Tier II Reports Due by March 1

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
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It is that time of year again. If your company has certain chemicals in quantities that trigger reporting requirements under Section 312 of the Emergency Planning and Community Right-to-Know Act (EPCRA), your annual Tier II report is due by March 1, 2013.

EPCRA was enacted in 1986 after a chemical release in Bhopal, India, killed 1,000 people and injured many more. The law was designed to alert citizens to chemicals present in their communities and to ensure that emergency responders have the information they need to respond to chemical emergencies. If you use or store chemicals at your facility, three specific sections of EPCRA may apply to you: Sections 311, 312, and 313.

Section 311

You may already maintain material safety data sheets (MSDSs) as required by the Occupational Safety and Health Administration (OSHA) for hazardous chemicals in your workplace. If 10,000 pounds or more of a chemical is present at the facility at any one time, you must notify the State Emergency Response Commission (SERC), the Local Emergency Planning Committee (LEPC), and the local fire department. For chemicals designated by the U.S. Environmental Protection Agency (EPA) as “Extremely Hazardous Substances,” reporting is required if the chemicals are present at the facility at any one time in an amount equal to or greater than 500 pounds or the threshold planning quantity for that chemical (whichever is less). Common extremely hazardous substances include chlorine (used in swimming pools and water treatment plants), sulfuric acid, nitric acid, and anhydrous ammonia.

You may make notification either by submitting a copy of the MSDSs or a list of the chemicals that are present in a reportable quantity.

Section 311 notifications must be updated within 90 days of obtaining a new chemical or chemical amount subject to reporting.

Section 312

Before March 1 of every year, facilities must submit an Emergency and Hazardous Chemical Inventory Form, called a Tier II form, to the SERC, LEPC, and the local fire department. The thresholds for submitting Tier II forms are identical to the thresholds listed above for Section 311. If a threshold quantity of any chemical was present at your facility at any time during the preceding calendar year, that chemical must be reported.

Section 313

Section 313 requires certain facilities to submit a Toxic Release Inventory (TRI) Form, known as Form R, to EPA and the SERC on or before July 1 of each year. Whether you have to report depends on:

  1. Whether your facility falls within certain Standard Industrial Classification (SIC) or North American Industry Classification System (NAICS) codes; and
  2. Whether you “manufactured,” “processed,” or “otherwise used” a threshold quantity of any of the chemicals on EPA’s list of toxic chemicals.

The list of toxic chemicals is a narrower list than the list of chemicals subject to Sections 311 and 312. The typical reporting threshold for chemicals covered under Section 313 is 25,000 pounds for chemicals manufactured or processed at a facility, and 10,000 pounds for chemicals “otherwise used.” Some chemicals must be reported at far lower levels. For example, lead must be reported at the 100 pound threshold.

EPA’s “List of Lists,” which includes chemicals designated as Extremely Hazardous Substances and chemicals subject to Section 313 reporting, is available here in various formats.

Common Problems

EPA routinely takes enforcement action against facilities that fail to file the proper reports. Already this year, the Environmental Appeals Board approved an administrative settlement that required a telecommunications company to pay a total of $1.375 million in fines and environmental projects for alleged violations of EPCRA, the Clean Water Act, and the Clean Air Act at facilities in 43 states.

Common failures in Tier II reports include:

  • Hazardous chemicals in batteries. Lead-acid batteries contain lead, the reportable quantity for which is 100 pounds, and sulfuric acid, the reportable quantity for which is 500 pounds.
  • Gasoline and diesel fuel. If you are not a retail facility, the reporting threshold is 10,000 pounds or about 1,500 gallons. (Note that if you have the capacity to store more than 1,320 gallons of oil in above-ground containers, or more than 42,000 gallons in underground containers, you usually must also have a Spill Prevention, Control, and Countermeasure Plan under the Clean Water Act.)
  • Ammonia in refrigeration systems. The reporting threshold for anhydrous ammonia is 500 pounds. (Note that if you have more than 10,000 pounds of anhydrous ammonia in a process, you must also prepare a Risk Management Plan under the Clean Air Act.)

EPA may seek up to five years of penalties at $37,500 per day for each violation of EPCRA. Cases in which EPA identifies violations through its own investigation and pursues enforcement are often settled for penalties of tens of thousands of dollars. Companies can mitigate their enforcement risk by auditing their facilities for EPCRA compliance and voluntarily disclosing potential non-compliance to EPA under EPA’s Audit Policy. If a company meets the requirements of the Audit Policy, EPA will waive up to 100 percent of the gravity-based component of civil penalties and will assess only the economic benefit of non-compliance.

Companies performing audits should also note that some states and local governments have analogous chemical inventory form filing requirements. Some have lower thresholds than EPCRA Section 312 and require filing fees.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

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