Spill Reporting

April 1, 1999 Advisory

The newly enacted provisions concerning significant contamination reporting join section 22a-450 of the General Statutes of the State of Connecticut, which creates a broad requirement to report to the DEP spills or releases of a wide variety of substances. Enacted in 1969, section 22a-450 has never been the subject of implementing regulations or guidance. Confusion within the regulated community as to what constitutes a reportable spill has ensued and, understandably, has caused anxiety and possibly over-reporting. In 1995, the statute was amended to require reporting only for spills that "pose[] a potential threat to human health or the environment." While conceptually reducing the universe of reportable spills, the amendment added the notoriously vague concept of a "potential threat" to human health or the environment, and, therefore, did little to clarify the requirements of the statute.

In 1996, in an attempt to clear up the confusion over spill reporting, the DEP Waste Management Bureau Advisory Committee set up a Spill Notification Regulations Subcommittee, comprised of members of the regulated and regulating community (the "Subcommittee") to advise the DEP on a strategy for spill reporting in Connecticut. Earlier this year, the Subcommittee produced a report recommending a spill reporting strategy that, among other things, seeks to clarify terms where they are vague; creates reporting exceptions, carve-outs, and thresholds; and allows for reporting flexibility for certain qualified facilities.

Essentially, the strategy recommends a risk-based, common sense approach to spill reporting. Contained or confined spills, or spills of substances that by their chemical nature are not dangerous would not need to be reported, nor would insignificant quantities of admittedly harmful substances. In addition, the strategy allows for certain facilities with expertise in the handling of hazardous substances to set up their own written spill reporting protocol subject to DEP approval.

The strategy contains helpful concepts and even some detail (proposing reportable quantities for chemicals, petroleum, and extremely hazardous substances). It does not suggest a preference for implementing the strategy through legislation, regulation, or guidance. Nevertheless, the strategy sets forth a reasoned, risk-based approach that should go a long way toward clarifying the duty to report under section 22a-450.