Unexpected or unpermitted releases are a common risk of industrial operations. When they occur at a facility or job site, some of the first questions you may think to ask as a plant owner or employee might include:
1. Do we have to report this?
3. To whom?
4. What must be in our report?
5. What happens if we don’t report?
As with most questions, the legal response of “It depends,” while technically correct, can be frustratingly obvious and inadequate in a crisis situation, where seconds really do count for both the physical impacts and regulatory implications.
If you find yourself in the unfortunate situation of having to deal with a release, the initial questions that must be asked are where the yeoman’s work of the analysis is done. Start with identifying:
1. Who am I?
Pay particular attention if the answer is “discharger,” “person in charge,” “owner,” etc.
2. Is it an emergency?
An emergency is “any condition which could reasonably be expected to endanger the health and safety of the public, cause significant adverse impact to the land, water or air environment, or cause severe damage to property.” LAC 33:I.905
3. What was released?
Gas, liquid, semi-solid, solid
4. How much was released?
Be precise. Over and underestimating can cause problems.
5. Where was it released?
Ground, water, groundwater, off-site, on-site
Release reporting requirements are not found in a single statute or regulation, rather, they are scattered throughout state and federal statutes and regulations, buried within a facilities permit, or even the product of a court order. By quickly answering the above questions, you will not only better understand the situation, but the answers will relate directly to the various legal triggers found in the matrix of release reporting obligations.
Each suspected release is unique, so it is important that each incident is given a real-time technical and legal review to determine whether, when and how it should be reported. To help distill the relevant release reporting obligations, we at Baldwin Haspel Burke & Mayer have developed a Release Reporting Quick Reference Guide. This guide allows practitioners to quickly locate the regulatory regime that might govern a suspected reportable release and helps them plug in the answers to the questions listed above.