Summary of Environmental Law in the United States

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14 Environmental Emergencies

 

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14.1 Emergency Notification and Reporting Requirements

 

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The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), the Superfund Amendment and Reauthorization Act (SARA), the Resource Conservation and Recovery Act (RCRA), the Toxic Substances Control Act (TSCA), the Occupational Safety and Health Act (OSH Act), the Hazardous Materials Transportation Act (HMTA), the Clean Air Act (CAA), and the Clean Water Act (CWA) all include emergency preparation, reporting, and/or notification requirements. The following spills or events must be reported immediately to the National Response Center and, in some cases, to local or state emergency response personnel: (1) any release into the environment over certain reportable quantities of any "hazardous substance," 40 C.F.R. sec. 302.4; (2) any off-site release of an "extremely hazardous substance," 40 C.F.R. pt. 355, app. A (see also Section 13: Responding to Environmental Contamination); (3) any discharge of oil into a navigable water, shoreline, or coastal zone that causes a violation of any water quality standard or creates a film, sheen, or sludge, 33 U.S.C. sec. 1321; 40 C.F.R. pt. 110 (see also Section 9: Protection and Management of Water Resources); or (4) spills occurring during the transportation of any hazardous material or RCRA hazardous waste, 49 C.F.R. pt. 171 (HMTA); 40 C.F.R. pt. 263, subpt. C (RCRA) . See also Section 22.5: Transportation of Hazardous Materials. Under TSCA section 8(e), any person who manufactures, processes or distributes a "chemical substance or mixture" must immediately inform the appropriate EPA Region of any spill or contamination that seriously threatens human health or the environment. 15 U.S.C. sec. 2607(e); 43 Fed. Reg. 11,110 (1978) (statement of interpretation and enforcement policy). See also Section 11: Chemical Substances and Products. Employers must provide an oral report to the nearest Occupational Safety and Health Administration (OSHA) Area Director within 24 hours of any release of certain suspected carcinogens that could result in the exposure of any employee. A follow-up report must be filed within 15 calendar days of such release. 29 C.F.R. pt. 1910, subpt. Z. See also Section 24.4: Occupational Health and Safety. Owners and operators of underground storage tanks are required to report any release, sudden inventory loss, or spill over certain amounts. 40 C.F.R. sec. 280.53. See also Section 24.7: Underground Storage Tanks. Many state and local laws also impose emergency spill reporting requirements that can vary significantly from federal requirements.

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14.2 Emergency Response and Preparedness

 

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14.2.1 Building Institutional Response Capacity

 

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The National Response Unit

The National Response Unit is the national communications center for activities related to response actions. It is located at the U.S. Coast Guard Headquarters. The Unit receives notices of spills, discharges, or releases and relays the information to the appropriate federal, state, and/or local response teams. 40 C.F.R. pt. 300.

National Response Teams

According to the National Contingency Plan (NCP), national planning and coordination for response to oil discharges and releases of hazardous substances are the responsibility of a National Response Team (NRT), consisting of representatives from nacec.all relevant federal agencies. Exec. Order No. 12580, 52 Fed. Reg. 2923 (1987) (reprinted in 42 U.S.C. 9615 note). The NRT is responsible for maintaining the nation's ability to respond to major oil discharges and releases of hazardous substances, for monitoring and reviewing regional responses, and for coordinating regional, state, local and private response actions. A Regional Response Team is responsible for regional planning and preparation for responses. An On-Scene Coordinator (OSC) or Remedial Project Manager (RPM) supervises federally funded response efforts at particular sites. 33 U.S.C. 1321(d). Both the OSC and RPM are designated in advance by the appropriate agency (EPA, the Coast Guard, or the Department of Defense, depending on where the site is located). The OSC is also responsible for developing federal local contingency plans. 40 C.F.R. sec. 300.120(d).

State and Local Emergency Planning Agencies

The Emergency Planning and Community Right-to-Know Act (EPCRA) created State Emergency Response Commissions (SERC's) and Local Emergency Planning Committees (LEPC's). 42 U.S.C. sec. 11001. See also 40 C.F.R. sec. 109.3. The SERC's establish procedures for processing information requests, designating emergency planning districts to facilitate emergency planning, and appointing the LEPC's. The LEPC's are primarily responsible for developing and receiving public comment on the local emergency response plan.

