Introduction

Companies often question how to calculate the threshold and to report lead acid batteries under sections 311 and 312 of the Emergency Planning and Community Right-to-Know Act (EPCRA) and Environmental Protection Agency (EPA) regulation 40 CFR 370. Lead acid batteries contain both an extremely hazardous substance (EHS) and other hazardous chemicals. The purpose of this Fact File is to provide guidance for the calculation of reporting thresholds under sections 311 and 312 of EPCRA for industrial-type (non-consumer) lead acid batteries, such as those used in powered industrial trucks (also known as forklifts) and telephone switching stations.

Background

EPCRA sections 311 and 312 generally apply to the owner or operator of a facility that must prepare or have available a safety data sheet (SDS) or material safety data sheet (MSDS) for each hazardous chemical as required by the Occupational Safety and Health Administration (OSHA) Hazard Communication (HazCom) Standard at 29 CFR 1910.1200. EPA’s regulations published at 40 CFR 370 establish minimum threshold levels that govern EPCRA reporting requirements for facilities covered by EPCRA sections 311 and 312. In addition, these regulations provide instructions on how to report if threshold levels are met or exceeded.

Specifically, Part 370 requires owners or operators of covered facilities handling or storing any non-exempted hazardous chemicals to submit the following to the State Emergency Response Commission (SERC), Local Emergency Planning Committee (LEPC), and fire department with jurisdiction:

• Either (1) SDSs or MSDSs, or (2) a list of facility non-exempted hazardous chemicals; and
• A Tier II chemical inventory form (or state equivalent form) by March 1 annually for non-exempted hazardous chemicals, if the hazardous chemicals are present at any one time at the facility in an amount equal to or greater than their threshold levels during the preceding calendar year.

Lead acid batteries are hazardous chemicals

OSHA has determined that lead acid batteries are “hazardous chemicals” under the OSHA definition at paragraph 1910.1200(c) since there are physical and health hazards associated with them. Lead acid batteries have the potential to emit hydrogen gas which, upon ignition, may result in a fire or explosion. Furthermore, OSHA’s directive entitled, Inspection Procedures for the Hazard Communication Standard (HCS 2012) (CPL 02-02-079, July 9, 2015), states that lead acid batteries do not fall under the article exemption because they have the potential to leak, spill, or break during normal conditions of use, including foreseeable emergencies.

Lead acid batteries are mixtures

Under EPCRA sections 311 and 312, a lead acid battery would be considered a “mixture,” containing both sulfuric acid, an extremely hazardous substance (EHS), and other hazardous chemicals, such as lead, lead oxide, and lead sulfate. Section 370.14 explains how mixtures are handled for reporting purposes.

Calculating the EHS threshold

Since a lead acid battery contains sulfuric acid, an EHS, the EPA regulations at 370.14 require an owner or operator of a facility to aggregate the sulfuric acid present in all lead acid batteries, as well as in any other mixture or in pure form at the facility, in order to determine if the threshold has been met or exceeded. While the threshold planning quantity (TPQ) of sulfuric acid is 1,000 pounds per 40 CFR 355 Appendices A and B, the reporting threshold level for EHSs according to subparagraph 370.10(a)(1) is an amount equal to or greater than 500 pounds (227 kilograms) or the TPQ, whichever is lower. Therefore, if the aggregated amount of sulfuric acid present at the facility equals or exceeds the minimum EHS reporting threshold of 500 pounds, the sulfuric acid is reportable for both SDS/MSDS and Tier II reporting.

Calculating the non-EHS thresholds

In regard to the non-EHS chemicals, the owner or operator of the facility is not required to aggregate those hazardous chemicals to determine the threshold and reporting. Instead, the facility has two options:

• Option 1 — The facility owner or operator would add the total weight of the lead acid batteries and if the reporting threshold has been met (which is 10,000 pounds for non-EHS hazardous chemicals), the facility would report the lead acid batteries.
• Option 2 — The facility owner or operator would add the total weight of each of the individual hazardous chemicals in the lead acid batteries as well as the amount of those chemicals present throughout the facility to determine if the threshold (10,000 pounds) has been met. The owner or operator would then report each of the individual chemicals which have met or exceeded the threshold level.

Lead acid battery reporting guidance

Once the facility determines it needs to report the lead acid batteries, it usually has two primary choices under the 40 CFR 370.14 regarding the manner in which it reports. The facility may either list the:

• Sulfuric acid separately on the Tier II form, or
• Lead acid batteries, indicating that sulfuric acid, an EHS, is a component of the mixture.

It should be noted that the regulations at 370.14(b) explain that reporting a mixture, such as the batteries, under both sections 311 and 312 must occur in the same manner, where practicable. Since SDSs and MSDSs are commonly published for the lead acid batteries and not the individual components of the batteries, it is anticipated that a facility would typically submit a copy of the SDS or MSDS for the batteries to meet the requirements of section 311 and list the batteries on the Tier II form to meet the requirements of section 312.

Applicable laws & regulations

29 U.S.C. 651 to 678 — Occupational Safety and Health

42 U.S.C. 11001 to 11050 — Emergency Planning and Community Right-to-Know

42 U.S.C. 11021 — Material Safety Data Sheets

42 U.S.C. 11022 — Emergency and Hazardous Chemical Inventory Forms

29 CFR 1910.1200 — Hazard Communication

40 CFR 355 — Emergency Planning and Notification

40 CFR 370 — Hazardous Chemical Reporting: Community Right-to-Know

Related definitions

“Extremely hazardous substance” (EHS) means a substance listed in Appendices A and B of 40 CFR 355.

“Hazardous chemical” means any hazardous chemical as defined under 1910.1200(c), with exceptions listed at 370.66 and subparagraph 1910.1200(b)(6).

“Mixture” means a combination or a solution composed of two or more substances in which they do not react.

“Safety data sheet” (SDS) or “material safety data sheet” (MSDS) means the sheet required to be developed under paragraph 1910.1200(g).

“Threshold planning quantity” (TPQ) means, for a substance listed in Appendices A and B of 40 CFR 355, the quantity listed in the column “threshold planning quantity” for that substance.

Key to remember

The aggregation of non-EHSs for threshold determination is not required under EPCRA sections 311 and 312, according to 40 CFR 370.14. Aggregating a chemical is required only for the EHSs present at the facility.

If a facility reports a specific mixture as a whole for SDS/MSDS reporting, i.e., lead acid batteries, the facility must report on that mixture as a whole for Tier II reporting too, unless it is not possible.

The thresholds in this Fact File are federal ones. Because states and territories may have lower reporting thresholds, facilities should contact their state for any additional requirements.

Real world example

The facility may wish to use a lead acid battery inventory and calculation spreadsheet like the one below to determine if thresholds are met or exceeded and therefore reporting is required. Battery weights and chemical composition can vary from battery brand to brand or even within the same brand. Also, when the percentage composition is given as a range on the battery SDS/MSDS itself, the facility must use the upper bound percentage when making weight calculations. In this way, emergency responders will know the worst-case scenario at the facility.

The above example shows that the 10,000-pound threshold for lead is not exceeded for the batteries, so Tier II reporting is not triggered by the lead content of the batteries alone. However, the example shows that the 500-pound threshold for sulfuric acid is exceeded, so Tier II reporting is required, and, assuming the facility does not have pure sulfuric acid at the facility, the facility may report either for sulfuric acid or the lead acid batteries, whichever option was used for SDS/MSDS reporting.