By Robert E. Holden

The recent decision by the U.S. Court of Appeals for the Fifth Circuit in Center for Biological Diversity, Inc. v. BP America Production Co., et al, no. 12-30136 (5th Cir. Jan. 9, 2013) (“CBD”), reversed in part the district court’s dismissal of citizen suit claims against BP in connection with the Deepwater Horizon incident, upholding the citizen suit cause of action seeking to have BP submit EPCRA reports regarding the Macondo spill. CBD remains to be fully adjudicated, but CBD highlights the need for OCS operators to include EPCRA reporting in their release reporting plans.

Under EPCRA, any release that requires CERCLA reporting to the National Response Center requires EPCRA reporting, and any reportable quantity release of EPCRA-listed “extremely hazardous substances” also requires EPCRA reporting. The EPA EPCRA regulations specify that immediate emergency release notification must be provided to: 1) the “community emergency coordinator for the [Local Emergency Planning Committee (LEPC)] of any area likely to be affected by the release,” or if there is no LEPC, “the relevant local emergency response personnel;” and 2) the State Emergency Response Commission of any State “likely to be affected by the release.” 40 C.F.R. § 355.42(a). The EPCRA reporting regulations require both immediate reporting and follow-up written reporting “as soon as practicable.” 40 C.F.R. § 255.43. The CBD suit is focused on the written report provisions.

OCS operators may want to review their emergency release reporting programs to ensure EPCRA compliance.