An interesting aspect of a business like mine is its international application.  This question came from a university professor in South America.

Hi Daniel.

In a group of Hazardous Materials from emergency services a friend ask this:

“Seeking some guidance on policies relating to cost recovery for manpower and materials used in hazmat response to responsible parties. To fine tune it, when does your agency begin the process? Is it by gallons/ material, local environmental codes ordinances, or other. Any advice would be of great assistance.”

Can you bring us some advice about this?

Thank you.

My reply about a week later on November 20, 2017:

I will do my best to answer you questions and provide you with information.  Please note that my areas of expertise are the regulations – international and domestic – for the transport of HazMat/dangerous goods and the domestic regulations for the management of hazardous waste.

The Comprehensive Environmental Response, Compensation and Liability Act, aka: Superfund or CERCLA, accomplished the following:

• Provided broad Federal authority to respond directly to releases or threatened releases of hazardous substances that may endanger public health or the environment.
• Enabled revision of the National Contingency Plan, which provides the guidelines and procedures needed to respond to releases and threatened releases of hazardous substances, pollutants, or contaminants.
• Directed the USEPA to establish reporting quantities for all hazardous substances.

The term “hazardous substance” is defined in CERCLA Section 101(14) and are listed at 40 CFR 302.4.  The hazardous substance list does not contain any previously unlisted substances, instead it includes substances that are listed or designated under other environmental statutes.  They include:

• All hazardous air pollutants (HAPs) listed under Section 112(b) of the Clean Air Act (CAA).  Radionuclides are hazardous substances because EPA designated them generically as hazardous air pollutants under Section 112(b) of the Clean Air Act.
  • Even though the source of their listing is the Clean Air Act, releases of radionuclides to all media, not just to air, are covered by CERCLA’s reporting requirements.
• Toxic pollutants that are subject to pretreatment standards under Section 307(a) of the Clean Water Act (CWA) and toxic pollutants that present an imminent danger to public health when discharged to waters of the United States as designated under Section 311(b)(2)(A) of the Clean Water Act.
  • All Clean Water Act hazardous substances are CERCLA hazardous substances, but only some CERCLA hazardous substances are Clean Water Act hazardous substances.
• Wastes that are regulated as listed and/or characteristic hazardous wastes under the Resource Conservation and Recovery Act (RCRA).  This includes thousands of hazardous wastes that are not specifically listed but that exhibit one or more of the characteristics of ignitability, reactivity, corrosivity or toxicity.  A material is considered to be a release of a CERCLA hazardous substance if the material was a waste prior to release, or if the substance is not cleaned up for reuse and thus must be disposed of as a RCRA hazardous waste after release.
• Any element, compound, mixture solution or substance designated under Section 102 of CERCLA that may present substantial danger to public health or welfare or the environment.
• Any imminently hazardous chemical substance or mixture that EPA has taken action against under Section 7 of the Toxic Substances Control Act (TSCA).  Any hazardous chemical substance or mixture that EPA has taken action against under this Act would automatically become a hazardous substance.  To date, EPA hasn’t designated any hazardous substances under the Toxic Substances Control Act.

What’s interesting is that under the Hazardous Material Regulations, PHMSA/USDOT has its definition of a Hazardous Substance (read:  The PHMSA Definition of a Hazardous Substance).  The PHMSA definition refers to the Hazardous Substance list maintained by the USEPA at 40 CFR 302.4 (see above).

Read the release:  Darigold failed to report chlorine gas release in Portland to authorities in timely manner

Release Date: 12/18/2013
Contact Information: CONTACT: Hanady Kader, EPA Public Affairs, 206-553-0454, kader.hanady@epa.gov

12 people required hospitalization from exposure to chlorine gas fumes at facility.

