Reporting Spills in Gallatin County

Who Is Required to Notify?

Under CERCLA, who is responsible for reporting releases and when must the report be made?

Section 103 of CERCLA requires the “person in charge” of a facility or vessel, as soon as he or she has knowledge of a release of a hazardous substance in an amount equal to or greater than an RQ, to report the release immediately to the NRC. The NRC number is 1-800-424-8802, or (202) 267-2675 in the Washington, DC area.

How does one determine who is the person in charge?

Determining who is the person in charge depends on a number of variables, including the specific operation involved, the management structure, and other case-specific considerations. EPA believes that it is unnecessary and impractical for the government to determine the person in charge at all entities affected by CERCLA. The management of the affected organizations should designate the specific individual(s) or position(s) responsible for reporting releases (50 FR 13459, April 4, 1985).

Under EPCRA, who is responsible for reporting releases and when must the report be made?

Under section 304 of EPCRA, the “owner or operator” of a facility is required to report immediately to the appropriate State emergency response commissions (SERCs) and local emergency planning committees (LEPCs) (via Gallatin County Emergency Management 406-582-2395) when there is a release of a CERCLA hazardous substance or of an extremely hazardous substance (EHS) at or above the RQ.

Who is the owner or operator?

EPCRA section 304 allows either the owner or operator of a facility to give notice after a release. Owners and operators may make their own arrangements concerning which party is to provide release notification; however, under EPCRA section 304 both the owner and operator are responsible if no notification is provided (52 FR 13383, April 22, 1987).

What facilities or vessels are covered under CERCLA release reporting requirements?

CERCLA section 101(9) defines facility broadly to include any site or area where a hazardous substance is located, but the definition specifically excludes consumer products in consumer use. Vessel is defined in CERCLA section 101(28) as any watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water. See What Releases are Excluded from CERCLA Reporting? for further discussion of what facilities or vessels are NOT covered under release reporting requirements.

What facilities are covered under EPCRA release reporting requirements?

EPCRA section 329(4) defines facility to include stationary structures on a single site, or on contiguous or adjacent sites owned or operated by the same person. For purposes of release reporting under EPCRA section 304, motor vehicles, rolling stock, and aircraft are included in the definition of facility. However, the only covered facilities are those that produce, use, or store a “hazardous chemical.” See What Releases are Excluded from CERCLA Reporting? for further discussion of what facilities are NOT covered under release reporting requirements.

What Information Must Be Provided?

What information does the NRC request from individuals reporting a release?

When reporting a release, the person making the report should provide as much of the following information as possible:

  • Name, address, and telephone number of the person reporting and the responsible party;
  • Specific location of the incident;
  • Date and time the incident occurred or was discovered;
  • Name of the chemical/material released;
  • Source and cause of the release;
  • Total quantity discharged;
  • Medium into which the substance was discharged;
  • Amount spilled into water;
  • Weather conditions;
  • Name of the carrier or vessel, the railcar/truck number, or other identifying information;
  • Number and type of injuries or fatalities;
  • Whether an evacuation has occurred;
  • Estimation of the dollar amount of property damage;
  • Description of current and future cleanup actions; and
  • Other agencies notified or about to be notified.

What information must be provided when reporting releases under EPCRA?

EPCRA section 304(b)(1) directs that notice include the following information, if known, and if inclusion will not cause a delay in responding to the emergency:

  • Chemical name or identity of the released substance(s);
  • Whether the substance is an EHS;
  • Estimate of the quantity of the substance released;
  • Time and duration of the release;
  • Media into which the release occurred;
  • Associated health risks and medical attention necessary for exposed individuals;
  • Precautions to take due to the release; and
  • Name and telephone number of contact person for further information.

As soon as practicable after this initial notice, EPCRA section 304(c) requires the facility owner or operator to submit written follow-up notices providing and updating the initial notice’s information and including additional information regarding response actions taken, any known or anticipated acute or chronic health risks associated with the release, and, where appropriate, advice on medical attention for exposed individuals.

What information must be provided when reporting a continuous release?

