Dealing with Hazmat Issues: Regulations and Spill Cleanups

Introduction

Hazardous material spills can take a hefty toll on all involved parties. Cleanup bills, legal liabilities and frustration for affected property owners only scratch the surface of problems commonly associated with spills. With the potential for facility downtime and personnel injury, it is in the industries’ best interest to be involved in and oversee the cleanup of these incidents.

By understanding our responsibilities regarding the release of hazardous materials and knowing how to react when an incident occurs, we can minimize the required cleanup effort and the subsequent cost associated with the incident. While it is impossible to eliminate spills altogether, instances can be minimized and cleanups can be simplified if the right steps are taken. What follows are the mandated reactionary steps to be taken in the event of a hazardous substance release.

Who’s Responsible?

The responsibility and liability for these efforts lie with the owner of the hazardous material and/or the entity responsible for the release. While insurance providers may also be involved in the loss, they are not directly responsible or accountable for the cleanup of the spill.

What Are We Dealing With?

Hazardous substances or materials are specifically defined under many environmental statutes by the federal government. But most chemical substances that may pose a health risk to life when exposed are deemed hazardous substances.

When a hazardous substance is released to the environment, or poses a substantial threat to the environment, a release has occurred. The Environment includes surface water, groundwater, drinking water supply, land surface, subsurface strata, ambient air, dry gullies and storm sewers that discharge to surface waters.

If the release is equal to or exceeds the reportable quantity for that substance as set forth under the Code of Federal Regulations, the release must be properly reported (see Spill Reporting). In many states, petroleum products are regulated with a reportable quantity, typically established at 25 gallons or a quantity sufficient to place a “sheen” on water. Asbestos-containing materials are regulated if material containing greater than 1% asbestos is disturbed (in some states, it is regulated if it contains greater than 0.1%). The responsible party is the owner of the hazardous substance that has been released, and may include the person responsible for the spill. This title cannot be transferred to another entity, nor can it be eliminated, ever.

Releases of hazardous substances can happen in either fixed facilities or during transports. Most spills are released to soil and “soak in” before reaching surface water or are released within the confines of a facility. More than half of all spills are fuel spills resulting from ruptured fuel tanks during truck wrecks. These situations are relatively simple to cleanup.

Hazardous substances that are released to surface waters, sewer systems, drinking water supplies, or that impact groundwater require specialized equipment and expertise. Cleanup efforts for such instances can be quite costly and may be subject to penalties under the Clean Water Act. These penalties can cost as much as $25,000 per day of violation.

Spill Reporting

When a release occurs, there are a number of reporting and notification requirements that must be followed by the responsible party. These requirements tend to be confusing, and often overlap. Parties should consider their situation and make the following phone call(s):

All Hazardous Substance Releases
In every case, the responsible party must immediately notify the National Response Center (NRC) at (800) 424-8802.

Asbestos Releases
Asbestos releases require immediate notification of respective state agencies in nearly all states. Most states also require asbestos release notification to local 911.

Fuel Storage Tank Releases
For above ground and underground releases, including those from dispensers, calls must be made to state oil inspectors or fire marshals.

Pipeline Releases
Notify the Pipeline Safety Commission, also at (800) 424-8802.

In many situations, if a reportable quantity has been released, several of these entities must be redundantly contacted. These reports typically require written follow-up within 24 hours. This action initiates a process that alerts potential receptors and the surrounding population, and may initiate regulatory response efforts. This reporting also initiates a process that will ultimately trace the cleanup to final closure.

Cleanup Requirements

Hazardous material release incidents are regulated by the federal and state government under many environmental statutes, as well as worker protection statutes. The enforcement and oversight of the cleanup is usually delegated to the Designated Emergency Response Authority (DERA) for the spill. The DERA may be the state highway patrol, local fire department, sheriff, state health department or the United States Environmental Protection Agency (USEPA), depending upon the location and complexity.

Cleanup of uncontrolled release of hazardous substances are further regulated under OSHA. OSHA mandates that workers that provide these services are properly trained, are medically fit to wear respiratory protections and are properly equipped for and knowledgeable in the hazards present. Training requirements are specified in detail, as well as the site controls requirements.

Spills generally require complete removal of all contamination, regardless of quantity spilled. If complete removal is not reasonably feasible, risk-based cleanup standards may be sought through the regulators. It should be noted, however, that establishing and gaining approval for risk-based cleanup standards is typically very expensive, and often outweigh the cleanup costs of complex removal methods. After cleanup, demonstration of appropriate removal is required, normally through comprehensive sampling and laboratory analysis of the area of contamination.

