EMERGENCY REPORTING FOR OIL DISCHARGES: RECENT STATUTORY AND REGULATORY CHANGES

Abstract

ABSTRACT The principal trigger for federal reporting of discharges of oil remains the “sheen test” promulgated in 1970 under the authority of the Clean Water Act. The sheen test is not, however, the only requirement of concern to potential dischargers of oil. Certain provisions of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), of Title III of the Superfund Amendments and Reauthorization Act of 1986 (SARA), and of other environmental statutes may also apply, complicating the picture for the regulated community. CERCLA requires federal reporting of releases of hazardous substances, but contains an exclusion for most releases of petroleum products. The CERCLA “petroleum exclusion” is not, however, absolute, and recent policy documents by the U.S. Environmental Protection Agency (EPA) have clarified the scope of the exclusion. Releases of certain petroleum waste streams listed under the Resource Conservation and Recovery Act (RCRA), for example, are not excluded. Title III of SARA, which expands the emergency reporting requirements of CERCLA to include notification of state and local response authorities for releases of CERCLA hazardous substances and of listed “extremely hazardous substances” (EHSs) does not contain the equivalent of the CERCLA petroleum exclusion. To the extent that the list of EHSs includes certain constituents of petroleum products, it is possible that state and local reporting will be required under SARA Title III for oil discharges otherwise (or previously) exempted from federal reporting under CERCLA. In 1988, a regulatory program for reporting leaks from underground storage tanks was established under Subtitle I of RCRA. In addition to these federal requirements, statutory provisions enacted by various states also affect oil discharge reporting. This paper presents a review of the changing regulatory picture for oil discharge reporting requirements by first examining recent regulatory and judicial developments related to the oil sheen test, and then exploring the potential impact of other federal and state programs. Summary tables comparing federal provisions are provided as a useful guide for determining the scope of these programs.