A continuous release is a release that occurs without interruption or abatement or that is routine, anticipated, and intermittent and incidental to normal operations or treatment processes. There are four steps in the continuous release notification process:

  1. Initial telephone notification (to the NRC, SERC, and LEPC);
  2. Initial written notifications to the appropriate EPA Regional Office (within 30 days of the initial telephone notification);
  3. Follow-up written reports; and
  4. Change notifications.

Details on the information required are found in 40 CFR 302.8. A general description of the information required follows. For more detailed information concerning the continuous release reporting requirements, see U.S. EPA, Reporting Requirements for Continuous Releases of Hazardous Substances: A Guide for Facilities on Compliance, Office of Superfund Remediation Technology Innovation, OSWER Directive 9360.7-01, October 1990. See How are Continuous Releases Reported? to provide more information on continuous releases.

The person in charge is required to provide the following information in the initial telephone notification:

  • Statement that this is an initial telephone notification of a continuous release;
  • Name and location of the facility or vessel responsible for the release; and
  • Name and identity of each hazardous substance released.

The initial written notification must include the following types of information:

  • General information on the facility or vessel, and the area surrounding the facility or vessel; and
  • Source information, including the identity of each release source, the names and quantities of the hazardous substances released from each source, the basis for stating that the release qualifies as continuous and stable in quantity and rate, the environmental medium affected by the release, the normal range of the release from the source, and the frequency of the release from each source.

The information required in the written follow-up report is identical to that required in the initial written notification, but it is based on release data gathered over the year (i.e., during the period since the submission of the initial written report). If there are any changes in a continuous release, the EPA Regional Office must be notified. If there is a change in the source or composition of a continuous release, the release is considered a “new” release.

Who Must Be Notified?

Who must be notified of a release under CERCLA?

One call to the NRC fulfills the requirement to report releases of hazardous substances under CERCLA and several other regulatory programs, including those under CWA section 311, RCRA, and the U.S. Department of Transportation’s Hazardous Materials Transportation Act. If direct reporting to the NRC is not practicable, reports may be made to the EPA predesignated On-Scene Coordinator (OSC) for the geographic area where the release occurred. All such reports must be relayed promptly to the NRC. If it is not possible to notify the NRC or the OSC immediately, reports may be made immediately to the nearest Coast Guard unit, provided that the person in charge notifies the NRC as soon as possible (40 CFR Part 300 and 33 CFR Part 153).

Who must be notified of a release under EPCRA?

The notice required by section 304 of EPCRA is to be given by the owner or operator of a facility (by telephone, radio, or in person) immediately after the release of a CERCLA hazardous substance or of an EHS at or above the RQ. Notice is to be given to both the community emergency coordinator for each LEPC for any area likely to be affected by the release and to the SERC of any State likely to be affected by the release. Notice requirements for transportation-related releases are satisfied by dialing 911 or, in the absence of a 911 number, calling the operator and providing the release information.

When is a release reportable to State and local response authorities?

EPCRA State and local emergency notification requirements apply to the release of a CERCLA hazardous substance or an EHS in an amount equal to or greater than their RQs. EPCRA exempts from State and local reporting releases that result in exposure to persons solely within the site or sites on which a facility is located. See What Releases are Excluded from CERCLA Reporting? for more information on additional release exclusions and release reporting requirements.

Are reports made to State and local government agencies relayed to the NRC and, if so, does the original call satisfy reporting requirements under CERCLA section 103?

Although reports are sometimes passed on to the NRC by State and local government agencies, a person responsible for reporting under CERCLA relies on such State or local “relay” of information at his or her own risk. This relay of information does not automatically satisfy CERCLA reporting requirements and state or local agencies cannot be responsible for an individual’s compliance with a Federal statute. CERCLA section 103(a) specifically requires the person in charge of a vessel or facility to report immediately to the NRC a release of a hazardous substance whose amount equals or exceeds the assigned RQ. If the appropriate information is not received within an appropriate timeframe at the NRC, the person responsible for CERCLA reporting still may be found not to have complied with the section 103 notification requirements.

