Unfortunate traffic accidents, fueling mishaps, facility maintenance or
vandalism. These events and myriad others like them can result in oil
“escaping” to the environment. Call it what you will, whether an escape,
release, spill or discharge, if the event meets certain threshold amounts, it
triggers the requirement to tell someone about it. But what are those
amounts, whom do you tell and why would you want to tell anyone in authority
that, for example, a piece of debris ruptured a saddle tank on one of your
trucks and the entire contents leaked into a roadside stream or that a vandal
poked a hole in the fuel oil tank at your garage? Although the answers are
relatively straightforward, policies often need revisiting and crews need
periodic reminding of what is expected of them.
Requirement to
Report
Both New Hampshire and Federal law require responsible parties to
report unintended releases of oil to the environment. The federal Clean
Water Act governs oil spills and targets releases to navigable waterways.
The term “navigable waters” “means the waters of the United States, including
the territorial seas.” 40 C.F.R. 110.1 (2001). But the definition is
much more broad and includes:
(a) All waters that are currently used, were used in the past, or may be
susceptible to use in interstate or foreign commerce, including all waters that
are subject to the ebb and low of the tide;
(b) Interstate waters, including interstate wetlands;
(c) All other waters such as intrastate lakes, rivers, streams
(including intermittent streams), mudflats, sandflats, and wetlands, the use,
degradation or destruction of which would affect or could affect interstate or
foreign commerce including any such waters:
(1) That are or could be used by interstate or foreign travelers for
recreational or other purposes;
(2) From which fish or shellfish are or could be taken and sold in
interstate or foreign commerce;
(3) That are used or could be used for industrial purposes by industries
in interstate commerce;
(4) All impoundments or waters otherwise defined as navigable waters
under this section;
(5) Tributaries of waters identified in paragraphs (a) through
(d) of this section, including adjacent wetlands; and
(6) Wetland adjacent to waters identified in paragraphs (a) through (e)
of this section.
Id. If that definition seems difficult to you, you are not
alone. Federal courts often have difficulty applying the definition to a
given situation to determine if a particular body of water is a “navigable
water.” A simpler definition is that a navigable water is one that can
support small boats, kayaks, canoes, or similar conveyances.” United
States v. Buday, 138 F.Supp.2d 1282, 1284, n.3. The important thing to
remember is that courts tend to err on the side of protection and, hence, decide
in favor of the party -- usually the government -- arguing that the water is a
“navigable water.” For instance, in United States v. Buday, the
defendant bulldozed debris and dug artificial ponds not far from a creek with an
intermittent flow. After the creek overflowed and swept away much of the
fill and debris, he was charged with violating the Clean Water Act. The
Court emphasized that “navigable water” status depended not on whether the water
was actually used in interstate commerce, but whether the water could
influence interstate commerce. The creek’s possible effect on interstate
commerce was evidenced by its impact on farming and livestock, especially when
it flowed heavily, as in this case. Furthermore, the Court found that
because the creek was a tributary to a larger, interstate river, the creek
should also be afforded navigable water status. Accordingly, Buday was
subject to prosecution for his action.
So, how much oil has to get to navigable water before triggering a
notification? The United States Environmental Protection Agency (EPA) uses
the “sheen rule” – any amount of oil that causes “[a] film or sheen upon or
discoloration of the surface of the water . . ..” 40 C.F.R. § 110.3.
Although the Clean Water Act requires notification when the amount spilled is
“harmful,” it has been well established that Congress intended any amount of oil
that forms a sheen to fall within the definition because if there is a sheen the
result “may” be harmful. Orgulf Transport Co. v. United States, 711
F.Supp. 344, 347 (1989). The Orgulf Court implicitly accepted the
EPA’s scientific determination that the sheen test was the best method for
measuring harmfulness, and found “[n]o doubt that even de minimus spills
are prohibited by [the Act].”
New Hampshire uses an even broader
standard to define unlawful spills. New Hampshire RSA § 146-A prohibits
the “[d]ischarge or spillage of oil into the surface water or ground water of
this state, or in a land where the oil will ultimately seep into surface water
or groundwater . . .,” and requires immediate notification to the Department of
Environmental Services (DES) “[w]henever an oil discharge or spillage occurs
which may pollute or which has polluted the surface water or ground water of
this state.” RSA 146-A:4.
DES regulations provide that notification is not necessary when the spill
is: 1) less than 25 gallons; 2) immediately contained; 3) completely
removed within 24 hours; and 4) is not impacting groundwater or surface
water. Unless these four requirements are met, however, any person
responsible for or having knowledge of the spill must report it.
Note that the requirement of immediately notifying DES and the stated 24-hour
period in which to conduct a removal are inherently at odds with each
other. Nonetheless, the fourth requirement makes the conflict less
important because absent a very small release that is instantly removed, it may
be very difficult to know to any degree of certainty that the oil did not
“impact” ground or surface water.
Who to Call
Federal statutory notice requirements can be met with a
call to the National Response Center (NRC) in Washington, D.C. at
1-800-424-8800. The NRC is the sole federal reporting source for all oil
and chemical releases in the United States. The NRC takes the information
and disseminates it to the proper EPA regional office, Department of Interior,
the Research and Special Programs Administration, and any other agency that has
provided the NRC with notification criteria. Although the NRC sends a
courtesy fax to the environmental agency in the state where the release
occurred, a call to the NRC generally does not satisfy state notification
requirements. Regardless of whether a person notifies the NRC, New
Hampshire requires a separate notification to DES. Notification should be
made directly to DES if the spill occurs during normal working hours; otherwise,
the spill should be reported to the State Police.
Liability
Most legislative and regulatory “requirements” have a
corresponding provision that serves either as a carrot to encourage compliance
or a stick to force compliance. Both New Hampshire and federal law fall
into the “carry a big stick” category. Under 33 U.S.C. § 3121(b)(5), a
person having knowledge of a spill must notify the appropriate federal
agency. As demonstrated in countless cases, a failure to make a required
report can result in not only fines, but also a criminal prosecution and
conviction.
Similarly, New Hampshire RSA 146-A:5 mandates that anyone
“[r]esponsible for the operation of any oil facility, carrier, or vessel that
discharges oil in violation of this chapter shall immediately notify the
department of environmental services or its designee.” If an individual
fails to make such a report, he or she will be guilty of a misdemeanor. If
a corporation fails to make the report, it is a felony. Accordingly, any
person who discharges oil to the ground water or surface water is also liable
for the containment, cleanup and removal of the oil. Id.
What should concern owners and operators of corporations in the
transportation industry is that, in the realm of oil spill reporting, the
corporate entity can be found liable for its employees’ failure to report.
See, Apex Oil Co. v. United States, 530 F.2d 1291 (1976). In
Apex, the Court found a transportation company guilty of violations of
the federal spill reporting laws. The Court held that “person” could mean
“corporation” because, unless they held the corporation liable, corporations
would soon learn to allow their employees to suffer the punishment for
unreported smaller spills while the corporation escaped liability and the
environment continued to suffer.
While Apex remains good law in
federal court, no reported New Hampshire case appears to have dealt with the
issue. Given the similarity between the federal and state reporting
statutes, however, New Hampshire may take a similar approach in addressing a
violation. While it is true that a company that reports an oil spill will
be strictly liable for its clean up, a company that fails to report a spill will
not only be responsible for the clean-up costs but could be subject to fines, in
addition to its employees and corporate officers being subject to criminal
convictions. Thus, the cost of non-compliance can far outweigh the cost of
compliance. Persons subject to these statutes should not hesitate to seek legal
advice as soon as possible regarding their potential exposures.