(Seattle—Dec. 18, 2013) Darigold Inc. failed to immediately notify federal and state emergency authorities of a chlorine gas release in 2012 at a milk facility in Portland, Oregon, according to a settlement with the U.S. Environmental Protection Agency. By law, facilities are required to report hazardous releases to state and federal emergency response authorities in a timely manner. The facility produces ultra pasteurized milk products.

“Emergency responders need to know immediately when a hazardous release occurs so they can protect the public,” said Kelly McFadden, Manager of the Pesticides and Toxics Unit in EPA’s Office of Compliance and Enforcement. “This facility is located in a populated urban area. Chlorine gas is extremely harmful to breathe. In this case, the facility was evacuated two separate times and twelve people were hospitalized.”

Eight Darigold employees, a truck driver, two contractors and a person who was driving by at the time of the incident were sent to the hospital.

On the morning of May 30, 2012, a truck driver arrived to off-load a nitric acid and phosphoric acid-based chemical solution that is used for sanitizing at the facility. The driver improperly connected the hose from the truck containing the chemical solution to a tank containing sodium hydroxide and sodium hypochlorite, resulting in a violent chemical reaction and the chlorine gas release.

Darigold became aware of the release at 10:16 a.m. and notified the fire department at 10:31 a.m. but failed to immediately notify state and federal emergency response authorities. The chlorine gas release continued until about 4:00 p.m.

Federal law requires that facilities immediately report chemical releases exceeding certain thresholds to federal, state and local authorities. For chlorine gas, the threshold is ten pounds. The Darigold facility released about 166 pounds in this incident.

Chlorine gas is highly toxic and can cause burning of the eyes, nose, and mouth, as well as nausea, dizziness, vomiting, respiratory impacts and death.

The facility violated the Comprehensive Environmental Response, Compensation, and Liability Act, and the Emergency Planning and Community Right-to-Know Act.

Darigold has agreed to pay over $42,000 to settle the violations.

For more information on EPA Emergency Management, visit: http://www.epa.gov/emergencies/index.htm

Confused about when to report a release of a hazardous substance or extremely hazardous substance and to whom?  This article will clarify your reporting responsibilities under both CERCLA and EPCRA.  I provide training required by both the USDOT (HazMat Employee Training) and USEPA and authorized states (Hazardous Waste Personnel Training).  Please don’t hesitate to contact me for a free training consultation.

EPA to spend $3 Million to Address Heavy Metal Contamination

Contact Information: Brenda Reyes, 787-977-5869, reyes.brenda@epa.gov

(New York, NY – Nov. 5, 2013) The U.S. Environmental Protection Agency has finalized its plan to address contaminated soil at the Scorpio Recycling Superfund site in Toa Baja, Puerto Rico. Previous metal recycling and battery crushing activities at the site resulted in contamination of the soil with lead and other metals. Lead is a toxic metal that can cause damage to a child’s ability to learn and a range of health problems in adults. Exposure to heavy metals can cause serious health effects. Under the plan, contaminated soil from the site will be consolidated in two controlled areas and covered to reduce potential exposure to the hazardous materials.

The EPA held a public meeting on August 14, 2013 in Toa Baja to explain its proposed plan. The EPA took public comment for 30 days and considered public input before finalizing the decision.

Scorpio Recycling, Inc. was a metals recycling company that operated from 1972 until 2010. The site was added to the Superfund list in 1999 after high concentrations of heavy metals and other contaminants were found in the soil.

Under the EPA plan, contaminated soil that poses a potential risk to people’s health will be moved and consolidated in two areas of the site, a conservation area and an industrial area. Clean soil will be placed over contaminated soil in the conservation area and a gravel cover will be placed over soil in the industrial area.

Long-term monitoring will ensure that the covers prevent direct contact with underlying waste. The plan also requires new deed restrictions that will prevent activities that could disturb the covers and prohibit any future on-site residential construction. The EPA will conduct a review every five years to ensure the effectiveness of the cleanup.