Would the NRC need to be notified of a release of a hazardous substance in an amount equal to or exceeding an RQ at a Superfund site during cleanup activities?

Yes. Unless otherwise exempted from CERCLA section 103 notification requirements, a release of a hazardous substance that equals or exceeds its RQ, including a release from a Superfund site (including a Federal facility) that occurs during cleanup activities, must be reported to the NRC. If, however, a release of a hazardous substance from a Superfund site is “continuous” (occurs without interruption, or is routine, anticipated, and incidental to normal operations), the release may be reportable under the reduced reporting provisions of the continuous release reporting regulation (see 40 CFR 302.8). See question below for information on reporting requirements for Federal facilities.

Would the NRC need to be notified of a release of a hazardous substance in an amount equal to or exceeding an RQ at a Federal facility?

Yes. Under CERCLA section 120, all requirements of CERCLA apply to the Federal government in the same manner and to the same extent that they apply to any non-governmental entity. Therefore, even if the Superfund site is a Federal facility, the section 103 notification requirements apply.

What Substances Are Covered?

Hazardous Substance Definitions

CERCLA section 103 release reporting requirements apply to “hazardous substances.” How are CERCLA hazardous substances defined?

CERCLA section 101(14), as amended, defines “hazardous substance” by referencing other environmental statutes, including:

  • CWA sections 311 and 307(a);
  • CAA section 112;
  • RCRA section 3001; and
  • TSCA section 7.

CERCLA section 102(a) also gives EPA authority to designate additional hazardous substances not listed under the statutory provisions cited above. There are currently about 800 CERCLA hazardous substances. In addition, there are approximately 1,500 known radionuclides, approximately 760 of which are listed individually in 40 CFR 302.4, Table 302.4, Appendix B.

EPCRA section 304 release reporting requirements apply to CERCLA hazardous substances and EPCRA extremely hazardous substances (EHSs). What are EHSs?

The EHS list was first compiled by EPA, and subsequently incorporated into EPCRA, to identify chemicals that could cause serious irreversible health effects from accidental releases. EHSs are listed in 40 CFR Part 355.

How are EHSs related to CERCLA hazardous substances?

There are currently about 360 EHSs defined under EPCRA section 302; over a third of them are also CERCLA hazardous substances. Aside from this overlap of listed substances, CERCLA and EPCRA also have closely related notification requirements when releases of CERCLA hazardous substances occur.

What are radionuclides and what reporting requirements apply to their release?

A radionuclide is an atom with an unstable nucleus. The atom releases energy by a process of decay called radioactivity. There are approximately 1,500 known radionuclides.

All radionuclides are hazardous substances because they are designated generically as hazardous air pollutants by CAA section 112 and CERCLA section 101(14)(E) defines the term “hazardous substance” to include CAA hazardous air pollutants. Even though the source of their listing is the CAA, releases of radionuclides to all media not just to air are covered by CERCLA’s reporting requirements.

On May 24, 1989, EPA issued a final regulation adjusting the statutory RQ for radionuclides. The adjusted RQs for radionuclides are in units of curies (Ci), which provide a measure of the amount of radioactivity emitted by a radionuclide. EPA established the adjusted radionuclide RQs in units of curies rather than pounds (like the RQs for other hazardous substances) because curies better reflect the intrinsic hazard posed by radionuclides and because the unit is more commonly used by people who handle radionuclides. The final radionuclide RQ adjustment rulemaking establishes seven RQ categories: 0.001, 0.01, 0.1, 1, 10, 100, and 1,000 Ci. A total of approximately 760 radionuclides are listed individually and assigned to one of these RQ categories. All other radionuclides not listed individually are assigned an RQ of 1 Ci.

What are the reporting requirements for discharges of oil?

If a discharge of oil reaches waters of the United States, it is reportable to the NRC under 40 CFR Part 110, which was established under the authority of the CWA. Discharges of oil must be reported if they “(c)ause a film or sheen upon or discoloration of the surface of the water or adjoining shorelines or cause a sludge or emulsion to be deposited beneath the surface of the water or upon adjoining shorelines.” (40 CFR 110.3(b))

Would disposal of a hazardous substance into a RCRA Subtitle C permitted facility or interim status facility be reportable?