Government Agencies for Investigating Releases

The EPA, as well as state and local agencies, have broad powers to investigate and respond to chemical spills, accidental releases, or other emergencies under a number of federal statutes. See Section 13: Responding to Environmental Contamination. In addition, a few other federal agencies have specific investigatory powers for accidents. The 1990 CAA Amendments created the Chemical Safety and Hazard Investigation Board (CSHIB) to investigate accidental releases of hazardous substances into the air. 42 U.S.C. sec. 7412(r)(6). The National Transportation Safety Board has primary authority to investigate accidents involving the transportation of chemicals or hazardous substances, including, for example, certain marine oil spills. 49 U.S.C. secs. 1101, 1111-1118, 1131-1135, 1151-1155. The Occupational Safety and Health Administration (OSHA) has primary authority to investigate workplace accidents or releases harming employees. 29 U.S.C. sec. 657.

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14.2.2 Community Right-to-Know Information

 

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Notification of Hazards

Facilities with certain quantities of "extremely hazardous substances" on the site must notify local emergency planning officials and designate a facility representative to participate in the local emergency planning process as an emergency response coordinator. 40 C.F.R. sec. 355.30(c). Extremely hazardous substances are listed at 40 C.F.R. pt. 355, app. A.

Material Safety Data Sheets

Facilities having greater than 10,000 pounds of any "hazardous chemical" must submit to certain state and local emergency response officials either copies of their material safety data sheets (MSDS) for each chemical or a list of all MSDS's that the facility is required to maintain under the OSH Act. 40 C.F.R. sec. 370.21. See also Section 24.4: Occupational Health and Safety.

Emergency and Hazardous Chemical Inventory Forms

To inform local and state emergency response authorities, as well as the public, of chemical hazards in their area, certain industrial facilities must submit an annual emergency and hazardous chemical inventory form. The forms provide estimates of the maximum amount of hazardous chemicals present at any one time, the average daily amount of such chemicals during the year, and the general location of the hazardous chemicals. This requirement covers over 50,000 "hazardous chemicals" that are considered to pose physical or health hazards under OSHA's Hazard Communication Standard. 29 C.F.R. sec. 1910.1200. Under "Tier 1" reporting, this information must be aggregated and provided according to specific categories of physical and health hazards identified by OSHA. Upon request by specified state and local emergency response authorities, the facility may have to provide "Tier II" information, which is essentially Tier I information organized according to each individual hazardous chemical. See Section 24.4: Occupational Health and Safety; and Section 5.2: Industry Reporting Requirements.

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14.2.3 Contingency Plans

 

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National Contingency Plan

The National Oil and Hazardous Substances Contingency Plan (NCP) establishes the procedures and standards for responding to releases of hazardous substances under CERCLA, discharges of oil under the Oil Pollution Act of 1990, and discharges of oil and hazardous substances under the Clean Water Act. The NCP: identifies acceptable methods for discovering, investigating, evaluating, and remediating contamination; describes the appropriate roles and responsibilities of federal, state, and local response authorities; sets reporting requirements for federally-owned facilities; sets criteria for prioritizing federal responses; and, sets standards for testing alternative technologies for responding to releases of hazardous substances. Under the NCP, EPA also requires regional and local contingency plans, both of which are designed to ensure effective and efficient response. See 40 C.F.R. pt. 300; see also Section 13: Responding to Environmental Contamination.

Specific Spill Contingency Plans

Several statutes require the development, maintenance, and upgrading of contingency plans. Under the CWA, any owner or operator of any facility that has the potential to discharge oil into navigable waters in harmful quantities must maintain a Spill Prevention, Control and Countermeasure Plan at the facility. 40 C.F.R. pt. 112. Facilities that treat, store, or dispose of hazardous waste under RCRA must develop and maintain a similar plan. 40 C.F.R. pt. 264, subpt. D. Each nuclear power plant licensee must also submit acceptable radiological emergency response plans, preferably prepared with state and local governmental participation. 10 C.F.R. secs. 50.47, 50.54(s), app. E. Under the 1990 CAA Amendments, EPA also requires stationary sources that have more than a threshold amount of certain hazardous substances on their property to prepare and implement a risk management plan to detect, minimize, and respond to accidental releases of the substances. 42 U.S.C. sec. 7412(r).

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2003