By Steven M. Siros, Partner, and Allison Torrence, Associate, Jenner & Block
As Hurricane Sandy swept across the Eastern Seaboard, the images of its destructive power were humbling. As everyone begins to dig out from the damage caused by the storm, it is important to remember the environmental lessons learned from past storms and natural disasters. Inevitably, environmental issues will be a serious concern after Hurricane Sandy has run its course. As facilities move forward with the task of attempting to resume normal operations, there are a number of environmental issues that should be considered.
Releases of Hazardous Substances and Oil Spills
U.S. EPA requires releases of hazardous substances at or above specified "Superfund Reportable Quantities" ("RQs") to be reported to federal authorities. Releases of certain extremely hazardous substances above a RQ trigger reporting requirements to state and local authorities, as well as to the federal authorities. Additionally, some state and local governments require notification for any size release of hazardous substances. According to U.S. EPA, reporting is required even if the release occurred only as a result of a hurricane or other natural event.
After notification, cleanup of the hazardous substances will likely be required. Although an "Act of God" may be a defense to certain cleanup liability under CERCLA, U.S. EPA has taken an aggressive position in the past, arguing that past hurricanes did not trigger this defense.
Oil spills are also a significant concern when there is heavy rain and flooding. Facilities with Spill Prevention, Control and Countermeasure ("SPCC") Plans will need to ensure that secondary containment for aboveground storage tanks is maintained after the storm. Any oil spill that creates a visible sheen on navigable waters or adjoining shorelines must be reported to the federal government. There is no "Act of God" defense under the federal oil spill laws.
Here are some helpful links to U.S. EPA's websites that provide further guidance on hazardous substances and oil spill reporting:
http://www.epa.gov/oem/content/reporting/index.htm (Information On How To Report Releases of Hazardous Substances or Petroleum Products)
http://www.epa.gov/oem/content/epcra/serc_contacts.htm (List of State Emergency Response Contacts)
http://www.epa.gov/region4/r4_hurricanereleases.html (Information on Emergency Operating Procedures)
Wastewater treatment systems can overflow during and after significant rain events, such as a hurricane. These types of overflows can violate the operator's license and other regulatory requirements unless proper care is taken during and after the rain event. Operators must provide immediate notification (typically to the State regulators) of overflows caused by the severe rain event in order to preserve available defenses the operator may have for the overflow.
Many facilities are covered by a site-specific or regional stormwater management permit, requiring structural Best Management Practices ("BMPs") to prevent excess stormwater runoff. Failure of BMPs, such as silt fencing and retention basins, can cause violations and result in penalties. Following significant storms such as Hurricane Sandy, it is important that structural BMPs be inspected to ensure that they continue to function as intended.
Most air permits provide exceptions for "malfunctions" that may be caused by storms or other uncontrollable events. Any excess emissions caused by such a malfunction should be carefully documented to support the malfunction defense. Additionally, many facilities have air permits that regulate the use of emergency generators, usually by providing limits on the total hours the emergency generators can be in operation. Therefore, care should be taken to record the total time any emergency or backup generators are used to ensure that any applicable regulatory limits are not exceeded.
Hurricane Sandy has left behind significant property damage and business interruptions, which may be covered under an owner's insurance policy. Insurance coverage will depend on the terms of each insurance policy, and the specific circumstances leading to the loss. When potential property damage or business interruption is identified, the owner should provide prompt notice to its insurer and document the loss to the extent possible.
For more information about potential environmental impacts from Hurricane Sandy, visit U.S. EPA's hurricane webpage: http://www.epa.gov/hurricanes/.
For information concerning U.S EPA's response to the damage caused by Hurricane Katrina, visit U.S. EPA Region 4's webpage: http://www.epa.gov/region4/Katrina/.
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