Transcript Legal Ramifications of Roadside Spills

Incident Management
A Legal Viewpoint
Presented By:
Michael T. Scanlon, Esq.
Barnes & Thornburg
[email protected]
317-231-7387
Three Major Issues
• Spill Reporting
• Liability
• Pre-Planning
Spill Reporting
• Whenever a spill occurs, you need to
immediately determine if a reporting
requirement has been triggered.
• Reporting requirements are found in both
state and federal regulations.
Spill Reporting -Federal
• CERCLA
• Department of Transportation
• Clean Water Act
• Emergency Planning and Community Right
to Know
Spill Reporting - Federal (cont.)
• CERCLA
– A release from a facility equal to or in excess of
the reportable quantity must be reported to the
National Response Center.
– 40 CFR 302.6
– The list of Hazardous Substances and
Reportable Quantities is found at 40 CFR
302.4.
Spill Reporting - Federal (cont.)
• Department of Transportation
– At the earliest practicable moment, carriers that
transport hazardous materials must notify the
National Response Center if the following
incidents occur during the course of
transportation (includes loading, unloading, and
temporary storage):
• As a direct result of hazardous materials:
– A person is killed.
– A person receives injuries requiring hospitalization.
– Estimated carrier or other property damage exceeds
$50,000.
Spill Reporting - Federal (cont.)
• As a direct result of hazardous materials (cont.):
– An evacuation of the general public lasting an hour or
more occurs.
– One or more major transportation arteries or facilities are
shut down for one or more hours.
– The operational flight pattern or routine of an aircraft is
altered.
• Fire, breakage, spillage, or suspected radioactive
contamination occurs involving a shipment of
radioactive material.
Spill Reporting - Federal (cont.)
• Fire, breakage, spillage, or suspected contamination
occurs involving a shipment of infectious
substances.
– Notice may be given to the Director of the Centers for
Disease Control instead of the National Response Center.
• Release of a marine pollutant over 119 gallons for
liquids or 882 pounds for solids.
• The carrier believes the situation should be reported.
– Example: A continuing danger to life exists at the scene of
the incident.
– 49 CFR 171.15
Spill Reporting - Federal (cont.)
• Clean Water Act
– Discharges of oil from a facility into or on
navigable waters or adjoining shorelines in
sufficient quantities that may be harmful must
be reported to the National Response Center.
– 40 CFR 110.6
Spill Reporting - Federal (cont.)
• Clean Water Act (cont.)
– Discharges that may be harmful to public
health, welfare, or the environment include
those that:
• Violate applicable water quality standards; or
• Cause 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
Spill Reporting - Federal (cont.)
• Emergency Planning and Community Right
to Know Act (EPCRA)
– Requires notification of the state emergency
planning commission and the local emergency
planning committee if there is a spill of a
hazardous substance or extremely hazardous
substance equal to or in excess of the reportable
quantity.
– 40 CFR 355.40
Spill Reporting - Federal (cont.)
• EPCRA (cont.)
– Hazardous Substances and Reportable
Quantities
• 40 CFR 302.4
– Extremely Hazardous Substances and
Reportable Quantities
• 40 CFR 355 Appendices A and B
– What you should do:
• Obtain phone numbers for appropriate state and
local emergency response agencies.
Spill Reporting - States
• States have their own spill reporting
requirements.
• You should obtain the spill reporting
requirements for each state where you have
a facility as well as each state in which you
transport hazardous substances, petroleum,
or other materials that could be subject to
spill reporting requirements.
Spill Reporting - Indiana
• IDEM’s spill reporting requirements are at
327 IAC 2-6.1.
• The following spills at a facility must be
reported:
– Spills that damage the waters of the State that
cause death or acute injury or illness to humans
or animals.
– Spills over certain quantities if the facility has
been notified it is in a wellhead protection area.
Spill Reporting - Indiana (cont.)
• The following spills at a facility must be
reported (cont.):
– Spills that damage the waters of the State if
they are located near private drinking water
wells, outstanding state resource waters, and
other specific areas.
– Certain spills to surface water.
– Certain spills to soil beyond the facility
boundary.
– Certain spills to soil within the facility
boundary.
Spill Reporting - Indiana (cont.)
• The following spills at a facility must be
reported (cont.):
– Any spill for which a spill response has not
been performed.
• The following spills during transportation
must be reported:
– Spills that damage the waters of the State that
cause death or acute injury or illness to humans
or animals.
– Spills that damage surface waters.
Spill Reporting - Indiana (cont.)
• The following spills during transportation
must be reported (cont.):
– Spills to soil:
• Spills of hazardous substances or extremely
hazardous substances that exceed either 100 pounds
or the reportable quantity, whichever is less.
• Spills of petroleum in excess of 55 gallons.
• Spills of objectionable substances.
– Any spill for which a spill response has not
been performed.
Liability
• “Who is going to sue me and why?”
• Liability from two general directions:
– The government for the costs of the cleanup.
– The citizens who were dislocated, had property
damaged, or were otherwise harmed.
Liability (cont.)
• Liability at the Federal Level
• Oil Pollution Act
– Responsible parties are liable for:
• Removal costs incurred by the United States, a
State, or an Indian tribe.
