these dangerous materials.
The statute specifies exclusions for certain types of releases, particularly those that lead to exposure of individuals solely within a workplace regarding claims against their employers Additionally, it addresses emissions from various sources, including engine exhaust from motor vehicles, rolling stock, aircraft, vessels, and pipeline pumping station engines, as outlined in CERCLA §9601 (22), 42 U.S.C §9601(22).
Period of Release
The CERCLA regulations specify that a 24-hour period is used for measuring whether the RQ of a substance has been released.
According to 40CFR§302.6(a), the 24-hour rule does not indicate a specific timeframe for reporting a release; rather, the obligation to report is immediate once the Reportable Quantity (RQ) is exceeded This rule does not imply a "midnight-to-midnight" timeframe or a single calendar day For instance, if half of the RQ is released between 10:00 p.m and midnight, and the other half is released between midnight and 2:00 a.m., the facility is still required to report the release.
Mixtures of Hazardous Substances
Discharges of mixtures with hazardous substances must be reported only if the quantity of the hazardous component meets or exceeds its Reportable Quantity (RQ) If the specific amounts of hazardous constituents are unknown, notification is necessary when the total weight of the released mixture reaches the RQ.
For insights on the exclusion of exploration and production (E&P) wastes from the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) definition of hazardous substances, refer to the works of Jeffrey M Gaga and Donald W Stever in "Law of Solid Waste, Pollution Prevention, and Recycling" (2001), as well as Michael M Gibson and David P Young's analysis on oil and gas exemptions under the Resource Conservation and Recovery Act (RCRA) and CERCLA in the "South Texas Law Review" (1991).
31See 42 U.S.C §6921(b)(2)(A) regarding E&P wastes, and 42 U.S.C.§§6921(b)(3) and 6924(x) regarding special study wastes.
CFR §302.4 identifies section 3001 of the Resource Conservation and Recovery Act as the legal basis for listing nitrogen monoxide (NO) and nitrogen dioxide (NO₂), while section 311(b)(4) of the Clean Water Act serves as an additional source for the NO₂ listing.
33TheListofListsisavailableonlinefromEPA’sChemicalEmergencyPreparednessandPreventionOffice(http://yosemite.epa.gov/oswer/cep- poweb.nsf/index.html) by following the links for databases and software to the site offering EPA databases and software.
34See 5.2.2 for further discussion of these “unlisted” hazardous substances.
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Under 40CFR§302.6(b), the mixture rule aligns with the reporting standards for hazardous substances set by the Clean Water Act (CWA) Notably, the reportable quantities (RQs) of various substances, excluding radionuclides, are not additive Consequently, if a mixture contains half the RQ of one hazardous substance and half the RQ of another, it does not necessitate a report.
Determining the RQ forWaste Streams
Wastes can consist of various substances, and the mixture rule applies when determining the reportable quantity (RQ) for hazardous substances If a mixture is classified as a "characteristic" hazardous waste, its RQ is set at 100 pounds Conversely, if it qualifies as a listed hazardous waste, its RQ is specified in 40CFR§302.4, Table 302.4 For mixtures that do not meet these criteria, the mixture rule is used to assess the RQ For instance, a mixture containing toluene would have an RQ of 1,000 pounds if the concentration of toluene is unknown, while a reportable release occurs only if 1,000 pounds of toluene is released when the mixture is discharged.
Definition of Facility
Releases of hazardous substances from vessels, offshore facilities, and onshore facilities must be reported.
[Every] description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.
A hazardous site encompasses any building, structure, installation, equipment, or pipeline, including those connected to sewers or treatment works, as well as wells, pits, ponds, lagoons, landfills, storage containers, vehicles, and aircraft It also includes any area where hazardous substances have been deposited, stored, or disposed of However, it does not cover consumer products in use or vessels.
The statute also defines “offshore” and “onshore” facility:
An "offshore facility" refers to any structure situated in, on, or beneath the navigable waters of the United States This definition also encompasses any facility under U.S jurisdiction located in other waters, excluding vessels or public vessels.
An "onshore facility" refers to any type of facility, including motor vehicles and rolling stock, situated in, on, or beneath land or non-navigable waters within the United States.
