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Release Reporting

Posted on - 08/29/2007
by JHP

You are the plant manager of Coaters and Platers, Inc. Your company recently acquired six acres of a fifty acre industrial site next to your current location for the construction of a new warehouse and parking lot. During the initial excavation of the acquired property, you receive a report that your workmen have excavated several buried drums. You go to the excavation site and find that a bulldozer has unearthed five drums, puncturing them in the process. Your familiarity with chemicals helps you identify the contents of the buried drums as an industrial solvent never used by your company, but commonly known to be a hazardous substance.

You immediately notify the property owner who sold you the six acres. Although he denies liability, he agrees to take responsibility for the soil contaminated by the incident. He allows your company to place the contaminated soils on an asphalt parking lot located on the remaining 44 acres of industrial property that you did not purchase. After this unpleasant discovery, you have an environmental consultant survey the remaining six acres with a magnetometer to locate additional buried drums. Fortunately, none are found.

You mostly forgot the incident until a representative of U. S. EPA showed up at your plant to ask you what you knew about the contaminated soil located on your neighbor's property. Apparently, rains washed the contamination out of the soil and into a local stream causing a major fish kill. U. S. EPA and the Department of Justice are doing an investigation to determine the responsible parties. You feel that your neighbor is really in big trouble.

A few days later, you are notified that you are being investigated for environmental crimes related to the buried drums that caused the fish kill. Your attendance at a meeting with the prosecutor is requested, and you are advised to bring your lawyer. U. S. EPA is seeking an enforcement action against you for failing to report the release of a hazardous substance. You call an attorney and explain to him what happened.

Your attorney explains that under section 103(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. 9601 et seq., as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), the person in charge of a facility must, as soon as such person has knowledge of a release of a hazardous substance in a quantity that equals or exceeds its reportable quantity (RQ) in a twenty-four hour period, immediately report the release to the National Response Center. Section 102(b) of CERCLA establishes an RQ of one pound for releases of hazardous substances, except for hazardous substances whose RQs were established pursuant to section 311 of the Clean Water Act (CWA), and hazardous substances whose RQs were adjusted by the Administrator of U.S. EPA pursuant to the authority granted by section 102(a) of CERCLA. Section 109 of CERCLA authorizes U.S. EPA to assess civil penalties for failure to report releases of hazardous substances that equal or exceed their RQs. Section 103(b) of CERCLA authorizes EPA to seek criminal penalties for failure to notify pursuant to CERCLA section 103(a).

Your attorney explains that to be convicted criminally on a CERCLA section 103(a) count the United States must establish that a) you are a person; b) you were in charge of a facility from which there was a release of a hazardous substance; (c) the quantity of the substance released was equal to or exceeded the reportable quantity for that substance; and d) you did not notify the National Response Center as soon as you had knowledge of the release. Your attorney explains that many of the elements of the crime are defined by statute, while other terms have been left to judicial interpretation. A "Person" is defined at 42 U.S.C. §9601(21) to include individuals, firms, corporations, associations and other entities, such as federal, state and local government units. Your attorney explains that U.S. EPA will have no trouble proving that you are a person. A "Facility" is defined at 42 U.S.C. §9601(9) to include any building, structure, installation, impoundment, landfill or site where a hazardous substance is located. The six acres where the hazardous substance was buried would be a facility under the statute. As defined by 42 U.S.C. §9601(22), a "Release" covers virtually any contact with the environment, including any spilling, leaking, pumping, pouring, emitting, discharging, injecting, escaping, leaching, dumping or disposing into the environment. By puncturing the drums with the bulldozer, there was a release at your company's facility. The "Environment" includes by definition the navigable waters, ocean waters, surface waters, the drinking water supply, groundwater, land surface or subsurface strata, or ambient air per 42 U.S.C. §9601(8).

As indicated, CERCLA provides definitions for most of the pertinent 103(a) terms. Neither the statute nor the regulations, however, give meaning to the phrase "in charge. . .of [a] facility." One court has ruled that the reporting requirements extend to any person able to discover, prevent and abate the release of a hazardous substance. United States v. Carr, 880 F.2d 1550 (2nd. Cir. 1989). Similarly, although section 103(a) liability requires that a person have knowledge of the release, CERCLA does not define the knowledge requirement. The Eleventh Circuit Court of Appeals considered the issue of knowledge in an environmental crimes case in United States v. Hayes Intern Corp., 786 F.2d 1499 (11th Cir. 1986), and concluded that the United States met its burden of proof by demonstrating that a) the defendant knew what the hazardous substance was (in that case, a mixture of paint and solvent) and b) the defendant knew that the hazardous substance was regulated by environmental laws. The court further noted that the United States may prove knowledge with circumstantial evidence. Id. Your attorney explains that U.S. EPA will have little trouble proving any of the necessary elements required to convict you of failing to report the release of a reportable quantity of a hazardous substance.

You cannot believe that simply failing to call U.S. EPA to report the release of a CERCLA hazardous substance could be a crime. You ask your attorney if anyone else has ever been convicted of such a crime. Your attorney explains that three people in Pennsylvania were sentenced in July 1996 for facts very similar to yours. In that case, two township supervisors and a fire chief were sentenced. The township administrators received eight months of confinement; the fire chief received four months of confinement and two years of probation. Their criminal convictions arose out of an incident, when the defendants unearthed five drums of waste buried on a tract of land owned by the township. Each drum was punctured in the process, releasing chemicals into the environment. A town laborer was ordered to crush the drums and rebury the waste. No required report was made of the incident to the proper authorities. Subsequent testing of the drums by the Pennsylvania Department of Environmental Protection determined that at least three of the drums contained hazardous substances. In a plea bargain agreement, all three defendants pleaded guilty to failing to report the release of hazardous substances into the environment. Your attorney explains that his goal is to minimize your criminal penalty; the chances of you being found not guilty are almost impossible.

My advice to clients is to be aware of the reporting requirements -- not just under CERCLA, but all the environmental laws. In addition to the reporting requirement under CERCLA, section 304 of the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA), 42 U.S.C. 11001 et seq., also known as SARA title III, requires owners or operators of certain facilities to report certain releases of extremely hazardous substances and CERCLA hazardous substances to State and local authorities. EPCRA section 304 notification must be given immediately after releases of hazardous substances in quantities equal to or greater than their RQs to the community emergency coordinator for each Local Emergency Planning Committee for any area likely to be affected by the release, and to the State Emergency Response Commission of any State likely to be affected by the release. These notification requirements apply to releases that extend off-site and that are from facilities at which a "hazardous chemical" (defined by regulations under the Occupational Safety and Health Act of 1970 (29 CFR 1910.1200(c)) and section 311(e) of EPCRA) is produced, used, or stored. In addition, section 311(b)(5) of the CWA requires the person in charge of a vessel or facility, as soon as that person has knowledge of any discharge of a CWA hazardous substance, to notify immediately the appropriate Federal agency. There may be other agencies with reporting requirements applicable to releases at your facility, and your state may have other reporting requirements along with the federal requirements. I suggest that you learn what the reporting requirements are for your facility, make a list of phone numbers for emergency use and keep it available at all times. Furthermore, never assume that a release of a hazardous substance at your facility is not reportable without verifying your assumption with your environmental consultant and attorney. The expense your company incurs for determining if a release is reportable is very inexpensive compared to the cost of defending against a criminal prosecution, or sitting in prison.

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