Emergency Response and Planning Requirements Applicable to Unpermitted Air Pollution Releases
Reitze, Arnold W., Jr., Brigham Young University Law Review
§ 1. INTRODUCTION
Environmental law, as it has evolved over the past thirty-five years, is primarily aimed at those who routinely dispose of wastes to the air, land, and water.1 Environmental law usually requires dischargers to obtain a permit that limits their emissions or effluent discharges.2 Enforcement programs are used to ensure that pollution releases stay within these legal limits.3 However, public health is also threatened by discharges that are not controlled by the laws aimed at routine releases or planned waste disposal practices.
Nonroutine releases, whether accidental, negligent, or due to intentional conduct, are not as amenable to legal control as are routine releases. Therefore, nonroutine releases are subjected to different legal requirements involving notification, clean-up, and compensation programs.4 Such releases have received additional attention in the post-September 11, 2001, era because biological, chemical, and radiological weapons are primarily an air pollution threat.
This Article focuses on the legal regimes established by federal environmental laws to deal with unpermitted releases. Notification requirements are especially important because owners or operators of a facility may be punished both for an unpermitted discharge and for the failure to report it.5 For the government, proving that an illegal discharge occurred can be more difficult than proving a failure to notify.6 In such circumstances, the notification requirements become an important part of the government's program to protect the public from unpermitted pollutant releases, especially in the case of air pollutant releases that disperse quickly.7 To avoid increased penalties, it is important for those responsible for unpermitted releases to notify the proper authorities in a timely fashion.
§2. THE NATIONAL RESPONSE CENTER
The National Response Center (NRC) is the national recipient, or "point of contact,"8 for federally mandated reports of "oil, chemical, radiological, biological, and etiological discharges into the environment anywhere in the United States and its territories."9 NRC is the operations and communications center for the National Response Team (NRT), which is the planning, policy-making, and coordinating organization for discharge incidents. NRT member agencies include the Environmental Protection Agency (chair), the U.S. Coast Guard (vice chair), and fourteen other federal departments and agencies.10 In addition, NRC distributes reported release information to any federal entity that has concluded a written agreement or understanding with NRC.11 NRC is also the contact point for activation of the NRT12 and provides facilities for the NRT to use in coordinating a national response action when required.13 The National oil and Hazardous Substances Pollution Contingency Plan (NCP) contains detailed provisions regarding NRC's duties and organizational structure.14
Coast Guard personnel and civilian employees staff NRC's operations center and provide callers with around-the-clock assistance and information services.15 When a telephone call or web-based notification is received, an NRC Duty Officer asks the caller a detailed set of standardized questions in order to obtain the maximum amount of available information concerning the incident.16 NRC personnel then enter information regarding releases to the environment directly into an online database (IRIS), where it is distributed electronically through the NRS.17 Within fifteen minutes of receiving a notification of a spill or release, NRC notifies the proper federal agency based on (1) the material involved; (2) the mode of transportation used; and (3) any injuries, damage, and fatalities incurred.18 Data collected by NRC is available to the general public under the Freedom of Information Act (FOIA).19 NRC also makes its spill data available via the Internet.20 However, if the data is intended for use in a legal proceeding, a formal request must be mailed to the Coast Guard. …