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Must You Report Barrels That Are Not Leaking as a Release?

April 22, 2010 | Posted by vivi.heger@alston.com | Topic(s): Legislative & Public Policy (State, Local, Federal, Int'l)

Question: A developer has purchased property and discovers that the prior owner left several 55-gallon barrels that are full outside in storage area. The barrels are labeled "Hazardous Waste" and the date on the label reflects that materials were first stored in the container more than six months ago. The barrels are closed, in good condition, and not leaking. Does federal law require the owner to provide a report to environmental agencies about the barrels even though they are intact and not leaking?

Answer: Yes, the developer is required to report the discovery of the barrels if the amount of materials in the barrels exceed reportable quantities specified in the regulations, which is probably the case here given the number of barrels involved. Federal law requires all property owners to report any condition that is considered to be a "release" of a reportable quantity or more of a hazardous substance or waste to the environment. Though the hazardous waste barrels are intact and not leaking, the term release is defined broadly and includes not only “any spilling[and] leaking" but also "the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance, pollutant, or contaminant.” 40 Code of Federal Regulations (CFR) § 302.2. The barrels that the developer discovered clearly were abandoned by the prior owner, unless facts show plans by the prior owner to properly dispose the waste. Federal law required the developer, as the new owner, to report the abandoned barrels as a release to the environment, if a reportable quantity or more is involved. Reports must be made to the National Response Center by telephone and to local and state emergency response centers. 40 CFR §§ 302.4, 355.40. Failure to report is subject to considerable penalties of up to $27,500 per day. Additionally, because the materials in the barrels have been accumulated for more than six months, authorities may bring enforcement action against the prior owner for storing waste for extended periods without authorization. State laws may impose additional reporting requirements as well and should be explored.