One of the toughest tasks in a compliance audit is telling a well-intentioned client that the environmental program that he has been ignoring does, in fact, apply to his operation. In most instances, it’s not a matter of being unaware of the regulation but instead incorrectly determining that the requirement doesn’t apply. This can result from several sources of false confidence:
- A program may not be an exact fit.
An emergency response program would seem on the surface not to apply to a facility that doesn’t house any hazardous materials or dispose of hazardous waste.
- A program may not have been intended for them.
An oil spill prevention program would seem not to apply to a facility that does not store oil.
- A facility may have had successful agency compliance inspections.
The inspector may have been conducting a media-specific inspection and may not have looked at issues outside that specific medium. Or, as inspectors or human, he may have just missed it—this time.
In this first article of a five part series, we will briefly touch on the requirements of the Emergency Planning and Community Right-to-Know Act (EPCRA). EPCRA was passed by Congress in response to concerns regarding the environmental and safety hazards posed by the storage and handling of toxic chemicals. These requirements covered emergency planning and “Community Right-to-Know” reporting on hazardous and toxic chemicals.
Very few facilities have no reporting requirements under EPCRA.
Among the most common EPCRA requirements:
Sections 312 – Tier II Inventory Report.
Any facility required under OSHA regulations to maintain MSDSs for the hazardous chemicals stored or used at the facility in a quantity greater than 10,000 pounds (500 pounds for Extremely Hazardous Substances) must report by March 1 of each year, to state and local officials and local fire departments, inventories of all on-site chemicals for which MSDSs exist.
Note that the chemicals eligible for reporting are not necessarily “hazardous”, i.e., flammables, explosives, acute toxics, but include any substances for which a facility must maintain an MSDS under the OSHA Hazard Communication Standard. That is just about everything. So if you store any raw material, intermediate, or finished product that requires an MSDS, Tier II reporting applies with only limited exceptions.
Section 313 — Toxics Release Inventory (TRI)
Any facility that manufactures, processes, or otherwise uses any of the over 600 listed TRI chemicals above the applicable threshold quantities is required to complete and submit a toxic chemical release inventory form (Form R) annually by July 1.
A facility is required to report to the TRI Program if it meets ALL of these three threshold criteria:
- The facility is included in a TRI-covered North American Industry Classification System (NAICS) code; and
- The facility has 10 or more full-time employee equivalents (i.e., a total of 20,000 hours or greater); and
- The facility manufactures (defined to include importing), processes, or otherwise uses any EPCRA Section 313 chemical in quantities greater than the established threshold in the course of a calendar year.
The error I found most often here is in how articles are addressed. As defined in the TRI regulations, an article is a manufactured item: (1) Which is formed to a specific shape or design during manufacture; (2) which has end use functions dependent in whole or in part upon its shape or design during end use; and (3) which does not release a toxic chemical under normal conditions of processing or use of that item at the facility or establishments. EPA’s article exemption states that if a toxic chemical is present in an article at a covered facility, that facility is not required to consider the amount of the toxic chemical(s) contained in the article when calculating reportable quantities of EPCRA-listed chemicals.
Where some misinterpretation comes in is in the “does not release a toxic chemical under normal conditions of processing or use.” Steel, for example, contains chromium, manganese, nickel, copper—all listed TRI materials. It would be easy to overlook these materials as they are not “released” from the steel as it sits in the yard. However, if a steel plate is cut, then it does release these materials. Therefore, steel plate could be treated as an article in many cases and not in others.
EPA has published volumes of guidance information over the years. Search for EPCRA on the epa.gov website or contact Access for help in determining applicability of these often-misunderstood programs.