No. The disposal of hazardous substances into a disposal facility in accordance with EPA regulations is not subject to CERCLA notification provisions. Where the disposal of wastes into permitted or interim status facilities is properly documented through the RCRA manifest system and RCRA regulations are followed, notification under CERCLA does not provide a significant additional benefit, if the facility is in compliance with all applicable regulations and permit conditions. For example, if a waste generator or building owner or operator properly disposes of lamps containing one pound or more of mercury into a RCRA-permitted facility during a 24-hour period, the generator or owner or operator would not be required to report the release under CERCLA. Where the person in charge knows that the facility is not in substantial compliance, that person must report the disposal of an RQ or more of a hazardous substance to the NRC. Of course, spills and accidents occurring during disposal that result in the release of an RQ or more of a hazardous substance must also be reported to the NRC.

Hazardous Substances Lists

What is the relationship between the hazardous substance lists under the CWA and under CERCLA?

All CWA hazardous substances are CERCLA hazardous substances (only some CERCLA hazardous substances are CWA hazardous substances). Table 117.3 in 40 CFR 117.3, which is entitled “Reportable Quantities of Hazardous Substances,” lists substances that were designated as hazardous under section 311(b)(4) of the CWA. Table 117.3 provides the CWA RQs for the substances. Substances designated under this section of the CWA are automatically CERCLA hazardous substances because CERCLA section 101(14) defines “hazardous substance” chiefly by reference to lists under other statutes, including CWA section 311(b)(4) (see CERCLA section 101(14)(A)). Therefore, all of the hazardous substances in Table 117.3 are also in 40 CFR 302.4, Table 302.4, the list of CERCLA hazardous substances. Table 302.4 identifies by the digits “1” and “2” in the statutory code column those substances listed under sections 311(b)(4) and 307(a) of the CWA, respectively.

What is the relationship between CERCLA hazardous substances and the U.S. Department of Transportation’s (DOT) Hazardous Materials Regulations?

CERCLA section 306(a), as amended, requires the DOT to list and regulate as hazardous materials all CERCLA hazardous substances. Thus, all CERCLA hazardous substances are covered by the DOT’s Hazardous Materials Regulations. The DOT Hazardous Materials Regulations (see 49 CFR Parts 171 and 172) require that when these materials are shipped in quantities equal to or greater than their RQs, and are present in a single package, above certain concentration thresholds (49 CR 171.8), they must be identified as such on shipping papers and by package markings. See Is there a concentration cutoff…? for more information on concentration cutoffs for RQs.

Can releases of wastes that are not individually listed as CERCLA hazardous substances still be subject to CERCLA reporting requirements?

Yes. CERCLA reporting requirements apply not only to all of the substances individually listed in 40 CFR 302.4, but also to wastes or waste streams exhibiting the characteristics of ignitability, corrosivity, reactivity, or toxicity under RCRA. The release of a non-designated substance exhibiting any of these four RCRA characteristics is a release of a hazardous substance if the substance is a waste prior to release or becomes a waste after release. Under RCRA regulations, a substance becomes a waste after release if it is not cleaned up or if it is cleaned up only for eventual disposal.

Wastes or waste streams exhibiting the characteristics of ignitability, reactivity, or corrosivity have RQs of 100 pounds. The RQs of wastes or waste streams that exhibit the characteristic of toxicity have the RQs of the contaminant on which the toxicity characteristics are based.

What tests can be used to determine whether a waste exhibits the RCRA characteristic of toxicity?

In 1990, EPA replaced the extraction procedure test for determining whether wastes exhibit the toxicity characteristic with the toxicity characteristic leaching procedure (TCLP) (55 FR 11876, March 29, 1990). Currently, a waste is considered toxic if an extract obtained from a sample of the waste using the TCLP contains any of 25 organic constituents listed in the regulation in concentrations at or above specified levels. Wastes that exhibit the RCRA toxicity characteristic are automatically RCRA hazardous wastes and, therefore, CERCLA hazardous substances.