• Removal costs incurred by any person if consistent
with the National Contingency Plan.
• Damages to natural resources, damages to real or
personal property, lost revenues, lost profits or
impairment of earning capacity, etc.
Liability (cont.)
• CERCLA
– CERCLA’s joint and several liable provisions
that apply to Superfund sites also apply to
spills.
– Liable parties include owners and operators of
facilities.
Liability (cont.)
• CERCLA
– What are you liable for?
• All costs of removal or remedial action incurred by
the United States Government or a State or an
Indian tribe not inconsistent with the National
Contingency Plan.
• Any other necessary costs of response incurred by
any other person consistent with the National
Contingency Plan.
Liability (cont.)
• CERCLA
– What are you liable for (cont.)?
• Damages for injury to, destruction of, or loss of
natural resources, including the reasonable costs of
assessing such injury, destruction, or loss resulting
from such a release.
• The costs of any health assessment or health effects
study carried out under CERCLA.
Liability (cont.)
• Indiana
• Reimbursement for Hazardous Materials
Emergency Actions (Ind. Code 13-25-6)
– Generally, responsible parties must reimburse
an emergency response agency or the
governmental agency served by the emergency
response agency for the “reasonable and
necessary expenses” they incur for hazardous
material emergencies.
Liability (cont.)
• Reimbursing fire departments for hazardous
material emergencies.
– Fire departments are allowed to charge
responsible parties for responding to hazardous
material emergencies. (Ind. Code 36-8-12.2)
– Volunteer fire departments are allowed to
charge property owners, vehicle owners, or
responsible parties for responding to hazardous
material spills, fuel spills, or chemical or
hazardous material related fires. (Ind. Code 368-12-13)
Liability (cont.)
• Hazardous Substances Response Trust Fund
(Ind. Code 13-25-4)
– The trust fund can be used to:
• Provide supplies, materials, services, and equipment
to prevent or address releases.
• Finance certain IDEM response actions.
• Pay State administrative and personnel expenses that
result from responding to releases or threats of
releases of hazardous substances or contaminants.
Liability (cont.)
• Hazardous Substances Response Trust Fund
(Ind. Code 13-25-4) (cont.)
– CERCLA responsible parties are liable under
this Statute for:
• Costs of removal or remedial actions incurred by the
State that are consistent with the National
Contingency Plan.
• Costs of health assessments or health effects studies
carried out under CERCLA.
• Damages for loss of, injury to, or destruction of
natural resources.
Liability (cont.)
• Environmental Legal Actions
– Ind. Code 13-30-9
– Allows a person to bring an action against a
person that “caused or contributed to the release
of a hazardous substance or petroleum into the
surface or subsurface soil or groundwater that
poses a risk to human health and the
environment to recover reasonable costs of a
removal or remedial action” involving those
materials.
Liability (cont.)
• Environmental Legal Actions (cont.)
– Allows courts to allocate removal or remedial
action costs in proportion to the acts or
omissions of the parties.
– A person that receives a Covenant Not To Sue
under the VRP program is exempt from an
environmental legal action suit.
Liability (cont.)
• Indiana’s Spill Reporting Regulation
– Upon discovery of a reportable spill:
• Contain the spill if possible.
• Perform a spill response.
– Contain the spill.
– Remove or neutralize the free material.
• Report the spill to IDEM as soon as possible but
within 2 hours after discovery and, if requested,
submit a spill report.
• For fixed facilities and pipelines, exercise due
diligence and document attempts to notify nearest
affected downstream surface water user and off-site
owners/operators if the spill is to off-site property.
Liability (cont.)
• Third Party Liability:
– Examples of common law theories of liability
• Negligence
• Trespass
– Negligence involves the breach of a duty owed
to the other party that resulted in damages.
– Trespass involves the unauthorized entry of a
person or a thing on land possessed by someone
else.
Pre-Planning for an Emergency
• Realize that emergencies happen - it is just a
question of when.
• Issues to consider when pre-planning:
– Do your employees know who to contact
during an emergency?
– Do they have a way to contact that person or
group?
– Have a method to quickly gather paperwork.
– Determine who will be responsible for
reporting the spill.
Pre-Planning for an Emergency
(cont.)
• Issues to consider when pre-planning
(cont.):
– Will your employees respond to the spill or will
you hire a contractor?
• If you use your own employees, make certain they
have received necessary training and have the
appropriate equipment, including PPE.
• If you use a contractor, will you use the same
contractor for every spill or will you have different
contractors for different geographic areas or
different types of emergencies?
Pre-Planning for an Emergency
(cont.)
• Issues to consider for pre-planning (cont.):
– Notify your insurance carrier.
– Determine who will be the company
spokesperson to the press, government and
other interested parties.
– Be ready to provide information to the
responding agencies.
Pre-Planning for an Emergency
(cont.)
• Issues to consider when pre-planning
(cont.):
– Have a phone line available for employees’
families to call for information.
– Seek timely legal counsel to ensure that all
required steps are taken to preserve evidence
that may be lost due to delay (e.g. witness
interviews, sample collection, etc.)