Hurricane Sandy had a devastating impact throughout the Northeast, including many of the communities that are home to many of Kelley Drye’s clients. In addition to the devastation endured by residents in the Northeast, manufacturing and industrial facilities face damage and disruptions that could potentially cause significant future environmental, health and safety compliance issues. While it is impossible to detail each of the reporting and compliance obligations faced by manufacturing and industrial facilities without an understanding of the facility’s operations, emissions, waste streams, and permit structure, Kelley Drye’s Environmental Practice Group herein provides a general list of best practices to minimize liability for potential environmental health and safety infractions caused by this disaster. Significantly, these best practices do not replace emergency response plans, which are designed to avoid or mitigate environmental health and safety issues.
- Consult your emergency and environmental health and safety plans and use those plans to guide your disaster response.
- If the storm caused your facility to discharge a hazardous substance to groundwater or surface water, you may need to report those releases to local emergency responders and to your permitting authorities. Various environmental statutes and regulations define hazardous substances differently, however, the definitions are generally very inclusive and the reportable quantities are often low. Release of petroleum and/or hazardous substances regulated under the Clean Water Act or the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund) must be reported to EPA’s National Response Center. Further, your emergency response plan should list those agencies and responders that require notification. If you have a permit under the Clean Water Act (CWA), including National Pollution Discharge Elimination System (NPDES) permits for wastewater or stormwater, it may also detail the notification requirements and other malfunction/emergency response obligations.
- If you have a Clean Air Act (CAA) permit and storm disruptions caused your facility to release pollutants into the air, consult your permit for reporting obligations. To the best of your ability, document the identity and amount of the pollutant and the duration of the release. Consult your CAA permit’s start-up/shutdown/malfunction requirements for additional obligations and to determine how to bring your facility back online in a safe and compliant manner.
- If waste stored at your facility washed out and potentially caused contamination, you may have obligations to report such releases to permitting authorities, as well as EPA’s National Response Center. If you have a permit under the Resource Conservation and Recovery Act (RCRA), consult that permit for an understanding of your precise obligations.
- The Occupational Safety and Health Act (OSH Act) imposes a general duty on employers to protect their employees from harm. If the storm caused your facility to be unstable, or otherwise unsafe in any way, you should instruct employees not to report to work. If you must have essential employees or disaster recovery personnel on the premises, be sure they are equipped with adequate personal protective equipment, including, as appropriate, helmets, fall protection, and protection from waterborne pathogens that can occur in flood scenarios.
- Identify insurance policies that have clauses for environmental and health and safety damages and provide insurance companies prompt and detailed notification of your insurable event.
Meticulously document everything:
- Photograph/video all facility damage and recovery efforts.
- Communications with regulatory agencies, permitting authorities, and emergency responders, including telephone logs and copies of written communications.Carefully note the name and title of the people to whom you report, the date and time of the conversation, and a summary of the discussion.
State and federal environmental health and safety enforcement officials generally have some discretion over whether, and to what extent, to issue violations. Certainly, no one is guaranteed to benefit from agency enforcement discretion, but your best chance of a fair deal will come from prompt notification and your best demonstration that your facility attempted to comply with all applicable environmental health and safety laws and regulations in the face of an unprecedented natural disaster.