The CERCLA list contains generic classes of compounds (e.g., chlorinated benzenes, phthalate esters, etc.). If a compound is not individually listed but falls under one of these generic listings, how do CERCLA reporting requirements apply to it?

To date, the Agency has not established any RQs for broad generic classes of compounds that are CERCLA hazardous substances. Therefore, releases of substances that are not individually listed, but fall within these categories, currently do not have to be reported under section 103. Releases of these substances that are excluded from reporting requirements, however, would remain subject to other CERCLA provisions, including liability for cleanup costs, and natural resource damages.

If a company has had its petition to delist a specific RCRA hazardous waste granted by an EPA-approved State RCRA program, and that company releases this waste in excess of its RQ, is it required to notify the NRC?

Under RCRA regulations, a person may petition to exclude a waste at a particular generating facility from the list of hazardous wastes. The petitioner must demonstrate that the waste produced by that facility does not meet any of the criteria under which the waste type was listed or characterized as hazardous. If granted, the exclusion applies only to the waste generated at the individual facility covered by the petitioner’s demonstration. If the waste “has been shown not to contain constituents or exhibit characteristics that are considered hazardous under RCRA,” and does not contain any other listed CERCLA hazardous substance, the exempted waste is not subject to CERCLA notification requirements.

How does EPA choose the chemical name(s) to list for each substance on the List of Hazardous Substances at Table 302.4 of 40 CFR 302.4?

A single chemical may often be known by several different names. To avoid confusion, the Agency has limited the chemical names listed in 40 CFR 302.4, Table 302.4 to the name(s) used to identify each substance under the environmental statutes and implementing regulations incorporated in the definition of hazardous substance (see CERCLA section 101(14)). If a substance has more than one chemical name listed under these other statutes or regulations, each chemical name will appear as a separate entry (with the same CAS Registry Number) in Table 302.4. (See 48 FR 23554, May 25, 1983 and 50 FR 13460, April 4, 1985).

In general, no entry is made in the “Regulatory Synonym” column of 40 CFR 302.4, Table 302.4 for a substance if only one chemical name is used to identify that substance under the environmental statutes and implementing regulations referred to in CERCLA section 101(14). If, however, a substance has more than one chemical name listed under these other statutes or regulations, then: (1) each chemical name will appear as a separate entry in Table 302.4; and (2) each entry will include the other chemical name(s) (appearing as separate entries in Table 302.4) for that substance in the “Regulatory Synonym” column.

What is the RQ for a PCB Aroclor specifically listed in Table 302.4?

Aroclors are listed in two different ways in 40 CFR 302.4, Table 302.4. First, seven Aroclors (Aroclor 1016, Aroclor 1221, Aroclor 1232, Aroclor 1242, Aroclor 1248, Aroclor 1254, and Aroclor 1260) are specifically listed alphabetically (under “A”) in Table 302.4. The one- pound RQs for each of these seven Aroclors appear next to this alphabetical listing. Second, these same seven Aroclors are listed beneath the listing of the category “POLYCHLORINATED BIPHENYLS (PCBs)” in Table 302.4. The one-pound RQs for the seven Aroclors, however, have not been repeated in this second listing. An RQ of one pound has been established, and is listed in Table 302.4, for the category “POLYCHLORINATED BIPHENYLS (PCBs).”

Are the CWA broad generic categories for which no RQ has been established subject to other provisions of CERCLA?

Yes. Releases of compounds within these categories, although not reportable under CERCLA section 103 (unless the compound is listed separately in 40 CFR 302.4, Table 302.4), would remain subject to response (section 104), abatement (section 106), and liability (section 107) provisions under CERCLA.

Petroleum Exclusion

What is the CERCLA petroleum exclusion?

The term “hazardous substance” is defined in CERCLA section 101(14) to include substances listed under four other environmental statutes (as well as those designated under CERCLA section 102(a)). The definition excludes “petroleum, including crude oil or any fraction thereof,” unless specifically listed or designated under CERCLA.

