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Margaret Bazany, The Dow Chemical Company John Stillmun, FMC Corporation Bonnie Allyn Barnett, Drinker Biddle Amy Donohue-Babiak, Johnson Matthey In R U RQ? R U RQ? DIRTY LITTLE SECRETS DIRTY LITTLE SECRETS OF OF RELEASE REPORTING RELEASE REPORTING October 2009 October 2009

Margaret Bazany, The Dow Chemical Company

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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. The Big Picture. - PowerPoint PPT Presentation

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Page 1: Margaret Bazany, The Dow Chemical Company

Margaret Bazany, The Dow Chemical Company

John Stillmun, FMC Corporation

Bonnie Allyn Barnett, Drinker Biddle

Amy Donohue-Babiak, Johnson Matthey Inc.

R U RQ? R U RQ? DIRTY LITTLE SECRETS DIRTY LITTLE SECRETS

OF OF RELEASE REPORTINGRELEASE REPORTING

October 2009October 2009

Page 2: Margaret Bazany, The Dow Chemical Company

The Big PictureThe Big Picture

Reporting Obligations Come in all Shapes and Sizes:Reporting Obligations Come in all Shapes and Sizes:

Federal Statutes.Federal Statutes. State and Local Requirements.State and Local Requirements. Permit Requirements.Permit Requirements. Past Releases vs. the Current “Ooops.”Past Releases vs. the Current “Ooops.”

Page 3: Margaret Bazany, The Dow Chemical Company

The Big PictureThe Big Picture Time is of the Essence and Often Short.Time is of the Essence and Often Short.

Be Prepared Before the Call Comes.Be Prepared Before the Call Comes.

Have a Policy in Advance, Focused on the Have a Policy in Advance, Focused on the Jurisdictions Where Facilities are Located. Jurisdictions Where Facilities are Located.

When the Consultant Knows Better.When the Consultant Knows Better.

Page 4: Margaret Bazany, The Dow Chemical Company

CERCLA REPORTINGCERCLA REPORTING CERCLA, as implemented by 40 C.F.R. Part CERCLA, as implemented by 40 C.F.R. Part

302, requires any person in charge of a facility 302, requires any person in charge of a facility to notify the National Response Center to notify the National Response Center immediatelyimmediately when he or she has when he or she has knowledgeknowledge of of any any releaserelease of a of a hazardous substancehazardous substance from from that facility in a quantity equal to or greater that facility in a quantity equal to or greater than the “than the “reportable quantitiesreportable quantities” listed by the ” listed by the EPA. CERCLA § 103.EPA. CERCLA § 103.

RQ must be exceeded within 24 hours.RQ must be exceeded within 24 hours.

Page 5: Margaret Bazany, The Dow Chemical Company

CERCLA REPORTINGCERCLA REPORTING To determine whether notification is To determine whether notification is

necessary under CERCLA, you must necessary under CERCLA, you must determine:determine:• A. Whether there has been an A. Whether there has been an unpermitted “release”unpermitted “release”

• B. Whether the substance was B. Whether the substance was “hazardous” “hazardous” as as defined by CERCLAdefined by CERCLA

• C. Whether the amount released was large enough to C. Whether the amount released was large enough to be a be a “reportable quantity”“reportable quantity”

Page 6: Margaret Bazany, The Dow Chemical Company

EPCRA EMERGENCY RELEASE EPCRA EMERGENCY RELEASE NOTIFICATION NOTIFICATION

REQUIREMENTSREQUIREMENTS EPCRA § 304 requires an owner or operator of a EPCRA § 304 requires an owner or operator of a

facility to immediately notify the local emergency facility to immediately notify the local emergency planning committee (“LEPC”) and state planning committee (“LEPC”) and state emergency response commission (“SERC”) if emergency response commission (“SERC”) if there is a release (other than a federally permitted there is a release (other than a federally permitted release) from the facility of: release) from the facility of:

• a CERCLA hazardous substance that exceeds its a CERCLA hazardous substance that exceeds its RQ, or RQ, or

• an Extremely Hazardous Substance (“EHS”) that an Extremely Hazardous Substance (“EHS”) that exceeds its RQ.exceeds its RQ.

