Tier II Reports Due by March 1

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

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

Written by:

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.