10.26.2020 Beat the Clock: Timely Reporting of Releases of Hazardous Substances
The obligation of manufacturing facilities to report releases of hazardous substances to local, state, or federal authorities is a complex regulatory subject. Multiple variables may impact whether a facility with a release to the environment can expect an enforcement action if the release isn’t reported as required by law.
Under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), reporting to the National Response Center (NRC) may be required following the release of a “hazardous substance” to the “environment.” “Hazardous substance” and “environment” are defined terms, which we’ve discussed in detail in prior articles. The report must be made by a “person in charge,” upon gaining “knowledge” that the release met or exceeded a “reportable quantity” of the substance. Each of these terms is also defined by regulation or EPA guidance. Finally, CERCLA requires a qualifying release to be reported to the NRC “immediately.”
Unfortunately for the regulated community, the term “immediately” is not defined by CERCLA or its implementing regulations. This leaves companies, regulators, and ultimately courts to determine what amount of time the legislature intended when it said qualifying releases must be reported “immediately.”
In the years since the Superfund amendments of 1986, EPA and the courts have cited a single sentence from a 1985 Senate committee report on that issue. The Senate Committee on Environment and Public Works noted that “delays in making the required notification should not exceed 15 minutes after the person in charge has knowledge of the release.” Citation to this legislative history appears in EPA’s 1999 CERCLA Enforcement Response Policy as authority for the 15-minute reporting requirement.
Administrative enforcement cases brought by EPA for not timely reporting regularly result in the imposition of civil penalties, even where the required report was made within a few hours of gaining knowledge of the release. Typically, cases considering the issue of timeliness of a report hinge on the question of when the person in charge gained “knowledge” that a reportable quantity was released. “Knowledge” is interpreted by EPA to include actual knowledge or constructive knowledge, with constructive knowledge being a level of awareness that would lead a reasonable person to investigate further. In determining at what point in time the person in charge gained “knowledge,” EPA may consider facts such as time needed to perform engineering calculations to determine if a reportable quantity was released. Some situations may involve a substance with a low reportable quantity or clearly substantial releases from large vessels, such that no calculation time is necessary or justified.
When deciding whether to pursue enforcement, these are the circumstances EPA will review and analyze. However, the baseline standard for timely reporting is within 15 minutes of knowledge of a qualifying release. Facilities storing or utilizing hazardous substances onsite should carefully review contingency planning for release reporting to ensure required reports are made in a timely manner.