Page 7: Margaret Bazany, The Dow Chemical Company

CLEAN WATER ACT (“CWA”) CLEAN WATER ACT (“CWA”)

REPORTINGREPORTING Any person in charge of a vessel or facility Any person in charge of a vessel or facility

shall “immediately” notify the National shall “immediately” notify the National Response Center soon as she has knowledge of Response Center soon as she has knowledge of any discharge of oil or a hazardous substance any discharge of oil or a hazardous substance into navigable waters of the US, adjoining into navigable waters of the US, adjoining shorelines or the contiguous zone, etc. “in such shorelines or the contiguous zone, etc. “in such quantities as may be harmful” as determined quantities as may be harmful” as determined by EPA. CWA § 311 (b)(3)&(5).by EPA. CWA § 311 (b)(3)&(5).

Page 8: Margaret Bazany, The Dow Chemical Company

DELAWARE REPORTING DELAWARE REPORTING REQUIREMENTSREQUIREMENTS

Discharges & Spills onto Land or into WatersDischarges & Spills onto Land or into Waters:: • Reporting is required by any person Reporting is required by any person who causes or contributes who causes or contributes

to:to:• an environmental release into surface water, groundwater an environmental release into surface water, groundwater

or on landor on land, or, or• disposal of solid wastedisposal of solid waste in excess of the most stringent in excess of the most stringent of of

CERCLA, CWA or Delaware state CERCLA, CWA or Delaware state RQsRQs. . • The spill must be reported The spill must be reported as soon as the person has knowledge as soon as the person has knowledge

of the release or dischargeof the release or discharge unless circumstances exist which unless circumstances exist which make such notification impossiblemake such notification impossible . 7 Del. Code § 6028.. 7 Del. Code § 6028.

Page 9: Margaret Bazany, The Dow Chemical Company

PENNSYLVANIA REPORTING PENNSYLVANIA REPORTING REQUIREMENTSREQUIREMENTS Release of Hazardous Substances Release of Hazardous Substances

or or Extremely Hazardous SubstancesExtremely Hazardous Substances::

• The The owner or operator of a facilityowner or operator of a facility that manufactures, produces, uses, that manufactures, produces, uses, imports, exports, stores, supplies or distributes any imports, exports, stores, supplies or distributes any hazardous substancehazardous substance or or extremely hazardous substanceextremely hazardous substance must immediately report must immediately report the release the release of the substanceof the substance where such release:where such release:

• exceeds the reportable quantityexceeds the reportable quantity andand • extends beyond the property boundaries of the facilityextends beyond the property boundaries of the facility

35 Pa. Stat. Ann. § 60222.206. 35 Pa. Stat. Ann. § 60222.206.

Page 10: Margaret Bazany, The Dow Chemical Company

PENNSYLVANIA REPORTING PENNSYLVANIA REPORTING REQUIREMENTSREQUIREMENTS

Discharge to Surface or GroundwaterDischarge to Surface or Groundwater::• The person in charge of a substance or the owner/occupier of the The person in charge of a substance or the owner/occupier of the

facility where a release of a toxic substance or another substance facility where a release of a toxic substance or another substance occurs must occurs must immediately report the release PADEPimmediately report the release PADEP and, where and, where reasonably possible, reasonably possible, notify known downstream usersnotify known downstream users where where such releasesuch releasewould:would:

• endanger downstream users of the waters of Pennsylvania;endanger downstream users of the waters of Pennsylvania;• otherwise result in pollution or create a danger of pollution of the otherwise result in pollution or create a danger of pollution of the

waters; or waters; or • damage property. damage property.

25 Pa. Code § 91.33.25 Pa. Code § 91.33.

Page 11: Margaret Bazany, The Dow Chemical Company

NEW JERSEY REPORTING NEW JERSEY REPORTING REQUIREMENTSREQUIREMENTS

Releases to Water or LandReleases to Water or Land::• The New Jersey Spill Act and corresponding regulations The New Jersey Spill Act and corresponding regulations

require notification by any person or persons responsible require notification by any person or persons responsible for a discharge who knows or reasonably should know of a for a discharge who knows or reasonably should know of a ""reportable dischargereportable discharge" from a facility. N.J.S.A. §§ 58:10-" from a facility. N.J.S.A. §§ 58:10-23.11 et seq.; N.J.A.C. Part 7:1E.23.11 et seq.; N.J.A.C. Part 7:1E.

