Industrial Environmental Association Input to the Task Force for Release Reporting Regulations
I'm David McKinley, with McKinley Engineering. Today I am here on behalf of the Hazmat Committee of the Industrial Environmental Association. The Industrial Environmental Association is comprised of more than 50 manufacturing and consulting companies in the San Diego area. We have been active in developing environmental policy for over 30 years. I'm an IEA board member, and am a former chair of the Hazmat Committee.
The purpose of the task force in drafting regulations should be to implement the law, specifically
California Health & Safety Code 25510, and the associated sections of law that provide definitions and context. Implementing the law should mean neither neglecting any clear directive of the law, nor extending regulatory reach beyond the law.
In preparing these regulations, there are certain critical definitions provided by the law to keep in mind.
Among these are the definitions of "Hazardous Materials", "Release", "Threatened Release"
"Hazardous Materials" has a very special definition in this section of law. If a material is dilute, or only a small amount is present, or some other physical or chemical characteristic limits its effect, so that no
"significant present or potential hazard" would occur if it were to be released "to the workplace or to the environment", it is NOT a hazardous material. If it is not a "hazardous material" by this definition, no release reporting is required. Note that this definition distinguishes between the concepts of workplace and environment, though both apply in defining hazardous material.
"Release" is defined in the law as "release to the environment" ONLY. Release to the workplace is NOT included in the definition of release.
Release to any other space that is NOT the environment also is not included in the definition of "release" for release reporting purposes.
The term "Threatened Release" includes clear and logical language to define "threatened". But bear in mind that here again "release" means release to the environment. A "threatened release" that is not a threat to the environment is not within the domain of this law. We think the actual scope of
"threatened releases" is quite small. Rarely would one have knowledge of a threatened release of any significance.
The regulations to implement this law must not create novel definitions of these important words, but must be true to the definitions in the underlying law.
In Section 25503(b)(4) the law provides the following explicit guidance regarding how to go about writing regulations to define which "releases and threatened releases" need reporting pursuant to
Section 25510. "The office shall consider the existing federal reporting requirements in determining a definition of reporting releases pursuant to Section 25510."
There are other critical terms used in the law that are not defined in the law. These require clarification by the regulations to be composed. Here are the ones we see as especially important:

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"Significant present or potential hazard" in reference to the definition of "hazardous materials"
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"Environment" in reference to the definition of "release"
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"Immediately" in reference the time frame for reporting following "discovery" of a "release".
The term "discovery" may also require clarification.
Here is our input regarding these terms:
"Significant ... hazard" does not mean any and every degree of conceivable hazard. The law gives the primary considerations in evaluating if the "hazard" due to a material is significant: "its quantity, concentration, or physical or chemical characteristics."
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Regarding "quantity" there is clear precedent for many common chemicals in the "reportable quantities" of the Federal CERCLA regulations. Remember, the law itself tells us to look at federal reporting requirements. Absent a compelling reason, we recommend using these federal reportable quantities to define "significant hazard".
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Regarding "concentration", we have clear information that can help us with airborne releases: the body of Permissible Exposure Limits (PEL's) and Short Term Exposure Limits (STEL's) in Cal-
OSHA regulations. These levels are deemed safe for ongoing workplace exposure, so clearly these levels do NOT represent significant hazard. We would suggest that exceeding PEL's by
100% for one hour or longer, or where STEL's have been defined, exceeding the STEL's by 50% would reflect significant hazard worth reporting, if indeed the releases have been to the environment.
There are analogs for releases of dilute liquids to receiving bodies, or to the soil, that do not cause significant hazard, and so are not hazardous materials under the law. Clarifying these analogs will take some work by the task force.
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Regarding "physical and chemical characteristics", there are many considerations. It will require real work by the task force to properly address this matter. A simple, straightforward consideration is the case of a material that is absorbed or otherwise immobilized by soil, or other media. Preventing exposure by immobilizing the material can reduce a material's hazard down to the insignificant level.
The term "Environment" does not mean "everywhere."
Structures that are designed and function to separate space from the environment clearly are NOT part of the environment. The regulations should clarify such structures. Here are some examples of structures specifically designed to create a separation between the environment and human activity:
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Enclosed buildings
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Private campuses

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Secondary containments around tanks or piping systems
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Private industrial waste systems
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Municipal sanitary sewage systems (they have their own release reporting rules, contained in the permits they issue)
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Lined or paved structures such as pits, sumps, roads or ponds
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Earthen structures that contain or absorb liquids to protect surface or ground water
Federal CERCLA regulations also can help us in defining the "environment" (or the NOT-environment) for release reporting purposes. CERCLA emergency release regulations (40CFR355.40) specifically exclude reporting
"Any release which results in exposure to persons solely within the boundaries of the facility;" where facility is defined as follows
"Facility means all buildings, equipment, structure, and other stationary items that are located on a single site or on contiguous or adjacent sites and which are owned or operated by the same person (or by any person which controls, is controlled by, or under common control with, such person). Facility shall include manmade structures in which chemicals are purposefully placed or removed through human means such that it functions as a containment structure for human use. For purposes of emergency release notification, the term includes motor vehicles, rolling stock, and aircraft."
The types of releases that can be most confusing are releases to the ambient air, usually considered to be part of the environment. Some have suggested that all releases to the air are actually releases to the environment. We submit this is not the case. A definition from an EPA air pollution guidance letter, can be helpful here:
"Ambient air" is defined as "that portion of the atmosphere external to buildings to which the public has general access."
A fenced or gated site, or a site clearly identified as a No Trespassing zone, would be one where the public does not have general access, and would not be part of the environment for the purposes of reporting airborne releases. (Airborne releases rarely represent significant hazards to property or organisms other than human beings.)
"Immediately" has always been a controversial term when it comes to release reporting. The law says
"the handler or an employee, authorized representative, agent, or designee of a handler, shall, upon
discovery, immediately report any release or threatened release of a hazardous material to the unified program agency"
In developing regulations to clarify "immediately", we recommend keeping the following in mind:
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Though it is the handler's obligation to have employees or agents who are qualified to report releases to a regulatory agency, it is not realistic to expect every employee to be capable of

determining the reportability of a release, and of providing useful information in a release report. It is best if most employees are trained to notify qualified individuals that a release may have occurred, or be in progress. Hence the term "discovery" should be defined to recognize this reality.
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Immediate release reporting should not be simply a compliance exercise, but it should have a meaningful role in an actual agency response. But the fact is, not every release to the environment can or should have an agency response, certainly not an emergency response. The definition of "immediate" should take this into account.
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As one who has filed release reports during actual release situations, I know that obtaining meaningful information is not typically a straightforward task. Often initial information is mistaken. The process of "discovery" can involve a substantial amount of inquiry and even firsthand investigation.
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In many situations, an individual qualified to report the release also has knowledge that may be urgently needed to mitigate a release. In that situation, delaying reporting can mean a less hazardous, more controlled release. This factor also should be considered in defining
"immediate" for release reporting purposes.
In conclusion, the Industrial Environmental Association appreciates the opportunity to offer these inputs into the process of creating regulations that are true to the underlying law, will minimize misunderstandings between agencies and the regulated community, and will focus agency resources on significant releases to the environment that truly will benefit from agency emergency response.
David McKinley P.E., (619) 857-3171, davidjmckinley@gmail.com for the
Industrial Environmental Association
1330 Orange Avenue, Suite 100
Coronado, CA 92118
Phone: (619) 522-9000
Fax: (619) 522-9005
Email: Jack.Monger@iea-sd.com
Email: Carly.Keen@iea-sd.com