What substances are specifically excluded from CERCLA regulation by the petroleum exclusion?

EPA interprets CERCLA section 101(14) to exclude crude oil and fractions of crude oil including the hazardous substances, such as benzene, that are indigenous in those petroleum substances from the definition of hazardous substance. Under this interpretation, petroleum includes hazardous substances that are normally mixed with or added to crude oil or crude oil fractions during the refining process. This includes indigenous hazardous substances, the levels of which are increased as a normal part of the refining process. However, hazardous substances that are added to petroleum or that increase in concentration as a result of contamination of the petroleum during use are not considered part of the petroleum, and are therefore regulated under CERCLA. For example, releases of oils that have had hazardous substances added to them subsequent to the petroleum refining process are not excluded from CERCLA regulation. In addition, some oils are regulated under CERCLA because they are specifically listed. For example, 40 CFR 302.4, Table 302.4 specifically lists a number of waste oils (e.g., F010, and K048 through K052) and their RQs. If these waste oils are released in quantities equal to or greater than their RQs, the release must be reported. The definition of hazardous substance also excludes natural gas, natural gas liquids, liquefied natural gas, and synthetic gas usable for fuel.

Does blended (oxygenated) gasoline fall within the scope of the CERCLA petroleum exclusion?

Historically, the Agency has interpreted the CERCLA section 101(14) petroleum exclusion to cover crude oil and the crude oil constituents that are indigenous to the petroleum (e.g., xylene), or that are normally mixed with or added to crude oil or crude oil fractions during the refining process (e.g., tetraethyl lead). On August 12, 1983, EPA’s Office of General Counsel (OGC) issued a memorandum indicating that gasoline blended during the refining process is within the scope of the petroleum exclusion. In particular, the 1983 OGC memo stated that “[b]ecause virtually all of the gasoline which is sold as motor transportation fuel is blended gasoline rather than raw gasoline, a reasonable interpretation of the petroleum exemption is that it applies to the blended gasoline product as well as raw gasoline.” Under this interpretation, oxygenated gasoline, which may involve the blending of a CERCLA hazardous substance into gasoline, whether the blending takes place at a refinery or a terminal, would fall within the petroleum exclusion. Therefore, the blended gasoline would not be a hazardous substance and would not be subject to CERCLA reporting, response, or liability requirements.

Are mineral spirits considered petroleum derivatives and therefore excluded from the CERCLA definition of hazardous substance?

In most cases, yes. CERCLA section 101(14) specifically excludes petroleum from the definition of hazardous substance, consequently petroleum releases are not subject to CERCLA reporting and liability provisions. As mentioned in What is the CERCLA petroleum exclusion?, the petroleum exclusion includes “crude oil or any fraction” of petroleum unless the fraction is specifically listed or designated under the statute.

Mineral spirits, also known as Stoddard solvent, naphtha, or white spirits, are usually derived from refined petroleum distillates from the light end of crude oil but could possibly be derived from coal. Mineral spirits that are distilled from petroleum are considered petroleum for the purpose of CERCLA section 101(14) and, therefore, are excluded from the definition of hazardous substance.

Mineral spirits often contain substances, such as toluene, that are CERCLA hazardous substances. If these substances are present naturally or are added to petroleum-derived mineral spirits in the normal refining process, then they would be excluded as petroleum. However, hazardous substances added to mineral spirits outside the refining process, or that increase in concentration solely as a result of contamination during use, are not part of the “petroleum” and, thus, are not excluded from CERCLA regulation. In such cases, EPA may respond to releases of the added substance, but not the mineral spirits.

There are circumstances in which mineral spirits could be regulated as a hazardous substance. For instance, coal-derived mineral spirits would not qualify for the petroleum exclusion and potentially could be regulated as a hazardous substance. In addition, the exclusion would not apply if the mineral spirits were “specifically listed or designated” under one of the statutory provisions cited in section 101(14) of CERCLA.

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