Introduction

The two reporting tiers for the Emergency Planning and Community Right-to-Know Act (EPCRA) can cause some confusion. There are certain chemical exclusions and reporting thresholds to be cautious of when exploring whether a company needs to submit a Tier II form. It is important to remember that facilities provide either a Tier I or Tier II form. This Fact File gives a detailed look at Tier II applicability. Presented here is information on particular chemicals that EPCRA excludes in relation to Tier II reporting and reporting thresholds.

Background

EPCRA was passed in 1986. It was in response to worries regarding the environmental and safety hazards posed by the storage and handling of toxic chemicals. These concerns were activated by the 1984 disaster in Bhopal, India. The disaster was caused by an unintentional release of methylisocyanate, which ended up killing or severely injuring over 2,000 people. To lower the chance of this happening in the United States, Congress imposed requirements for federal, state, and local governments, tribes, and industry. These requirements covered emergency planning and “Community Right-to-Know” reporting on hazardous and toxic chemicals. These provisions help increase the public familiarity and access to data on chemicals at specific facilities, their uses, and releases into the environment.

EPCRA requires the owner or operator of facilities subject to Section 311 of EPCRA to submit an emergency and hazardous chemical inventory form by March 1 of each calendar year to the State Emergency Response Commission (SERC), the Local Emergency Planning Committee (LEPC), and the local fire department. There are two reporting “tiers” for supplying information on hazardous chemicals at a subject facility, Tier I and Tier II. The Tier I form has overall information on hazardous chemicals at the facility. The Tier II form has specific information on hazardous chemicals existing at the facility. There are certain chemical exclusions and reporting thresholds for Tier II reporting.

Tier II chemical exclusions

The Tier II form does not have to be submitted if ALL the chemicals located at your facility are excluded. EPCRA excludes the following substances:

1. Any food, food additive, color additive, drug, or cosmetic controlled by the Food and Drug Administration (FDA);
2. Any substance present as a solid in any manufactured item to the extent exposure to the substance does not happen under usual conditions of use;
3. Any substance to the extent it is used for personal, family, or household reasons, or is present in the same form and concentration as a product packaged for distribution and use by the general public;
4. Any substance to the extent it is used in a research laboratory or a hospital or other medical facility under the direct supervision of a technically capable person; and
5. Any substance to the extent it is used in repetitive agricultural processes or is a fertilizer held for sale by a retailer to the final customer.

Tier II reporting thresholds

A company needs to report the required information on the Tier II inventory form for each hazardous chemical present at a facility in the previous calendar year in quantities equal to or greater than established threshold amounts unless the chemicals are excluded as stated above.

Thresholds are as follows:

• Extremely Hazardous Substances (EHSs): The reporting threshold is 500 pounds (or 227 kg) or the threshold planning quantity (TPQ), whichever is less. EHSs and their TPQs are listed in 40 CFR part 355 Appendix A and Appendix B.
• Gasoline (all grades combined) (retail gas station): The threshold level is 75,000 gallons (or about 283,900 liters), if the tank(s) was stored completely underground and always complied during the preceding calendar year with all applicable Tier II Inventory Form Instructions.
• Diesel fuel (all grades combined) (retail gas station): The threshold level is 100,000 gallons (or about 378,500 liters), if the tank(s) was stored completely underground and always complied during the preceding calendar year with all applicable Underground Storage Tank (UST) requirements or requirements of the state UST program approved by EPA.
• Other hazardous chemicals: The minimum reporting threshold is 10,000 pounds (or 4.540 kg).

Applicable laws & regulations

40 CFR 355 — Emergency Planning and Notification

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

40 CFR 280 — Technical Standards and Corrective Action Requirements for Owners and Operators of Underground Storage Tanks (UST)

40 CFR 281 — Approval of State Underground Storage Tank Programs

Related definitions

Retail gas station: A retail facility engaged in selling gasoline and/or diesel fuel principally to the public for motor vehicle use on land.

Underground storage tank: Any one or combination of tanks (including underground pipes connected thereto) that is used to hold an accumulation of regulated substances, and the volume of which (including the volume of underground pipes connected thereto) is 10 percent or further beneath the surface of the ground.

Key to remember

The thresholds and chemical exclusions in this Fact File are federal ones. States may have lower reporting thresholds and additional chemicals covered by the state right-to-know regulations. Facilities should contact their state for any additional requirements.

Real world example

Applicable companies need to remember to complete Tier II reporting and do it on time. The failure to do so can deprive state and local emergency responders of data necessary to plan and respond to spills and chemical releases. A company with a gas plant in Colorado faced a $122,900 penalty for violations against the Clean Air Act (CAA) and EPCRA. The company failed to submit a Tier II report. Along with paying the fine, the company agreed to file the needed reports and fix identified risk management planning issues. By submitting the Tier II form, a facility helps far more than just their own employees.