Margaret Bazany, The Dow Chemical Company

1. 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

2. 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.”

3. 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.

4. 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.

5. 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”

6. 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.

7. 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).

8. 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 wastein 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.

9. 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 substancemust immediately report the release of the substancewhere such release: • exceeds the reportable quantityand • extends beyond the property boundaries of the facility 35 Pa. Stat. Ann. § 60222.206.

10. 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 releasewould: • 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.

11. 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.

12. 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.

13. 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

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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

20. 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

21. 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?

22. 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?

23. 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?

24. 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.