The Superfund program operates on the principle that polluters should pay for the cleanups, rather than passing the costs to taxpayers. After sites are placed on the Superfund list of the most contaminated waste sites, the EPA searches for parties responsible for the contamination and holds them accountable for the costs of investigations and cleanups. In this instance, the EPA did not identify a viable party to pay the cleanup costs. The EPA estimates the cost of this cleanup will be about $3 million, which will be provided by the EPA federal Superfund program.

To view the EPA’s record of decision for the Scorpio Recycling Superfund site, please visit: http://www.epa.gov/region02/superfund/npl/scorpio/index.html

Be sure to read the first two sentences of the last paragraph of the news release.  Any person that generates a solid waste, which includes wastes that are ultimately recycled, is subject to liability under the Comprehensive Emergency Response, Compensation and Liability Act (CERCLA, or as it is better known:  Superfund).  The goal of the EPA for a property categorized as a Superfund Site is to identify any person or company that contributed to the contamination and have them pay for the clean-up.  Apparently, in this case, they were not able to identify any Potentially Responsible Parties (PRPs).  But if they did, then those PRPs would be shelling out money to the EPA and remediation contractors (not to mention lawyers) to clean-up the site.

What can you do to protect yourself?

• Minimize the amount of waste you generate:  hazardous, non-hazardous, used oil, universal waste, recycled material, etc.
• Perform audits of all waste disposal and recycling facilities to ensure they are handling your waste properly.
• Hope you get lucky.  No matter what you do, if you generate any waste for recycling or disposal, you are subject to the possibility of being identified as a PRP.  It is one of the costs of doing business in the US.

Another precautionary measure:  provide Hazardous Waste Personnel Training for any employees who work with, around, or handle hazardous waste or may respond to a hazardous waste emergency.  Please contact me for your free training consultation.

Read on for the news release from the USEPA, then read my articles that explain the reporting requirements that Amalgamated Sugar did not complete:

• Reporting Releases of Hazardous Substances and Extremely Hazardous Substances
• The Notification Requirements for Reporting a Release Under CERCLA & EPCRA

News Release: Amalgamated Sugar settles for failure to immediately report the release of chlorine gas into the environment

03/13/2013

 Contact Information: Hanady Kader, EPA Public Affairs, 206-553-0454

(Seattle—March 12, 2013)   The U.S. Environmental Protection Agency (EPA) reached a settlement with Amalgamated Sugar Company LLC (Amalgamated Sugar) for failing to properly report the release of dangerous chlorine gas at its Paul, Idaho facility.  Amalgamated Sugar, a sugar manufacturing facility that processes sugar beets, will pay $18,000 in penalties.

According to the settlement, plant operators did not immediately notify federal and state authorities about the chlorine gas release.

“Companies need to notify the appropriate agencies right away so emergency personnel can quickly respond to these hazardous chemical releases,” said Ed Kowalski, Director of EPA’s Office of Compliance & Enforcement in Seattle. “Failure to do this puts not only employees, but the community at risk.”

The release on February 7, 2012, was caused when a chemical truck driver mistakenly unloaded hydrochloric acid into the tank containing sodium hypochlorite. When mixed, the chemicals caused a violent reaction which blew the access lid off the tank, emitting 43 pounds of chlorine gas into the atmosphere.  According to Amalgamated Sugar, the driver was injured and evacuated by ambulance. The company’s notification to state and federal authorities was over 46 hours late.

Chlorine is a toxic gas that attacks skin, eyes, throat, and lungs and can cause serious injury or death in extreme cases.

The chlorine release and the failure to notify appropriate agencies are violations of the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and the Emergency Planning and Community Right-to-Know Act (EPCRA).

For information on EPA’s Emergency Planning and Community Right to Know Act, visit  http://www.epa.gov/oecaagct/lcra.html

For more about toxic effects of Anhydrous Ammonia (NIOSH GUIDE): http://www.cdc.gov/niosh/npg/npgd0115.html