• The NJDEP must The NJDEP must be immediately notified be immediately notified of a discharge. of a discharge. Notification received more than Notification received more than 15 minutes15 minutes after the person after the person responsible for a discharge knew, or reasonably should responsible for a discharge knew, or reasonably should have known, of the discharge is presumptively not have known, of the discharge is presumptively not immediate. immediate.

• N.J.A.C. § 7:1E-5.3.N.J.A.C. § 7:1E-5.3.

Page 12: Margaret Bazany, The Dow Chemical Company

Historic ReleasesHistoric Releases RQs Virtually Impossible to Determine, RQs Virtually Impossible to Determine,

Especially Given the 24 Hour Requirement.Especially Given the 24 Hour Requirement.

Groundwater Contamination and the Lessons Groundwater Contamination and the Lessons of Westinghouse.of Westinghouse.

New Jersey’s Historic Release Provisions.New Jersey’s Historic Release Provisions.

Page 13: Margaret Bazany, The Dow Chemical Company

Rule of ThumbRule of Thumb If in doubt, REPORTIf in doubt, REPORT

Easier to explain being Easier to explain being over cautiousover cautious

Many times the matter Many times the matter will be resolved without will be resolved without agency action or agency action or enforcementenforcement

Rules are complex, and Rules are complex, and consequences if you are consequences if you are wrong can be significantwrong can be significant

Page 14: Margaret Bazany, The Dow Chemical Company

Hypothetical Tank SpillHypothetical Tank Spill In Pennsylvania, a large tank is located in In Pennsylvania, a large tank is located in

concrete containment dike.concrete containment dike. The tank has recently been drained through a The tank has recently been drained through a

valve located at the bottom.valve located at the bottom. The operator is preparing to refill the tank.The operator is preparing to refill the tank. The operator properly closes drain valve of the The operator properly closes drain valve of the

tank before beginning the filling operation, but tank before beginning the filling operation, but does not realize that the valve to a smaller does not realize that the valve to a smaller sampling port was also open.sampling port was also open.

Page 15: Margaret Bazany, The Dow Chemical Company

Into the Environment?Into the Environment? The material being pumped into the tank is a The material being pumped into the tank is a

CCP which is viscous and not volatile; it has CCP which is viscous and not volatile; it has an RQ of 1000 pounds.an RQ of 1000 pounds. The operator begins pumping at 1:00, and the The operator begins pumping at 1:00, and the

material begins to leak almost immediately.material begins to leak almost immediately. The operator does not see the leak as it is on the The operator does not see the leak as it is on the

far side of the tank.far side of the tank. The operator identifies the leak at 1:30; he The operator identifies the leak at 1:30; he

estimates 2000 pounds have leaked into the dike.estimates 2000 pounds have leaked into the dike.

Page 16: Margaret Bazany, The Dow Chemical Company

Into the Environment?Into the Environment? The material being pumped into the tank is a The material being pumped into the tank is a

CCP which is volatile; it has an RQ of 1000 CCP which is volatile; it has an RQ of 1000 pounds.pounds. Pumping begins at 1:00, and the material begins to Pumping begins at 1:00, and the material begins to

leak almost immediately.leak almost immediately. The leak is identified at 1:30; about 2000 pounds The leak is identified at 1:30; about 2000 pounds

have leaked into the dike.have leaked into the dike. Based on volatility, temperature, volume, surface Based on volatility, temperature, volume, surface

area, etc., the operator estimates 800 pounds have area, etc., the operator estimates 800 pounds have volatilized.volatilized.

Page 17: Margaret Bazany, The Dow Chemical Company

Hazardous Waste SpillHazardous Waste Spill The material in the tank is a listed hazardous The material in the tank is a listed hazardous

waste which is volatile with an RQ of 100 lbs.waste which is volatile with an RQ of 100 lbs. Pumping begins at 1:00, and the material begins to Pumping begins at 1:00, and the material begins to

leak almost immediately.leak almost immediately. The leak is identified at 1:10; about 200 pounds The leak is identified at 1:10; about 200 pounds

have leaked into the dike.have leaked into the dike. Tank system rules apply, and if the material is Tank system rules apply, and if the material is

volatile, a minimal (one pint) release to the air will volatile, a minimal (one pint) release to the air will trigger reporting.trigger reporting.

