Hurricanes, Flooding, and EPA Regulations

By Ethan R. Ware, Williams Mullen

Editor’s note – Ethan Ware is a partner with the law firm of Williams Mullen. He manages the firm’s Columbia, South Carolina, office and represents businesses and industries in environmental and health and safety legal matters.

It seems to happen every year. A natural disaster disrupts fall football season and interstates are full of evacuees gobbling up hotel rooms and squatting in the nearest safety zones. In those times, no one ever thinks of the plant environmental manager trying to decide what to do and how to comply with arcane environmental cleanup and reporting requirements in the event of a spill or explosion. Well, the Environmental Protection Agency (EPA) is coming to the rescue. Sort of.

On May 31, 2017, EPA issued guidance entitled As Hurricane Season Begins: A Reminder to Minimize Process Shutdown Related Releases and to Report Releases in a Timely Manner. The document provides direction to environmental health and safety professionals on compliance with environmental cleanup and release reporting requirements during a hurricane or flooding event. In summary, EPA will not excuse failure to report a release or spill due to an act of God, but a facility may be relieved of some or all of its cleanup responsibility if the release or spill is unpreventable.

A Warning
EPA’s hurricane guidance first cautions industry to not avoid environmental requirements during a natural disaster: “[A] hurricane is predictable and as a result, lends itself to early preparations for minimizing its effect on a facility.” EPA specifically points out the Clean Air Act requires a “general duty to prevent accidental releases of certain [flammable and toxic substances] and…extremely hazardous substances and to minimize the consequences of accidental releases which do occur” for any air emission source (40 Code of Federal Regulations [CFR] Section 68.130).

Covered facilities are required under EPA’s interpretation of the Clean Air Act to assess hazards caused by flooding and high winds before they happen, then take steps to prevent accidental releases and minimize their consequences. In other words, liability under the act may follow if air pollution control technology is damaged by extreme weather causing an air release but the damages were reasonably preventable. This is quite a burden.

Release Reporting Requirements
Facilities are not relieved of the obligation to report the spill or discharge of industrial chemicals that may occur during a storm event. Section 103 of the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), as amended (42 United States Code [USC] Section 9603), requires the person in charge of any facility to “immediately notify” the National Response Center of any release of a hazardous substance if the release is to the environment and exceeds the chemical’s reportable quantity within a 24-hour period (40 CFR Section 302.4). EPA guidance interprets “immediately” as filing a report within 15 minutes of knowledge the release is sufficient to warrant reporting under the statute.

The facility must also warn local authorities if the event causes the release to leave the property boundaries. The Emergency Planning and Community Right-to-Know Act, Section 304, provides in relevant part for immediate notification to the state Emergency Response Commission and Local Emergency Planning Committee when the reportable quantity for any CERCLA hazardous substance or an extremely hazardous substance is exceeded and the released substance may affect areas offsite.

The Clean Water Act (CWA), 42 USC Section 1351, governs the spill or release of oil to waters of the United States during a natural disaster. Immediate notification is required to the National Response Center under the CWA where an oil sheen appears on waters of the United States or when a facility’s spill prevention, control, and countermeasures plan requires reporting (40 CFR Sections 110 to 112).

All of these reporting requirements are entrenched into federal law. There is no “act of God” defense for any of the reporting requirements so hurricanes and flooding do not relieve a facility from monitoring and reporting a qualifying release during these most difficult times.

Cleanup Obligations: Measured Relief
On the other hand, the CWA and CERCLA recognize a defense for cleanup liability if a natural disaster causes contamination, although the defense may be difficult to prove. Nonetheless, facilities should not be afraid to claim relief from cleanup liability if the defense applies.

Federal law mandates a responsible party must clean up any spill or release to the environment and liability for cleanup is regardless of fault. Section 311(f)(1) of the CWA states a party may be required to clean up a release of oil or petroleum products to waters of the United States, while CERCLA Section 107(a) holds a potentially responsible party liable for a spill or release of hazardous substances to the environment.

Both statutes excuse a party from the cleanup if the release is the result of an “act of God.” Proving act of God under either statute is not easy to do even when natural disasters cause the liability. The facility seeking relief must show: (1) the act of God was unanticipated, (2) the act of God qualifies as a grave natural disaster, (3) the sole cause of the release is the act of God, and (4) the release resulting from the act of God could not have been prevented by exercise of due care or foresight. Flooding and hurricanes likely satisfy criteria 2 and 3; they are grave natural disasters and spills or releases may result. The other elements are not so easily established.

Some courts now hold hurricanes and the like as not “unanticipated” as required by criterion 1. The National Weather Service routinely warns and updates communities of these impending natural disasters providing time, in most cases, to mitigate the release. As a result, arguments such disasters were not anticipated may be nearly impossible to win. In Liberian Poplar Transports Inc. v. United States (1992), a federal court found a weather warning from the National Weather Service sufficient to void the act of God defense for an unanticipated oil release during a hurricane where records showed the company monitored progress of the storm prior to its impact but did little to secure oil containers.

For a company to argue its release could not have been prevented under criterion 4, more is required to be shown than just that the facility was not negligent in its preparation for the storm:

To relieve a defendant of its responsibility [under the act of God defense], it is incumbent on him to prove that due diligence and proper skill were used to avoid the damage and that it was unavoidable.1

It is now almost indisputable: If a company has warning and opportunity to prevent a release during weather events, there is no defense to the cleanup under the CWA and CERCLA.

Recommended Strategy
There is nothing a company can do to stop a hurricane or flooding, nor can the company prevent damages to a manufacturing plant during such events. However, if the natural disaster is truly unanticipated and the release of oil or chemicals during it is unpreventable, then there may be a defense to liability for cleanup costs associated with the release.

To minimize your plant’s risk of liability, a company may elect to take the following steps:
• Develop a list of all systems at the plant vulnerable to a natural disaster.
• Review manufacture specifications and emergency response protocols and take all reasonable measures available to prevent a release from these systems during a weather event.
• In the event of a pending natural disaster, document all measures taken to prevent a release at each system, then rely on the documentation to mitigate liability for any release that may occur.

1. Fasoyiro, Laurencia. 2009 “Invoking the Act of God Defense.” Environmental and Energy Law and Policy Journal 4 (1): 19.

October 2017 RENDER | back