Because the statutory definitions are all-inclusive, there is usually very little debate about whether a “facility” exists for CER-CLA purposes 37
Releases into the Environment
A hazardous substance must be released “into the environment” in an RQ before CERCLA notification is required The CER- CLA regulations define “environment” to mean:
The navigable waters, contiguous zone waters, and ocean waters with natural resources managed exclusively by the United States under the Fishery Conservation and Management Act of 1976, along with all surface water, groundwater, drinking water supplies, land surfaces, subsurface strata, and ambient air within U.S jurisdiction, are all included in this definition.
According to 40CFR§302.3, any release of volatile liquids from tanks, valves, or pipes that occurs outside of buildings or structures is reportable if the amount released equals the Reportable Quantity (RQ) This includes discharges onto concrete pads, into lined ditches, or open lagoons However, a hazardous substance release at a facility does not need to be reported if it does not enter the environment.
36See “Reportable Quantity Rule,” 50 Fed Reg at 13,463.
In a manufacturing plant, spills on the concrete floor can lead to environmental concerns The EPA defines "ambient air" as the air surrounding a facility that is not fully enclosed Consequently, any release of a reportable quantity (RQ) inside a building must be reported only if it escapes the structure.
Workplace Exclusion
The "workplace exclusion" under CERCLA defines "release" as excluding any exposure to individuals solely within a workplace, meaning workers cannot assert claims against their employers for such exposures However, the EPA clarifies that if a release escapes a building or structure, it is considered an environmental release under CERCLA, necessitating notification to the NRC if it meets or exceeds the reportable quantity (RQ), regardless of the presence of workers' compensation insurance.
The regulations lack clarity on when the reporting obligation is activated and the timeframe for “immediate” notification after a release is known Legislative history indicates that the “person in charge” responsible for reporting can be a low-level supervisor While the required level of knowledge is not explicitly defined, EPA enforcement cases imply that notification is necessary when there is some certainty of a reportable release Although EPA policy recommends reporting within 15 minutes of awareness, the definition of “immediate” varies based on the specifics of each release.
Mechanics Of CERCLA Notification
Releases of hazardous substances must be reported to the National Response Center (NRC) at 1-800-424-8802 or 202-426-2675 for Washington, D.C., as mandated by 40 CFR §302.6 Unlike the Clean Water Act (CWA), the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) does not allow for alternative reporting methods if contacting the NRC is impractical Detailed information required for reporting can be found in Appendix B While telephone reporting is required, the NRC website offers online reporting forms for various release categories, including continuous releases and those from offshore platforms and storage tanks Until regulations are updated to confirm that online submissions fulfill statutory requirements, facilities must also report CERCLA releases by phone.
EPA has stated that, while all concurrent releases of the same substances from a facility must be aggregated to determine if an
When the Reportable Quantity (RQ) is exceeded, facility managers are not required to report each release individually; a single report can cover multiple releases from different equipment within the same facility For instance, an operator may submit one notification for "multiple concurrent RQ releases" occurring at various locations within a contiguous plant or installation under common ownership, such as a chemical manufacturing plant or oil refinery.
38See Reportable Quantity Rule, 50 Fed Reg at 13,462.
39See Reportable Quantity Rule, 50 Fed Reg at 13,462-63.
40See United States v Carr, 880 F.2d 1550, 1554 (2d Cir 1989) (holding that knowledge of release by maintenance foreman supervising drum disposal triggered notification requirement).
41 In re Morton International, Inc., 1997WL 821128 (EPA), Docket No EPCRA-VII-96E-218 (Dec 12, 1997).
42OfficeofRegulatoryEnforcement,UnitedStatesEnvironmentalProtectionAgency,“EnforcementResponsePolicyforSections304,311and 312oftheEmergencyPlanningandCommunityRight-to-KnowActandSection103oftheComprehensiveEnvironmentalResponse,Compen- sation and LiabilityAct,” 11-12 (Sept 30, 1999) (“Enforcement Policy”).
In the case of In re B.F Goodrich, the decision dismissed the complaint's reference to a 15-minute standard, emphasizing that neither Congress nor the EPA has defined the term "immediate" in its regulations The ruling highlights that the interpretation of "immediate" must consider various release scenarios and specific circumstances.
44Notification Requirements Rule, 50 Fed Reg at 13,459.
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