Page 18: Margaret Bazany, The Dow Chemical Company

Product or WasteProduct or Waste The material in the tank is a CCP that is The material in the tank is a CCP that is

“ignitable” with no stated RQ.“ignitable” with no stated RQ. Characteristic haz wastes have a 100 lb RQ.Characteristic haz wastes have a 100 lb RQ. RCRA guidance says that spilled materials that RCRA guidance says that spilled materials that

cannot be recovered for reuse without reclamation cannot be recovered for reuse without reclamation are haz waste.are haz waste.

CCP with no RQ becomes a characteristic haz CCP with no RQ becomes a characteristic haz waste with a 100 lb RQ upon being spilled, except waste with a 100 lb RQ upon being spilled, except if it can be recovered and reused.if it can be recovered and reused.

Page 19: Margaret Bazany, The Dow Chemical Company

Hypothetical Reactor ReleaseHypothetical Reactor Release A batch reactor is charged with raw materials, A batch reactor is charged with raw materials,

including a raw material with a 10 lb RQ and including a raw material with a 10 lb RQ and one with a 1000 lb RQ. one with a 1000 lb RQ.

Assume that remaining raw materials have no RQ Assume that remaining raw materials have no RQ values (e.g., water)values (e.g., water)

Assume that the product is essentially inert and has Assume that the product is essentially inert and has no RQno RQ

During the reaction, a rupture disk blows, releasing During the reaction, a rupture disk blows, releasing vapor phase materialsvapor phase materials

Page 20: Margaret Bazany, The Dow Chemical Company

Into the Environment?Into the Environment?

The rupture disk leads into a blowdown The rupture disk leads into a blowdown tank, designed to capture liquidstank, designed to capture liquids

Vapors are directed from the blowdown Vapors are directed from the blowdown tank to a control device (e.g. a flare)tank to a control device (e.g. a flare)

Permit contemplates the operation of this Permit contemplates the operation of this equipment, and provides limits on the equipment, and provides limits on the emissions from the equipmentemissions from the equipment

Page 21: Margaret Bazany, The Dow Chemical Company

Rupture Disk ReleaseRupture Disk Release If the vapors reach the air without control, this If the vapors reach the air without control, this

will be a release to the environment.will be a release to the environment.

What if operators cannot estimate how much of What if operators cannot estimate how much of each RQ chemical was in the release?each RQ chemical was in the release?

What if operators know the percentage of each What if operators know the percentage of each chemical in the starting mixture?chemical in the starting mixture?

What if the reaction is 90% complete?What if the reaction is 90% complete?

Page 22: Margaret Bazany, The Dow Chemical Company

Spill to Surface WaterSpill to Surface Water Release of liquid hazardous material directly Release of liquid hazardous material directly

into surface water streaminto surface water stream What if no NPDES parameters or priority What if no NPDES parameters or priority

pollutants, but there is a visible sheen?pollutants, but there is a visible sheen? What if release went into wastewater treatment What if release went into wastewater treatment

system, was treated and some of the substance system, was treated and some of the substance released?released?

What if release went into stormwater swale and What if release went into stormwater swale and was captured before it discharged to surface water?was captured before it discharged to surface water?

Page 23: Margaret Bazany, The Dow Chemical Company

Discovery After the FactDiscovery After the Fact What happens if operators calculate that What happens if operators calculate that

release was below RQ at time of incident, but release was below RQ at time of incident, but later discover their calculation is in error?later discover their calculation is in error?

Duty to report when no long “immediate?”Duty to report when no long “immediate?” Is the error otherwise reportable/discoverable?Is the error otherwise reportable/discoverable? What if the discovery was during a routine What if the discovery was during a routine

corporate audit?corporate audit?

Page 24: Margaret Bazany, The Dow Chemical Company

Practical ConsiderationsPractical Considerations Plan ahead – decision-making on the fly is Plan ahead – decision-making on the fly is

difficult and subject to errordifficult and subject to error Focus on time of discovery of releaseFocus on time of discovery of release What if you have no idea of the amount of the What if you have no idea of the amount of the

release?release? Plan to spend some time on the phone; an Plan to spend some time on the phone; an

NRC call is not quick.NRC call is not quick.