Does your business use or handle chemicals? If so, then read on.
EPA recently released its 2015 enforcement report, noting thousands of enforcement cases, tens of thousands of inspections, and hundreds of millions of dollars in penalties. Is your business ready for 2016? One of the EPA's enforcement mainstays is the Emergency Planning and Community Right to Know Act ("EPCRA"), which can give rise to substantial penalties for facilities that manufacture, process or use certain chemicals. A basic understanding of EPCRA is essential to preparing for that next "surprise" inspection by EPA and avoiding fines that might otherwise be assessed.
EPCRA emerged as part of the 1986 Superfund Amendments and Reauthorization Act ("SARA"), specifically Title III, in order to increase community awareness, information and reporting of chemical hazards. The law focuses on: (1) emergency response planning, (2) emergency release notification, (3) hazardous chemical storage reporting, and (4) toxic chemical release reporting. As with most environmental laws, evaluating compliance obligations can be cumbersome. However, there are 3 basic questions every facility should consider as a starting point.
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Does your facility handle or use chemicals?
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Are MSDS's required for the chemicals and/or do any of the chemicals appear on the "List of Lists"
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Do the chemicals exceed applicable threshold quantities?
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Consider quantities of chemicals present at any one time, and quantities manufactured, processed or otherwise used over the course of a year.
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For emergency release reporting, one must also consider whether there has been a release of a "reportable quantity" that triggers immediate notification requirements.
For those answering "yes" to the first two questions (use/handling of chemicals involving MSDS or on "List of Lists"), a technical inquiry should be undertaken in order to answer the third question (threshold quantities). Understanding threshold quantities is essential to evaluating how and whether EPCRA compliance is achieved and maintained. Here is a summary of how your facility may be affected.
Emergency Response Planning [Section 301-303]. Exceeding the "threshold planning quantity" (TPQ) for "extremely hazardous substances" requires notification within 60 days to the state emergency response commission (SERC) and local emergency planning committee (LEPC), designating a facility representative as an emergency coordinator, and providing information that the committees require to develop emergency response plans. There are hundreds of "extremely hazardous substances" with TPQ's ranging from 1 to 10,000 pounds.
Emergency Release Notification [Section 304]. Immediate notification to the LEPC and SERC is required for the release of a regulated hazardous substance that exceeds the "reportable quantity" set forth in the regulations. There are thousands of substances with "reportable quantities."
Hazardous Chemical Storage Reporting [Section 311 and 312]. Depending on the specific chemical and the threshold quantity, a facility may be required to submit the Material Safety Data Sheets (MSDS) or a chemical list with additional details to the SERC, LEPC and local fire department. Additionally, the facility could be required to submit annual "Tier 1" or "Tier 2" reports (due March 1) providing an inventory of chemicals and hazards for the preceding year. Threshold quantities triggering these requirements are generally the lesser of the TPQ or 500 pounds for "extremely hazardous substances," and 10,000 pounds for other chemicals where OSHA requires an MSDS.
Toxic Release Inventory (TRI) Reporting [Section 313]. Annual TRI reports (due July 1) are required for facilities with at least 10 full time employees in certain industries where chemicals are "manufactured, processed, or otherwise used" above threshold quantities. There are hundreds of chemicals subject to reporting and though there are exceptions, the general reporting thresholds are triggered at 25,000 pounds per year for chemicals manufactured or processed, and 10,000 pounds per year for chemicals otherwise used.
EPCRA protects first responders and increases community knowledge of chemical hazards by requiring individual facilities to conduct detailed reporting. The complexity is undeniable, but the consequences of ignoring compliance are significant. The law affects numerous businesses and the failure to report can result in substantial penalties.
