Proposed U.S. Chemical Safety Board (CSB) National Release Reporting Regulations

February 26, 2020

When disaster or the unexpected strikes a business, such as an oil spill or a hazardous substance release, it is important to be prepared for how to respond so that the business does not add reporting violations to its list of problems. The federal Clean Water Act directs the EPA to promulgate regulations for facilities to establish procedures, methods, and requirements for equipment to prevent the discharge of oil and hazardous substances into federal waters.[1] Other federal environmental regulations have also established or developed federal reporting requirements. These laws, and their associated regulations, define to whom a business is required to report a release of substances, as well as the quantity of released substance that triggers the reporting requirements, the process for reporting, and the timeframe in which a facility must report. By reviewing the substance release reporting requirements, a business or facility will be better prepared to respond when the unexpected should occur.

First, there are two important reporting points to note. One, because the reporting requirements have been established under different statutory frameworks, there are different reporting requirements for different substances. Two, there may be separate state reporting requirements, in addition to the federal reporting requirements, which should be reviewed based upon the state in which the facility is located. On the first point, reporting requirements are generally separated by those for oil spills and those for hazardous substances. In either event, spills can always be reported to the National Response Center,[2] a facility operated by the U.S. Coast Guard.

Hazardous substance release reporting, on the other hand, may be required under either the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) or under the Emergency Planning and Community Right-to-Know Act of 1986, or both. Under CERCLA, the EPA has established reportable quantities for over 800 substances, which are provided in a Table, List of Hazardous Substance and Reportable Quantities.[3] Hazardous Substances that are not on this list may also be reportable if the substance exhibits any of the characteristics identified by regulation, which are Ignitability, Corrosivity, Reactivity, or Toxicity.[4] Those terms are defined more specifically in their respective subsections of the regulations. There are also certain exemptions to reporting that may apply, including reduced reporting requirements for continuous releases.[5] Reporting under CERCLA can be accomplished by contacting the National Response Center.[6]

The Emergency Planning and Community Right-to-Know Act (EPCRA) mandates additional reporting requirements and thresholds for releases of Extremely Hazardous Substances (EHS), which are established by regulation and which are based on the substances acute lethal toxicity.[7] If the release of an EHS occurs at the reportable quantity, the facility must notify the State Emergency Response Commission (SERC) and Local Emergency Planning Committee (LEPC) for any area(s) likely to be affected by the release.[8] This is also true for releases of CERCLA hazardous substances, identified above.[9] Therefore, for releases of EPCRA Extremely Hazardous Substances at reportable quantities, or of CERCLA Hazardous Substances, notification must generally be made to the National Response Center along with state and local Emergency Response Commission agencies.[10] EPCRA also provides certain reporting exemptions for state and local notification. One notable exemption is for releases that result in exposures to persons solely within the boundaries of the facility.[11]

In summary, for those facilities that manufacture or process chemicals that are listed as hazardous, it is critical to understand your reporting requirements in order to be properly prepared for a disaster or unexpected event. The first task is to determine whether the substances and quantities of those substances processed at your facility require reporting under the various lists of hazardous substances. Once you know whether your facility may fall under the different federal (and state) reporting requirements, then you can gather the appropriate contact information and data to provide to the various agencies if a release should occur. With the proper preparation in advance, you will have one less thing to worry about should the worst-case scenario strike your facility.

[1] 33 U.S.C. § 1321(j)(1)

[2] Contact the National Response Center at: 800-424-8802. “It is the designated federal point of contact for reporting all oil, chemical, radiological, biological and etiological discharges into the environment, anywhere in the United States and its territories.”

[3] 40 C.F.R. § 302.4 – Designation of hazardous substances. Table 302.4—List of Hazardous Substances and Reportable Quantities

[4] 40 C.F.R. § 261.20 – 261.24.

[5] 40 C.F.R. § 302.8 – Continuous releases.

[6] 42 U.S.C. § 9603. Notification requirements respecting released substances.

[7] 40 C.F.R. Appendix A to Part 355 – The List of Extremely Hazardous Substances and Their Threshold Planning Quantities

[8] 40 C.F.R. Subpart C – Emergency Release Notification

[9] Id.

[10] Id.

[11] 40 C.F.R. § 355.31(a).