Incident Management A Legal Viewpoint

1. Incident ManagementA Legal Viewpoint Presented By: Michael T. Scanlon, Esq. Barnes & Thornburg michael.scanlon@btlaw.com 317-231-7387

2. Three Major Issues • Spill Reporting • Liability • Pre-Planning

3. 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.

4. Spill Reporting -Federal • CERCLA • Department of Transportation • Clean Water Act • Emergency Planning and Community Right to Know

5. 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.

6. 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.

7. 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.

8. 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

9. 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

10. 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

11. 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

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.

24. 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 36-8-12-13)

25. 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.

26. 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.

27. 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.

28. 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.

29. 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.

30. 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.

31. 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.

32. 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?

33. 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.

34. 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.)