Fashionably Late: Connecticut’s Elusive Spill Reporting Regulations Arrive
The following article was first published by Shipman & Goodwin LLP in the News & Insights section of its website. It is reposted here with permission.
The long-awaited Connecticut spill reporting regulations became effective March 4, 2022 (RCSA §§ 22a-450-1 et seq.).
Manufacturers, owners, operators, handlers, and transporters are expected to be familiar with the new regulations and report spills if required.
We recommend companies evaluate and update their internal spill response/reporting policies and procedures and provide training to ensure key personnel are informed about the new requirements.
Since 1969, Connecticut has operated with a spill reporting statute on the books (CGS § 22a-450), which, after several amendments, ultimately required the commissioner of the Department of Energy and Environmental Protection to adopt implementing regulations to clarify reporting thresholds and criteria.
Prior attempts to finalize regulations, however, fell short. In 1994, DEEP proposed regulations that included many reasonable spill reporting requirements but also included a controversial requirement to report pre-existing spills first discovered after the effective date.
After major objection by the regulated community to the pre-existing spill reporting requirement, DEEP withdrew all of the proposed regulations, effectively “throwing the baby out with the bathwater.”
Twenty-eight years later, the new spill reporting regulations address emergency situations, ongoing releases, and contemporaneous spills and define when and how certain spills of specific materials must be reported to DEEP.
Importantly, pre-existing spills are not required to be reported under this program.
Per the new regulations, a “spill” or “release” is any discharge, spillage, uncontrolled loss, seepage or filtration of a “reportable material” into the environment, secondary containment, or a building or structure.
Reportable material means oil, petroleum, chemical liquids, hazardous waste and solid, liquid or gaseous products (but not radioactive materials, potable water, or water vapor).
What Spills Are Reportable?
To help organize the decision process on whether a spill requires reporting, DEEP developed a flowchart to guide compliance with the regulations.
Pursuant to the new regulations (and as shown on the flowchart), reportable spills (from March 4, 2022 onward) are generally organized into the following three categories.
Category 1: Spills of Oil and Petroleum. Spills of five gallons or more of oil or petroleum must be reported within 24 hours. Spills of less than five gallons of oil or petroleum are exempt from reporting if the spill is mitigated within two hours of discovery (unless reporting is required under Category 3 below).
Category 2: Reportable Materials other than Oil and Petroleum. Spills of 10 pounds or 1.5 gallons or more of other Reportable Material must be reported within 24 hours. Spills of less than 10 pounds or 1.5 gallons of other Reportable Material are exempt from reporting if the spill is mitigated by properly trained personnel within two hours of discovery (unless reporting is required under Category 3 below).
Category 3: Higher Risk Spills of Any Quantity. Spills of any quantity of a reportable material must be reported when the spill:
- Consists of an unknown amount or material;
- Enters waters of the state or a wetland;
- Enters a storm sewer, sanitary sewer, combined sewer system or catch basin;
- Is from or suspected to be from an underground storage tank system, including into any secondary containment system, except drips from a dispenser nozzle during dispensing;
- Creates, or can reasonably be expected to create, a hazard, a fire, an explosion or threat of explosion, or poses an immediate actual or imminent potential threat to human health, public safety or the environment; or
- PCBs, PCB-containing materials, or dielectric fluid or hydraulic oil in vehicle lifts or elevators with unknown PCB content;
- Prohibited pesticides;
- Restricted use pesticides if used in an unlawful manner;
- Halogenated solvents;
- Liquid per- or polyfluoroalkyl substances (PFAS), e.g., PFOS, PFOA, PFNA, PFHpA, and PFHxS; or
- A concentration of 30% or more by weight of any Material of Special Concern, as outlined in Appendix A of the spill reporting regulations.
Are There Exceptions to Reporting?
With every rule comes exceptions and the spill reporting regulations include important exceptions to keep in mind.
For example, the following spills are not required to be reported:
- from a consumer or industrial product that occurs when the product is used for its intended purpose and in compliance with applicable law (e.g., a petroleum sheen from the emission or discharge of an outboard motor in use);
- fully contained in impermeable secondary containment if the amount released within a 24-hour period is less than 100 pounds or 15 gallons and the spill is properly mitigated by trained personnel within two hours of discovery;
- fully contained under a laboratory fume hood;
- from agricultural land activities that comply with DEEP’s Manual of Best Management Practices for Agriculture – Guidelines for Protecting Connecticut’s Water Resources; or
- authorized by a license or order issued by DEEP, state or federal law, or a court order.
What Must Be Reported?
Reportable spills must be reported to DEEP within one hour of discovery, unless, as outlined above, the spill is small enough and can be properly mitigated within two hours of discovery (if it turns out that such a spill cannot ultimately be mitigated within two hours, it must be reported within two hours from discovery). To the extent known, the initial report must contain:
- contact information of the person making the report, responsible party and property owner;
- the date, time and duration of the spill;
- cause, material released, quantity released and quantity recovered;
- impacts and risks; and
- response actions.
The initial reports must be called in to DEEP (866-DEP-SPIL; 860-424-3338; 860-424-3333). If requested by DEEP, a follow-up report may be required from any person required to report a spill.
How Do the New Regulations Work with Existing Laws?
Importantly, compliance with the spill reporting regulations does not affect or satisfy any requirement to report, investigate or remediate a spill under other legal requirements.
For example, a reportable spill may also be considered a Significant Environmental Hazard, which could require a separate notification/submittal to DEEP and possibly additional investigation, remediation and/or monitoring in order to abate the identified SEH (CGS § 22a-6u).
Similarly, a reportable spill may have implications for sites undergoing investigation and remediation pursuant to a brownfield cleanup program or the Connecticut Transfer Act (CGS § 22a-134 et seq.), depending on the status of the investigation/cleanup at the time of the spill.
Certain spills may also trigger reporting to a federal or local agency.
Although the spill reporting regulations are intended to provide predictability to the regulated community, time will tell whether they actually do.
While the regulations do provide specificity with respect to what spills are required to be reported and what exceptions to reporting are acceptable, how the regulations are applied in practice (when the facts are not always very clear) remains to be seen.
Also, and importantly, what must be done to address or “close” a reported spill is an open question that DEEP expects to address separately through the development of a more comprehensive release-based reporting program (intended to replace the Transfer Act), which effort is still ongoing and not likely to be finalized for at least another year or more.
Nevertheless, Connecticut environmental law imposes strict liability for spills of most pollutants. This means that the person or business that caused a spill is responsible for cleaning it up.
In the meantime, it is important for anyone who may be subject to the new spill reporting regulations to be familiar with the new requirements.
It would be prudent to evaluate and update as necessary internal spill response and reporting policies and procedures, train key personnel on the new requirements and post the DEEP flowchart and DEEP reporting hotline information in relevant facilities.
As appropriate, coordinate with your technical and legal teams to ensure you understand what is (and, importantly, what is not) a reportable spill, are complying with the new regulations, and have the necessary materials on hand and trained personnel available to properly mitigate a spill should one occur.
About the authors: Andrew Davis and Aaron Levy are partners at Shipman & Goodwin LLP, both practicing in the firm’s national environmental practice. Davis and Levy, along with Shipman’s team of environmental lawyers, regularly assist manufacturers and other businesses with environmental issues.
For more information about Shipman’s manufacturing practice, please contact Alfredo Fernandez (860).251.5353; firstname.lastname@example.org).
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