Certain spilled materials are not directly regulated by environmental cleanup statutes or may be specifically regulated to allow “less than complete” removal. However, cleanup may be dictated by other statutes. Various statutes allow less than complete removal of hazardous substances that have been released. Common examples include petroleum products (RAC Guidelines) and Polychlorinated Biphenyl’s (PCBs, TSCA Guidelines). Beyond cleanup to satisfy regulatory requirements, many releases are being cleaned up to exceed these requirements simply to reduce potential liabilities regarding worker or personnel exposure. These substances may be cleaned up to other non-mandated standards to avoid these liabilities, such as the National Institute for Occupational Safety and Health (NIOSH) or American Conference of Governmental Industrial Hygenists (ACGIH) for indoor air quality. This is common in manufacturing facilities where “non-hazardous” substances may have been released within their plant and worker exposure to the substance may still be of concern.

Mitigation and Cleanup Measures

Released hazardous substances often destroy property and adversely affect the health of the people exposed. Wastes that are generated as a result of cleanup are quite costly to dispose, and typically carry a potential liability forever (known as Cradle to Grave Responsibility). Initial stabilization measures should be taken to protect those that may come in contact – to contain the material to reduce the spread of the release and to minimize the volume of materials that are polluted.

The first responder normally provides stabilization of a release. This may be the fire department, state patrol or a cleanup contractor. Initial efforts should attempt to control the release by closing valves, plugging leaks, etc. These measures are to be taken only by qualified personnel with suitable protection. Precipitation events, traffic and other means may mobilize spilled materials, which will increase the spill cleanup requirements and subsequent costs. Control efforts should be taken quickly to minimize the spread of material to lakes, waterways and other environmentally sensitive areas, as well as sewer systems, streams, open roadways, or other areas that will accelerate the spread of contamination. These efforts may include diking, plugging, overpacking, transferring, covering or through the use of containment booms like floating dikes.

Upon stabilization, or concurrent with stabilization, the spilled material and all affected areas must be cleaned up. These measures should be timely and may entail:

• Removal by excavation of soil and demolition of structures
• Decontamination of surfaces by vacuuming, power washing, scarifying or chemical removal
• Recovery by pumping, vacuuming, skimming or absorbing liquids from impoundments, roadways, sewer systems or surface waters

The Costs

The costs to clean up hazardous material spills are significant, and lack of experience or proper equipment by the cleanup party can dramatically increase these costs. Determining specific cleanup measures should be a process that considers cost, method effectiveness and satisfaction of regulators and property owners. However, disposal costs of wastes generated, replacement value of damaged items, the cost of suspended service/lost business and other lagging or indirect costs should also be considered when determining cleanup strategies. Too often, these costs are not considered, and less expensive cleanup measures are taken that produce excessive waste disposal costs. In these situations, the final cost of the loss may be significantly greater than necessary.

Waste Management

Disposal of waste will be integral to or follow cleanup efforts and may take several months to arrange and schedule. Waste may be categorized as Hazardous, Industrial, Special, or exempt.

Hazardous Wastes
If so deemed hazardous by federal definition (RCRA), the generator (the owner of the waste) must register with the USEPA and notify them of the generation and disposal activity. This generator status will carry with the generator forever, and can not be transferred to another entity, nor may it be eliminated. Because of this potential future liability, many owners prefer to utilize destructive, more costly treatment/disposal methods such as incineration, rather than non-destructive methods such as landfilling. RCRA hazardous wastes must be fully characterized by federal guidelines, and typically require analytical data. Waste must be shipped under a hazardous waste manifest by a licensed waste transporter and the waste must be treated by a licensed hazardous waste treatment/disposal facility.

Special / Industrial Wastes
Examples of these are diesel fuel contaminated soil and asbestos. These wastes require special handling and permitting to dispose of, but not to the extent (and expense) that RCRA wastes require.

Exempt Wastes
The most common exemption is granted to household hazardous waste. If a waste ordinarily classified as an RCRA hazardous waste is generated by a household, it is exempt from the RCRA requirements. However, spill cleanup requirements are still necessary and it is still very difficult to dispose of these wastes because non-RCRA permitted facilities do not accept these. Many communities (typically county governments) encourage the proper and environmentally conscientious disposal of these items by providing a Household Hazardous Waste Roundup. For free or a nominal fee, residents of a community are eligible to drop off their waste at these facilities. Certain communities have facilities that are open throughout the year, but more commonly, they schedule these as events quarterly or annually. The county’s health department will have information on schedules, locations and procedures.

Conclusion

Mitigation and cleanup of spilled hazardous materials can be quite costly and, if not managed properly, can result in greatly elevated cleanup costs, increased liabilities and significant fines. Normally, time is of the essence and remains critical in stabilization of most spills – however, careful planning and selection of the best cleanup method is often more cost effective for the final cleanup. Costs and liabilities can be greatly reduced by understanding the fundamental elements that drive the cleanup effort and by managing these efforts with individuals who are qualified and possess direct experience with spill cleanup.