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July 13, 2010

EPA Publishes EPCRA Reporting Guidance and Interpretations

Bergeson & Campbell, P.C.

In the July 13, 2010, Federal Register, the U.S. Environmental Protection Agency (EPA) provides guidance on various reporting options that states and local agencies may choose in implementing Sections 311 and 312 of the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA). In addition, EPA also provides some new interpretations and revises some existing ones “to help facilities comply with certain of the requirements under EPCRA.” The effective date of the guidance and interpretations is July 13, 2010.

According to EPA, EPCRA is intended to encourage state and local planning and preparedness for releases of extremely hazardous substances (EHS) and to provide the public, local agencies, fire departments, and other emergency officials with information concerning potential chemical risks in their communities. EPCRA Section 302 requires facilities to notify their State Emergency Response Commission (SERC) of any EHS present at their site above its threshold planning quantity (TPQ). The Local Emergency Planning Committee (LEPC) uses this information to develop emergency response plans for the community. EPCRA Section 304 requires facilities to notify their SERC and the community emergency coordinator for the LEPC of any release of an EHS or a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) hazardous substance above its reportable quantity (RQ). Under EPCRA Sections 311 and 312, facilities are required to submit information on hazardous chemicals at their sites above the threshold quantities. The information on hazardous chemicals is submitted to the SERC, LEPC, and the local fire department.

On June 8, 1998, EPA published a proposed rule that would streamline the reporting requirements under EPCRA. Specifically, EPA proposed four major regulatory revisions, along with draft guidance to provide flexibility to the states and local agencies in implementing EPCRA:

  1. Higher threshold levels for reporting gasoline and diesel fuel at retail gas stations;
  2. Relief from routine reporting for substances with minimal hazards and minimal risks;
  3. Relief from routine reporting for sand, gravel, and rock salt; and
  4. “Other Regulatory Changes,” such as reporting of mixtures; removing the Tier I and Tier II inventory forms and instructions from the Code of Federal Regulations, as well as other revisions to the forms and instructions; and minor changes to the emergency planning and emergency release notification regulations.

EPA promulgated final rules for items (1) and (4) on February 11, 1999, and November 3, 2008, respectively. EPA states that it may issue final regulatory provisions for items (2) and (3) “at a later date.” In addition to the four regulatory revisions, EPA took comment on various reporting options intended to streamline the reporting requirements for facilities and to reduce the information management burden for SERCs, LEPCs, and fire departments in the form of draft guidance in the preamble to the June 8, 1998, proposed rule. According to EPA, the main objective of the draft guidance was to provide flexibility to the states and local agencies in implementing Sections 311 and 312. In particular, EPA stated that states may implement any or all of the reporting options provided in the preamble whether issued final guidance or not. Since the proposed rule, many states have adopted at least one or two reporting options, such as electronic filing via diskettes or on-line filing of the federal reporting form, Tier II, or the state equivalent form. States were always given the flexibility to implement EPCRA as necessary to meet its goals, which are to prepare for and respond to releases of EHSs, and to provide the public with information on potential chemical risks in their communities. According to EPA, this flexibility includes adding more chemicals, setting lower reporting thresholds, and creating a reporting form or format that includes more information than is required by the federal reporting requirements.

EPA sought comments on various reporting options under Sections 311 and 312, including: (1) use of Underground Storage Tank (UST) forms to fulfill the requirements for Tier I information under EPCRA Section 312; (2) partnership programs for joint access to EPCRA Sections 311 and 312 information by SERCs, LEPCs, and fire departments; (3) electronic submittal for EPCRA Section 312 reporting; and (4) incorporation of previous submissions into EPCRA Section 312 reporting. These four options, EPA believed, would reduce the information management burden for states and local agencies, as well as minimize the reporting burden for the regulated community. EPA also suggested other options to streamline reporting and revise some existing regulatory interpretations for facilities, including: (1) electronic access to a facility’s databases of material safety data sheets (MSDS); (2) interpretation of the hazardous chemical exemption for solids under EPCRA Section 311(e)(2); and (3) EPCRA Section 312 reporting to fulfill the reporting requirements under Section 311.

In the June 1998 preamble, EPA also defined and solicited comment on several terms or phrases used in the regulations. EPA requested comments on whether EPA should provide guidance on the meaning of the term “promptly” associated with providing notice of any changes relevant to emergency planning and the phrase “as soon as practicable” associated with providing a written follow-up emergency notice under the emergency release notification requirements. EPA did not intend to revise the regulatory requirements, but only to provide guidance for these two terms. EPA states that it received comments from many states and local agencies that the term “promptly” should be defined in the regulations since receiving information from facilities on changes relevant to emergency planning is crucial in developing and/or updating emergency response plans. As a result, EPA defined this term in its November 3, 2008, final rule, and under the regulations any changes relevant to emergency planning must be provided to the LEPC within 30 days after the changes have occurred.

In the July 13, 2010, notice, EPA states that, in general, commenters responding to its June 1998 proposed rule supported some of the options provided in the draft guidance. A few commenters, however, stated that the options may actually increase compliance costs and the risk of non-compliance at companies with multiple facilities due to the loss of consistency in data management and compliance reporting. According to EPA, states may need to develop specific methods to manage the information provided by facilities within their state so that LEPCs can develop emergency response plans and provide the public with information. Thus, states are not required to adopt or implement these options. EPA provides the following summaries of the reporting options and its interpretations:

Reporting OptionGuidance
Use of UST forms to fulfill the requirements for Tier I information under EPCRA Section 312Since all states now require facilities to submit Tier II or state equivalent forms, this reporting option is no longer useful
Partnership Programs for joint access to information and streamlined submission of EPCRA Sections 311 and 312 reporting. If a single point submission is allowed for facilities, then one agency would receive the information and provide access to the other two agenciesStates may implement this approach, but the statutory and regulatory requirements must still be met. That is, all three entities get access to Section 312 information by March 1 annually
Electronic submittal and certification for EPCRA Section 312 reportingStates may require facilities to submit information using Tier 2 Submit, the federal electronic reporting format, or the state equivalent electronic reporting formatThose facilities that do not have capability to file electronically should be given the option to file a hardcopyThe original signature requirement in 40 C.F.R. Sections 370.41 and 370.42 could be met by providing the certification statement on paper (i.e., wet signature) or by any electronic certification established by state and local agencies
Incorporation of previous submissions into EPCRA Section 312 reportingStates may adopt this reporting approach, especially for those facilities that submit Section 312 information on paper
Electronic access to facility MSDS databaseEPA believes that this approach is inappropriate since there is a concern for computer and information security
EPCRA Section 312 reporting to fulfill reporting requirements under Section 311This reporting approach is only beneficial to those facilities that acquire a new chemical between October 1 and December 31 of any given calendar yearStates may implement this reporting approach ensuring that facilities comply with Section 312 three months after acquiring a new chemical
Emergency release notificationFacilities may have up to 30 days to submit a written follow-up report to state and local agencies. States may implement more stringent requirements
Hazardous chemical exemption for solids under EPCRA Section 311(e)(2)Facilities would only have to count the amount of fume or dust given off a piece of metal, brick, or any other manufactured solid item that undergoes a modification process (i.e., cutting, welding, etc.). States may implement more stringent requirements